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The opinion of the court was delivered by
Abbott, J.:
Donald F. Peterson, the claimant, appeals the trial court’s order denying his motion to modify a lump sum settlement in a workers compensation case.
The lump sum settlement was approved by an administrative law judge in 1984. In 1991, Peterson filed a motion, citing what is now K.S.A. 1992 Supp. 44-528, to modify the lump sum settlement. He alleged fraud, undue influence, and misconduct on the. part of the employer and his former attorney in failing to inform the administrative law judge fully of his traumatic epilepsy condition.
The facts leading to the motion to modify are as follows. Peterson began working for Garvey Elevators, Inc., the respondent, in 1978. While taking com out of a bin on January 15, 1983, he injured his lower back. Peterson returned to work in May and, about a week later on May 23, 1983, he fell off a fertilizer spreader and broke his collarbone, reinjured his back, and suffered a head injury. When he fell, he struck the right side of his face and head. Peterson was unconscious for a short period of time and sustained a concussion. In June 1983, he suffered a grand mal seizure. He has had subsequent seizures (as many as 12 or 15 times a month). He refers to his condition as traumatic neurosis epilepsy.
The parties agreed workers compensation covered Peterson’s injuries. On November 14, 1984, an administrative law judge (ALJ) conducted a friendly settlement hearing. Present at the hearing were Peterson and his then attorney; the attorney for Garvey Elevators and National Union Fire Insurance, the insurance carrier; and the attorney for the Workers Compensation Fund. Garvey Elevators and National Union Fire Insurance will be referred to collectively as Garvey Elevators.
Peterson testified at the hearing. He acknowledged discussing the settlement with his attorney. He said he understood that he had the right to a full hearing and by proceeding with the friendly settlement hearing he was waiving that right, and that any settlement the ALJ awarded would be “a full, final and complete settlement.” Peterson was advised that, under the terms of the settlement, he would not be reimbursed for any medical expenses brought to the insurance carrier s attention after the hearing or expenses incurred after the hearing. Peterson testified that he “sustained a head injury, . . . broken collar bone, and reinjured the back” in the second accident and that he had been treated by a doctor and had seen the doctor’s medical report. The following exchange then occurred on the record between the attorney for Garvey Elevators and Peterson:
“Q. . . . Now, you also understand that this is a full settlement for all the injuries that you sustained or may have sustained in both these accidents, but we are not paying you on the basis of any traumatic epilepsy or any head injuries. What we are compensating you for here is only for your back injuries.
“A. (Witness indicates, but no audible answer.)
“Q. That doesn’t mean that you would later be able to seek compensation for epilepsy or any head injury. It just means that the injuries that we are paying for here are just your back injuries.
“A. Now, back up.
“THE COURT: Wait a minute.”
An off-the-record discussion ensued. When the discussion returned to the record, Peterson agreed to the ALJ-approved lump sum settlement award in the amount of $39,896.18. Peterson then, on the record, accepted checks in the full amount of the lump sum settlement “as full, final and complete settlement of any claims” arising out of the workers compensation claim.
Peterson concedes all of the parties to the settlement were aware of his epilepsy and were aware in advance of the settlement hearing that medical experts were of the opinion the epilepsy was related to his fall. Peterson’s argument is that not all of the medical reports were furnished to the examiner and that the parties did not fully inform the administrative law judge con ceming his condition. He seeks to modify the 1984 settlement to give him lifetime medical benefits.
The correspondence of Peterson’s attorney, which is included in the record on appeal, indicates Peterson does not know what medical reports were furnished to the medical examiner and specifically whether the two medical reports he alleges were withheld fraudulently were furnished to the ALJ at the hearing. Peterson maintains he should be allowed to depose all counsel and the ALJ to determine exactly what happened. The respondent maintains the motion to modify was not timely for several reasons.
The ALJ held “K.S.A. 44-528 specifically excludes lump-sum settlements approved by the Director or Administrative Law Judge from being subject to review and modification,” and treated it as a motion to set aside the settlement. The ALJ then held that a motion to set aside a settlement must be instituted within one year after the date of the agreement, pursuant to K.S.A. 44-527, and was thus time-barred.
Peterson requested a director’s review of the ALJ’s order dismissing his motion to modify the 1984 lump sum settlement. The director affirmed the ALJ, reasoning:
“At a settlement hearing the Administrative Law Judge has the duty to determine that the claimant understands his rights under the Workers Compensation Act and that he further understands the consequences of settlement of his claim. In order to make such a determination the Administrative Law Judge conducts an examination of the claimant on the record to confirm that the claimant in fact fully understands his rights and the effect of the settlement. Herein, such a colloquy occurred (during which the epilepsy and head injury were brought to the attention of the special administrative law judge) whereupon the claimant agreed to a full settlement of the claim.
“In Yocum v. Phillips Petroleum Co., 228 Kan. 216, 612 P.2d 649 (1980), the Court held that where it was alleged that a settlement agreement was obtained as a result of fraud, the claimant was required to seek relief under K.S.A. 1978 Supp. 44-528 and such statute provided the exclusive remedy to the claimant so as to bar a common law action for fraud against the employer. As noted, the Court was construing K.S.A. 1978 Supp. 44-528.
“K.S.A. 1978 Supp. 44-528 was amended effective July 1, 1979, by the addition of the language ‘except lump .sum settlements approved by the director or examiner.’ In 1980, ‘examiner’ was amended to ‘administrative law judge.’ This amendment exempts lump sum settlements approved by the director or administrative law judge from the statutory provisions for review and modification. Arguably, this has eliminated a statutory remedy for fraud where the lump sum settlement is approved by the director or administrative law judge and applying the logic of Yocum, the claimant may now have the remedy of a common law action for fraud. In any event the amendment specifically excludes lump sum settlements approved by an administrative law judge from the review and modification provisions of K.S.A. 44-528. The Administrative Law Judge correctly determined that a lump sum settlement approved by the director or administrative law judge is not subject to review and modification.
“Assuming that K.S.A. 44-527 is applicable to settlement hearings conducted before an administrative law judge, it is equally clear that the instant proceedings were initiated outside the one year limitation provided by that statute. Bittnoff v. Southwest Rendering, 223 Kan. 334, 573 P.2d 1033 (1978).”
At Peterson’s request, judicial review followed, and the trial court affirmed the ALJ and the director. This appeal followed.
It is important to understand that in this case Peterson does not claim fraud concerning the cause of his traumatic neurosis epilepsy. Prior to the settlement hearing in 1984, both the claimant and his then attorney knew of the head injury, knew that after the head injury claimant suffered from epilepsy, and knew that medical experts in the field attributed the epilepsy to the trauma suffered when the head injury occurred. In his brief in this appeal, Peterson’s current attorney states:
“Ail of the pre-settlement hearing depositions, medical bills and narrative reports from Drs. Barnett and Colip reflect the fact that this claimant suffered two injuries in January and May of 1983, that is, a low back injury as well as a closed-head injury, the latter resulting in seizures.”
On appeal, Peterson’s argument is that K.S.A. 1992 Supp. 44-528(a) constitutes unequal protection of the law and denies him due process of law.
Claimant’s appeal fails for two reasons. He never raised these constitutional issues in the trial court. “Where constitutional grounds for reversal are asserted for the first time on appeal, they are not properly before the appellate court for review.” Murphy v. IBP, Inc., 240 Kan. 141, Syl. ¶ 3, 727 P.2d 468 (1986).
In any event, his constitutional argument fails. Peterson argues K.S.A. 1992 Supp. 44-528 violates his equal protection and due process rights, guaranteed by § 2 of the Kansas Constitution Bill of Rights and by the Fifth and Fourteenth Amendments to the United States Constitution, because it creates two classes of claimants post-award. He argues K.S.A. 1992 Supp. 44-528 is unequal in its application; i.e., it permits modification or review of any award except lump sum settlements approved by the director or administrative law judge. Peterson also contends other claimants similarly situated are not treated similarly.
Peterson does not explain how the statute violates due process. Peterson does not brief the question. “ ‘An issue not briefed or argued upon appeal is deemed abandoned.’ [Citation omitted.]” In re Marriage of Soden, 251 Kan. 225, 239, 834 P.2d 358 (1992). However, in addressing whether K.S.A. 1992 Supp. 44-528(a) violates equal protection, we implicitly will have determined if the statute violates due process.
“The difference between the constitutional concepts of due process and equal protection is that due process emphasizes fairness between the state and the individual dealing with the state, regardless of how other individuals in the same situation are treated, while equal protection emphasizes disparity in treatment by a state between classes of individuals whose situations are arguably indistinguishable. Ross v. Moffitt, 417 U.S. 600, 41 L. Ed. 2d 341, 94 S. Ct. 2437 (1974). The test in determining the constitutionality of a statute under due process or equal protection weighs almost identical factors.
"When a statute is attacked as violative of due process, the test is whether the legislative means selected has a real and substantial relation to the objective sought. This rule has been restated in terms of whether the [statute] is reasonable in relation to its subject and is adopted in the interest of the community. [Citation omitted.]” Clements v. United States Fidelity & Guaranty Co., 243 Kan. 124, 127, 753 P.2d 1274 (1988).
because the statute is challenged on equal protection grounds, the first question is which standard of scrutiny applies. Peterson neither discusses standards of scrutiny nor suggests a particular standard for this court to apply.
We hold the rational basis test is the proper standard. See Stephenson v. Sugar Creek Packing, 250 Kan. 768, 779, 830 P.2d 41 (1992) (provision of Workers Compensation Act challenged on equal protection grounds, and rational basis test applied); Bair v. Peck, 248 Kan. 824, Syl. ¶ 6, 811 P.2d 1176 (1991) (“Traditionally, the yardstick for measuring equal protection arguments has been the reasonable basis test.”); Leiker v. Gafford, 245 Kan. 325, 363, 778 P.2d 823 (1989) (“The ‘reasonable basis’ or ‘rational basis’ test traditionally has been applied where equal protection challenges have been brought against social and economic legislation.”).
“The [rational basis] test is violated only if the statutory classification rests on grounds wholly irrelevant to the achievement of the State’s legitimate objective. The state legislature is presumed to have acted within its constitutional power, even if the statute results in some inequality. Under the [rational] basis test, a statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it. [Citations omitted.]
“Under the [rational] basis test, it is unnecessary to ascertain the specific purpose the Kansas Legislature espoused, if any, in establishing the challenged classification. Rather, if any state of facts reasonably may be conceived to justify the alleged statutory discrimination, the statute will not be set aside as a violation of equal protection. [Citation omitted.]
“A statute comes before the court cloaked in a presumption of constitutionality, and it is the duty of the party attacking the statute to sustain the burden of proof. [Citation omitted.]” Leiker, 245 Kan. at 363-64.
See Stephenson, 250 Kan. at 774; Bair, 248 Kan. at 834; Farley v. Engelken, 241 Kan. 663, Syl. ¶ 2, 740 P.2d 1058 (1987).
Equal protection is not violated simply because K.S.A. 1992 Supp. 44-528(a) discriminates between claimants and respondents who enter into lump sum settlements approved by an ALJ or the director and those who do not. The question is whether this classification bears a rational relationship to a legitimate state objective. There is no statutorily stated purpose for precluding such settlements from review or modification; however, the classification will be upheld if any state of facts reasonably may be conceived to justify it.
Garvey Elevators suggests the need for finality and certainty in lump sum settlement awards for both claimants and respondents justifies the classification. Although we need not ascertain the legislature’s purpose in creating the classification, Garvey Elevators directs our attention to K.S.A. 44-531 as evidence of the legislature’s recognition of the need for finality and certainty in lump sum settlements. K.S.A. 44-531 authorizes the lump sum payment of awards. Garvey Elevators maintains that, if lump sum settlements are subject to review or modification, an employer could be subject to further liability in direct contradiction to K.S.A. 44-531(a), which expressly releases the employer from all further liability upon payment of the lump sum settlement. According to Garvey Elevators, subjecting lump sum settlements to review or modification will defeat the advantages of lump sum settlements for both respondents and claimants. For respondents, the advantage is an eight percent discount on the total amount of the award if paid by lump sum, pursuant to K.S.A. 44-531(a). For claimants, the advantages include avoiding protracted litigation and receiving the entire amount of the award in one payment. Garvey Elevators suggests receiving lump sum payments will enable claimants to do more with the awards than if they received the money in smaller amounts over a period of time, particularly with regard to rehabilitation and to seeking new employment.
Garvey Elevators claims that although K.S.A. 1992 Supp. 44-528(a) discriminates against parties who settle their workers compensation cases by lump sum settlements, the discrimination is not invidious. See Baker v. List and Clark Construction Co., 222 Kan. 127, 130, 563 P.2d 431 (1977) (“[I]t is only invidious discrimination with no rational basis for the statutory classification that offends the equal protection guarantee.”). There is no invidious discrimination because the parties knowingly place themselves within a classification restricting future rights. Before a workers compensation case can be settled by lump sum settlement, all parties must agree to it. K.S.A. 44-531(a).
Finality and certainty in lump sum settlements is a legitimate state objective and justifies excluding lump sum settlements approved by an ALJ or the director from review or modification. Thus, this classification bears a rational relationship to a legitimate state objective.
Peterson also argues other claimants similarly situated are not similarly treated. According to his interpretation of K.S.A. 1992 Supp. 44-528(a), the statute allows review or modification of non-lump sum settlements paid in full. He claims lump sum settlements and nonlump sum settlements paid in full are “the same animal.”'
The important factor in denying review is the statutory exclusion confined to “lump sum settlements approved by the director or administrative law judge.” Any lump sum settlement not so approved is subject to review, whether it is “the same animal” or distinguishable. Thus, the claimants are not similarly situated.
K.S.A. 1992 Supp. 44-528(a) does not violate equal protection or due process and is constitutional.
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The opinion of the court was delivered by
Abbott, J.:
Executive Aircraft Consulting, Inc., (Executive Aircraft) filed a declaratory judgment action, challenging the legality of a “fuel flowage fee,” which the City of Newton and Harvey County (defendants) had adopted by ordinance. The trial court found that this fee on all aviation fuel transported onto the premises of the Newton City-County Airport (Airport) was an illegal tax, in violation of K.S.A. 79-3424 (prohibiting any political subdivision except the State of Kansas from imposing a motor vehicle fuel tax) and K.S.A. 12-194 (prohibiting a city or county from imposing an excise tax upon the sale or transfer of personal or real property, other than a retailers’ sales tax and a compensating use tax). The defendants appeal.
The defendants had and have a retail sales facility at the Airport that, among other things, sells aviation fuel to the general public. It is the only sales facility for aviation fuel at the Airport. Executive Aircraft is in the business of refurbishing aircraft and buys and sells aircraft. It operates its business at the Airport on property leased from defendants. It uses a large quantity of aviation fuel.
Executive Aircraft purchased a tanker truck and would purchase aviation fuel whenever it could buy it at the lowest price and then refuel its planes out of the tanker truck. It would also buy fuel from suppliers who would deliver fuel to the Airport and pump it into Executive Aircraft’s tanker truck.
The defendants became concerned about the loss of revenue from Executive Aircraft and the possibility that other tenants might do the same thing. The defendants countered by adopting a city/county ordinance that establishes a license requirement to transport aviation fuel to and upon the Airport’s premises and assesses a fuel flowage fee of five cents per gallon on all aviation fuel so transported. The ordinance establishes criminal penalties for violations. The ordinance provides for the proceeds from the fuel flowage fees to be deposited into an airport improvement fund to finance public improvements at the Airport.
Executive Aircraft filed a declaratory judgment action, asking the trial court to invalidate that part of the ordinance imposing the fuel flowage fee. Executive Aircraft argued the fuel flowage fee is a locally levied tax on the distribution or delivery of motor vehicle fuel, in violation of K.S.A. 79-3424; is a locally levied excise tax on the sale or transfer of personal property, in violation of K.S.A. 12-194; and did not operate impartially, in violation of K.S.A. 3-116.
Executive Aircraft subsequently filed a motion for judgment on the pleadings on the tax issues — whether the fuel flowage fee violated K.S.A. 79-3424 and K.S.A. 12-194. Executive Aircraft maintained that judgment on the pleadings was not appropriate with respect to its claims concerning K.S.A. 3-116 because of the possibility of disputed facts concerning whether the ordinance discriminated against Executive Aircraft. In response, the defendants claimed that all three issues were susceptible to judgment on the pleadings.
On January 3, 1992, the trial court heard arguments and then entered judgment in favor of Executive Aircraft. With regard to the tax issues, the court ruled that the defendants did not have the authority to impose the fuel flowage fee and that the portion of the ordinance imposing the fuel flowage fee was illegal. The court did not address the K.S.A. 3-116 claim.
The defendants timely appealed to the Court of Appeals. The case was transferred to this court, pursuant to K.S.A. 20-3018(c).
The defendants claim the trial court erred in finding that the fuel flowage fee was a locally levied tax on motor vehicle fuel in violation of K.S.A. 79-3424 and a locally levied excise tax in violation of K.S.A. 12-194. The defendants argue that the fuel flowage fee does not violate the statutes because a fee, by definition, is outside the scope of the tax statutes and because this fee was issued in furtherance of its proprietary functions. The defendants conceded at trial and on appeal that but for the defendants’ exercising their proprietary functions, the fuel flowage fee would be a tax.
The defendants base their authority to impose the fuel flowage fee upon the home rule provision of the Kansas Constitution. “[T]be home rule powers granted to cities by constitutional amendment and to counties by legislative act appear to be similar and parallel each other in many particulars.” Missouri Pacific Railroad v. Board of Greeley County Comm’rs, 231 Kan. 225, 226, 643 P.2d 188 (1982). There also are differences between city and county home rule. See Heim, Kansas Local Government Law § 3.64 (1991) (comparison of city and county home rule powers). These differences, however, are immaterial to resolving this issue. Thus, for the sake of brevity, references to constitutional home rule will be deemed to apply to both defendants.
Home rule empowers the defendants to levy any type of exaction unless the legislature preempts the field by uniform enactment. Kan. Const, art. 12, § 5(b). The defendants acknowledge that K.S.A. 79-3424 and K.S.A. 12-194 are uniform enactments.
K.S.A. 79-3424 provides:
“The business of using, manufacturing or selling of motor-vehicle fuels shall not be subject to any excise, license, privilege or occupation tax other than the one herein imposed, whether such tax be imposed by the state of Kansas or by any municipal corporation or other political subdivision of this state; and no municipal corporation, or other political subdivision of this state, shall levy or collect any tax upon, or measured by, the sale, receipt, distribution or use of motor-vehicle fuel, or any excise, license, privilege or occupational tax upon the business of manufacturing, using, selling or delivering motor-vehicle fuels.”
Motor vehicle fuels encompass aviation fuel. K.S.A. 1991 Supp. 79-3408(d)(4).
K.S.A. 12-194 provides:
“No city or county shall levy or impose an excise tax or a tax in the nature of an excise, other than a retailers’ sales tax and a compensating use tax, upon the sale or transfer of personal or real property, or the use thereof, or the rendering of a service, but the provisions of this section shall not be construed as prohibiting any city from (a) contracting with a utility for a fixed charge based upon a percentage of gross receipts derived from the service permitted by grant, right, privilege or franchise to such utility; (b) imposing an occupation tax or license fee for the privilege of engaging in any business, trade, occupation or profession, or rendering or furnishing any service, but the determination of any such license fee shall not be based upon any amount the licensee has received from the sale or transfer of personal or real property, or for the rendering or furnishing of a service, or on the income of the licensee; or (c) levying any occupation tax or license fee imposed by such city prior to the effective date of this act. No license fee described in subsection (b) of this section shall be imposed upon any utility contracting with and subject to a charge, described in subsection (a) of this section, by such city.”
The defendants correctly assert that the ordinance is entitled to a presumption of validity and should not be stricken unless its infringement upon a statute is clear beyond substantial doubt. See City of Wichita v. Wallace, 246 Kan. 253, 257, 788 P.2d 270 (1990); see also Blevins v. Hiebert, 247 Kan. 1, 16, 795 P.2d 325 (1990) (“A city or county ordinance should be permitted to stand unless an actual conflict exists between the ordinance and a statute, or unless the legislature has clearly preempted the field so as to preclude local governmental action.”); cf. Kan. Const, art. 12, § 5(d) (“Powers and authority granted cities pursuant to this section shall be liberally construed for the purpose of giving to cities the largest measure of self-government.”); Claflin v. Walsh, 212 Kan. 1, 7, 509 P.2d 1130 (1973) (“Section 5 (d) of Article 12 [of the Kansas Constitution] requires a liberal construction of the powers and authority granted cities for the purpose of giving to cities the largest measure of self-government. This provision simply means that the home rule power of cities' is favored and should be upheld unless there is a sound reason to deny it. . . . Unless there is actual conflict between a municipal ordinance and a statute, the city ordinance should be permitted to stand.”).
The defendants also contend tax statutes must be construed strictly and their prohibitions restricted to the express, specific language of the statutes. This court has established the following principles in construing tax statutes:
“Tax laws are statutory and do not exist apart from the statute. As such, they must be strictly construed.” In re Order of Board of Tax Appeals, 236 Kan. 406, Syl. ¶ 5, 691 P.2d 394 (1984), overruled on other grounds In re Application of U.S.D. No. 437 for Tax Relief, 243 Kan. 555, 757 P.2d 314 (1988).
“Tax statutes will not be extended by implication beyond the clear import of language employed therein, and their operation will not be enlarged so as to include matters not specifically embraced. Where there is reasonable doubt as to the meaning of a taxing act, it will be construed most favorably to the taxpayer.” Fleming Company v. McDonald, 212 Kan. 11, Syl. ¶ 1, 509 P.2d 1162 (1973); Equitable Life Assurance Society v. Hobbs, 154 Kan. 1, Syl. ¶ 1, 114 P.2d 871 (1941).
Any reasonable doubt concerning the meaning of these tax statutes must be construed in favor of the taxpayer, not the municipality.
According to the defendants, because constitutional home rule expressly recognizes forms of exactions not expressly prohibited in the two tax statutes, the legislature did not intend to preempt this field for all forms of exactions. Specifically, the defendants argue that because the fuel flowage fee is a proprietary fee, it is outside the scope of K.S.A. 79-3424 and K.S.A. 12-194, which prohibit a locally levied tax or excise, not a locally levied proprietary fee. In essence, the defendants’ argument is based upon the Latin maxim expressio unius est exclusio alterius — “the expression of one excludes the other.” See Board of Johnson County Comm’rs v. Greenhaw, 241 Kan. 119, 129, 734 P.2d 1125 (1987).
The fact that the fuel flowage fee has been entitled a fee is not the decisive factor in ascertaining whether the fee violates either tax statute. We must determine what the legislature intended to prohibit. In order to do that, we must examine the nature and purpose of a fee and of a tax. This court has referred to a tax as a “revenue measure.” Berger v. Bierschbach, 201 Kan. 740, 745, 443 P.2d 186 (1968).
Other jurisdictions have addressed the distinctions between a tax and a fee. The United States Supreme Court has stated that “an ‘enforced contribution to provide for the support of government,’ [is] the standard definition of a tax. [Citation omitted.]” United States v. Mississippi Tax Comm'n, 421 U.S. 599, 606, 44 L. Ed. 2d 404, 95 S. Ct. 1872 (1975). “A fee . . . is incident to a voluntary act . . . which, presumably, bestows a benefit on the applicant, not shared by other members of society.” National Cable Television Assn. v. U.S., 415 U.S. 336, 340-41, 39 L. Ed. 2d 370, 94 S. Ct. 1146 (1974). The District of Columbia Court of Appeals has noted: “A ‘fee’ is a payment for a special privilege or service rendered, and not a revenue measure. If the ‘fee’ unreasonably exceeds the value of the specific services for which it is charged it will be held invalid.” National Cable Television Ass'n, Inc. v. F.C.C., 554 F.2d 1094, 1106 (D.C. Cir. 1976). Massachusetts has declared:
“Fees imposed by a governmental entity tend to fall into one of two principal categories: user fees, based on the rights of the entity as proprietor of the instrumentalities used, [citation omitted], or regulatory fees (including licensing and inspection fees), founded on the police power to regulate particular businesses or activities. [Citations omitted.] Such fees share common traits that distinguish them from taxes: they are charged in exchange for a particular governmental service which benefits the party paying the fee in a manner ‘not shared by other members of society,’ [citation omitted]; they are paid by choice, in that the party paying the fee has the option of not utilizing the governmental service and thereby avoiding the charge, [citation omitted], and the charges are collected not to raise revenues but to compensate the governmental entity providing the services for its expenses.” Emerson College v. Boston, 391 Mass. 415, 424-25, 462 N.E.2d 1098 (1984).
In New York,
“taxes are burdens of a pecuniary nature imposed generally upon individuals or property for defraying the cost of governmental functions, while, on the other hand, charges are sustainable as fees where they are imposed upon a person to defray or help defray the cost of particular services rendered for his account.” Matter of Hanson v. Griffiths, 204 Misc. 736, 738, 124 N.Y.S.2d 473 (1953), aff’d 283 App. Div. 662, 127 N.Y.S.2d 819 (1954).
See Mtr. of Joslin v. Regan, 63 App. Div. 2d 466, 470, 406 N.Y.S.2d 938 (1978) (“fees have been characterized as a visitation of the costs of special services upon the one who derives a benefit from them.’ ”), aff'd 48 N.Y.2d 746, 422 N.Y.S.2d 662, 397 N.E.2d 1329 (1979). Kentucky has determined:
“ “The distinction between a fee and a tax is one that is not always observed with nicety in judicial decisions, but any payment exacted by the state or its municipal subdivisions as a contribution toward the cost of maintaining governmental functions, where the special benefits derived from their performance is merged in the general benefit, is a tax.’ On the other hand, a fee is generally regarded as a charge for some particular service.” Dickson, Sheriff v. Jeff. Co. Bd. of Education, 311 Ky. 781, 786, 225 S.W.2d 672 (1949).
In South Dakota, “[t]he distinction between fees and taxes is that taxes are imposed for the purpose of general revenue while lic.ense or other fees are ordinarily imposed to cover the cost and expense of supervision or regulation. [Citation omitted.]” Valandra v. Viedt, 259 N.W.2d 510, 512 (S.D. 1977).
Thus, a tax is a forced contribution to raise revenue for the maintenance of governmental services offered to the general public. In contrast, a fee is paid in exchange for a special service, benefit, or privilege not automatically conferred upon the general public. A fee is not a revenue measure, but a means of compensating the government for the cost of offering and regulating the special service, benefit, or privilege. Payment of a fee is voluntary — an individual can avoid the charge by choosing not to take advantage of the service, benefit, or privilege offered.
Executive Aircraft argues that the fuel flowage fee is a tax because the fuel flowage fee is not related to any special service being provided to the fuel transporters. Executive Aircraft sug gests the fuel transporters may live too far away to benefit from using the Airport in any other capacity. Executive Aircraft also claims the purpose of the fuel flowage fee is to raise revenue to support the Airport, which would eliminate the need to raise the mill levy.
Counsel for the defendants admitted at oral argument in the trial court that the fuel flowage fee was a “revenue raising measure.” Defense counsel argued:
“[I]f we look at [it] from the point of view of the subject which would be a fuel distributor coming in here, they don’t have any right or privilege to conduct their business on the airport facility, and if they want to, of course, our concern is to the extent they can do that they’re in competition with the — with our own revenue producing activities, so if you’re gonna do that and be in competition then you should contribute, too, to the cost. ... If we say that we can’t require the — these fuel distributors to contribute and help make up for what we’re losing in revenue on the other when we aren’t the ones selling the fuel ....
“[The fuel distributors are] having the privilege of coming on [the Airport’s premises] and doing this business. Circumventing, not illegally, but doing so in a way that competes with other revenue sources of the airport. We have the right to protect that.”
The trial court found that the operation of the Airport is a proprietary function. For support, the court cited 3 McQuillin, Municipal Corporations § 11.03.05 (3d ed. 1990), in which it is stated: “The operation of an airport by a municipality ... is generally held to be a proprietary rather than a governmental function.” The defendants jointly operate the Airport.
Kansas law also supports the proposition that a municipality’s operation of an airport is a proprietary function. In Wendler v. City of Great Bend, 181 Kan. 753, Syl. ¶ 5, 316 P.2d 265 (1957), in the context of governmental immunity from tort liability, this court held:
“A municipal airport is essentially a part of a city’s system of transportation facilities and as such assumes its proper place in the general field of transportation and commerce. The various commercial transactions by a municipality in the operation of an airport from which it seeks to derive revenue are only in part indicative of its commercial character, the full significance of its commercial nature being exemplified by the desired opportunities of a municipality for increased prosperity to be secured through air commerce. This classifies the airport with such public utilities as electric light, gas, water and transportation systems — universally classed as proprietary.”
See Hillhouse v. City of Kansas City, 221 Kan. 369, 373, 559 P.2d 1148 (1977) (airport as proprietary function mentioned in the context of discussing why foreign municipal corporations should be treated the same as foreign private corporations; jurisdiction question raised in tort liability suit); Parker v. City of Hutchinson, 196 Kan. 148, 150-51, 410 P.2d 347 (1966) (airport as proprietary function discussed in context of governmental immunity from tort liability).
In its journal entry on motion for judgment on the pleadings, after acknowledging that the operation of the Airport was a proprietary function, the trial court found that “imposition of the fuel flowage fee was the exercise of legislative power.” The trial court rioted: “In its governmental power, the City and County may command; in its private character, it sometimes must bargain and barter.” In its memorandum decision on the defendants’ motion for reconsideration, the trial court indicated imposition of the fee was a governmental or legislative activity because it was noncommercial in nature and because a private individual or company could not accomplish the same. For example, failure to pay the fee results in criminal sanctions — imprisonment not exceeding 30 days and/or a fíne not exceeding $500. Additionally, by imposing the fuel flowage fee, the defendants unilaterally altered its lease agreement with Executive Aircraft and accomplished an “ex parte facto rent increase” without providing a comparable increase of service.
We have acknowledged the difficulty in classifying an activity as either governmental or proprietary.
“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 government 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.)” Brown v. Wichita State University, 217 Kan. 279, 305, 540 P.2d 66 (1975), aff’d in part, vacated in part 219 Kan. 2, 547 P.2d 1015 (1976).
See Krantz v. City of Hutchinson, et al., 165 Kan. 449, 455, 196 P.2d 227 (1948). Each case must be decided on its own facts. Carroll v. Kittle, 203 Kan. 841, 849, 457 P.2d 21 (1969).
Both parties cite a 1989 Attorney General Opinion to support their arguments. The Attorney General was asked if a flowage fee on the per gallon sale of motor fuels, which had been imposed by municipal airport authorities as part of the rent in a lease agreement, was a local excise tax in violation of the same statutes involved in the instant case. The Attorney General concluded that the flowage fee was part of the rent, “a charge for a service rendered,” and not a tax. Att’y Gen. Op. No. 89-57, p. 4.
The defendants claim the Attorney General Opinion examines the relationship between proprietary fees and taxes. According to the defendants, the opinion supports their position for the following reasons: The Attorney General noted that an airport authority is authorized statutorily to enter into contracts that lease part or all of the airport for aviation purposes; that all types of public revenue are not taxes; and that if “a city is authorized to provide a service for compensation, the charge imposed is not a tax.” Att’y Gen. Op. No. 89-57, p. 3. The Attorney General concluded “the airport authority is exacting the charge in its capacity as lessor rather than by virtue of its sovereignty” and “the fact that the rent is in part determined by the gross receipt of sales of gasoline does not render the rent charged a tax on the gasoline, or the selling of the same.” Att’y Gen. Op. No. 89-57, pp. 3-4.
Executive Aircraft maintains the opinion is distinguishable factually. Most importantly, in the circumstances addressed in the opinion, the fee was part of the negotiated lease agreement between the airport authority and the lessee.
The defendants contend the fact that flowage fees were incorporated into the rental agreement is a distinction without a difference. According to the defendants, the fuel flowage fee in this case serves the same function as the negotiated charge in the lease agreement addressed in the Attorney General Opinion because in both instances those assessed the fees are on the premises for business purposes. In both circumstances, without the municipality providing and maintaining the premises, there would be no opportunity to take advantage of the business opportunities. The defendants argue that the mechanism by which the fee is exacted is not important: “A rental charge is simply another of the several types of exactions that cities have the authority and power to employ, being also separate and distinct from a ‘tax.’ ”
The defendants’ arguments are not persuasive. The factual differences are significant. The Attorney General Opinion recognized that the rental arrangements were an important factor by mentioning such when setting forth the issue: “Our question is whether the flowage fee on the sale of gasoline charged as part of the rent imposes an excise tax on the sale of gasoline in violation of K.S.A. 12-194 . . . and K.S.A. 79-3424.” (Emphasis added.) Att’y Gen. Op. No. 89-57, p. 2.
We are cited many cases concerning airports charging fees that have been held both permissible and impermissible. Many are distinguishable because of statutory authority or statutory prohibition.
The distinction between a fee and a tax does not depend upon its label, but rather on the nature and function of the charge. Any applicable statutes must be considered in determining the validity of such a charge. The adoption of a charge for the privilege of non-aeronautical parties doing business at a publicly owned airport generally is governed by the same rules and regulations that apply to a private landowner. Thus, there must be some aspect of contract or consent; otherwise, the charge is a tax.
Here, there is a strong legislative intent to preempt local units of government from collecting revenue on the sale of motor vehicle fuel. Although a proprietor could enter into a lease to compute rent based on gallonage of fuel sold, the unilateral imposition of a fee based on gallonage transported onto the airport amounts to a tax and is thus prohibited by K.S.A. 79-3424. We are satisfied the infringement is clear beyond a substantial doubt, and the trial court was correct in so holding.
Having decided the “fuel flowage fee” is a tax' prohibited by K.S.A. 79-3424, the remaining issues are moot.
Affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action for damages for the conversion of an automobile. Judgment was for the plaintiff. Defendant appeals.
The petition alleged that on or about March 17, 1938, plaintiff was the owner of and had in his possession a Lincoln-Zephyr automobile of the value of $1,500; that on that date the defendant took the car from him by fraud and converted it to its own use; that in addition to the loss of the automobile the plaintiff had been damaged in the sum of $1,000. Judgment was asked in the amount of $2,500.
- For its answer, the defendant denied that it unlawfully took the automobile from the use of plaintiff; denied that it was of the value of $1,000 and denied that the plaintiff had been damaged in any amount. The answer further stated that at the times referred to in plaintiff’s petition defendant was the lawful owner of the automobile and was entitled to the exclusive possession of it. The answer further stated that it was the owner and holder of a conditional-sales contract executed by one Hainline to the Palmer Motor Company on Lincoln-Zephyr automobile No. 32792, dated April 27, 1937; that on the 28th day of April, 1937, before maturity, for valuable consideration, and in the regular course of business, this contract was sold to defendant; that about the 4th day of May, 1937, this contract was duly filed with the register of deeds of Miami county; that under the terms of the contract title was vested in defendant until the final payment of $1,142.95; that this sum had not been paid, and on or about the month of March, 1939, this automobile was repossessed by defendant under the terms of its contract, and defendant was lawfully entitled to possession of it. The answer then alleged that plaintiff wrongfully executed a chattel mortgage on the automobile in question, which was negotiated to the Morris Plan Company of Kansas City; that this mortgage was dated February 9, 1938, on the same automobile, and was made payable to the Palmer Motor Company, who endorsed it over to the Morris Plan Company, who claimed to be the owner of it; that on or about the 15th day of June, 1938, the Morris Plan Company, alleging a default in the chattel mortgage, filed a suit in conversion against this defendant, wherein as a mortgagee the Morris Plan Company sued for - the possession of the automobile, or its value, which suit was pending and undetermined. The answer next alleged that under the terms of the contract between this plaintiff and the Morris Plan Company this plaintiff had no interest in the automobile; that if any interest accrued to plaintiff by reason of his alleged purchase as an innocent purchaser, then such interest had been assigned to the Morris Plan Company by reason of the chattel mortgage. Judgment was asked in favor of defendant and against plaintiff.
With the issues thus made up the case was submitted to the trial court without a jury. That court made findings of fact and conclusions of law. These were to the effect that on April 27, 1937, the Palmer Motor Company pretended to sell the car in question to Herbert Hainline, who was an employee of the Palmer Company; that the deal was made by Hainline paying $324 to a Kansas City company as a down payment, and delivering the conditional-sales contract to the Universal Credit Company and obtaining a further sum of $1,142.95, which was paid to the Kansas City company as a balance. The court further found as follows:
“The sale was actually made to Palmer Motor Company, and Herbert C. Hainline never did have any interest in said Lincoln-Zephyr automobile, four-door sedan, H-32792. . . . The Universal Credit Company knew that Palmer Motor Company was actually taking the car for sale and that Herbert C. Hainline never did own said automobile or have any interest in it.”
The court then found in effect that the car was kept for weeks on display by the Palmer Company at its show rooms and was sold to plaintiff on February 15, 1938, for $1,318, part of which was paid by trading in a Ford coupé and the balance by a note for $868.75 to the Morris Plan Company of Kansas City. The Palmer Company received the $868.75, but did not pay the Universal Company the balance which it owed on account of the transaction when Hainline bought the car for the Palmer Company and the conditional-sales contract was assigned to that company. The court further found that the Palmer Company at no time said anything to plaintiff about defendant having any claim on the car in question and all the representations made to him suggested the Palmer Company was the full owner. The court further found that under the conditional-sales contract the Palmer Company was seller and Hainline was buyer and the Universal Credit Company financed the deal, but the sale was actually made to the Palmer Company and nine monthly payments of $50 each were made on the contract of that company. “The entire transaction was just as if the Palmer Motor Company had bought the Lincoln-Zephyr car from Universal Credit Company, given its note in payment and a conditional-sales contract or chattel mortgage on the car to secure the balance due.” The court next found that on May 4, 1937, at 8:20 a. m. a copy of the conditional-sales contract was filed in the office of the register of deeds at Paola, and that this copy showed the motor number to be "37292,” when in fact the true motor number was “32792,” and thaUthe rest of the description corresponded with that of the car in this case. The court noted that the first question to be determined was whether the recording of this conditional-sales contract containing a different motor number than the motor number on the car in question would be constructive notice to plaintiff of the lien claimed. The court next found that the only difference in Lincoln-Zephyr four-door sedans, “H,” manufactured in 1937, was the difference in the motor number of each machine. The court next found that the Universal Credit Company knew that the car was obtained by the Palmer Motor Company for the purpose of selling it; that agents of defendant inspected it from time to time and knew it was out on demonstration trips to prospective purchasers and the defendant gave its consent that the Palmer Company should sell the car in the regular course of trade; and that this would have been entirely satisfactory to defendant had the Palmer Company paid the balance due when the car was sold to plaintiff. The court next found that defendant about March 17,1938, took-the car from plaintiff without any right, drove it to Kansas City, and converted it to its own use. The court further found that plaintiff gave as a balance of the purchase price his note for $820.25, which was secured by the mortgage on the car, which was sold to the Morris Plan Company of Kansas City, Mo., and that it was contended by the defendant that this note and mortgage was not enforceable against the plaintiff. The court further found that because defendant had taken the car and converted it to its own use the plaintiff had been damaged in the sum of $1,814.70. This amount was itemized as follows:
“(a) Value of the new Lincoln-Zephyr car, March 17, 1938, including one payment of $48.50............................$1,350.00
“(b) Loss of use of car for 124 days at $2 per day. This damage found as the difference between owning and operating the car and hiring a car in its place......................P.... 248.00
“(e) Interest at six percent on $1,350.00 for 17 months, from March 17, 1938, to August 17, 1939........................ 114.75
“(d) Actual money paid out by plaintiff in his effort to recover his car in a suit in Kansas City, Mo. The items were, court costs, $53.30; premium on replevin bond, $25; depositions taken by plaintiff, $14.85; copies of said depositions, $6.30; photostatic copies of exhibits, $2.50; total.................. 101.95”
The court made the conclusions of law as follows:
"conclusions of law
“1. The defendant, the Universal Credit Company, wrongfully took the new Lincoln-Zephyr car from the possession of the plaintiff and converted it to its full use and benefit.
“2. The conditional-sales contract filed in the register of deeds’ office on May 4, 1937, was not sufficient, in fact or in law, to charge the plaintiff with constructive notice of any lien on or claim against the new 1937 Lincoln-Zephyr, four-door sedan, H-32792, which plaintiff purchased from the Palmer Motor Company on February 15, 1938.
“3. The plaintiff, Louis A. Trapani, was in law a bona fide purchaser for value, without notice of any defect in the title or lien against the new Lincoln-Zephyr car, H-32792, when and at the time he did actually purchase said automobile from the Palmer Motor Company on February 15, 1938.
“4. Where a sale of an automobile is made to a person or firm engaged in the business of buying and selling automobiles, the rights of a purchaser from such a retailer or dealer, in the ordinary course of trade, are superior to the rights of one selling automobiles to such retailer or dealer; and in fact the Palmer Motor Company was a retailer and dealer in automobiles and in law made a sale as such to one who bought in good faith. A condition that the title shall remain in the seller or the mortgagee, the Universal Credit Company in this case, until the price is paid is ineffectual as against a bona fide purchaser from the retailer, the Palmer Motor Company in this case, in the ordinary course of trade. The conditional vendor or mortgagee is estopped to deny the validity of such a sale, or question the right of the mortgagor to sell in such a case.”
Judgment was given for plaintiff in the amount of $1,814.70. Motion for a new trial was made by the defendant and denied by the trial court. The defendant moved to strike certain findings and make additional findings. This motion was overruled except that the court had found that plaintiff gave his note and mortgage for $868.75 to the Morris Plan Company of Kansas City and the court changed that so as to state that plaintiff gave his note to the Palmer Company and the Palmer Company sold it to the Morris Plan Company, and also the trial court struck from its findings a reference to the liability of the plaintiff to the Morris Plan Company on this note. The defendant then filed a motion for permission to amend its amended answer so as to show that when plaintiff in this case brought his action in replevin, entitled Louis A. Trapani v. Universal Credit Company et al., defendants, No. 458343, in the circuit court of Jackson county, Missouri, he elected the remedy of replevin and cannot thereafter change such election and seek to litigate the same matters in this action for alleged conversion. This motion was overruled.
The first argument of the defendant, which we shall consider, is that the description in the conditional-sales contract, which was on record with the register of deeds of Miami county at the time the plaintiff bought the car, contains a sufficient description to put plaintiff on notice of the claim which defendant had on this particular car, and that he bought the car subject to the lien of the Universal Credit Company. In this connection it should be noted that the difference in the description was in the transposition of one digit of the number so that one examining the record in the register of deeds’ office would notice that car No. 37292 had a lien on it and if he examined the number of the car in question he would notice that it was No. 32792, and it should also be noticed that the trial court found that such was the only difference there would be between two 1937 Lincoln-Zephyr four-door sedans. The argument of defendant is that plaintiff should have known that the Palmer Company only had one car of this description and that had plaintiff examined the record he would have discovered that the car of this general description had been bought by the Palmer Company arid would thereby have been put on guard. To sustain its contention defendant cites authorities where this court has held that a description that would put a buyer on his guard to investigate the matter was sufficient to put him on notice as to a lien. The authorities relied on refer in most cases to descriptions of horses, mules, and cattle or chattels of that general description. With the transactions in automobiles occurring as frequently as they do at the present time this court must take notice of the fact that there is very little difference between two new automobiles of the same style and make other than the number, and the security of the buying public makes it necessary that a, stricter rule be applied. Note 42 C. J-. 759, which states the rule as follows:
“The fact that some part of a description is erroneous will not render it insufficient, where the vehicle is otherwise so designated as to be capable of identification. But a mortgage failing to give the true number of the car or engine, and giving an erroneous one, is not sufficient to put a purchaser on inquiry, where no other means of identifying the vehicle are given, and the description of a four-passenger automobile of a certain make and number as a five-passenger automobile of the same make, but a different number, is not such similarity as to be notice to third persons that the same car was intended.”
Note, also, First Mortgage Loan Co. v. Durfee, 193 la. 1142, 188 N. W. 777. The number of the car in this case was not missing. It was the wrong number. The situation was certain to mislead prospective buyers. We hold that the copy of the contract on record in the office of the register of deeds was not constructive notice to plaintiff of the lien held by defendant.
Defendant next argues that under the facts in this case under the conditional-sales contract the Palmer Motor Company never had any title to the Lincoln-Zephyr automobile and therefore could not pass any title to plaintiff. In connection with this argument it should be noted that the findings of the court show that the Universal Credit Company knew that the Palmer Company was buying the car for the purpose of resale. Its agents knew it was being demonstrated and knew that the Palmer Company bought it for no other purpose than to sell it. Under such circumstances it would not do to hold that the Palmer Company did not have sufficient title in this car to pass title to a purchaser in good faith. To do so would open the door to fraud. The case of National Cash Register Co. v. Pfeifer, 149 Kan. 582, 88 P. 2d 1032, is relied upon by defendant in this connection. However, that was a case where the conditional-sales contract was for an article not to be resold in the regular course of trade and was properly on record and there was no mistake as to the description. In Estrich on Installment Sales, sec. 151, the rule is laid down as follows :
“Where there is a sale of property in which the seller reserves title, but expressly or impliedly authorizes a resale, it seems clear that the seller has no rights as against the purchaser from the conditional buyer who purchased in accordance with the authority to sell. Nor does there seem to be any necessity for insisting upon the condition that the subsequent purchaser be a bona fide purchaser. Where, however, the seller has not authorized a resale, but has entrusted the goods to a dealer in such goods, or has laid down certain conditions in the sale, it may be necessary to condition the purchaser’s superior rights upon his being a bona fide purchaser. Authority to sell may be implied, as well as express. The broad proposition has been announced that the seller of property cannot, as against subsequent purchasers, reserve his title and authorize his vendee to sell; his authorization of a sale by his vendee is inconsistent with the reservation of title in himself; accordingly, a purchaser from the vendee has a good title as against the conditional seller. Where the sale is to a retailer or dealer in the articles sold, the rights of a purchaser from such retailer or dealer in the ordinary course of trade are superior to those of the seller; as to such purchasers from the retailer the reservation is invalid. Or, as expressed in some cases, the seller is estopped to claim the goods as against such a purchaser from the retailer.” (p. 290.)
See, also, O’Loughlin v. Jennings Co., Inc., 107 Conn. 365,140 Atl. 758. There the court said:
“Where an article is sold to a retail dealer for the apparent purpose of resale, a condition that the title shall remain in the seller until the price is paid is ineffectual as against a bona fide purchaser from the retailer in the ordinary course of trade. 24 R. C. L. 458; 35 Cyc. 680; 1 Williston on Sales, § 329. The conditional vendor is held to be estopped to deny the validity of a sale by one to whom he has given the apparent power to sell.” (p. 368.)
Defendant next argues that the note taken by the Palmer Company from Trapani could not have been enforced against Trapani by the Palmer Company and contained provisions which rendered it nonnegotiable — hence Trapani can defend against a claim by the Morris Plan Company — hence the effect of the trial court’s decision is to give Trapani $1,350 for his 1936 Ford. It is hard to see how this argument can avail defendant in this case. The only question we have here is whether defendant unlawfully took the car from plaintiff and converted it to its own use and the amount the plaintiff was damaged thereby.
• Defendant next argues that it was an abuse of discretion for the court to refuse to permit it to amend its amended answer so as to show the replevin suit in Jackson county, Missouri, and that this action constitutes an election of the remedy of replevin. The question of whether or not amendment of pleadings before or after judgment should be permitted in furtherance of justice and on such terms as may be proper under G. S. 1935, 60-759, is largely addressed to the discretion of the trial court. In this case it appears that the defendant knew of the action in Missouri at the time it filed its amended answer upon which the trial was had. It had ample opportunity to plead this defense had it seen fit to do so at that time. Under such circumstances it would hardly be an abuse of discretion to refuse such an amendment after judgment.
The next point argued by defendant is that the judgment is contrary to the evidence. This argument requires an examination of the items in the paragraph of the findings of fact that has been quoted herein. Item (a), the value of the car, is fixed at $1,350. The trial court stated that this included $48.50, which was the amount of the one payment plaintiff had made. There was testimony by various parties as to the value of the car on the date when it was converted. Some placed it as low as $750. The plaintiff testified that its reasonable value was $1,300. The trial court was the trier of the facts and had the duty of finding the value of the car from all the testimony and all the surrounding facts and circumstances. In view of the above testimony, we cannot say there was no evidence to support a finding, that the value of the car was $1,300 on the day it was taken.
The item of $48.50, which the trial court added to the $1,300, was no part of the value of this car. The fact that he had made one payment or half a dozen payments had no bearing on this question. The car might have been given to him and he still would have a right to recover its value in damages for its conversion. We conclude, therefore, that the item of $1,350 for the value of the car was erroneous and this figure could not have been higher than $1,300 under the evidence.
The next item we must consider is the finding that plaintiff was entitled to $248 for loss of the use of the car for 124 days at the rate of two dollars a day. We must consider this item along with the next one of $114.75 interest at six percent on $1,350 for seventeen months from the date when the car was converted until this action was commenced.
The plaintiff testified that he was without a car for 124 days and during that time he needed a car and had to hire one in his business. The figure of two dollars a day is what the court found was the additional expense between the plaintiff’s having a car of his own and being compelled to hire one. The evidence is not clear on this point and it is difficult to gather just what plaintiff lost on account of having to hire a car. Plaintiff cites and relies on what this court held in Sansone v. Studebakér Corporation, 106 Kan. 279, 187 Pac. 673. That was a case where the evidence was clear as- to what damages plaintiff had suffered on account of being deprived of the use of his car and it was clear that it was necessary for him to have such damages in order that he be completely indemnified. We have no such case as that here, however. We hold that the general rule should apply and that the allowance of' the item for loss of the use of the car was erroneous.
As to the item for interest, this is a proper element of damages in actions for conversion. (See Meek v. Railroad Co., 95 Kan. 11T, 147 Pac. 112, and cases cited; also, 65 C. J. 141.) The only thing wrong about this item is that it is calculated on $1,350 when it should have been calculated on $1,300.
The next item is the allowance of $101.95 to cover the expense of plaintiff in maintaining the replevin action in Jackson county, Missouri. These expenses were not recoverable by plaintiff. (See Jones v. Stanley, 27 Ariz. 381, 233 Pac. 598; also, Ward v. Huff, 94 N. J. Law. 81, 109 A. 287.)
The conclusion we have reached on these items does not require a reversal of the judgment, since the difference in the amount is a matter of calculation.
It is the order of this court, therefore, that if plaintiff shall file with the clerk of this court within ten days of the date of the filing of this opinion a consent to remit the difference between the amount of the judgment allowed him by the trial court and the amount it would have been if calculated according to what has been said in this opinion, the judgment will be affirmed, otherwise it is reversed with directions to proceed with a new trial. | [
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The opinion of the court was delivered by
Wedell, J.;
This is an appeal by the state corporation commission from a stay order, in the nature of a temporary injunction, granted by the district court of Stevens county, in which that court prohibited the commission from enforcing its basic gas proration order, which order was designed by the commission to form the basis, standard or guide, pursuant to which it proposed to fix the allowable production for the various gas wells in the Hugoton gas field. The court also, in substance, stayed the commission from doing or performing any subsequent act whatsoever designed to make effective the basic order. The Hugoton field embraces six Kansas counties in addition to Stevens county. The order of the commission was made January 30, 1940, pursuant to what it conceived to be its authority under and by virtue of article 7, chapter 55, G. S. 1935. George Hayward, a land and royalty owner, instituted the proceeding in the district court of Stevens county, in which the stay order was granted, in order to obtain a review of the basic proration order. One hundred eighty-one other land or royalty owners intervened for the same purpose. The statutes relied upon as granting the right of such review are G. S. 1935, 55-707, which provides:
“That an appeal may be taken from any order by the state corporation commission made under the provisions of this act in the manner and form as now provided by law for taking appeals from orders made by said commission.”
And G. S. 1935, 66-118a, et seq. G. S. 1935, 66-118c, in part, provides:
“Within thirty (30) days after the application for a rehearing is denied, or if the application is granted, then within thirty (30) days after the rendition of the decision on rehearing, the applicant may apply to the district court of the county in which the order of the commission is to become effective for a review of such order or decision.”
G. S.. 1935, 66-118g, relied upon as granting authority to the district court to make the stay order in question, reads:
“The filing or pendency of the application for review provided for in this act shall not in itself stay or suspend the operation of any order or decision of the commission, but, during the pendency of such proceeding the court, in its discretion, may stay or suspend, in whole or in part, the operation of the order or decision of the commission. No order so staying or suspending an order or decision of the commission shall be made by any court of this state otherwise than on five days’ notice and after a hearing, and if a stay or suspension is allowed the order granting the same shall contain a specific finding, based upon evidence submitted to the court and identified by reference thereto, that great or irreparable damage would otherwise result to the petitioner and specifying the nature of the damage.”
The application for a stay order was filed on the 9th day of March and was heard on March 16, 1940. The application was grounded upon the theory the enforcement of the order, and subsequent acts to be performed pursuant thereto, by the commission would result in irreparable damage; that the statutes under which the order was purported to have been made, and the order, contravened certain provisions of the state and federal constitution, and that the order was not authorized by the statutes under which it was purported to have been made. Upon evidence submitted in behalf of the applicant and intervenors, the district court found, upon evidence which was identified and to which reference was made in the order, that great and irreparable damage would be suffered by the applicant and intervenors, or many of them, pending the appeal in the district court, if the stay order was not granted. The court found the enforcement of the basic order and subsequent proceedings contemplated thereunder by the commission would greatly reduce the amount of royalty income, and that the applicants had no other adequate remedy at law. The journal entry discloses the court recognized the fact the commission contemplated and had noticed a further hearing to be held on March 21, 1940, as a result of which the commission proposed to fix and make effective the well allowables for the proration period of April 1,1940, to September 1,1940, both inclusive. The notice for the hearing of the commission to be held March 21 provided:
". . . that at said hearing the commission will receive evidence determining the market demand for said field and for each of the five zones thereof and will receive evidence relating to open-flow, pressure and acreage attributable to each of the wells therein and that based upon the evidence received the commission will fix the allowables for each of said wells for said period.”
The court’s finding that great and irreparable injury would result from the action of the commission was based upon estimates, presumptions and predictions of witnesses as to what the scheduled allowables to be fixed by the commission probably would be. The witnesses testified they had taken into consideration, in determining what the allowables under the basic order probably would be, every factor which the commission would consider in determining the allowables, and that they could therefore testify with reasonable accuracy whether any order which the commission might make, pursuant to the basic order, would result in great and irreparable damage. The district court adopted the theory advanced by the applicants for the stay order and upon that theory granted the stay order.
At the conclusion of evidence submitted in support of the stay order the commission lodged the following demurrer to the evidence:
“First, the evidence shows that the application for stay has been prematurely filed and heard; that there is nothing before the court under the basic proration order to stay at this time. The evidence also shows that no producer in the five various zones of the Hugoton gas area has suffered or is suffering any damage whatsoever under the order of the commission bringing the field under proration. We will further add that no evidence has been introduced here that would warrant this court in issuing a stay order on the grounds that any producer in any of the five zones has suffered great damage or irreparable damage, or that any producer will suffer great damage or irreparable damage under any proration order the commission might issue under the basic order.”
On behalf of certain intervenors, who were opposed to the granting of the stay order, the following demurrer to the evidence was interposed:
“Come now the intervenors, The Benedum Trees Oil Company, the Trees Oil Company, John S. Waller and the Derby Oil Company, and demur to the evidence presented by the applicants for a stay of the proceedings of the commission under the basic order, for the reason that the evidence adduced does not warrant any relief or stay under 66-118g, Revised Statutes of Kansas.”
The demurrers were overruled and the commission appealed from the order overruling its demurrer and from the ruling granting the stay order. The appeal to this court was promptly perfected. The commission immediately lodged in this court a motion to set aside, pending the appeal in this court, the stay order granted by the district court. That motion was argued in chambers by counsel for the respective parties and this court issued the following temporary order:
“. . . the appellants, The State Corporation Commission of Kansas et al., may proceed to take evidence on the question of the basic proration order, but not to make any additional order to put the basic proration order into effect, until the further order of this court.
“It is further ordered that the appellants may be heard further on the matter at the April, 1940, session of this court.”
In the course of the subsequent formal hearing on the motion it was agreed by counsel for the respective parties that the appeal by the commission should be submitted upon its merits at that time. In view of .that agreement, it becomes unnecessary to discuss questions originally presented touching the motion filed by the commission in this court. We shall therefore turn at once to a consideration of questions properly before us in connection with the appeal.
A preliminary question requires our attention. Appellees insist no appeal lies from the stay order of the commission. They direct our attention to the fact that the application for a review of the order of the commission was initiated under the provisions of G. S. 1935, 66-118c, the pertinent portion of which we have previously quoted. They insist this is a special statutory enactment and that no provision is therein made for appeals to this court from an order of the district court. The old law, R. S. 1923, 66-118 (Laws 1911, ch. 238, § 21), contained the following provision:
“Appeals from any decision of the district court shall be taken from the district court to the supreme court of the state of Kansas, in the same manner as provided by law in other civil actions.”
It is true the present law does not contain that express and direct provision. When the old law was repealed by chapter 220, Laws 1929 (G. S. 1935, 66-118a et seq.), the subject matter of the old statute was divided and additional matters were covered by fifteen separate sections. (G. S. 1935, 66-118a to 66-II80, inc.) It appears the express provision for appeals contained in the old law was inadvertently omitted. We say inadvertently for the reason the new act itself clearly indicates the lawmakers did not intend to take away the right of appeal to this court. Section 4 of the 1929 act (G. S. 1935, 66-118d) expressly provides the procedure upon appeals to this court. It reads:
“The procedure upon the trial of such proceedings in the district court and upon appeal to the supreme court of this state shall be the same as in other civil actions, except as herein provided.”
Manifestly, the lawmakers intended to preserve the right of appeal to this court. To make definite provision for the precise procedure to be followed upon appeál to this court would have been a futile gesture had the lawmakers intended the right of appeal should not exist.
It will be observed the provision quoted provides the procedure shall be the same as in other civil actions in two respects, that is, with respect to the trial of the proceedings in the district court and as to appeal to the supreme court, except as therein provided. The act itself contains no different provision for proceedings on appeal to this court. The act does, however, provide for some different procedure upon the trial of the proceedings in the district court than that which obtains in other civil actions. That subject will receive our attention presently, insofar as pertinent in the instant case.
Appellees further contend, in the event it be held a right of appeal to this court does exist, no appeal can lie from the instant stay order of the district court. The contention is grounded upon the theory the stay order was not a temporary injunction nor a final order. It is true that in G. S. 1935, 66~118g, previously quoted, the act of staying or suspending the operation of the order or decision of the commission is not called an injunction. We are concerned with the nature, character and effect of the order and not with its name. A bond was required in accordance with the provisions of G. S. 1935, 66-118h. A bond was posted in the sum of $2,500. Under the provisions of G. S. 1935, 66-118g, no ex parte hearing or stay in the nature of a mere restraining order is authorized. Notice to the adverse party, a hearing, and the introduction of evidence are required. In that respect the procedure differs materially from that which obtains in other civil actions. The stay granted is in the nature of an injunction. The pertinent portion of the stay order provides:
“That this order shall be and remain in full force and effect during the pendency of this appeal and until final adjudication hereof or until the further order of the court.”
Under the theory upon which the trial court granted the stay, nothing further remained to be done by that court until the final hearing of the review. We think the order is tantamount to a temporary injunction. The restraint which an order purports to im pose, and not the name given to it, determines its true name and character. (Laswell v. Seaton, 107 Kan. 439, 191 Pac. 266; Harwi v. Harwi, 143 Kan. 710, 713, 56 P. 2d 449; City of Wichita v. Home Cab Co., 151 Kan. 679, 683-685, 101 P. 2d 219.) A restraining order which has the effect of a temporary injunction is an appeal-able order. (G. S. 1935, 60-3302; Laswell v. Seaton, supra; Harwi v. Harwi, supra, p. 713.)
Appellant contends the basic order was not self-executing, but was merely a standard, formula or guide pursuant to which the schedule of well allowables was to be determined and thereafter promulgated; that the commission had not completed its work, in that it had not yet determined and hence had not issued its schedule of well allowables. The commission insists it was solely within its province to determine and promulgate the schedule of allowables and that such functions constituted administrative and legislative acts, imposed upon it by law, the performance of which could not be enjoined. It therefore contends the stay order was prematurely issued.
We think the contention of the commission is sound. The duties of the commission were prematurely and improvidently stayed. It was solely the administrative function of the commission to hold the hearing noticed for the 21st day of March, to receive and consider the evidence offered upon that hearing, and in pursuance thereof to determine the schedule of allowables. Only the commission, and not the district court or this court, has the authority and the responsibility to perform those administrative acts. The commission alone has the right and the statutory duty to promulgate, to enact, the schedule of allowables. That was a legislative function which likewise had not yet been performed and which, until performed, could not be stayed or enjoined. In Kansas City v. Utilities Commission, 103 Kan. 473, 476, 176 Pac. 324, it was said:
“The proceeding is quite analogous to an attempt to restrain the governing body of a city from passing an ordinance relating to a matter under its control, on the ground that such an ordinance, if passed, would be invalid. ‘The fact lhat the legislative action may be in disregard of constitutional restraints and impair the obligation of a contract does not authorize the court to restrain the passage thereof by injunction. The proper remedy in such cases is by injunction to prevent the execution or enforcement of such action.’ (5 McQuillan on Municipal Corporations, § 2503, p. 5196.)”
Appellees contend the question is a new one in this state as the statutes involved have not been construed. It is true the particular provisions of the gas proration law have not been construed in this state. It does not follow that the principle involved on the precise point here involved has not been settled. The fundamental principle that courts have no right to interfere by injunction with administrative and legislative functions yet to be performed by the corporation commission, is well established. (State, ex rel., v. Flannelly, 96 Kan. 372, 386-387, 152 Pac. 22; Kansas City v. Utilities Commission, supra; State, ex rel., v. Capital Gas & Elec. Co., 139 Kan. 870, 888, 33 P. 2d 731; State Comm’n v. Wichita Gas Co., 290 U. S. 561, 78 L. Ed. 500, 504-505.) Cases involving completed administrative and legislative functions are not in point. Appellee’s contention that the commission had no further administrative functions to perform in connection with the hearing noticed for March 21 and no legislative functions to perform thereafter, cannot be sustained. It will be unnecessary to discuss other contentions of the respective parties. Some of them are not properly before us. The stay order of the district court is set aside, and the commission is authorized to proceed with the completion of its statutory duties. | [
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The opinion of the court was delivered by
Hoch, J.:
This was an action to recover for an alleged overpayment of an attorney’s fee. The case is here on appeal from an order of the district court overruling the defendant’s demurrer to the petition.
The three plaintiffs are daughters of Reuben Denton and Zoa Denton, his wife, both deceased. Both parents died intestate in February, 1935, leaving as their sole heirs eight children. Their estate consisted of real estate of the appraised value of about $11,000 and personal property of $9,000. The petition alleged that a short time after the death of the parents the plaintiffs entered into a contract with the defendant, McIntosh, under the terms of which he agreed to give them legal advice, to secure for them their respective shares of the estate, and to the best of his ability secure such shares as soon as possible, for which services the plaintiffs agreed to pay a reasonable attorney’s fee which should be not less than $75 nor more than $200 per party. Copy of the alleged agreement was attached to and made a part of the petition. It was further alleged that on October 10, 1936, the defendant, as attorney for the plaintiffs, filed an action for partition of the real estate belonging to the estate; that they employed no other attorney to represent them or to assist the defendant; that in the partition action the defendant filed certain motions for attorney’s fees which were allowed in the aggregate sum of $928.14; that this amount was taxed as part of the costs in the case and that in view of the fact that the plaintiffs were entitled to three-eights of the proceeds from the sale of the property three-eights of that amount, or $348.06, was charged and taxed against their interests in the estate; that the defendant did not inform them that he had been allowed such fee by the court; that they had no knowledge of the allowance of the fee for more than thirty days after the partition action was closed and settled; that the defendant failed and neglected to give them credit for that part of the fee allowed by the court and charged against their share, but collected from the three plaintiffs the maximum fee of $600 as provided in the contract of employment. It was alleged that the defendant had refused, after demand to make refund, and judgment was asked for $348.06, the amount of the alleged overpayment made by them.
The demurrer was based upon four grounds, all of which are here urged: (1) that there was improper joinder of several causes of action; (2) that the petition constituted a collateral attack upon the judgment allowing attorney’s fees in the partition suit; (3) that the matter is res judicata; and (4) that the petition does not state facts sufficient to constitute a cause of action.
We have given careful consideration to appellant’s contentions, but conclude that none of them is well founded. The case being here upon demurrer, all well-pleaded allegations of fact must be considered as true. We do not think there was improper joinder of causes of action. The action is clearly upon the contract of employment in which defendant appears as party of the first part and the three plaintiffs in this action as parties of the second part. The interests of the three plaintiffs were identical, and the defendant agreed to serve them as an attorney in the same manner, and we see no reason to deny the plaintiffs the rights to join in one action based on the contract.
We find nothing in the petition to indicate that it is a collateral attack upon any part of the judgment entered in the partition suit. Plaintiffs do not question the fees allowed to the defendant in the partition action. They simply allege that out of their interest in the estate the defendant had already received $348.06 for the services which he had agreed to render to them under the contract. The petition seeks neither to set aside nor to modify any judgment or order entered in the partition action. A like answer, we think, is to be made to appellant’s contention that the demurrer should have been sustained because the question involved in the action was res judicata. The general rule is that the defense of res judicata may be raised by demurrer only in cases where the fact and the nature of the prior adjudication appear on the face of the pleadings; that otherwise it is one which must be affirmatively pleaded. (34 C. J. 1058; 1 Bancroft Pleading and Practice, Ten-year Supp., § 1649; 2 Freeman on Judgments, 5th ed., 1692-1694.) For reasons already stated it cannot here be said that the fact of a former adjudication of the question involved appears on the face of the petition. The relief sought is not to set aside or modify any judgment or order in the partition action referred to in the petition, but is to recover the alleged overpayment under the contract.
In support of his contention that the petition does not state a cause of action appellant urges that the petition is so indefinite and uncertain that no logical conclusion can be reached therefrom as to the basis of plaintiff’s claim for relief. We do not find the argument persuasive. The petition alleged that defendant by written contract agreed to furnish certain legal services to the plaintiffs for a maximum fee of $600, that in the partition action he was allowed and received $348.06 for such services out of their portion of the estate, that he failed to give credit for that amount, but collected the full amount due under the contract and that they are entitled to a refund of the amount for which credit should have been given. As against demurrer a petition is to be liberally construed, and if the defendant considered the allegations indefinite and uncertain he should have leveled at the petition a motion to make definite and certain. (Western Mass. Ins. Co. v. Duffy, 2 Kan. 347; Burnette v. Elliott, 72 Kan. 624, 84 Pac. 374; Gano v. Cunningham, 88 Kan. 300, 128 Pac. 372; McCroskey v. Manufacturing Co., 112 Kan. 434, 211 Pac. 133.)
We think the demurrer was properly overruled, and the judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action to contest an election for county treasurer of Leavenworth county. Within the limits of Delaware township in that county is a tract of land of over 642 acres on which is located a national home for disabled soldiers, the exact name of which is not important, and which generally will be referred to as the soldiers’ home. By action which will be referred to later, three voting precincts were established at the soldiers’ home, and the prin cipal question here involved is the right of the persons residing at the home to vote as electors of Leavenworth county.
At the election November 8, 1938, votes were cast and received at the above three precincts, as well as at other precincts in the county. Thereafter the board of county commissioners, as the canvassing board, performed its duties and declared that Herken had received a total of 7,211 votes and Glynn had received a total of 7,283 and Glynn was declared elected by a majority of 72 votes. Herken instituted a contest under proceedings of which no complaint is made, the burden of his complaint being that in the three precincts at the soldiers’ home and subsequently counted by the canvassing board were 496 votes cast for Herken and 581 votes cast for Glynn; that the voters at those precincts were not qualified electors of Delaware township and their purported votes should not be counted, and if not counted he would be the legally elected county treasurer. On December 28, 1938, the contest court gave judgment for Glynn and on January 5, 1939, Herken served his notice of appeal and filed the same with the county clerk. On June 6, 1939, a transcript of the contest court proceedings was filed in the district court and on the same day a bond was given by Herken to pay the costs if the same be adjudged against him. On June 21, 1939, the contestee filed his motion to dismiss the appeal for the reason the contestor failed to perfect his appeal as required by law and the court was without jurisdiction. On the same day the motion was presented to the court and evidence was taken that no deposit for costs had been made and that the bond had been given. The district court denied this motion and that ruling is assigned as error.
If there was error, it disposes of this appeal, so we will consider it before going to the merits.
There is no specific provision of statute for appeals from the judgment of a contest court under the circumstances here obtaining. In Berglund v. Hanna, 149 Kan. 500, 504, 87 P. 2d 581, it was held that a contest court is a tribunal exercising judicial functions and inferior in jurisdiction to the district court. In G. S. 1935, 60-3308, it is provided that:
“Appeals to courts other thaa the supreme court shall be taken and proceedings therein had in the same manner as is herein provided for appeals to the supreme court, except where special provision with reference to such appeals is made by statute.”
And in G. S. 1935, 60-3825, that:
“The judges of the supreme court may make and amend, from time to time, such further rules for the regulation of procedure in the supreme court and inferior courts consistent with this code, as they may deem proper.”
Acting under authority of the last-quoted section, this court has promulgated its rule No. 2, which provides that when the clerk of a trial court shall transmit a certified copy of the notice of appeal and accompanying papers to the clerk of this court, the cause shall be docketed at once, but an order of dismissal shall be entered by the clerk unless deposit of $25 advance fee be made within thirty days, etc.
Appellant directs our attention to Pee v. Witt, 100 Kan. 171, 163 Pac. 797, where it was held a cash deposit is not a substitute for a bond; to Auto Trunk Co. v. Hahn, 138 Kan. 36, 23 P. 2d 585, where it was held the bond was legally insufficient, and to other similar cases, and insists that because no cash deposit was made the district court acquired no jurisdiction. In those cases the giving of a legally sufficient bond at the time of appeal was necessary in order to perfect the appeal. In the case at bar, applying the analogy of the rule of this court for appeals from the district court to this court, the appeal was perfected when the notice was given and the record was certified to the district court, and Herken had thirty days in which to deposit the advance fee for costs. By reference to the dates above shown, it will be seen that before that time had expired, Glynn had filed his motion to dismiss and it had been denied. We are not advised what reason, if any, was assigned for its ruling by the district court, but it is clear the motion was prematurely filed, and the ruling was correct for that reason if for no other. Thereafter the motion was not renewed nor was the district court’s attention again directed to the matter, nor did the clerk dismiss the action, but the action proceeded and was ultimately heard and determined. Under the facts we cannot say the district court was without jurisdiction, nor will we say failure to make a cash deposit within the thirty-day period was fatal. We need not consider the power of the district court to waive strict compliance with the rule as to a costs deposit, for that is not discussed. It is well known, however, that on occasions where poverty and present inability to comply are involved, the requirement of the rule is frequently waived in this court. As bearing on the question see Obertino v. Mining Co., 87 Kan. 297, 124 Pac. 172.
At the trial in the district court, Herken offered in evidence the deeds showing conveyance of the real estate on which the soldiers’ home is situated, and the records showing canvass of the election returns, etc. Glynn’s demurrer to this evidence was overruled and that ruling is assigned as error. Glynn offered no evidence. Thereafter the trial court made findings of fact covering the acquisition of the real estate on which the soldiers’ home is situated, and the various laws enacted by the United States and the state of Kansas applicable thereto. It also made findings concerning the election and the vote for county treasurer in the county as a whole and in the three precincts at the soldiers’ home, and that a list of the persons voting in such precincts was attached to contestor’s statement of intention to contest “and said persons were on the date of the election residents of said precincts and claimed their right to vote at such election by reason of their residence in such precincts.” The conclusions of law are summarized, viz.: The state ceded exclusive jurisdiction, with certain exceptions, to the United States and the land (on which sholdiers’ home is situated) was not a part of the state of Kansas on November 8, 1938; the state had no legal right to enter upon the ceded territory and attempt to hold an election, the persons living on the ceded territory were not residents of Kansas, or of Delaware township in Leavenworth county, and the ballots cast by them were void and should not be counted for either party; that Herken received 6,715 legal votes and Glynn received 6,702 legal votes and Herken was the duly elected county treasurer. Judgment was entered accordingly. Glynn’s motion for a new trial was denied and he appeals.
There is no dispute concerning the facts here summarized from the trial court’s findings. In 1866 the congress first made provision for establishments for the care and relief of disabled volunteer soldiers of the United States army, the act being amended in 1873. These establishments were to be known as “The National Home for Disabled Volunteer Soldiers” (24 U. S. C. A. §§ 71-77). By an act of July 5, 1884, the congress authorized location of a branch in either of several states, including Kansas, to be located on a tract of not less than 320' acres. By a conveyance made November 21, 1884, a tract of 320 acres in Leavenworth county was conveyed to “The National Home for Disabled Volunteer Soldiers,” a corporate body, and shortly thereafter a home was begun and erected by the United States and has been kept and maintained to the present time. It may here be noted that by a deed made November 21, 1904, to the same grantee, an additional two and one-half acres was conveyed. By Laws 1885, chapter 136, the legislature of Kansas ceded to the United States exclusive jurisdiction over and within all the territory described in the first deed above mentioned, saving to the state the right to serve civil and criminal process, and to levy and collect certain taxes, as more particularly, referred to in that statute. In 1901 the congress passed an act by which jurisdiction over the home in Leavenworth county, Kansas, was ceded to Kansas and relinquished by the United States, and that the United States shall claim or exercise no jurisdiction thereover after March 3, 1901, save in certain particulars not here important. Since the year 1902 members of the home residing and living upon the territory above described have voted at the regular elections held in the state of Kansas and in Leavenworth county for the election of state and county officers. In 1906 the board of county commissioners passed a resolution establishing the three voting precincts at the soldiers’ home, the vote from which is here in question. In 1927 the state legislature passed an act (Laws 1927, eh. 206) which is briefly summarized. By section 1 the state consented to the acquisition by the United States of any lands in Kansas which had been or might thereafter be acquired for purposes mentioned in art. I, sec. 8, par. 17, U. S. constitution. By section 2 the state ceded exclusive jurisdiction over any lands so acquired to the United States for all purposes, saving to the state the right to serve therein civil or criminal process and the right to tax certain property. Section 3 provided jurisdiction ceded should not vest until the United States had acquired title. By an act of congress it was declared that all property, the title to which on July 31, 1930, stood in the name of the board of managers of the National Home for Disabled Soldiers, should be transferred to and vested in the United States. Provisions for clearing the titles so vested are here immaterial (July 3, 1930, c. 863, sec. 3, 46 Stat. 1016; U. S. C. A. Tit. 38, ch. la, sec. lib). The findings with reference to the vote cast in the three precincts have been noted heretofore. The trial court also referred in its findings to Laws 1909, chapter 133, section 1 (G. S. 1935, 25-109), which provided that expenses of an election at precincts on the grounds of a national soldiers’ home should be paid by the county and not by the township in which it was located. The particular section was amended by Laws 1939, chapter 187, but the amendment did not change the above provision.
The specific question is whether a resident at the soldiers’ home located within the exterior borders of Kansas, is a resident of Kansas and as such entitled to the right of franchise. Certain things may well be restated and made clear at the beginning of any discussion of the legal questions involved.
The first is that it must be assumed, as the trial court found, that the persons voting at the three soldiers’ home precincts were residents of Leavenworth county, Kansas, otherwise they had no right under any circumstances to vote for county treasurer in that county. It is therefore immaterial to our discussion what may have been their previous place of residence or where they might, at some other times, have been privileged to vote.
The second is the factual situation. To repeat — the land for the soldiers’ home was acquired in 1884; in 1885 the state ceded exclusive jurisdiction, with certain exceptions as to service of process and right of taxation, to the United States; in 1901 the United States ceded the jurisdiction back to the state; in 1927 the state again ceded the jurisdiction to the United States, with certain exceptions, and effective when the United States acquired title, and that the United States acquired title in its own name and not. in the name of the home in 1930. It is important, also, to bear in mind the provision of our state constitution, article 5, section 1, that every citizen of the United States, of the age of twenty-one years, who has resided in the state for six months and in the township or ward thirty days next preceding the election at which he offers to vote, is a qualified elector, as well as the provisions of the fourteenth amendment to the constitution of the United States that every person born or naturalized in the United States is a citizen of the United States and of the state where he resides.
The questions presented by this appeal find their basis in the force and effect which must be given to article I, section 8, clause 17, of the constitution of the United States, wherein it is provided that the congress shall have power:
“To exercise exclusive legislation in all cases whatsoever, over such District [District of Columbia] and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dock yards, and other needful buildings.”
Without elaboration, it may be said it has been held that the term “exclusive legislation” carries with it “exclusive jurisdiction,” and that a soldiers’ home is within the term “other needful buildings.” The question of the extent of jurisdiction of the federal government, and the power of the state to legislate in a particular case, has been before the federal and state courts in many instances arising under a variety of circumstances. The briefs cite and our research discloses but a few cases dealing with the right to vote at a state election of a person residing on lands within the state which the state has ceded to the United States.
In authorities treating the matter generally, it is said that where a cession of a tract is made by a state to the United States for the purposes mentioned in the above constitutional provision, and there is no reservation of jurisdiction by the state other than the right to serve civil and criminal process on the ceded lands, persons who reside on such lands do not acquire any elective franchise as inhabitants of the ceding state. (See McCrary on Elections, 4th ed., § 89, p. 68; Paine on Elections, §63, p. 44; Kennan on Residence and Domicile, § 493, p. 844; 20 C. J. [Elections, § 33] p. 74; 18 Am. Jur. [Elections, § 66] p. 224.)
A reference to the authorities above mentioned will show the statements therein are supported by citation to one or more of the five cases next mentioned.
As provided by the laws of Massachusetts, in 1841, its house of representatives requested the opinion of the supreme court on four questions pertaining to the rights of residents on lands ceded to the United States for purposes mentioned in the constitution, one question being whether persons so residing were entitled to the elective franchise. The answer is reported in Opinion of the Justices, 42 Mass. (1 Metc.) 580, where, after stating the propositions submitted, and reviewing the facts as to cession, and citing some earlier Massachusetts cases, it was said:
“Without stating these cases particularly, we are of opinion that where the general consent of the commonwealth is given to the purchase of territory by the United States, for forts and dock yards, and where there is no other condition or reservation in the act granting such consent, but that of a concurrent jurisdiction of the state for the service of civil process, and criminal process against persons charged with crimes committed out of such territory— the government of the United States have the sole and exclusive jurisdiction over such territory, for all purposes of legislation and jurisprudence, with the single exception expressed, and consequently, that no persons are amenable to the laws of the commonwealth for crimes and offenses committed within said territory, and that persons residing within the same do not acquire the civil and political privileges, nor do they become subject to the civil duties and obligations of inhabitants of the towns within which such territory is situated. . . . We proceed to apply the opinion, thus stated, to the questions specifically proposed by the honorable House of Representatives. . . .
“4. We are also of opinion that persons residing in such territory do not thereby acquire any elective franchise as inhabitants of the towns in which such territory is situated.” (pp. 582-584.)
In Sinks v. Reese, 19 Ohio St. 306 (decided in 1869), the appeal was from an election contest in which the question was the right of a resident of “the national asylum for disabled volunteer soldiers,” located in Montgomery county, to vote for county clerk. The court reviewed the statutes of the United States, the constitutional provision, the consent of the state to the cession, and held:
“1. Asylums for disabled volunteer soldiers of the United States are among the ‘needful buildings’ for the erection of which the government of the United States, through the medium of a corporation created by itself or otherwise, may purchase and hold territory, under the provisions of article 1, section 8, of the constitution of the United States.
“2. When territory for such purpose is so purchased by ‘the consent of the legislature of the state in which the same shall be,’ the government of the United States is invested, under the provisions of the same section, with exclusive jurisdiction over the same and its appurtenances, in all cases whatsoever.
“3. The inmates of such an asylum, resident within such territory, being within the exclusive jurisdiction of a government other than that of the state within whose boundaries such asylum or territory may be situate, are not residents of such state, within the meaning of article 5, section 1, of the constitution of Ohio; and where the constitution of such state confers the elective franchise upon residents thereof alone, the inmates of such asylum, resident within such territory, are not entitled to vote at any election held within and under the laws of such state.” (Syl. MI 1, 2, 3.)
The right to vote of residents on the United States Reservation at West Point, in New York state, was before the court in “In re Town of Highlands” (decided in 1892), and reported in 22 N. Y. S. 137, 48 N. Y. S. Rep. 795, where it was held:
“Since the state of New York has ceded to the United States the territory comprising the West Point Reservation, reserving nothing except the right to serve' process therein, such territory has ceased to be subject to state jurisdiction, or to be a part of the state; and persons having no .other qualifications as residents than a residence in such territory are not residents of the state, and have no right to vote.” (Syl. ¶[ 1.)
A similar question came before the court in McMahon v. Polk, 10 S. D. 297, 73 N. W. 77, 47 L. R. A. 830 (decided in 1897), and it was held:
“A person, though not in the army or navy, cannot by long and continuous residence within the boundaries of a reservation, the jurisdiction whereof is ceded to the United States (Const, art. 26, § 18), acquire the right to vote at a state election held in the county wherein such reservation is situated.” (Syl. H 5.)
In State, ex rel, v. Willett, 117 Tenn. (9 Cates) 334, 97 S. W. 302 (decided in 1906), is a review of the law pertaining to the right of franchise of persons resident on lands ceded to the United States, in which most of the authorities above noted are cited, and it was said:
“If, as we have held, and as controlling authorities elsewhere hold, the United States has exclusive jurisdiction over the land on which the Soldiers’ Home in question was erected, then the residents in that home are nonresidents of the state of Tennessee, and cannot fall within the requirements for legal voters laid down by our constitution.” (p. 346.)
Each of the above cases cites one or more of the preceding cases, and those thereafter decided refer to Fort Leavenworth R. R. Co. v. Lowe, and Chicago & Pacific Railway Co. v. McGlinn, both of which arose in this state, reached the supreme court of the United States and are hereafter referred to. It may be said that the thread of reasoning running through the election cases is that a person by becoming a resident on lands ceded by a state to the United States, becomes subject to the exclusive jurisdiction of the United States and is no longer a resident of the state in which the lands ceded are situate. We find three other election cases treating the question of jurisdiction, but the claim of exclusive jurisdiction of the United States was not sustained for reasons stated.
In Renner v. Bennett, 21 Ohio St. 431, one of the questions was whether, cession having been made to the United States, jurisdiction could be relinquished to the state, and it arose in an election contest case. Without pursuing the reasoning of the case, we note the holding as shown by paragraphs 2 and 3 of the syllabus, viz:
“2. Where such purchase is made with the consent of the state, or even with an express cession of jurisdiction by the state, congress has power to relinquish, or re-cede to the state the jurisdiction thus acquired, without abandoning the property or its legitimate use.
“3. A jurisdiction thus acquired from á state, although exclusive while it subsists, is to be regarded as a mere suspension of the state jurisdiction, and, therefore, an act of congress relinquishing such jurisdiction, and re-ceding it to the state, is effective for that purpose, without any acceptance or assent by the state.”
The right of a person, resident on a reservation under claimed jurisdiction of the United States to vote at a state election, was considered in Stephens v. Nacey, 49 Mont. 230, 141 Pac. 649. The case involved a town on an Indian reservation, jurisdiction over which had been retained by the United States, when the state was admitted to the Union. Thereafter the United States granted a right of way across the reservation to a railroad company, and thereafter by direction of the Secretary of the Interior a part of the grant and some additional land was platted as a townsite and sold. Residents on these lots were held not disqualified from voting, and that although the town had been establishd on the reservation, the effect was not to make residents of the town residents on the reservation. Without pursuing the matter fully, it was held that the grant to the railroad company, the establishment of the town and sale of lots, extinguished the Indian title. The general question of jurisdiction as presented in the case at bar was not discussed.
In Porter v. Hall, 34 Ariz. 308, 271 Pac. 411, it was contended that Indians resident on a certain reservation had been extended rights of citizenship and were eligible to register as voters. The court held the Indians remained wards of the United States and for that reason were not entitled to vote.
No case has been found where it has been held that residents on lands ceded by a state to the United States retained or acquired a right to vote as residents of the ceding state.
Appellant in effect contends that persons resident within the confines of the territory now included in the soldiers’ home, if otherwise qualified, who had an undisputed right to vote prior to the original cession in 1884, certainly had that same right after recession in 1901, and that the second cession to the United States in 1927 did not cut off that right; that the act of cession did not take away the right, and it persists to this day; that the state had a concurrent jurisdiction over the ceded territory, and until the United States legislated, the state law remained in full force and the right of the inhabitants to vote was unimpaired. He directs our attention to Craig v. Craig, 143 Kan. 624, 56 P. 2d 464. There the question was the right of a resident on an army post or reservation within this state to maintain an action for divorce in an adjoining county under the proviso in G. S. 1935, 60-1502. In answering a contention the legislature had no authority to legislate concerning the subject of divorce as applied to residents on the reservation, the rule was stated that until state laws are superseded by appropriate legislation of the United States, the validity of existing state legislation should be sustained, and that although jurisdiction had been ceded to the United States, congress was not obliged to exercise its jurisdiction, and until existing laws were abrogated or superseded by it, the state law remained in force and unimpaired. In that case reference is made to many of the decisions hereafter mentioned.
The question of jurisdiction as between this state and the United States, insofar as the military reservation at Leavenworth is concerned, was before this court in the two cases next mentioned. Appeals to the supreme court of the United States resulted in decisions which are often cited as leading cases.
In Ft. L. Rld. Co. v. Lowe, Sheriff, 27 Kan. 749 (decided in 1882), this court held, that the state had power to tax railroad property lying within the boundaries of the Fort Leavenworth military reservation. The cause was taken to the supreme court of the United States on writ of error (Fort Leavenworth R. R. Co. v. Lowe, 114 U. S. 525, 5 S. Ct. 995, 29 L. Ed. 264). In the opinion by Field, J., will be found an extended discussion of the question of jurisdiction over lands ceded to the United States. Limits of space do not permit a review of what was there said. Reference was made to the opinions in 1 Met. 580 and 19 Ohio St. 306, above referred to, as well as others, and it was said that they were—
“Sufficient to support the proposition which follows naturally from the language of the constitution that no other legislative power than that of congress can be exercised .over lands within a state purchased by the United States with her consent for one of the purposes designated; and that such consent under the constitution operates to exclude all other legislative authority.” ' (p. 537.)
In discussing a contention the state had no power to make cession, the court held that it did have such power and further—
“In their relation to the general government, the states of the Union stand in a very different position from that which they hold to foreign governments. Though the jurisdiction and authority of the general government are essentially different from those of the state, they are not those of a different country; and the two, the state and general government, may deal with each other in any way they may deem best to cany out the purposes of the constitution. It is for the protection and interests of the states, their people and property, as well as for the protection and interests of the people generally of the United States, that forts, arsenals, and other buildings for public uses are constructed within the.states. As instrumentalities for the execution of the powers of the general government, they are, as already said, exempt from such control of the states as would defeat or impair their use for those purposes; and if, to their more effective use, a cession of legislative authority and political jurisdiction by the state would be desirable, we do not perceive any objection to its grant by the legislature of the state. Such cession is really as much for the benefit of the state as it is for the benefit of the United States. It is necessarily temporary, to be exercised only so long as the places continue to be used for the public purposes for which the property was acquired or reserved from sale. When they cease to be thus used, the jurisdiction reverts to the state.” (p. 541.)
In C. R. I. & P. Rly. Co. v. McGlinn (decided in 1882), 28 Kan. 274, the question before this court was the liability of the company to the owner of livestock killed on the right of way across the Fort Leavenworth military reservation.’ In deciding that the state statute was effective, this court said:
“It is the rule, as we understand it, that all laws and municipal regulations in force at the time any territory is ceded by one power to another power or jurisdiction remain in force until changed by the new sovereign authority, unless such laws and regulations are inconsistent or in conflict with the existing laws of the new power taking possession of the ceded territory. It follows from this that even conceding the validity of the act of February 22, 1875, ceding to the United States the Fort Leavenworth reservation, and conceding that the United States has legally accepted the grant, the act of 1874 is operative over the reservation, because such act has not been abrogated by congress, nor is it inconsistent with any legislation of that body. (Cass v. Dillon, 2 Ohio St. 607; U. S. v. Power’s Heirs, 11 How. 570. See Fort Leavenworth R. Co. v. Lowe, supra.)” (p.277.) (Italics ours.)
This case likewise reached the supreme court of the United States (Chicago & Pacific Railway Co. v. McGlinn, 114 U. S. 542, 5 S. Ct. 1005, 29 L. Ed. 270), where the decision of this court was affirmed. In the opinion reference was made to the holding in the Lowe case, supra, and it was further said:
“Upon the second question the contention of the railroad company is that the act of Kansas became inoperative within the reservation upon the cession to the United States of exclusive jurisdiction over it. We are clear that this contention cannot be maintained. It is a general rule of public law, recognized and acted upon by the United States, that whenever political jurisdiction and legislative power over any territory are transferred from one nation or sovereign to another, the municipal laws of the country, that is, laws which are intended for the protection of private rights, continue in force until abrogated or changed by the new government or sovereign. By the cession public property passes from one government to the other, but private property remains as before, and with it those municipal laws which are designed to secure its peaceful use and enjoyment, ris a matter of course, all laws, ordinances, and regulations in conflict with the political character, institutions, and constitution of the new government are at once displaced. Thus, upon a cession of political jurisdiction and legislative power — and the latter is involved in the former — to the United States, the laws of the country in support of an established religion, or abridging the freedom of the press, or authorizing cruel and unusual punishments, and the like, would at once cease to be of obligatory force without any declaration to that effect; and the laws of the country on other subjects would necessarily be superseded by existing laws of the new government upon the same matters. But with respect to other laws affecting the possession, use and transfer of property, and designed to secure good order and peace in the community, and promote its health and prosperity, which are strictly of a municipal character, the rule is general, that a change of government leaves them, in force until, by direct action of the new government, they are altered or repealed. (American Insurance Co. v. Canter, 1 Pet. 542; Halleck, International Law, ch. 34, § 14.) ... It is true there is a wide difference between a cession of political jurisdiction from one nation to another and a cession to the United States by a state of legislative power over a particular tract, for a special purpose of the general government; but the principle which controls as to laws in existence at.the time is the same in both. . . .” (pp. 546, 547.) (Italics inserted.)
The matter of jurisdiction over the Fort Leavenworth- reservation and the force and effect to be given the laws of Kansas in an action for wrongful death which occurred on the reservation came before this court in the later case of Hoffman v. Power Co., 91 Kan. 450, 138 Pac. 632 (decided in 1914), where the rule of the McGlinn case was approved and followed.
From the above it appears the rule is as stated in 65 C. J. 1258 [United States, § 7], viz.:
“When jurisdiction is ceded, the municipal laws of the state, except insofar as they are inconsistent with the laws of the United States, remain in force until abrogated by the United States, but this includes only such laws as are in effect at'the time of the cession. . . .”
That leads to a consideration of what is included in the term “municipal law,” and the nature of the right to vote. The term “municipal law”-has been defined to be a rule of civil conduct prescribed by the supreme power of the state (Sevier v. Riley, 198 Cal. 170, 244 Pac. 323, 325), and a similar definition may be found in Merchants Exchange v. Knott, 212 Mo. 616, 111 S. W. 565, 571, where it is said the definition is a part of Blackstone’s definition which adds that it is “commanding what is right and prohibiting what is wrong.” The latter part of the definition is used to define the term in 36 C. J. [Law, § 12], p. 961, which also states it is: “. . . that which pertains solely to the citizens and inhabitants of a state, and is thus distinguished from political law and commercial law. . . .”
A political right has been defined as consisting of the right and power to participate in the establishment or management of government, to exercise the right of suffrage, and to hold -office. (See State, ex rel., v. Huston, 27 Okla. 606, 113 Pac. 190, 198; Friendly v. Olcott, 61 Or. 580, 123 Pac. 53, 56; Haupt v. Schmidt, 70 Ind. App. 260, 122 N. E. 343; State v. Collins, 69 Wash. 268, 124 Pac. 903; People v. Barrett, 203 Ill. 99, 67 N. E. 742, 743.) The right to vote has been said to be a political right or privilege (McCrary on Elections, 4th ed., p. 5 et seq.; Paine on Elections, p. 2), and that it is not included among the rights oí property or person (18 Am. Jur. [Elections, § 44], p. 209, and 20 C. J. [Elections, § 13], p. 60). It would seem to follow that the right to vote was not included under the term “municipal law” and, not being so included, would not be such a right or privilege that it would persist in the residents of a territory the jurisdiction over which has been ceded to another sovereignty.
We have not overlooked the case of Cory v. Spencer, 67 Kan. 648, 73 Pac. 920, to which our attention has been directed. In that case it was held that a member of the soldiers’ home was not deprived of the right to acquire a residence there for voting purposes. That case was decided in 1903, at which time, under the act of congress heretofore noted, jurisdiction over the home had been relinquished to the state. The question of jurisdiction of the United States was not involved nor discussed, as the recession made it immaterial. (See Renner v. Bennett, supra.) Nothing said in the Cory case is conclusive in the case at bar.
Some argument is made that our conclusion will result in disenfranchising those persons who reside at the soldiers’ home. Such a result does not follow. Under article 5, section 3, of our- state constitution, it is provided that—
“For the purpose of voting no person shall be deemed to have gained or lost a residence by reason of his presence or absence . . . while kept at any . . . asylum at public expense.”
Under that provision there is no reason why any person, resident in the state of Kansas before- entering the soldiers’ home, may not vote at his former place of residence, if he is otherwise qualified. Indeed, that is the only place he can legally vote (Campbell v. Ramsey, 150 Kan. 368, 92 P. 2d 819). And he need not go there personally to vote; he can cast his ballot as an absentee voter under appropriate statutes (Lemons v. Noller, 144 Kan. 813, 63 P. 2d 177). Persons who enter the soldiers’ home from other states are protected by the laws of the state from which' they came. In the absence of any showing to the contrary, and there is none, we assume they have the same right to cast absentee ballots as do residents of this state, absent from the state. Any conclusion other than we have reached would permit a resident of the home, regardless of the state from which he came, after being at the home six months, not only to vote for any elective officer of Delaware township, but of Leavenworth county, and of the state, as well as for congressman and United States senators, and to be candidates for any of such offices. We are of the opinion they do not have such right, and that when the several persons voted at the election in 1938 they attempted to exercise a political right they did not have.
To recapitulate, when the United States relinquished jurisdiction to the state of Kansas in 1901, the right of persons residing at the soldiers’ home to vote as residents of Kansas was established by the laws of Kansas, and when the board of county commissioners of Leavenworth county, in 1906, established the three voting precincts at the home, it lawfully did so. But after the passage of Laws 1927, ch. 206 (G. S. 1935, 27-101 et seq.), and the action of the United States in acquiring title in 1930, if it did not previously have it, the jurisdiction was in the United States, and residents at the home could no longer exercise the political right to vote as residents of the state of Kansas at the particular precincts.
We note the trial court in its conclusions of law used the language found in some of the cases cited, and held “the persons living on the ceded territory were not residents of Kansas.” That statement is too broad. Residence at the home is not sufficient to confer the right to vote as a. citizen of Kansas, but as has been pointed out, if a particular person was a resident of Kansas at the time he entered the home, he is not to be deemed to have lost his residence because he entered the home. Under such circumstances, he is still a resident of Kansas for the purpose of exercising the elective franchise at thé place from which he came. The votes cast at the particular three precincts were all illegally cast, and the trial court rightly concluded they should not be counted.
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The opinion of the court was delivered by
Wedell, J.:
This was an injunction suit against the State Corporation Commission. Plaintiff prevailed, and the commission appealed. We shall refer to the parties as the plaintiff and the commission.
Plaintiff was a resident of Sedgwick county and the owner of a producing oil and gas lease in Cowley county. The commission issued a proration order which restricted the production of oil from wells on plaintiff’s lease. The purpose of the suit was to restrain and enjoin the commission from enforcing its proration order which limited the production of oil to less than the market demand for the crude oil produced. The district court restrained the commission, until further' order of the court, from interfering with or limiting the production to less than the market demand. Prior to the issuance of the restraining order, the commission appeared specially and moved to quash the pretended service of summons upon the commission for the reason the suit was improperly brought in Cowley county and the court was without jurisdiction of the persons and subject matter. The motion was overruled. The commission.lodged a demurrer to the petition which likewise challenged the jurisdiction of that court. The demurrer was overruled.
The commission contends this court has repeatedly held the venue for actions against state officers and commissions of the state is in Shawnee county, where their principal office is located, and from which their orders are made, unless legislative authority is granted to file actions elsewhere., (State, ex rel., v. Flannelly, 96 Kan. 372, 152 Pac. 22; City of Coffeyville v. Wells, 137 Kan. 384, 20 P. 2d 477; Rome Mfg. Co. v. State Highway Comm., 141 Kan. 385, 41 P. 2d 761; Gresty v. Darby, 146 Kan. 63, 68 P. 2d 649; Verdigris River Drainage Dist. v. City of Coffeyville, 149 Kan. 191, 194, 86 P. 2d 592.) In the last case cited, the venue of an action against the state highway commission was involved. The authorities were again reviewed, and it was held:
“The venue of an action against the state highway commission is in Shawnee county, except as to those matters in which the legislature has specifically provided an action against it may be brought elsewhere.” (Syl. If 2.)
Plaintiff does not challenge those decisions. He contends the statute here involved, to wit, section 5, chapter 227, Laws 1939 (G. S. 1939 Supp., 55-606), authorizes the filing of an action in the district court of the county where the property affected by the order of the commission is located. The only question presented is, therefore, whether the statute authorizes the filing of the instant injunction suit against the commission in Cowley county. In order to ascertain the legislative intent, it is necessary to examine the statute. For the convenience of the reader we have numbered the various provisions contained in the statute. It reads:
“(1) Any action for judicial review of any rule, regulation, order or decision of the commission may be brought against the commission in the district court of any county in the state wherein the property affected thereby is located, or, if the property affected thereby is located in different counties, then the jurisdiction shall lie in either of such counties. (2) Before any such action may be brought by a person who was a party to the proceeding resulting in the making of a rule, regulation, order, or decision of the commission, a petition for rehearing shall first be filed with the commission within ten days from the date of the making of the rule, regulation, order, or decision in question. (S) A rehearing shall be granted or denied by the commission within ten days from the date said petition is filed and if rehearing be not granted within ten days it shall be taken as denied. (4) If rehearing be granted the matter shall be set for hearing as promptly as shall be convenient, and shall be determined by the 'commission within thirty days after the same shall be submitted. (5) Such action may be brought by any person aggrieved, whether or not such person was the applicant for rehearing, within thirty days after the denial of the petition for rehearing, or, if rehearing is granted, then within thirty days after the final decision by the commission. (6) If no petition for rehearing be filed, then any person aggrieved who shall not have been a party to any such proceeding before the commission may bring an action for the judicial review of any such rule, regulation, order, or decision of the commission at any time after ten days and within thirty days from the date of the making of such rule, regulation, order or decision. (7) Any rule, regulation, order or decision of the commission may be superseded by the district court upon such terms and conditions as it may deem proper. (8) All actions brought under this section shall have precedence in any court and on motion shall be advanced over any civil cause of different nature pending in such court, and such action shall be tried and determined as other civil actions. (9) In any such action an abstract of the record of all evidence and proceedings before the commission shall be filed by the complaining party and a counter abstract may be filed by the commission or any other interested party. (10) The district court may, when it deems it necessary and in the interest of justice, remand any such action to the commission with directions that the same be further investigated or additional evidence taken by the commission. (11) After making such further investigation or receiving such additional evidence the commission may change, modify or set aside the rule, regulation, order or decision in question, and if the party who instituted the action for review in the district court shall not be satisfied with such decision, then upon written request of any such party, the commission shall make a report of its further investigation and final decision and send a certified transcript of such additional evidence as may have been tendered by any party in interest to the district court and thereupon the district court shall proceed to hear and determine the action upon the complete record. (12) The court shall not be bound by any finding of fact made by the commission. (13) The authority of the court shall be limited to a judgment either affirming or setting aside in whole or in part the rule, regulation, order or decision of the commission. (14) Appeals to the state supreme court may be taken from the judgment of the district court as in other civil actions. (15) Nothing herein shall be construed in any manner to change, restrict, prohibit, or to deny to any person any of the usual equitable remedies.” (Emphasis supplied.)
Plaintiff contends the first sentence of the statute clearly contains the legislative consent to bring the instant action in the district court of Cowley county, where the property affected by the order is located. We do not think the sentence is reasonably open to that interpretation. That sentence does not say an original and independent action may be brought against the commission in the district court of a county in which the property affected by the order of the commission is located. The statute does not purport to concern itself with the subject of original and independent actions. It expressly restricts itself to actions of a particular character, namely, actions for judicial review of any rule, regulation, order or decision of the commission. The instant suit, filed in Cowley county, was an original and independent injunction suit. It was not an action for judicial review of the order of the commission.
In the oral argument before this court, plaintiff also stressed certain language contained in the eighth sentence of the statute, which concludes with the language, “and such action shall be tried and determined as other civil actions.” It will be noted, however, that the sentence referred to begins with the words, “All actions brought under this section . . . .” The section pertains to actions for judicial review.
The statute must be read and construed in its entirety. It will therefore be helpful to return to the beginning of the statute and to examine its various provisions. As previously indicated, the first sentence pertains to actions for judicial review. The second sentence begins with the words, “Before any such action may be brought . . . .” The fifth sentence likewise begins as follows: “Such action may be brought . . . .” The sixth sentence provides that any person aggrieved who is not a party to the proceeding before the commission and where no petition for a rehearing of the rule, regulation, order or decision of the commission was filed, may have a judicial review. In the seventh sentence we find a provision which authorized the district court to supersede any rule, regulation, order or decision of the commission. That language likewise is in harmony with the other provisions of the statute which indicate the function of the district court was intended to be one of judicial review. The eighth sentence has been noted heretofore. The ninth sentence provides, “In any such action an abstract of the record of all evidence and proceedings before the commission shall be filed by the complaining party and a counter abstract may be filed by the commission or any other interested party.” That language clearly indicates the lawmakers intended' a review of the record of the commission. The tenth sentence likewise illuminates the legislative intent. It provides the district court may remand any such action to the commission with directions that the same be further investigated or that additional evidence be taken by the commission. The eleventh sentence provides that the aggrieved party who instituted the action for. review in the district court, if not satisfied after the hearing on remand, may have the additional record and final decision of the commission certified to the district court and have a hearing and determination of the action upon the complete record. The twelfth sentence, in providing that the district court shall not be bound by any finding of fact made by the commission, clearly indicates it was intended the district court should review the record before the commission in order to make its own independent findings of fact. The thirteenth sentence reads, “The authority of the court shall be limited to a judgment either affirming or setting aside in whole or in part the rule, regulation, order or decision of the commission.” Manifestly, that language does not indicate a legislative intent to authorize the filing of an original, independent action in the district court. It does affirmatively indicate there should be a judicial review of the record, with the view of affirming or seting aside in whole or in part the rule, regulation, order or decision of the commission. In the instant case, plaintiff did not endeavor to have the order of the commission set aside after a judicial review of the record before the commission, but, on the contrary, plaintiff sought, by an original and independent action, to enjoin the enforcement of the order of the commission.
We think the last sentence of the statute was merely intended to save to persons the usual equitable remedies which they possessed prior to the enactment of the statute in question. Prior to its enactment plaintiff did not possess the right to enjoin the commission, by suit in the district court of Cowley county, from enforcing its order made in Shawnee county. The last sentence clearly does not undertake to grant any new right. An examination of the entire statute compels the conclusion it was not the intent of the lawmakers to grant the right to institute an original and independent injunction suit against the commission in the district court of the county where the property affected by the order of the commission was located.
In its brief the commission also presents questions- which pertain to the sufficiency of the petition to state a cause of action. Those questions are not properly before us. The sole issue here is that of venue. On that issue the ruling of the court below must be reversed. It is so ordered. | [
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The opinion of the court was delivered by
Allen, J.:
This was an action in ejectment. The trial court rendered judgment for the defendant. Plaintiff appeals.
On January 30, 1937, one Ward B. Titus, a resident of Douglas county, died intestate. At the time of his death he was the owner of the land in dispute. He left no issue. Two women, the plaintiff and the defendant, are rival claimants for the property.
The. plaintiff, Katherine Raff Titus, and Ward B. Titus were married in Albany, N. Y., on the 28th day of November, 1895. A child was born to this marriage, but died at the age of three months. Ward B. Titus was a traveling salesman for a drug firm. About four or five years after this marriage he left his home in New York and Katherine never saw him again. He wrote to her from Ohio a short time after his departure, and thereafter she never heard from him.
Ward B. Titus and the defendant, Ada Titus, were married in Oklahoma on the 10th day of March, 1902. They lived at various places until 1917, when they located in Lawrence, Kan. They lived together as husband and wife until the death of Titus in 1937. Titus was an optometrist. The property involved in this action was accumulated as a result of the joint labor of Titus and the defendant, Ada.
During the wanderings of Ulysses the forsaken Penelope was not without suitors. Shortly after the departure of Ward B. Titus, the plaintiff, with other members of her family, conducted a boarding house in Binghampton, N. Y. There she met one Fred Middaugh. About this time Katherine stopped using the name of Titus as her surname, and for a time she went by her maiden name, Raff. About 1917 the plaintiff moved into an apartment and Fred Middaugh lived at the same place. Part of the time there were other roomers in the apartment, and part of the time it was occupied only by the plaintiff and Middaugh. About this time plaintiff began to go by the name of Middaugh and held herself out as the wife of Fred Middaugh.
Middaugh was a member of the “Brotherhood of Painters, Decorators and Paperhangers of America” and carried a policy of insurance in that organization. About 1922 the name of the beneficiary in the policy was at the request of Middaugh changed to Katherine Middaugh. Prior to the time this change was made the plaintiff had knowledge that Middaugh intended to insert her name as beneficiary. Middaugh died in Syracuse, N. Y., in 1928. After his death a check for the proceeds of the policy was issued by the organization to “Katherine Middaugh, wife.” The check was endorsed by the plaintiff “Katherine Middaugh, wife,” and she received the proceeds of the check. In life the plaintiff lived with Middaugh as his wife, and after his death she held herself out as his widow. So far as the record shows, no formal marriage was ever consummated between the plaintiff and Middaugh.
It does not appear that plaintiff was ever in Kansas. The defendant, Ada Titus, is in possession of the real estate described in plaintiff’s petition. So far as the record shows, Ward B. Titus and the plaintiff were never divorced.
The trial court returned findings of fact, an outline of which is set forth above. The court found that the plaintiff was not entitled to the land “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.”
We reach the same conclusion.
In Shepard v. Carter, 86 Kan. 125, 119 Pac. 533, it appeared that the husband and wife never lived together after the marriage. The husband left the state, declaring he would obtain a divorce, and returned two years later and stated that he had obtained a divorce. The wife, acting on the belief a divorce had geen granted, married another, and children were born of the marriage. Later the husband married another woman, lived with her about eighteen years, and ■eight children were born of this marriage. Upon his death, the ■first wife, claiming no divorce had been granted, asserted a right in his property. The court held that under the facts “it will be presumed the first marriage was dissolved by a divorce” and that when ■she claimed to inherit the land as the surviving widow of the intestate “it devolved on her to prove that no divorce had been granted.”'
In Haywood v. Nichols, 99 Kan. 138, 160 Pac. 982, the wife of one Pool (acting on the information and belief that Pool had secured a ■divorce, had married again and had died in the year 1889) married Haywood. She and Haywood lived together as husband and wife until his death sixteen years later. No children were born of the marriage, and it was held she was entitled to the property of Haywood as against his collateral heirs. Citing Shepard v. Carter, supra, the court said: “There was a presumption in favor of the validity of the defendant’s second marriage which has been described as the strongest known to the law.”
In Kinney v. Woodmen of the World, 110 Kan. 323, 203 Pac. 723, the syllabus reads:
“Previous to 1890 the plaintiff was the common-law wife of Thomas Kinney. In that year she separated from her husband, and in 1892 she was formally married to her present husband, with whom she has ever since lived, and by ■whom she has borne children. In 1904 Kinney obtained from a beneficiary society a certificate payable at his death to his wife. Kinney died in 1918, and the plaintiff sued for the proceeds of the certificate. Held, it will be presumed the plaintiff’s marriage to her present husband was legal; the presumption includes, if necessary, the fact of dissolution of the common-law marriage, by divorce granted to Kinney; and the presumption cannot be overcome, except by proof so cogent as to compel conviction.”
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 con science the defendant is entitled to the property. The law presumes the second marriage was valid. As that presumption was not overthrown, the established rule in this state as announced in the authorities above cited compels an affirmance of the judgment.
Judgment affirmed.
Thiele, J., not participating. | [
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The opinion of the court was delivered by
Harvey, J.:
This was an action for the balance due on the premium for a contract of insurance. The trial court held plaintiff was not entitled to the benefit of the courts of the state and could not maintain the action, and rendered judgment for defendant. Plaintiff has appealed.
The facts, stipulated in writing, may be summarized as follows: Plaintiff is a Missouri corporation, with its principal place of business at Kansas City, Mo., and is engaged in the business of acting as an insurance agent or broker. It never has made application, nor obtained authority under G. S. 1935,17-501 et seq., to transact business in this state as a foreign corporation. No officer or agent of plaintiff corporation has been licensed in this state as an insurance agent under our statutes. (G. S. 1935, 40-239, 40-240.) Defendant in a Kansas corporation, with its principal office at Wichita, and is engaged in the taxicab business in Wichita. .Under an ordinance of that city, as a condition precedent for it to conduct a taxicab business in the city, it was required to obtain and file a policy of public liability and property damage insurance, in a stated amount, covering its taxicabs operated in the city. Prior to September 27, 1937, defendant’s president or manager went to the office of plaintiff at Kansas City, Mo., and there entered into a contract with plaintiff by which plaintiff was to obtain for defendant from Lloyd’s of London an insurance policy of the kind desired by defendant, and which it could file with the proper official of the city of Wichita and which would authorize the city to issue to defendant a license permitting it to operate its taxicabs in the city. Plaintiff obtained such a policy from the underwriters at Lloyd’s, London, which policy was delivered to defendant and filed by it with the proper authorities of the city, and defendant’s license to operate its taxicabs was duly issued. The premium was based upon the number of taxicabs operated by defendant, which varied from 65 to a few more, or perhaps a few less. The policy was written for one year and was effective from September 27,1937, to September 27, 1938. The premium was payable monthly. Defendant paid for eleven months, but neglected or declined to pay for the last month. It is agreed the sum owed for the last month was $654.11, the amount for which the action was brought. Under its agreement with defendant plaintiff named certain persons in Wichita as agents of the underwriters to handle and adjust claims for damages arising under the policy j and as such agents they handled approximately 456 accident reports and paid the sums agreed upon in settlement, or recovered in judgment against defendant. Under a deductible provision of the policy defendant was to make a stated contribution upon the settlement of each accident. Although not material on the point involved in the action, it was stipulated that the underwriters, through plaintiff, paid $7,217.59, and that defendant, under the deductible provision of the policy, paid $1,888.40 in settlement of accident claims against defendant while operating its taxicabs within the time the policy was in force. It was stipulated the underwriters of the policy are all residents of England, and that none of them is licensed under the law of this state to write insurance policies in Kansas. The payments of premiums upon the policy were sent by defendant by mail to plaintiff at Kansas City, Mo. The full amount of the premium on the policy, less commissions, was paid by plaintiff to the underwriters at Lloyd’s, of London, England.
The trial court specifically found as one of its conclusions of law that plaintiff was illegally writing insurance in the state of Kansas without having complied with G. S. 1935, 40-239 and 40-240. The first of these sections defines an insurance agent, and the second pertains to licenses of insurance agents. These sections appear not to be véry pertinent here, for plaintiff did not act as an insurance agent in Kansas; it acted as an insurance agent in Missouri. The agents plaintiff named in Wichita were agents to adjust losses; not agents to write insurance.
Another section of our insurance code (G. S. 1935, 40-216) is commented on in the briefs. It reads as follows:
“No insurance company shall hereafter transact business in this state until certified copies of its charter, bylaws and amendments thereto shall have been filed with and approved by the commissioner of insurance. No contract of insurance or indemnity shall be issued or delivered in this state until the form of the same has been filed with the commissioner of insurance, nor if the commissioner of insurance give written notice within thirty days of such filing, to the company proposing to issue such contract, showing wherein the form of such contract does not comply with the requirements of the laws of this state; but the failure of any insurance company to comply with this section shall not constitute a defense to any action brought on its contracts.”
This section appears not to be pertinent. Plaintiff is not an insurance company. The underwriters at Lloyd’s, in London, who issued this policy are not parties to this action. Under the last sentence of the section just quoted the failure of the company which issues the policy to comply with the section is not a defense to an action on the policy; neither is it a defense to an action brought by the company on the policy. (Walters v. Automobile Insurance Co., 116 Kan. 404, 226 Pac. 746; see, also, Rishel v. Pacific Mut. Life Ins. Co. of California, 78 F. 2d 881.)
Appellee cites Yount v. Denning, 52 Kan. 629, 35 Pac. 207, in which a real-estate agent was not permitted to recover a commission because he had not complied with the city ordinance which required him, before engaging in the business, to pay a fee and be licensed as such agent. The soundness of this decision has been seriously questioned. (Fossett v. Lumber Co., 76 Kan. 428, 92 Pac. 883; Manker v. Tough, 79 Kan. 46, 98 Pac. 792; Draper v. Miller, 92 Kan. 275, 140 Pac. 890.) In any event, it is not applicable here, for plaintiff’s contract by which this policy was issued was made in Missouri and not in Kansas.
The trial court also found as a conclusion of law that plaintiff was doing business in this state without having complied with the requirements of our statutes for foreign corporations to do business in this state, and as a consequence plaintiff is not entitled to bring an action in the courts of the state of Kansas. In support of that holding appellee cites G. S. 1935, 17-501, which provides that any corporation authorized under the laws of any other state, and seeking to do business in this state, shall make application to the state charter board, etc.; also 17-503, which provides for the issuance of a certificate from the charter board to the foreign corporation applying; and 17-505, which provides that after a foreign corporation has qualified and is authorized to do business it shall have the rights and privileges of domestic corporations; and 17-506, setting out what constitutes doing business within this state;' also general authorities, 14A C. J., pages 1215, 1270, 1308, 1379, 1381 and 1397, respecting the general powers and duties of corporations; also Stock Food Co. v. Jasper, 76 Kan. 926, 92 Pac. 1094, and Crane & Co. v. Snowden, 112 Kan. 217, 210 Pac. 475, and authorities from other states pertaining to a corporation, foreign to the state in which it brings an action, using the courts of the state when it has not made application and been authorized to do business in such state. -
Our statutes, cited and relied upon, were part of chapter 10, Laws of 1898, special session, which in section 12, amending a section of our General Statutes of 1868, providing for reports of corporations to the secretary of state, contains this provision:
“No action shall be maintained or recovery had in any of the courts of this state by any corporation doing business in this state without first obtaining the certificate of the secretary of state that the statements provided for in this section have been properly made.”
This provision was carried along in subsequent amendments of the statute until it became section 1726 of the General Statutes of 1909. This section was specifically repealed by chapter 135, Laws of 1913, which, in place of forbidding the use of our courts to corporations not properly certified, provided penalties for a corporation doing business without having such certificate, and- this has been carried forward in our statutes and become G. S. 1935, 17-705. In the meantime two cases decided by this court, in which the court, following the statute, held the corporation was not entitled to use the courts of the state, were appealed to the supreme court of the United States, where the decision of this court was reversed. (International Text-book Co. v. Pigg, 76 Kan. 328, 91 Pac. 74; 217 U. S. 91, 54 L. Ed. 678, 30 S. Ct. 481; Buck Stove & Range Co. v. Vickers, 80 Kan. 29, 101 Pac. 668; 226 U. S. 205, 57 L. Ed. 189, 33 S. Ct. 41.) The ultimate holding of the supreme court of the United States was that this provision of our statutes was void as applied to the facts shown in the cases ruled upon. Perhaps the fact that this left such a narrow field, if any, in which the statute could operate prompted the legislative action in 1913, above mentioned. Since that legislation no statute of this state has been called to our attention which specifically prohibits a foreign corporation from any use of the courts of our state because of the fact that it has not applied for and received a certificate from the secretary of state to do business in this state as a foreign corporation. In fact, our legislature has recognized that foreign corporations may do some business in this state even though they have not complied with our statutes with reference to making application for and obtaining a certificate to do business in the state, and has provided a method of obtaining service on such corporations. (G. S. 1935, 17-509, and see Weishaar v. Butters Pump & Equipment Co., 149 Kan. 842, 89 P. 2d 864; 122 A. L. R. 1190.)
In addition to what has just been said we note the fact that whatever business plaintiff was doing in this state had been completed before this action was brought. This action is for the balance due upon an account, computed on a contract made in Missouri, and is a suit for a money judgment for a debt due.
Such an action might have been maintained in this state prior to 1913. (See Boggs v. Kelly, 76 Kan. 9, 90 Pac. 765, and cases there cited.)
It' necessarily follows that the plaintiff had a right to maintain this action, that the judgment of .the court below must be reversed, and since the amount of the debt, and that it is actually owing from defendant to plaintiff, are stipulated, the trial court should be directed to enter judgment for plaintiff. It is so ordered. | [
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The opinion of the court was delivered by '
Harvey, J.:
This was an action for damages under our wrongful death statute (G. S. 1935, 60-3203, 60-3204). The jury answered special questions and returned a general verdict for plaintiffs for $4,500. The trial court sustained defendant’s motion for judgment in its favor upon the answers to the special questions notwithstanding the general verdict. Plaintiffs have appealed.
The general facts may be summarized as follows: A north-andsduth paved state highway, known as U. S. 75, about eighteen miles south of Topeka, is intersected by an east-and-west paved state highway known'as U. S. 50N. About 8:30 o’clock the morning of 'December 7, 1936, plaintiffs’ son, Earl Ruff, was riding with Paul Vautravers in a Plymouth coupé automobile owned and driven by Vautravers and traveling south on U. S. 75. At the same time Jack Farley, driving a Lincoln-Zephyr automobile, was traveling-west on U. S. 50N. Riding with Farley were Sam Wentworth and R. L. Gormley and his wife. The two automobiles collided in the intersection of the two highways, with the result that all of the occupants of the two automobiles were killed. Plaintiffs alleged the collision was caused by the negligence of Jack Farley in not observing and obeying caution and stop signs on U. S. 50N as he approached the intersection. Since a cause of action for wrongful death did not survive the death of the wrongdoer, plaintiffs could not bring an action against Jack Farley, or the administrator of his. estate. (Wright v. Smith, 136 Kan. 205, 14 P. 2d 640; Kelly v. Johnson, 147 Kan. 74, 75 P. 2d 209, but see Laws 1939, ch. 233, which seems to change this rule.)
The action was brought against the Farley Machine Works Company, a Kansas corporation having its principal place of business at Arkansas City. The controverted point in the case involved in the judgment appealed from and presented here was whether the defendant corporation was liable to plaintiffs even though the negligence of Jack Farley caused the collision. Respecting this feature of the case plaintiffs in their petition allege: (1) That the defendant corporation is engaged in the business of manufacturing, repairing, selling and distributing certain oil-drilling tools and equipment used in the oil industry, and that it owned the Lincoln-Zephyr automobile driven by Jack Farley at the time of the collision. These allegations were conceded by defendant. (2) That at the time and place of the collision Jack Farley was the agent, officer and employee of the defendant company and was at the time using the highway and the automobile of defendant in going from Lawrence, Kan., to Arkansas City on business and in furtherance of the business of the defendant company. This allegation was specifically denied by the verified answer of defendant.
The evidence on this feature of the case is not seriously controverted and may be summarized as follows: Jack Farley owned about twenty-seven percent of the outstanding .shares of the capital stock of the defendant company, was a member of its board of directors, and its general manager. The company was incorporated for the purpose of the maintenance of- general machine shops and stores,' for the manufacture and repairing of mechanical tools; implements, appliances, supplies and equipment, and automobiles, trucks, vehicles and engines, and to acquire, own and sell- such real and personal property as might be requisite in the proper conduct of its business and the promotion of its corporate purposes. The tools and equipment which it manufactured and with which it dealt were those used in drilling and producing oil. The trade territory of the company was west of a line drawn northward from Arkansas City, in Cowlej1- county, to the east line of Harvey and McPherson counties, thence northwest to the state line. The place of the collision is about ninety miles east of this line. The trade territory extended as far west as Ness City and south of the cities of Chase and Pratt and north of Hays. In this territory it had between 200 and 300 people it contacted and with whom it did business; also in this territory it had four shops in addition to the one at Arkansas City. One was near Burrton, in Harvey county, one near Chase, in Rice county, one near Hays, in Ellis county, and one near Russell, in Russell county. Each of these shops was in charge of a foreman and such other help as was needed. Usually ten or twelve men were employed. It also employed a field man, Sam Wentworth, a stocks holder of the company, who lived in Hutchinson, and whose principal duty was to contact oil-well workers and producers in the territory and get new business. Defendant also had a contract with the American Cable Company to sell on consignment its wire line in Kansas, and with Sprange & Company to sell its fishing tools. Sales of these materials were, -handled by defendant through its shops or through its general office at Arkansas City. Any complaint respecting wire-line sold was adjusted by the American Cable Company by its representative, R. L. Gormley, who lived in Oklahoma. This business brought Gormley to some one of defendant’s shops once in two or three months. He had no other connection with defendant. Defendant company solicited, no business and transacted no business east of the east line of its trade territory, as above stated, except that'on two or three occasions Sam Wentworth’s father and his uncle, oil-well operators doing business at Chanute, in Neosho county, and at Madison, in Greenwood county,-ordered- by telephone from defendant’s Arkansas City office wire line manufactured by the American Cable Company: These orders-were handled by correspondence and the merchandise shipped from-the Houston, Tex,, warehouse of: the American Cable Company.
Jack Farley was the general manager of the defendant company. His headquarters was at the general offices of the company in Arkansas City, where also was the office óf Ruth Adamson, secretary-treasurer of the company. As general manager of the business Jack Farley spent much of his time out in the trade territory visiting the shops, súpervising the work, checking up on accounts, and contacting new business. He had no occasion to do work for the company outside of its trade territory. He was paid a monthly salary, but neither he nor any of the employees of the company was docked for a few days’ time taken to attend to private business, or for pleasure or vacation trips. Defendant owned the Lincoln-Zephyr automobile involved in the collision in question. It was purchased for the use of Farley in traveling over the trade territory and transacting business of the company, and he had permission to use it for his personal use and his private business, or on his hunting or vacation trips. The company paid the expense of keeping the automobile in repair and paid for gas, oil and other expenses incident to its operation in its business. It did not pay the operating expenses of the car when Farley used it on his private or personal business or for pleasure. Far-lay carried with him an expense book in which he entered items of expense for himself and for the operation or repair of the automobile when used in the business of defendant, and these were paid by defendant. None of his personal expenses, or expense of operating the automobile, was charged to the company when he was on his personal business or pleasure.
The business affairs of the defendant company were directed by a board of five directors, most of whom lived within its trade territory. Farley met and conferred with those on frequent occasions. In addition to the stated meetings of the board of directors provided by the bylaws it was not unusual to have special meetings called. On December 1,1936, Jack Farley directed the secretary to send out notices for a special meeting of the board of directors to be held at the office of the company in Arkansas City on December 7, 1936, at two o’clock p. m., to consider declaring a dividend on stock and such other important business as might be presented. The notices were duly sent out.
The defendant company was not in the oil business, did not take or deal in oil and gas leases, nor drill for oil and gas, nor operate oil and gas wells or leases. Apparently Farley and Wentworth did some of that on their own account. At some time prior to the casualty Sam Wentworth had obtained an oil and gas lease on the Widener farm, about thirteen miles east of Lawrence. He and Jack Farley appear to have had some agreement by which Farley would finance the drilling of a well on this lease. About November 18,1936, Jack Farley entered into a written contract with one T. A. Goff, an oil and gas well driller, by the terms of which Goff was to drill a well on the Widener land, and in accordance with the terms of that contract Jack Farley deposited in a bank at Bonner Springs, Kan., his personal check for $945 to be paid to Goff upon drilling the well to a stated depth. Farley and Wentworth wanted to be present when the well was drilled in, and Goff was to let them know when that was to take place. On December 4, 1936, a letter from Goff to Farley was received at the Arkansas City office of defendant. Miss Adamson opened it and read it. It was advising Farley when the well would be drilled in. Farley was then out in the trade territory and Miss Adamson located him at Stafford and read the letter to him over the telephone. That evening Farley drove into Hutchinson, Kan., and stayed all night. The next morning when he paid his bill, which included a telephone call to Goff, the clerk asked him if he wanted a receipt, and he replied no, that was his own. The morning of December 5, Farley and Wentworth left Hutchinson to go to the Widener farm in Johnson county to be present when the well was drilled. Gormley and his wife were at the hotel, and on learning the purpose of the trip concluded to go with them. Gormley drove his own car to Newton, where it was left, and he and his wife got into the automobile with Farley and Wentworth. They drove to Lawrence, where they registered at the hotel, and Farley and Wentworth spent much of the time at the well being drilled on the Widener place, which was drilled in sometime in the evening of December 6. Sometime that evening Farley called Miss Adamson, told her where he was, and that he planned to be at the board-of-directors meeting the afternoon of the 7th. He told others at Lawrence, or at the well, of the board meeting he wanted to attend. He and Wentworth and Mr. and Mrs. Gormley left the hotel at Lawrence the morning of December 7, and some forty-five minutes thereafter were involved in the collision. The distance from Lawrence to Arkansas City by Newton is 252 miles.
The court in its instructions told the jury, among other things, that before it would be warranted in finding for plaintiffs it must find by the evidence that at the time and place of the casualty Jack Farley was acting as an agent, servant, employee or officer of the defendant company, within the scope of his authority and within the course of his business or employment with the company. No question is raised in tins court about the correctness of any of the court’s instructions. Pertinent special questions asked and answered by the jury are as follows:
“1. Did Jack Farley and Sam Wentworth go from Hutchinson, Kan., to Lawrence, Kan., and Johnson county, Kansas, the morning of December 5, 1936, for the purpose of going to and being present at the drilling in of an oil well by T. A. Goff on the Jacob V. Widener land in Johnson county, Kansas? A. Yes.
“3. If you answer question number 1 yes, then state if that was their sole purpose in going. A. We don’t know.
“5. Did the Farley. Machine Works Company have any interest in the Jacob V. Widener lease in Johnson county, Kansas, or in the well being drilled thereon by T. A. Goff? A. No.
“7. At the time of the accident in question, were Jack Farley and Sam Wentworth, or either of them, engaged in the business of the Farley Machine Works Company and acting within the scope of their employment? A. Yes.
“8. If you answer the next preceding question in the affirmative, then state particularly what business they or either of them were performing for the Farley Machine Works Company at said time. A. Going to directors’ meeting at Arkansas City, Kan.”
The answers to these questions were not objected to by counsel on either side. Our statute (G. S. 1935, 60-2918), in part, reads:
“When the special finding of facts is inconsistent with the general verdict, the former controls the latter, and the court may give judgment accordingly.”
It is the duty of the court to construe the findings of fact so as to harmonize the facts found with the general verdict, if that reasonably can be done. If that cannot be done the general verdict must be set aside. These propositions are thoroughly established by many of our decisions.
The issue as to defendant’s liability was clearly formed by the pleadings. Plaintiffs allege that at the time and place of the collision Farley was the agent, officer and employee of the defendant company and using the highway and automobile of defendant on business and in furtherance of the business of the- defendant company. Defendant by its specifically verified denial of this allegation placed the burden of establishing it by proof upon plaintiffs.
Appellants argue that whether a negligent driver, causing an accident, was acting within the scope of his employment for the owner at the time of the accident so as to render the master liable, must be determined by the jury where the evidence is conflicting, citing 10 Blashfield’s Cyclopedia of Automobile Law and Practice, § 6637; 2 Mechem on Agency, 2d ed., § 1879, and many other authorities, including O’Banion v. Railway Co., 65 Kan. 352, 69 Pac. 353. This rule and its soundness may be conceded, but here the controversy was submitted to the jury by special questions. By their answers to questions 1 and 5 the jury found Farley went from Hutchinson to Johnson county for the purpose of going to and being present at the drilling in of an oil well by Goff on the Widener land, and that the defendant company had no interest in the lease on the Widener land in Johnson county, or in the well being drilled thereon. Hence, the jury found this trip was not made in connection with any business of defendant. The answer to question 3 is not helpful to plaintiffs. They had the burden of establishing their contention that Farley went on this trip for some purpose other than to see the well on the Widener land drilled in, and that such purpose was one in which the defendant company had an interest. The jury was unable to find evidence sustaining that contention. Answering question 7, the jury made a general finding that Farley (or Wentworth) was engaged in the business of defendant and acting within the scope of his employment at the time of the accident, but in answer to question 8, when specifically interrogated as to what that business was, they answered, “Going to directors meeting at Arkansas City, Kan.” So the jury found that Farley made this trip on business with which the defendant was not concerned, and that he had started back to his work for defendant and to the field where that work was done. We previously have noted that he was more than ninety miles from the territory in which he worked for defendant and more than 250 miles from Arkansas City, where he planned to resume his duties as an employee of defendant. Under these findings made by the jury the trial court, by sustaining defendant’s motion for judgment upon the facts so found, necessarily held as a matter of law that Farley was not engaged in any duty for defendant, nor was he in the scope of his employment with defendant at the time of the collision in question. We concur in that view.
The liability of a master for the tortious acts of his servant is grounded upon the maxim of respondeat superior and is to be determined by considering, from a factual standpoint, the question of whether or not the tortious act was done while the servant was act ing within the scope of his employment. (2 Am. Jur., Agency 278, 279, §§ 359, 360.) In Halverson v. Blosser, 101 Kan. 683, 168 Pac. 863, it was held:
“An owner of an automobile is not liable for injuries caused in its operation by others, unless such others were servants or agents of the owner and acting in furtherance of his business.” (Syl. fl.)
To the same effect, see Snyder v. Eriksen, 109 Kan. 314, 198 Pac. 1080, and Mayhew v. DeCoursey, 135 Kan. 184, 10 P. 2d 10.
Under the special findings of the jury the real question of law here is, Did Farley resume his work for defendant when he started from Lawrence to go to Arkansas City? A short answer to this is that Farley left the business of his master on the morning of December 5 for business of his own, and it was his own business to get back to the business of his master. There are numerous decisions holding that when a servant leaves his master’s business to go to some other place and attend to business of his own he does not resume his master’s business by simply starting to return, but resumes it when he actually returns. The following cases so hold, several of them dealing specifically with liability of the master in automobile collision cases when the servant is on his return to resume work. The list is not designed to be complete. Vallery v. Hesse Bldg. Material Co., (Mo. App.) 211 S. W. 95; Fletcher v. Meredith, 148 Md. 580, 129 Atl. 795; Carder v. Martin, 120 Okla. 179, 250 Pac. 906; Brinkman v. Zuckerman, 192 Mich. 624, 159 N. W. 316; Danforth v. Fisher, 75 N. H. 111, 71 Atl. 535; Gousse v. Lowe, 41 Cal. App. 715, 183 Pac. 295; Curry v. Bickley, 196 Ia. 827, 195 N. W. 617; Bishop v. Farm & Home Savings & Loan Ass’n, (Tex. App.) 75 S. W. 2d 285; Humphrey v. Hogan, (Mo. App.) 104 S. W. 2d 767.
See, also, Kemp v. Railway Co., 91 Kan. 477, 138 Pac. 621, and Dale v. Armstrong, 107 Kan. 101, 190 Pac. 598. The authorities cited contain citations of many other authorities to the same effect. In one or two of the opinions it was noted that there are a few cases which seem to take a contrary view, but they are in the decided minority. The great weight of authority is in harmony with the rule of the cases cited, which we approve as being the sounder doctrine.
Counsel have cited cases in which there was a slight deviation from duty — the degree of which varied — in some of which the master was held liable, in others not. This cannot be said to be a case of slight deviation from duty. The time consumed and the distance from place of duty classify it as one of temporary abandonment of duty, as that term is sometimes used in the opinions.
No specific force is to be attached to the fact that the first important thing Earley planned to do for defendant when he got back to his 'work was to attend and officiate at a directors’ meeting. That happened to be the thing then to be done — it might have been any of his other duties. The material point is that he was going back to the field of his work- for defendant to resume work which needed to be done for defendant. Appellants argue that it was necessary for Earley to go from Lawrence to Arkansas City in order to perform the main act which it was his duty to perform — to preside at the directors’ meeting and to inform the directors of the important matters to come before them; that this was a service to the company, important to it, and Earley started to make the trip, hence that he was in fact performing a service for defendant, or at least doing a thing incidental to his duties, and one that contributed indirectly to the service he was to perform for defendant after he should reach Arkansas City. Such force as there is to this argument is weakened when we consider that had Farley gone to New York, or to Europe, on business of his own, and planned to return to Arkansas City by a fixed date to resume his duties for defendant, and injury had resulted from his negligence soon after he started, or anywhere on his return trip, the fact that defendant could use his services when he got back to his work would not be enough to hold defendant financially liable for his negligence en route home.
Appellants make a point of the fact that after the collision and on December 11, 1936, at a special meeting of defendant’s board of directors, when some new officers were chosen, appropriate separate resolutions of condolence respecting the death of Jack Farley and of Sam Wentworth were adopted and sent to their respective families, and in the preamble to the resolution respecting Wentworth it was said that he “lost his life on December 7, 1936, while in the line of duty and serving the best interests of his employer.” No similar wording was in the resolution respecting Farley. In view of the fact Wentworth was not charged with negligence in this case, the general purpose of the resolutions and of testimony tending to show that all the facts pertaining to the purpose of the trip and the cause of the collision were not known to the directors, the weight to be given to this evidence was for the jury. There is no reason to say the jury did not consider this together with all the other evidence when they answered the special questions. As a separate item of evidence we regard it as no longer important.
In Kennedy v. Hull & Dillon Packing Co., 130 Kan. 191, 289 Pac. 402, the duties of Kennedy as a traveling salesman required him to travel over the highway where he was killed. That is not the case here. In Stapleton v. State Highway Comm., 147 Kan. 419, 76 P. 2d 843, Stapleton had been requested by his superior officer to move his household goods from one location to another so he could better perform his duties, and was doing so at the time he was killed. No such request had been made in this case. In Tierney v. Telephone Co., 114 Kan. 706, 220 Pac. 190, the employee was directed by his superior to ride in a certain truck and go to a certain town and perform certain duties for his employer, and to assist the driver of the truck en route, and while doing so he sustained an injury for which he was permitted to recover. No such directions were given to Farley in this case. Similar distinctions are readily observable between the facts found in this case and those in Thomas v. Manufacturing Co., 104 Kan. 432, 179 Pac. 372; McDonnell v. Swift & Co., 124 Kan. 327, 259 Pac. 695; Kearns v. Reed, 136 Kan. 36, 12 P. 2d 820; Woods v. Jacob Dold Packing Co., 141 Kan. 363, 41 P. 2d 748, and cases from other jurisdictions, all of which are cited and relied upon by appellants. We think the doctrine that a general manager of a corporation is its general agent, and for some purposes may be regarded as the corporation itself, as discussed and applied in A. & P. Rld. Co. v. Reisner, 18 Kan. 458, has no application here. If this doctrine were applied here it would apply to any negligent act of Farley if he left defendant’s business three weeks instead of three days and if he traveled several thousand miles instead of several hundred from the place of work for defendant. We find no legal authority for applying the doctrine in such a case. We have examined all the authorities cited by appellants and find nothing in any of them, not specifically mentioned herein, which requires a holding contrary to the conclusion we have reached in this case.
From what has been said it follows that the judgment of the trial court must be affirmed. It is so ordered. | [
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The opinion of the coui-t was delivered by
Thiele, J.:
Defendants appeal from a judgment rendered against them on the pleadings.
The petition alleged the execution of two promissory notes, and. that default had been made and asked for judgment. Defendants filed an answer, and in response to a motion filed a supplemental and amended answer. The answer admitted execution of the notes, but denied liability thereon, alleging that the notes were given in connection with the sale and purchase of a certain combine, and that the sale was procured by fraud in that it was represented the machine was in good condition and would perform the work for which it was intended as well as or better than any other make of machinery of the same size, and that the machine was made of good materials, and if the machine was not what it was supposed to be plaintiff would either replace it or make necessary repairs, and that relying on such representations defendants executed and delivered the notes sued on. That when the notes were signed, plaintiff issued a warranty to defendants and when defendants found out the machine was defective they immediately complied with the warranty and notified plaintiff, and that plaintiff had not done anything to comply with the warranty and agreement. It was further alleged the machine was defective, in an unworkable condition and made of poor material, and they had offered and still offer to return it to plaintiff. In their amended and supplemental answer defendants stated the representations about the machine were oral, but that the warranty was in writing. There was also allegation of claimed defects in the construction and operation of the machine. It was also alleged that defendants had complained to claimed agents of plaintiff of alleged defects. Attached to the supplemental and amended answer was the order for the machine. It specifically stated the machine was sold “under the warranty appearing on the back hereof, and no other.” The warranty was that the machine, if properly used and operated, would perform the work for which it was intended as well as or better than any other make of machine of the same size; that the buyers should not be entitled to rely upon any breach of the above warranty or to rescind the contract “unless within five (5) days from the first use thereof, for any purpose, the buyer shall . . . have given written notice by registered letter to” plaintiff at specified addresses “stating wherein such machinery fails to fill such warranty.” It was further stated in the warranty that any assistance rendered after the foregoing warranty had been waived or fulfilled should not operate as an extension or revival of the warranty, and that variance by the purchaser from any of its provisions should be an unqualified waiver of any warranty, and that it was fully understood and agreed to by the buyer that the warranty provided was in lieu of all other warranties express or implied.
Plaintiff filed its motion for judgment on the pleadings, and when that motion came on for hearing one of the grounds urged as to why it should be sustained was that defendants had waived the warranty by their failure to give the requisite five days’ notice by registered mail. Counsel for defendants stated he had learned some additional facts and requested time to file an amended answer. In a colloquy with the trial court as to what further defendants could plead, it developed the defendants were present in court, and a recess was had so that counsel for defendants could confer with them. Thereafter counsel informed the court there was no notification as required by the warranty and that he didn’t believe there was anything they could plead. Thereafter the court asked counsel for defendants: “Are you satisfied that the motion is good?” and counsel replied: “I am.” And the court then rendered judgment for plaintiffs. The journal entry of judgment recites, in part:
“And thereupon, upon defendants requesting ten days’ time in which to file an amended answer, the court inquires as to their defense and, after consultation the defendants’ answer to the court that they cannot plead a good defense to plaintiff’s cause of action.”
And that the request for additional time to answer was denied and plaintiff’s motion was sustained, and judgment rendered as prayed for in plaintiff’s petition.
Thereafter the trial court entertained a motion for a new trial, reviewed the proceedings and denied the motion. This appeal followed, the sole question presented being whether the trial court erred in sustaining the motion for judgment.
Appellants’ contention may be summarized that such a motion is equivalent to a demurrer; that treating it as a demurrer a most liberal construction is to be given the answer and the supplemental and amended answer, and so construed the defendants’ pleadings, taken together, plead a defense of fraud, breach of the express warranty and breach of an implied warranty. So far as the record goes, there is no showing whatever that such contentions were presented to the trial court. There the issue was squarely presented whether there had been breach of the express warranty by defendants’ failure to give the requisite notification; there was a definite statement it had not been given, and in response to a definite question, defendants’ counsel stated to the court he was satisfied the plaintiff’s motion was good. In the briefs we find some discussion whether the judgment was by confession or by consent. It was neither. It was more nearly akin to a judgment by default, for in effect the defendants admitted their answer and supplemental answer stated no defense. Under the circumstances, the defendants invited the trial court’s ruling and judgment and they may not complain.
For the reason the record is barren of any showing the trial court’s attention was directed to the matters now urged on us as being erroneous, we shall not discuss appellants’ several contentions at length. We have, however, examined them and conclude there is nothing in them that would warrant a conclusion the answer stated a defense. Similar provisions as to giving notice of defects and nonwaiver were upheld in Advance-Rumely Co. v. Stoops, 125 Kan. 16, 262 Pac. 604, and Massey-Harris Harvester Co. v. Burnett, 126 Kan. 453, 268 Pac. 740. The terms of the warranty expressly excluded any implied warranty, and cases cited dealing with implied warranties are not in point.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Hoch, J.:
This was an action for damages for alleged wrongful attachment and garnishment of wheat or credits belonging to the plaintiff. The defendant prevailed, and the plaintiff appeals, contending that the court erred in the instructions given and in the refusal to give the instructions asked for by the plaintiff.
The appellee, The First National Bank, of Medicine Lodge, held an unsatisfied judgment against G. W. Lukens, father of the appellant, Jim Lukens. On July 5, 1938, the bank caused an execution to be issued against the property of G. W. Lukens and sought to attach wheat stored in the elevators of the Hunter Milling Company, at Pixley, and the Imperial Flour Mills Company, at Medi cine Lodge. The milling companies reported that they had no wheat belonging to G. W. Lukens.
On July 14, 1938, the bank filed its affidavit in garnishment, and summons was issued thereunder directed against the two elevators. The elevators answered that they had no property or credits belonging to G. W. Lukens and that all of the Lukens wheat or credits which they had belonged to Jim Lukens.
On July 25, 1938, the bank took issue with the answers of the garnishees, and on the issué thus made, the matter was presented for trial. Various continuances were secured by the bank until December 9, 1938, when the bank dismissed the action in garnishment and appellant’s wheat was thereupon released.
The instant action for damages followed.
The material allegations of the plaintiff' — in addition to recital of the garnishment proceedings heretofore referred to — may be briefly stated as follows: That for several years he had been engaged in farming near Medicine Lodge; that he had raised and harvested wheat which he had deposited in various elevators in the community; that 2,066 bushels of such wheat were deposited in' the elevator of the Hunter Milling Company at Pixley, under the terms and conditions as shown by the written contracts which were made a part of the petition; that he had deposited 718 bushels of such wheat in the elevator of the Imperial Flour Mills at Medicine Lodge; that to the best of his knowledge the wheat had been shipped out of the elevators within ten days after it was there deposited; that he was the sole owner of the wheat and of the credits arising therefrom; that G. W. Lukens had no right, title, or interest in the wheat; that he was not indebted to the defendant; that on July 6, 1938, he notified the defendant by letter that he was the owner of the wheat and demanded that the wheat be released; that at about the same time he advised the president of the defendant bank, in a letter by his attorney, that he was the sole owner of the wheat; that soon thereafter G. W. Lukens also advised the bank that he was not the owner of the wheat and had no interest in it; that despite its knowledge that he owned the wheat, the bank refused to release it and thereafter instituted the garnishment proceedings; that in spite of his efforts to do so, he was unable to secure dismissal of the garnishment proceedings until December 9, 1938, when the bank dismissed the action; that the defendant acted willfully and maliciously in attaching and tying up the wheat and credits belonging to the plaintiff; that because of the wrongful and malicious acts of the defendant in so doing, he had suffered actual damages as follows: $250 for necessary attorney’s fees; $175 for expenses and loss of time in making trips in connection with the attachment and garnishment action; $85 in connection with a transaction for the purchase of land which he was unable to complete on account of the acts of the defendant complained of; $222.72 loss in the market value of the wheat when sold as compared to its value when it was tied up by the garnishment action; $48.15 in interest which he would not have been obligated to pay had he been able to sell the wheat at the time it was attached. In addition, exemplary or punitive damages were prayed for in the sum of $5,000.
In its answer the bank, after admitting its prosecution of the garnishment proceedings, denied that the execution referred to in the petition was ever levied against the property of the plaintiff, or that the garnishment summons was intended to reach and or did reach any property of the plaintiff. It alleged that the plaintiff made his home with his father, G. W. Lukens, and that the wheat referred to in the petition was raised on land either owned or formerly operated by G. W. Lukens; and that “this defendant believed at that time and still believes that the wheat produced, or at least a part thereof, was the property of G. W. Lukens and that the plaintiff herein and G. W. Lukens were operating said farm in such a manner and with the intent to defraud this defendant and the other creditors of G. W. Lukens.” It denied that it ever stated that it was attempting to tie up the plaintiff’s property or that it would harrass him until he would pay off the debts of G. W. Lukens or that it acted with the intent or purpose of hurting the plaintiff or tying up any of his wheat or the credits thereon. It alleged that the wheat was mortgaged to the Sharon Valley State Bank and that in addition there was an oral mortgage to the People’s Oil and Gas Company and that these two mortgages exceeded the value of the wheat; that the plaintiff or the mortgagees could have secured payment at any time they desired to do so; denied that the plaintiff employed attorneys to obtain the release of the wheat and alleged that if said attorneys were employed they never appeared therein; denied the allegations of the petition relative to the purchase of land, the allegations with reference to interest owed to the Sharon Valley State Bank, and alleged that if they were true they would constitute no basis for damages for the reason that same are specu lative and remote; denied the allegation with reference to the drop in the market price of the wheat and alleged that such change in the market price did not constitute a proper measure of damages and that the defendant was in no way liable in connection therewith; denied that it had wronged or attempted to wrong the plaintiff and “that its entire efforts in the matter were to collect a judgment that it held against G. W. Lukens, the father of this plaintiff, who farmed and operated with the plaintiff and assisted in producing the wheat, the proceeds of which this defendant sought to apply to the satisfaction of a judgment held by it against G. W. Lukens in the sum of approximately $250;” alleged that if the plaintiff suffered any damages, such damage resulted from his own failure to make proper demand and collect whatever amounts were due him from the elevators.
The reply was a general denial of the averments of his answer.
The action was tried before a jury which returned a general verdict for the defendant.
Plaintiff’s motion for a new trial was overruled. Among the alleged errors set out in the motion were erroneous instructions to the jury and failure to give the instructions requested by the plaintiff. The particular instructions complained of here are instructions 2, 4, 5, 6, 7, 8, 9, 10,12, and 13.
We are met at the outset with the contention of the appellee-that the instructions complained of were not objected to at the time and are therefore not reviewable. To this contention appellant makes two replies.
The first is that ev<?n though no objection was made at the time, an appeal may be taken from an erroneous instruction if the appellant had previously requested an instruction embodying a contrary view of the law involved and such request had been refused. The second is that failure to object at the time does not preclude appeal from instructions clearly erroneous in law or outside the issues in the case.
The appellant also contends that there was no fair opportunity to prepare and enter objections to the instructions for the reason that the instructions were not handed to counsel until a few minutes before the court began to read them to the jury, and it was not until that time that plaintiff was informed what instructions had been refused or what instructions would be given. It is urged that all appellant could have done at the time would have been to enter a general objection to the instructions, and that at the hearing upon the motion for a new trial the questions presented relative to the instructions were- fully argued to the court and that every authority here cited was at that time called to the attention of the court.
We do not find any decision of this court which squarely holds that no objection is necessary to make instructions reviewable, provided a contrary instruction on the applicable law had previously been requested and refused. The doctrine, however, has been referred to approvingly in Foley v. Crawford, 125 Kan. 252, 263, 264 Pac. 59; Hack v. City of Pittsburg, 145 Kan. 383, 389, 65 P. 2d 580, and appears sound in principle. It satisfies the essential reason which supports those cases which hold that objection must be made if review of the instructions is to be .had. A request for instructions which embody a statement of law contrary to that which is subsequently given calls the court’s attention definitely to counsel’s view and therefore it cannot be said that the trial court did not have full opportunity to consider the question. This is especially true where the law question involved is specifically presented and argued on the motion for a new trial. The doctrine is clearly enunciated in 1 Randall’s Instructions to Juries 938, §§ 511, 512, and supporting cases there cited. In discussing the need for making objection to erroneous instructions, it is stated in Corpus Juris (64 C. J. 943) that one method is “by calling on the court to charge in a certain way.” (Ft. Worth & D. C. Ry. Co. v. Alcorn, [Tex. Civ. App.], 178 S. W. 833, 836, Headnote ¶ 8.) See, also, as bearing on this question, Voris v. Shotts et al., 20 Ind. App. 220, 223, 50 N. E. 484; Jones et al. v. Hathaway et al., 77 Ind. 14; Packard v. Bergen Neck Ry. Co., 54 N. J. Law, 553; Potts v. Clarke, 20 N. J. Law, 536. We conclude that failure to object to an instruction will not of itself preclude review of the instruction if a requested instruction clearly presenting a contrary statement of law had been refused. This conclusion, as hereinafter applied to the instant situation, makes it unnecessary to discuss appellant’s second contention that even if contrary instructions had not been requested and refused the instructions complained of would be reviewable even in the absence of objections, for the reason that they were not merely inadequate, incomplete, or similarly objectionable, but were fundamentally erroneous.
We now consider the immediate question of whether the instructions requested and refused embody a statement of applicable law contrary to those subsequently given; also, in the same connection, whether the instructions that were given went outside the issues as limited by the evidence. It is unnecessary to discuss all the instructions in detail. The issue here may be reduced to two questions, the answers to which will be determinative. The first one is whether the jury was properly instructed on the matter of actual and compensatory damages, and the second is whether there was any conflict of testimony as to the ownership of the wheat which justified the court in submitting a question of ownership to the jury.
In instruction number five the jury was instructed in substance that if it found from a preponderance of the evidence that the plaintiff deposited the wheat, as alleged, with the milling companies, and that the defendant tied it up by a garnishment proceeding in an action against G. W. Lukens (the father of the appellant), under such circumstances that the garnishees refused payment of such wheat to the plaintiff or refused the plaintiff the right to sell or to realize on the wheat at his own election, and that the wheat was the property of the plaintiff, Jim Lukens, and not the property of G. W. Lukens, and that the defendant bank did what it did do without probable cause and reasonable grounds for believing that the wheat or some part thereof was the property of G. W. Lukens, that in such event the plaintiff would be entitled to recover. In other words, if the bank which tied up the plaintiff’s wheat for five months on the erroneous belief that it was, in part at least, his father’s wheat, the plaintiff could not recover any damages provided the jury believed that the bank had probable cause and reasonable grounds for so believing.
This was clearly an erroneous instruction. It would have been proper as applied to exemplary damages, but it was not good as applied to actual and compensatory damages. The garnishees answered that they held no wheat belonging to G. W. Lukens, nor any credits of his, and the attorneys for Jim Lukens immediately thereafter advised the bank to the same effect. The bank chose to take issue. The result was that plaintiff’s wheat was tied up for more than five months. If the garnishment was wrongful in character and the wheat and credits actually belonged to Jim Lukens and not G. W. Lukens, it is no defense to the claim for actual damages resulting therefrom that the bank had reasonable grounds to think that the wheat belonged to G. W. Lukens. It could only be a defense to a claim for exemplary or punitive damages. It is true that cases under the common law and under the statutes of some states may be cited which support the view that probable cause is a defense even as against actual damages. But that is no longer the rule under many modern statutes. (28 C. J. 542; Waples on Attachment and Garnishment, 2d ed., 689; 5 Am. Jur. 191; Yarborough v. Weaver, 6 Tex. Civ. App. 215, 25 S. W. 468.) And even where the absence of probable cause is requisite for recovery it has been held that “probable cause” must exist as a fact and not merely in the mind of the attaching creditor. (Seattle Crockery Co. v. Haley, 6 Wash. 302, 33 Pac. 650.)
This court has followed the more modern rule which does not recognize probable cause as a sufficient defense to a claim for actual damages for wrongful garnishment. (Jacobs v. Greening, 109 Kan. 674, 202 Pac. 72; Dody v. Bank, 82 Kan. 406, 108 Pac. 804.) It may also be noted that liability on the garnishment bond given under our statute (G. S. 1935, 60-942) is based simply on “wrongful” garnishment, and not on garnishment that is malicious or without probable cause.
The conclusion heretofore stated is not vitiated by the fact that the petition alleged that the actions of the defendant were willful and malicious in character. Failure to substantiate allegations that the actions were willful and malicious will, of course, defeat a claim for punitive damages, but will not defeat a claim for actual damages where it is shown that the garnishment was wrongful. (Jacobs v. Greening, supra; Carothers v. McIlhenny Co., 63 Tex. 138, 140.)
We think that the requested instructions embodied, with reasonable definiteness, the distinction we have been discussing. Requested instruction number one contained portions which perhaps did not need to be included, but the last paragraph did squarely present the proposition that if the defendant did deprive the plaintiff of his right to sell and dispose of the wheat in the manner set out, then the plaintiff would be entitled to recover. This requested instruction was followed by other instructions relative to punitive or exemplary damages, thus clearly indicating a distinction between the right to recover for actual and the right to recover for punitive or exemplary damages. The first requested instruction properly omitted reference to probable cause or to willful or malicious action, while such factors were properly included in the other requested instructions.
We also conclude after a careful and painstaking examination of the record before us, that the court erred in submitting to the jury any question as to the ownership of the wheat. There was not a word of testimony offered which indicated that G. W. Lukens, the father of the appellant, had any ownership or interest whatever in the wheat, or that the wheat belonged to anybody but Jim Lukens. The bank offered no testimony of any sort in support of its affidavit in which it took issue with the garnishees on the question of ownership, or in support of the statements in its answer in this action that it “believed at that time and still believes that the wheat produced or at least a part thereof was the property of G. W. Lukens and that the plaintiff herein and G. W. Lukens were operating said farm in such a manner and with the intent to defraud this defendant and the other creditors of G. W. Lukens.” Not only that, but the president of the bank testified that the bank treated the wheat as George Lukens’ wheat after the elevator man had said that it was not George Lukens’ wheat and after he had received the letter written by Jim Lukens’ attorneys. This was in line with his statement to George Lukens that he “would stay after him until he or somebody else paid it.” In the face of uncontroverted testimony that Jim Lukens was the sole owner of the wheat, the court in various instructions submitted to the jury the question of whether G. W. Lukens or Jim Lukens owned the wheat and whether the bank had probable cause or reason to believe that he so owned it. More than that, such instructions were given despite the request of the plaintiff for an instruction that there had been no evidence introduced in support of the defendant’s denial that the plaintiff was the owner of the wheat.
It further appears from the record that not only on the question of the ownership of the wheat but also on other matters the court simply copied the substance of the pleadings instead of outlining the issues — within the -pleadings — as limited by the evidence. It called the attention of the jury to various allegations of the answer with reference to which no evidence whatever had been presented. This was true, for instance, with reference to the defendant’s unsupported allegations that the appellant and his father were seeking to defraud the appellee and other creditors; that the People’s Oil and Gas Company held an oral mortgage on the wheat; and that the plaintiff had made no demand upon the elevators. It can only tend to confuse the jury to include in the instructions allegations taken from the pleadings as to which no supporting evidence has been offered. (Stevens v. Maxwell, 65 Kan. 835, 70 Pac. 872; Moore v. Owens, 143 Kan. 620, 56 P. 2d 86.)
The bank chose to take issue with the garnishees on the question of ownership of the wheat. The record is clear that it was determined to hold the wheat in question for payment of the father’s debt. It kept the proceeds tied up for over five months. On the trial it offered no evidence whatever in support either of its allegation or its expressed belief that the wheat belonged to the father. The evidence that it was the son’s wheat was in no way controverted. On this fact and on all the facts disclosed by the record, only one conclusion can be reached and that is that the plaintiff was wrongfully deprived of the proceeds from the sale of his wheat as a result of the garnishment proceedings, and that the only question that should have been submitted to the jury was the amount of damages to be awarded.
The judgment will be reversed and the case remanded with instructions to grant a new trial on the sole issue of the amount of damages to which the plaintiff is entitled, the question to be submitted under proper instructions as to the necessary elements to be considered in support of claims for actual or for punitive damages. It is so ordered. | [
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|
The opinion of the court was delivered by
Dawson, C. J.:
This is an appeal by hotel owners from a judgment denying a temporary injunction against the operator of a dance hall located near the hotel and which was so noisily conducted in the late hours of. the night that the hotel’s guests could not sleep and in consequence the hotel was losing patronage.
The hotel concerned is the Hamilton, which was the leading hostelry in Wichita for a generation. It is situated at the northeast corner of the intersection of Main and English streets. The dance hall is on the second floor of a business building situated southeast of the hotel at a distance of about seventy feet. Both structures are situated in a “light industrial” district, as classified in the city’s zoning ordinance.
The defendant, Glenn Masters, is the lessee of the dance hall. He operates it under a permit issued by the city government. He also sells beer on the premises, as licensed by public authority.
The dance hall runs until midnight four nights each week, and to one o’clock a. m. on Friday and Saturday nights. The dance music is of the “jazz” variety, produced by the use of trombones, trumpets, saxophones, drums and cymbals. A nickelodeon furnishes music while the orchestra is resting, and a vocalist who carols through a megaphone or public address system is also employed.
The defendant insurance company is impleaded in the action as owner of the dance-hall property. It fitted up the second story of its business building for a dance hall at considerable expense because there was apparently no other way it could be made to produce an income.
Issues were joined by suitable pleadings, and on plaintiff’s application for a temporary injunction evidence was heard at length, at the conclusion of which the trial court made findings of fact and conclusions of law, which, in part, read:
"Findings of the Court
“10. The said dance hall and bar is operated from 9:00 to 12 p. m., except on Fridays and Saturdays, when the hours are from 9:00 to 12:00 p.m. for the dance and bar, and the dance alone to 1:00 a. m. . . .
"11. The defendant Masters, in the operation of said dance hall, employs various bands and orchestras, some of which are of colored personnel, for the playing of dance music, which orchestras and bands have from four to eight pieces, consisting of slide trombones, trumpets, saxophones, drums, cymbals, etc. The usual type of music played is what is commonly known as jazz music. When said music is not being played by the band or orchestra, defendant has played an electrical music device known as a nickelodeon, which emits sounds not as loud as those from the orchestra.
“12. During the dances conducted and operated by the defendant Masters, the windows of the dance hall are open, especially during warm weather, and from said dance hall the music from the orchestra and from the nickelodeon disturbs the partons of the hotel and of the Kasenberg apartments, and the plaintiffs have received complaints from their guests and some of the guests have left the hotel for other lodgings, due to the noise and disturbance from the dance hall.
“13. Unbeknown to the defendants, patrons of said dance hall have occasionally spiked soft drinks with alcohol and have been seen drinking whisky brought upon the premises by said patrons, but defendant Masters refuses admittance to his dance hall of intoxicated persons.
“15. Defendant Masters has in the past employed a vocalist who sings through a megaphone or public address system, which singing is of such volume of tone as to prevent plaintiffs and their guests from sleep during the hours of 9 to 12 p. m. and 1 a. m.
“16. It is the opinion of the police department, as expressed by the dance-hall supervisor and other witnesses in this case, that the said dance hall is properly operated and that said dance hall is operated in substantially the same manner as other dance halls supervised by the city.
“17. The defendant Masters employs two persons whose business it is to keep order at the dance hall and to see that no one violates the law by bringing in intoxicating liquor. These two persons hold special commissions as deputy sheriffs, and have power to make arrests.
“18. Market street, on which the dance hall building is located, and Main street, upon which the hotel fronts, are main thoroughfares running directly through the principal business part of the city. . . .
“Conclusions of Law
“1. The dance hall now being operated by the defendant Masters is being operated in a lawful manner and does not constitute a nuisance.
“2. The defendant, The Prudential Insurance Company of America, has a lawful right to rent its property for the purpose of a public dance.
“3. Since the plaintiffs’ hotel is located not only in a business district, but in a business district zoned as a light industrial district, persons occupying the hotel for sleeping purposes have no right to expect the quiet which they would have if the hotel were located in a zone confined to residences, apartment houses, rooming houses and hotels.
“4. The injunction should be denied.”
Judgment was entered accordingly and plaintiffs appeal, assigning various errors, but mainly against the net result.
It will be noted that the trial court found that the music of the orchestra, and from the nickelodeon and the singing of the vocalist through a megaphone or "public address system,” especially during warm weather when the windows of the dance hall were open, did disturb the patrons of the hotel, and did prevent plaintiffs and their guests from sleep until midnight and sometimes until 1 o’clock a. m.; and that some of plaintiffs’ guests had left the hotel for other lodgings “due to the noise and disturbance from the dance hall.”
How, then, can the trial court’s conclusions of law and judgment denying injunctive relief to plaintiffs be sustained?
It is argued in behalf of appellees that a dance hall is not a nuisance per se. Quite so. But like many another legitimate business it may be so conducted as to constitute either a public or private nuisance. Instances can readily be gleaned from our own reports where a perfectly legitimate and useful business has been adjudged to be a nuisance and suppressed by injunction — because of the manner in which it was being conducted, or on account of its unsuitable location, or because of some aggravating circumstance of which the public, or some private individual peculiarly affected, had a right to complain. Typical of these were the Junction City brick kiln, Fogarty v. Pressed Brick Co., 50 Kan. 478, 31 Pac. 1052; the Kansas City cancer hospital, Stotler v. Rochelle, 83 Kan. 86, 109 Pac. 788; the Topeka private lunatic asylum, State v. Lindsay, 85 Kan. 79, 116 Pac. 207; one of several oil-refining pollution cases, Helms v. Oil Co., 102 Kan. 164, 169 Pac. 208; the Harper City horse and mule market, Winbigler v. Clift, 102 Kan. 858, 172 Pac. 537; the Rosedale rock crusher, Gilbert v. Construction Co., 110 Kan. 298, 203 Pac. 1113; the Eureka dog kennel, The State, ex rel., v. Stillwell, 114 Kan. 808, 220 Pac. 1058; the El Dorado and Wellington funeral homes, Leland v. Turner, 117 Kan. 294, 230 Pac. 1061, and Hatcher v. Hitchcock, 129 Kan. 88, 281 Pac. 869; the Leavenworth creamery station, Alster v. Allen, 141 Kan. 661, 42 P. 2d 969; and the El Dorado sewage-disposal case, Jeakins v. City of El Dorado, 143 Kan. 206, 53 P. 2d 798.
In Alster v. Allen, supra, this court affirmed a judgment enjoining the operation of a creamery station because as conducted in the nighttime it disturbed the sleep of some near-by residents of what was not an exclusively residential district. We held :
“Although the operation of a creamery station is inherently a lawful and useful business, nevertheless by reason of the manner in which it is conducted or the place in which it is located it may be a nuisance to the residents of the immediate vicinity, and it may be enjoined as a nuisance when the noises of handling milk cans, the grinding of trucks, and the voices of its employees at unseasonable hours before daylight disturb the plaintiffs so that they cannot sleep.” (Syl. ¶[ 2.)
This rule is in full accord with lawbook doctrine. In 46 C. J. 699, it is said:
“A dance hall is not a nuisance. It is not classified as a nuisance per se, and it is not per se a public nuisance. But a dance hall may become a nuisance by reason of surrounding circumstances, as for instance, by reason of the character of the locality in which it is operated, entitling an adjoining owner or occupant to injunctive relief, although such hall or pavilion is orderly and well regulated as a place of amusement. It may become a nuisance by the manner in which it is conducted. . . . Whether or not it is a nuisance is a question of fact. . . .”
See, also, 20 R. C. L. 416 et seq.; 2 Cooley’s Blackstone, 3d ed., Book III, 18.
In Feeney v. Bartoldo, (N. J. Ch.) 30 Atl. 1101, it was held that the playing of a piano, accompanied by dancing and loud noises in a saloon until 10 and 11 o’clock at night, to such an extent that residents of the neighborhood were prevented from sleeping, was a nuisance and warranted the issuance of a preliminary injunction restraining the use of the piano after 9 o’clock.
In Bielecki v. City of Port Arthur, (Tex. Civ. App.) 2 S. W. 2d 1001, the plaintiff who conducted a dance hall sought to enjoin the city from interfering with it. The supreme court affirmed the judgment denying the injunction, and in the course of the opinion it was said:
“Dance halls, as such, have not been prolific of litigation. The decisions seem to be that in itself a dance hall is not a nuisance, but can acquire that character from the locality in which it is operated. ... in Com. v. Cincinnati, etc., 139 Ky. 429, 112 S. W. 613, 18 L. R. A., n. s., 699, Ann. Cas. 1912B, 427, it was held that a dance hall may become a nuisance if not conducted with proper decorum. The court said:
“ ‘While it is true that dancing is frequently an innocent amusement, and drinking may be engaged in without becoming a nuisance, yet if the dancing and drinking ai’e accompanied by swearing, and being drunk, making loud noises, and otherwise misbehaving, there can be no doubt that such acts will constitute a nuisance.’
“Circumstances making dance halls nuisances have been discussed in the following cases taken from 19 A. L. R. 1443; Cahm v. State, (1895) 110 Ala. 56, 20 So. 380; Beard v. State, (1889) 71 Md. 275, 17 A. 1044, 4 L. R. A. 675, 17 Am. St. Rep. 536; 8 Am. Crim. Rep. 173; Com. v. Cardoze, (1875) 119 Mass. 210; Brown v. State, (1877) 2 Tex. App. 189; Callaghan v. State, (1896) 36 Tex. Cr. R. 536, 38 S. W. 188. Illustrating the judicial trend, we quote as follows from Feeney v. Bartoldo, (N. J. Ch.) 30 A. 1101:
“ ‘That the defendant has a right to the ordinary and proper use of a piano in his saloon, and that his customers have a right to dance to the music^ as expressed by such instrument, there can be no doubt. There is no distinction between citizens in this respect. Every citizen is permitted to possess himself of the instrument, and also to enjoy a dance. But it is equally well settled that every citizen, in the exercise of his individual rights in the use of his property, is limited to such use as will not interfere with the reasonable rights of others in the enjoyment of their property.’ ” (p. 105.)
In Grantham v. Gibson, 41 Wash. 125, 83 Pac. 14, 3 L. R. A., n. s., 447, the action was by the lessee of a hotel and rooming house to enjoin the operation of a “tonophone” and “orchestrion,” which were mechanical musical instruments which defendants kept running in connection with their shooting gallery. The hotel was first in point of time. Plaintiff alleged, and his evidence was held sufficient to prove, that the operation of those musical instruments had driven away some fourteen of his hotel patrons, and that if not abated the remainder of his patrons would leave and prevent him from obtaining others, to the ruin of his theretofore profitable business. The order of the trial court granting the temporary injunction prayed for was affirmed.
See, also, Edmunds et al. v. Duff et al., 280 Pa. St. 355, 124 Atl. 489, 33 A. L. R. and note; Stodder v. Rosen Talking Machine Co., 247 Mass. 60, 135 N. E. 251; Tortorella v. H. Traiser & Co., 284 Mass. 497, 188 N. E. 254, 90 A. L. R. 1203 and note; also, notes in 19 A. L. R. 1441; 23 Id. 1407; 28 Id. 1173; and 33 Id. 719.
The sum of all the learning expounded in the foregoing cases, which could be indefinitely multiplied, is that any and every business, however lawful, must be conducted with due regard to the rights of others. (Restatement, Torts, §§ 825-831.) The trial court in the instant case had the right idea when, at the conclusion of the evidence and after ordering briefs to be submitted with suggested findings of fact, it said:
“Cut down your orchestra in the meantime, Mr. Adams, and don’t make so much noise.”
It is argued in support of the judgment that the plaintiff’s hotel and defendants’ dance hall are located in a “light industrial” district, and therefore plaintiffs should not expect the peace and quietude of an exclusively residential district. That may be conceded. However, this state and this court were pioneers in giving sanction and countenance to the zoning of cities to secure their harmonious future development. See “The Police Power and Esthetic Zoning,” 3 Kan. Bar Journal (1937) 215-223. Neither the Kan sas legislature nor its judiciary has intimated that the adoption of a zoning ordinance and the zoning of a city into industrial, residential and other classified districts would justify the destruction of existing and established lines of business. (Armourdale State Bank v. Kansas City, 131 Kan. 419, 422, 292 Pac. 745.) The Hamilton Hotel long antedated the first zoning ordinance of Wichita; and it seems altogether inequitable that its legitimate business may be destroyed because a city zoning ordinance has authorized a dance hall in the neighborhood, and that it may be conducted with so much din of instrumental and mechanical music and strident singing through a megaphone at unseasonable hours that the guests of the hotel cannot sleep, to the consequent ruination of the business of the hotel.
This court holds that on the trial court’s findings of fact the plaintiffs were entitled to substantial relief. The judgment will therefore be reversed and the cause remanded with instructions to grant to plaintiffs a reasonable measure of relief, which, if practicable, need not extend to the absolute suppression of the dance hall if some less drastic alleviation of the situation can be effected with due regard to the rights of plaintiffs. It is so ordered. | [
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The opinion of the court was delivered by
Wedell, J.:
This was an action against a city to recover specified sums of money alleged to constitute separate balances due as salaries for separate and distinct employments which covered a period of years, and for interest on the respective balances from the dates the respective employments terminated. Plaintiff prevailed, and the city has appealed.
Plaintiff attempted in his petition to state a single cause of action for the total amount due under three separate employments, on the theory of an open account. The petition, however, in substance alleged: Plaintiff was employed in the engineering department of Kansas City, Kan., the city having a population of more than 100,000, during a total period beginning December 14, 1933, and ending June 16, 1938; defendant became and remains indebted to him on an open account for balances due for salary as a transitman, chainman and draftsman during the total period from December 14, 1933, to June 16, 1938, in the sum of $2,881.85, together with interest at six percent per annum from the dates due, as shown by an itemized statement attached to the petition. He was employed as transitman from December 14, 1933, until December 26, 1934; his salary as a transitman during that period was fixed by ordinance No. 24554, at $1,800 per annum; he was employed as chainman from December 26, 1934, until' April 23, 1935; his salary as a chain-man was fixed by ordinances Nos. 27151 and 27563 at $100 per month and $1,200 per annum, respectively; he was employed as a draftsman from April 23, 1935, until June 16, 1938; his salary as draftsman for that period was fixed by ordinances Nos. 27709 and 28120 at $175 per month and $2,100 per annum, respectively; during the total period of employment defendant failed and neglected to pay the total amount 'of salary due under the ordinances then in force and applicable to the employment; the balances of salary accrued and owing on the open account were and are the amounts disclosed by an itemized statement attached to the petition. The itemized statement is true and correct; on August 17, 1938, he filed with the city a verified and itemized claim and statement of that account, which claim is attached to the petition. Defendant has failed, neglected and refused to allow the claim, and has taken no action thereon (the itemized statement disclosed the net balance claimed to be due at the end of each separate and distinct employment and the date the respective balances were claimed to have been due); plaintiff was entitled to judgment in the total sum of $2,881.85, with interest thereon at the rate of six percent per annum from dates due, as shown by the itemized statement.
Copies of the ordinances pleaded were attached to the petition. In the itemized statement were set forth the following facts: The exact salary claimed to be due under the respective ordinances for each kind of employment; the weeks or months, if any, during which he received no pay; the weekly or semimonthly payments received; the dates of every payment; the exact amounts he claimed as balances due at the end of each week or semimonthly period; the total amount received during the separate employment periods; and the dates the respective employments terminated, and the balance for each employment claimed to be due on those dates.
The period stated during which he served as a transitman was from December 14, 1933, to December 26, 1934. The monthly salary he claimed to be entitled to receive under the applicable ordinance during the period he served as a transitman was $150. The balance he claimed to be due and unpaid at the end of that employment, viz., on December 26, 1934, was $1,417.60.-
The period during which he claimed to have served as a chain-man was from December 26, 1934, to April 23, 1935. The itemized statement for that period was predicated upon his right to receive, as a chainman, under ordinances pleaded, $100 per month. The balance claimed to be due at the end of the period he served as chainman was $28.
The period during which he served as draftsman, according to the itemized statement, was from April 23, 1935, to June 16, 1938. The itemized statement was predicated upon the theory he was entitled to receive, under the ordinances pleaded, the sum of $175 per month. For that period of employment he claimed a balance due in the sum of $1,436.25.
Ordinance No. 24554, relied upon by plaintiff as entitling him to receive $150 per month as a transitman, was in effect at the time he began to work in that capacity. That ordinance authorized the city to employ not to exceed three transitmen, whose salaries should not exceed the sum of $1,800 per annum.
Ordinances Nos. 27151 and 27563, upon which plaintiff relied for recovery of the balance due him as a chainman, became effective upon the respective dates of December 14, 1933, and January 12, 1935. Ordinance No. 27151 authorized the employment of “not to exceed twelve chainmen, at $100 per month.” Ordinance No. 27563, authorizing the employment of chainmen, did not fix the number of chainmen who might be employed, but simply contained the following provision for their employment — -“chainmen whose salaries shall not exceed the sum of $1,200 per annum.”
Ordinances Nos. 27709 and 28120, upon which plaintiff relied for recovery of balances due him as a draftsman, became effective upon the respective dates of April 24, 1935, and January 8, 1936. Under the first of those ordinances the city was authorized to employ only two draftsmen at wages which were fixed at $175 per month, and not more than ten assistant draftsmen at wages which were fixed at $125 per month. Under ordinance No. 28120 the city was authorized to employ not to exceed five draftsmen, and the salary of each draftsman was not to exceed $2,100 per annum. This last ordinance also authorized the employment of not to exceed five' assistant draftsmen at a salary not to exceed $1,500 per annum for each assistant draftsman.
Defendant lodged a general demurrer to the petition, which was overruled. Certain allegations in defendant’s amended answer, including the plea that the items of $1,417.60 and $28 were each barred by the three-year statute of limitations, were stricken from defendant’s answer on motion of the plaintiff. Defendant filed an amended answer and later a second amended answer. The latter answer contained a general denial of liability, and further, in substance, alleged: Plaintiff was not employed for any specific period and was at liberty to discontinue his services at any time if he deemed the wages paid insufficient; plaintiff elected to remain in defendant’s employ during the respective periods mentioned, and elected to receive the compensation paid, without protest concerning its insufficiency; during his employment no demand had ever been made for the compensation he now sought; plaintiff had been paid in full for all amounts due him as an employee of the defendant.
Plaintiff’s reply contained a general denial of all new matter pleaded in the second amended answer. At the trial the parties stipulated concerning certain facts. The stipulation was supplemented by additional documentary evidence introduced by defendant and by oral testimony of both parties. The action was tried by the court without a jury. The stipulated facts were incorporated in the findings made by the court. Defendant moved for certain findings and conclusions of law based upon its theory of the lawsuit. The motion was overruled. Defendant moved to set aside the findings of fact and conclusions of law made by the court. The motion was overruled. Defendant complains of all adverse rulings.
It will serve no useful purpose to incorporate herein the stipulated facts or the quite lengthy findings of fact and conclusions of law. It will be sufficient to discuss the theories upon which the conclusions of law were made. If those theories are correct, the judgment must stand. If they are not correct, the judgment must fall.
The principal theories upon which the judgment rests are that this was an action upon an open and continuous account, and that the respective ordinances fixed the salary or wages of plaintiff at the rate of $150 per month as a transitman, $100 per month as a chairman, and $175 per month as a draftsman.
Was this an action upon an open account? The allegation in the petition that defendant became indebted to plaintiff upon an open account, of course, did not determine the nature of the action. It should be noted at the outset this was not an action to - recover a balance due under a single hiring. Here there were three separate and distinct employments. Each employment, under the undisputed evidence, was the result of a separate and distinct appointment. The salary or wages differed under each employment and was authorized by separate and distinct ordinances. Nor was this an action to recover a balance due upon .a single contract of hiring to undertake and complete a specific piece of work. Nor was it an action to recover a balance due for work where time for payment was not fixed. The petition, including the itemized statement, clearly indicates an attempt to recover three separate alleged balances due under three separate and distinct employments, at different wages or salaries, and under separate ordinances. The ordinances either authorized the payment of an amount as annual salary which could not be exceeded, and provided for semimonthly payments, or set a monthly or weekly wage. The three separate and distinct balances alleged to be due at the termination of the respective employments were: balance due as transitman December 26, 1934, the sum of $1,417.60; balance due as chainman April 23, 1935, the sum of $28; balance due as draftsman June 16, 1938, the sum of $1,436.25. Interest at six percent per annum was sought and obtained from the date of the termination of each of the separate and distinct employments. The ordinance under which plaintiff was first employed as a transitman required his salary to be paid in equal semimonthly installments. It was so paid, except during a period of about eight months, during which he did not work. During the separate periods he worked as chainman and draftsman his salary (or wages) was paid weekly. The total balance claimed to be due under each of the respective employments was comprised of balances alleged to be due at the end of each weekly or semimonthly period. This clearly was not an action upon an open account. (Elevator Co. v. Railway Co., 98 Kan. 478, 158 Pac. 859; Spencer v. Sowers, 118 Kan. 259, 234 Pac. 972.)
Defendant contends, since this was not an action upon an open account, the three-year statute of limitations barred all claims more than three years old when this action was commenced and that those claims are barred, whether the ordinances then in effect provided only for salary or wages not to exceed a specified sum or whether they provided for a fixed salary. The statute of limitations, of course, began to run on the daté his cause of action accrued.
When did this cause of action accrue? Plaintiff was not an officer of the city, but was merely a subordinate employee. The evidence revealed he had no contract, express or implied, for any definite period of days, weeks, months or years. The ordinances which specified the monthly or annual pay of a mere employee did not constitute a contract to retain plaintiff for any definite period. Plaintiff had the right to quit his employment at any time and, had he discontinued his services at any time, the city would have had no right of action against him for breach of contract. On the other hand, plaintiff, a mere appointive employee, might have been removed at the discretion of the city commissioners at any time, with or without cause. (G. S. 1935, 13-2103.) Had he been hired by the month or year his cause of action would have accrued at the end of each month or year and the statute would have begun to run at that time. (37 G. J. 822, Limitations of Actions, § 175.) Plaintiff was not hired by the month or year or for any other definite period. His cause of action for balances due, if any, accrued when each install ment payment became due. Where the ordinances did not specify the exact time for payment, plaintiff’s cause of action for an alleged balance accrued on each date payment was made in the alleged insufficient amount. He was paid weekly under the first and second employments, during such time as he actually worked, and weekly during the first portion of his third employment. During the remainder of his third employment, he was paid semimonthly.
G. S. 1935, 60-306, second, provides: ■
“Civil actions, other than for the recovery of real property, can only be brought within the following^ periods, after the cause of action shall have accrued, and not afterwards:
“Second. Within three years: An action upon contract, not in writing, express or implied; an action upon a liability created by statute, other than a forfeiture or penalty.”
This action was not commenced until August 25, 1938. It follows the action was barred as to salaries claimed to be due plaintiff as transitaran and chainman. The action was likewise barred as to wages or salaries claimed as draftsman which became due prior to August 25, 1935.
Is plaintiff entitled to recover the sum of $175 per month claimed to be due him as an alleged draftsman after August 25, 1935? The last ordinance passed during that period was ordinance No. 28120, which became effective January 8, -1936. We shall first consider whether the plaintiff was entitled to recover $175 per month between August 25, 1935, and January 8, 1936, and will then consider his claim for the period after January 8, 1936. The parties stipulated that the five ordinances which have been mentioned were in full force and effect at all times alleged in the petition. They also stipulated that on April 23, 1935, plaintiff was transferred to the position of draftsman and that he accepted the position and worked for the city under the classification of draftsman, and that during all of the period from April 23, 1935, until June 16, 1938, ordinances Nos. 27709 and 28120 were successively in full force and effect. They further stipulated plaintiff was employed in the respective and successive positions alleged in the petition and for the periods of time alleged in each successive position.
The uncontradicted evidence disclosed plaintiff began his services under the classification of draftsman, but as an assistant draftsman, and was paid as an assistant draftsman prior to the effective date of ordinance No. 27709 and while ordinance No. 27563 was still in effect. The latter ordinance, as previously stated, did not definitely fix the number of draftsmen the city might employ, nor did it definitely fix the salary of a draftsman or assistant draftsman. It provided only that the salary of a draftsman should not exceed $2,100 per annum, and that the salary of an assistant draftsman should not exceed the sum of $1,500 per annum. The next ordinance, namely, ordinance No. 27709, which became effective April 24, 1935, definitely restricted the employment of draftsmen to the number of two, and at salaries of $175 per month. It provided for ten assistant draftsmen at $125 per month. The undisputed record discloses there were two draftsmen, other than plaintiff, employed by the city at $175 per month while ordinance No. 27709 was in effect and the city was prohibited from employing additional draftsmen at $175 per month. Plaintiff was working under ordinances enacted by the city in conformity with statutes designed to enable the city to meet its relief problem. The relief records disclosed plaintiff was never listed as a draftsman until the last half of November, 1935. Prior thereto he was always listed as an assistant draftsman. Moreover, during the entire period between August 25, 1935, and December 19, 1935, inclusive, the latter date being the last date of payment under ordinance No. 27709, plaintiff did not receive less than $125 per month. He would not have been entitled to receive more than $125 per month as an assistant draftsman under ordinance No. 27563, which was in effect at the time he began his services as assistant draftsman, and he would not have been entitled to receive more than $125 per month as assistant draftsman under the following ordinance, No. 27709. It is true plaintiff complained at times that he was not receiving $175 per month, but at no time complained to the city commissioners or made demand upon the city for pay in addition to that which he was receiving and accepting at the regular intervals for payment. He was not an officer of the city and could have been discharged by the city commissioners at any time, with or without cause. Decisions relating to statutory city officers who are employed for a definite term and at a fixed salary are not controlling in this case. His reason for not making the demand upon the city was that he was afraid of jeopardizing his job. Had the city known he was claiming the salary of a draftsman, he probably would have lost his job, as the city had no authority to hire three draftsmen at $175 per month after April 24, 1935. Plaintiff made no effort to show the other two men were not employed as draftsmen at $175 per month, nor did he prove he had a contract of employment at $175 per month. He accepted the pay he received and, under all the circumstances, his evidence failed to establish a cause of action for more. (43 C. J. 902, Municipal Corporations, § 1652.) Our attention is directed to the fact plaintiff received pay at the rate of $135 per month on the last three semimonthly payment dates while ordinance No. 27709 was still in effect. Before plaintiff was entitled to recover as a draftsman for that period, he was likewise obliged to prove the city was authorized to employ another draftsman. That he did not do. Moreover, we may pause to note that plaintiff was employed under relief ordinances and that he cannot obtain satisfaction out of the general fund of the city for such employment, but is obliged to look to the proceeds from the sale of bonds issued for relief purposes. He was repeatedly advised funds from that source were not available for additional pay, and there was no evidence such funds were available or that under proper management by the city they should have been available.
This brings us to the last period during which plaintiff claimed to be employed as a draftsman. That period extends from the effective date of ordinance No. 28120, which was January 8, 1936, to the end of his services, on January 16, 1938. Here again we pause to note that plaintiff was not a statutory officer of the city, but merely a subordinate employee. (Bassler v. Gordon, 122 Kan. 692, 694, 253 Pac. 228.) The specific ordinance under which plaintiff claims compensation for this particular period did not definitely fix the plaintiff’s compensation. It merely authorized the city to employ five draftsmen at salaries not to exceed $2,100 per annum and five assistant draftsmen at salaries not to exceed $1,500 per annum. During this entire period plaintiff was at all times paid semimonthly, and less than $175 per month. Under that ordinance, assuming plaintiff was actually a draftsman and not an assistant draftsman, the city was not obliged to pay him the maximum of $175 per month. It was only denied the right to pay him more than that amount. Under such an ordinance, in the absence of a contract with the city for a definite salary, the city had the right to fix plaintiff’s pay at less than that amount. (Village of Lombard v. Anderson, 280 111. App. 283, 286, 287.) Plaintiff had no contract for any definite term or salary. His action for recovery necessarily was predicated on a breach of the implied contract of the city to pay him the compensation provided by the ordinance. (Bassler v. Gordon, supra, p. 693.) He proved no breach of that implied contract. It has been held the acceptance of the amounts paid under the implied contract of such an ordinance, without protest, constitutes an estoppel to claim more than has been accepted. (Village of Lombard v. Anderson, supra, p. 287.) We need, however, not rest the decision on the doctrine of estoppel. Plaintiff’s claim must fail for another reason. Where a contract does not fix the actual compensation to be paid, the employee will be allowed a fair wage for the services rendered, (39 C. J. 171.) Plaintiff made no effort to prove the amounts he had received and accepted did not constitute fair compensation for the services rendered.
The trial court should have made findings of facts and conclusions of law in accordance with the views herein expressed, which views are in substantial accord with the findings of fact and conclusions of law requested by the defendant.
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The opinion of the court was delivered by
Dawson, C. J.:
This was an action to recover on an executor’s bond. Defendants demurred to plaintiff’s petition, challenging the court’s jurisdiction, and invoking the principle of res judicata and the statute of limitations. This demurrer was sustained.
The material facts developed by the pleadings with exhibits attached were these: On May 13, 1930, John Dolezal of Republic county died testate. Two paragraphs of his will read:
“Fourth: In case my step-daughter, Anna Kozak, commonly known and called Anna Dolezal, shall survive me, then and in that case, I give, bequeath and devise all the rest, residue and remainder of my property and effects to Victor Veroda as trustee for said Anna Kozak, he to receive, hold, handle, manage and control the same for her and her benefit during her lifetime, and whatever remains in his hands at her death to be and constitute a part of her estate. Said Victor Veroda, trustee, shall have and is hereby given full and complete power and authority to handle, manage, control, collect in, invest and re-invest, sell, dispose of, and convey all property and effects coming to his hands hereunder in such manner, upon such terms and conditions as in his judgment shall be proper and the best interests of said Anna Kozak. (Italics ours.)
"Said trustee shall have power and it is made his duty to use the property and effects coming to his hands as such trustee for the care, support and proper maintenance of said Anna Kozak, he being given power hereby to employ such person or persons as he deems proper for such purpose and to pay such sum ■or sums for services so rendered as in his judgment are fair and proper, and to provide and pay for all other necessities and comforts of life for said Anna Kozak within the limits of the means and property coming to his hands under this will.
“Sixth: I hereby nominate and appoint Victor Veroda of Cuba, Kan., as executor of this will and hereby give unto him full power and authority to do and perform all and every act and thing necessary to cany this will into effect.” (Italics ours.)
On May 20, 1930, Dolezal’s will was admitted to probate, and on the same day Victor Veroda filed his bond as executor with the defendants in this action, Krhounek and Sterba, as sureties. This bond was approved forthwith.
Some four years and three months later, on September 8, 1934, Veroda, as executor, filed in the probate court his final account. This was duly approved by an order of court, which contained a finding as follows:
“The court further finds, orders and decrees that the estate had been fully administered and that all of the debts of deceased have been paid in full.”
The judgment roll also recited that final publication notice had been made and proof thereof filed, and that upon Veroda, as executor, taking a receipt from himself, as trustee under the will, and filing the same in court, he, the executor, would be discharged and his bondsmen released.
On the same day, September 8, 1934, the executor filed in court the required receipt, as follows:
"in the. probate court.
“In the Matter of the Estate of John Dolezal, deceased.
“Received this 8th day of September, 1934, of Victor Veroda as executor of the estate of said decedent, two hundred and fifty-two & 74/100 dollars. In full payment of my claim against said estate, allowed by said court-, 19-.
“For balance on hand for distribution as per final a/c.
“Victor Veroda, Trustee of and for Anna Kozak.
The probate court record concluded thus:
“Whereupon, comes Victor Veroda, executor, and files herein the receipts of said Victor Veroda, trustee for the sum of money due him, as shown by the final report of said administrator, as heretofore ordered, and he is hereby discharged as administrator and his bondsmen released from further liability, this Sth day of September, 1934.”
On January 5, 1938, Anna Kozak died, testate, naming Victor Veroda as her executor. The terms of her will are of no present concern. Veroda had become a resident of Texas, and N. J. Ward was appointed and qualified as administrator with the will annexed, and in that capacity he brought this action on February 6, 1939— 4 years, 4 months, 28 days after the date of the order of the probate court approving the executor’s final account, discharging him as executor and releasing his bondsmen.
In plaintiff’s petition the facts summarized above are pleaded; also that Victor Veroda had not accounted to the probate court for all the assets and moneys received by him as executor of the Dolezal estate, that he had received personal assets of that estate to the amount of $5,300, “consisting largely of money on deposit”; that an item of $350 for his services, which he had listed and charged in his final account, was “an improper one and should not be allowed”; that during the years of his executorship of the Dolezal estate he “had handled the estate without order of court"; that since the death of Anna Kozak parties properly concerned had made demands for an accounting, and the probate court had likewise made such demand; and that—
“The defendant, Frank Sterba (one of the sureties of Veroda, executor) is the secretary of and the officer in control of the records, files and assets of the Associated Lodges of Cuba, Kan., which is an association of a number of fraternal organizations located at Cuba, Kan., and which owns a building and other property in Cuba, Kan., and which issued certificates of indebtedness in order to obtain money to construct such building and obtain such property.
“The said Victor Veroda, while acting as executor under the said will of John Dolezal, illegally invested a large portion of the assets entrusted to him into certificates issued by such association of lodges, and at the death of the said Anna Kozak held several of such certificates, and which are of little value. The said Victor Veroda and the defendants Sterba and Krhounek were all interested in said lodges and in the association thereof, and in the project of acquiring such building, and in order to do so, it was necessary to raise funds; and the three mentioned, together with the others, did work together in the acquiring of such property and in the acquiring of funds therefor, and all participated in the acts of the said Victor Veroda in the making of the investments of the assets belonging to said estate in the said certificates issued by the Associated Lodges.”
Plaintiff’s petition further alleged that Veroda had illegally invested assets of the estate of Dolezal in the aforesaid certificates of indebtedness; and that after his purported discharge as executor and the release of his bondsmen on September 8, 1934, Veroda did not qualify as trustee, but continued to handle the assets of the Dolezal estate as he had theretofore done. Plaintiff pleaded the particulars of certain of the aforesaid certificates of indebtedness, and—
“Plaintiffs further say that at the times that the said Victor Veroda invested assets of the'Dolezal estate in the said certificates of the Associated Lodges, that such were poor investments and were done for the purpose of aiding the lodges to which the said Victor Veroda, Frank Sterba, Joseph Krhounek and associates and friends belonged; and such investments were not made in order to secure the funds of said estate, and were not made in good faith, nor with reasonable care or judgment; and said certificates, when acquired, and at all times since have been of small value.”
The plaintiff administrator prayed for an accounting and that “the defendants be required to pay him such money and property as the court concludes due The plaintiff as representing the Kozak estate,” and for other proper relief.
It does not appear that service of summons was effected on Veroda or on Krhounek. Apparently they made no appearance. No judgment was entered either for or against them. In plaintiff’s petition it is alleged that Veroda resided in Texas and was insolvent. There is also a footnote in plaintiff’s abstract that Krhounek had been adjudged a bankrupt.
In this appeal the errors urged by the plaintiff-appellant are these:
“1. Trial court erred in sustaining demurrer of Frank Sterba to the plaintiff’s second amended petition.
“2. Trial court erred in rendering judgment against the plaintiff in favor of Frank Sterba.”
Withholding for the nonce a consideration of the legal questions raised in the demurrer of Frank Sterba, who was the only defendant before the district court or now in this court, we are at a loss to discern how Frank Sterba could comply with the prayer of plaintiff’s petition for an accounting if he were altogether willing to do so, or even if the trial court and this court should give judgment accordingly. Sterba was only a surety for the executor of an estate which was wound up and closed years ago. Sterba could not render the accounting demanded. His bonded obligation was not to render an accounting of the Dolezal estate if Veroda, the executor, and principal on the bond, failed in any respect thereto. It did bind him as surety in the sum of $11,200 or for whatever part thereof might be necessary to make good any delinquency of Veroda in respect to moneys, chattels, and real estate which should come under his control as executor, with the other usual covenants of an executor’s bond, and concluded with the recital that the executor—
“shall pay any balance remaining in his hands upon the settlements of his accounts, to such persons as said probate court, or the law, or the will of said testator shall direct, then this obligation to be void; else in full force and effect.”
It should be obvious that under the terms of such an obligation, before any liability could be decreed against Sterba, the surety, there would have to be an adjudication that Yeroda had violated his duty as executor in some respect, and that the extent thereof had been reduced to a money judgment. Until that be done, if it could yet be done, there is nothing Sterba the surety can do about it and nothing the court can compel him to do.
Cases can doubtless be found where sureties have been impleaded in an action for an accounting against their principal, whether executor, administrator, guardian or trustee. (21 Am. Jur. 933, § 992; Anno.—Fiduciary’s Bond—Liability—Accounting, 119 A. L. R. 83, 103 et seq.) They would at least be proper parties, if not necessary parties. (Phillips on Code Pleading, 1st ed., 481-487, § 453-457; Merwin on Equity and Equity Pleading 543, § 944 et seq.) But we have been cited to no precedent and would not expect to find one where a surety himself was held liable on an unadjudicated delinquency of his principal. In our reports, what analogous cases we have are to the contrary. (Stratton v. McCandless, 27 Kan. 296; Hudson v. Barratt, 62 Kan. 137, 61 Pac. 737; Fitzpatrick v. National Surety Co., 148 Kan. 303, 80 P. 2d 1059.)
Coming to the precise questions of law raised by the defendant surety’s demurrer, the action which plaintiff sought to maintain was a collateral attack upon the judgment of the probate court. Although that court is one of limited jurisdiction, its judgments within the scope of its jurisdiction, unappealed and unreversed, are as binding as those of a court of general jurisdiction. (Smith v. The Eureka Bank, 24 Kan. 528, syl. ¶ 1; Sparr v. Surety Co., 99 Kan. 481, 483, 162 Pac. 305; Schmidt v. Simmons, 136 Kan. 666, 17 P. 2d 835; Gaston v. Collins, 146 Kan. 449, 456-458, 72 P. 2d 84, and citations.)
Granting for argument’s sake that the probate court’s approval of the executor’s final account was improvidently made, that the executor’s account was defective, inaccurate, or incomplete, and that it contained items charged against the Dolezal estate which should have been rejected, it cannot be gainsaid that the probate court had jurisdiction of the cause, that it had power to approve that account, and that its judgment to that effect, and discharging the executor and releasing his bondsmen was a judgment it had power to make; and that judgment is unassailable at this late date.
Furthermore, the action which plaintiff sought to maintain, being merely a collateral attack on the judgment, under all the rules of practice as well as a plethora of our own decisions, such an attack on that judgment was not maintainable. (Proctor v. Dicklow, 57 Kan. 119, 45 Pac. 86; Schmidt v. Simmons, supra.) In Roberts v. Wallace, 141 Kan. 717, 42 P. 2d 594, it was said:
“Where a probate court makes an order directing an executor to make distribution of an estate, and the parties are all given due notice of the hearing, the order is final unless an appeal is taken.” (Syl. ¶ 1.)
See, also, 1 Woerner’s Law of Administration, 3d ed., § 145; 4 Schouler on Wills, Executors and Administrators, 6th ed., 2771, § 3442; and Gaston v. Collins, supra.
Appellant suggests that when Yeroda was discharged as executor and assumed the role of trustee under the will of Dolezal, he did nothing to qualify as such trustee. Apparently the diligence of counsel has discovered that either by statute or by practice in some jurisdictions some such formality is required. Not so in Kansas, however, unless the will so provides or a court of competent jurisdiction so requires. Prior to the adoption of our new probate code, July 1, 1939, art. 15, sec. 116, G. S. 1939 Supp. 59-1505, a transfer of the assets from Veroda as executor to himself as trustee, as acknowledged in the receipt set out above, was quite sufficient. (Cook v. Nelson, 209 Wis. 224, 244 N. W. 615; Mackey et al. v. Coxe, 59 U. S. [18 How. 100], 15 Law Ed. 299; 24 C. J. 1068 and notes; 11 R. C. L. 304-306; 21 Am. Jur. 794, § 737.)
The powers of an executor are not necessarily so restricted as those of an administrator. The testator may confer much broader powers on him than the law confers on the latter. So, too, the powers of a testamentary trustee are those which are conferred upon him by the will, subject to certain qualifications imposed by public policy. A fair reading of Dolezal’s will clearly discloses that Veroda’s powers first as executor and later as trustee of the estate for the benefit of Anna Kozak were unusually broad, and it cannot be said that the investments complained of were not authorized. (See fourth paragraph of Dolezal’s will quoted above.) Moreover, the record shows that in his final accounting as executor, if not before, Veroda did inform the probate court touching the status of the investments he had made in certificates of indebtedness of the Associated Lodges of Cuba, Kan.
The other objections to the judgment have been carefully considered, but they do not require discussion.
Judgment affirmed. | [
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The opinion of the court was delivered by
Allen, J.:
This action was for a declaratory judgment to construe a will and determine the rights of the legatees and devisees thereunder. It is contended the will is void for the reasons (1) the limitations therein violate the rule against perpetuities, and (2) that it creates an indestructible trust. The appeal is from that judgment.
The will of Fred A. Beverlin was executed December 3,1926. By a codicil dated February 7, 1930, the defendant The First Na tional Bank in Wichita was substituted as executor and trustee in the place of parties named in the original will.
The testator died February 23, 1939, leaving his widow Rosalie Beverlin, and his two daughters Bessie Beverlin Sullivan (mentioned in the will as Bessie Margaret Beverlin) and Lexie Beverlin FitzGerald (mentioned in the will as Lexie Rosalie Beverlin). In 1939 the daughter Bessie was thirty-three years of age and the daughter Lexie was twenty-seven years of age.
The plaintiff Beverly Bess Sullivan is an adopted daughter of Bessie Beverlin Sullivan and was four years of age in May, 1939.
The plaintiff Frances Lexie Fitz-Gerald is a natural child of Lexie Beverlin Fitz-Gerald, and was one year of age on the 28th day of March, 1939. As the testator died on the 23d day of February, 1939, this grandchild was almost one year of age at his death.
The will is a wordy document, but the general scheme of the testator may be compressed into a small compass.
The testator devised and bequeathed one-third of all his property, real and personal, to his wife Rosalie Beverlin absolutely.
One-third of all his property, real and personal, was given to his daughter Bessie Margaret Beverlin, and one-third to his daughter Lexie Rosalie Beverlin. Except as qualified by subsequent provisions, the language was apt to give a fee simple in the land and an absolute interest in the personal property.
The property so devised and bequeathed to the daughters was to be held by a trustee upon active trust until the daughters should attain the age of forty years, respectively, at which time the principal share of each with accruals should be paid to them.
Paragraph nine provided for the handling of the trust property and allowances to be made to the daughters. The divesting clauses, which give rise to the main dispute, read as follows:
“Tenth: It is my will and I direct that in the event of the death of either one of my said daughters without legitimate child or children of their body, that her share of my estate held in trust by the aforementioned trustees, shall automatically revert to and become the property to be held in trust for the other living daughter and be handled in the same manner as the original trust governing the original beneficiaries and be turned over to the daughter surviving at the time the forty-year-of-age trust period would have expired had the deceased daughter lived.
“Eleventh: It is my will and I direct that in case of the death of either of my said daughters leaving legitimate child of their body, that the inheritance from my daughter leaving such child shall be administered according to the terms of this trust until the period when said daughter would have arrived at the age of forty years, has terminated, provided said child or children have arrived at the age of twenty-five years. In case any child or children of either of my deceased daughters shall not have reached the age of twenty-five years, his or her portion of said estate shall be held in trust until such time as the age of twenty-five years is reached, under the same terms and conditions as govern the mother’s estate.”
From a study of these two paragraphs it is clear the testator meant that if either daughter should die before she attained the age of forty years, then her property was to be divested and, if she left no children, to go to the surviving daughter, but if she left children, then to such children when they attain the age of twenty-five. Upon the death of a daughter, if she left children, the trust was to continue until the period when the children of such daughter attained the age of twenty-five. The grandchildren were to take through the medium of the trustees, and as the trust was to terminate as each daughter attained the age of forty, the meaning of the testator is clear that the interest of the daughters was to be divested only upon their death before the age of forty, and not upon their death at any time. In other words, when each daughter arrives at the age of forty, her interest becomes indefeasible, the trust as to her interest will terminate, and the divesting clauses in paragraphs ten and eleven will cease to operate. Her interest then becomes an absolute legal interest.
It is urged in support of the will that upon the birth of a grandchild, such child takes a vested interest and the rule against perpetuities has no concern with vested interests. This contention, pressed upon us with vigor, deserves a fair answer, and several suggestions may be made.
(a) The gift under paragraph eleven is only to the grandchildren who attain the age of twenty-five. No grandchild who does not attain that age is an object of the testator’s bounty.
The gift to the grandchildren was not a remainder, but an executory devise. Under paragraphs three and four, each daughter took an undivided one-third of the land in fee simple and an absolute interest in one-third of the personal property. There cannot be a remainder after a fee simple. A remainder succeeds a prior interest ■ — usually a life estate. An executory gift cuts short a prior interest before its normal termination and usually shifts such interest to a third person. A remainder may vest in interest before it vests in possession, but that capacity is denied to executory interests. Thus if A transfers land to B for life, remainder to C and his heirs, B has an estate for life vested in possession, and C has a remainder in fee vested in interest. But if A transfers land to B and his heirs, and should B die without issue living at the time of his death, to C and his heirs, the interest of C is not a remainder but an executory interest. It is to arise on an uncertain event — the death of B without issue at his death. The same event that divests B’s interest, gives C title and possession. C’s interest is subject to a condition precedent. All executory interests (except one variety, not here important) arise upon an uncertain event, hence are contingent. Thus, while remainders may vest in interest before they vest in possession, executory interests do not, by their very nature, have that capacity. As the grandchildren take, if at all, by way of the executory devise, their interest is necessarily contingent.
could be argued, however, that each grandchild living at the death of the testator would acquire a vested interest at the age of twenty-five subject to open and let in others who attain that age. (See 51 Harvard Law Rev., p. 1329, hereinafter noted.) But such interests are not vested within the meaning of “vested” under the rule against perpetuities. As stated by Simes in his admirable work on Future Interests, section 499: “A class gift is considered as a single gift. Hence it is all good or all bad under the rule. We may therefore lay down the rule that a class gift is not regarded as against perpetuities, as long as class is not ascertained.” The vested, for the purpose of the rule the maximum membership of the gift to the grandchildren is therefore contingent, although there was a grandchild alive at the death of the
With these considerations in mind, we proceed to examine the several questions submitted.
1. Does the gift to the grandchildren in paragraph eleven violate the rule against perpetuities?
The rule against perpetuities, as stated by Gray, Perpetuities, 3d ed., section 201, is as follows: “No interest is good unless it must vest, if at all, not later than twenty-one years after some life in being at the creation of the interest.” The common-law rule, as stated by Gray, is in force in this state. In Keeler v. Lauer, 73 Kan. 388, 85 Pac. 541, it was said:
“Having no statute on the subject, the common-law rule prevails, under which the contingent interest must become vested within a life or lives in being and twenty-one years afterward, to which, under some circumstances, is added the period of gestation.” (p. 393.)
See, also, Klingman v. Gilbert, 90 Kan. 545, 135 Pac. 682; Lasnier v. Martin, 102 Kan. 551, 171 Pac. 645.
The rule against perpetuities is applicable to equitable interests as well as legal interests. An intended trust is invalid unless there is a beneficiary who is definitely ascertained within the time specified in the rule. If an intended trust is created for several beneficiaries, and the interests of one or more of them will not necessarily vest within the period of perpetuities, the trust fails so far as those interests are concerned. (Restatement, Trusts, sec. 62, comment k.)
The gift to the grandchildren of the testator in paragraph eleven is a class gift — a group capable of future change in number. It is not a gift to the grandchildren as specific individuals, but to them as members of a fluctuating group. In Gray, Perpetuities, it is said:
“§ 369. There is often a gift to a class of persons, for example, to the grandchildren of a testator upon a contingency which may happen beyond the limits of the rule against perpetuities; as, for instance, a bequest of money to be divided among those of the testator’s grandchildren who reach twenty-five. Such a gift is bad, although the testator has grandchildren living at his death. For although, if the living grandchildren reach twenty-five, they must do so during lives in being at the testator’s death, namely, their own lives, yet as they may all die before reaching twenty-five, the class may ultimately be composed of grandchildren not born at the testator’s death, and the bequest may therefore vest more than twenty-one years after the end of all lives then in being.
“§ 373. Assuming then that the devise is not to vest until the remote period, the devise to the whole class is bad; and it is immaterial that some persons are in esse who, should they reach twenty-five, would be entitled to share, for none of them may reach twenty-five, and the whole class may ultimately be composed of persons who are not born at the testator’s death. This seems to have been first ruled by Lord Kenyon in Jee v. Audley (1787); but the most important case is Leake v. Robinson (1817), in which Sir William Grant, M.R., held that the whole gift was void, and so the law has stood ever since.”
(In the case before us one grandchild was nearly one year old at the death of.the testator. If she ever attained the age of twenty-five it would be during her life — a life in being. (The same would be true of any number of grandchildren alive at the death of the testator.) But the gift was to the grandchildren as a class, and the rule in Leake v. Robinson (1817), 2 Mer. 363, the leading case on this question, is that if the interest of any potential member of a class can by any possibility vest too remotely the entire class gift fails. While this rule has been followed in England and America by the courts and has been approved by the text writers, it has not escaped criticism.
In Leake v. Robinson it was stated: “Perhaps it might have been as well if the courts had originally held an executory devise transgressing the allowed limits to be void only for the excess, where that excess could, as in this case it can, be clearly ascertained.” ' (p. 389.) This suggestion was followed in New Hampshire. In Edgerly v. Barker, 66 N. H. 434, 31 Atl. 900, the gift was to grandchildren when the youngest member should reach forty. The court, in an opinion by Chief Justice Doe, held the fund should bejdistributed to the grandchildren when they reached twenty-one. (See Gray, Perpetuities, §§ 857-893.) While this case has not been followed by the courts, a similar rule is now in force in England by statute. (Law of Property Act, 1925, 15 Geo. V, ch. 20, § 163.)
But the most vigorous assault on the class-gift rule announced in Leake v. Robinson was made by Prof. W. Barton Leach in “Perpetuities and Class Gifts” in 51 Harvard Law Review, 1329.
Notwithstanding these divergent views, we think the rule in Leake v. Robinson, as stated in Gray, Perpetuities, supra, having been followed by the courts of England and America for a century, has become an integral part of the common-law rule, and if a change is to be made it must be made by the legislature. Leake v. Robinson was decided in 1817 and it was not untiTTne case of Cadell v. Palmer, 1 Cl. & F. 372, decided in 1833, that it was determined the twenty-one-year period could be a period in gross without reference to the majority of any person. The class-gift doctrine became a part of the rule in the making.
We hold the gift to the grandchildren in paragraph eleven is too remote and therefore void.
2. Does the failure of the intended trust for the grandchildren destroy the prior gift to the children?
In Gray, Perpetuities, § 247, the general rule is stated thus:
“§ 247. (1) Effect on Prior Limitations. If future interests created by any instrument are avoided by the rule against perpetuities, the prior interests become what they would have been had the limitation of the future estates been omitted from the instrument. 'Thus, if an estate is given to A for life, remainder to his children and their heirs, but, if the children all die under twenty-five, then to B and his heirs, the limitation to B is too remote, and the children of A take an indefeasible fee simple. The cases -illustrating this are innumerable. So when there is a devise on a remote condition, and no prior devise, the land descends to the heir who has an indefeasible fee.”
The question was before this court in the recent case of Blake-Curtis v. Blake, 149 Kan. 512, 89 P. 2d 15. We there held, as stated in paragraph three of the syllabus:
“Where one provision of a will is invalid because it violates the rule against perpetuities, and the testamentary scheme of the testators can be determined and carried out regardless of 'the void provision, that provision will be stricken out and the testamentary plan given effect.”
See, also, Dreisbach v. Spring, 93 Kan. 240, 144 Pac. 195.
The general rule is that where an attempted ultimate executory interest fails in its inception because of the rule against perpetuities, the prior interest becomes indefeasible.
Proprietors of the Church in Brattle Square v. Moses, Grant and others, 69 Mass. 142; Farnam v. Farnam, 83 Conn. 369, 77 Atl. 70; Cody v. Staples, 80 Conn. 82, 67 Atl. 1; Nevitt v. Woodburn, 190 Ill. 283, 60 N. E. 500; Howe v. Hodge, 152 Ill. 252, 38 N. E. 1083; Beall v. Wilson, 146 Ky. 646, 143 S. W. 55; Sears v. Putnam, 102 Mass. 5; Smith v. Muse, 134 Miss. 827, 98 So. 436; Bunting v. Hromas, 104 Neb. 383, 177 N. W. 190; Smith v. Townsend, 32 Pa. St. 434; Saxton and husband v. Webber and others, 83 Wis. 617, 53 N. W. 905.
Also, it is to be observed that where an estate in fee simple determinable is followed by an executory gift which is too remote, many well-reasoned cases hold that the prior interest is not destroyed. Thus, in First Universalist Society v. Boland, 155 Mass. 171, 29 N. E. 524, land was conveyed to a church so long as devoted to the uses of certain religious doctrines, then over to others. The gift over was too remote, but the church was held to have an estate in fee simple determinable — when no longer used for specified purposes' it would revert to the grantors, or his heirs.
See, also, Leonard v. Burr, 18 N. Y. 96; Institute for Savings v. Home for Aged Women, 244 Mass. 583, 139 N. E. 301; Yarbrough v. Yarbrough, 151 Tenn. 221, 269 S. W. 36.
See Restatement, Property, § 229. Also, page 34 of Appendix to Vol. 2, Restatement, Property.
The failure of the gift to the grandchildren does not affect the validity of the prior interests vested in testator’s daughters.
3. It is also urged that apart from the rule against perpetuities, the will is void because it “violates the rule against the undue postponement of direct enjoyment.” Does the will attempt to create an indestructible trust? The rule, as stated by Gray, Perpetuities, § 120, is:
“A result of the invalidity of restraints on alienation calls for attention in connection with the rule against perpetuities. When a person is entitled absolutely to property, any provisions postponing its transfer or payment to him is void. Thus, suppose property is given to trustees in trust to pay the principal to A when he reaches thirty. When any other person than A is interested in the property, when, for instance, there 'is a gift over to B if A dies under thirty, the trustee will retain the property for the benefit of B; but when no one but A is interested in the property, when, should he die before thirty, his heirs or representatives would be entitled to it, when, in short, the direction for postponement has been made for A’s supposed benefit, such direction is void, in pursuance of the general doctrine that it is against public policy to restrain a man in the use or disposition of property in which no one but himself has any interest.”
The case of Claflin v. Claflin, 149 Mass. 19, 20 N. E. 454, is usually cited on this question. In that case the testator bequeathed funds in trust and directed the trustees to pay $10,000 to his son at twenty-one, the same sum at twenty-five, and a like amount at the age of thirty. When the son attained twenty-one he demanded not only the amount then due but also the deferred payments. The court refused to terminate the trust.
This ruling was contrary to the long-established English rule. Saunders v. Vautier, 4 Beav. 115. Although the cases are by no means uniform, the rule in Claflin v. Claflin has been followed in some states. Griswold, Spendthrift Trusts, § 513; Simes, Future Interests, § 557.
This question does not seem to have been directly passed on by this court, mor do we think we are called upon to decide the point in this case. The gift over in paragraph ten is valid and we think the continuance of the trust is necessary to carry out the material purposes of the trust, especially that part mentioned in paragraph twelve. Restatement, Trusts, § 337.
4. Was the interest of the widow Rosalie included in the trust? This requires an examination of paragraphs two and twelve of the will.
“Second: I give, devise and bequeath to my wife, Rosalie Beverlin, one-third of all of the cash on hand, bank deposits, bonds, and any other property, personal, real or mixed, of which I may die possessed, to have, hold or dispose of as she may see fit, without let or hindrance.
“Twelfth: It is my will and I direct that the above-mentioned trustees and their successors shall have authority to sell and transfer by good and sufficient warranty deed, any real 'estáte in which this trust is a part owner and said transfer shall'have the same force and effect as if said title was issued by me prior to my death. It being the intention of this clause that it will create a means of handling advantageously any real estate in which my said daughters and their mother and her heirs might jointly inherit whenever, in the judgment of the trustees and the other interested parties or their successors, it might be to the advantage of all parties concerned.
“It is my will and I direct that the above-mentioned trustees and their successors shall have full authority to make, execute, and deliver any oil and gas lease, royalty conveyance or bill of sale to any property owned by my above-mentioned wife and daughters and their legitimate child or children of their body, jointly.”
By paragraph five of the original will the testator named his wife as one of the executors and trustees under his will. She is mentioned nowhere else in the will except in paragraphs two and twelve, above quoted. By paragraphs seven to eleven a trust is created for the daughters, and explicit directions are given for the management of their interests by the trustees. It is inconceivable that the testator intended to include the share of his wife in the trust without an express declaration to that effect. Paragraph two clearly gave her a fee-simple interest in one-third of the land and an absolute interest in one-third of the personal property. This was emphasized by the statement that she was “to have, hold or dispose of as she may see fit, without let or hindrance.” Clearly her property was not included in the trust. The power given the trustees under paragraph twelve was limited to “any real estate in which this trust is a part owner.” From a careful reading of the entire will we are convinced the power in paragraph twelve does not extend to the property of the widow Rosalie.
We therefore conclude that the attempted gift to the grandchildren in paragraph eleven is void; that the trust for the two daughters is valid and will continue until they respectively attain the age of forty years; when each daughter attains the age of forty the trust as to such daughter will terminate. When the elder daughter attains the age of forty the trustee will in its settlement with her protect the interest of the younger daughter by withholding an amount sufficient to make her share equal to the elder daughter. Should one daughter die without legitimate child or children of her body before she reaches the age of forty, her property will pass to the living daughter under paragraph ten of the will.
As the trial court held the entire will valid, that judgment will be modified as set forth in this opinion, and as so modified will be affirmed. It is so ordered. | [
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The opinion of the court was delivered by
Abbott, J.:
This is a direct appeal by the defendant, John G. Schultz, from his convictions of 10 counts of theft by deception involving his purchasing federal and state surplus property.
In Kansas, the Department of Corrections administers both the federal and the state surplus property programs. K.S.A. 75-52,118. In order to participate in the state program, an entity must qualify for federal eligibility. See K.S.A. 75-6601 et seq. Although there are differences between the federal and state surplus property programs, the differences are immaterial to this case.
On November 30, 1987, the City of Earlton, Kansas, (City) qualified as an eligible donee to acquire federal surplus property. The City also qualified for the state surplus property program. An authorization form was completed on behalf of the City and designated those authorized to sign on the City’s behalf. The form listed Kemper Seltmann, “Board Chairman”; Larry Bailey, “Councilman”; John Schultz, “Purchasing Agent”; and Dalton Stewart, “Councilman.” The form included the signature of each.
After the City qualified as an eligible donee, federal and state surplus property was purchased by Schultz in the City’s name. Schultz purchased such things as diesel caterpillar engines, a forklift, a forklift truck, a road grader, a trailer, tons of scrap aluminum, a plow, and numerous trucks.
According to his deposition testimony, Dalton Stewart, city treasurer, in early 1988 became aware of purchases Schultz had made upon receipt of government documents asking how the City had utilized the items purchased. Stewart was concerned because the purchases had not been approved at any city council meeting and because the City had never received the property. He subsequently became aware of an additional, but unauthorized, checking account under the name of City of Earlton Industrial Development Fund.
The city council met on February 23, 1988, to discuss Schultz’ purchases in the City’s name. Schultz was present at the meeting and was instructed not to purchase any more surplus property in the City’s name. The city council also voted to close the City of Earlton Industrial Development Fund checking account. The city council sent a letter to the surplus property headquarters in Topeka, stating that Schultz was no longer authorized to purchase property in the City’s name. The State struck Schultz’ name from the City’s authorization card.
Agent David Christy of the Kansas Bureau of Investigation (KBI) began investigating Schultz’ purchasing of surplus property. Pursuant to K.S.A. 22-3101(2) inquisition subpoenas, Christy obtained Schultz’ bank records from the Bank of Commerce in Chanute, Kansas, and his telephone records from Southwestern Bell Telephone Company (SWB).
The State charged Schultz with 10 counts of theft by unauthorized control or, in the alternative, of theft by deception. Schultz moved to suppress the evidence or information obtained from the bank and SWB pursuant to the inquisition subpoenas. The trial court accepted the State’s argument that Schultz had no standing to challenge the inquisition subpoenas and denied the motion to suppress. The defendant also filed a motion to dismiss, claiming the complaint failed to sufficiently charge the offense of theft by deception. The court denied the motion. Additionally, Schultz objected without success to the State’s deposing of Dalton Stewart and to the trial court’s order admitting Dalton Stewart’s deposition into evidence at trial.
A jury convicted Schultz of 10 counts of theft by deception. The trial court suspended Schultz’ sentence, placed him on supervised probation for two years, and fined him $5,000. The defendant filed numerous post-trial motions, which the trial court denied. The court, however, did grant the State’s motion to release property Schultz had purchased to the Department of Corrections. Schultz filed a timely appeal. The appeal was transferred to this court, pursuant to K.S.A. 20-3018(c).
I. STANDING
Schultz claims the trial court erred in denying his motion to suppress information and documents obtained by inquisition subpoenas. He contends the trial court erred in ruling he did not have standing to challenge the obtaining, issuance, and execution of the inquisition subpoenas.
Based upon United States v. Miller, 425 U.S. 435, 48 L. Ed. 2d 71, 96 S. Ct. 1619 (1976); Southwestern Bell Tel. Co. v. Miller, 2 Kan. App. 2d 558, 583 P.2d 1042, rev. denied 225 Kan. 845 (1978); and Smith v. Maryland, 442 U.S. 735, 61 L. Ed. 2d 220, 99 S. Ct. 2577 (1979), the trial court ruled that the defendant had no standing to object to subpoenas issued for his bank and telephone records because he has no reasonable expectation of privacy in those records.
In Miller, 425 U.S. at 440, the United States Supreme Court reasoned that a bank depositor had no reasonable expectation of privacy in bank records because the documents were the bank’s business records, not the depositor’s “private papers.” The Court stated:
“The checks are not confidential communications but negotiable instruments to be used in commercial transactions. All of the documents obtained, including financial statements and deposit slips, contain only information voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business. . . .
“The depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government. [Citation omitted.] This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed. [Citations omitted.]” 425 U.S. at 442-43.
In Southwestern Bell Tel. Co., the Kansas Court of Appeals stated the Miller decision “establishes that bank customers have no Fourth Amendment interest in their bank records, so that such records could be lawfully obtained by a grand jury through subpoenas duces tecum addressed to a bank. We would suppose this disposes of any claim which might be made by [telephone] customers.” 2 Kan. App. 2d at 565.
In Smith, the defendant challenged the warrantless installation and use of a pen register, which records numbers dialed on a telephone. The United States Supreme Court held that telephone customers have no reasonable expectation of privacy in the telephone numbers the customers have dialed. The Court reasoned:
“[W]e doubt that people in general entertain any actual expectation of privacy in the numbers they dial. All telephone users realize that they must ‘convey’ phone numbers to the telephone company, since it is through telephone company switching equipment that their calls are completed. All subscribers realize, moreover, that the phone company has facilities for making permanent records of the numbers they dial, for they see a list of their long-distance (toll) calls on their monthly bills. . . . Telephone users, in sum, typically know that they must convey numerical information to the phone company; that the phone company has facilities for recording this information; and that the phone company does in fact record this information for a variety of legitimate business purposes. Although subjective expectations cannot be scientifically gauged, it is too much to believe that telephone subscribers, under these circumstances, harbor any general expectation that the numbers they dial will remain secret.” 442 U.S. at 742-43.
The Court noted it consistently has held that an individual “has no legitimate expectation of privacy in information he voluntarily turns over to third parties. [Citations omitted.]” 442 U.S. at 743-44. See United States v. Mountain States Tel. & Tel. Co., Inc., 516 F. Supp. 225 (D. Wyo. 1981)(no standing to raise Fourth Amendment claims to challenge subpoena used to obtain telephone toll records).
The scope of § 15 of of the Bill of Rights to the Kansas Constitution and of the Fourth Amendment to the United States Constitution “is” identical or “is usually” identical. Compare State v. LeFort, 248 Kan. 332, 334, 806 P.2d 986 (1991) (“is identical”) and State v. Deskins, 234 Kan. 529, Syl. ¶ 1, 673 P.2d 1174 (1983) (scope “is identical” in “any particular factual situation”) with State v. Lambert, 238 Kan. 444, 446, 710 P.2d 693 (1985) (“is usually considered to be identical”) and State v. Fortune, 236 Kan. 248, Syl. ¶ 1, 689 P.2d 1196 (1984) (same).
This court, however, can construe our state constitutional provisions independent of federal interpretation of corresponding provisions. See Oregon v. Hass, 420 U.S. 714, 719, 43 L. Ed. 2d 570, 95 S. Ct. 1215 (1975) (“a State is free as a matter of its own law to impose greater restrictions on police activity than those this Court holds to be necessary upon federal constitutional standards”); State v. Morgan, 3 Kan. App. 2d 667, 672, 600 P.2d 155 (1979), overruled on other grounds State v. Fortune, 236 Kan. 248, 689 P.2d 1196 (1984). This court can interpret the Kansas Constitution to afford the citizens of Kansas more protection from governmental intrusion pertaining to bank and telephone records than that afforded by the United States Constitution. The United States Supreme court has acknowledged “the protection of a person’s general right to privacy — his right to be left alone by other people — is, like the protection of his property and of his very life, left largely to the law of the individual States.” Katz v. United States, 389 U.S. 347, 350-51, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967).
Schultz acknowledges the similarity in the language of § 15 of the Kansas Bill of Rights and the Fourth Amendment. As noted earlier, this court has held there is no significant difference between the two. They read as follows:
“The right of the people to be secure in their persons and property against unreasonable searches and seizures, shall be inviolate; and no warrant shall issue but on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons or property to be seized.” Kan. Const. Bill of Rights, § 15.
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const, amend. IV.
The defendant points out, however, that of the state courts declining to follow Miller and Smith, several of the state constitutions contained language almost identical to the language of the Fourth Amendment. According to the defendant, § 18 (justice without delay) and § 20 (powers retained by the people) of the Kansas Bill of Rights justify a more expansive interpretation of § 15. He argues that Kansas citizens should not be denied the right to be secure in their financial and telephone records simply because the Kansas Constitution and Bill of Rights are silent on the matter and that citizens of this state should be allowed to protect that right in a court of law.
Schultz stresses that his argument does not deny the government access to an individual’s financial telephone records, but requires the government to obtain such records through lawful processes. The defendant’s problem with regard to K.S.A. 22-3101(2) inquisition subpoenas is that these subpoenas are issued without judicial accountability and cannot be challenged in court. Thus, the door is open for prosecutorial abuse. In Southwestern Bell Tel. Co., the telephone company argued there was a possibility of abuse if the prosecutor’s discretion remained unfettered. The court responded there was no abuse in that case, but added: “[T]he courts are always open to prevent abuse in suits such as this one, if the need arises.” 2 Kan. App. 2d at 566. Schultz asks how courts can prevent abuse if the party under investigation has no standing to challenge the inquisition subpoena. He con tends the telephone company and financial institution will not have sufficient interest to object to the subpoenaed records.
The defendant then discusses our state constitutional and common-law history. He argues that our state’s firm belief in our right to establish independent state guarantees for Kansas citizens is illustrated by the spirited debates at the constitutional convention on the rights of slaves. Schultz provides other examples, including the fact that Kansas accorded women the right to vote and to hold public office eight years before the federal government granted the same right and that Kansas provided indigent criminal defendants the right to counsel in felony cases long before the federal government.
On the other hand, this court has never extended state constitutional protections beyond federal guarantees. Comment, Interpreting the State Constitution: A Survey and Assessment of Current Methodology, 35 Kan. L. Rev. 593, 618, 618 n.151 (1987).
Whether a bank or telephone customer has a reasonable expectation of privacy under the Kansas Constitution is a question of first impression in Kansas.
Schultz’ final argument focuses upon criticism of Miller and Smith, beginning with the dissents filed in both cases. Justices Brennan and Marshall entered separate dissents in the Miller decision. Justice Brennan adopted the reasoning of the California Supreme Court in Burrows v. Superior Court, 13 Cal. 3d 238, 118 Cal. Rptr. 166, 529 P.2d 590 (1974), and quoted from such as follows:
“ ‘It cannot be gainsaid that the customer of a bank expects that the documents, such as checks, which he transmits to the bank in the course of his business operations, will remain private, and that such an expectation is reasonable. . . .
“ ‘. . . A bank customer’s reasonable expectation is that, absent compulsion by legal process, the matters he reveals to the bank will be utilized by the bank only for internal banking purposes. . . .
“ ‘. . . It is not the right of privacy of the bank but of the petitioner which is at issue, and thus it would be untenable to conclude that the bank, a neutral entity with no significant interest in the matter, may validly consent to an invasion of its depositors’ rights. . . .
“ ‘. • . For all practical purposes, the disclosure by individuals or business firms of their financial affairs to a bank is not entirely volitional, since it is impossible to participate in the economic life of contemporary society without maintaining a bank account. In the course of such dealings, a depositor reveals many aspects of his personal affairs, opinions, habits and associations. Indeed, the totality of bank records provides a virtual current biography. ... To permit a police officer access to these records merely upon his request, without any judicial control as to relevancy or other traditional requirements of legal process, and to allow the evidence to be used in any subsequent criminal prosecution against a defendant, opens the door to a vast and unlimited range of very real abuses of police power.
“ ‘. . . Development of photocopying machines, electronic computers and other sophisticated instruments have accelerated the ability of government to intrude into areas which a person normally chooses to exclude from prying eyes and inquisitive minds. Consequently judicial interpretations of the reach of the constitutional protection of individual privacy must keep pace with the perils created by these new devices.’ [Citation omitted.]” 425 U.S. at 448-52.
Justices Stewart and Marshall entered separate dissents in the Smith decision. Justice Brennan joined both dissents. Justice Stewart asserted:
“[T]he Court today says that [the Fourth Amendment] safeguards do not extend to the numbers dialed from a private telephone, apparently because when a caller dials a number the digits may be recorded by the telephone company for billing purposes. But that observation no more than describes the basic nature of telephone calls. A telephone call simply cannot be made without the use of telephone company property and without payment to the company for the service. The telephone conversation itself must be electronically transmitted by telephone equipment, and may be recorded or overheard by the use of other company equipment. Yet we have squarely held that the user of even a public telephone is entitled ‘to assume that the words he utters into the mouthpiece shall not be broadcast to the world.’ [Citation omitted.]
“The numbers dialed from a private telephone — although certainly more prosaic than the conversation itself — are not without ‘content.’ Most private telephone subscribers may have their own numbers listed in an publicly distributed directory, but I doubt there are any who would be happy to have broadcast to the world a list of the local or long distance numbers they have called. This is not because such a list might in some sense be incriminating, but because it easily could reveal the identities of the person and the places called, and thus reveal the most intimate details of a person’s life.” 442 U.S. at 746-48.
Justice Marshall noted that “[p]rivacy is not a discrete commodity, possessed absolutely or not at all.” 442 U.S. at 749. He disagreed with the Court’s determination that individuals assume the risk if they convey information to third parties:
“Implicit in the concept of assumption of risk is some notion of choice. At least in the third-party consensual surveillance cases, which first incorporated risk analysis into Fourth Amendment doctrine, the defendant presumably had exercised some discretion in deciding who should enjoy his confidential communications. [Citations omitted.] By contrast here, unless a person is prepared to forgo use of what for many has become a personal or professional necessity, he cannot help but accept the risk of surveillance. [Citation omitted.] It is idle to speak of ‘assuming’ risks in contexts where, as a practical matter, individuals have no realistic alternative.
“. . . Privacy in placing calls is of value not only to those engaged in criminal activity. The prospect of unregulated governmental monitoring will undoubtedly prove disturbing even to those with nothing illicit to hide. Many individuals, including members of unpopular political organizations or journalists with confidential sources, may legitimately wish to avoid disclosure of their personal contacts. [Citations omitted.]” 442 U.S. at 749-51.
Several state courts have rejected the Miller holding and rationale, relying upon their own state constitutions to hold that bank customers have a legitimate expectation of privacy in their bank records. See Burrows v. Superior Court, 13 Cal. 3d 238; Charnes v. DiGiacomo, 200 Colo. 94, 612 P.2d 1117 (1980) (en banc); Winfield v. Div. of Pari-Mutuel Wagering, 477 So. 2d 544 (Fla. 1985); People v. Jackson, 116 Ill. App. 3d 430, 452 N.E.2d 85 (1983); Com. v. Dejohn, 486 Pa. 32, 403 A.2d 1283 (1979), cert. denied 444 U.S. 1032 (1980); State v. Thompson, 810 P.2d 415 (Utah 1991). For a general discussion of the search and seizure of telephone company records pertaining to a subscriber as a violation of that subscriber’s constitutional rights, see Annot., 76 A.L.R.4th 536.
Prior to Miller, the California Supreme Court decided Burrows, which involved a bank’s compliance with a law enforcement officer’s informal oral request for the defendant’s bank statements. It is this case upon which Justice Brennan based his dissent in Miller. California has reaffirmed its position since Miller. See, e.g., People v. Blair, 25 Cal. 3d 640, 159 Cal. Rptr. 818, 602 P.2d 738 (1979) (Burrows rationale also applicable to copies of defendant’s credit card bills, record of defendant’s telephone calls made from a hotel, and record of associate’s telephone calls).
The Supreme Court of Colorado relied upon the Burrows rationale to hold that bank customers have a reasonable expectation of privacy, under the Colorado Constitution, in their bank records and, therefore, have standing to challenge a subpoena issued to the financial institution for the records. The court determined that “[c]ontrary to the rationale in Miller, there was not a true disclosure to a third party.” Chames, 200 Colo, at 99. Furthermore, according to the court, the government is not prohibited from obtaining bank records, but governmental access must be limited to the appropriate legal process and customers must have the opportunity to challenge the government’s access during the legal process.
The Pennsylvania Supreme Court reversed a conviction, holding the Pennsylvania Constitution gave the defendant a reasonable expectation of privacy in her cancelled check, thus giving her standing to challenge the admissibility of the bank record, which was obtained through an invalid subpoena. After examining both Burrows and Miller, the court found the California case more persuasive “in recognizing modem electronic realities . . . than the simplistic proprietary analysis . . . used by the court in Miller.” Dejohn, 486 Pa. at 47. The Pennsylvania court also noted that “Miller establishes a dangerous precedent, with great potential for abuse.” 486 Pa. at 44.
An Illinois appellate court found the rationales of Burrows, Chames, and Dejohn persuasive. The court stated:
“These courts rejected the rationale in Miller because it relies for its analysis of an expectation of privacy upon the ownership and possession of the records and not the reasonable expectations of the individual. The State courts accepted the fourth amendment test set out in Katz v. United States (1967), 389 U.S. 347, 19 L. Ed. 2d 576, 88 S. Ct. 507, which provides protection for people not places.’ [Citations omitted.] Under Katz, the fourth amendment gives protection for an individual’s reasonable expectation of privacy which is not bound by the location and present ownership of the records. Consequently, the right to privacy is not waived by placing these records in the hands of a bank. The individual can still legitimately expect that her financial records will not be subject to disclosure. [Citation omitted.]
“We believe that it is reasonable for our citizens to expect that their bank records will be protected from disclosure because in the course of bank dealings, a depositor reveals many aspects of her personal affairs, opinion, habit and associations which provide a current biography of her activities. Such a biography should not be subject to an unreasonable seizure by the State government. Furthermore, we reject the idea set out in Miller that a citizen waives any legitimate expectation in her financial records when she resorts to the banking system. Since it is virtually impossible to participate in the economic life of contemporary society without maintaining an account with a bank, opening a bank account is not entirely volitional and should not be seen as conduct which constitutes a waiver of an expectation of privacy. [Citation omitted.]” People v. Jackson, 116 Ill. App. 3d at 434-35.
Commentators have criticized the Miller decision. For example, Wayne LaFave has declared:
“The result reached in Miller is dead wrong, and the Court’s woefully inadequate reasoning does great violence to the theory of Fourth Amendment protection which the Court had developed in Katz. . . .
“The Court’s assertion in Miller that there can be no protected Fourth Amendment interest where there is ‘neither ownership nor possession’ is contrary to the purposes underlying the Fourth Amendment, the teachings of Katz, and the realities of modern-day life.” 1 LaFave, Search and Seizure § 2.7(c), p. 511 (2d ed. 1987).
LaFave added:
“Though in Miller the authorities proceeded by subpoena, the thrust of the opinion is that the bank customer has no expectation of privacy and thus no Fourth Amendment protection no matter how egregious the police conduct which results in government acquisition of the information in the bank records. Thus, in United States v. Payner, 447 U.S. 727, 100 S. Ct. 2439, 65 L. Ed. 2d 468[, reh. denied 448 U.S. 911] (1980), where IRS agents arranged to have the bank records obtained by burglary, the Court without hesitation concluded that under Miller ‘a depositor has no expectation of privacy and thus no “protectable Fourth Amendment interest” in copies of checks and deposit slips retained by his bank.’ ” 1 LaFave, p. 511 n.47.
Richard Posner has asserted:
“Privacy of information normally means the selective disclosure of personal information rather than total secrecy. ... A bank customer may not care that the employees of the bank know a lot about his financial affairs, but it does not follow that he is indifferent to have those affairs broadcast to the world or disclosed to the government.” Posner, The Economics of Justice, p. 342 (1981).
See Alschuler, Interpersonal Privacy and the Fourth Amendment, 4 N. Ill. U.L. Rev. 1, 21-28 (1983); Guzik, The Assumption of Risk Doctrine: Erosion of Fourth Amendment Protection Through Fictitious Consent to Search and Seizure, 22 Santa Clara L. Rev. 1051, 1068-72 (1982); Rasor, Controlling Government Access to Personal Financial Records, 25 Washburn L.J. 417 (1986); Comment, Reasonable Expectations of Privacy in Bank Records: A Reappraisal of United States v. Miller and Bank Depositor Privacy Rights, 72 J. Crim. L. & Criminology 243 (1981); Comment, A Bank Customer Has No Reasonable Expectation of Privacy of Bank Records: United States v. Miller, 14 San Diego L. Rev. 414 (1977).
Legislative history reflects that the United States Congress adopted the Right to Financial Privacy Act, 12 U.S.C. § 3401 et seq. (1988), in direct response to and as a criticism of the Miller decision:
“The title is a congressional response to the Supreme Court decision in . . . United States v. Miller which held that , a customer of a financial institution has no standing under the Constitution to contest Government access to financial records. The Court did not acknowledge the sensitive nature of these records, and instead decided that since the records are the property’ of the financial institution, the customer has no constitutionally recognizable privacy interest in them.
“Nevertheless, while the Supreme Court found no constitutional right of privacy in financial records, it is clear that Congress may provide protection of individual rights beyond that afforded in the Constitution.” 1978 U.S. Code Cong. & Ad. News 9305, 9306.
With regard to administrative subpoenas, the Act requires that the customer have notice and an opportunity to object before the financial institution complies with the subpoena. 12 U.S.C. § 3405 (1988).
About one-third of the 50 states have enacted a state equivalent of the Right to Financial Privacy Act. See Ala. Code § 5-5A-43 (1981); Alaska Stat. § 06.05.175 (1988); Cal. Govt. Code § 7460 et seq. (West 1980); Conn. Gen. Stat. § 36-9j et seq. (1993); Fla. Stat. Ann. § 655.059 (West 1993 Supp.); La. Rev. Stat. Ann. § 6:333 (West 1993 Supp.); Me. Rev. Stat. Ann. tit. 9-B, § 161 et seq. (West 1980); Md. Code Ann., Fin. Inst. § 1-304 et seq. (1992); Mo. Rev. Stat. § 408.683 et seq. (1992 Supp.); Neb. Rev. Stat. § 8-1401 et seq. (1991); Nev. Rev. Stat. § 239A.010 et seq. (1991); N.H. Rev. Stat. Ann. § 359-C:l et seq. (1984); N.C. Gen. Stat. § 53B-1 et seq. (1990); N.D. Cent. Code § 6-08.1-01 et seq. (1987); Okla. Stat. tit. 6, § 2201 et seq. (1991); Or. Rev. Stat. § 192.550 et seq. (1991); Tenn. Code Ann. § 45-10-101 et seq. (1987). Thus, our neighboring states — Colorado by interpreting its constitution to give a right of privacy, and Missouri, Nebraska, and Oklahoma by statute — offer their citizens greater privacy rights in financial matters than does Kansas. Kansas has not enacted an equivalent version of the Act. The State argues that because the Kansas Legislature has not seen fit to enact a state version of the Right to Financial Privacy Act during the 16 years since Miller was decided, “the inference is clear that the legislature feel[s] no compelling urgency to adopt a statutory right where there is no constitutional right.”
With regard to telephone records, numerous state courts have declined to follow Smith v. Maryland, 442 U.S. 735, 61 L. Ed. 2d 220, 99 S. Ct. 2577 (1979). As with the bank record cases, the following states have relied on their state constitutions to give their citizens a greater right than the United States Constitution offers. See Blair, 25 Cal. 3d at 653; People v. Sporleder, 666 P.2d 135 (Colo. 1983) (en banc); Shaktman v. State, 553 So. 2d 148 (Fla. 1989); State v. Rothman, 70 Hawaii 546, 779 P.2d 1 (1989); State v. Thompson, 114 Idaho 746, 760 P.2d 1162 (1988); State v. Hunt, 91 N.J. 338, 450 A.2d 952 (1982); Com. v. Beauford, 327 Pa. Super. 253, 475 A.2d 783 (1984); State v. Gunwall, 106 Wash. 2d 54, 720 P.2d 808 (1986).
The California Supreme Court reasoned:
“[A]s with bank records, a telephone subscriber has a reasonable expectation that the calls he makes will be utilized only for accounting functions of the telephone company and that he cannot anticipate that his personal life, as disclosed by the calls he makes and receives, will be disclosed to outsiders without legal process. As with bank records, ... it is virtually impossible for an individual or business entity to function in the modem economy without a telephone, and a record of telephone calls also provides ‘a virtual current biography.’ ” Blair, 25 Cal. 3d at 653.
The Colorado Supreme Court rejected the Smith holding and rationale for the following reasons:
“A telephone subscriber . . . has an actual expectation that the dialing of telephone numbers from a home telephone will be free from governmental intrusion. A telephone is a necessary component of modem life. It is a personal and business necessity indispensable to one’s ability to effectively communicate in today’s complex society. When a telephone call is made, it is as if two people are having a conversation in the privacy of the home or office .... [I]t is somewhat idle to speak of assuming risks in a context where, as a practical matter, the telephone subscriber has no realistic alternative. [Citation omitted.]
“We view the disclosure to the telephone company of the number dialed as simply the unavoidable consequence of the subscriber’s use of the telephone as a means of communication and the telephone company’s method of determining the cost of the service utilized. ... A person’s privacy expectation should not depend on ‘risks an individual can be presumed to accept when imparting information to third parties, but on the risks he should be forced to assume in a free and open society.’ [Citation omitted.] ....
“One’s disclosure of certain facts to the telephone company as a necessary concomitant for using an instrument of private communication hardly supports the assumption that the company will voluntarily convey that information to others. . . .
“. . . Simply stated, merely because the telephone subscriber has surrendered some degree of privacy for a limited purpose to those with whom she is doing business does not render the subscriber ‘fair game for unrestrained police scrutiny’ by virtue of that fact. [Citation omitted.]” Sporleder, 666 P.2d at 141-42.
The Pennsylvania appellate court explicitly set forth its reasons for rejecting Smith:
“According to the Smith majority a caller who dials a telephone in our society should expect that the police will have complete access to the numbers dialed because he provides them to the telephone company. The logic of this position escapes us. For all practical purposes an individual in America today has very little choice about whether the telephone company will have access to the numbers he dials and the frequency of times he dials them. The company has a virtual monopoly over vital communications media, and the individual must accept that this information will be collected by the company for billing purposes. It is quite another thing to suggest that the telephone caller should therefore expect that the company will turn this information over to a third party without legal process for a purpose unrelated to providing telephone service.
“On the contrary, we are convinced that a person picking up a telephone in his home or office fully expects that the number he is about to dial will remain as private as the contents of the communication he is about to have. That number provides a strong, sometimes conclusive inference as to whom is being called, unquestionably a private matter. The caller certainly evidences no intention to shed his veil of privacy merely because he chooses to use the telephone to make private contacts. In modern-day America the telephone call is a nearly indispensable tool used to conduct the widest range of business, government, political, social, and personal affairs. Certainly the vast majority of calls are unrelated to criminal enterprise, and yet the vast majority of callers would not think of allowing the destination of their every call to be recorded by the police. Attaching a pen register to a phone line may reveal secrets as innocent as daily calls to mother. On the other hand, such surveillance might also reveal frequent calls to an illicit lover, or suspected organized crime figures, or suspected gamblers and bookmakers. Obviously, access to information about who is talking to whom, even without direct access to the contents of what they are saying, can be a powerful tool for either good or bad ends. In any case we do not hesitate to say that a caller and the person he calls expect and are entitled to as much privacy in the fact they are talking to one another as in what they say to each other.
“The fact that the telephone company and its employees in the course of providing telephone service collect information on the numbers dialed from a particular phone does not alter one whit the ordinary expectation that the prying eyes of government or anyone else will be kept in the dark absent legal process. Indeed, an expectation to the contrary — that information provided to the telephone company for a limited record-keeping purpose automatically becomes available to the police for criminal investigatory purposes — should have no foundation in a free society.” Beauford, 327 Pa. Super, at 265-66.
Commentators also have criticized the Smith decision. See, e.g., 1 LaFave, Search and Seizure § 2.7(b) (2d ed. 1987 and 1993 Supp.); Guzik, The Assumption of Risk Doctrine: Erosion of Fourth Amendment Protection Through Fictitious Consent to Search and Seizure, 22 Santa Clara L. Rev. 1051, 1073-78 (1982). For a general discussion, see Crook, Sorry, Wrong Number: The Effect of Telephone Technology on Privacy Rights, 26 Wake Forest L. Rev. 669 (1991).
The Kansas Legislature has had many years to adopt a privacy act and has not done so. That fact has no bearing on our interpretation of the Kansas Constitution.
The defendant offers intriguing reasons for this court to interpret § 15 of the Kansas Bill of Rights independently of its federal counterpart and to heighten the protection available to Kansas citizens. We obviously have authority to do so, and the fact we do not in this case does not foreclose the possibility of our doing so in a future case involving different issues. We are persuaded by the reasoning in Miller and Smith that, because the bank and telephone customer knows and understands others will see the records, the customer should have no expectation of privacy. There is no more expectation of privacy in bank and telephone records than there is, for example, in a confession to a minister or in conducting legal business with a lawyer, both of which have statutes guaranteeing privacy (and a strong possibility of constitutional protection from areas other than privacy). The trial court did not err in holding the defendant had no standing to challenge the inquisition subpoena.
Having so held, the other issues the defendant raises concerning the inquisition subpoenas and proceedings are moot.
II. SUFFICIENCY OF COMPLAINT/INFORMATION
The amended complaint/information charged Schultz with 10 counts of theft by unauthorized control, or in the alternative, of theft by deception. He contends the complaint/information did not sufficiently charge the offense of theft by deception and, therefore, his convictions are void.
Schultz argues the charge was insufficient because the complaint/information failed to allege specific elements of false pretenses, namely, that the State or federal government was deceived and that the State or federal government relied upon a false statement, false representation, or act of deception in parting with the surplus property. He bases his argument upon State v. Finch, 223 Kan. 398, 400, 573 P.2d 1048 (1978), in which this court concluded that the crime of theft by deception incorporated the former crime of obtaining property by false pretenses, and State v. Handke, 185 Kan. 38, 43, 340 P.2d 877 (1959), in which this court enumerated the four elements of obtaining money by false pretenses and declared the State must “aver and prove” all four elements.
The issue before the Finch court was what the State must prove to convict a defendant of theft by deception, not what the State must charge. Additionally, Schultz places too much reliance upon the Handke court’s use of the word “aver.”
In State v. Bird, 238 Kan. 160, 166, 708 P.2d 946 (1985), this court reviewed the principles governing sufficiency of the charge:
“In a felony action, the indictment or information is the jurisdictional instrument upon which the accused stands trial. [Citation omitted.] A conviction based upon an information which does not sufficiently charge the offense for which the accused is convicted is void. Failure of an information to sufficiently state an offense is a fundamental defect which can be raised at any time, even on appeal. [Citations omitted.] Sufficiency of the indictment or information is to be measured by whether it contains the elements of the offense intended to be charged and sufficiently apprises the defendant of what he must be prepared to meet, and by whether it is specific enough to make a plea of double jeopardy possible. [Citation omitted.]”
See State v. Barncord, 240 Kan. 35, Syl. ¶ 2, 726 P.2d 1322 (1986) (“An information which charges an offense in the language of the statute or its equivalent is sufficient.”); State v. Jackson, 239 Kan. 463, 467, 721 P.2d 322 (1986) (“ ‘In Kansas all crimes are statutory and the elements necessary to constitute a crime must be gathered wholly from the statute.’ ”).
Here, the complaint/information charged in the language of the statute: “[ojbtaining by deception control over property.” See K.S.A. 21-3701. That is all that is necessary. The State is not required to allege all the elements of false pretenses in the charge.
The defendant next argues that the charge was not sufficient because it failed to state the specific false statement(s), false representation^), or act(s) of deception upon which the charges were based. He erroneously cites State v. Robinson, Lloyd & Clark, 229 Kan. 301, 624 P.2d 964 (1981), for the proposition that a complaint/information is defective if it fails to allege the essential elements of the offense “within the meaning of the statute.” (Defendant’s emphasis.) What this court actually stated is that “if the allegations in an information fail to constitute an offense in the language or meaning of the applicable statute, the information is fatally defective.” (Emphasis added.) 229 Kan. at 304.
Furthermore, the Bird court specified that “[although the accused has the right to know the nature of the charges against him, the information need not set forth all the specific evidentiary facts relied on to sustain the charge.” 238 Kan. at 166. In Bird, this court held that the State’s failure to allege in the information the manner or means by which a third party was to aid and abet in the murder, whom the third party was to aid and abet, and the identity of the intended victim was not a fatal defect. Schultz’ argument is similar to the defendant’s argument in Bird and fails for the same reason. It is not necessary to include the evidentiary details in the charge.
Schultz also argues that because the complaint/ information did not allege specific acts of deception, false statements, or false representations and because the State presented evidence of all three, he does not know upon which the jury relied to convict him. Therefore, according to the defendant, he cannot challenge the sufficiency of the evidence. The defendant cites State v. Prouse, 244 Kan. 292, 767 P.2d 1308 (1989), to support this argument.
In Prouse, this court addressed the problem of charging one offense but alleging two different means of commission in the same count. We do not have the same situation here. Schultz’ argument is based on the erroneous assumption that each false statement, each false representation, or each deceptive act is a different means of committing the same offense. Theft by deception is one means of committing the offense of theft. An example of another means of committing the offense of theft is theft by obtaining unauthorized control over property. See K.S.A. 21-3701.
The trial court did not err in finding that the complaint/information was not defective.
III. DEPOSITION OF DALTON STEWART
Schultz contends the trial court erred in allowing the State to take the deposition of Dalton Stewart and in admitting the deposition at trial. He claims that “unavailability” must be established both in the taking of the deposition and in admitting the deposition at trial and that the State failed to establish unavailability for either.
On appeal, both the defendant and the State cite K.S.A. 22-3211(3) as the governing statute. Subsection (3) provides, in part:
“If, upon hearing, the court determines that a prospective witness may be unable to attend or prevented from attending a trial or hearing, that the witness’ testimony is material and that it is necessary to take the witness’ deposition in order to prevent a failure of justice, the court may authorize the prosecuting attorney to take the deposition of the witness.”
“Unable to attend” is not defined in any of the subsections of K.S.A. 22-3211 pertaining to authorization to take a deposition. The trial court relied upon the definition in subsection (8) of “unable to attend.” K.S.A. 22-3211(8) governs the admissibility of the deposition at trial or at a hearing and provides in pertinent part: “At the trial or upon any hearing, a part or all of a deposition, so far as otherwise admissible under the rules of evidence, may be used if it appears that . . . (c) the witness is unable to attend or testify because of sickness or infirmity.”
In State v. Bird, 238 Kan. at 171, this court determined that the trial court did not abuse its discretion in authorizing the taking of a witness’ deposition under 22-3211(3) because the witness probably would be unable to attend due to illness. The witness’ illness was established by her doctor’s testimony that there was an 80 percent chance the witness would have a nervous breakdown if she had to testify at public trial. In State v. Steward, 219 Kan. 256, 260, 547 P.2d 773 (1976), we noted a “bare assertion” that the witness might be unable to attend is not sufficient. It is apparent this court accepts illness, if sufficiently supported by the evidence, as reason for a witness being unable to attend the trial.
In Bird, 238 Kan. at 171, this court held that allowing the taking of a deposition under 22-3211(3) is discretionary with the trial court. Thus, our standard of review is whether the trial court abused its discretion in so ruling. “The test of the trial court’s abuse of discretion is whether no reasonable person would agree with the trial court. If any reasonable person would agree, appellate courts will not disturb the trial court’s decision.” Taylor v. State, 251 Kan. 272, Syl. ¶ 3, 834 P.2d 1325 (1992).
Here, the trial court found Stewart unable to attend because of illness, based upon his doctor’s testimony that testifying at trial would threaten his health. Immediately prior to the court’s finding, Dr. Pam Maben, Stewart’s physician, testified by telephone conference. The doctor testified that Stewart, age 68, had severe coronary heart disease; that he had undergone bypass surgery in 1984 and a heart catheter in 1986; that he had a stroke in 1985; and that he was on medication for both problems. In Dr. Maben’s opinion, the stress of testifying could jeopardize Stewart’s health. A reasonable person would agree with the court’s finding that Stewart was unable to attend because of health problems.
At a hearing held on July 3, 1990, to determine whether to admit the deposition at the preliminary hearing, the trial court stated that it had determined Stewart to be a material witness in August 1989.
On September 4, 1990, during the preliminary hearing, Schultz objected, alleging that no evidence had been presented and that the trial court had not ruled on whether the witness was material and whether preservation of the testimony was necessary to prevent a failure of justice. The State contended the defendant had not been prejudiced in any way, but suggested the trial court comply retroactively with the statute. The trial court responded:
“Well, I think the Court has no difficulty in making those findings at this point in time. Based upon the contents of the court file, including the charges and affidavit contained therein, it is the Court’s view that there is a sufficient basis for the Court to find at this time, and I don’t think that a finding at this point in time in any way affects the rights of the parties or prejudices the parties, I therefore find that [Dalton Stewart] is a material witness and that the failure to produce this witness would result in a failure of justice unless we do proceed with the deposition at the preliminary hearing stage. ... I therefore find that the requirements of K.S.A. 22-3211 with respect to unavailability, materiality, and failure of justice have been met — or, I should say, there is sufficient basis for the court to make those findings under the statute. And the Court would so order.”
At the July 26, 1989, suppression hearing, prior to the court’s authorization for Stewart’s deposition to be taken, KBI Agent Christy testified he had interviewed Stewart. Christy’s investigative reports of the two interviews were entered into evidence. According to the reports, Stewart said that the City did not have any of the surplus property Schultz had purchased; that Schultz had never been a purchasing agent for the City; that Kemper Seltmann told him about an arrangement with Schultz in which Schultz would pay the City five percent of what Schultz paid for surplus property bought in the City’s name; that, for reasons unknown to Stewart, Schultz had written two checks to the City totaling $846.14; that Stewart had become aware of a checking account in the name of City of Earlton Industrial Development Fund; and that the city council called an emergency meeting at which Schultz was present to discuss these matters. Based upon these reports, Stewart was a material witness. We cannot say the retroactive finding prejudiced the defendant and, thus, do not find error.
At a hearing held on July 3, 1990, to determine whether to admit Stewart’s deposition at the preliminary hearing, Dr. Pam Maben again testified by telephone. She confirmed her earlier evaluation. Dr. Maben mentioned she was concerned about Stewart’s health. He had been under additional stress because of his nephew’s death, the result of which had been documented in heart rhythm difficulties such as additional heartbeats and skipped heartbeats. The doctor was concerned about further stress, including self-induced stress about appearing in open court. The doctor said that Stewart’s health had not improved dramatically since she had last testified in August 1989. Dr. Maben subsequently testified in person on August 14, 1990. In addition to confirming what she previously had said, she mentioned that Stewart’s bypass surgery had been a quadruple bypass. Because stress precipitated his chest pains, the doctor had instructed Stewart to reduce the stress in his life. She also had prescribed nerve medications, Valium and Tranxene, for him. The doctor said that Stewart ended up in the hospital with chest pain within one month after his deposition was taken, that she expected a similar reaction if he testified at the preliminary hearing or at the trial, and that she did not believe he should testify. The trial court admitted the deposition for preliminary hearing purposes.
When the issue arose at trial, the trial court ruled to admit the deposition testimony for the following reasons: Dr. Maben consistently had maintained that testifying in open court could be detrimental to Stewart’s health, and there had been no medical evidence contrary to Dr. Maben’s opinion. The court also noted that it had dealt exhaustively with the issue. Because a reasonable person would agree with the trial court’s ruling, the ruling is not an abuse of discretion.
Schultz also argues that, prior to the reading of the Stewart deposition into evidence at trial, the trial court erred in not striking the references in the deposition to exhibits never offered or admitted into evidence at the deposition. The defendant raised this argument to the trial court in a motion to strike. The trial court denied Schultz’ motion, finding it “unpersuasive.” Several of the deposition exhibits previously had been admitted into evidence at trial. The trial court admitted the others into evidence, taking into account the requisite foundation and relevancy requirements.
For support, the defendant cites K.S.A. 1992 Supp. 60-232(b) for the proposition that a party can object at trial to the admissibility of any deposition. The statute provides, in relevant part: “[O]bjection may be made at the trial or hearing to receiving in evidence any deposition or part thereof for any reason which would require the exclusion of the evidence if the witness were then present and testifying.” Schultz does not explain why the exhibits would have been inadmissible if Stewart had been present and testifying at trial.
Two concerns Schultz advances on appeal are that he was denied the opportunity to object to the admissibility of the exhibits because they were not offered into evidence and that there was no testimony linking deposition exhibits with trial exhibits. Although the defendant may not have had the opportunity to object to the exhibits at the deposition, he had the opportunity at trial. Regarding the deposition exhibits already admitted into evidence, Schultz could have objected when the exhibits initially were offered into evidence at trial. Regarding the deposition exhibits the trial court admitted into evidence in response to the defendant’s motion, Schultz could have made a specific objection to a specific exhibit at the time of the court’s ruling. He did not do this. Regarding his second concern, it is true there was no specific testimony to the jury explaining, for example, that Deposition Exhibit No. 1 was the same as State’s Exhibit No. 10. Nonetheless, because the question or answer in the deposition described, the exhibit, it would not have been difficult for the jury to determine the corresponding trial exhibit.
“Admission or exclusion of evidence is within the sound discretion of the trial court, subject to exclusionary rules.” State v. Friberg, 252 Kan. 141, Syl. ¶ 5, 843 P.2d 218 (1992). The trial court did not abuse its discretion in admitting the deposition exhibits. Because the deposition exhibits were admitted into evidence, there was no need to strike deposition references to them.
Schultz’ final argument regarding Stewart’s deposition is that the trial court erred in not striking statements attributed to Kemper Seltmann in the deposition. Stewart testified that Seltmann came over to his house on November 22, 1987, with donee application papers for him to sign. Stewart stated Seltmann asked him if it would be okay for Schultz to make surplus property purchases. Stewart responded it would be okay if it was legal and if Schultz paid for items with his personal check and did not use the City’s checking account. Stewart said Seltmann told him Schultz agreed to pay the City five percent of the purchase price on all surplus property Schultz purchased.
The defendant lodged numerous objections to the admission of Seltmann’s hearsay statements. The trial court overruled Schultz’ objection, finding that Seltmann’s statements were admissible under the coconspirator exception to the hearsay rule, K.S.A. 1992 Supp. 60-460(i), which provides;
“As against a party, a statement which would be admissible if made by the declarant at the hearing if . . . (2) the party and the declarant were participating in a plan to commit a crime or a civil wrong and the statement was relevant to the plan or its subject matter and was made while the plan was in existence and before its complete execution or other termination.”
In State v. Bird, 238 Kan. 160, 176, 708 P.2d 946 (1985), this court set forth the five prerequisites for utilizing this statute:
“(1) [T]he person testifying must be a third party; (2) the out-of-court statement about which the person will testify must have been made by one of the coconspirators; (3) the statement of the coconspirator must have been outside the presence of the accused; (4) the statement of the coconspirator must have been made while the conspiracy was in progress; and (5) the statement must be relevant to the plan or its subject matter.”
The Bird court added that “even if all five of these elements are satisfied, the testimony is not admissible unless evidence, other than the proffered out-of-court statement, is already in the record which establishes a ‘substantial factual’ basis for a conspiracy between the defendant and the declarant.” 238 Kan. at 176.
The trial court noted that Seltmann was unavailable as a witness because he was awaiting trial on charges arising out of these same events and because he had invoked his privilege against self-incrimination. The court then stated:
“The declarant in this case is Kemper Seltmann, the party is Mr. Schultz. There is sufficient evidence from the totality of the record in the preliminary hearing for the Court to determine that there was a joint plan on the part of Kemper Seltmann and the defendant to commit a crime and, therefore, under the aforesaid statute, the statements of Kemper Seltmann being relevant to its plan, to the plan or its subject matter and made while the plan was in existence and before its termination would come within that exception.”
Citing State v. Sherry, 233 Kan. 920, 667 P.2d 367 (1983), the trial court concluded that the Sherry court “probably considered evidence adduced at the preliminary hearing, and the Supreme Court states that: ‘The evidence introduced at the preliminary hearing was sufficient to establish a conspiracy ....’”
Schultz contends the trial court misinterpreted Sherry and erred in relying upon evidence presented at the preliminary hearing to establish the existence of a conspiracy. In Sherry, this court stated that “[t]he evidence introduced at the preliminary examination was sufficient to establish a conspiracy.” 233 Kan. at 934. As pointed out by the defendant, Sherry involved the admission of a coconspirators hearsay statement at the preliminary hearing. Schultz claims that, for this purpose, only evidence presented at trial may be considered. For support, the defendant cites State v. Borserine, 184 Kan. 405, 410-11, 337 P.2d 697 (1959), in which this court stated:
“Ordinarily when acts and declarations of one or more co-conspirators are offered in evidence against another co-conspirator by a third party witness or witnesses, the conspiracy should first be established prima facie, and to the satisfaction of the trial judge. But this cannot always be required. Where proof of the conspiracy depends on a vast amount of circumstantial evidence — a vast number of isolated and independent facts — it cannot be required. In any case where such acts and declarations are introduced in evidence, and the whole of the evidence introduced at the trial taken together shows that a conspiracy actually exists, it will be considered immaterial whether the conspiracy was established before, or after, the introduction of such acts and declarations. (State v. Winner, 17 Kan. 298 [1876].)”
See State v. Nirschl, 208 Kan. 111, Syl. ¶ 2, 490 P.2d 917 (1971) (In this context, we have said “evidence extrinsic to such out of court declaration must be in the record to establish some substantial factual basis of the existence of such conspiracy.”).
The trial court erred in stating that the evidence presented at the preliminary hearing was sufficient to establish a conspiracy. The error, however, is harmless. As the Borserine court noted, as long as the evidence at trial taken together establishes the existence of a conspiracy, it does not matter at what point in the trial the evidence was offered.
“ ‘To establish a conspiracy it is not necessary that there be any formal agreement manifested by formal words, written or spoken; it is enough if the parties tacitly come to an understanding in regard to the unlawful purpose and this may be inferred from sufficiently significant circumstances.
“ ‘While an agreement is a necessary element of a conspiracy, the existence of the agreement need not be proved directly, but may be inferred from other facts proved. If one concurs in a conspiracy, no proof of an agreement to concur is necessary to establish his guilt.’ [Citation omitted.]” Sherry, 233 Kan. at 934.
Here, there was evidence, absent Seltmann’s hearsay statements, establishing the existence of a conspiracy between Seltmann and the defendant to purchase surplus property. Stewart testified that when he signed the authorization card, only his name and Larry Bailey’s name were listed. Seltmann’s and Schultz’ names were not listed at that time, evidently being added later. Schultz misrepresented himself to the surplus property personnel as the City’s purchasing agent. Seltmann was misrepresented as being the board chairman. An additional, but unauthorized, checking account for the City was discovered under the name of the City of Earlton Industrial Development Fund. Only Seltmann’s name was on the signature card; however, a check written on Schultz’ business account opened up the account. There was evidence Schultz had deposited money into this account. All of the cancelled checks for this account, except the one to close the account, were made payable to “Surplus Property Fund.”
There was sufficient evidence offered at trial to establish a conspiracy between Seltmann and Schultz. “The decision of a trial court, if correct, is to be upheld even though the court may have relied upon an erroneous ground or reason for its decision.” Sharp v. State, 250 Kan. 408, Syl. ¶ 6, 827 P.2d 12, cert. denied __ U.S. __, 113 S. Ct. 194 (1992). The trial court did not err in admitting Seltmann’s statements.
IV. FEDERAL SURPLUS PROPERTY RESTRICTIONS
Schultz argues the trial court erred in admitting evidence of use and disposal restrictions pertaining to federal surplus property because none of the property charged as having been stolen in the complaint was subject to the federal restrictions. He claims the federal restrictions do not apply because Kansas has not complied with federal law governing state distribution of federal surplus property. One of the defendant’s claims of noncompliance is that Kansas has failed to develop “a detailed plan of operation” for the distribution of federal surplus property, as required by 40 U.S.C. § 484(j)(4)(A) (1988).
The issue before the court was not whether Kansas has been complying with federal surplus property regulations, but whether the defendant committed theft by deception. The federal government determines whether Kansas is complying with federal law and qualifies for continued participation in the federal surplus property program.
A reasonable person would agree that a working knowledge of the state and federal surplus programs was relevant to the jury’s determination. The trial court did not abuse its discretion in admitting the regulations.
V. SUFFICIENCY OF THE EVIDENCE
Schultz makes several sufficiency of the evidence arguments. He maintains that even if the federal restrictions do apply, the evidence was insufficient to show his conduct violated the use and disposal regulations. In other words, he claims the State failed to prove he did not use the federal surplus aluminum for economic development or other public purpose, which is permitted under the federal regulations. See 41 C.F.R. § 101-44.200(a) (1987), 41 C.F.R. § 101-44.207(a)(7) (1987), 41 C.F.R. § 101-44.207(b)(2) (1987).
“If the sufficiency of evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in die light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Grissom, 251 Kan. 851, Syl. ¶ 4, 840 P.2d 1142 (1992).
Under the federal program, a private citizen is not allowed to purchase surplus property directly from the surplus property center. The only time a private citizen can purchase federal surplus property is at public auctions. At the time the purchases were made in this case, a private citizen could purchase state surplus property after it had been offered for sale for at least 60 days. K.S.A. 75-6602.
Schultz bought aluminum from the surplus property program. An invoice dated January 20, 1988, showed Schultz had bought 5,812 pounds of miscellaneous aluminum at 10 cents per pound for a total of $581.20. An invoice dated January 29, 1988, showed Schultz had bought 7,000 pounds of miscellaneous aluminum at 10 cents per pound for a total of $700. An invoice dated February 11, 1988, showed Schultz had bought 11,024 pounds of aluminum plate at 20 cents per pound for a total of $2,204.80. The checks were written on the City of Earlton Industrial Development Fund account.
The assistant director of the federal division of the surplus property program testified that Schultz told him “the aluminum would be used in a Vo-tech program that he was developing and the sheets of aluminum would be used to repair buildings” in Earlton. One of the defense witnesses, Eldon Cleaver, testified he was in the scrap business and had bought scrap aluminum from the defendant. The State produced a copy of a check written on Cleaver’s business account to John Schultz on January 27, 1988, in the amount of $16,500. Cleaver testified he could not remember how much he paid per pound for the aluminum. He made a subsequent buy in February 1988. Cleaver resold the aluminum.
Additionally, there was evidence that the City had never authorized Schultz to act as its purchasing agent, that the City had not approved or received the purchases, and that the City was unaware of and had never authorized the City of Earlton Industrial Development Fund bank account.
There was no evidence presented that the aluminum was used for economic development or another public purpose. A jury reasonably could conclude Schultz sold the aluminum to Cleaver for personal profit. The State presented sufficient evidence for a rational factfinder to conclude beyond a reasonable doubt that Schultz had not used the property purchased for economic purposes, other than his own, or for public purposes.
The defendant also asserts several reasons why the evidence failed to show he obtained the surplus property by deception. He first argues that the State failed to prove the City was never an authorized eligible donee. Whether the City was an authorized eligible donee is not the issue — the City was not on trial for the 10 counts of theft by deception. Furthermore, there was evidence Schultz obtained the City’s signatures on the application forms by deception. Stewart testified that when Kemper Seltmann brought him the authorization documents to sign, Seltmann asked him if it would be okay for Schultz to buy surplus property. Stewart said it would be okay if it was legal and the surplus property office would accept Schultz’ personal check, but that Schultz’ purchases were not to go through the City’s checking account. Stewart also stated that when he signed the signature card only his name and Larry Bailey’s name were listed on the card. Schultz’ and Seltmann’s names were not listed at that time.
Schultz then contends the State failed to show he was not an authorized purchasing agent for the City. There was evidence to the contrary. Stewart, the city treasurer, testified that the question of appointing a purchasing agent in general, or Schultz specifically, had never been discussed at a formal or informal city council meeting during the eight years he had been serving on the council. Stewart expressly testified that at no time did he ever knowingly authorize Schultz to be a purchasing agent for the City. According to Stewart, the City had never approved any of the purchases Schultz had made, had never received any of the property Schultz had purchased, and had never bought surplus property. Dean Buster, another city council member, confirmed that the City had never appointed Schultz to act as its purchasing agent. Viewing the evidence in the light most favorable to the prosecution, there was sufficient evidence for a rational factfinder to find beyond a reasonable doubt that Schultz was not an authorized purchasing agent for the City.
Schultz next argues no theft occurred because the government received its asking price and suffered no monetary loss. For support, the defendant cites State v. Palmer, 50 Kan. 318, 324, 32 Pac. 29 (1893), in which this court stated:
“The mere obtaining of money under false pretenses does not alone constitute a crime. The money must be obtained to the injury of some one. Though money is obtained by misrepresentation, if no injury follows, no crime is accomplished. In this case, the defendant was undoubtedly guilty of many flagrant misrepresentations and other dishonest acts; but if all such misrepresentations and dishonorable acts did not actually result in injury to McClelland, [the defendant] cannot be convicted in this state simply because upon the face of things she is bad.”
In Palmer, the defendant was charged with having obtained money under false pretenses. Francis McClelland lent the defendant money to invest in her business of buying and selling silkworm eggs. The defendant put up three notes as security, in the amounts of $700, $1,500, and $3,000. There was some evi dence, although it was not conclusive, that the $3,000 note was worthless. There was no evidence the other two notes were not worth their face value. McClelland did not attempt to collect upon any of the notes. In holding that McClelland had not been defrauded, this court reasoned: “If these two notes are good and collectible, McClelland has at least $2,200 in security for less than $1,300 that he let the defendant have and did not get back.” 50 Kan. at 324.
Palmer can be distinguished factually from the case at hand. Additionally, the Palmer court did not define “injury.” Although it expressly was noted in Palmer that there had been no injury, the same cannot be said here. At the very least, Schultz’ actions deprived eligible donees from purchasing the surplus property and thwarted the purpose of the program.
Furthermore, K.S.A. 21-3701 does not require that the property in question be obtained to the injury of another. The statute provides in pertinent part:
“Theft is any of the following acts done with intent to deprive the owner permanently of the possession, use or benefit of the owner’s property:
“(b) Obtaining by deception control over property.”
The legislature has defined several of the words used in the theft statute. “ ‘Deception’ means knowingly and willfully making a false statement or representation, express or implied pertaining to a present or past existing fact.” K.S.A. 21-3110(5). “ ‘Obtain’ means to bring about a transfer of interest in or possession of property, whether to the offender or to another.” K.S.A. 21-3110(11). “ ‘Obtains or exerts control’ over property includes but is not limited to, the taking, carrying away, or the sale, conveyance, or transfer of title to, interest in, or possession of property.” K.S.A. 21-3110(12). This court has acknowledged the crime of theft by deception incorporates the prior crime of obtaining money by false pretenses. Hence, in order to prove theft by deception the State must prove that the defendant obtained control over the property by means of a false statement or misrepresentation, that the false statement or misrepresentation deceived the victim, and that the victim in whole or in part relied upon the false statement in relinquishing control of the property to the defendant. State v. Rios, 246 Kan. 517, 526-27, 792 P.2d 1065 (1990).
Schultz also claims the evidence was insufficient because the State relied upon representations of a future act as the basis for an ongoing theft by deception and did not rely upon past or present existing facts. See State v. Ringi, 238 Kan. 523, 529, 712 P.2d 1223 (1986) (“An assurance as to a future transaction, however false or fraudulent it may be, is not a false pretense that lays the foundation for a criminal prosecution.”); K.S.A. 21-3110(5). The defendant cites to the compliance audit forms as an example. Surplus property purchasers are sent compliance audit forms, asking if the property purchased has been placed in use, how it is being used, and if it has saved the purchaser money. These forms also describe the property purchased and list the serial number of the purchased property. The defendant objected to testimony about these forms, arguing that no compliance audit forms had been sent with regard to the property charged as having been stolen in this case.
The trial court asked the State to explain the relevance of these forms to the case at hand. The State explained that two sets of compliance audit forms had been sent regarding property purchased by Schultz. Kemper Seltmann had signed the first set, stating that the property was in appropriate use or that it was not economically feasible to repair the particular item and usable parts were being retained. After this matter came to light, an identical set of forms was sent to the City. Dalton Stewart, as city clerk and treasurer of Earlton, signed the forms, certifying the property was not in the City’s possession. The State then argued:
“The relevance is . . . this property never went to the City of Earlton and the whole thing about even it being purchased by the City of Earlton, it’s a sham. And the reason . . . that’s true is in part and parcel because of what those documents say. That a lot of those items that were listed on those particular documents never went to Earlton and Earlton never had them. And this is evidence that shows the conspiracy, if you will, or the overall plan for this defendant to take them immediately into his possession, and the City of Earlton had nothing to do with this.”
The trial court responded: “So, in a nutshell what you’re saying this shows is the ongoing plan . . . [of] deception for the purpose of the private use of the defendant?”
The defendant erroneously equates the trial court’s use of the word “ongoing” with representations of a future act. Although Schultz’ statement of the law is accurate, his application of the law to the facts is not. The compliance audit forms concern past or present existing facts.
In conclusion, there was evidence the defendant obtained control over the surplus property by means of a false statement or misrepresentation. He was instrumental in qualifying the City as an eligible donee; however, he misrepresented the program and its legal ramifications to the City. He misrepresented himself to the state and federal surplus property programs as the City’s purchasing agent. Schultz indicated the purchases would be used for economic development or public purposes. The directors of the state and federal surplus property programs testified they believed Schultz to be the City’s purchasing agent and had they not believed him, he would not have been eligible to purchase surplus property. Considering all the evidence in the light most favorable to the State, there was sufficient evidence for a jury to find Schultz guilty of theft by deception.
VI. RELEASE OF SEIZED PROPERTY
KBI Agent Christy recovered surplus property from a warehouse owned by the defendant on May 26, 1988. The property was received with the consent and cooperation of the defendant and his attorney. After the verdict of- guilty, the State filed a motion asking the trial court to order the release of the property to the government, which the trial court granted over Schultz’ objections.
On appeal, the defendant claims the trial court erred in releasing the property because none of the recovered surplus property was implicated in any of the theft counts of which he was charged and convicted. Schultz points out that the government was paid its asking price for this property and that neither the City nor he was reimbursed for the purchase price. Therefore, according to the defendant, his due process rights were violated. Neither side cites any authority.
In granting the State’s motion, the trial court stated:
“Legal tide cannot be fully litigated in this proceeding, if there are legal title questions. The duty of the Court is to consider restitution. Restitution is defined, in the context in the instant case, as the restoration of property to the lawful owner.
“It appears to the Court, from the evidence I received, that the federal government is the lawful owner. If the property in question were still in possession of the defendant, the Court would order him to turn it over. ... I simply reaffirm and approve the fact that it has been restored to the federal government but I do not feel I can go beyond this finding because if there are civil issues involving the property or the amounts paid I think they are beyond the proper purview and jurisdiction of the Court.”
Based, .on the arguments made in the trial court and in this court, we cannot say the trial court erred in so ruling. The defendant’s remedy, if any, is by a separate action.
Affirmed.
Davis, J., not participating. | [
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The opinion of the court was delivered by
Six, J.:
This is a criminal law newly discovered evidence case. The trial court denied Gary Lee Hall’s motion for a new trial. Our jurisdiction is under K.S.A. 1992 Supp. 22-3601(b)(l) (Hall was convicted of committing a class A felony).
The standard of review on the primary issue of newly discovered evidence is abuse of discretion. Taylor v. State, 251 Kan. 272, 277, 834 P.2d 1325 (1992).
We find no error and affirm.
Facts
The facts relating to Hall’s conviction for the murder of Delbert Angleton appear in State v. Hall, 246 Kan. 728, 731-38, 793 P.2d 737 (1990) (Hall I). Following our decision in Hall I, Hall requested the papers from his appellate attorney’s file. Among the papers, Hall discovered a report written by Kansas Bureau of Investigation (KBI) Agent Ron Klingenberg. The Klingenberg report was written as part of an investigation into Angleton’s disappearance; at the time of the report, the KBI was unaware that Angleton had been murdered. Hall contends on appeal that the report was significant because it contained statements that might have had an effect on venue or jurisdiction, that suggested a possible insurance fraud scheme, or that suggested the deceased was possibly involved in drug running. Hall states that he did not see the Klingenberg report until after the Hall I opinion was filed.
In his written statement, admitted at the hearing on the motion for a new trial, Hall asserts that his trial attorney had assured him that he would give Hall a copy of all reports before trial. According to Hall, the trial attorney did not discuss the Klingenberg report during trial preparation. Hall also states that his attorney at trial failed to ask any questions regarding the report. Hall asserts that his attorney “had clearly indicated during the trial that he did not have any of agent Klingenberg’s reports.” (A copy of the Hall I trial transcript has not been furnished in this appeal.)
Special Agent Alan Jones of the KBI testified at the Hall I preliminary hearing. The Klingenberg report in question was in Agent Jones’ file. Hall’s trial attorney copied the entire Jones file. Special Agent Bruce Mellor, the K.B.I. agent in charge of the Hall I investigation, also had a copy of the Klingenberg report in his files. Mellor’s files were made available to Hall’s trial counsel. Trial counsel testified that he had copies of the Klingenberg report prior to the preliminary hearing. Agent Klingenberg was present at the Hall I preliminary hearing and at trial. Hall did not call Klingenberg as a witness.
Hall filed a motion for a new trial on December 3, 1991, based upon newly discovered evidence, i.e., the Klingenberg report and a letter from Richard and Sherry DeGroat which was received by the Appellate Defender’s Office on October 5, 1988, approximately a year after the Hall I jury trial. Sherry DeGroat is the sister of Lennie Hall, who was Hall’s wife at the time of the Hall I trial. (Hall and Roberta, his wife at the time of Angleton’s murder, were divorced in 1985. 246 Kan. at 732.)
The newly discovered evidence motion was heard and decided on February 4, 1992, 63 days after the motion was filed.
Newly Discovered Evidence
Hall contends that he had never seen the Klingenberg report before it was forwarded to him by the Appellate Defender’s Office after we affirmed his conviction. Hall believes his trial counsel did not have the report at trial because counsel said he did not have any of Agent Klingenberg’s reports. Hall summarizes statements within the report and advances an analysis of how he believes the report could be relevant to what occurred at his earlier trial. Hall’s analysis concerning the impact of the report is unclear. None of the facts mentioned in the report directly absolve Hall. He suggests that the information is relevant because there were only two witnesses to the events, Hall and his ex-wife, Roberta. Roberta was granted immunity to testify against him. Hall concludes that in such a scenario, any evidence about where Angleton went, insurance fraud, or drug running could easily tip the scales in Hall’s favor.
Hall observes that the DeGroats said they heard Roberta make the following statement: “Gary, if you don’t do exactly what I want you to do — then I am going to make the little deal buried up the hill look like you did it.” (Angleton’s body had been dumped into a hole dug to bury dead cattle.) Hall I, 246 Kan. at 734. Hall alleges that he did not know of any witnesses to Roberta’s statement until October 5, 1988.
The State emphasizes and we agree: (1) The granting of a new trial for newly discovered evidence is in the trial court’s discretion; (2) a new trial should not be granted unless the evidence is of such materiality that it would be likely to produce a different result upon retrial; (3) the burden of proof is on Hall to show that the alleged newly discovered evidence could not with reasonable diligence have been produced at trial; and (4) appellate review of an order denying a new trial is limited to whether the trial court abused its discretion. Baker v. State, 243 Kan. 1, Syl. ¶ 7, 755 P.2d 493 (1988).
The State asserts that the KBI report and the content of the DeGroat letter could have been presented at trial: Hall was a party to the conversation described in the DeGroat letter. Hall testified at trial and could have related the DeGroat conversation to the jury. Additionally, (1) Lennie Hall was present at trial and did not testify, and (2) Hall could have called the DeGroats to the witness stand to corroborate his story regarding Roberta’s alleged threat.
We agree that Hall has failed to show that the evidence could not have been produced at trial. The trial court evaluated the evidence and concluded that Hall’s trial counsel had the Klingenberg report in his possession and that Hall had knowledge of the conversation discussed within the DeGroat letter. Evidence was presented at the hearing which supported the trial court’s conclusions. “The credibility of the evidence offered in support of the motion is for the trial court’s consideration.” State v. Ji, 251 Kan. 3, 38, 832 P.2d 1176 (1992). Hall simply denies having the report and asserts that his counsel’s statement at trial proves that his counsel did not have the report. However, his counsel’s statement at trial was subject to examination at the motion hearing. Trial counsel explained that the statement “was an oversight on [his] part” and testified that he did, in fact, have the report in his possession prior to trial. The DeGroat letter itself shows that Hall was a party to the events discussed.
K.S.A. 22-3501 — New Trial Motions
K.S.A. 22-3501 controls new trial motions.
“(1) The court on motion of a defendant may grant a new trial to him if required in the interest of justice. . . .
“(2) A motion for a new trial shall be heard and determined by the court within 45 days from the date it is made.”
Hall observes that the motion for a new trial was filed December 3, 1991. The district court scheduled Hall’s motion for hearing on February 4, 1992. The motion was not heard and determined within 45 days.
The trial judge at the hearing on the new trial motion concluded that Hall was not prejudiced by the failure to hear and decide the motion within 45 days. Hall asserts: “K.S.A. 22-3501 does not say anything about prejudice to the defendant. It does not say anything about a busy judge setting the motion for hearing whenever he has time on his calendar. And, the statute does not say anything about being an absolute rule for motions after verdicts and some kind of more flexible rule for motions based on newly discovered evidence.” Hall indicates that he did nothing to delay the hearing of the matter. Hall argues that “[i]f this statute does not have some teeth in it somewhere, judges will be free to ignore it as the circumstances of their docket or their knowledge of the statute dictates.” Hall concludes that K.S.A. 22-3501(2) would be effectively repealed if it is never enforced and that repeal is a job for the legislature.
The State counters with an analysis of Hall’s actions. Hall first saw the Klingenberg report on September 19, 1990, but did not file his motion for a new trial until December 3, 1991. Additionally, Hall neither communicated with the trial court that the motion had been filed nor requested a hearing. See Supreme Court Rule 137 (1992 Kan. Ct. R. Annot. 121). Hall neither requested oral argument nor filed a memorandum on the motion as required by Supreme Court Rule 133 (1992 Kan. Ct. R. Annot. 118). The State emphasizes that Hall failed to notify the district court that the hearing was set beyond the 45-day statutory period. Hall did not object to the hearing date. According to the State, Hall had an obligation to see that his motion was heard in a timely fashion.
In State v. Milum, 213 Kan. 581, 584, 516 P.2d 984 (1973), Milum raised the issue of the trial court’s delay in ruling on his motion for a new trial. In Milum, the motion was filed July 1, 1971; argument was on September 15, 1971. The motion was denied and sentence was imposed on July 7, 1972. Milum cited K.S.A. 22-3501(2), emphasizing the 45-day requirement. We reasoned in Milum: “While we cannot condone unwarranted delay, under the circumstances of this case appellant can demonstrate no prejudice.” 213 Kan. at 584. The Milum analysis controls the case at bar. The 45-day time period is a directive to the trial court. The State correctly points out that Hall has not shown that he was prejudiced by the court’s delay in hearing argument on the motion for a new trial. During oral argument before this court, Hall’s appellate counsel was unable to identify any prejudice to Hall as a result of the 18-day delay beyond the statutory 45-day tíme period. Hall did not file his motion until more than one year after he first saw the Klingenberg report. The trial judge presides over a multi-county western Kansas judicial district. Despite Hall’s failure to provide the Rule 137 notification, the trial judge was aware of the motion and made a conscious decision to set the hearing for the next date he was scheduled to appear in court in Scott County. Hall requests that we grant “whatever relief that the facts and law justify.” We find no justification for a new trial.
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The opinion of the court was delivered by
Allegrucci, J.:
Ivan Thompson, Jr., brought this action against his automobile insurance carrier, KFB Insurance Company (KFB), claiming underinsured motorist benefits. Thompson sought to recover for personal injuries and damages suffered as a result of an automobile accident. Before trial began, the district court ruled that K.S.A. 1992 Supp. 60-3801 et seq., the current Collateral Source Benefits Act, is unconstitutional. Evidence of collateral source benefits was not admitted at trial. The jury awarded $377,000 to Thompson. The district court made several reductions in the award and entered judgment for him in the amount of $226,150. KFB appeals from the jury verdict and rulings of the district court. This appeal was transferred from the Court of Appeals by order of this court, pursuant to K.S.A. 20-3018(c).
With regard to the circumstances of the accident, there is no dispute. Ivan Thompson was a passenger in his automobile, which was being driven east on Interstate 70 by Joy Burgen. A westbound automobile driven by Verbal Russell crossed the median and struck Thompson’s automobile head-on or nearly so. The accident occurred on May 26, 1990.
Thompson sustained injuries which required treatment and hospitalization in St. Louis, near the place of the accident. Among his attending physicians in St. Louis were a general surgeon, Dr. John Hoehn, and an orthopedic surgeon, Dr. Edwin Carter.
Thompson was treated for rib fractures, a “flail” chest, a collapsed lung, and a comminuted fracture of the left femur. He had five ribs on his left side which had more than one fracture in each. A comminuted fracture involves more than two fragments. X-rays of Thompson’s left thigh showed at least eight pieces of bone as well as a V-shaped fracture which extended from just below the hip joint down into the knee joint. Repair is complicated when the knee joint is involved, and there is a greater chance of arthritis in the future.
While in the hospital in St. Louis from May 26 to May 28, Thompson was in the intensive care unit. He was transferred to “the floor” on May 28, and on June 1 he was moved by ambulance to Topeka for surgical fixation of his fracture by Dr. Kurt Knappenberger.
The orthopedic surgery involved stabilizing the alignment and configuration of the femur and knee joint with screws and inserting a rod down the length of the femur. Thompson was released from the hospital within a week after the surgery, which occurred on June 5. On August 24 Thompson was allowed to start placing some weight on his left leg. At the time of trial, November 1991, the rod had not yet been removed from Thompson’s leg. Its removal will require surgery, will result in two to three more weeks on crutches, and will cost approximately $3,000.
Thompson owns and drives a dump truck in which he hauls asphalt for a construction company. At the time of trial he was 53 years old. After the accident he modified his truck so that he could operate the clutch with a hand lever which allowed him to return to work sooner than otherwise. He was away from work about 10 weeks. Some mechanical work he previously would have done on his truck he now pays someone else to do. He plans to have the rod removed from his leg during the slow winter months to avoid missing more work. Additional facts will be stated as relevant to determination of the issues.
We first consider if the current collateral source benefits statutes, K.S.A. 1992 Supp. 60-3801 through 60-3807, are constitutional. Article 38 of Chapter 60 of the Kansas Statutes Annotated is entitled “Collateral Source Benefits.” The Act became effective July 1, 1988. K.S.A. 1992 Supp. 60-3801 is the definition section of the Act. K.S.A. 1992 Supp. 60-3806 provides for severability of any invalid clause or provision; K.S.A. 1992 Supp. 60-3807 provides for application of the Act to causes of action which accrue on or after the effective date.
K.S.A. 1992 Supp. 60-3802 through 60-3805 are the operative sections and provide:
“In any action for personal injury or death, in which the claimant demands judgment for damages in excess of $150,000, evidence of collateral source benefits received or evidence of collateral source benefits which are reasonably expected to be received in the future shall be admissible.” K.S.A: 1992 Supp. 60-3802.
“When evidence of collateral source benefits is admitted into evidence pursuant to K.S.A. 1992 Supp. 60-3802, evidence of the cost of the collateral source benefit shall be admissible.” K.S.A. 1992 Supp. 60-3803.
“In determining damages in an action for personal injury or death, the trier of fact shall determine the net collateral source benefits received and the net collateral source benefits reasonably expected to be received in the future. If the action for personal injury or death is tried to a jury, the jury will be instructed to make such determination by itemization of the verdict.” K.S.A. 1992 Supp. 60-3804.
“(a) The amount of the judgment shall be reduced by the court by the amount of net collateral source benefits received, or reasonably expected to be received in the future but only to the extent that such benefits exceed the aggregate amount by which:
(1) Such judgment was reduced pursuant to subsection (a) of K.S.A. 60-258a and amendments thereto;
(2) the claimant’s ability to recover such judgment was limited by the application of subsections (c) and (d) of K.S.A. 60-258a and amendments thereto, other than by virtue of claimant’s settlement with or decision not to assert a legally enforceable claim against a named or an unnamed party;
(3) the amount to which the claimant’s ability to recover such judgment was limited by the insolvency or bankruptcy of a person; and
(4) the award of damages has been reduced because of a statutory limit upon the recovery of damages.
“(b) If there is no amount falling within subsections (a)(1) through (a)(4) then the court shall reduce the judgment by the full amount of the net collateral source benefits.” K.S.A. 1992 Supp. 60-3805.
At common law, the collateral source rule prevented the jury from hearing evidence of payments made to an injured person by a source independent of the tortfeasor as a result of the occurrence upon which the personal injury action is based. The court has stated the rule as follows: “Under the collateral source rule,’ benefits received by the plaintiff from a source wholly independent of and collateral to the wrongdoer will not diminish the damages otherwise recoverable from the wrongdoer.” Farley v. Engelken, 241 Kan. 663, Syl. ¶ 1, 740 P.2d 1058 (1987).
Three times in recent memory the Kansas Legislature has enacted statutes which were intended to override or limit the common-law rule. K.S.A. 60-471(a), enacted in 1976, provided in pertinent part:
“In any action for damages for personal injuries or death arising out of the rendering of or the failure to render professional services by any health care provider, evidence of any reimbursement or indemnification received by a party for damages sustained from such injury or death, excluding payments from insurance paid for in whole or in part by such party or his or her employer, and services provided by a health maintenance organization to treat any such injury, excluding services paid for in whole or in part by such party or his or- her employer, shall be admissible for consideration by the trier of fact subject to the provisions of Subsection (b).”
In Wentling v. Medical Anesthesia Services, 237 Kan. 503, 701 P.2d 939 (1985), this court held that K.S.A. 60-471 violated the equal protection provisions of the federal and Kansas Constitutions, and in 1985 the statute was repealed. L. 1985, ch. 197, § 5.
Then the legislature enacted K.S.A. 1986 Supp. 60-3403, which provided in pertinent part:
“(a) In any medical malpractice liability action, evidence of the amount of reimbursement or indemnification paid or to be paid to or for the benefit of. a claimant under the following shall be admissible: (1) Medical, disability or other insurance coverage except life insurance coverage; or (2) workers’ compensation, military service benefit plan, employment wage continuation plan, social welfare benefit program or other benefit plan or program provided by law.”
In Farley v. Engelken, this court ruled that 60-3403 was unconstitutional, 241 Kan. at 678; in 1988 the statute was repealed, L. 1988, ch. 222, § 8.
In 1988 the legislature enacted K.S.A. 60-3801 et seq. L. 1988, ch. 222. In the present case, the district court ruled that the current statutory override of the collateral source rule is unconstitutional, and the question is once more before this court.
The district court’s decision rested on equal protection grounds. Pertinent portions of the ruling are as follows:
“There hasn’t been any appellate court decisions on this issue. There have been no federal district court decisions on this issue. You did cite that Gregory case which went up since. But, — it did deal with this statute — but to me, it gave no hint as to the constitutional question which the plaintiff raises here. Essentially, that that statute violates the equal protection because it treats people differently. It fails to treat people alike. And the only distinction [that] is made is the size of the claim. And as the Court said in Manzanares discrimination really isn’t the issue. The issue is whether there is a legitimate legislative purpose in creating the discrimination. Frankly, I haven’t seen it yet. I haven’t seen the purpose of making such a distinction in any brief. The statute is no help. I haven’t been submitted any records from committee hearings in the legislature and I have never seen any. So I do not know the reason for it. I would only have to speculate on that. But that’s frankly, to my mind, the weakness of the arguments in support of that statute. And that is, that so far, I have not been able to identify any reason for that kind of discrimination. And there not only has to be a reason, there would have to be a sufficient reason. And so, based upon what I know and what has been submitted to me, I am unable to find that there is certainly any sufficient reason, if there is any reason, for the clear, obvious discrimination.”
The parties failed to furnish any legislative history to aid the district court in its consideration of the distinction drawn between claims in excess of $150,000 and claims for lesser dollar amounts. Thus, there is nothing in the record on appeal. On appeal, the parties provided us legislative materials with their principal briefs. The Kansas Hospital Association and Kansas Medical Society (KHA/KMS) filed an amici curiae brief. After records from committee hearings were appended to that brief and submitted to this court, KFB included some material in appendices to its recently filed reply brief. It should be noted that the materials in these appendices do not conform to the requirement of Supreme Court Rule 6.02(f) (1992 Kan. Ct. R. Annot. 25) that an appendix consist “of limited extracts from the record on appeal.” (Emphasis added.)
The district court stated its ruling and its grounds as follows:
“My ruling is it is not constitutional under the equal protection clause and probably not under the Kansas Constitution, definitely not under the Kansas Constitution. I can’t give you the section right now. Trying to recall it. But I don’t have anything before me and don’t want to put the wrong section on the record. So the ruling would be that evidence of collateral sources would be inadmissible.”
The district court evidently was referring to § 1 of the Kansas Constitution Bill of Rights: “All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.”
The various levels of scrutiny employed in determining whether a statutory scheme violates equal protection guarantees recently were reviewed by the court in Stephenson v. Sugar Creek Packing, 250 Kan. 768, 774-75, 830 P.2d 41 (1992):
“As quoted in State ex rel. Schneider v. Liggett, 223 Kan. 610, 613, 576 P.2d 221 (1978), the United States Supreme Court has described the concept of ‘equal protection’ as one which ‘emphasizes disparity in treatment by a State between classes of individuals whose situations are arguably indistinguishable.’ Ross v. Moffitt, 417 U.S. 600, 609, 41 L. Ed. 2d 341, 94 S. Ct. 2437 (1974). Whether or not the legislation passes constitutional muster depends on the relationship borne by the challenged classification to the objective sought by its creation. . . .
“The examination of the relationship between the classification and the objective has become quite formalized. The United States Supreme Court articulates and applies three degrees of scrutiny when examining the relationship. The various levels of scrutiny were reviewed by this court in Farley v. Engelken, 241 Kan. 663, 669-70, 740 P.2d 1058 (1987).
“The least strict scrutiny is referred to as the ‘rational basis’ test. Relevance is the only relationship required between the classification and the objective. In McGowan v. Maryland, 366 U.S. 420, 425, 6 L. Ed. 2d 393, 81 S. Ct. 1101 (1961), it was explained that ‘[t]he constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State’s objective.’ Insofar as the objective is concerned, ‘[a] statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.’ 366 U.S. at 426. Thus, it appears that the legislature’s purpose in creating the classification need not be established. The classification must, however, bear a rational relationship to a legitimate objective. As noted by Justice Marshall in his dissent in Lyng v. Automobile Workers, 485 U.S. 360, 375, 99 L. Ed. 2d 380, 108 S. Ct. 1184 (1988):
The Court fails to note, however, that this standard of review, although deferential, “ ‘is not a toothless one.’ ” Mathews v. De Castro, 429 U.S. 181, 185 (1976), quoting Mathews v. Lucas, 427 U.S. 495, 510 (1976). The rational-basis test contains two substantive limitations on legislative choice: legislative enactments must implicate legitimate goals, and the means chosen by the legislature must bear a rational relationship to those goals. In an alternative formulation, the Court has explained that these limitations amount to a prescription that “ ‘all persons similarly situated should be treated alike.’ ”
“The intermediate level of scrutiny is termed “heightened scrutiny.’ Farley v. Engelken, 241 Kan. at 669. ‘It requires the statutory classification to substantially further a legitimate legislative purpose.’ 241 Kan. at 669. Another, perhaps stronger, statement of the heightened scrutiny test is that the classification ‘must serve important governmental objectives and must be substantially related to achievement of those objectives.’ Craig v. Boren, 429 U.S. 190, 197, 50 L. Ed. 2d 397, 97 S. Ct. 451 (1976).
“The highest level of scrutiny requires that the defendant demonstrate ‘that the classification is necessary to serve a compelling state interest.’ Farley v. Engelken, 241 Kan. at 670. This ‘strict scrutiny’ test has been applied by the United States Supreme Court in cases involving classifications such as race and fundamental rights guaranteed by the federal Constitution.”
Thompson relies on Farley in urging that heightened scrutiny would be appropriate. His reliance on the principal opinion in Farley is misplaced, as explained in Bair v. Peck, 248 Kan. 824, 811 P.2d 1176 (1991); Samsel v. Wheeler Transport Services, Inc., 246 Kan. 336, 355, 789 P.2d 541 (1990); and Leiker v. Gafford, 245 Kan. 325, 363, 778 P.2d 823 (1989). The following excerpt from Samsel was quoted in Stephenson:
“ ‘[0]nly Justice Herd, the author of the opinion, and then Chief Justice Prager applied the heightened scrutiny analysis. Two justices, Justices Lockett and Allegrucci, concurred in the result but disagreed with the application of the heightened scrutiny test and applied the rational basis test. Both agreed that equal protection requires that all who are injured by another’s negligent act have an equal right to compensation from the negligent tortfeasor, regardless of any classification that the legislature has attempted to impose. If the legislature wishes to change the rules of evidence by abrogating the collateral source rule, it may do so if applied equally to all who are injured by the negligent act of another. The three dissenting justices also applied the rational basis test.’ 246 Kan. at 355.” 250 Kan. at 776-77.
The rational basis test is the appropriate measure of equal protection in the present case. We have consistently recognized that the equal protection clause of the Fourteenth Amendment does not preclude the legislature from treating different claims of parties in different ways. A legislative classification will be upheld if the classification itself is rationally related to a legitimate legislative purpose. The classification, however, “must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.” Royster Guano Co. v. Virginia, 253 U.S. 412, 415, 64 L. Ed. 989, 40 S. Ct. 560 (1920).
In the present case, there is more than one classification in the statutory scheme which may merit scrutiny. The most obvious one, and the one singled out by the district court and the parties, is the application of the statute only in actions where the demand exceeds $150,000. Our first task, therefore, is to determine whether the classification of plaintiffs by the size of their demands is relevant to a legitimate State objective.
The legislative purpose, as stated by KFB, is to compensate “all tort victims fully for their injuries while reducing or eliminating recoveries by personal injury plaintiffs in excess of the total damages they have suffered.” KFB makes several other statements of the legislative purpose: “The Kansas Legislature is attempting to reduce the overall cost of insurance by preventing ‘double recoveries’ in situations where the injured party is otherwise fully compensated.” “All the Kansas legislature has attempted to do is reduce the instances of double recovery to lessen the burden on the insurance system.”
“[I]ts legitimate purpose [is] to address concerns relating to the sky-rocketing cost and availability of insurance, and the tort system in general, by compensating all tort victims fully for their injuries while reducing or eliminating recoveries by personal injury plaintiffs in excess of total damages they have suffered.”
KFB maintains that the “legislature’s modification of the common law collateral source rule bears a ‘real and substantial relation’ to a legitimate legislative goal.” This, of course, begs the question. It is not enough to say that the legislature achieved what it set out to do. The question is whether discriminatory aspects of the legislation bear a rational relationship to the legislature’s objective. In this regard KFB offers scant guidance for the court. KFB seems to suggest that, because the statutory exemption “aids” plaintiffs seeking $150,000 or less, it is benign and is merely one part of the overall statutory scheme for ensuring full compensation without windfalls.
Thompson contends that the classification is based on the severity of injuries suffered and that this basis is arbitrary, unreasonable, and discriminatory. He cites Roe v. Diefendorf, 236 Kan. 218, 689 P.2d 855 (1984), where a statute of limitations using the term “substantial injury” was at issue. The court stated:
“An unsubstantial injury as contrasted to a substantial injury is only a difference in degree, i.e., the amount of damages. That is not a legal distinction. Both are injuries from which the victim is entitled to recover damages if the injury is the fault of another. A separate classification for the two, for purposes of limiting actions thereon, is in violation of the Equal Protection clause of the Fourteenth Amendment to the Constitution of the United States, because such classification has no legitimate legislative purpose.” 236 Kan. at 222-23.
Henry v. Bauder, 213 Kan. 751, 518 P.2d 362 (1974), involved the constitutionality of the Kansas guest statute. There it was stated:
“The constitutional principle of equal protection does not preclude the state from drawing distinctions between different groups of individuals but does require that persons similarly situated with respect to the legitimate purpose of the law receive like treatment.” Syl. ¶ 2.
In the present case, KFB would have the court ask the question: Are plaintiffs who seek $150,000 or less similarly situated to those who seek more with respect to the objective of fully compensating injured persons without permitting duplicative recoveries? Another way of expressing the analysis is that the classification of plaintiffs into those seeking $150,000 or less and those seeking more than $150,000 must bear a rational relationship to the objective of fully compensating without overcompensating injured persons. In this alternative formulation, the court must be able to ascertain some rationality in the legislature’s selecting plaintiffs seeking $150,000 or more, rather than some other group, to bear the burden of the legislation.
In Stephenson, the court discussed the question of fixing on the legislative objective as follows:
“Where the rational basis test is the measure of equal protection, ‘statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it.’ (Emphasis added.) McGowan v. Maryland, 366 U.S. [420,] 426 [, 6 L. Ed. 2d 393, 81 S. Ct. 1101 (1961)]. In this regard, Justice Lockett stated in his concurring opinion in Farley: ‘Where the legislature has enacted statutory provisions that do not unequivocally state the public policy, the courts may interpret the intention of the legislature.’ 241 Kan. at 679. No authority has come to this court’s attention which prohibits the court from inferring and supplying a purpose for legislation where it is not expressed, at least for the two least stringent levels of equal protection scrutiny.” 250 Kan. at 779.
The legislative objective which KFB has inferred and supplied for analysis may be stated straightforwardly as the intention to cut costs of insurers and insurance. The question for the court is whether that goal and the classification of plaintiffs by the amount of the prayer bear some rational relationship.
KHA/KMS suggest that the purpose of the legislature was to alleviate a liability insurance crisis which was threatening the public good. They attribute the classification by amount of the demand to testimony of Professor James Concannon before the House Judiciary Committee on February 11, 1987. Concannon generally supported changing the collateral source rule, but he characterized the bill which eventually became K.S.A. 1992 Supp. 60-3801 et seq. as “an ill-conceived and grossly unfair way to make the change.” He identified many problems with the bill, including the following:
“There will be new system costs from any legislation in this area. If the parties do not stipulate on these matters, there will have to be discovery, perhaps even from non-parties, relating to the amount and cost of collateral source benefits, the likelihood of continuation of collateral source payments by the provider, the provider’s solvency, and the future eligibility of the plaintiff for benefits. Ironically, legislation justified in part by the fact it reduces system costs produces some of its own. Perhaps there is some monetary threshold at which we should recognize that the new system costs exceed the benefit.”
KHA/KMS urges the court to adopt the view that the classification is rationally related to the cost-cutting objective as excluding prayers for which the cost of obtaining information on collateral source costs and benefits likely would be greater than the plaintiff’s excessive recovery.
In an article on the legislation, it was noted that, among the conflicts in the provisions of the legislation, “the most obvious [is] that the legislature wants juries to hear evidence of present and future collateral source benefits but only when the entire claim exceeds $150,000.” Concannon and Smith, Implementing the Kansas Collateral Source Rule, 58 J.K.B.A. 19, 20 (Feb. 1989). In a footnote to this observation, the authors state: “There is no individual rationale for the $150,000 figure except that is the number to which four of the six conferees on the conference committee could agree.” 58 J.K.B.A. at 20 n.13 (Feb. 1989).
KHA/KMS further contend that the court should not be concerned with where the legislature drew the line. This court has stated that “[establishment of classifications with mathematic precision is not required.” State ex rel. Schneider v. Liggett, 223 Kan. 610, 619, 576 P.2d 221 (1978). To the same effect, the court quoted a dissenting opinion of Mr. Justice Holmes: “ ‘ . . . [W]hen it is seen that a line or point there must be, and that there is no mathematical or logical way of fixing it precisely, the decision of the legislature must be accepted unless we can say that it is very wide of any reasonable mark.’ ” 223 Kan. at 619 (quoting Louisville Gas Co. v. Coleman, 277 U.S. 32, 41, 72 L. Ed. 770, 48 S. Ct. 423 [1928]). A statutory classification that has a reasonable basis is not violative of the due process clause simply because it is not made with mathematical precision. Here, this court has nothing before it from which it could conclude whether the $150,000 line is reasonable or, if not, how far it lies from reasonableness. In Henry, the court stated that “[t]here must be some difference in character, condition, or situation, to justify distinction . . . ; otherwise, the classification is forced and unreal, and greater burdens are, in fact, imposed on some than on others of the same desert.” (Citation omitted.) 213 Kan. at 753. Although the classification need not be mathematically precise, it must have a rational basis.
Regrettably, as previously noted there is very little, if any, legislative history to guide us in determining the purpose for the classification. Whether Professor Concannon’s suggestion that a monetary threshold should be set actually explains the classification is immaterial under the rational basis test, which would uphold statutory discrimination “ ‘if any state of facts reasonably may be conceived to justify it.’ ” 250 Kan. at 779 (quoting McGowan v. Maryland, 366 U.S. 420, 426, 6 L. Ed. 2d 393, 81 S. Ct. 1101 [1961]). The parties to this action have not supplied any other “state of facts” for the court’s contemplation. KFB, in its initial and reply briefs, asserts a number of times with varying wording a reason for the legislation, but does not offer a reason for the classification or any suggestions as to how the classification relates to the goal of cutting costs of insurers and insurance.
Proponents of the statute contend that plaintiffs seeking $150,000 or less are not similarly situated to those seeking more with respect to the legislative objective of reducing insurance costs. Therefore, plaintiffs need not receive like treatment. The proponents’ contention is that the line is drawn at an approximation of the dollar amount at which the potential duplicative recovery and the potential costs of discovery of collateral source converge. Below the line, potential costs of discovery are projected to be greater than potential savings from not duplicating recovery; above the line, potential costs of discovery are projected to be less than potential savings from not duplicating recovery. Plaintiffs making claims below the line do not further the objective of cutting costs of insurance due to the disproportionate costs of discovery. Plaintiffs making claims above the line do further this goal.
The problem with the proponents’ contention is that they fail to provide facts or any data upon which to make such a projection, such as that plaintiffs seeking damages in excess of $150,000 have more collateral sources available to them than those plaintiffs seeking less, or that the costs of discovery are more because a plaintiff seeks damages in excess of $150,000, or that there is a statistical relationship between the amount a plaintiff claims and the collateral sources available to a plaintiff.
We are not presented with a set of facts upon which we can conclude the challenged classification is rationally related to a legitimate legislative purpose. Instead, we are presented with a wholly unsubstantiated assumption. Even assuming the objective of cutting insurance costs is a legitimate legislative goal, we do not find the classification in the present case will reasonably further that purpose. Under the rational basis test, great deference is given to the legislature in establishing classifications. However, where, as here, the only basis for the classification is to deny a benefit to one group for no purpose other than to discriminate against that group, the statutory classification is not only mathematically imprecise, it is without a rational basis and is arbitrary. Here, the challenged classification unreasonably discriminates in favor of claimants demanding $150,000 or less and unduly burdens those seeking judgments in excess of $150,000. We hold that the provision of K.S.A. 1992 Supp. 60-3802 which allows evidence of collateral source benefits where claimant demands judgment for damages in excess of $150,000 violates the equal protection clause of the Fourteenth Amendment to the United States Constitution and § 1 of the Bill of Rights of the Kansas Constitution.
Due to our holding, the question of severability arises. The severability clause is found in K.S.A. 1992 Supp. 60-3806, which provides:
“If any provision or clause of this act or application thereof to any person or circumstances is held invalid, such invalidity shall not affect other provisions or applications of the act which can be given effect without the invalid provision or application, and to this end the provisions of this act are declared to be severable.”
In Felten Truck Line v. State Board of Tax Appeals, 183 Kan. 287, 300, 327 P.2d 836 (1958), the court stated the test to be applied:
“Whether the court may sever an unconstitutional provision from a statute and leave the remainder in force and effect depends on the intent of the legislature. If from examination of a statute it can be said that the act would have been passed without the objectional portion and if the statute would operate effectively to carry out the intention of the legislature with such portion stricken, the remainder of the valid law will stand. Whether the legislature had provided for a severability clause is of no importance. This court will assume severability if the unconstitutional part can be severed without doing violence to legislative intent.”
In State, ex rel., v. Consumers Warehouse Market, 185 Kan. 363, 343 P.2d 234 (1959), the exemption of feed and grain dealers from the Unfair Practices Act was held to be unconstitutional. In holding the invalid provision was not severable from the entire Act, we said:
“The rule is stated very clearly in the early case of Central Branch U.P.R. Co. v. Atchison, T. & S.F.R. Co., 28 Kan. *453, in which it was held:
‘While it is undoubtedly true that a statute may be constitutional in one part, and unconstitutional in another, yet this rule obtains only where the two parts are separate and independent; and where they are so related that the latter is a condition of, a compensation for, or an inducement to, the former, or where it is obvious that the legislature, having respect to opposing rights and interests, would not have enacted one but for the other, then the unconstitutionality of the latter avoids the entire statute.’ (Syl. I.)
‘“Tested by the foregoing statements of the rule, the answer to the question is obvious. The invalid portion of the statute is not a separate and independent provision of the Act, but rather is such an integral and inseparable part of the whole scheme and purpose of the law that it may not be severed therefrom and thus leave the remainder in full force and effect. In other words, to eliminate the objectionable exemption would change the scope of the Act and make it applicable to grain and feed dealers, whereas the legislature expressly declared they are not to be included. The question of severability here is readily distinguishable from that in the Consumers case, heretofore referred to. There it was held that a portion of 50-401 (e), which was merely one of a series of tests as to what is less than cost, was invalid, but, being severable, its invalidity did not affect the remainder of the Act.
“Not so here, and we refer again to the Gustafson case in which, on the question of severability, it was held:
‘The exception of McPherson county is not a separate and independent provision which may be disregarded and leave the remainder of the act effective, since to eliminate the exception would change the scope of the law and make it applicable in territory where the legislature expressly declared it should not operate.’ (syl. 3.) and said;
‘The declared purpose of the legislature is that the undersheriffs of McPherson county shall not receive the benefit of the law. This purpose informs the entire act, and the portion concerning McPherson county can not be eliminated without changing the whole scheme of the statute, even to the extent of making it applicable in territory where the legislature expressly said it should not operate.’ (p. 336.)” 185 Kan. at 372-73.
Here, the classification of plaintiffs is not a separate and independent provision because to eliminate the classification would change the scheme of the Act by making it applicable to all plaintiffs. This is contrary to the stated purpose that it only applies to plaintiffs claiming damages in excess of $150,000. The invalidity of the provision of K.S.A. 1992 Supp. 60-3802 classifying claimants by the amounts of their demand does affect the remainder of the Act because, absent the invalid provision, the intent of the legislature would not be carried out. Striking the invalid provision changes the scope of the Act and therefore does violence to the legislative intent.
For the foregoing reasons, we find such provision is not severable and the entire Act is unconstitutional and void.
We next consider if the district court erred in allowing Thompson to question KFB’s medical expert about his income. At trial the videotaped deposition of Dr. John Wertzberger was played for the jury. He testified that 35 percent of his practice was evaluating patients with disabilities. Thompson’s attorney thm asked the witness for an approximation of his income from the previous year. KFB objected on the ground of relevance. The witness answered the question despite KFB’s objection. He stated, “I think I told you before that I don’t know that. I make— my income is in excess of 200,000.”
On appeal, KFB objects to the district court “allowing the evidence regarding Dr. Wertzberger’s gross income before the jury.” KFB fails to indicate how the complained-of portion of the videotape was to be excluded or even that a request was made to that effect. In the absence of such an assertion, there would not seem to be any basis on which we may find that the district court erred in permitting the jury to hear Dr. Wertzberger’s testimony about his income. Moreover Dr. Wertzberger, KFB’s witness, answered the question over KFB’s objection.
However, KFB’s argument seems to focus more on the impropriety of Thompson’s counsel’s remarks in closing argument than on the admission of the evidence. KFB argues that Thompson “was not entitled to inquire of Dr. Wertzberger his gross income, and then argue to the jury in closing arguments that Dr. Wertzberger ‘makes $200,000.00 a year doing examinations like this.’ ” KFB further argues that the error is compounded by the misstatement, which KFB suggests was detrimental to the credibility of its expert witness. KFB, however, has not framed the issue as one of improper closing argument, and no objection was made to the closing argument remarks about Dr. Wertzberger’s income. We find no merit in KFB’s argument.
KFB next contends that the testimony of Thompson’s medical witnesses should have been excluded due to Thompson’s failure to comply with the requirements of K.S.A. 1992 Supp. 60-226(e). KFB argues that the duty imposed by 60-226(e)(l)(B) to supplement discovery responses to reveal the identity of persons expected to be called as expert witnesses at trial was breached by Thompson. KFB contends that the district court should have penalized Thompson for the breach by excluding the testimony of Drs. Knappenberger, Hoehn, and Carter.
Thompson does not deny his failure to supplement discovery responses. Instead, he contends that the doctors are treating physicians rather than retained experts. He contends that, by custom, treating physicians are not treated as experts for purposes of 60-226(e)(l)(B) because their identities are known to other parties and medical records have been exchanged. This argument merges into one of lack of prejudice. Thompson further contends that KFB waived any objection to admission of the testimony because it never filed a motion to compel supplementation of discovery responses. Thompson, however, provides no authority which creates such a duty for KFB.
K.S.A. 1992 Supp. 60-226(e)(l)(B) provides:
“A party who has responded to a request for discovery with a response that was complete when made is under no duty to supplement the party’s response to include information thereafter acquired, except as follows:
(1) A party is under a duty seasonably to supplement the party’s response with respect to any question directly addressed to . . . the identity of each person expected to be called as an expert witness at trial, the subject matter on which the party is expected to testify and the substance of the party’s testimony.”
Thompson has provided no direct authority for his position that treating physicians are not necessarily synonymous with expert witnesses, as that term is used in 60-226. KFB relies on In re Estate of Millar, 185 Kan. 510, 517, 345 P.2d 1033 (1959), for the proposition that treating physicians are “in the category of expert witnesses.” The question in Millar, however, was far afield from the present inquiry — it centered on the competence of expert and nonexpert testimony to establish mental capacity of the testatrix. At issue was whether the opinion of a general physician as opposed to a psychiatrist or neurologist would suffice. Moreover, Millar was decided before this state’s adoption of its current rules of evidence and discovery.
Common sense and the plain language of the statute, however, support Thompson’s position. A “person expected to be called as an expert witness” typically would be a consultant whose connection with the case began during trial preparation rather than with the events upon which a plaintiff’s claim is based and would offer opinions based on information made known to him or her. A treating doctor, while certainly possessing special knowledge, skill, experience, and training required of a witness testifying as ah expert, typically would be called principally to recount plaintiff’s injury and treatment.
K.S.A. 60-456(a) permits opinion testimony by witnesses who are not testifying as experts, and 60-456(b) permits opinion testimony by witnesses who are testifying as experts. Subsection (a) allows a treating physician to inject incidental opinions into his account without transforming him from a witness who is not testifying as an expert into a witness who is testifying as an expert.
In West v. Martin, 11 Kan. App. 2d 55, 58, 713 P.2d 957, rev. denied 239 Kan. 695 (1986), the court held that the district court abused its discretion in ruling that plaintiff’s treating physician could not give an expert opinion. Plaintiff had responded to a discovery request for the identification of each person expected to be called as an expert witness by referring to her witness list. Her treating physician was one of 12 medical practitioners among 23 listed witnesses. In the court’s words, “Defendant was obviously not deceived.” 11 Kan. App. 2d at 58. Nor did the trial judge find that defendant had been misled.
Nonetheless, the district court refused to allow the treating physician
“to testify as an expert witness because he was not identified ... as an expert. The trial court would have allowed [the treating physician] to testify as a ‘fact’ witness. When faced with the limitation of testimony to his care and treatment of plaintiff, the plaintiff opted to not call [the treating physician] at all.” 11 Kan. App. 2d at 57.
The Court of Appeals concluded that the trial court abused its discretion in limiting the treating physician’s testimony. The Court of Appeals stated:
“We are unable to say [the treating physician’s] testimony was cumulative. With the result reached by the jury in this case, we cannot say the exclusion of [his] testimony was not prejudicial. The trial court had effective options available other than excluding the expert testimony. Those options ranged from imposing sanctions on plaintiff’s attorney to allowing defendant to interview or depose [the treating physician] prior to his being called.” 11 Kan. App. 2d at 58.
KFB attempts to distinguish West on the ground that the discovery failure was much more egregious in the present case than in West. However, KFB concedes that Thompson provided it with the medical records of the treating physicians, and KFB does not seem to seriously assert that it was misled.
The admission or exclusion of expert opinion testimony is within the discretion of the trial judge. Hudson v. City of Shawnee, 246 Kan. 395, Syl. ¶ 10, 790 P.2d 933 (1990); accord West v. Martin, 11 Kan. App. 2d 55, Syl. ¶ 1. We do not find that the district court’s discretion was abused in admitting the testimony of Thompson’s treating physician in the present case. KFB was not misled or surprised. KFB deposed Drs. Hoehn and Carter during discovery, and their testimony was presented to the jury in the form of the videotaped depositions.
KFB next contends that the district court should have declared a mistrial based on remarks of Thompson’s counsel regarding nonpayment by an insurance company. KFB complains of these remarks made by Thompson’s counsel in closing argument:
“I don’t think it takes much to conclude that when a car crosses the median on an interstate highway and hits you head on they are at fault. I don’t intend to spend a lot of time arguing that. I think it’s pretty clear to everyone and should be pretty clear to everyone. I think it is interesting, though, that an insurance company in order to use your money a year and a half and not pay the claim would seize on something like that as a basis not to pay the claim. . . .
“. . . He was off work for ten weeks and only got back to work because he modified his truck so he can drive it with hand controls. You know that is the ‘salt of the earth’ kind of thing. That is effort you don’t expect people to make in an effort to try to go back to work. And he had to. Certainly his insurance wasn’t taking care of him. They forced him to do that, and he did that.”
KFB asserts that “[b]oth of these remarks are contrary to the facts of this case.” The truth, as stated by KFB, is that “K.F.B. Insurance Company substituted $50,000.00 thousand dollars in payment to plaintiff, pursuant to K.S.A. 60-284(f). . . . Plaintiff also received full wage benefits, medical and PIP benefits from another insurance company, Farm Bureau.” KFB contends that the district court abused its discretion in failing to grant its motion for a mistrial.
Thompson denies that the facts were misstated, and he denies that KFB suffered prejudice as a result of the remarks. Thompson asserts that KFB failed to object to the remarks until his counsel’s closing arguments were completed. He cites Sieben v. Sieben, 231 Kan. 372, 646 P.2d 1036 (1982), and State v. Rouse, 229 Kan. 600, 629 P.2d 167 (1981), for the principle that reversible error cannot be predicated on a complaint of counsel in closing argument where no objection was made.
Is it accurate to say that Thompson had to return to work because his own insurance company withheld payments from him and did so on a flimsy basis? The district court concluded that it was. In its memorandum decision entering judgment for Thompson, the district court wrote:
“The evidence supported the argument that the collision was the under-insured’s fault and the jury found him 95% at fault. Further, in the plaintiff’s response to the defendant’s motion the Court is informed that the PIP benefits were paid to the plaintiff but that they were not paid by the defendant which the defendant has not disputed. There is therefore no basis for a finding the comments by plaintiff’s counsel were untrue.”
It does not appear from the district court’s opinion that the argument with regard to substitution payment was made to the district court on this issue. K.S.A. 60-284(f) is the statute cited by KFB. KFB must be referring to K.S.A. 1992 Supp. 40-284(f). In response to KFB’s argument, Thompson stated:
“[Tjhis payment was not made under any coverage of the insurance policy between plaintiff and the defendant, but was made pursuant to a statutory scheme which allows the underinsured carrier to substitute payment and obtain a subrogation interest against the tortfeasor. Thus, this was money due the plaintiff from the tortfeasor and not from the defendant. Moreover, the fact remains that the plaintiff was forced to sue the defendant to obtain the underinsured benefits of the policy between plaintiff and defendant.”
KFB’s cooperation seems to have been reluctantly bestowed, and KFB actually paid Verbal Russell’s insurer rather than Thompson.
Thompson asserts that KFB failed to object until after closing argument was completed, but in fact KFB’s counsel waited only until Thompson’s counsel was told by the court that he had used all but his reserved two minutes. The objection followed closely on the heels of the remark that Thompson’s insurer was not taking care of him. Neither of the cases relied upon by Thompson aids him in this cause. In Rouse, this court was unable to determine whether the State made improper remarks in closing argument because the closing arguments were not transcribed. 229 Kan. at 607. In Sieben, the failure to object occurred in connection with admission of evidence, jury instructions, and the pretrial order. 231 Kan. at 375, 376, 377.
Walker v. Holiday Lanes, 196 Kan. 513, 413 P.2d 63 (1966), is a case relied on by both parties. Gertrude Walker injured her back when, due to a beverage spilled on the floor, her foot failed to slide as she delivered her bowling ball. In closing argument, counsel for the bowling alley referred to the depressed economy in Crawford County and stated that a verdict in Walker’s favor would cause the economic relief which was on the horizon to evaporate. He stated that the publicity of a verdict for Walker would reach potential industry and cause it to settle elsewhere. 196 Kan. at 518. The trial court concluded that “matters concerning public opinion had been improperly injected in the case by the defendant.” 196 Kan. at 519.
This court stated the following principles:
“When error is alleged because of improper argument of counsel in which reference is made to clearly extraneous matters, and objection has been timely interposed, it is incumbent upon the court to ascertain the purpose and probable effect of such comments on the jury. If under the facts and circumstances the only purpose and probable effect of the comments were to produce a prejudicial attitude toward a litigant, a new trial may result. . . .
“. . . We are not unmindful of our many decisions that whether or not such misconduct constitutes reversible error is a matter for determination by the trial court, and that its ruling thereon will not be disturbed in the absence of a clear abuse of discretion.” 196 Kan. at 519-20.
In the present case, we do not find an abuse of discretion in the district court’s determination that the remarks did not constitute reversible error. The charges of counsel misconduct in this case certainly are not of the same magnitude as those complained of in Walker. Thompson’s counsel did not attempt to persuade the jurors that they would be responsible for the economic decline of their county if they should return a verdict against his client. The charges also are not on the same scale as those complained of in Glynos v. Jagoda, 249 Kan. 473, 819 P.2d 1202 (1991), another case cited by KFB. Glynos involved injuries which resulted from plaintiff’s walking into a sliding glass door after emerging from the swimming pool. Defendants’ theory of nonliability included the apartment complex’s satisfying the building codes. In closing argument, Glynos’ counsel referred to the highly publicized tragedy at a tea dance at the Hyatt Regency Hotel in Kansas City: “ ‘And while this is not on the same magnitude, I will tell you that the Hyatt Regency met the building code.’ ” 249 Kan. at 480. The judgment was reversed on other grounds, but this court chose to address the issue of the closing argument. The court stated:
“Counsel’s argument referring to the Hyatt Regency was improper. The remark referred to extraneous matters not in evidence.
“The Hyatt Regency collapse was highly publicized and affected a great number of Kansas City area residents residing in the county where this case was tried. The trial court’s overruling of Meadowlark Hill’s objection endorsed the impropriety.” 249 Kan. at 481.
The decision of the district court should not be disturbed in the absence of a clear abuse of discretion, and such an abuse is not present in the court’s ruling on Thompson’s counsel’s remarks in closing argument. Unlike the circumstances in Walker, the misconduct here has not “so permeated and tainted” the proceedings that the complaining party has been deprived of a fair trial. See 196 Kan. at 520.
The jury awarded $40,000 for future economic loss. KFB contends that the award is not supported by the evidence and is a result of the passion and prejudice encouraged in the jurors by Thompson’s counsel. As additional evidence that the jury acted out of passion and prejudice, the jury award of $85,000 for future medical expenses is cited by KFB. The district court reduced the award for future medical expenses to $3,000.
KFB relies on Wisker v. Hart, 244 Kan. 36, 37, 766 P.2d 168 (1988), for the proposition that the award must be overturned because, even with all reasonable inferences drawn in favor of Thompson, the evidence does not support the verdict. Thompson relies on Leiker v. Gafford, 245 Kan. 325, Syl. ¶ 10, 778 P.2d 823 (1989), for the proper test:
“Where a charge of excessive verdict is based on passion or prejudice of the jury but is supported solely by the size of the verdict, the trial court will not be reversed for not ordering a new trial, and no remittitur will be awarded unless the amount of the verdict in light of the evidence shocks the conscience of the appellate court. Where the alleged passion or prejudice of the jury is not shown by definite proof, but depends for support solely on the size of the verdict, the award will be upheld unless it shocks the conscience of the court. There is no simple, symmetrical pattern or design for determining whether a verdict is sufficient or insufficient, since each case must stand on its own facts.”
KFB’s reliance on Wisher is misplaced. That case was a medical malpractice action in which the jury found the plaintiff’s decedent more than 50 percent at fault. No damages were calculated by the jury because plaintiff was not entitled to recover any. Thus, it was the jury’s verdict favoring the medical defendants rather than the amount of damages awarded which was challenged by plaintiff/appellant as being contrary to the evidence.
In Leiker, the medical defendants challenged the jury verdict for damages on the ground that the amount awarded was excessive. 245 Kan. at 346-49. Defendants argued that the award was the result of passion and prejudice. 245 Kan. at 346. The argument was based solely on the size of the verdict. In these circumstances the test applied by this court was whether the amount of the jury verdict does or does not shock the court’s conscience. 245 Kan. at 347.
This test appears also to be applicable in the present case. Because the determination for each case depends on its own facts, 245 Kan. 325, Syl. ¶ 10, a comparison of Thompson’s evidence of future economic loss with the jury’s award for that item of damages is in order.
At the time of trial, Thompson still had a rod and some screws in his left leg which were to be surgically removed. Dr. Knappenberger estimated that Thompson would be on crutches for two to three weeks after removal of the hardware. Dr. Knappenberger also testified that pain experienced by Thompson in his left knee will not be improved or eliminated by removal of the hardware or by time and that traumatic arthritis may be expected to increase Thompson’s stiffness and pain.
KFB ignores the evidence of pain and stiffness which place limitations on Thompson’s activities, and KFB contends that surgery and convalescence will not affect Thompson’s income. The question here is what financial effect his physical condition will have on Thompson. KFB points to Thompson’s testimony that he will have the removal surgery during the slow winter months and that with the installation of the hand-operated clutch he was able to drive his dump truck while still on crutches after the initial surgery. KFB wants the court to conclude from this evidence that Thompson will suffer no adverse financial effect.
Thompson argues that, even if his gross income is not substantially reduced, his net income will be significantly affected by outlay for maintenance of his truck. Thompson testified that he previously spent winter months overhauling his truck, but now is unable to do much of the mechanical work. He claims the repairing and rebuilding work on his truck, which necessarily will be hired out, will “amount to a substantial sum of money.” Thompson’s tax records showed the following figures:
1987 $40,399 gross income $15,172 expenses
1988 $49,551 ” $22,476
1989 $49,912 ” $20,098
1990 $38,095 ” $25,456
For the year in which he was injured, Thompson’s gross income fell and his expenses escalated. Nothing more specific than this general observation is apparent in the record on appeal. However, we cannot say the verdict is contrary to the evidence or a result of passion and prejudice.
Finally, KFB argues that the district court should have granted judgment in favor of KFB due to Thompson’s failure to comply with K.S.A. 1992 Supp. 40-284(f). KFB’s statement of this issue is as follows: “The district court erred as a matter of law in failing to grant judgment in favor of defendant based upon the failure of plaintiff to comply with the provisions of K.S.A. 40-284(f).” The argument developed by KFB is that Thompson breached a provision in his insurance policy. KFB’s conclusion, however, is that Thompson’s settlement with the tortfeasor’s estate and insurer “has impaired [KFB’s] rights to subrogation, in violation of K.S.A. 40-284© and 40-287.”
Thompson contends that KFB did not rely on its policy when it presented this argument to the district court. He contends that the policy was not introduced in the district court and is not a part of the record on appeal. He urges this court to disregard those portions of the argument which are based on the insurance policy and are raised for the first time on appeal. See Diversified Financial Planners, Inc. v. Maderak, 248 Kan. 946, Syl. ¶ 3, 811 P.2d 1237 (1991). KFB’s reply brief does not touch on this issue.
With references to the policy left out, here is an outline of KFB’s argument: Thompson settled his claim against Verbal Russell and released him, his estate, and his insurer. Any defense available to Verbal Russell is available to KFB. See Chance v. Farm Bureau Mut. Ins. Co., Inc., 756 F. Supp. 1440, 1443 (D. Kan. 1991). Thompson, therefore, is barred from recovering from KFB and has impaired KFB’s rights of subrogation. See Horace Mann Ins. Co. v. Ammerman, 630 F. Supp. 114, 117 (D. Kan. 1986); Benson v. Farmers Ins. Co., 227 Kan. 833, 839, 610 P.2d 605 (1980).
KFB’s argument, that its right of subrogation was impaired, depends upon its motion to intervene in Thompson’s action against Russell, Case No. 90-C-10967, filed in Johnson County District Court, and the determination made in that case. As Thompson points out:
"The briefs of both parties and the decision of the trial court concerning [KFB’s] motion to intervene in [Case No. 90-C-10967] are not a part of the record of this case before this court. Any issues concerning whether the defendant was given proper notice pursuant to K.S.A. 40-284(f), or whether it properly substituted payment are to be determined in that case, which [Thompson] understands to be on appeal to the Kansas Court of Appeals. Clearly, this issue is not properly before the court in this case nor is there a sufficient record for the court to malee a decision and, therefore, the court should refuse to consider this issue.”
We agree and find that the record before this court is not sufficient to consider the final issue asserted by KFB.
The judgment of the district court is affirmed.
Six and Abbott, JJ., not participating.
Jean F. Shepherd and William J. Dick, district judges, assigned. | [
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The opinion of the court was delivered by
Herd, J.:
The Olathe Bank filed this real estate mortgage foreclosure action against Morton Mann; his wife, Geraldine L. Mann; and The Loiret, A French Village, Inc. (The Loiret). Following the sheriff’s sale of the mortgaged property where the mortgagee bank was the purchaser, the trial court confirmed the sale pursuant to K.S.A. 1991 Supp. 60-2415. The Manns appealed to the Court of Appeals, which reversed the trial court. Olathe Bank v. Mann, 17 Kan. App. 2d 112, 834 P.2d 1365 (1992). We granted the Bank’s petition for review.
The facts disclose that in the early 1980’s the Manns, through their corporation, The Loiret, began the development of a large tract of real estate in Lenexa. In 1986, the Manns borrowed $500,000 from the Olathe State Bank, now the Olathe Bank (Bank). As security for the note, the Manns gave a first mortgage to the Bank on 5.8683 acres of undeveloped real estate in Lenexa. The property is located on 87th Street, east of 1-435, and touches Bourgade Avenue. There is a large excavation on the property which was there when the loan was made.
In 1988, the Manns sold part of the tract for $317,925, which is $4.50 per square foot. The Bank released its lien on the tract sold in consideration of the payment of $140,000. Thus, the debt was reduced to $360,000. The remaining collateral was an L-shaped tract consisting of 4.246 acres (184,973 square feet). This tract fronted 87th Street for about 240 feet and Bourgade Avenue for 256 feet. A medical facility was built on the severed 1.75 acres.
In February 1989, the Manns borrowed another $100,000, secured by the remaining acres, increasing their debt to $460,000. They signed a 60-day renewal note in March 1990 and paid interest on extensions through September 4, 1990. In September 1990, ownership of the Olathe State Bank changed, and the new owners granted no further extensions. In November 1990, the Bank commenced foreclosure proceedings.
In March 1991, the trial court entered judgment of foreclosure for the $460,000 principal; interest of $1,663.53 as of September 14, 1990, and continuing to accrue at 12% per annum; $200 for title costs; and court costs. The property was sold at a sheriff’s sale in May 1991. At the time of the sheriff’s sale, the Manns owed the Bank $497,553.81, including accrued interest. The mortgagee Bank made the only bid at the sale and purchased the property for $361,000. Of that amount, $342,966.68 was applied to the judgment, the rest being used to pay court costs and taxes. This left a deficiency judgment of $154,587.13, which draws judgment interest at 12%.
A hearing to consider confirmation of the sale was held in June 1991. Three witnesses testified. The first witness was Kenny Meyers, SRA, Associate Appraiser of Bliss Associates, Inc., who appraised the property for the Bank. Much of Meyers’ testimony reiterated the information found in a written report he prepared, which stated in part:
“Summary and Conclusion of Sales Comparison Approach
The comparable sales provide an adjusted value range for the subject site of $2.57 to $3.40 per square foot. Excluding Sale No. 3, the indicated value range narrows considerably to $2.57 to $2.76 per square foot. Therefore, it is my opinion that an indicated value by the Sales Comparison Approach of $2.75 per square foot is reasonable for the subject calculated as follows:
184,973 (SF) x $2.75/SF = $508,675
VALUE ESTIMATE: SALES COMPARISON APPROACH $500,000.”
Meyers’ report also contained the following cover letter to the Bank:
“April 16, 1991
Ms. Sandy Dawson
Assistant Vice President
The Olathe Bank
P.O. Box 428 Olathe, Kansas 66061
Dear Ms. Dawson:
The appraisal you requested is enclosed. Subject to limiting conditions it estimates market value of
Vacant Commercial Site SWQ 87th Street and Bourgade Lenexa, Kansas.
Legal interest is the fee simple estate as if unencumbered. Final value estimate as of April 12, 1991, is
$500,000.
Thank you for choosing Bliss Associates, Inc.
Sincerely,
Bliss Associates, Inc.
By:
Kenny Meyers, SRA Associate Appraiser”
Meyers testified it was his opinion the excavation was a detriment to the future resale of the property and that he discounted his appraised value to take care of the cost of filling the hole in an amount ranging from $69,500 to $180,000. He, however, had not discounted the value for taxes, future lost interest, or sales commissions, indicating to do so would be^ improper appraisal. He further testified the highest and best use of the property would be to hold for future development as an office building site, which might take two to three years. Then this colloquy followed:
“Q.: (By Mr. Farmer) . . . Well, in any event, did you discount the fair market value that you have given us to $2.75 a foot due to your forecast of the two to three year holding period?
“A. [Mr. Meyers] No, I did not.
“Q.: Why not?
“A.: Because that’s common, contrary to the market value as contained in the report.
"Q.: And you’ve included in these, the reasons for your report?
“A.: Yes.
“Q.: Have you not?
“A.: Why it [sic] basically to discount that value, an estimate value implies a reasonable marketing period of which we forecast was in the front basically is what we’re saying. We have estimated a market value but we have said that it might take two or three years to achieve it because the market is very stagnant at this time. To discount a value, no longer reflects the market value, implies liquidation value or a quote, ‘quick sale’ value.”
The Bank’s President, Thomas J. Davies, testified as to the basis for the Bank’s bid. Davies conceded the $500,000 market value appraisal was accurate. The Bank assumed it would take three years to sell the property. In arriving at its bid, the Bank assumed a three-year holding period and based upon that as sumption calculated $19,000 in future tax liabilities, $90,000 in future lost interest income, and a future $30,000 real estate sales commission. Thus, the Bank arrived at its bid of $361,000 ($500,000 - 19,000 - 90,000 - 30,000 = $361,000). Davies also considered the excavation a detriment to selling the property. He testified he had received bids ranging from $100,000 to $250,000 for filling the hole.
On cross-examination of Davies, this exchange occurred:
“Q. [By Mr. Bodinson] Again, I think I pretty well understood your approach to your bid, but basically, don’t want to put words in your mouth, but what you’re doing, is you’re acknowledging the fair market value of the property as of now, to [be] about $500,000, maybe $508,000; and then you’re anticipating in order to arrive at your bid, what might occur in the next three years as far as your holding the property and having responsibility for taxes and whatnot?
“A. [By Mr. Davies] Correct.
“Q. [By Mr. Bodinson] All right. But basically, your . . . entire impact here of why you didn’t bid your judgment or at least fair, the fair market value of $508,000 is anticipating future loss of use of money that has been converted to land?
“A. [Mr. Davies] Yes.
“Q.: Okay. Has nothing to do, I mean, you might sell this on July 16th [1991], correct?
“A.: Possibly.
“Q. [Mr. Bodinson] Uh-huh. Well, you believe the property is worth $508,000 today, don’t you?
“A. [Mr. Davies] Based on the appraisal, yes.”
The Manns called Bill Kiesling as their witness on value. Kiesling, a commercial real estate agent who had listed the Manns’ property for sale for the previous three and one-half years, testified the property had been listed at $5.25 per square foot. Kiesling stated properties are usually listed at a higher price than they are expected to be sold to allow negotiation of the sale price. He stated that, even with a two- to three-year marketing period, he would expect a sale at $4.50 to $4.90 per square foot. Assuming the property sold at $4.50 per square foot, the total selling price would be over $832,000. He based his opinion on the sale of a portion of the same tract just two years before at $4.05 per square foot. Kiesling testified that although it could take two years to sell the property, the property might be sold within three months and it was impossible to know when the property might be sold. Kiesling admitted the Manns had not received any offers for the property from 1989 to 1991.
Kiesling testified that on a couple of occasions prospective buyers were interested in the property because of the excavation. Depending upon what the buyer planned to construct on the property, the excavation could be a positive factor rather than a detriment. Kiesling had investigated the cost of filling in the excavation and received an estimate of $90,000.
After considering the evidence presented at the confirmation hearing, the trial court found the Bank’s highest and best use of the property is to hold it for sale for possible future development, which could exceed two to three years. The trial court also found the appraised market value was $500,000 and that $361,000 is a fair value for the property. Furthermore, the sale price, which included partial satisfaction of the Bank’s judgment in the sum of $342,966.68, is not substantially inadequate. The trial court granted the Bank a deficiency judgment in the sum of $154,587.13 against the Manns.
The Manns appealed to the Court of Appeals, which reversed the trial court’s finding that the Bank’s bid is the fair value of the property, pursuant to K.S.A. 1991 Supp. 60-2415. That statute provides:
“(a) Certificate of purchase. The sheriff shall at once make a return of all sales made under this article to the court. All taxes due or delinquent shall be noted on the sheriff’s return. If the court finds the proceedings regular and in conformity with law and equity, it shall confirm the same, direct the clerk to make such entry upon the journal and order the sheriff to make to the purchaser the certificate of sale or deed provided for in this article.
“(b) Equity powers of court. The court may decline to confirm the sale where the bid is substantially inadequate, or in ordering sale or a resale, may, in its discretion, if conditions or circumstances warrant and after a proper hearing, fix a minimum or upset price at which the property must be bid in if the sale is to be confirmed; or the court may, upon application for the confirmation of the sale, if it has not theretofore fixed an upset price, conduct a hearing to establish the value of the property, and as a condition to confirmation require the fair value of the property be credited upon the judgment, interest, taxes and costs. A sale for the full amount of the judg ment, taxes, interest and costs shall be deemed adequate.” (Emphasis added.)
The Court of Appeals found “fair value” had not previously been defined in the foreclosure sale context. The Court of Appeals then reviewed several cases from other jurisdictions that defined fair value. Finally, the Court of Appeals stated:
“We reject the conclusion of the trial court which equates fair value with the speculative holding costs of the Bank here. To accept the Bank’s position would be to accept the Bank having the property with an admitted fair market value of $500,000 to $832,000, and a deficiency against the Manns of $154,587.13, after having been paid $140,000 in principal and over $200,000 in interest by the Manns.
“The trial court had before it some evidence of speculative expenses and holding periods, as well as some evidence as to ‘fair market value.’ It had no evidence based on a proper definition of ‘fair value,’ other than the appraiser’s testimony, which focused on a different question.
“We are, therefore, required here to reverse the trial court, not only because the bid was based upon the inequity of allowing the Bank to bid at its ‘recovery’ rate, but also because the trial court had before it no evidence as to ‘fair value’ under the circumstances.” 17 Kan. App. 2d at 119-20.
The sole issue for appellate review is whether the trial court erred in confirming the sale and entering a deficiency judgment against the Manns.
In Federal Land Bank of Wichita v. Cummings, 12 Kan. App. 2d 134, 735 P.2d 1110 (1987), the Court of Appeals construed K.S.A. 60-2415(b) as giving the trial court three options. These options are: (1) confirm the sale if the bid is substantially adequate; (2) order resale of the property if the bid is substantially inadequate; (3) give the creditor the option of either giving the debtor credit upon the judgment, interest, taxes, and costs for the value of the property; or reselling. 12 Kan. App. 2d at 138. Furthermore, if the sale is confirmed, the trial court has no discretion in whether to enter a deficiency judgment. The amount of a deficiency judgment is merely a mathematical calculation. 12 Kan. App. 2d at 138.
The Manns argue fair value was inserted into K.S.A. 1991 Supp. 60-2415 to protect the debtor. Otherwise, the lender could be unjustly enriched by purchasing the property at a low price at the sheriff’s sale and also receiving a large deficiency judgment against the mortgagor. The Manns contend the trial court did not find fair value but instead applied liquidated or recovery value based upon speculation and illogical losses. More specifically, the Manns contend the Bank’s reduction of the $500,000 market price by the projected property taxes for three years, the real estate agent’s commission of $30,000, and $90,000 for the lost use of the money while the property is held for sale violates the spirit of K.S.A. 1991 Supp. 60-2415(b). The Manns point out the deduction of $90,000 for lost use of the money tied up in owning the property is improper because they have been ordered to pay 12% interest per year on the deficiency judgment of $154,000, thus giving the Bank double interest on that amount.
Although no Kansas case has defined fair value, some Kansas cases provide guidance. For example, in Broughton v. Murphy, 155 Kan. 454, 126 P.2d 207 (1942), the trial court determined the reasonable value of the property was $2,500 and refused to confirm a sale for $800. We affirmed. 155 Kan. at 455, 457. In Liberty Savings & Loan Ass'n v. Jones, 143 Kan. 422, 425, 54 P.2d 937 (1936), the trial court heard conflicting evidence of the property’s value at a confirmation hearing. The trial court determined the bid was “substantially the real value of the property” and confirmed the sale. We found abundant competent evidence to support that finding and refused to reverse the trial court. In contrast, in Liberty Savings & Loan Assn v. Hanson, 145 Kan. 174, 175-76, 64 P.2d 609 (1937), we reversed the trial court and ordered confirmation because there was “no substantial disparity between the actual value of the property and the selling price at the sale in foreclosure” and there was no irregularity in the proceedings.
Other jurisdictions have defined fair value. The California Court of Appeal discussed fair value in Rainer Mortgage v. Silverwood, Ltd., 163 Cal. App. 3d 359, 209 Cal. Rptr. 294 (1985). In that case the court stated:
“Nelson v. Orosco [, 117 Cal. App. 3d 73, 172 Cal. Rptr. 457 (1981),] simply holds that ‘fair value’ must be determined in light of the property’s marketability at the time of sale. It does not equate ‘fair value’ with ‘fair foreclosure value,’ as urged by Rainer.” 163 Cal. App. 3d at 364.
“The ‘fair value’ of foreclosed property is thus its intrinsic value. Under normal conditions this intrinsic value will often coincide with its fair .market value; the value a willing purchaser will pay to a willing seller in an open market. [Citation omitted.] This correlation is not fixed, however, and market value is only one factor the court should consider when determining ‘fair value.’ As discussed in Nelson v. Orosco, supra, 117 Cal. App. 3d 73, ‘fair value’ is determined by all of the circumstances affecting the intrinsic value of the property at the time of the sale. This necessarily excludes the circumstances of the foreclosure sale. These are not factors that affect the intrinsic worth of the property. . . . Accordingly, we conclude the Legislature intended that ‘fair value,’ as used in Code of Civil Procedure section 726, subdivision (b), be construed as the intrinsic value of real property subject to judicial foreclosure, taking into consideration all the circumstances affecting the underlying worth of the property at the time of the sale, without consideration of the impact of foreclosure proceedings on this value.” 163 Cal. App. 3d at 366-67.
Ultimately, the court found: “Construing the phrase ‘fair value’ in Code of Civil Procedure Section 726, subsection (b) as taking into consideration all the disabilities attending a foreclosure sale would be unreasonable, because it would permit the lender the double recovery the statute was intended to prevent.” 163 Cal. App. 3d at 369-70.
In contrast, the New Jersey Court of Chancery has stated:
“It is next to impossible to provide a definition or formula for such value which can be uniformly applied to all cases, and of necessity each case as it arises will depend upon its own special circumstances, and will be a law unto itself. . . .
“. . . It is not market value, for this proceeding assumes that there was no market. It is not reconstruction or replacement value, because' costs seldom reflects value and especially is this so with investment property; it is not so-called ‘real value;’ it is not intrinsic value; nor necessarily income value alone; nor potential value, nor ‘the highest and best price that the same would then bring in cash.’ In my judgment, fair value for the purposes of the instant proceeding is that sum which the mortgagée purchaser ought, under all the circumstances, reasonably expect to realize from the acquired premises either by way of sale in the near future or upon the basis of a permanent investment. . . .
“In estimating this value, however, effect should be given to potential value and all other elements having any bearing upon fair value, including replacement cost, neighborhood influence and trend.
“. . . Certainly there was no market at the time of that sale, otherwise the parties would not be here. And there is no evidence of any market for the property now. It would seem, therefore, that the complainant is destined to hold the mortgaged premises as an investment for an indefinite period of time. The mortgagee who has been compelled to purchase the pledge and retain it as an investment should not be expected to retain it at a continuing loss, and equity to the mortgagor does not require that he do so.” Fidelity Union Trust Co. v. Ritz Holding Co., 126 N.J. Eq. 148, 165-67, 8 A.2d 235 (1939).
The court specifically held the judgment creditor, when determining its bid, could deduct its loss of interest earnings on the funds it would use to purchase the real estate. 126 N.J. Eq. at 171.
More recently, the New Jersey Superior Court has stated:
“Under the doctrine of [Federal Title, & C., Guaranty Co. v. Lowenstein, 113 N.J. Eq. 200, 166 A. 538 (1933)], the applicant for ‘fair value’ credit must show:
‘(1) sale at an unconscionable figure; or (2) at a nominal bid plus the absence of competitive bidding due to some fact beyond the control of the petitioner . . .; (3) the existence of an emergency because of which the defendant was unable to protect himself by refinancing or otherwise; and (4) his own ability — lack of financial resources — to protect himself at the sale.’ ” 79-83 Thirteenth Ave., Ltd. v. DeMarco, 79 N.J. Super. 47, 58-59, 190 A.2d 391 (1963) (quoting Young v. Weber, 117 N.J. Eq. 242, 244, 175 A. 273 [1934]), aff’d 44 N.J. 525, 210 A.2d 401 (1965).
The State of Washington has a statute similar to K.S.A. 1991 Supp. 60-2415, and its Supreme Court has stated:
“The statute calls not for what the court would determine to be the minimum value, but rather its fair value. As we said in Lee v. Barnes, [61 Wash. 2d 581, 379 P.2d 362 (1963)], the court ‘should assume the position of the competitive bidder determining a fair bid at the time of sale under normal conditions.’ This means that, in deciding upon fair value at a foreclosure sale, the court may consider the state of the economy and local economic conditions, the usefulness of the property under normal conditions, its potential or future value, the type of property involved, its unique qualities, if any, and any other characteristics and conditions affecting its marketability alone with any other factors which such a bidder might consider in determining a fair bid for the mortgaged property.” Nat’l Bank v. Equity Investors, 81 Wash. 2d 886, 926, 506 P.2d 20 (1973).
See Wash. Rev. Code § 61.12.060 (1992).
The Wisconsin courts have analyzed the term fair value on several occasions. In First Financial Sav. Ass'n v. Spranger, 156 Wis. 2d 440, 456 N.W.2d 897 (Ct. App.), rev. denied 155 Wis. 2d xxxviii (1990), the trial court refused to confirm the sheriffs sale purchase price because the buyer had determined its bid by reducing fair market value by such holding costs as the anticipated commission on the sale of the premises, maintenance costs, real estate taxes, insurance, cost of money, and closing costs. 156 Wis. 2d at 443. The Wisconsin Court of Appeals acknowledged fair value is not synonymous with market value. Furthermore, the court stated the trial court could consider “the cost of selling, holding or carrying the property while a buyer is sought only to the extent these factors affect the sale value.” 156 Wis. 2d at 444. The court also stated:
“Foreclosure proceedings are equitable in nature. [Citation omitted.] First Financial’s approach may allow it to reap a windfall at Spranger’s expense. It may sell the property immediately, without a broker’s commission, and without incurring any holding or carrying costs. First Financial does not offer, if that should occur, to reimburse Spranger. That result is inequitable.
“We do not foreclose the circuit court from considering that the mortgaged property is the subject of foreclosure proceedings. The inquiry must be, however, what an able, and willing buyer will reasonably pay for the property for the use to which the property has been or reasonably may be put.” 156 Wis. 2d at 444-45.
We agree with the statement found in Fidelity Union Trust Co., 126 N.J. Eq. at 165, that it is impossible to provide a formula for determining fair value which can be applied in all cases. The facts and circumstances surrounding each sale must be considered in determining the fair value at a confirmation hearing. As stated in Nat’l Bank v. Equity Investors, 81 Wash. 2d at 926, this means the trial court shall consider the local, long-term economic conditions; the type of property involved; its unique qualities, if any; its intrinsic worth; and other characteristics affecting the property’s value.
In the case at bar, the evidence is uncontroverted that the Johnson County real estate market is depressed. The depressed market is the cause of the foreclosure action. It is further uncontroverted that the fair market value of the property on the date of sale was at least $500,000.
In the order confirming the sheriff’s sale, the district court found:
“That appraisal disclosed the market value of the fee simple estate, as if unencumbered, was $500,000.00, and the Court finds this is the appraised market value of the property when considering comparable land sales with adjustments made for time and condition of sale, location/access, zoning/ utility and size/topography.”
In spite of the evidence and the finding of fact, the district court then found the fair value of the foreclosed property was $361,000, the amount of the Bank’s bid. After deducting the amount of the outstanding taxes and court costs, the Manns were credited with $342,966.68 on the judgment, leaving a deficiency of $154,587.13.
Our problem is evident. Under K.S.A. 1991 Supp. 60-2415(b) may a mortgagee purchaser at a foreclosure sale purchase the property for less than its fair market value? Prior to 1933, mortgagees habitually bid the fair market value and purchased the mortgaged property. Because foreclosures usually occur when the real estate market is depressed, the mortgagees inequitably purchased some real bargains in the absence of competition and also obtained large deficiency judgments. To remedy this inequity, the legislature enacted R.S. 1923, 60-3463a (1933 Supp.) (now K.S.A. 1991 Supp. 60-2415[b]), with the requirement that as a condition of confirmation of such a sale if less than the full judgment, taxes, interest, and costs are bid, the fair value of the property be credited upon the judgment, interest, taxes, and costs. The effect is that the mortgagee purchaser must bid fair value. Fair value was expected at that time to be more than the depressed, distressed fair market value.
Here we have the opposite situation. The district court held the fair market value exceeds the property’s fair value and permitted confirmation of a sale based on fair market value less $139,000 in anticipated taxes, interest for three years, and a real estate commission for the future sale. The confirmation’s effect is that the mortgagors must pay the taxes and a real estate commission on the property they no longer own, in addition to paying a deficiency judgment bearing 12% interest. Also, they must pay 6% interest on the fair market value of the property, $500,000, while paying 12% interest on $154,587.13. Hence, the interest cost is double on the deficiency amount. Such deductions, called holding costs, are inequitable.
We agree with the California Court of Appeal’s statement that the price paid for property at foreclosure should reflect the intrinsic value of the property, “taking into consideration all the circumstances affecting the underlying worth of the property at the time of the sale,” and should not be affected by the impact of the foreclosure proceedings on its value. Rainer Mortgage v. Silverwood, Ltd., 163 Cal. App. 3d at 367. Allowing a mortgagee bank to reduce the purchase price due to the inherent disabilities associated with a foreclosure sale allows the mortgagee the double recovery which K.S.A. 1991 Supp. 60-2415(b) was designed to prevent. We also find the Wisconsin Court of Appeals’ reasoning to be sound. That court clearly states holding costs should not be reduced from the fair market value to arrive at the sale price, except “to the extent these factors affect the sale value.” First Financial Sav. Ass'n v. Spranger, 156 Wis. 2d at 444. In the case before us, the Bank president testified that the Bank could sell the property at any time. If the Bank did sell the property in less than three years, it would not reimburse the Manns any of the unaccrued tax or interest expense. Thus, the Bank would experience a windfall.
We conclude in a mortgage foreclosure sale of real estate, anticipated holding costs (taxes, interest, and real estate commission) are not deductible from fair market value to determine fair value of the foreclosed real estate, as a matter of law. Thus, we reverse the district court, affirm the Court of Appeals, and remand with instructions to confirm the sale on condition the Manns be credited with $500,000, the fair value of the property pursuant to K.S.A. 1991 Supp. 60-2415(b), upon the judgment, interest, taxes, and costs; otherwise a new sale be ordered. | [
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The opinion of the court was delivered by
McFarland, J.:
Defendant appeals his jury trial convictions of attempted rape (K.S.A. 1992 Supp. 21-3301, K.S.A. 21-3502) and kidnapping (K.S.A. 21-3420).
The complaining witness, T.J., age 16 years, testified that on February 27, 1991, she was walking along a Wichita street when she was accosted by the defendant and forced into his automobile. While restraining her in a headlock, defendant drove to his residence on Kansas Avenue. There, T.J. was forced into the house, where defendant attempted to rape her. A few minutes later defendant told her she could leave and she did.
Defendant testified he was home at the date and time in question, working on his automobile. While so engaged, he was approached by T.J., who asked if she could use his telephone. He agreed; T.J. used the telephone and left. No sexual activity of any type occurred, consensual or otherwise.
For his first issue on appeal, defendant argues the trial court abused its discretion in refusing to permit four defense witnesses to testify as to the reputation of the complaining witness as to veracity. We agree. In State v. Smallwood, 223 Kan. 320, 574 P.2d 1361 (1978), we discussed the admission of evidence relevant to the credibility (or lack thereof) of a witness. This discussion and the factual framework on which it was based is as follows:
“During his cross-examination of Mr. Meeks the appellant attempted to examine the witness concerning his testimony under oath at two preliminary hearings when Mr. Meeks allegedly admitted he had not told the truth. One of these occasions dealt with conversing about the case to the district attorney during a recess after being admonished to refrain from discussion. While Mr. Meeks initially denied such behavior, he later admitted in his testimony he had discussed the case during the break. The other instance involved testimony by Mr. Meeks in which he stated he had been telephoned rather than subpoenaed to appear. The trial court refused to allow cross-examination stating these matters were of a collateral nature and not proper cross-examination for impeachment purposes.
“The appellant now contends it was error for the trial court to limit this cross-examination because it affected the witness’s credibility. This claim lacks merit. The testimony was inadmissible as specific instances of conduct relevant only as tending to prove a trait of character.
“K.S.A. 60-420 provides:
“ ‘Subject to K.S.A. 60-421 and 60-422, for the purpose of impairing or supporting the credibility of a witness, any party including the party calling the witness may examine the witness and introduce extrinsic evidence concerning any conduct by him or her and any other matter relevant upon the issues of credibility.’
Limitations on the admissibility of evidence affecting the credibility of a witness under K.S.A. 60-422 include in part:
“ ‘As affecting the credibility of a witness . . . (c) evidence of traits of his or her character other than honesty or veracity or their opposités, shall be inadmissible; (d) evidence of specific instances of his or her conduct relevant only as tending to prove a trait of his or her character, shall be inadmissible.’
In substance K.S.A. 60-422(c) disallows proof of general bad or good character and limits character evidence impeaching or supporting a witness’s credibility to the traits of honesty or veracity or their opposites. K.S.A. 60-422(d), on the other hand, limits the manner of proving such character traits as affecting the credibility of a witness by disallowing evidence of specific instances of the witness’s conduct. This limits K.S.A. 60-446, which allows proof of character by opinion testimony and evidence of reputation.
“Thus, a witness’s credibility may be attacked by showing the witness has character traits for dishonesty or lack of veracity, but those traits may only be proven by opinion testimony or evidence of reputation. Those traits may not be proven by specific instances of the witness’s past conduct. (See State v. Hall, 220 Kan. 712, 716, 556 P.2d 413 [1976]; State v. Humphrey, 217 Kan. 352, 364, 537 P.2d 155 [1975]; and State v. Taylor, 198 Kan. 290, 424 P.2d 612 [1967].) Since the two episodes concerning Mr. Meeks’ prior testimony were nothing more than prior specific instances of his conduct, the trial court properly prevented the appellant from inquiring about them on cross-examination by applying the exclusionary rule provided in K.S.A. 60-422(d).” 223 Kan. at 326-27.
See Herbstreith v. de Bakker, 249 Kan. 67, 76-77, 815 P.2d 102 (1991).
The proffers of the testimony of the four witnesses who were excluded indicates they were acquaintances of T.J., the complaining witness, and they would have testified she had a reputation for having a lack of veracity or, as they put it, for being a liar.
The trial court excluded the testimony on a number of grounds. The trial court disapproved of the former residence of some of the witnesses, stating:
“THE COURT: Tell you one thing, you got a problem with people that stay at the Courtesy as many times as I have had them on different cases here. I would suggest that maybe you need to look into the Courtesy. It’s a fact I’ll take into consideration in deciding. I think the question does she work has some significance, too. ...
“. . . All I’m saying is I’m giving you a suggestion so that if what I’ve just said affects my ruling, you may have a better understanding. It also goes to the group of the people that you’re using to attack somebody, and it may be just the same type I’m not going to believe them. I’ve got to decide whether witnesses that say — that occupy the Courtesy Inn, with all the information that I’ve run into about the Courtesy Inn on criminal trials I’ve had, whether or not I would be right in allowing them to present themselves to a jury to judge anybody any time.”
The trial judge, from the above statement and others, made it clear he disapproved of the lifestyles and socio-economic status of the witnesses. One of the witnesses testified that he, the other reputation witnesses, and T.J. were “street people.” All were young. The trial judge indicated that by virtue of their age and prior emotional involvement with T.J., they were apt to be “spiteful” and that he “doubt[ed] their motive.”
All of these expressions go to the weight the trial court felt should be afforded to such witnesses’ testimony and have no bearing on the admissibility of such testimony.
Also, the trial court expressed the opinion that evidence relative to T.J.’s lack of veracity would be violative of the rape shield statute (K.S.A. 1992 Supp. 21-3525), which provides in pertinent part:
“(2) Except as provided in subsection (3), in any prosecution to which this section applies, evidence of the complaining witness’ previous sexual conduct with any person including the defendant, shall not be admissible, and no reference shall be made thereto in the presence of the jury, except under the following conditions . . . .”
The trial court made the following comments on the rape shield statute and the issue of T.J.’s veracity:
“I think what the defense would like to do because that — the purported rape shield that used to be in 60 was taken out and put in — I think the section is 35 — 21-3525. If not, I’m sure you know what I’m referring to. And I think what you’re doing is using an indirect attempt to get around what you can’t get around in a direct way. And I think—
“MS. PARKER [Prosecutor]: Is the Court speaking of the rape shield statute?
“THE COURT: Uh-huh, right, and whatever that number is. And I had it in mind, but I read so much last night and I got too tired to just get it in correct form probably. But, anyhow, I feel that that is an attempt I can understand, but I can’t allow it. And the point is that rape shield statute was passed specifically and taken out of 60. It used to be in there, and the legislature saw the need to do it. And I think it was the legislative intent that we not be trying a rape case on — or make it where it’s a — the main issue is veracity. There’s methods to do that and — if you can find a way to do it by cross-examination and make it an issue, proper or not. But I’m not going to try the issue of veracity, which I think is connected with the issue of morality, in trying this kidnapping and attempted rape or the lesser included charge here. I think that I have the absolute discretion and the obligation to make this determination.
“It’s not something that I said yesterday in the record and don’t feel that I found case law and statutory interpretation last evening, spending a lot of my time. I probably will intend on the basis of my ruling — not during the trial, but I’ll make a record so the Supreme Court can have an idea of the happenings yesterday in this building concerning this case. I just don’t think it has any probative value with me in the motive and even the testimony as was given of whether or not — and what we do is we’ll have the doggone jury back there in deliberation arguing more about the issue of veracity than the main thing of the case. And then I don’t think it adds or — takes the testimony as it stands or adds or takes away from the principal issues in that case, which is a reason that the Court can say that such evidence won’t be used of this nature that I’ve heard so far.”
One of the witnesses herein was the boyfriend (or former boyfriend) of T.J. His proffered testimony was not as to prior sexual activities of T.J., however, but as to her reputation for lack of veracity.
The rape shield statute is inapplicable to the issue herein, and the trial court erred in holding otherwise.
The trial court erred, also, in excluding the evidence on the basis that it did not want the jury diverted from its proper purpose of determining whether defendant was or was not guilty of the crimes charged by “arguing more about the issue of veracity.” Credibility was everything in this case. No evidence corroborated either T.J.’s or defendant’s versions of the events. Guilty verdicts could be obtained herein only if T.J.’s testimony was believed in all significant respects. Thus, the State’s whole case rested on T.J.’s testimony being believed by the jury.
If the jury had been permitted to hear and consider evidence relevant to T.J.’s reputation for lack of veracity and afford to it such weight as it deemed to be appropriate, a different verdict may have been reached. Under the circumstances herein, we conclude the exclusion of such evidence constitutes reversible error requiring a remand for new trial. By so holding, we are not stating that a sufficient foundation was laid for the testimony of each of the four witnesses. For our purposes, it was sufficient to consider the proffered testimony collectively and find its exclusion to be erroneous.
We further conclude that upon remand this case should be assigned to a different judge for all further proceedings.
A number of other issues are raised, including such matters as the alleged improper restriction of voir dire, refusal to excuse a juror for cause, judicial misconduct during trial, exclusion of alibi witness testimony, and admission of prior crimes evidence under K.S.A. 60-455. We have carefully reviewed these other issues and conclude they are tied to and interwoven with the particular circumstances existing in the trial herein. Inasmuch as we are reversing the convictions and remanding the case for retrial under a different judge, there is nothing to be gained from discussing each such issue and determining whether the complained-of matter constituted error or abuse of judicial discretion.
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|
The opinion of the court was delivered by
Davis, J.:
The defendant, James Rutter, appeals his conviction of second-degree murder. He claims that the trial court erred by rejecting his request for an instruction that he acted in defense of another and by failing to instruct on the lesser included offense of involuntary manslaughter. We affirm.
On the afternoon of July 11, 1990, defendant was drinking beer at the home of a friend, Larry Jenkins. As the evening progressed, Dale Harris, Mike Collins, and John Walters joined tihem. They left at least once to get more beer.
Much of the discussion focused on a fight in which Jenkins and Collins had been involved the night before. It was obvious to all that Collins had been beaten because both of his eyes were black and his nose was bleeding. Bill Johnson was one of the people who had beaten Collins. Late in the evening of July 11, the men decided to go to an area referred to as “the cliffs” to see if they could find the men who had fought with Collins and Jenkins the night before. The cliffs is a gravel parking area along a secluded road that leads to the Inland caves in Kansas City, Kansas.
Defendant and Collins left for the cliffs in Rutter’s car; Harris, Jenkins, and Walters went in two other cars. The defendant carried a .22 caliber rifle in the trunk of his car. He testified that he used the rifle for hunting and fishing. Harris carried a .38 caliber pistol in his back pocket.
Another group of people, including Bill Johnson, had gathered at the cliffs earlier that same evening. They were listening to music and talking; some were drinking alcohol. For the most part, this group was composed of recent high school graduates who were considerably younger than the men in defendant’s group. Defendant’s group arrived at the cliffs at about 10:30 p.m. and confronted Johnson’s group. Harris, Jenkins, and Collins were armed with clubs, and Harris still carried his pistol. The people in Johnson’s group were not armed at the time defendant’s group arrived. There was conflicting testimony about whether they armed themselves with sticks after the fighting started.
Bill Johnson recognized two of the men in defendant’s group and, fearing retribution for the previous night’s fight, tried to hide. Someone in defendant’s group (presumably Dale Harris) waved a pistol around, asked where Bill Johnson was, and told everybody not to move. Johnson was spotted, and Harris threatened to shoot Johnson when he tried to run. Sean Ruis, also present when defendant’s group arrived, also tried to leave. Jenkins hit him twice in the arm with a club. Harris then hit Ruis in the head with a club. It is not clear, however, who struck the first blow of the fight. There was testimony that one of Johnson’s group began the fighting with a member of defendant’s group. In addition, Harris testified that someone pushed him when he got out of his car.
The fighting escalated, and defendant went to Jenkins’ truck to get “something to fight with.” He then heard gunshots and decided to get his rifle. When he returned to the fight, he saw that Alvin Johnson had Collins pinned on the ground and was hitting him. (Alvin Johnson is not related to Bill Johnson.) Defendant testified that he tried to break up the fight by firing two shots into the air. He testified that after he fired the shots, he turned to go back to his car and heard Collins yell for help. He testified that he then turned around and shot Alvin Johnson. The bullet pierced Johnson’s heart, and he died as a result of the wound.
Defendant testified that he was about 15 feet away from Johnson when he shot at Johnson’s leg or buttocks, intending only to save Collins from a possibly fatal beating. One witness for the State testified that defendant was standing several feet from Johnson when he fired, but that the end of the gun was only a few feet away from Johnson. Other witnesses testified that defendant was within one to one and one-half feet of Johnson when he pulled the trigger. The autopsy report and accompanying expert testimony established that Johnson’s wound was a contact wound based upon the presence of powder bums.
Based upon his testimony that he shot Johnson to keep Johnson from beating Collins to death, defendant requested an instruction on defense of another. He also requested an instruction on involuntary manslaughter based upon his contention that he may have used excessive force in defense of Collins, which would amount to committing a lawful act (defending another) in an unlawful manner (with excessive force). The court rejected both requested instructions and instructed the jury on second-degree murder and on the lesser included offense of voluntary manslaughter.
Defense of Another A. K.S.A. 21-3211
K.S.A. 21-3211 provides that:
“A person is justified in the use of force against an aggressor when and to the extent it appears to him and he reasonably believes that such conduct is necessary to defend himself or another against such aggressor’s imminent use of unlawful force.”
The defendant claims that the trial court erred because there was conflicting evidence on which group was the aggressor and because there was evidence to establish that defendant was not the aggressor. Thus, according to his contention, it was for the jury to decide under K.S.A. 21-3211 if the defendant was “justified in the use of force against an aggressor.” The defendant also contends that there was evidence supporting his belief that the force used was necessary to defend his friend, requiring the court to give his requested instruction.
Before examining the evidence that defendant claims obligates the trial court to instruct on defense of another, it is helpful to discuss what measuring stick the trial court must use in deciding whether it has a duty to instruct and, thus, what standard an appellate court must apply in deciding whether the trial court has fufilled its duty. It is clearly established under Kansas law that “[w]here the trial court refuses to give an instruction on lesser included offenses or on self-defense [defense of another], the- evidence supporting such instruction must be viewed on appeal in the light most favorable to the defendant.” State v. Hill, 242 Kan. 68, Syl. ¶ 2, 744 P.2d 1228 (1987). The defendant relies upon State v. Hill in contending that the trial court has a duty to instruct on self-defense (defense of another) even if the evidence is slight and consists solely of the defendant’s own testimony. Yet, there has always been a requirement that there be “evidence tending to establish self-defense.” State v. Hill, 242 Kan. at 78.
In support of his argument that any evidence is sufficient to raise a duty on the part of the trial court to instruct on self-defense, the defendant relies upon the early case of State v. Smith, 161 Kan. 230, 167 P.2d 594 (1946). Smith required an instruction on self-defense even though the defendant denied she had committed the act that resulted in death and where no such instruction had been requested. Smith held that even with a denial by the defendant and no request for such an instruction, the trial court, based on the evidence, may be under an affirmative duty to instruct on self-defense. Smith begins its discussion with the trial court’s duty to instruct on lesser offenses:
“[I]t is now familiar law in this state that it requires the trial court to charge the jury on all matters which are necessary for its information in arriving at a verdict and that in this connection in prosecutions for homicide it is that court’s duty to instruct not only as to the offense charged but as to the lesser offenses of which the accused might be found guilty under the information and upon the evidence adduced even though no request for an instruction on such lesser offense was made. [Citations omitted.]” 161 Kan. at 235-36.
Smith concluded that the trial court is duty-bound to instruct on defenses raised by the evidence:
“Less has been said on the question of whether an instruction on self defense is required under such section when that issue is raised by the evidence in a given case. However, it too has been determined. In the case of State v. Jackett, 81 Kan. 168, 169, 179, 105 Pac. 689, where, as here, the defense was the defendant had not committed the homicide with which he was charged, we held:
‘In a prosecution for homicide, where there is substantial evidence tending to show that the accused acted in self-defense, the fact that he denies having committed the act which caused the death is not necessarily a ground for refusing to submit to the jury the question whether the killing was justifiable.’ [Emphasis added.] Syl.
“And said:
‘. . . Where there is evidence that would support a finding of self-defense it has been held that the instructions should cover that feature of the case, notwithstanding the defendant’s testimony that he did not do the act from which the death resulted. [Citations omitted.]
‘. . . Whether an affirmative defense which is inconsistent with a part of the defendant’s own testimony should be submitted to the jury can not depend upon the amount of proof back of it, [but] that it is supported by some substantial evidence.’ (pp. 171, 173).” (Emphasis added.) 161 Kan. at 236-37.
Smith further concludes that:
“In those cases where self defense is invoked by the proof we conclude it is the duty of the court to charge the jury on that issue irrespective of whether there has been a request for an instruction, regardless of whether counsel has been called upon and failed to formulate a theory on which it could be given, and notwithstanding such counsel has stated he believes its submission rests in the court’s discretion.
“Our conclusion is not unsupported by the authorities. In 41 C.J.S. 163, 164, 165, § 375, it is said:
‘As a general rule, where self-defense is involved and there is any evidence, although slight, to establish it, it is proper for, as well as the duty of, the court to instruct the jury fully and clearly on all phases of the law of self-defense that are warranted by the evidence, even though such defense is supported only by accused’s own testimony, or accused denies the killing or participation in the homicide; and it has also been held that such an instruction is proper even though no issue of self-defense is raised. Where such an instruction is necessary and proper under the issues and evidence in the case, a failure or refusal to give it constitutes error . . . .’ ” (Emphasis added.) 161 Kan. at 237.
The duty of the trial court to instruct under Smith is predicated upon a determination by the trial court that there is “substantial evidence tending to show that the accused acted in self-defense,” or “evidence that would support a finding of self-defense” or that “it is supported by some substantial evidence,” or “there is any evidence, although slight, to establish it.”
In other words, the duty of the trial court to instruct on affirmative defenses, like the duty to instruct on lesser included offenses, arises when evidence exists that tends to establish the affirmative defense. We have said that a trial court is not required to instruct the jury on a lesser included offense if there is not evidence from which a rational factfinder could find the defendant guilty of the lesser offense. State v. Dixon, 252 Kan. 39, Syl. ¶ 1, 843 P.2d 182 (1992); State v. Lumbrera, 252 Kan. 54, Syl. ¶ 10, 845 P.2d 609 (1992); State v. Stallings, 246 Kan. 642, Syl. ¶ 3, 792 P.2d 1013 (1990); see Hill, 242 Kan. at 73-74. That same standard applies to the question of whether the trial court has a duty to instruct on the defense of self-defense or defense of another.
The question that we must answer is whether, when the evidence is viewed in the light most favorable to the defendant, there is sufficient evidence from which a rational factfinder could find that the defendant acted in self-defense or in defense of another. If the answer to this question is “yes,” then the trial court had a duty to give an instruction on self-defense or defense of another.
Thus, although the trial court is required to instruct the jury on self-defense even if the evidence is slight and consists only of the defendant’s own testimony, there must be sufficient evidence from which a rational factfinder could find that the defendant acted in self-defense or in defense of another. The standard has never been that the mere statement of a defendant that he acted in self-defense or defense of another is sufficient to invoke that duty to instruct on the part of the trial court. The elements of self-defense and defense of another are statutory and there must be sufficient evidence of each of the elements of self-defense or defense of another before a duty to instruct arises.
In determining the availability of a self-defense or defense-of-another instruction under K.S.A. 21-3211, we have applied a two-pronged test. The first prong is subjective — did the defendant sincerely believe it was necessary to kill in order to defend himself or another? The second prong is objective — was the defendant’s belief reasonable? State v. Jordan, 250 Kan. 180, 185, 825 P.2d 157 (1992); State v. Childers, 222 Kan. 32, 48, 563 P.2d 999 (1977). The defendant, under the second prong, must “show the existence of some facts that would support such a belief.” State v. Burgess, 245 Kan. 481, Syl. ¶ 5, 781 P.2d 694 (1989).
In the present case, defendant was part of a group that went to the cliffs to settle a score concerning the fight in which Collins was injured the night before. Although there was some testimony that they just went to talk, the evidence was uncontroverted that they came to the cliffs armed and ready to do battle. Jenkins, Harris, and Collins were armed with clubs; Harris carried a pistol on his person; defendant carried a rifle in his car. Defendant acknowledged that they went as a group to the cliffs “to do something about what happened to Larry [Jenkins] and Mike Collins the night before” and that he would fight if necessary. Upon arrival, defendant, Collins, and members of defendant’s group confronted the other group, provoking the fight that resulted in Alvin Johnson’s death. Once provoked, the fight immediately escalated, and shots were fired.
The defendant further claims that he was not an aggressor because in the beginning he was only an observer without any weapon. According to the defendant, it was only after he was threatened with a club that he left to get a weapon. The defendant’s actions speak louder than his words. After he had escaped from danger, he returned and actively joined an armed group with the avowed purpose of settling a score on behalf of a friend. Even when viewed in the light most favorable to the defendant, the evidence demonstrates that he was the aggressor and therefore not entitled to an instruction under K.S.A. 21-3211. There was not sufficient evidence from which a rational factfinder could have found that the defendant acted in defense of another under K.S.A. 21-3211. The trial court therefore had no duty to instruct under K.S.A. 21-3211.
B. K.S.A. 21-3214(3)(a)
K.S.A. 21-3214 provides:
“The justification described in sections 21-3211, 21-3212, and 21-3213, is not available to a person who:
(3) Otherwise initially provokes the use of force against himself or another, unless:
(a) He has reasonable ground to believe that he is in imminent danger of death or great bodily harm, and he has exhausted every reasonable means to escape such danger other than the use of force which is likely to cause death or great bodily harm to the assailant; or
(b) In good faith, he withdraws from physical contact with the assailant and indicates clearly to the assailant that he desires to withdraw and terminate the use of force, but the assailant continues or resumes the use of force.”
In the alternative, the defendant argues that there was evidence to establish he had reasonable grounds to believe his friend, Collins, was in imminent danger of death and that he had exhausted every reasonable means to extricate his friend other than the use of deadly force or that he withdrew from physical contact. Thus, according to his contention, the trial court had a duty to instruct under K.S.A. 21-3214(3).
With respect to the first requirement of K.S.A. 21-3214(3)(a), a two-pronged test is appropriate. There must be evidence that defendant actually believed that his friend was in imminent danger of death or great bodily harm and there must be evidence of facts to permit a jury to conclude that such belief was reasonable. In addition, however, there must be evidence from which a rational factfinder could conclude that the defendant exhausted every reasonable means to escape (or, in this case, to help his friend escape) such danger other than use of deadly force. We conclude that there was not sufficient evidence in the record from which a rational factfinder could conclude that the defendant exhausted every reasonable means to extricate his friend from danger other than the use of deadly force.
According to the defendant, upon being confronted with a club, he returned to Jenkins’ truck to get a weapon. He heard shots, retrieved his rifle from his own vehicle, and returned to the fight. He testified that upon his return, he saw Alvin Johnson beating Mike Collins. Defendant stated, “I fired two shots in the air to break it up. Then a car came by and I fired two shots at them.” According to the defendant, he returned to his car and “Mike hollered something or other. I turned around and fired a shot toward the man’s leg.” He testified that before leaving, he did not see Mike Collins and was at least 15 feet away from the fight when he fired the shot. He did not return to rescue Collins, but Collins soon showed up at his car, and the two drove off.
The record is silent on what actions the defendant took, other than shooting twice in the air, to stop the fighting between Collins and Alvin Johnson. Although the evidence arguably may provide reasonable grounds for the defendant to have believed that his friend was in imminent danger of death or great bodily harm, there is no evidence to support his contention that he exhausted every reasonable means to avoid such danger other than by the use of force that was likely to cause death or great bodily harm.
The defendant took no specific action to break up the fight, other than firing two shots in the air, before firing the fatal shot. We are mindful that Johnson was a large young man who appeared to be getting the better of Collins in the fist fight. We are mindful that Collins had sustained injuries the night before. On the facts of this case, however, the evidence does not support a finding that defendant exhausted every reasonable means to avoid the need for deadly force. There was other gunfire and a great deal of commotion in the area at the time. Although defendant testified that he “was trying to break it up, get [Alvin] off him,” neither he nor any other witness testified about any specific action he took other than firing two shots. There was no evidence that defendant even spoke to Johnson before shooting him. According to his own testimony, the defendant did not even return to rescue Collins, but shot at Johnson from 15 feet away and then turned to leave, firing his weapon at cars along the way. Collins freed himself, came to the defendant’s car, and got in defendant’s car before both of them left.
Under these circumstances, there is not sufficient evidence from which a rational factfinder could conclude that the defendant acted in defense of another under K.S.A. 21-3214(3)(a) because the evidence clearly demonstrated defendant did not exhaust every reasonable means other than the use of deadly force.
C. K.S.A. 21-3214(3)(b)
Subsection (3)(b) seems uniquely suited to self-defense rather than defense of another. K.S.A. 21-3214(3)(b) resurrects self-defense as a defense because the defendant, based on an actual and clearly communicated withdrawal, loses the status of aggressor. There are some instances in which K.S.A. 21-3214(3)(b) may apply to the defense of another. When, for instance, the evidence establishes that defendant is acting in concert with the other or when the evidence shows that defendant observed the “withdrawal” of the other, K.S.A. 21-3214(3)(b) may apply.
However, in this particular case, it is difficult to apply subsection (3)(b) to the defense of another. The defendant and Collins were not joined in the use of force against Alvin Johnson, and defendant did not observe any withdrawal by Collins. While the defendant may claim to have withdrawn, his withdrawal does not fit as a defense under K.S.A. 21-3214(3)(b). We nevertheless discuss withdrawal because on appeal defendant claims he withdrew and because such a discussion bears upon defendant’s aggressor status.
With respect to K.S.A. 21-3214(3)(b), the evidence of record fails to support a finding that defendant withdrew, and there is no evidence that the defendant communicated any desire to withdraw and stop the use of force. See State v. Meyers, 245 Kan. 471, 476-78, 781 P.2d 700 (1989). After he fired the two shots in the air, the defendant did not see what was going on between Collins and Johnson but appeared to be more interested in firing at passing cars. Moreover, when he made it to his car after shooting Johnson, he hid behind his car and continued to shoot at other cars. The defendant testified that he “fired two shots in the air to break it up. Then a car came by and I fired two shots at them.” Defendant testified that he then returned to his car and “Mike hollered something or other. I turned around and I fired a shot towards the man’s leg.” He then hid behind a car and when another car came by, he “fired a few more rounds back at the tires.” The defendant was involved in the fight and never, according to his own testimony, ceased to use his weapon. Defendant’s own testimony established that he was firing his weapon at others both immediately before and after he fired the shot that killed Alvin Johnson. We conclude, under K.S.A. 21-3214(3)(b), that there was no evidence of a good faith withdrawal or of a desire to withdraw.
The evidence of defendant’s actions throughout the time he claims to have withdrawn clearly demonstrates that he continued as an aggressor. His continued use of the weapon indicates no desire to withdraw and terminate the use of force. Under these circumstances, because both Collins and the defendant were aggressors, the trial court properly denied the defendant’s request for an instruction under 21-3214(3)(b).
At best for defendant, the fight may be described as “mutual combat.” Even then, however, defendant is not entitled to an instruction on defense of another because he willingly provoked the combat. In State v. Meyers, 245 Kan. at 478, we said:
“The general rule is that the doctrine of self-defense [defense of another] cannot be invoked to excuse a killing done in mutual combat willingly entered into. The individual who willingly provoked the mutual combat is not justified or excused in taking life unless he has withdrawn in good faith and communicated that withdrawal, and has done all in his power to avert the necessity of killing. [Citations omitted.]”
Defendant claims that Meyers does not apply because in Meyers, the defendant, through repeated actions, provoked the attack and, after arming himself with a deadly weapon, lured the victims into a situation where the defendant was required to use deadly force to save his life. Although Meyers presents a classic example of a defendant who provoked the combat, the principles set forth in Meyers apply in the present case. In the present case, the evidence is clear that defendant was the aggressor. As noted above, there was no evidence that defendant communicated his withdrawal or that he did all in his power to avoid the need to kill.
Defendant contends that this case is controlled by State v. Cates, 223 Kan. 724, 576 P.2d 657 (1978). In Cates, we held that the trial court did not err in failing to instruct the jury on voluntary and involuntary manslaughter. The trial court instructed the jury on self-defense and the propriety of the self-defense instruction was not at issue in Cates. In analyzing whether the court properly refused to instruct on voluntary and involuntary manslaughter, however, we noted that if the jury had believed Cates’ testimony, it could have found that Cates acted in self-defense and did not use excessive force. 223 Kan. at 728-29.
Even if the issues decided in Cates were directly on point, Cates is factually distinguishable from the case now before this court. The killing in Cates occurred after a four-day feud between two groups. During the course of the feud the participants argued, threatened one another, and damaged each other’s property. One group fired shots at the defendant. Cates testified that on the morning of the killing, he approached a car occupied by members of the opposing group. He carried in a paper bag a homemade “zip gun,” capable of firing one .22 long rifle cartridge. When Cates -opened the back door of the car and saw the female occupant reach for her purse, he told her to get away from her purse. She complied. The victim, who was in the front seat, retrieved a gun and pointed it at Cates. Cates testified that to defend himself, he swung the bag containing the zip gun at the victim. The gun discharged and killed the victim. Cates testified that he did not intend to discharge the weapon or to kill the victim. 223 Kan. at 724-26. Cates testified that he went to the car to talk to one of its occupants and that he did not behave in an angry or upset manner. In Cates, there was no evidence that any argument or quarrel occurred at the time and place of the shooting. The woman in the car complied with Cates’ commands, and no one argued with Cates. 223 Kan. at 729.
In contrast, it is undisputed here that defendant’s group went to the cliffs expecting and prepared for a fight. Although there was some testimony that they went to talk, the evidence was uncontroverted that defendant’s group was armed and that it behaved in a hostile and threatening manner as soon as it arrived at the cliffs. Someone in defendant’s group verbally threatened Johnson’s group; someone in defendant’s group waved a gun around and threatened to shoot; two members of defendant’s group struck Sean Ruis with clubs when Ruis tried to leave. Defendant’s group’s behavior was markedly different from Cates’ behavior at the time and place of the shooting. Defendant knew the purpose of the trip when he got in his car and drove to the cliffs, and he chose to participate. He knew the other members of his group were armed when they arrived at the cliffs. Defendant observed the initial violent confrontation. Cates presents an example of self-defense; the present case presents an example of aggression and provocation. Cates does not control the holding in this case.
Defendant was an aggressor who provoked the use of force against himself or another. The evidence was not sufficient to support a finding that defendant exhausted every reasonable means to avoid the need for deadly force or that defendant withdrew. Accordingly, defendant was not entitled to a defense of another instruction.
Involuntary Manslaughter
Involuntary manslaughter is the unlawful killing of a human being, without malice, which is done unintentionally in the wanton commission of an unlawful act not amounting to a felony, or in the commission of a lawful act in an unlawful or wanton manner. See K.S.A. 21-3404; State v. Burnison, 247 Kan. 19, 27-28, 795 P.2d 32 (1990); State v. Gregory, 218 Kan. 180, 183, 542 P.2d 1051 (1975). Defendant’s claim that he was entitled to an instruction on involuntary manslaughter is based on his claim that he acted lawfully in defense of another, but arguably in an unlawful manner because he used excessive force.
A trial court must instruct the jury on a lesser included offense if there is evidence by which a rational fact finder might find the defendant guilty beyond a reasonable doubt of the lesser included offense. See, e.g., State v. Lumbrera, 252 Kan. 54, 71, 845 P.2d 609 (1992); State v. Dixon, 252 Kan. 39, 43, 843 P.2d 182 (1992); State v. Seelke, 221 Kan. 672, 675, 561 P.2d 869 (1977). Involuntary manslaughter is a lesser degree of murder. See, e.g., Lumbrera, 252 Kan. at 72. The “use of excessive force could be found to be an unlawful manner’ of comitting the lawful act of self-defense, and thus supply that requisite element of involuntary manslaughter.” State v. Gregory, 218 Kan. at 186.
We have determined, however, that defendant was the aggressor and did not satisfy the provisions of K.S.A. 21-3211 or 21-3214(3). Thus, a rational factfinder could not find beyond a reasonable doubt that defendant performed a lawful act in an unlawful manner. The trial court properly refused to instruct the jury on involuntary manslaughter.
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The opinion of the court was delivered by
Lockett, J.:
Fred W. Deavers appeals his conviction and sentence for the first-degree murder of a law enforcement officer, claiming the trial court erred:
(1) in refusing to instruct the jury on the lesser included offenses of first-degree murder;
(2) in denying the defense a continuance of the trial;
(3) in excluding evidence of the officer’s reputation for excessive force;
(4) in improperly instructing on a law enforcement officer’s justification for use of deadly force;
(5) in allowing an improper display of the deceased officer’s photograph;
(6) in not instructing the jury on eyewitness identification;
(7) in improperly instructing the jury as to its duty in determining whether to impose the mandatory 40-year sentence; and
(8) in imposing the mandatory 40-year term of imprisonment after the State failed to give notice as required by statute.
On May 12, 1991, at approximately 11:00 p.m., Fred W. Deavers; his brother, Garland Deavers; and John Doyen were riding around Wichita in Garland Deavers’ van. Garland Deavers was driving. The van displayed a 30-day permit issued to Fred Deavers for a Yamaha motorcycle. Officer Christopher Willems of the Sedgwick County Sheriffs Department observed the permit and turned on his flashing lights. The van stopped in a mall parking lot. Officer Willems exited his vehicle, approached the van, and ordered the driver, Garland Deavers, to exit the van.
There was conflicting testimony concerning the events of the next few minutes. However, it is not disputed that a fight erupted between Garland Deavers and Officer Willems and that Willems was shot to death by Fred Deavers. Fred Deavers was charged with one count of premeditated first-degree murder. K.S.A. 1991 Supp. 21-3401. Deavers claimed that he had acted in defense of his brother. The jury was instructed on first-degree murder and on defense of another. Fred Deavers was found guilty of first-degree murder. The jury recommended a mandatory 40-year sentence. The trial court followed the jury’s sentencing recommendation. Deavers appeals from his conviction and sentence for first-degree murder.
1. REFUSAL TO INSTRUCT THE JURY ON THE LESSER INCLUDED OFFENSES OF FIRST-DEGREE MURDER.
A trial court has an affirmative duty to instruct the jury on all lesser included offenses established by the evidence. K.S.A. 21-3107(3). Instructions on lesser included offenses must be given even though the evidence is weak and inconclusive and consists solely of the testimony of the defendant. An instruction on a lesser included offense is not required, however, if the evidence at trial excludes a theory of guilt on the lesser offense. The duty of the trial court to instruct on the lesser included offense is applicable only when the evidence introduced at the trial is such that the defendant might reasonably have been convicted of the lesser offense. When the trial court refuses to give an instruction on a lesser included offense, the appellate court must view the evidence supporting the lesser charge in the light most favorable to the party requesting the instruction. State v. Dixon, 248 Kan. 776, 781-82, 811 P.2d 1153 (1991).
SECOND-DEGREE MURDER
Defendant argues an instruction on second-degree murder was required because there was no evidence of premeditation or a plan or plot to kill the officer. He contends the evidence was just as susceptible to supporting a second-degree murder charge as it was to one for first-degree murder; therefore, the jury was required to determine his level of culpability. The trial judge refused the defendant’s request to instruct the jury on second-degree murder, voluntary manslaughter, and involuntary manslaughter as lesser included offenses of first-degree murder. Defendant contends the trial court’s failure to give the instruction is reversible error.
First-degree murder is killing done deliberately and with premeditation. An individual acts deliberately and with premeditation if the individual has “thought over the matter beforehand.” PIK Crim. 2d 56.04(b). Second-degree murder is a lesser included offense of first-degree murder. All the elements of second-degree murder are included in the elements of first-degree murder, except the additional element of premeditation. State v. Dixon, 248 Kan. at 782; K.S.A. 21-3402.
Deavers testified that although he was carrying a gun, he never intended to kill the officer. The defendant stated he would not have intervened except that after Garland was down, the officer continued to beat him. It was after Garland said, “Stop, stop,” that defendant took the gun out of his jacket, laid it on the seat, and told John Doyen to “Get outta here.” According to the defendant, he observed Willems hit Garland one more time, then move whatever the officer was hitting his brother with to the other hand, and start to draw his gun. When defendant heard his brother say, “Don’t shoot me,” defendant grabbed his gun and shot at the officer, and the officer fell to the ground. After Garland got up, the defendant told him to get in the van. Deavers stated that after telling his brother to get into the van, he shot the officer in the leg to keep the officer from calling for assistance to arrest them. Deavers reasoned that wounding the officer would allow them to escape. The defendant stated only five to seven seconds elapsed between shots.
The State’s witnesses testified Willems was moving backwards around the front of the van with his hands about shoulder height. Deavers followed the officer, pointing a gun, and had both hands extended. As Willems moved backwards, he pled, “Don’t shoot, don’t shoot.” Willems was first shot in the leg. As Willems was attempting to get up, Deavers continued to approach him. When defendant was "right on top” of the officer, he shot the officer in the head. After shooting the officer, Deavers fired shots at the witnesses. The State contends the evidence indicates the defendant either acted in defense of his brother, Garland Deavers, or premeditated the killing of the officer.
Stalking someone, firing a shot, pausing, and shooting again is evidence of premeditation. There was no substantial evidence to support a conviction of second-degree murder. The trial court did not err in refusing to give such an instruction.
VOLUNTARY MANSLAUGHTER
K.S.A. 21-3403 defines voluntary manslaughter as the unlawful killing of a human being, without malice, which is done intentionally upon a sudden quarrel or in the heat of passion. “Heat of passion” means any intense or vehement emotional excitement of the kind prompting violent and aggressive action, such as rage, anger, hatred, furious resentment, fright, or terror. Such emotional state of mind must be of such a degree as would cause an ordinary person to act on impulse without reflection. State v. Hill, 242 Kan. 68, 74, 744 P.2d 1228 (1987). Defendant argues the facts indicate that the homicide resulted from the fight between the officer and Garland or that the defendant acted in the heat of passion to what he thought was the imminent slaying of his brother.
Even Deavers’ testimony indicates he did not act on impulse or without reflection but took time to ponder the shooting of Willems and his escape from the area. Though there is evidence of a sudden quarrel between the victim and defendant’s brother, there is no evidence that the defendant acted in the heat of passion or upon sudden impulse.
INVOLUNTARY MANSLAUGHTER
K.S.A. 21-3404 provides that involuntary manslaughter is the unlawful killing of a human being, without malice, which is done unintentionally in the wanton commission of an unlawful act not amounting to felony, or in the commission of a lawful act in an unlawful or wanton manner. Defendant relies on the portion of the statute proscribing a killing “which is done unintentionally ... in the commission of a lawful act in an unlawful or wanton manner.”
Deavers asserts he did not intend to kill the officer, but attempted to stop the officer from killing his brother. Defendant claims the jury could have found that the killing occurred while he used unreasonable and excessive force in defense of another. He argues that, under such circumstances, the judge is required to instruct the jury on involuntary manslaughter. He asserts the judge’s failure to instruct on involuntary manslaughter required the jury to find him guilty of first-degree murder or not guilty of anything and denied him the right to have the jury determine if he was guilty of the lesser degree of homicide.
A defendant may use the degree of force which reasonably appears to be necessary to repel an attack and is justified in the use of deadly force to repel deadly force. State v. Cates, 223 Kan. 724, 728-29, 576 P.2d 657 (1978). A review of the evidence shows that, if the jury believed the defendant’s testimony, he was defending an individual whose life was being threatened by a person about to shoot him and was therefore entitled to use the degree of force necessary to repel that person. There is evidence that the killing of the officer was intentional and not a lawful act done in an unlawful or wanton manner.
The defendant in a criminal prosecution has a right to have the court instruct the jury on all lesser included offenses established by substantial evidence, however weak, unsatisfactory, or inconclusive the evidence may appear to the court. To refuse to so instruct the jury would be to invade the jury’s province in the trial of a case. The question is not whether, in the mind of the court, the evidence as a whole excludes the idea that the defendant is guilty of a lesser degree of the offense charged, but whether there is any substantial evidence tending to prove a lesser degree of the offense. If there is, then the question of such degree should be submitted to the jury. The unsupported testimony of the defendant alone, if tending to establish such lesser degree, is sufficient to require the court to so instruct.
Where there is no substantial testimony applicable to the lesser degrees of an offense, and all of the evidence taken together shows that the offense, if committed, was clearly of the higher degree, instructions relating to the lesser degrees of the offense are not necessary. State v. Cunningham, 120 Kan. 430, 431, 243 Pac. 1006 (1926). Since there was no substantial testimony applicable to involuntary manslaughter, the trial court did not err in failing to give such an instruction.
2. ERROR IN DENYING DEFENSE A CONTINUANCE.
Deavers’ preliminary examination was held on June 11, 1991. Deavers was immediately bound over and arraigned. His jury trial was scheduled for July 8, 1991. In early July, the trial was continued for four weeks, at the defendant’s request, to August 5, 1991. At the pretrial conference on July 31, 1991, defense counsel requested another continuance of the trial, claiming (1) there were unknown witnesses who needed to be discovered and interviewed, (2) it was possible that an expert witness was needed to examine physical evidence taken from the slain officer, and (3) the defense was awaiting medical reports on Garland Deavers’ injuries. Defendant asserted to the judge that evidence was necessary for his defense, but he could not reveal its relevance because the information would apprise the State of his defense.
The judge denied the motion, noting the existence of the unknown witnesses was speculative. The judge indicated he would (1) sign whatever orders the defense required to secure medical testimony, (2) compel the presence of any defense witness at trial, and (3) give ample time to examine or cross-examine witnesses and look at or redo chemical analyses. The trial commenced on August 5, 1991.
Defendant asserts the judge’s refusal to grant the continuance was unreasonable. He points out that the State had interviewed numerous witnesses. Deavers claims the defense task was made more difficult because not all of the witnesses were listed on the police reports. Under the circumstances, the defense was required to discover the unknown witnesses through investigative efforts, luck, tips, and leads which had just begun to surface. Deavers argues the judge’s refusal to grant the continuance denied him the right to fully investigate and present evidence.
The granting or denial of a continuance in a criminal case is a matter which rests in the sound discretion of the trial court. Absent a showing of prejudice to the defendant, and an abuse of the court’s discretion, the ruling of the court will not be disturbed on appeal. State v. Thompson, 232 Kan. 364, 368, 654 P.2d 453 (1982).
Neither in the district court nor on appeal has the defendant identified any witnesses who would have testified favorably for the defendant had the requested continuance been granted. Further, Deavers has not revealed what physical evidence taken from Willems required the services of an expert witness or a need to redo chemical analyses. Under these circumstances, there has been no showing of prejudice to the defendant or showing of an abuse of discretion by the trial judge in refusing to grant the defendant an additional continuance. The issue is without merit.
3. POSSIBLE EVIDENCE OF THE OFFICER’S REPUTATION FOR EXCESSIVE FORCE.
Deavers complains the trial judge improperly (1) quashed his two subpoenas duces tecum for the Sedgwick County Sheriffs personnel and internal affairs files regarding the deceased officer and (2) refused to allow his witness to testify as to the character and reputation of Willems. Defendant contends these rulings prevented the defense from discovering potential evidence (through the subpoenaed files) and from presenting to the jury evidence of Willems’ character and reputation. He argues the judge’s rulings violated his right to compulsory process under the Sixth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights and his Fourteenth Amendment due process right to present a full defense. Defendant’s argument intermingles the constitutional claims and the challenged rulings.
Where self-defense is an issue in a homicide case, evidence of the turbulent character of the deceased is admissible. Such evidence may consist of the general reputation of the deceased in the community, but specific instances of misconduct may be shown only by evidence of a conviction of a crime. State v. Mason, 208 Kan. 39, Syl. ¶ 1, 490 P.2d 418 (1971).
When a person’s character or a trait of his or her character is in issue, it may be proved by testimony in the form of opinion, evidence of reputation, or evidence of specific instances of the person’s conduct, subject, however, to the limitations of K.S.A. 60-447. K.S.A. 60-446. When a trait of a person’s character is relevant as tending to prove conduct on a specified occasion, such trait may be proved in the same manner as provided by K.S.A. 60-446, except that evidence of specific instances of conduct other than evidence of conviction of a crime which tends to prove the trait to be bad shall be inadmissible. K.S.A. 60-447.
The defendant issued a subpoena duces tecum for all personnel records and internal affairs files concerning the deceased officer. The Sedgwick County sheriff objected to the subpoenas. The matter was heard at a recess during the trial. At the hearing, defense counsel asserted he needed the records to show that Willems was not acting within the law when the incident occurred. To show it was necessary to review the files, defense counsel cited a newspaper article which indicated “Willems was put on suspension, something to do with marijuana in the jail . . . and then he was placed back on the force.” Defense counsel also noted “a police report from a case in which a person at the hospital was working with another youth who had been beaten by a club while being handcuffed, the officer involved in that was Christopher Willems.” Defense counsel observed this evidence was hearsay and could only be presented to the jury through the subpoenaed records.
In arguing against the subpoenas, the attorney representing the sheriff s department noted the confidential nature of the files and indicated that under K.S.A. 45-221(4) of the Open Records Act, personnel files generally are not required to be disclosed. The prosecutor argued such evidence is inadmissible under K.S.A. 60-447 which, except for convictions of a crime which tends to show a bad trait, prohibits evidence of specific incidents of conduct to prove a person’s conduct on a particular date.
The judge instructed the prosecutor to find whether criminal charges had ever been filed against the officer. The court then took the officer’s personnel file and the internal affairs files to inspect in camera for information that might possibly be used for any purpose whatsoever by the defense. The next morning, the prosecutor informed the court she found no record of arrest or conviction for the victim. The court stated it found “nothing [in the files] relevant, [or] anything that might lead to anything relevant.” The court sustained the objections to the subpoenas.
Defendant notes that the State has a duty to disclose exculpatory evidence. As to violation of his Sixth Amendment right to compulsory process and Fourteenth Amendment due process right to present his defense, Deavers points out that the test for permitting discovery is not whether the evidence sought is admissible, but whether it appears reasonably calculated to lead to the discovery of admissible evidence. Jones v. Bordman, 243 Kan. 444, 455, 759 P.2d 953 (1988). He asserts that under the circumstances defense counsel had shown the need for inspection, and to require more to allow the defense the right to review the files was unreasonable.
There is nothing in the trial record indicating that the subpoenaed files contained evidence of Willems’ reputation for violence and excessive force. Most of the defendant’s argument is based on what might have been in the subpoenaed records. Both the trial judge and this court have viewed the files in camera and found nothing relevant to Deavers’ defense. There is no showing of any constitutional violations or an explanation how his argument is related to the constitutional claims.
After defendant testified on his own behalf, defense counsel attempted to call a witness to testify as to the character and reputation of Willems. A signed affidavit prepared at noon that day by the chief investigator of the Sedgwick County Public Defender’s Office was proffered to the court. The court refused to admit the affidavit into evidence because the affidavit contained no evidence of conviction of a crime tending to prove the officer’s trait to be bad, as required by K.S.A. 60-447. Defendant claims that the jury should have been informed of the officer’s reputation for violence under K.S.A. 60-446, notwithstanding the limitations of K.S.A. 60-447.
The effect of K.S.A. 60-446 and 60-447 is to make opinion testimony and testimony available as proof of a person’s bad character Which is relevant, but to reject evidence of specific instances of conduct except evidence of convictions for a crime. It is the circumstantial proof of conduct of the person that is in question, not the credibility of the witness.
Officer Willems had no criminal convictions; therefore, the defendant was limited to proving his character or reputation by opinion evidence. The only witness the defense counsel intended to call in an attempt to present evidence of Willems’ reputation was an investigator from his office. There is no indication the investigator was personally acquainted with Willems. Rather, her information was based on limited contact with third persons who also had only limited contact with Willems.
When a witness has insufficient knowledge on which to base an opinion, the opinion testimony is so conjectural it lacks probative value and may be properly excluded by the trial court. State v. Richard, 235 Kan. 355, 361, 681 P.2d 612 (1984). The witness had insufficient knowledge on which to base an opinion regarding Willems’ reputation or character. This issue is without merit.
4. WHETHER THE TRIAL COURT ERRED IN ITS INSTRUCTION ON A LAW ENFORCEMENT OFFICER’S USE OF DEADLY FORCE.
K.S.A. 1991 Supp. 21-3215 (1) provides:
“(1) A law enforcement officer . . . making a lawful arrest, need not retreat or desist from efforts to make a lawful arrest because of resistance or threatened resistance to the arrest. Such officer is justified in the use of any force which such officer reasonably believes to be necessary to effect the arrest and of any force which such officer reasonably believes to be necessary to defend the officer’s self or another from bodily harm while making the arrest. However, such officer is justified in using force likely to cause death or great bodily harm only when such officer reasonably believes that such force is necessary to prevent death or great bodily harm to such officer or another person, or when such officer reasonably believes that such force is necessary to prevent the arrest from being defeated by resistance or escape and the person to be arrested has committed or attempted to commit a felony involving great bodily harm or is attempting to escape by use of a deadly weapon, or otherwise indicates that such person will endanger human life or inflict great bodily harm unless arrested without delay.” (Emphasis added.)
The trial court gave the following instruction on use of force by a law enforcement officer in effecting an arrest:
“A law enforcement officer need not retreat or desist from the efforts to make a lawful arrest because of resistance or threatened resistance to the arrest. He is justified in the use of any force which he reasonably believes to be necessary to defend himself from bodily harm while making the arrest.
“However, he is justified in using force likely to cause death or great bodily harm only when he reasonably believes that such force is necessary to prevent death or great bodily harm to himself, or is necessary to prevent the arrest from being defeated by resistance or escape and the person to be arrested indicates that he will endanger life or inflict great bodily harm unless arrested without delay.
“A person is not authorized to use force to resist an arrest which he knows is being made by a law enforcement officer.” (Emphasis added.)
Defendant contends that (1) the italicized portion of the instruction informed the jury that the officer was justified in his use of force likely to cause death or great bodily injury if the jury found Garland was attempting to prevent his arrest by resistance or escape, regardless of whether he had committed or was attempting to commit a felony and (2) the instruction omits that part of the statute which states that deadly force, or force likely to cause great bodily harm, is justified to prevent the escape only when the escape is effected by use of a deadly weapon.
Deavers argues that because the instruction does not distinguish between the use of reasonable force by an officer to defend himself and the use of deadly force for other purposes, it misstates the law. He asserts the instruction negates the defendant’s right to defend another by implying the officer had the right to kill Garland if he was attempting to escape or prevent his arrest. He contends that the instruction as given lessened the State’s burden of proof and erroneously states an officer’s authority to use force. He concludes a proper instruction would first require the jury to find that Garland had committed or was attempting to commit a felony or attempting to escape by use of a deadly weapon.
Deavers asserts 21-3215 does not permit a law enforcement officer who is making an arrest for a misdemeanor to use such force as is likely to cause death or great bodily harm, but that the force used here was likely to and did cause great bodily harm as a matter of law. As we view 21-3215(1), it follows the majority rule concerning arrests of misdemeanants. It allows a law en forcement officer to use any force he or she believes necessary to effect an arrest, but prohibits the use of force which is likely to cause death or great bodily harm except to prevent death or great bodily harm to the officer or another person (the effect is a liberalized self-defense rule), or unless the suspect is attempting to escape by the use of a deadly weapon or otherwise indicates he or she will endanger human life or inflict great bodily harm unless arrested without delay. The purpose of the statute is to set limits for law enforcement officers. Dauffenbach v. City of Wichita, 233 Kan. 1028, 1036-37, 667 P.2d 380 (1983).
Deavers’ analysis of this issue focuses only on the action of the officer in attempting to arrest his brother. He fails to note that after the officer was no longer a threat to his brother, he intentionally shot the officer with the intent to inflict great bodily harm upon the officer to keep the officer from preventing their escape.
A law enforcement officer is justified in using force likely to cause death or great bodily harm when such officer reasonably believes that such force is necessary to prevent the arrest from being defeated by resistance or escape and the person to be arrested otherwise indicates that such person will endanger human life or inflict great bodily harm unless arrested without delay. The jury heard the testimony of the defendant and the witnesses for the state. The jury determined that the officer under the circumstances was not using excess force or that the officer had used no force. Under either finding, the defendant’s contentions are without merit.
5. USE OF THE OFFICER’S FORMAL IDENTIFICATION PHOTOGRAPH.
A sheriff’s department identification photo of Officer Willems was introduced into evidence without objection and placed on a cork board for the jury to view. The pathologist was the next witness. Defense counsel objected to leaving the photograph on the corkboard during testimony about the autopsy, claiming it played on the jury’s emotion. The judge overruled Deavers’ objection without comment. During the course of the pathologist’s testimony, the prosecutor placed several autopsy photographs on the corkboard. All the photos on the corkboard were admitted into evidence.
Defendant contends that the continued display of the officer’s identification photograph to the jury during the presentation of the State’s autopsy evidence denied him his right to a fair trial. Deavers asserts the trial judge’s refusal to remove the identification photograph condoned the State’s attempt to inflame the passions of the jury. He argues the juxtaposition of the identification photograph to the gruesome autopsy photographs shocked the jury and played on the jurors’ emotions.
Deavers’ argument rests on speculation that the identification photograph of the officer and the photographic evidence of the autopsy shocked the jurors and played on their emotions. All of the photos were to be sent to the jury room for the jury’s review. At that time, the jury could arrange the pictures as it desired. Defendant fails to show actual prejudice by the display of the photographs.
The admission of photographic evidence lies within the sound discretion of the trial court. State v. Hedger, 248 Kan. 815, 822, 811 P.2d 1170 (1991). It also follows that the manner of exhibiting admitted photographs to the jury rests within the sound discretion of the trial court. There is no evidence that the court abused its discretion in allowing the jury to view the identification photograph of Willems in conjunction with the autopsy photographs.
6. THE TRIAL JUDGE’S FAILURE TO INSTRUCT THE JURY ON EYEWITNESS IDENTIFICATION.
Defendant contends that because the prosecution’s case relied heavily upon eyewitness testimony, the failure to give an eyewitness instruction constitutes reversible error.
PIK Crim. 2d 52.20, the instruction on eyewitness identification, states:
“The law places the burden upon the state to identify the defendant. The law does not require the defendant to prove he has been wrongly identified. In weighing the reliability of eyewitness identification testimony you first should determine whether any of the following factors existed and if so the extent to which they would affect accuracy of identification by an eyewitness. Factors you may consider are:
1. The opportunity the witness had to observe. This includes any physical condition which could affect the ability of the witness to observe, the length of the time of observation, and any limitations on observation like an obstruction or poor lighting.
2. The emotional state of the witness at the time including that which might be caused by the use of a weapon or a threat of violence.
3. Whether the witness had observed the defendants] on earlier occasions.
4. Whether a significant amount of time elapsed between the crime charged and any later identification.
5. Whether the witness ever failed to identify the defendants] or made any inconsistent identification.
6. The degree of certainty demonstrated by the witness at the time of any identification of the accused.
7. Whether there are any other circumstances that may have affected the accuracy of the eyewitness identification.”
In any criminal action in which eyewitness identification is a critical part of the prosecution’s case and there is a serious question about the reliability of the identification, a cautionary instruction should be given advising the jury as to the factors to be considered in weighing the credibility of the eyewitness identification testimony. State v. Warren, 230 Kan. 385, 397, 635 P.2d 1236 (1981).
Deavers acknowledges that there was no question that he shot and killed Willems. Although there is no question relating to misidentification by an eyewitness, defendant contends that instruction was necessary because the factors addressed by the instruction were relevant to. the weight the eyewitness accounts should be given to the jury. Deavers asserts that there is no valid reason to distinguish between eyewitness identification of a person and testimony by an eyewitness about events observed by the witness. Defendant claims that this is especially true when there is a question about the reliability of an eyewitness regarding his or her observations.
Defendant argues:
“Ms. Oaks testified that she saw the shooter, i.e., Fred, hold the gun with both hands and shoot the officer, run between the van and police car, come back and point the gun at the officer’s head and pull the trigger before getting in the van and driving off. Her testimony is questionable as it fails to take into account the evidence that John Doyen was back by the officer’s car when he ran away, or the presence of Garland. She stated she saw someone on the passenger side run away after the first shot, but did not mention a third person. Channon Brown thought he saw two men approaching the officer before the first shots, and stated the lighting made things hard to see. Aaron Burdick and Melanie Barrientos also gave different accounts of the events which they observed.
“In considering all of the varying accounts, the jury would have been aided by the eyewitness instruction. This instruction offered guidance by which to assess the accuracy of the eyewitness observations and could have helped to create reasonable doubt as to the claims of the prosecution.”
The defendant contends a modified eyewitness identification instruction should be given whenever there is conflicting evidence by witnesses to a crime.
It is not unusual that witnesses view the same incident differently. Under our system, each witness states what the witness observed and the jury determines the facts based on all the evidence adduced during the trial. Jurors are commonly called upon to resolve conflicting testimony of an event which is not associated with the problem of eyewitness identification.
The trial judge instructed the jury:
“It is for you to determine the weight and credit to be given the testimony of each witness. You have a right to use common knowledge and experience in regard to the matter about which a witness has testified.”
The instruction given by the judge correctly requires the jurors to use their common knowledge in resolving conflicting accounts of the same event. Defendant has failed to show a need for an instruction to be given when there is not a serious question of the identification of the perpetrator of a crime and has failed to provide any legal aúthority for that position. This issue is without merit.
7. IMPROPERLY INSTRUCTING THE JURY AS TO ITS DUTIES.
During voir dire the jury was informed that it could recommend a mandatory 40-year sentence. Later, the judge instructed the jury:
“Your only concern in this case is determining whether the defendant is guilty or not guilty. The disposition of the case thereafter is a matter for determination by the Court.”
Defense counsel did not object to this instruction. No party may assign as error the giving or failure to give an instruction unless he or she objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he or she objects and the grounds of the objection, unless the instruction is clearly erroneous. K.S.A. 22-3414(3). An instruction is clearly erroneous only if the reviewing court reaches a firm conviction that if the trial error had not occurred there is a real possibility the jury would have returned a different verdict. See State v. DeMoss, 244 Kan. 387, 391-92, 770 P.2d 441 (1989).
Deavers contends this instruction is not appropriate .when the State invokes the mandatory 40-year sentence because the jury is additionally required to determine its recommended sentence or disposition. Defendant claims the instruction creates two problems: (1) It tells the jury that its only concern is to determine whether Deavers was guilty or not guilty, and (2) it fails to inform the jurors of their role regarding the imposition of a mandatory 40-year sentence. He surmises that the jury may have believed if it returned a verdict of guilty, it had no duty to determine the punishment. He asserts that belief made it easier for the jury to agree on a guilty verdict. In addition, Deavers claims that the instruction influenced the jury’s decision to recommend a mandatory 40-year term.
Defendant’s arguments are mere speculation and are not supported by fact. The instruction correctly stated the law. Under the facts there is no possibility the jury would have returned a different verdict or failed to recommend the punishment had the instruction not been given. This issue is without merit.
8. THE COURT IMPROPERLY IMPOSED THE MANDATORY 40-YEAR TERM OF IMPRISONMENT AFTER THE STATE FAILED TO GIVE PROPER NOTICE AT THE ARRAIGNMENT.
Deavers was sentenced, pursuant to K.S.A. 1991 Supp. 21-4628, the first-degree murder “hard-40” sentencing statute, to imprisonment for life with no eligibility for parole prior to serving 40 years’ imprisonment.
K.S.A. 1991 Supp. 21-4624(1) provides:
“If a defendant is charged with murder in the first degree, the county or district attorney shall file written notice if such attorney intends, upon conviction or adjudication of guilt of the defendant, to request a separate sentencing proceeding to determine whether the defendant should be required to serve a mandatory term of imprisonment of 40 years. Such notice shall be filed with the court and served on the defendant or the defendant’s attorney at the time of arraignment. If such notice is not filed and served as required by this subsection, the county or district attorney may not request such a sentencing proceeding and the defendant, if convicted of murder in the first degree, shall be sentenced as otherwise provided by law, and no mandatory term of imprisonment shall be imposed hereunder. ” (Emphasis added.)
Defendant contends the trial court erred in allowing the State to seek a mandatory 40-year term of imprisonment after it failed to comply with the statutory requirement that notice must be given at arraignment.
Defendant was arraigned following the preliminary hearing on June 11, 1991. After Deavers was served with a copy of the information charging him with murder in the first degree, he pled not guilty and requested a jury trial. The judge set the trial for July 8, 1991, and then asked the State and the defendant whether there was anything else that needed to be accomplished. The prosecutor and the defense counsel each indicated there were no further matters to bring before the court at that time. The judge concluded the arraignment and adjourned for the noon recess.
At 2:00 p.m. that day, at the prosecutor’s request, the parties again appeared before the court. The prosecutor informed the judge that during the arraignment she had forgotten to give the defendant notice of the State’s request for a 40-year mandatory term when she handed a copy of the information to him. She then handed defendant a copy of the notice. Defense counsel objected, arguing (1) the arraignment had been concluded, (2) the prosecutor had stated she had no further business, and (3) the statute requires that notice be filed with the court and served on the defendant at the arraignment; therefore, the prosecution had failed to comply with the requirement. The prosecutor responded that when she realized she had forgotten to hand the notice to Deavers, she notified the judge and defense counsel. Deavers had received notice less than an hour after the arraignment had ended. The prosecutor argued the failure to strictly comply with the statute did not prejudice the defendant. The judge stated that the statute was clear but, without stating why, found that the State’s failure to comply with the statute’s notice requirement was excusable neglect and permitted the State to serve notice subsequent to the defendant’s arraignment.
Defendant notes that courts must strictly construe penal statutes in favor of an accused. State v. Magness, 240 Kan. 719, 721, 732 P.2d 747 (1987). He argues the clear language of 21-4624(1) requires notice to be filed with the court and served on the defendant at the arraignment. This was not done.
Defendant first argues that notice is required to be served at the defendant’s initial appearance when he is informed that he is charged with first-degree murder and again at the arraignment.
The State concedes that K.S.A. 1991 Supp. 21-4624(1) requires notice to be served on the defendant “at the time of arraignment” and the notice was not served on Deavers “at the time of arraignment.” The State claims its failure to strictly comply with the statute was harmless error because defendant received notice in time to take any action necessary. The State asserts, except for the enhanced sentence, there was no prejudicial impact on defendant’s preparation for trial, the presentation of a defense, or at his sentencing.
Whether language in a statute is mandatory or directory is to be determined on a case-by-case basis and the criterion as to whether a requirement is mandatory or directory is whether compliance with such requirement is essential to preserve the rights of the parties. Griffin v. Rogers, 232 Kan. 168, 174, 653 P.2d 463 (1982). In determining whether a legislative provision is mandatory or directory, it is a general rule that where strict compliance with the provision is essential to the preservation of the rights of parties affected and to the validity of the proceeding, the provision is mandatory, but where the provision fixes a mode of proceeding and a time within which an official act is to be done, and is intended to secure order, system, and dispatch of the public business, the provision is directory. Factors which would indicate that the provisions of a statute or ordinance are mandatory are: (1) the presence of negative words requiring that an act shall be done in no other manner or at no other time than that designated, or (2) a provision for a penalty or other consequence of noncompliance. Paul v. City of Manhattan, 212 Kan. 381, Syl. ¶¶ 1, 2, 511 P.2d 244 (1973).
We recognize that K.S.A. 1991 Supp. 21-4624(1) contains a “penalty or other consequence of noncompliance” provision. It states: “If such notice is not filed and served as required by this subsection, the county or district attorney may not request such a sentencing proceeding and the defendant, if convicted of murder in the first degree, shall be sentenced as otherwise provided by law, and no mandatory term of imprisonment shall be imposed hereunder.” Prejudice to the defendant is indisputable. If the State is permitted to serve notice outside the limits of the statute, Deavers is subject to the enhanced sentence.
The requirement is mandatory. The State failed to follow the clear requirement of the statute. If 2 hours and 20 minutes beyond the requirement of the statute is acceptable, at what time beyond the statutory requirement does a court determine failure to comply with the statute is unacceptable? Defendant’s sentence is vacated, and the case is remanded for resentencing as required by K.S.A. 1991 Supp. 21-4624(1).
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The opinion of the court was delivered by
Six, J.:
This is a criminal evidence case. The primary issue concerns the admission of evidence of gang characteristics and gang association through both expert and lay testimony. Secondary issues concern the trial court’s: (1) failure to instruct on the lesser included offense of involuntary manslaughter; (2) certification of the minor defendant for prosecution as an adult; and (3) imposing the maximum sentence.
Hieu D. Tran (Hieu) was convicted by a jury of second-degree murder (K.S.A. 21-3402). Our jurisdiction is based upon a transfer from the Court of Appeals under K.S.A. 20-3018(c) and upon K.S.A. 1992 Supp. 22-3601(b)(l). The standard of review is abuse of trial court discretion. State v. Griffin, 246 Kan. 320, 326, 787 P.2d 701 (1990).
We find no error and affirm.
Facts
During a December evening in 1990, the Tran brothers, Toan Q. and Toan (the victim), and their girlfriends met at a skating rink in Wichita. Hieu (the defendant) had arrived at the rink with a group of friends. Jimmy Nguyen, one of Hieu’s friends, testified that sometime before the group left for the rink, Tam, another friend, showed the group a small black .22 caliber handgun. Tam had loaded the gun in front of the group and had it with him when the group left to go skating.
Several witnesses saw Hieu at the skating rink. Hieu was told by management to leave the rink because he had broken the rules. He changed his appearance by putting on a green trench coat and wire rim glasses and undoing his ponytail before returning to the rink. One of the floor guards on duty that night testified that “[q]uite a few” individuals inside the rink wore green trench coats. When Jimmy Nguyen arrived at the rink he put his shoes and those of a friend in a locker. Toan Q. later opened the same locker to store his shoes and those of his girlfriend. Toan Q. removed Jimmy’s shoes in order to insert his own, whereupon Jimmy accused Toan Q. of stealing. Toan Q. told Jimmy that Jimmy’s shoes were beside the locker. Toan Q. testified that Jimmy, surrounded by Jimmy’s friends, began pointing at him and swearing in Vietnamese. The argument continued. Toan Q. informed Jimmy he had a gun in the car. Jimmy threw a punch at the Tran brothers.
A security officer and a floor guard broke up the fight. After investigating the incident, the security officer arrested Jimmy for assault and battery. The Tran brothers indicated that they wanted to follow through with Jimmy’s prosecution. A patron at the rink testified that he was in the skate shop after the fight and saw someone there with a green trench coat in a group of Vietnamese males. The patron heard people in the group say “they were gonna get even and they knew how they were gonna do it.”
The Tran brothers and their girlfriends, in leaving the skating rink, headed towards the parking lot. Kevin Nguyen followed and stated, “[Y]ou fought my friend, why don’t you fight me?” Kevin claimed that one of the Tran brothers took a swing at him. Toan Q. kept on walking because he was afraid “something might happen.” A girlfriend of one of the Trans testified that she, the other girl, and the Trans were confronted by “a whole bunch of guys.” She said she heard Kevin say to Toan Q., “ ‘Why’d you mess with my brother? You mess with him, you mess with me.’ ” She also heard talk about a gun. The owner of the rink saw the confrontation between Kevin and one of the Trans and stepped in to diffuse the situation.
Toan Q. said he heard someone say, “ ‘Where’s the piece, where’s the piece?’ ” Toan Q. testified that someone hit him twice in the face and “before I knew anything, everybody was jumping on top of me and I didn’t know where my brother was.” He stated that six to eight people were fighting him and that he did not see Hieu in any of the groups of people he fought. The victim’s girlfriend testified that she heard one of the people in the group say to Toan Q., “ ‘[D]o you wanna fight one of me or do you wanna fight gang?’ ”
According to Toan Q.’s girlfriend, as many as 8 or 10 people were fighting the Trans (4 or 5 on Toan and 4 or 5 on Toan Q.). The security officer testified that he saw 35 to 50 Vietnamese in a parking lot encirclement. He testified he heard a shot and saw a flash of light. The floor guard told the rink owner that someone had been shot. The owner noticed people “going everywhere,” including someone next to the fence in a drab green jacket.
Toan died from a head wound. Dr. Peterson, who performed the autopsy, removed the lead slug and gave it to the authorities. A spent cartridge case was discovered at the crime scene. The next day the rink owner found a gun in the snow near the fence where he had seen the person in the green jacket. There were no footprints in the snow in that area. The bullet removed from the victim was so distorted the police examiner was unable to conclusively determine that it came from the gun found in the snow. The examiner did testify that the empty cartridge case found in the parking lot was fired from the gun he had examined.
Thirteen-year-old Charlie Pham testified that he watched the fight in the parking lot. Charlie saw Hieu in the circle of people, pull a gun from inside the green trench coat and point it at Toan’s head. Charlie heard one shot fired and stated that Hieu had shot Toan. Jon Corbin, Charlie’s friend, testified that Charlie was asked after the shooting if he knew who had done it. Charlie replied, “Yeah, Hieu.”
The next day, Hieu, who was not yet a suspect in the shooting, was interviewed by Detective Morris. Hieu denied any involvement in the events surrounding the shooting. Hieu told Detective Morris that he: (1) arrived at the rink at approximately 6:00 p.m.; (2) had seen the disturbance by the lockers; and (3) took off his skates around 9:00 p.m. and waited for his friends to finish skating. Detective Morris also indicated that an organization called the C Boys or Seal Boys was discussed because the group was associated with North High School and Hieu had attended that school.
Hieu was arrested a week later. After his arrest, Hieu initialed a Miranda form, indicating that he read and understood his rights. Hieu stated he saw people leaving the skating rink and he figured there was going to be a fight outside. He told the defectives he had heard that someone had been shot. Hieu said that he had been wearing a jean jacket, black shirt, and jeans and that his hair was tied back. A second interview commenced about seven or eight minutes later. Hieu admitted being kicked out of the skating rink and that he returned after altering his appearance. He also admitted he was in the parking lot at the time of the fight but denied being a participant. Hieu said he heard a shot but he thought a police officer was shooting.
Hieu explained that Tam had the gun with him when they went to the rink. He claimed that later that evening Tam told him someone named Hung had thrown the gun away. A detective testified that Hieu commented that the shooting must have been an accident because Vietnamese people do not shoot other Vietnamese people. The detective said Hieu speculated that with all the people running around someone must have been bumped, which caused the gun to go off. Hieu, with tears in his eyes, said, “I didn’t mean to shoot him.” Hieu told the detective that he put his hands in the pockets of the green trench coat and happened to find a gun, which he pulled out and pointed to scare the persons on the ground fighting. Hieu stated that he was bumped and the gun went off. Hieu said that he threw the gun as hard as he could.
The trial court granted the State’s motion for prosecution as an adult. Prior to trial, Hieu’s counsel filed a motion in limine seeking to preclude, among other things, the admission of evidence regarding Hieu’s alleged gang involvement. The motion was denied. Defense counsel at trial entered a continuing objection to the admission of any gang evidence.
Expert Gang Testimony-Gang Characteristics and Association
Officer Brad Carey, the gang intelligence officer for the Wichita Police Special Community Action Team (SCAT), testified of his training and experience concerning gangs. The trial judge rec ognized Officer Carey as an expert in the area of gangs. Officer Carey explained that one of his duties was to document and maintain a roster of Wichita gang members. The officer stated that he used the Los Angeles police gang unit criteria for determining whether an individual was a member of a gang. Carey testified regarding the Los Angeles criteria:
“A. One [of the criteria] would be if an individual admits gang membership. Two would be if a very reliable informant tells me that this person is a gang member. If a person wears gang type clothing or would change his dress style to affect a certain neighborhood. If the person is arrested in the association of other gang members during the commission of a gang crime. If an unreliable informant or one who has not been tested before, that person tells me that this person is a gang member, I try to corroborate that information with other criteria to prove that this person is a gang member or whether he is not a gang member. If a person is continually in the association or within the group of gang members but does not fit the other criteria, I list him as a gang associate and not a gang member.”
Additionally, Officer Carey affirmed that he used the Los Angeles criteria in compiling a membership list for the “Local Boys” gang. He described the physical characteristics of the Local Boys and the characteristics of Asian gangs. Among other things, Officer Carey testified that Asian gangs “always try to instill fear and intimidation in the community, and they do this by — they’ll always retaliate against the person or the — a family, if it may be a family, with phone calls, with death threats, driving by the house.” Carey noted that Asian gangs are likely to retaliate and that the means of retaliation could include violence. Officer Carey identified Hieu from a photo lineup as a member of the Local Boys gang. Carey’s identification was based upon observations of Hieu associating with other gang members on two occasions and on information provided by a reliable informant. At trial, a variety of witnesses testified regarding a local group or gang known of as the Local Boys.
Hieu’s Contentions
Hieu claims he was denied a fair trial by the admission of gang characteristics and purported gang associations. Hieu reasons that a gang is not simply a group of kids who hang out together. According to Hieu, the term gang, in its current usage, connotes opprobrious implications. The use of the word “gang” takes on a sinister meaning when it is associated with activities. Hieu argues that in attempting to associate the crime charged with gang activity, the State employed, through expert and other (mainly hearsay) testimony, an overly broad use of the term gang. The use encompassed virtually any association of minority youth, whether or not participating in criminal activity. Hieu asserts that such a definition of the term gang, in the context of a criminal prosecution, violates the right to freely associate which is protected by the First and Fourteenth Amendments to the United States Constitution.
Hieu asserts that Lanzetta v. New Jersey, 306 U.S. 451, 83 L. Ed. 888, 59 S. Ct. 618 (1939), struck down a statute which referenced the term gang because it was conceptually overbroad. Lanzetta is not controlling. Lanzetta focused solely upon statutory interpretation. No “gang” statute is being applied in the case at bar. Kansas has not adopted “gang” legislation.
Hieu argues that Officer Carey was not qualified to testify as an expert on street gangs because his opinions were not based upon viewpoints generally accepted within the field. Hieu claims that Officer Carey’s testimony used theories regarding gang identity and behavior and attempted to apply the theories to the “Local Boys” to suggest that the shooting was gang related. According to Hieu, Officer Carey was operating as a behavioral scientist. Consequently, the basis of Carey’s opinions must be generally accepted as reliable within the field. Hieu refers to an extensive study by researchers at the University of Chicago which deals with gangs as a juvenile problem in our society. Spergel, Youth Gangs Problem and Response: A Review of the Literature, Part 1, National Youth Gang Suppression and Intervention Project, Office of Juvenile Justice and Delinquency Prevention, U.S. Department of Justice, and School of Social Service Administration, University of Chicago (April 1990).
The inference Hieu draws from the University of Chicago study appears to be that Officer Carey’s conclusions must be flawed because the whole field of gang study is fraught with definitional difficulty. According to Hieu, the Los Angeles Police Department criteria are overbroad. In support of this claim he references an incident in which Los Angeles police conducted a major gang sweep and close to half of those arrested were not gang members. See Burrell, Gang Evidence; Issues for Criminal Defense, 30 Santa Clara L. Rev. 739, 742-43 (1990). Hieu asserts, without citation to the record, that Officer Carey believed that “any association among minority youth, whether participating in illegal activity or not, constitutes a ‘gang.’ ” Carey labeled Hieu a gang member after two separate observations of involvement in activities with known gang members. Carey also testified that more than one of the criteria must be present to label an individual as a gang member. Carey placed Hieu on the gang list because of the observations and because of a statement by a reliable informant. Hieu refutes the use of the informant as reliance upon “impermissible hearsay.” Hieu also argues that appearance (i.e., clothing, hair color) cannot be used to conclusively establish gang membership and that Carey’s testimony regarding general gang behavior was not directly related to Hieu.
Hieu compares his case with State v. Clements, 244 Kan. 411, 770 P.2d 447 (1989). In Clements, a psychologist testifying as an expert on child sexual abuse presented testimony of the characteristics of the typical child sexual abuser. The State was permitted to tie this testimony to Clements in closing argument. On cross-examination, the psychologist stated that his sexual abuser comments did not specifically relate to Clements and that he had never met or talked to Clements. We held that the expert’s testimony was not relevant to whether Clements committed the crime. It created an impermissible inference of guilt and did not assist the jury in determining if the child was sexually abused by Clements. 244 Kan. at 421. Evidence of gang association or characteristics may only be admitted if relevant. Relevance is present in the case at bar. Hieu’s reliance on Clements is misplaced.
The State’s Contentions
The State asserts that Officer Carey was properly qualified as an expert under K.S.A. 60-456(b) and, consequently, the admission of his testimony was not an abuse of discretion. Officer Carey attended a week-long seminar hosted by the Los Angeles County Sheriff’s Department that dealt specifically with gangs. He was instructed on techniques to identify gang crimes and gang members, as well as on ways to combat gang violence. He attended a Drug Enforcement Administration seminar that included a four- hour block of instruction concerning gangs. In addition, he had: (1) read a book dealing specifically with Asian gang crimes; (2) read numerous police magazine articles on gang violence; (3) viewed 12 videotapes involving gang activity; (4) spoken at 15 to 20 professional gatherings on the topic of gangs; (5) contact with other gang control units across the country and frequently traded information with them.
The State asserts that Officer Carey’s testimony was helpful to the jury and was properly admitted. We agree. Expert testimony can explain a defendant’s actions which might otherwise appear difficult to comprehend. As the Wichita gang intelligence officer, Carey is required to gather information on Wichita gangs and gang-related activity. Officer Carey, in his capacity as gang intelligence officer for SCAT, has accumulated knowledge and information unique to the field of gangs and gang activity. Carey was able to provide the jury with information not generally known regarding gang characteristics and indicia of membership in a specific gang. Carey’s testimony had the tendency to prove material facts relating to the events surrounding Toan’s death. See Clements, 244 Kan. at 418.
The admission of expert testimony is governed by K.S.A. 60-456(b). A general framework for examining an expert’s qualifications appears in State v. McClain, 216 Kan. 602, 606, 533 P.2d 1277 (1975). The expert must be qualified to impart to the jury knowledge within the scope of the expert’s special skill and experience that is otherwise unavailable to the jury from other sources. The trial court did not abuse its discretion when it determined that Officer Carey was an expert in the area of gangs. Although there may be people who are more qualified than Carey in this area, he did testify regarding his training and education and this testimony provided a sufficient basis for the trial court’s ruling. Hieu has not demonstrated why the standards regarding scientific experts under Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), and State v. Washington, 229 Kan. 47, 622 P.2d 986 (1981), apply to the case at bar. The State is correct when it asserts that the argument regarding the definition of the term gang deals with the substance of the testimony. As such, the concerns Hieu had regarding Carey’s criteria for labeling individuals as gang members should have been brought out in cross- examination. The arguments regarding Carey’s credentials and his conception of what constitutes a gang go to the weight of the testimony, not its admissibility.
Other Jurisdictions
Other jurisdictions have reviewed a police officer’s expertise to testify regarding gangs and have determined that the testimony was properly admitted. People v. McDaniels, 107 Cal. App. 3d 898, 904, 166 Cal. Rptr. 12 (1980); People v. Anderson, 153 Ill. App. 3d 542, 505 N.E.2d 1303, cert. denied 116 Ill. 2d 562 (1987). However, expert testimony regarding the “pattern of criminal gang activity” when based upon nonspecific hearsay rather than personal knowledge has been held inadmissible. In re Nathaniel C., 228 Cal. App. 3d 990, 1003, 279 Cal. Rptr. 236 (1991)
Right of Association
The First and Fourteenth Amendment association right argument advanced by Hieu is not persuasive. Association rights are not viewed in a vacuum. Scales v. United States, 367 U.S. 203, 6 L. Ed. 2d 782, 81 S. Ct. 1469, reh. denied 366 U.S. 978 (1961) (association and advocacy may be of the type that is not constitutionally protected — i.e., advocating the overthrow of the government). Hieu’s reliance on Brandenburg v. Ohio, 395 U.S. 444, 23 L. Ed. 2d 430, 89 S. Ct. 1827 (1969), is misplaced. Brandenburg is a free speech case. Criminal associations are not protected.
Hieu relies on Dawson v. Delaware, 503 U.S. _, 117 L. Ed. 2d 309, 112 S. Ct. 1093 (1992), as support for his argument opposing the admission of gang evidence. Dawson held that stipulated evidence at a sentencing hearing regarding a convicted criminal’s white racist prison gang association violated Dawson’s rights under the First and Fourteenth Amendments. However, Dawson involved a sentencing proceeding. The evidence of gang association was not relevant to that proceeding. 503 U.S. at -, 117 L. Ed. 2d at 317. Dawson does not stand for the position that such evidence must always be excluded. In fact, United States v. Abel, 469 U.S. 45, 83 L. Ed. 2d 450, 105 S. Ct. 465 (1984), held that evidence of gang membership was probative of witness bias, and its probative value outweighed the potential for prejudice. Dawson does not overrule or limit Abel; we read Dawson as applying to the sentencing fact scenario. We rejected Hieu’s Dawson contention in State v. Walker, 252 Kan. 117, 843 P.2d 203 (1992). Trial court discretion in resolving the balance of probative value and prejudice potential is referenced in K.S.A. 60-445.
Character Evidence
Hieu argues that the evidence regarding gangs was not relevant and constituted improper evidence of his character under K.S.A. 60-447(b). Hieu emphasizes that he did not testify and did not introduce evidence regarding his good character. The State replies that K.S.A. 60-447(b) refers to evidence of a person’s character, not to group or gang characteristics. Consequently, the statute cannot be applied to preclude the admission of relevant evidence regarding Hieu’s gang affiliation. We agree.
Res Gestae
We recently approved the admission of gang evidence on a res gestae basis in Walker, 252 Kan. 117 and State v. Hooks, 251 Kan. 755, 765, 840 P.2d 483 (1992) (gang evidence admitted as a part of the res gestae or of Hooks’ responses to questions asked him by the interviewing officers).
Several facts which support the admission of gang testimony as res gestae in the case at bar are emphasized by the State: (1) Ngoc Tran (Toan Q.’s girlfriend) testified that prior to the fight in the parking lot, she heard someone say to Toan Q. “ ‘[D]o you wanna fight one of me or do you wanna fight gang?’ ” (2) Several witnesses testified that Kevin, the individual who admitted starting the fight in the parking lot, was either a member of the Local Boys or associated with members of the Local Boys. (3) Kevin made the following statement to Toan Q., “[W]hy’d you mess with my brother? You mess with him you mess with me.” (4) Witnesses also testified that Jimmy, the individual who started the fight inside the skating rink, was a member of the Local Boys. (5) Charlie Pham testified that he saw Hieu shoot Toan in the back of the head. (6) Keosavan Vilaythong and Panida ‘Bybe’ Vilaythong testified that Hieu was a member of the Local Boys. (7) The Tran brothers did not belong to the Local Boys. Evidence of gang membership was relevant and constituted proper res gestae evidence.
Motive
The State argues that evidence of gang membership was relevant to establish Hieu’s motive for the crime. Following the fight inside the skating rink, Corby Turner heard a group of three to five Vietnamese males talking about the incident. Turner heard the people in the group say “they were gonna get even and they knew how they were gonna do it.” According to the State, Turner’s conversation established a link between the fight in the skating rink and the fight in the parking lot that lead to Toan’s death. The motivation or desire to “get even” with the Trans, who were involved in the arrest of Jimmy Nguyen, a member of the Local Boys, led to the confrontation in the parking lot. Hieu was a participant in the fight in the parking lot. Hieu made sure the gang retaliated with the Trans when he shot Toan in the back of the head.
Officer Carey testified that if someone got a member of the gang in trouble, the gang would retaliate. Absent evidence of gáng affiliation, the jury would wonder why Hieu felt the need to get even with the Tran brothers. Again, evidence of gang affiliation established an alliance among Jimmy, who started the initial fight inside the skating rink; Kevin, who started the fight in the parking lot; and Hieu, who fired the shot that killed Toan. Without evidence of gang affiliation, the State’s attempt to establish a motive for the crime would have been impeded.
The trial court did not abuse its discretion when it allowed the State to present relevant evidence of gang membership to establish Hieu’s motivation for the crime. Relevant evidence is evidence “having any tendency in reason to prove any material fact.” K.S.A. 60-401(b).
The motive concept is similar to the concept adopted by the United States Supreme Court in Abel that gang evidence may be admitted to prove bias. 469 U.S. at 49. The admission of evidence to prove motive is also consistent with one of the conclusions within the University of Chicago study cited by Hieu. The study notes: “The definition of a gang incident should be restrictive based on gang function, motivation or particular circumstances, not gang membership alone. A gang incident therefore should be any illegal act which arises out of gang motivation or gang-related circumstances.” Spergel, Youth Gangs at 292.
We note that the State requested a limiting instruction on gang evidence. Hieu objected.
The trial court observed:
"You understand you’re gonna get — whether there’s an instruction or not, you’re going to get argument on behalf of the State that your client is a member of a gang and that it is for — ”
Hieu’s counsel responded:
“I understand I can get argument from the State. And that is just that, it’s argument. The jury gets to weigh the evidence. But I think when the court puts any matter with regard to gang in the instructions and let’s it go back to the jury, I really have a tough time with the prejudicial value.”
The trial court denied the State’s request, reasoning:
“I’ll find as a matter of law that this is an instruction to which the defendant is entitled, it’s not a matter of constitutional magnitude and that it’s comparable to the request for an instruction on defendant not testifying. It’s controlled by the defendant, not by the State. And since [defense counsel] is opposed to it, I will not give the proposed instruction or any version of it. And I’m not giving it only because [defense counsel’s] opposed to it.”
For an example of a gang evidence limiting instruction, see People v. Contreras, 144 Cal. App. 3d 749, 755 n.2, 192 Cal Rptr. 810 (1983).
The Lesser Included Offense of Involuntary Manslaughter
Hieu claims that he was entitled to a jury instruction on involuntary manslaughter. He believes that his statement to detectives, that the gun accidentally discharged after his arm was bumped by someone in the crowd, provides the evidentiary support for the instruction. Hieu correctly observes that the State, not Hieu, requested the instruction.
K.S.A. 21-3107(3) sets forth the statutory rule regarding instructions for lesser crimes. A trial court has the duty to instruct the jury on all lesser included offenses established by the evidence. An instruction on a lesser included offense is not required, however, if the evidence at trial excludes a theory of guilt on the lesser offense. State v. Deggs, 251 Kan. 342, 344, 834 P.2d 376 (1992).
Involuntary manslaughter is a lesser included offense of second-degree murder. See State v. Wilburn, 249 Kan. 678, 687, 822 P.2d 609 (1991). K.S.A. 21-3404(a) describes the elements of the crime:
“Involuntary manslaughter is the unlawful killing of a human being, without malice, which is done unintentionally in the wanton commission of an unlawful act not amounting to felony, or in the commission of a lawful act in an unlawful or wanton manner.”
Hieu contends that he committed an unlawful killing while engaged in an unlawful act not amounting to a felony. At trial, the State argued that Hieu’s taped statement established that he committed the murder during the course of either an aggravated assault or attempted aggravated assault, both of which are felonies. K.S.A. 21-3410(c), K.S.A. 1992 Supp. 21-3301(c)(4). (Hieu stated he pointed the gun to scare the person on the ground fighting.) On appeal, Hieu’s argument is that the murder was committed while he was engaged in the violation of a Wichita city ordinance that prohibits drawing a firearm upon another.
The State observes that Hieu’s argument was never presented to the trial court; consequently, Hieu could not have been found guilty of an unlawful act not amounting to a felony by violating the ordinance. There was no evidence that Hieu was committing an unlawful act not amounting to a felony when he killed Toan. (Hieu neither referenced the alleged violation of the city ordinance nor requested the trial court to take judicial notice of the ordinance under K.S.A. 60-409.) The State asserts that State v. Cates, 223 Kan. 724, 576 P.2d 657 (1978), controls. We agree. Cates, who was convicted of second-degree murder, asserted that a homemade gun he was carrying inside a paper sack accidentally discharged while he was in a struggle with his victim. 223 Kan. at 726. Counsel on appeal in Cates attempted to justify an involuntary manslaughter instruction based upon a Wichita city ordinance which makes the discharge of a firearm in the city a misdemeanor. We commented that at no time in the trial of Cates was such a theory presented to the trial court. The ordinance was neither in the record or the briefs nor called to the attention of the trial court. No request was made to take judicial notice of it. 223 Kan. at 728. A similar analysis applies to the case at bar. Hieu’s claim that the charges in the two cases are dissimilar does not address the failure of Hieu to present the ordinance at trial. The trial court did not abuse its discretion by refusing to instruct on involuntary manslaughter.
Certification for Prosecution as an Adult
Any time a court in Kansas is asked to determine whether the prosecution of a juvenile as an adult is warranted it must consider the statutory factors that appear in K.S.A. 1992 Supp. 38-1636(e). Additionally, K.S.A. 1992 Supp. 38-1636(^(2) requires the court to find, among other things, that there “is substantial evidence that the respondent should be prosecuted as an adult for the offense with which the respondent is charged.” The juvenile court judge discussed and made findings on each of the eight K.S.A. 1992 Supp. 38-1636(e) factors. The certification decision is a methodically detailed statement outlining the evidence and reasoning supporting certification. The standard for evaluating whether the decision to certify a juvenile as an adult was proper is whether the decision was supported by substantial evidence. In re Johnson, 5 Kan. App. 2d 420, 425, 617 P.2d 1273, rev. denied 229 Kan. 670 (1980). The evidence, discussed by the judge when he considered the statutory factors, was sufficient for a reasonable person to conclude that Hieu should have been tried as an adult. Hieu was 17 years old when he went to trial. We find no abuse of discretion in the trial court’s authorization to try Hieu as an adult. See State v. Hooks, 251 Kan. 755, 840 P.2d 483 (1992).
The Sentence Imposed
The trial judge in sentencing Hieu considered the K.S.A. 21-4606 statutory criteria which are to be used in fixing minimum prison terms. Hieu asserts that the evidence regarding gang membership prejudiced the trial judge, who imposed the maximum sentence of 15 years to life. The trial judge also found that the acts were premeditated and deliberate. Hieu claims the prejudice is demonstrated by the trial judge’s comments that Hieu’s “character and attitudes indicate that he is likely to commit another crime,” and that “imprisonment would not entail any hardship to anyone.” Hieu speculates that the likely source of the judge’s opinions in this regard was evidence that Hieu was a member of a gang. Hieu also takes issue with the trial judge’s statement immediately after sentencing that the action was premeditated.
The State counters by observing that the trial court stated: “I’m also given the right and duty to look at the seven factors contained in our statute, . . . and those factors when applied to your client require that your client receive the maximum sentence.”
Hieu does not claim abuse of discretion. Rather, he asserts the sentence was the result of improper prejudice based upon comments by the judge. Comments by a judge do not necessarily prove that the sentence imposed was improper. State v. Griffen, 241 Kan. 68, 72-73, 734 P.2d 1089 (1987). The comments made by the trial judge, in the case at bar, do not rise to the level of partiality or prejudice. Hieu has not provided compelling proof that the judge based his sentence upon improper prejudice instead of the statutory factors. Hieu’s argument is based upon his own assertions regarding the motivations behind the judge’s actions. The trial judge followed K.S.A. 21-4606 and explained, when challenged, that the sentence was based upon the statute. The trial judge did not abuse his discretion or impose the sentence based upon improper considerations or motives.
Affirmed.
Davis, J., not participating. | [
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The opinion of the court was delivered by
McFarland, J.:
Alan Novotny was convicted by jury trial of the sale of methamphetamine (K.S.A. 65-4127b[b][3]); possession of marijuana (K.S.A. 65-4127b[a][3]); and possession of drug paraphernalia (K.S.A. 65-4152[a][2]). He appeals only the methamphetamine conviction. Said conviction was reversed by the Court of Appeals (State v. Novotny, 17 Kan. App. 2d 363, 837 P.2d 1327 [1992]). The matter is before us on petition for review.
The pertinent facts may be summarized as follows. Robert Currie became an undercover agent for the Salina Police Department in September 1989. Under the arrangement, Currie was to set up drug buys. He was to receive $50 for the purchase of less than one quarter pound of marijuana and $100 when more potent drugs or greater amounts of marijuana were involved. He had earned approximately $3,000 in this manner at the time of trial.
Defendant Alan Novotny lived across the street from Currie. The two were friends. Currie advised his police contact that Novotny had offered to sell him methamphetamine on October 8, 1989. Currie was wired for sound, searched, and supplied with $150. He was under police surveillance as he proceeded to defendant’s residence. Upon Currie’s entry into defendant’s residence, the following conversation was recorded:
Currie: “Hey, dude. Presently in shower. Got the shit? 20, 40, 60, 80, 100, 10, 20, [30], 40, 60, 80, 100, 10, 20, 30, 40, 50. I’m out of here. Holler at you later on man. Thanks Alan.”
Novotny: “Yep.”
Currie was then searched again. Absent was the $150, but Currie had on his person a small plastic ziplock bag with a substance inside that tested positive for methamphetamine.
The same process was repeated the following day, with Currie being given $220 to purchase the drug. The recorded conversation at that time between Currie and defendant was as follows:
Novotny: “Who is it?”
Currie: “The law.”
Novotny: “. . . don’t give me no fucking shit man . . . comes over.”
Currie: “I’m kind of in a hurry man. Like I’m on the move. 20, 40, 60, 80, 90, 1, 10, 20, 30, 40, 50, 60, 70, 80, 90, 2, 20. Talk to you later. I’ll probably yell at you in a while.”
Novotny: “I’m going to go get some smoke now.”
Currie: “Alright. Well I’ll check back with you.”
Novotny: “Okay.”
Currie: “Talk to you later.”
The substance in the plastic bag removed from Currie’s person following this transaction was tested and found not to contain any controlled substance. Note: The numbers contained in each of the conversations relate to the counting out of currency ($150 on October 8 and $220 on October 9).
Currie testified he had made prior arrangements with defendant to purchase specified amounts of methamphetamine for $150 and $220 respectively, that he paid said sums to defendant and received from defendant the later seized substances in exchange therefor. Defendant did not dispute Currie’s presence on either occasion nor the substance of the recorded conversations. Rather, he offered a different explanation as to what the conversations referred to and what occurred. He testified Currie had sold him an automobile but had never delivered the same to him or returned his money. (Currie testified this was true, but that the deal was that defendant was to pick up the vehicle in Republic County, which he had failed to do). Defendant further testified that Currie offered to give him drugs in lieu of return of the vehicle purchase money. When defendant turned down the offer, Currie then asked for and received permission to leave the drugs at defendant’s house while Currie attempted to sell them elsewhere. Thus, under defendant’s version, the recorded conversations involved Currie giving defendant refunds on monies defendant had previously paid for the automobile purchase, and that the substances removed were Currie’s property which he had previously left with defendant.
The sole issue on appeal is whether the district court erred in failing to give a cautionary instruction regarding the testimony of Currie. No such instruction was requested nor was any objection made to the court’s proposed instructions. If there is no contemporaneous objection to a jury instruction, an appellate court may reverse only if the instruction given was clearly erroneous. An instruction is clearly erroneous when a reviewing court reaches a firm conviction that, if the trial error had not occurred, there is a real possibility that the jury would have returned a different verdict. State v. Ji, 251 Kan. 3, 24-25, 832 P.2d 1176 (1992).
Although stating the correct standard of appellate review, the Court of Appeals made no determination on that aspect thereof which provides the failure to give the instruction is “ ‘clearly erroneous only if the reviewing court reaches a firm conviction that if the trial error had not occurred there was a real possibility the jury would have returned a different verdict.’ ” 17 Kan. App. 2d at 367. Rather, the Court of Appeals concluded:
“We find that whether or not a cautionary instruction on the reliability of the testimony of paid informants is requested, it should be given when the testimony is substantially uncorroborated, substantial evidence contradicts the informant’s testimony, or there is other evidence which casts a serious doubt on the informant’s credibility.
“Since such an instruction was not given here, we reverse and remand for a new trial.” 17 Kan. App. 2d at 372.
In reaching the result it did, the Court of Appeals relied heavily on State v. Fuller, 15 Kan. App. 2d 34, 802 P.2d 599 (1990), rev. denied 248 Kan. 997 (1991), and cases cited therein. We believe that reliance was misplaced. In Fuller, a confidential informant made the buy. His identity was not disclosed at trial, although he testified. He had been wired by the police, but the wire did not work. Thus, his testimony regarding the actual transaction was wholly uncorroborated. Further, in Fuller, the defendant had requested a cautionary instruction. The only common factor in both Fuller and the case before us is that both “informants” had agreed to work for the police after prior brushes with the law. In Fuller, the informant had drug charges dropped in exchange for cooperation, where Currie had just been questioned relative to a break-in. Each was paid for his services. Neither the informant in Fuller nor Currie in the case before us comes across as a pillar of the community, but such status would be quite rare in paid undercover agents or informants in drug investigations.
As noted in the Fuller opinion, the applicable standard of review was quite different:
“The standard of review for criminal appeals involving jury instructions depends on whether the defendant objected to the instructions at trial. See State v. DeMoss, 244 Kan. 387, 391-92, 770 P.2d 441 (1989). ‘When a trial court refuses to give a specific instruction, the appellate court must view the evidence in the light most favorable to the requesting party.’ State v. Hickey, 12 Kan. App. 2d 781, 784, 757 P.2d 735, rev. denied 243 Kan. 781 (1988).” 15 Kan. App. 2d at 39.
The fact that evidence of the buy itself rested upon the informant’s uncorroborated testimony, and the fact the cautionary instruction had been requested, are the bases for the court concluding:
“Where the defendant requests a cautionary instruction on the testimony of a paid informant, the informant’s testimony is wholly uncorroborated, and the informant’s testimony provides the sole basis for defendant’s conviction, it is error for the trial court to refuse such an instruction.” 15 Kan. App. 2d 34, Syl. ¶ 4.
As a matter of coincidence, we note that Detective Michael Marshall was the contact officer running the informants in both Fuller and the case before us. Likewise, Judge Daniel Hebert presided in both cases.
The opinions in Fuller and in the case before us cite United States v. Garcia, 528 F.2d 580 (5th Cir.), cert. denied 429 U.S. 898 (1976). In Garcia, a paid informant (Marquez) arranged for a drug buy. Two federal agents were the actual purchasers and corroborated the informant’s testimony as to the involvement of two of the defendants (Joe Garcia and Guillermo Sandoval). Implication of a third defendant (Mario Sandoval) rested wholly on the informant’s testimony. No cautionary instruction was requested. The convictions against the two defendants whose involvement was corroborated by other evidence were upheld. The conviction of the defendant against whom the informant’s testimony was uncorroborated was reversed. The court’s rationale for the reversal was as follows:
“The appeal of Mario Sandoval is, however, quite distinct from that of his co-defendants; as we have noted, in his case there is absolutely no corroborating evidence for the testimony of Marquez. It is also noted that the record was silent as to any previous activity in the area of possession, use or sale of drugs by Mario, who took the stand and testified on his own behalf; additionally, both Guillermo Sandoval, who was not related to Mario, and Joe Garcia took the stand, and both testified in a manner that was completely exculpatory of Mario. And more significantly, neither of the DEA agents who, by Marquez’s testimony, were at one meeting with him and Guillermo where Mario’s name was mentioned supported Marquez’s story.
"The sole charge to this jury relating to the credibility of witnesses was general in nature, cautioning the jurors to ‘give the testimony of each witness careful scrutiny . . . ’ and to take into consideration ‘any circumstances which tend to shed light upon the credibility of the witness.’ Mario Sandoval did not request any additional or different instructions as to Marquez although Marquez’s uncorroborated testimony was the single source of evidence against him.
“In this Circuit, a defendant is entitled to a special cautionary instruction on the credibility of an accomplice or a government informer if he requests it and the testimony implicating the accused is elicited solely from the informer or accomplice. United States v. Gonzalez, 491 F.2d 1202 (5th Cir. 1974). See generally, United States v. Lee, 506 F.2d 111 (D.C. Cir. 1974), cert. denied, 421 U.S. 1002, 95 S.Ct. 2403, 44 L.Ed.2d 670 (1975). The rationale behind this requirement is to insure that no verdict based solely on the uncorroborated testimony of a witness who may have good reason to lie is too lightly reached.
“In this case, there was more than the usual need for a cautionary instruction. First and most important, the portion of Marquez’s testimony which solely supplied the incrimination of Mario was totally uncorroborated by any other witness and was contradicted by Mario’s own testimony and by the only two witnesses present on the day Marquez claims to have spoken with Mario. Second, Marquez was paid an extraordinarily high amount to act as an informer and the laissez-faire employment arrangement opened numerous potentials for abuse. Finally, the possibility that Marquez could be guilty of income tax evasion, which was permitted if not encouraged by the lack of withholding by the government, combined with the other circumstances to cast a dark shadow on the credibility of this witness.
“If Mario Sandoval had requested an informer-credibility instruction, we would not hesitate to hold the failure to so charge the jury reversible error. Since no request or objection to the charge was made, we face the difficult task of deciding whether the failure to instruct rises to the level of plain error. Fed.R.Crim.P. 52(b). This Court has recognized that in reviewing a trial for plain error, the touchstone is fundamental fairness. United States v. Collins, 472 F.2d 1017 (5th Cir. 1972), cert. denied sub nom. Branch v. United States, 411 U.S. 983, 93 S.Ct. 2278, 36 L.Ed.2d 960 (1973). In Collins, we rejected the defendants’ contention that the failure to instruct the jury on the credibility of an addict-informer amounted to plain error. Our decision rested on the ground that the informer’s testimony was extensively corroborated and that proof of defendants’ guilt was strong and convincing. Id. at 1019.
“When the case is close and the witness particularly unreliable, however, this Court has declared that the failure to give a cautionary instruction amounts to plain error. In Williamson v. United States, 332 F.2d 123 (5th Cir. 1964), we reversed an embezzlement conviction based solely on the uncorroborated testimony of an accomplice whose story contained several internal inconsistencies. Fully acknowledging that the jury has the right and duty to assess the credibility of witnesses, we recognized that in an exceptional case a jury verdict must be set aside if the reviewing court is convinced that a fair trial required that the jury be properly instructed on the evaluation and use of accomplice testimony. Id. at 126. See also McMillen v. United States, 386 F.2d 29 (1st Cir. 1967), cert. denied, 390 U.S. 1031, 88 S.Ct. 1424, 20 L.Ed.2d 288 (1968).
“Like Williamson, the case at bar is exceptional. Without the guidance of a carefully phrased instruction by the trial court, the jury was ill-equipped to reach a considered and fair verdict as to the guilt of Mario Sandoval. In the unique circumstances of this case, we hold that the failure to caution the jury to scrutinize carefully Marquez’s uncorroborated testimony impli eating Mario was plain error and necessitates that his conviction be reversed.” 528 F.2d at 587-88. (Emphasis supplied.)
The “unique circumstances” found in Garcia are absent herein. The informant’s testimony was not uncorroborated. No “extraordinarily high amount” was paid to him for his services (in Garcia over $30,000 in a short period of time). Likewise, the income tax evasion factor was not present.
The Court of Appeals herein held Currie’s testimony was substantially uncorroborated. We do not agree. Currie was given money with which to buy drugs from Novotny. The police searched him to make sure he had no drugs on him. They watched him as he went to the defendant’s residence. The police had a wire on Currie and recorded what was said while Currie and Novotny were together. Currie went into the house on October 8 with money sans drugs. He came out sans money but with a packet of methamphetamine. A repeat occurs the following day, but the packet contains a noncontrolled substance. The transcripts were admitted as evidence.
In his defense herein, defendant does not dispute Currie’s presence or what was said either day. He does not dispute receiving $150 on the 8th or $220 the following day, or Currie leaving his residence with the packets taken from Currie by police. Rather, he is contending a different interpretation should be given to the corroborated events — the money was repayment of an honest debt, and Currie was retrieving his own contraband property.
The jury was given the general witness credibility instruction (PIK Crim. 2d 52.09 [1992 Supp.]), as follows:
“It is for you to determine the weight and credit to be given the testimony of each witness. You have a right to use common knowledge and experience in regard to the matter about which a witness has testified.”
The defense introduced some evidence tending to corroborate defendant’s interpretation of the events — defendant’s roommate and a friend each testified at some time Currie had brought what was believed to be drugs into defendant’s residence. The jury was free to determine the' credibility of the various witnesses herein. Defense counsel was free to argue and did argue that only payment for a car was involved and that the packets Currie took back were his own property. Currie’s status as a paid police informant was before the jury. Utilizing the general witness credibility instruction, it was up to the jury to determine the weight and credit to be given to the testimony of each witness.
We conclude that ordinarily it is error to refuse to give a cautionary instruction on the testimony of a paid informant or agent where such testimony is substantially uncorroborated and is the main basis for defendant’s conviction. Where, however, no such instruction is requested nor objection made to the court’s instructions, and such testimony is substantially corroborated, the absence of a cautionary instruction is not error and is not grounds for reversal of the conviction.
The judgment of the Court of Appeals is reversed. The judgment of the district court is affirmed.
Davis, J., not participating.
Terry L. Bullock, district judge, assigned. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action for the recovery of money. Judgment was for the plaintiff. Defendant appeals.
The petition made Aaron Sell and the Fidelity State Bank of Dodge City defendants. It alleged that about October 15, 1937, a written contract was entered into between plaintiff and defendant Sell, whereby plaintiff agreed to sell and defendant agreed to buy certain real estate for an agreed price of $3,705, of which $500 was to be paid in cash, and the balance was to be paid on completion of the deal; that the $500 was paid by defendant and was deposited in escrow in the Fidelity State Bank of Dodge City to be held by the bank until the seller should furnish good title to the real property; that the conveyance was to be made by a warranty deed and abstract furnished showing good merchantable title to the property; that a deed from the seller named in the contract, joined in by his wife, and executed and acknowledged in proper form, in favor of defendant as grantee, was also deposited in the Fidelity State Bank; that the contract provided that all deferred payments were to be made through this bank; and that the contract provided further that the property should be free and clear of taxes for 1937 and all previous years. A copy of this contract was attached to the petition. The petition then alleged that the plaintiff had caused an abstract of title to be prepared and furnished to defendant; that certain requirements had been made, and these had been met so as to show title to the real estate to be in the estate of Samuel Brinley. The petition further alleged that about January 8, 1938, plaintiff tendered this abstract, together with an administrator’s deed from Allen Brinley as administrator of the estate of Samuel Brinley, in favor of the plaintiff as grantee, and a general warranty deed from plaintiff, joined by his wife, in favor of the buyer as grantee, and demand was made upon the defendant for performance of the contract and payment of the purchase price, but defendant refused to accept the abstract and deeds and perform the contract on his part; that subsequently the abstract and two deeds were tendered to the Fidelity State Bank of Dodge City, and demand made upon the bank as escrow holder for the performance of the contract, but the bank refused to perform. The petition then alleged that plaintiff was ready and willing to perform and again tendered the deeds and abstract, and that by reason of the failure of the defendant to perform he had breached the contract and plaintiff' became entitled to the $500 deposited with the bank; that demand had been made on the bank for the $500 and payment refused. Judgment was asked for $500.
For his answer, the defendant alleged that at the time the agreement was entered into plaintiff was not the owner of the real estate in question; that at the time of the pretended delivery of the deed to defendant the plaintiff was not seized in fee of the property and could not have made a good title and the title was not marketable, and the attention of plaintiff was directed to the defects in the title, and plaintiff refused to perfect the title and failed to give defendant a title in fee simple clear of all encumbrances; that defendant had fully performed every act to be done by him according to the terms of the contract, and plaintiff had failed to convey the property to him by general warranty deed and abstract showing merchantable title and that'defendant was entitled to recover back his $500 from the Fidelity State Bank. The prayer of the answer was that defendant have judgment against the Fidelity State Bank of Dodge City for $500.
To this answer the plaintiff filed a reply alleging, first, a general denial. The reply then alleged that the title offered by plaintiff was a good, merchantable title; that when the attention of plaintiff was called to the defects in the title by the attorney for defendant he proceeded to correct all substantial defects and showed such corrections on the abstract; that certain of the requirements made by the attorney for defendant were without merit and plaintiff pointed out these matters to defendant, with the result that the abstract when last submitted to defendant and demand made for performance showed good merchantable title, which would be conveyed to defendant by the deeds in question.
With the issues thus made up a jury was waived and the cause was submitted to the court. At the close of the opening statement of counsel for plaintiff, the defendant moved for judgment on the statement. This motion was overruled. At the conclusion of the evidence of plaintiff, defendant moved for judgment on the pleadings and evidence of plaintiff. This motion was overruled. The defendant introduced his evidence, and after the argument of counsel the trial court found in favor of plaintiff and gave judgment to plaintiff for $500. The court further found that the Fidelity State Bank of Dodge City had filed an answer admitting that it had in its possession $500 deposited in escrow with the contract sued on. It was ordered that the $500 be paid to the clerk of the trial court, to be held by the clerk pending the appeal of the action and the further order of the court. A motion for a new trial was filed by defendant and overruled by the trial court. Hence this appeal.
The first argument of defendant is that the trial court erred in overruling his motion for judgment on the pleadings and opening statement of plaintiff. In this connection the defendant points out that plaintiff furnished defendant an abstract of title to the land about November 8, 1937, and the attorney for defendant made certain requirements; that during the last week in November, 1937, plaintiff advised defendant that he had met six of the requirements and he did not consider it essential that he meet the remaining ones. Defendant argues that the contract provided that the $500 was to remain in the bank until he had approved the title. He argues that he never did approve the abstract — hence cannot be bound. He relies in a large measure on what this court held in Hollingsworth v. Colthurst, 78 Kan. 455, 98 Pac. 851. In that case the contract provided that the title should be satisfactory to the buyer. This court said:
“If such, a contract be made, the party to be satisfied is the judge of his own satisfaction, subject to the limitation that he must act in good faith.” (p. 456.)
That opinion is not decisive of the question we have here. In this case the seller agreed to furnish a “good merchantable title.” True, the contract did provide that the $500 was to be held in the bank until first party could furnish “good title to be approved by second party.”
These two provisions must be construed together, and when this is done we have no trouble in reaching the conclusion that the approval of defendant related to whether the title offered by plaintiff was a “good merchantable” one and that a refusal to accept such title must be reasonable. Under such circumstances this court has held that the title must be “free from reasonable doubt in law and in'fact; not merely a valid title in fact, but one which readily can be sold or mortgaged to a reasonably prudent purchaser or mortgagee.” (See Myrick v. Austin, 141 Kan. 778, 44 P. 2d 286, also 66 C. J. 862.)
Under the facts set out in the pleadings and the opening statement of counsel here we cannot say that there was such a reasonable doubt on this title as to require a judgment for defendant at that stage of the case.
Defendant next argues that the court erred in overruling his motion for judgment at the conclusion of the evidence. In brief, this evidence showed that when the contract was entered into plaintiff did not have title to the land; that when defendant stated that he would give $15 an acre for it, or $3,705, plaintiff immediately had the contract executed by his agent, and took steps to acquire title by means of an administrator’s deed. This he did for a price of $2,250. That he did not have the title when he made the contract of sale is of no moment, just so he had title when he tendered the deeds to defendant and demanded performance. (See McAdam v. Leak, 111 Kan. 704, 208 Pac. 569.) When the abstract was furnished to defendant he handed it to his attorney, who proceeded to examine it. After the examination he made a number of requirements. The plaintiff substantially complied with these requirements. The requirement with which defendant did not comply was one wherein the attorney stated that the record showed that the debts due from the Samuel Brinley estate amounted to $3,000; that the sale of the real estate to plaintiff for $2,250 would not pay the creditors in full and it was likely that they had no notice that the real estate was being sold for $2,250. There was but little the plaintiff could do about this. In Staker v. Gillen, 143 Kan. 212, 53 P. 2d 821, this court held that an administrator’s deed was prima facie evidence of the regularity of all proceedings upon which it was based. (See, also, Rust v. Rutherford, 101 Kan. 495, 167 Pac. 1056, also Uhl v. Groner, 140 Kan. 653, 38 P. 2d 130.) Following the rule laid down in these cases we have concluded that the matters pointed out by the attorney who examined the abstract did not raise a reasonable doubt as to the title to the real estate in question. Other errors urged by the defendant have been examined and found to be without merit.
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The opinion of the court was delivered by
Thiele, J.:
Defendant was convicted of a violation of the crimes act and appeals, specifying as errors the matters hereafter discussed.
The prosecution was had under the italicized part of G. S. 1935, 21-818:
“Any person or persons whomsoever who may be charged with holding any election in this state, authorized by law, who shall willfully and knowingly receive any vote offered by any person who is not a resident in good faith of this state at the time of offering to vote, or who shall have voted previously at the same election, or any person who shall knowingly and willfully commit any irregularity or fraud whatever with the intent to- hinder, prevent or defeat a fair expression of the popular will, shall be deemed guilty of felony, and upon conviction thereof shall be punished by imprisonment and hard labor for a term not less than one year nor more than three years.”
The first information filed against the defendant and -four other persons charged an offense in statutory language. It need not be noticed further, for an amended information was filed which read as follows:
“Arthur J. Stanley, Jr., as county attorney in and for the county of Wyandotte, in the state of Kansas, prosecuting for and on behalf of said state, within the county of Wyandotte, and in the name, and by the authority, and on behalf, of the said state of Kansas, now, here, in and to the district court of said county of Wyandotte, and state of Kansas, information gives that at said county of Wyandotte, state of Kansas, within the jurisdiction of this court, on or about the 3d day of November, 1936, one E. A. Jones, one John Carr, one Dick Smith, one Mike Hotujac and one Mary Hotujac, did knowingly, willfully and feloniously commit irregularity and fraud, with the intent, then and there to hinder, prevent and defeat a fair expression of the popular will at a general election held in precinct No. 1, Quindaro township, Wyandotte county, Kansas, on November 3, 1936; in that the said E. A. Jones, the said John Carr, the said Dick Smith, and the said Mike Hotujac and the said Mary Hotujac did, knowingly, willfully and feloniously mark and prepare approximately three hundred official ballots, a more accurate count of which cannot be given, in such a manner as to make it appear that said ballots had been marked and prepared for voting by the voters of said precinct; and did knowingly, willfully and feloniously deposit the ballots, by them marked and prepared as aforesaid, in a box resembling an official ballot box; and did knowingly, willfully and feloniously substitute the said box, containing the ballots marked and prepared by them as aforesaid, for the official ballot box containing the ballots voted by the voters of said precinct at said election; and did knowingly, willfully and feloniously substitute the ballots marked and prepared by them as aforesaid for the ballots voted by the voters of said precinct at said election; contrary to the statute in such case made and provided.”
By motion to quash the amended information, objection to the introduction of evidence, motion for a directed verdict and for discharge of the defendant, motion in arrest of judgment and motion for a new trial, the defendant raised the questions of the constitutionality of the statute and the sufficiency of the information. Although defendant assigns as error the ruling on his motion to quash the amended information, in his brief he states his belief the trial court was correct in its ruling, and that assignment will not be discussed. We shall first take up th.e question of the statute and whether defendant was properly charged under it.
It may be observed here that defendant was not a person charged with holding any election. Defendant calls our attention to the fact that in the above statute as enacted in 1859 there was a comma after the word “whatever” omitted in the revision of the statutes in 1868 and subsequent revisions and publications, and from that he' argues that the person who shall “commit any fraud or irregularity” must be one charged with holding an election. The act in question was first enacted at the third session of the territorial legislature in 1857 and appeared as Laws Kansas Territory (third session), chapter 1, section 2. It is not necessary to note changes wrought by succeeding legislatures to make the act refer to the state rather than the territory. In the original act that part reading “or who shall have voted previously at the same election” was followed by a semicolon which clearly set off the preceding part of the section from that portion under which the present prosecution was had. We do not believe the fact that in later enactments, viz., Laws Kan. Terr. 1859, ch. 28, sec. 210; G. S. 1868, ch. 31, sec. 219; R. S. 1923, 21-818, and G. S. 1935, 21-818, a comma was substituted for the semicolon, and the comma after the word “whatever” was omitted, changed the sense of the statute in any particular. The person to be charged under the latter part of the statute did not have to be one charged with holding the election.
It is also contended the section violates article 2, section 16 of the state constitution in that there are two subjects treated. We shall not discuss this contention. If it ever was sound, the revisions of 1868 and 1923 eliminated it.
The important ground of attack is that the statute is so indefinite and vague that it is unconstitutional, and in violation of the fifth and fourteenth amendments to the constitution of the United States and of the fifth and tenth sections of the bill of rights of the constitution of Kansas. Of course, if the statute is bad, the accusation under it is not good. (Lanzetta v. New Jersey, 306 U. S. 451, 59 S. Ct. 618, 83 L. Ed. 888.) Our attention is directed to State v. Blaser, 138 Kan. 447, 26 P. 2d 593, where this court quoted approvingly from Connally v. General Cons. Co., 269 U. S. 385, 46 S. Ct. 126, 70 L. Ed. 322, to the effect that a criminal statute which forbids the doing of an act in terms so vague that men of common intelligence must guess at its meaning and differ as to its application, is not good, and where it was held:
“ ‘That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties, is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law.’ (p. 391.)” (p. 448.)
The Blaser case, as well as the Connally case, involved construction of statutes pertaining to payment of wages to laborers under similar statutes. The offenses denounced were new offenses-as distinguished from offenses at the common law.
The question of unconstitutionality for vagueness and uncertainty was again before this court in State v. Rogers, 142 Kan. 841, 52 P. 2d 1185, where a statute with reference to unlawful allowance of claims against the county was invoked. (G. S. 1935, 19-242.) In that decision many cases bearing on the question are noted. We need not review the decision fully. This court held that the use of the phrase "according to the legal or ordinary compensation or price” etc., was not so vague or indefinite as to subject the statute to condemnation as being unconstitutional, the word “ordinary” being held to have a common and .accepted meaning. The same question raised in the Rogers case was before this court in State v. Millhaubt, 144 Kan. 574, 61 P. 2d 1356, and the ruling in the Rogers case was adhered to. A petition for writ of certiorari to the supreme court of the United States was denied in Millhaubt v. Kansas, 301 U. S. 701, 57 S. Ct. 931, 81 L. Ed. 1356, and a rehearing was denied in 302 U. S. 773, 58 S. Ct. 5, 82 L. Ed. 599.
The depositing of false and fraudulent ballots, and the commission of acts and conduct which interfered with the freedom and purity of elections was punishable as a crime at common law. (See 20 C. J. [Elections, § 396] p. 274.) While it has been held in this state that there are no common-law offenses and there can be no conviction except for offenses defined by statute (State v. Young, 55 Kan. 349, 40 Pac. 659), it must be recognized that we have many sections of our crimes act defining offenses, the certainty of which depends in part upon the fact' the offense was known to the common law and that specification of detail is unnecessary. An instance is the statute with reference to abortion (G. S. 1935, 21-437), where that term is not defined, and whereby the means which may be used is not fully stated, but where intent to produce a certain result is the important element. This particular statute was under consideration in State v. Miller, 90 Kan. 230, 232, 133 Pac. 878, to which reference is made.
In 14 Am. Jur. (Criminal Law, § 19) pp. 773 et seq., in a general • discussion of the requisites of criminal legislation, and where the rule as to certainty is stated, it is said:
“A statute is not necessarily void for uncertainty because in creating a crime it does not define the offense, for if the offense is known to the common law, the common-law definition may be adopted, even in jurisdictions in which there are no common-law crimes.” (p. 774.)
In discussing the creation and definition of crimes in general, it is stated in 16 C. J. (Criminal Law, § 28), p. 67, that—
“The legislature in creating an offense may define it by a particular description of the act or acts constituting it, or it may define it as any act which produces, or is reasonably calculated to produce, a certain defined or described result; or it may group together various means by which the end may be accomplished and make any one of such means an offense when done to attain the object denounced by the statute. In the absence of provision to the contrary, a statute may punish an offense by giving it a name known to the common law, without further defining it, and the common-law definition will be applied. In creating an offense which was not a crime at common law, a statute must of course be sufficiently certain to show what the legislature intended to prohibit and punish, otherwise it will be void for uncertainty. Reasonable certainty, in view of the conditions, is all that is required, and liberal effect is always to be given to the legislative intent when possible; but where the legislature declares an offense in words of no determinate signification, or its language is so general and indefinite that it may embrace not only acts commonly recognized as reprehensible but also others which it is unreasonable to presume were intended to be made criminal, the statute will be declared void for uncertainty. The certainty required may be accomplished, as we have seen, by the use of words or terms of settled meaning, or words which indicate offenses well known to and defined by the common law. It is not necessary to use technical terms, and the legislature may designate the offense by using words in common and daily use; and a penal statute is sufficiently certain, although it may use general terms, if the offense is so defined as to convey to a person of ordinary intelligence an adequate description of the evil intended to be prohibited.”
In State v. Friedlander, 141 Wash. 1, 5, 250 Pac. 453, it was said:
“The next contention is that the statute under which the prosecution is had is in itself unconstitutional. The statute makes it a misdemeanor for any person to ‘encourage,,cause, or contribute to, the dependency or delinquency’ of a minor child, but does not specify or define the particular act or acts which will constitute the offense.' But, under the rule as we have hereinbefore announced it, the objection is not fatal. It is within the province of the legislature in creating an offense to define it by a particular description of the acts constituting it, or to define it as an act which produces a certain defined or described result. (State v. Stuth, 11 Wash. 423, 39 Pac. 665; State v. Brown, 108 Wash. 205, 182 Pac. 944.) The statute in question complies with the latter of these principles, and is not insufficient because it does not define the acts which will produce the result denounced.”
And, as bearing on. the question, see State v. Ireland, 72 Kan. 265, 269, 270, 83 Pac. 1036.
There is no need to cite other authority. We are of opinion that the purpose of the statute was not so much to denounce certain specific acts as to prevent a certain result. We do not overlook the fact that there may be dispute as to what, in certain circumstances and under varying conditions, might be included within the phrase “any irregularity or fraud whatever.” We do not have any doubt that what the legislature intended was to denounce the commission of any act done “with the intent to hinder, prevent or defeat a fair expression of the popular will” and by statute to declare that to be an offense which was an offense at common law. We do not believe the statute either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, nor that the statute should be held unconstitutional.
In order to discuss defendant’s contention with respect to the admissibility of certain evidence it is necessary that an outline of the state’s evidence be given. It may be remarked that we are here concerned with the election only insofar as the township officers are concerned. It was shown by the testimony of various witnesses, whose testimony in many respects was corroborated by that of the others, that the defendant suggested to witnesses Marshall and Grigsby and to one Walter Anderson, who was not a witness, that ballots be procured and marked for certain township offices and that the ballots be substituted at the election in 1936; that about 4 p. m. of the day before the election the township trustee brought to the house of Grigsby about 700 of each type of ballots to be used the next day, and that about 6:30 p. m. defendant came to the house, said there were too many ballots, and he had come after some, and he took six packages, of fifty ballots to the package, of the township ballots and took them away in his car. About 8 p. m. Anderson and Grigsby saw the defendant at Hotujac’s garage, where Anderson left the car in which they were riding, and had a conversation with defendant. He then returned to witness’ car and they followed defendant’s car and went to Hotujac’s house. In the kitchen of that house defendant and two others marked the ballots, cut the corners, folded the ballots and put them in a box. The shears used in cutting the corners was a pair ten or twelve inches long. Afterwards the box was taken and put in Grigsby’s car, and his car and defendant’s car left. When witness’ car reached the polling place, Anderson took the box and “went over the hill with it.” The next day the election took place. The witness Grigsby testified he was a judge at the election', and with a pair of small scissors clipped the numbers off most of the ballots. During the day there was a box in the polling place with a coat or some cloth over it. It was not there when the polls opened but was there ten or fifteen minutes afterwards. During the day the township ballots were deposited in a box that had a clean top. About 5:30 to 6 p. m. there was a disturbance in the polling place. No one testified to seeing any switching of boxes, but there was evidence that when the polls closed the box containing township ballots and the ballots counted by the election board had a spot on its top. No complaint is made concerning the competency of the evidence which showed the above in much detail. Howard Thorn testified he was county clerk of Wyandotte county and that he had sent 750 township ballots, sealed in packages of fifty each, to the particular precinct; that about July 20, after the election, he had dumped the ballots returned by the various election boards from their original sacks upon the floor of the ballot room preparatory to destroying them; that on July 27 the attorney general, the county attorney and two helpers hunted out the ballots from the particular precinct, and got an order from the city court for their delivery to the county, attorney. His testimony tended to show the particular ballots and ballots from other precincts were not at the time separate and apart but were mingled together; some were still strung on wires or cords and some were not, and that it was necessary to hunt out the particular ballots wanted by the county attorney. His testimony disclosed the poll books showed 356 voters had been listed but showed a total vote of 393 cast for presidential candidates. He did not know whether all the township ballots had been found or not. The ballots found were placed in a vault and the next day delivered to the county attorney, who later delivered them to J. C. Shearman, a handwriting expert. Each of the various witnesses testified with respect to the safekeeping of the ballots. Our search of the abstracts does not disclose that either the county clerk, the county attorney or his secretary testified as to the number of ballots found or delivered, but Mr. Shearman stated there were 371 delivered to him. Mr. Shearman was called as an expert witness and stated that he received the ballots, that he had studied and examined them; that he had made some particular pencil notations on different groups of the ballots so that he might identify them; he testified with respect to the way they had been folded, but more particularly that he found evidence the corners of the ballots had been cut in such manner as, to indicate that two or more ballots were cut at the same time with the same action of the same shears or scissors. He also testified that the cuts were not smooth, but serrated, and that the serrations in various groups of ballots, as noted in his testimony, indicated that the particular groups had been cut in one single act. Without going into detail, he testified his examination disclosed some of the ballots had been clipped with the face exposed to the person acting and others had been clipped with the back of the, ballot exposed to the actor. He also stated that the ballots at the place where cut or clipped indicated, from condition of the cut, that some were cut with dull scissors and some indicated they were cut with rather keen, sharp scissors. Each ballot had a separate exhibit number and the witness gave the numbers of ballots showing the above.
Defendant contends the trial court erred in permitting the ballots to be introduced in evidence for ten asserted reasons, none of which is supported by extended argument or citation of authority, further than to show the ballots would not be admissible in evidence in an election contest because at the time they were taken by the county attorney they were not in the same condition as when received by the county clerk immediately after the election, the citations in support being Hudson v. Solomon, 19 Kan. 177; Ogg v. Glover, 72 Kan. 247, 83 Pac. 1039, and Getty v. Holcomb, 79 Kan. 224, 99 Pac. 218. It must be remembered that in an election contest it is highly important that it be shown the ballots were properly preserved after being counted, and were so kept by the county clerk that no person was afforded any opportunity to tamper with them, so that in event of a recount as the result of an election contest, a wrong result might be reached. The case before us involves no x’ights of candidates at the election.as to who received the greater number of votes. Here the evidence showed that the ballots were counted by the election board. The county clerk stated they were returned to his office and kept in a vault under his custody; that the six months he was required to keep them had expired and he was preparing to burn thexn when he received notice from the attorney general not to destroy them, and that thereafter, under an order of court, they were delivered to the county attorney, whose testimony shows he carefully preserved them until they reached the possession of the witness Shearman. The purpose to be accomplished by the defendant and those charged jointly with him, assuming their participation in the matters charged, was accomplished when the fraudulent ballots were counted by the election board. It would seem preposterous in a case of the kind now under consideration to assume that after the ballots had been counted some person would then attempt to alter them to show the corners had been clipped in any particular manner. Nor do we think it material that in preparing to destroy the particular ballots, as well as others cast in other precincts at the same election, some of the particular ballots became loosened from the strings which bound them together. It was rather clearly shown they were all returned to the county clerk, as the statutes require. We are of opinion that the ballots were sufficiently identified as being ballots cast in the particular precinct. The only purpose they served was to form a basis for the expert testimony of the witness Shearman, and the credence to be given the whole matter was for the jury. The contention the ballots should not have been received in evidence is not sustained.
Defendant complains of the admission of the testimony of the witness Shearman. He first contends that Shearman was not qualified to testify as an expert. Not only did the witness testify to his previous studies and experience as a basis for showing his qualifications, but the record shows the defendant waived his qualification. It is contended, however, that the waiver was not complete. Admittedly the reasons for that contention are based on matters not of record, and we shall not consider that claim. Our examination of the record shows that the witness amply showed his qualification to testify as an expert, and the trial court did not err in permitting him to testify.
Complaint is also made concerning the conclusions reached by the witness from his examination of the ballots. We need not review the various contentions. All of them go to the soundness of the witness’s deductions and the weight to be given his testimony. These were questions to be resolved by the jury, were resolved by it, their verdict was approved by the trial court and nothing is presented for appellate review.
Defendant also contends there was no evidence to sustain the material allegations of the amended information that there was a substitution of ballot boxes and that fraudulent ballots were substituted for legal ballots, and that there was no evidence to sustain the verdict. We have outlined the state’s testimony. Defendant’s testimony, insofar as it pertains to the ballots, switching of boxes, etc., was limited to testimony of some election judges and clerks and other persons present at the polling place who were asked about their opportunity to see ánd know, that they saw and knew, of no substitution of boxes. The contention made is that the ballots and Shearman’s testimony were both improperly admitted as evidence; that the testimony of various witnesses about procuring the ballots, marking them, etc., is neither reasonable nor creditable, and therefore there was a failure to prove defendant guilty. For reasons given in discussing other contentions, the complaint is not good.
It is next contended there was error in the instructions to the jury. No formal objection was made to any instruction when given, although with one exception hereafter noted the matter seems to have been raised on the hearing of the motion for a new trial.
Instruction No. 16 set forth the form of verdict to be used if defendant be found guilty, and included a part of the statutory language denouncing the offense. Instruction No. 17 set forth a much shorter form to be used if he be found not guilty. It is contended the first instruction was erroneous because the statute referred to was fatally defective, the same arguments being advanced as have been discussed in considering the constitutionality of the statute. What is said in that discussion answers the present contention and need not be repeated.
It is also contended the trial court gave an oral instruction to the jury, in violation of the statute and to defendant’s prejudice. Defendant admits no objection was made to the trial court when the alleged instruction was given, nor called to its attention on hearing of the motion for a new trial. State v. Hathaway, 143 Kan. 605, 56 P. 2d 89, cited by defendant is not in point. The record contains no reference to any part of the matter and it cannot be considered.
Some complaint is also made of instruction No. 9 to the effect that one who counsels, aids or abets another in the commission of a criminal offense may be charged, tried and convicted as though he had committed the offense alone. The argument merely is the instruction was prejudicial, and is supported by no citation of au thority. We are of opinion that defendant was properly 'charged under G. S. 1935, 62-1016. Under State v. Shenkle, 36 Kan. 43, 12 Pac. 309, the instruction was proper. (See, also, State v. Irwin, 133 Kan. 509, 511, 300 Pac. 1098.)
The other instruction complained of is No. 8. Before discussing it in particular, attention is directed to other instructions of which no complaint is made. ‘ By instruction No. 1 the trial court fully informed the jury as to the nature of the charge against the defendant in the identical language used in the complaint as quoted above, with the exception the names of others than the defendant charged therein were not mentioned. By instruction No. 2 the jury was advised the defendant had entered a plea of not guilty, which put in issue “every ingredient of the crime charged in the information.” Instruction No. 3 advised the jury as to the presumption of defendant’s innocence, which went with him throughout the trial, and—
' “He has the right to stand upon such presumption until every ingredient of the crime with which he stands charged has been proven by the evidence to your satisfaction beyond a reasonable doubt.”
Instruction No. 8 was as follows:
“The material allegations of the information are in substance as follows:
“ ‘1. That at the time and place alleged in the information, the defendant John Carr did, knowingly and willfully, commit an irregularity or fraud in connection with the general election held in precinct No. 1, Quindaro township, Wyandotte county, Kansas, on November 3, 1936; in that he marked and prepared a number of official ballots in such a manner as to make it appear that they had been marked and prepared for voting by the voters of said precinct; or did knowingly and willfully deposit said ballots, so marked and prepared, in a box resembling an official ballot box; or did knowingly substitute said box containing the ballots so marked and prepared for the official ballot box containing the ballots voted by the voters of said precinct at said election; or did knowingly and willfully substitute the ballots so marked and prepared for the ballots voted by the voters of said precinct at said election.
“‘2. That the said defendant John Carr did, at said time and place, commit such irregularity or fraud with the intent to hinder, prevent or defeat a fair expression of the popular will, that is, the will of the voters of said precinct, at said election.'
“Therefore, unless each and both of said material allegations of the information have been proven by the evidence to your satisfaction beyond a reasonable doubt, you cannot convict the defendant, and should find him not guilty; but, on the other hand, if you do find 'from the evidence beyond a reasonable doubt, to your satisfaction, that each and both of said material allegations have been proven, it will be your duty to find the defendant guilty of knowingly and willfully committing an irregularity or fraud in the general election held in precinct No. 1, Quindaro township, Wyandotte county, Kansas, on November 3, 1936, with intent to hinder, prevent, or defeat a fair expression of the popular will at said election, as charged in the information.” (Italics supplied.)
Defendant’s contention is this: That he had attacked the amended information on the ground that it charged four separate offenses in one count, and his attack failed because the trial court ruled that only four elements in one offense were charged; that the effect of the use of the word “or” instead of the use of the word “and,” as in the complaint, was to permit some of the jury to find him guilty of one element, others to find him. guilty of other elements, and permitted a verdict against him where all of the jury did not find him guilty of one and the same element, and that the consequence of the instruction was that he stood charged with four offenses. In support he cites State v. Green, 104 Kan. 16, 177 Pac. 519. In that case an information in one count charged unlawful delivery of consignments of intoxicating liquors to persons other than the consignees, and in a second count charged that on divers days and times defendant made delivery of liquors to one certain firm. This court held the information bad for duplicity. Here the information did not charge separate offenses, but a series of elements of one offense— prevention of a fair expression of the popular will at an election. In its instructions it is indispensable the trial court state the essential elements of the offense charged (State v. Lynch, 86 Kan. 528, 121 Pac. 351), although it is no objection the exact words of any statute are not used (State v. Ireland, 72 Kan. 265, 83 Pac. 1036). In State v. Johnson, 85 Kan. 54, 116 Pac. 210, it was said:
“In an information it was charged that the appellant ‘did . . . entice, decoy, take and receive one Bertha Cary, a female child under the age of eighteen years, to wit, of the age of sixteen years, into a certain house of ill fame and disorderly house for the purpose of prostitution,’ etc. A trial resulted in a conviction, and appellant insists that the information was bad because of duplicity and uncertainty, in that it charged more than one offense in one count, and that her motion to quash should have been allowed. The general offense charged was getting a female child into a bawdy or disorderly house for the purpose of prostitution. (Laws 1889, ch. 104, § 2, Gen. Stat. 1909, § 5137.) This may be done by enticing, decoying, placing or receiving the child into the house named for the purpose mentioned. The person who does one of these things commits an offense, or if all the things are done by him in one transaction he commits only a single offense and incurs but a single penalty. It was proper, therefore, to charge all of them conjunctively in a single count. It has been decided that:
“ ‘Where an offense charged may be committed by two different means, and as several acts connected with and forming part of a general offense may be stated in a single count, its commission by both means may be charged in one count of the information, and proof of either will sustain the allegation.’ (State v. Hewes, 60 Kan. 765, syl. ¶ 1.)” (p. 55.)
As has been shown, the information set forth certain elements of the crime charged. In State v. Sherman, 81 Kan. 874, 107 Pac. 33, it was held:
“ ‘Where the statute makes either of two or more distinct acts connected with the same general offense, and subject to the same measure and kind of punishment, indictable separately and as distinct crimes, when each shall have been committed by different persons and at different times, they may, when committed by the same person and at the same time, be coupled in one count as constituting all together one offense only. In such cases the offender may be informed against as for one combined act in violation of the statute, and proof of either of the acts mentioned in the statute and set forth in the .information will sustain a conviction.’ (The State v. Schweiter, 27 Kan. 499.)” (Syl. ¶ 4.)
This holding was approved in State v. O’Donnell, 116 Kan. 182, 185, 225 Pac. 1078, and City of Great Bend v. Shepler, 109 Kan. 568, 572, 201 Pac. 78.
In State v. Robinson, 124 Kan. 245, 259 Pac. 691, it was held:
“The amended information which set out with much particularity the facts whereby defendant and two cóconspirators obtained five successive sums of money from the prosecuting witness by the continuing use of the same fraudulent scheme founded upon a tissue of false pretenses to which details were superadded as the fraud progressed did not necessarily constitute more than a single criminal offense and defendant’s motion to quash was properly overruled.” (Syl. f3.)
A somewhat analogous case, involving the question of claimed duplicity, was considered in State v. Clark, 125 Kan. 791, 266 Pac. 37, where the defendant was charged in a single count with persuading a female person to- go from one place to another for immoral purposes, and it was held the gist of the offense was getting the woman to go, and the fact several changes of residence or short journeys were shown did not make a case of duplicity nor did the state have to elect upon which particular change of residence or trip it relied.
It has been repeatedly held that in a criminal prosecution the instructions are to be considered in their entirety; that an inaccurate expression in one instruction may be cured by accurate statements in others, and that there is no reversible error where the instructions as a whole are correct, although parts standing alone are improper. (See cases collected in West’s Kansas Digest, Criminal Law, § 822, and Hatcher’s Kansas Digest, Criminal Law, § 295. And see State v. Brown, 145 Kan. 247, 65 P. 2d 333, where it was said:
“The rule is that an instruction given to a jury must be considered in connection with all the other instructions in the case. (State v. Millhaubt, 144 Kan. 574, 61 P. 2d 1356.) Where it appears, as it does in this case, that the instructions taken as a whole fairly cover the issues, there is no ground for complaint. An erroneous instruction may be rendered harmless by the other instructions given. (State v. Gregory, 74 Kan. 467, 87 Pac. 370; State v. Killion, 95 Kan. 371, 148 Pac. 643.) After a careful examination of the evidence in the light of all the instructions given to the jury, we do not think this one instruction was prejudicial to the defendant. (State v. Kane, 114 Kan. 426, 219 Pac. 281; State v. Bolton, 111 Kan. 577, 207 Pac. 653.) Not every error justifies reversal of a judgment. We are admonished by the statute that the error must be one which causes substantial injury to the rights of the party complaining. (G. S. 1935, 62-1718.)” (p. 251.)
It would seem to follow that if the state has to make no election as to the elements of a single offense there would be no error in the trial court’s submitting them to the. jury in the same manner as was done here. In the case at bar the testimony stood undenied that defendant proposed to others that they procure, mark and substitute ballots for the township offices; that he did procure the ballots ; that they were marked, clipped and deposited in a box, all in pursuance of his proposal. That evidence is positive. The circumstantial evidence about the ballot boxes being interchanged is persuasive, and the expert testimony leads to a conclusion the entire plan was carried out. In order to convict, the state did not have to show that defendant personally did each of the several acts. Although he was tried alone, he was charged jointly with others, and what any of them did in carrying out the plan was in furtherance of it, and as was approvingly quoted in State v. Wolkow, 110 Kan. 722, 205 Pac. 639, 42 A. L. R. 265: “That which a person does by another, he does himself.” (p. 725.) We do not think instruction No. 8 is erroneous for reasons urged against it. From the record and the entire instructions it is clear the jury were advised the. defendant was charged with committing a fraud or irregularity with intent to defeat a fair expression of the popular will at an election, the elements of the fraud or irregularity being set forth, and that they were likewise advised the state had the burden of proving every ingredient of the crime charged before there could be a conviction. If it be assumed the eighth instruction was subject to criticism in any particular, the fact still remains that the instructions, taken as a whole, correctly advised the jury as to defendant’s rights and its duties in the premises. There is no showing there was an error affecting the substantial rights of the defendant.
Defendant also complains that he was not afforded a fair opportunity to present his motion for a new trial. The verdict was returned November 4, 1938, and the motion for a new trial was filed November 9. It came on for hearing on December 3, and that hearing was . continued to December 6. Defendant sought a further continuance, contending he had not had time to subpoena certain jurors to testify. The trial court evidently thought ample time had been allowed and that appellant could or should have obtained affidavits, and it refused a further continuance. ■ Appellant then dictated into the record a statement of what his proposed evidence would be. The trial court thereafter denied the motion. It appears to us the trial court’s ruling refusing further continuance was proper. Other contentions concerning a new trial are in connection with matters heretofore discussed. The trial court did not err 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
Allen, J.:
This action was to enforce certain alleged building restrictions. Judgment was for defendants. Plaintiff appeals.
On August 29, 1936, plaintiff conveyed to defendant Calderwood three lots in Belmont addition to the city of Topeka. The deed was recorded on September 4, 1936. The deed contained the following provision:
“These lots are sold and deed given on the express covenant, that no dwelling shall at any time be placed thereon of less than four rooms, and at least 400 square feet of floor space, shingle roofing, drop siding, painted, plastered or ceiled, or of brick, cement or stone, or within twenty feet of the front line of the lots, . . .”
It was alleged that since the conveyance, dwellings have been placed on the lots in violation of the restrictions. It was further alleged that the lots have been sold or leased to three named defendants who now occupy the premises; that the exact legal relationship between these defendants is unknown to the plaintiff, but that they occupy the premises in violation of the restrictions in the conveyance to Calderwood. Plaintiff prayed “for an order and decree enforcing said restrictions and requiring defendants to comply with said restrictions.” The answer contained a general denial. ■
In rendering judgment, the court made findings of fact. The court found that the three defendants, other than Calderwood, occupied two of the three houses on the lots conveyed, but there was no evidence as to the nature of their claims — whether as owners, lessees or mere licensees. The court found that the defendant Calderwood first obtained possession under a contract dated June, 1934, and that the contract contained the same restrictions as the deed of August, 1936; that the “evidence fairly shows these were erected before the deed was executed”; that the plaintiff “knew or should have known at the time it executed the deeds that buildings which violated the restrictions it was inserting in the deed were already on these lots.” These findings were supported by the evidence.
Plaintiff contends the court erred in the admission of incompetent and prejudicial evidence, in holding the dwellings were erected before the deed was issued, in holding that while Calderwood was the title holder of the property, there was no evidence to show the right, title or interest of the other defendants who occupied the property. It is also contended that the court erred in finding plaintiff knew or should have known that the dwellings violated the restrictions. We understand the main contention to be the court erred in holding that the plaintiff had waived the restrictions.
Restrictions on the use of real property are recognized in this state. (Hartman v. Wolverton, 126 Kan. 613, 270 Pac. 584; Clark v. Vaughan, 131 Kan. 438, 292 Pac. 783; Welsh v. Flo, 146 Kan. 807, 73 P. 2d 1084.)
These restrictions or equitable servitudes are based on the equitable principle of notice — that the person who takes land with notice of a restriction upon it will not in equity and good conscience be permitted to act in violation of these restrictions. (2 Tiffany, Real Property, 2d ed., 1425 et seq., §§ 394-401; Clark, Covenants and Interests Running with Land, p. 148.)
The doctrine was stated in the leading case of Tulk v. Moxhay (1848), 2 Ph. 774, 41 Eng. Reprint, 1143:
“That this court has jurisdiction to enforce a contract between the owner of land and his neighbour purchasing a part of it, that the latter shall either use or abstain from using the land purchased in a particular way, is what I never knew disputed. Here there is no question about the contract: the owner of certain houses in the square sells the land adjoining, with a covenant from the purchaser not to use it for any other purpose than as a square garden. And it is now contended, not that the vendee could violate that contract, but that he might sell the piece of land, and that the purchaser from him may violate it without this court having any power to interfere. If that were so, it would be'impossible for an owner of land to sell part of it without incurring the risk of rendering what he retains worthless. It is said that, the covenant being one which does not run with the land, this court cannot enforce it; but the question is, not whether the covenant runs with the land, but' whether a party shall be permitted to use the land in a manner inconsistent with the contract entered into by his vendor, and with notice of which he purchased. Of course, the price would be affected by the covenant, and nothing could be more inequitable than that the original purchaser should be able to sell the property the next day for a greater price, in consideration of the assignee being allowed to escape from the liability which he had himself undertaken.
“That the question does not depend upon whether the covenant runs with the land is evident from this, that if there was a mere agreement and no covenant, this court would enforce it against a party purchasing with notice of it; for if an equity is attached to the property by the owner, no one purchasing with notice of that equity can stand in a different situation from the party from whom he purchased. . . .” (p. 776.)
In 4 Pomeroy’s Equity Jurisprudence (4th ed., pp. 3958, 3959, note) it is stated that the doctrine is known by various names in different jurisdictions. “In some jurisdictions such covenants are called covenants running with the land. Elsewhere they are said to be in the nature of easements. And in still other jurisdictions they are simply called restrictive covenants. Under whatever name, the principles applied are practically the same. . . . Even where they are called covenants running with the land it is held that they are covenants enforceable only in equity.”
As these restrictions are enforceable only in equity, it is evident that we are not dealing with common-law easements, or covenants running with the land. Equity imposes a servitude on the restricted property for the benefit of property retained by the grantor or those who take from him with notice. Upon these agreements enforceable in equity the restricted districts in our cities have been developed, and the value of the property in such districts depends in a large measure upon their enforcement.
' The deed to Calderwood was filed for record. The three named defendants, in possession of the property, claiming under Calder-wood, are charged with notice and are bound by the restrictions. (18 C. J. .397.) Such restrictions will be enforced by injunction (32 C. J. 213) and in a proper case a mandatory injunction will lie for the removal of buildings and structures in breach of such restrictions. (32 C. J. 215.)
But it by no means follows that the plaintiff is entitled to recover in the present action. The right to enforce the restrictions or equi table servitude may be lost by laches, waiver or by acquiescence in the violation of the provisions of such restrictions. (32 C. J. 209.) Under the issues raised by the pleadings it was proper to show when the structures were placed on the land.
The agent of the plaintiff who lived near the property in question testified:
“I talked with Calderwood for the first time about these restrictions something like two years ago. The houses were up then, but I don’t know when they were built. It was before I had anything to do with the addition and the first time that I had anything to do with the addition was about two years ago this month.”
The plaintiff in his petition prays fox an order enforcing the restrictions in the deed. We assume the remedy invoked is a mandatory injunction to compel the removal of the structures. But it is clear the plaintiff did not move promptly upon the discovery of the violation of such restrictions. The court found the buildings were on the ground before the deed was executed. Having stood by for a period of nearly three years with full knowledge of the violation of the agreement, the plaintiff is not in a favorable position to invoke the equity powers of the court. Equity aids the vigilant, not those who slumber on their rights. On this record a mandatory injunction was properly refused.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Allen, J.:
This is a proceeding to vacate an award of compensation entered upon joint petition and stipulation and for an allowance of additional compensation.
Claimant was injured May 14, 1937. He was sent by respondent to Dr. Charles Rombold, an orthopedic surgeon of Wichita, for treatment. Compensation for temporary total disability was paid up to and including September 3, 1937. Claimant returned to his regular duties for respondent on September 2, 1937, and continued working for respondent until about December 1, 1937, when respondent ceased drilling operations. Doctor Rombold was of the opinion from an examination made about October 4, 1937, that claimant would have a five percent permanent partial disability in his arm. Claimant himself testified that the reason no disposition was made of his claim for permanent partial disability until January 12, 1938, was that he wanted to use his arm in working so that he could ascertain from actual experience how much disability there was in the arm.
On January 12, 1938, some six weeks after claimant left respondent’s employ; the claimant upon the one hand and respondent and insurance carrier upon the other hand, entered into a joint petition and stipulation. The joint petition and stipulation was in the form prescribed by the commissioner.
In the j oint petition and stipulation the parties agreed that they were all under the workmen’s compensation act; that The Travelers Insurance Company was the insurance carrier; that on May 14, 1937, claimant met with personal injury by accident arising out of and in the course of his employment; that his average weekly wage was $49 and his compensation rate $18; that his injuries resulted in total disability for fifteen weeks, followed by a five percent permanent partial loss of use of his right arm, and that claimant was entitled to compensation for 9.75 weeks in addition to the fifteen weeks compensation for temporary total disability which had theretofore been paid him. The joint petition and stipulation also contained the following provisions:
“The parties hereby waive notice and formal hearing herein and agree that the commissioner of workmen’s compensation may make and enter an award herein based upon the facts as set forth, said award to be binding and of the same effect as if the facts had been testified to and adduced at a formal hearing, and that costs herein may be taxed and assessed in the discretion of the commissioner.”
On January 19, 1938, the commissioner made an award in which he made specific findings of the facts agreed upon in the joint petition and stipulation and awarded compensation for 9.75 compensable weeks at the rate of $18 per week. The compensation awarded was all past due, more than eighteen weeks having elapsed since claimant returned to work on September 2, 1937. The claimant testified at the hearing that the amount of this award had been paid. A release which he testified he had signed was admitted in evidence.
Doctor Rombold again examined the claimant in June, 1938, five months after the entry of the award, and testified that his examination on that date disclosed a permanent disability of five percent in the arm and confirmed his earlier opinion that claimant’s disability would not exceed five percent.
On November 19, 1938, the claimant filed an application with the commissioner asking that the release and receipt executed by the claimant be reviewed and set aside for the following reasons:
“1. That said release was procured and executed by and as the result of fraud practiced upon the claimant by the respondents and insurance' carrier herein, and their agents.
“2. That said release and receipt were procured and induced and executed by and as the result of duress and undue influence brought to bear upon this claimant by the respondents and insurance carrier herein, and their agents.
“3. That said release and receipt were caused to be executed and were executed under mutual mistake of the parties hereto, which mistake is prejudicial to the claimant herein, and but for said mistake said release and .receipt would not have been executed by this claimant.
“Wherefore: Said claimant prays that the commissioner set a day certain upon which claimant may introduce his evidence in regard to the-above application and prays that said release and receipt be set aside and held for naught, and that forthwith claimant’s claim for compensation be set down for hearing.”
A hearing was had and the commissioner made findings as follows:
“It is found from the evidence that the joint petition and stipulation heretofore filed on January 14, 1938, and the award entered thereon on January 19, 1938, constituted a final receipt and release, and claimant having made application to set aside such final receipt and release within one year of its execution, said final receipt and release is hereby set aside and held for naught, and the claimant is found to be entitled to compensation for fifteen (15) weeks’ temporary total disability, followed by thirty-five percent (35%) permanent partial loss of use of his-right arm, entitling him to sixty-eight and 25/100 (68.25) weeks, or a total of eighty-three and 25/100 (83.25) weeks at the rate of eighteen dollars ($18) per week, a total of one thousand four hundred ninety-eight and 50/100 dollars ($1,498.50), which is now due and owing and should be paid in one lump sum, less the amount of compensation heretofore paid.”
An award was entered in accordance with the findings. On appeal this award was approved and confirmed by the district court. This appeal followed.
This case was argued and submitted while a motion for a rehearing was pending in Farr v. Mid-Continent Lead & Zinc Co., 150 Kan. 292, 92 P. 2d 124. Upon rehearing, that decision has been affirmed. See Farr v. Mid-Continent Lead & Zinc Co., ante, p. 51, 98 P. 2d 437 (this day decided). Upon the authority of that case the judgment of the trial court must be reversed. It is so ordered. | [
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The opinion of the court was delivered by
Hoch, J.:
This was an action to recover damages for personal injuries. The plaintiff alleged that she was injured as the result of a fall on a public sidewalk in Wichita, her fall being caused by catching her heel on the edge of a fiat piece of steel which was lying loose upon the sidewalk.
The original parties defendant were the owner of the building which abutted the sidewalk, the lessee and occupant of the building, and the city of Wichita. Prior to trial the plaintiff agreed to withdraw the action as against the lessee and occupant. At the close of plaintiff’s evidence, the court sustained separate demurrers by the owner of the building and by the city of Wichita. Appeals were taken as to both defendants, but the appeal as to the owner of the building was subsequently dismissed. The appeal now - before us is from the order sustaining the city’s demurrer.
We are met at the outset by the contention of appellee that no question is presented for review owing to the failure of appellant to include in her abstract a “specification of errors complained of, separately set forth and numbered” as required by rule five of this court. It may be frankly admitted that there has been a good deal of leniency — possibly too- much — in the enforcement -of this rule. That fact supplies the only apparent basis for complaint if the instant appeal were dismissed for failure to comply with the rule. The rule is based on sound considerations. Appellees have a right to be definitely informed as to the precise grounds upon which reversal or modification is sought. More than that, it is no part of the duty of courts of review to search out errors in a record. It is for the complaining parties to direct the court’s attention — with no uncertainty- — to the alleged errors which they contend have prejudiced their rights. In the instant case the appellant urges that while no specification of errors appears in the abstract, her brief clearly indicates that the only issue raised is whether the court erred in sustaining the city’s demurrer to her evidence, and that therefore, the failure to comply with the rule has not prejudiced the interests of the appellee. It is not, however, for appellants to decide whether harm will result from noncompliance. With considerable hesitancy, we again overlook the omission for the reason that the appellee appears to have fully understood the issue raised by the appeal. We will consider the case on its merits. It may be well to say here, however, that the next appellants who disregard the rule may not fare so well. The court may be forced to the conclusion that the only way to impress counsel with the importance of compliance is to rigidly enforce the rule.
On the evening of July 9, 1938, the plaintiff, Sadie Biby, her husband, John Biby, and her niece, Nora Cole, parked the Biby car on South Topeka avenue in Wichita and walked north on the east side of Topeka avenue past the building owned by D. R. Lauck and occupied by the Yingling Chevrolet Company as lessee. This building is located on the southeast corner of Topeka and English avenues. Traversing the sidewalk and running east and west was a drain gutter constructed to take care of water from a drain pipe which ran from the roof down the west side of the building. This drain gutter was constructed in the concrete sidewalk and was covered by a steel plate which was described by the city engineer to be approximately one-fourth inch thick, ten and one-half inches wide, and twelve feet long; the weight of the steel plate was variously estimated by witnesses to be between sixty and one hundred twenty-five pounds. The plaintiff and those accompanying her crossed this steel plate on their way north at about 7:00 or 7:30 p. m., but took no notice of it. After doing some shopping, which took them about an hour, they returned southward along the same sidewalk on their way to their car. Ifc'was still “fairly light, . . . amply light to see whatever there was to see on the walk.” They were on the inside portion of the walk comparatively near the building. As they passed in front of the building the plaintiff suddenly stumbled and fell to the ground with resulting injuries alleged in the petition. The nature and extent of the alleged injuries, not being in issue here, need not be recited.
The issue presented is whether the evidence was sufficient to require the question of the city’s liability to be submitted to the jury. The question being raised by demurrer, the testimony must be considered in the light most favorable to the plaintiff, and every reasonable inference indulged in her behalf.
The drain gutter was constructed in 1927 together with the sidewalk under a permit issued by the city to the owner of the building. It was built and maintained by the owner of the building. The construction of the drain gutter, covered by the steel plate, was of an approved type. The city engineer, called as a witness by the plaintiff, testified that the form of construction used was “the best type, . . . the most satisfactory and generally continuing safe type” which has been used for the purpose of carrying water from the down spout of a building across the sidewalk to the street space from the curb, in the absence of a storm sewer. He further testified that the work on this particular drain “was cleared as having been completed and inspected on July 27, 1927.” Sometime prior to the instant accident the concrete curbing at the street line had become broken at the outer end of the drain gutter, thus exposing the end of the metal cover. There was testimony that on various occasions the steel plate had been found knocked out of place by cars which had been backed against it at the curb. From this fact, it is contended that the city either knew or should have known that the steel plate had frequently been knocked out of place and constituted a hazard to pedestrians. There was no testimony that the steel plate was out of place before the plaintiff fell. The only testimony concerning the position of the steel plate was that after the appellant fell, it was found lying loose on the sidewalk and diagonally across the drain gutter with the east end to the south. There was no testimony that the steel plate was tipped in any way either before or after the accident. It was lying flat on the sidewalk. Although it was still light, neither the plaintiff nor any other witness observed anything out of place before the accident occurred. The plaintiff did not testify that she caught her heel on the edge of the steel plate. She said she did not know what she caught it on. She only knew she stumbled on something and fell. However, indulging all possible presumptions in plaintiff’s favor, we conclude that the jury might reasonably have inferred from the evidence that the steel plate was out of place and lying flat upon the sidewalk prior to the accident, and that she caught her heel on the edge of it. No inference, however, can properly be drawn that she stumbled in the drain gutter or against the edge of it. . Such an inference would not only be wholly outside of the testimony, but would be outside the pleadings. There was no allegation that she stumbled in the uncovered drain gutter or in any way caught her heel in the gutter. The sole allegation was that she caught her heel on the edge of the steel plate. Furthermore, there was no evidence that the steel plate was tipped at an angle so as to constitute an. obstruction greater than one-fourth inch high. All the evidence indicates that the plate was lying flat upon the walk.
Assuming for the moment that the city had knowledge that the plate was frequently knocked out of place, the ultimate and sole issue becomes a very narrow one. The question is whether the presence of a flat piece of steel.one-fourth inch thick lying upon the sidewalk constitutes a hazard to pedestrians sufflcient to establish liability against a city in an action for damages based on negligence.
As far as the question of law here presented is concerned, the situation is precisely the same as though there had been no drain gutter, and the plaintiff had tripped upon a flat piece of steel one-fourth inch thick which was lying upon the sidewalk. Indeed, as a matter of law, we discern no essential difference between an unevenness caused by a flat piece of metal lying upon a walk and a similar unevenness existing from any other cause.
Appellant urges that factual questions of negligence are ordinarily for a jury to decide and cannot be disposed of as a matter of law. That is unquestionably true. It is also the rule, however, supported by the great weight of authority, that slight unevennesses in sidewalks, slight variances in the level of the surface, whether caused by projections, depressions, or otherwise, furnish no ground upon which to base municipal liability for negligence. Sueh a question was carefully considered by this court in the case of Ford v. City of Kinsley, 141 Kan. 877, 44 P. 2d 255. In that case the plaintiff was injured by a fall caused by stumbling on one of the cement blocks of which the sidewalk was constructed. One block was depressed below the level of the surrounding blocks with a resulting variance in the surface level of from one-half inch to five-eighths of an inch. The jury returned a general verdict for the plaintiff and specifically found in answer to special questions that the walk was not in a reasonably safe condition for ordinary use, that the plaintiff’s fall was caused by stepping on the edge of the sunken block, and that the city had been negligent in permitting this condition to exist. This court, however, reversed the judgment, holding that the unevenness of the walk was so inconsiderable that it did not furnish a basis for actionable negligence against the city. In support of the decision, many quotations from textbooks and decisions from other jurisdictions were cited. Those citations need not be repeated here.
In the Ford case, supra, this court took special note of the case of Evans v. City of Hutchinson, 99 Kan. 477, 162 Pac. 342, which is one of the cases cited by appellant. In the Evans case there was a depression in a sidewalk caused by the scaling off of the cement crust over a space two feet long and six inches wide. The jury found the depth of the depression to be “about one-half inch.” It was held that it could not be said as a matter of law that a city is not liable for personal injuries resulting from a fall due to a depression of such a character. It should be noted, in passing, that a depression greater than one-half inch was really involved. The opinion stated that the finding of the jury that the depression was “about one-half inch” could not be regarded as indicating it was not greater in some places, in view of the estimate of one witness that it was three inches. However that may be, the Evans case was specifically overruled in the Ford case, supra, insofar as it “is at variance with the general trend of the cases cited” in this opinion.
The rule of law laid down in the Ford case was cited with approval in Douglas v. State Highway Commission, 142 Kan. 222, 46 P. 2d 890, which had to do with the condition of a gravel or chat highway. The-rule was definitely followed in Moore v. Winnig, 145 Kan. 687, 689, 66 P. 2d 372, involving a defective sidewalk.
In 119 A. L. R., beginning at page 161, will be found an exhaustive annotation concerning the degree of inequalities or variances in levels in sidewalks which make the question of liability one for the jury or for the court. More than seventy cases from various jurisdictions are cited and digested (pp. 163-168) in which it was held that the obstruction, the depression, the unevenness did not constitute a sufficient basis for submitting the question to the jury. In all these cases, we find only one where the unevenness was possibly as slight as that in the instant case, and that one involved a variance of from one-eighth inch to two or three inches. In twenty-six cases out of the seventy, the unevenness was more than one inch, and in thirty-five it was more than two inches. In other words, it is generally held that' variances in a public sidewalk even much greater than the one involved here do not constitute a sufficient hazard to establish municipal liability for negligence. The cases cited are not confined to projections or depressions in the sidewalk itself, and there is no reason why they should be. A flat object lying upon a sidewalk would ordinarily be essentially no different, or at least no greater a hazard, than a sharp offset of equal height in the sidewalk itself. In support of the same rule see 7 McQuillan on Municipal Corporations (2d ed., pp. 165-167) and cases cited, for instance, involving an iron grating projecting two inches above the walk; the cap of a water box three-quarters of an inch above the surface of the walk; and the removable part of a culvert one or two inches above the edge of the sidewalk.
In the same A. L. R. annotation, supra, are listed (pp. 168-174) about one hundred cases in which it was held that submission of the question to the jury was either required or justified. In all the list, however, we find none where the unevenness was as slight as one-quarter of an inch. We find only three where the variance was less than one inch, and practically all of the cases involved variances amounting to several inches or more.
Among the earlier cases cited by the appellant is Street Rly. Co. v. Stone, 54 Kan. 83, 37 Pac. 1012, wherein the city was held liable for the improper construction of a street railway track near the center of the street. The case is not persuasive here. The railway track was about four inches above the level of the street for the full extent of the rails and the crossties were so high that the carriage in which the plaintiff was riding was overturned when it struck them.
Among the later cases appellant cites is Blankenship v. City of Caney, 149 Kan. 320, 87 P. 2d 625, wherein it was held that the question of the city’s liability was one for the jury. In that case there was part of a crosswalk over a ditch twenty-five inches deep which was made of planks narrower than the abutting brick portions of the crosswalk. The narrow portion over the ditch was not guarded in any way by handrails and was not lighted at night. The plaintiff, while proceeding cautiously along the crosswalk on a dark and rainy night, missed her footing and fell into the ditch. Obviously, such a situation is in no way comparable with the instant one.
The rule followed by this court in the Ford case and others is not only in line with the great weight of authority and particularly with the plain trend of the more recent decisions, but harmonizes with reason and common experience. To say that an unevenness as slight as one-quarter of an inch in the surface of a sidewalk— whether caused by an object lying upon the sidewalk or by a variance in the level of the sidewalk itself — is a hazard in the daytime and nighttime which establishes actionable negligence if permitted to continue, would impose a most far-reaching and unwarranted liability upon the cities of the state. It is doubtful if a city could be found where such projections and depressions in sidewalks do not exist. An offset of one-fourth inch is certainly a very slight one. There are few brick sidewalks, for instance, that have been laid for any length of time which do not have a greater unevenness than that. This case clearly falls within the rule that slight defects, inconsiderable obstructions, furnish no basis for action against municipalities for negligence in the maintenance of public sidewalks. The demurrer of the city was properly sustained.
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|
The opinion of the court was delivered by
Allegrucci, J.:
This is an action by First Page, Inc., (First Page) against the State Director of Property Valuation and the taxing authorities in each of 15 counties in which First Page owns property (hereafter defendants will be referred to as Director), seeking injunctive and declaratory relief and a writ of mandamus. These cases were consolidated and transferred for determination in Shawnee County. The district court granted the defendants’ motions to dismiss for failure to exhaust administrative remedies. The district court also ruled that First Page is a public utility for property tax purposes. First Page appealed and filed a motion to transfer to this court, which was granted pursuant to K.S.A. 20-3017.
The relevant facts are not in dispute. First Page was formed in the fall of 1989 by acquiring the paging operations of two other companies. It operates as a radio common carrier, offering one-way paging services transmitted by radio frequency.
In early 1990, First Page submitted commercial personal property statements to the county appraisers in Kansas counties where it owns property. The statements were not accepted on the ground that the Director considered First Page to be a public utility.
In August 1990, the Director sent to First Page’s tax consultant its 1990 Notice of Value Indicators, Correlated Value, Allocation Factor & Assessed Value in Kansas. In November 1990, First Page received tax bills from the 15 Kansas counties in which it owns property.
In each of the 15 counties, First Page sued the Director, the Board of County Commissioners, and the County Treasurer. First Page sought an injunction pursuant to K.S.A. 60-907(a) against the assessment, a declaratory judgment pursuant to K.S.A. 60-1701 et seq. that First Page is not a public utility for property tax purposes, an injunction to prevent future assessment, and a writ of mandamus directing county officials to recompute First Page’s tax liability. This court ordered the actions to be consolidated and transferred to Shawnee County for determination.
In February 1991, the Director filed a motion to dismiss for failure to exhaust administrative remedies. It was joined by most county defendants. The district court had not ruled on the motion to dismiss when the parties filed cross-motions for summary judgment in July and August 1991.
The district court ruled that First Page was required to exhaust its administrative remedies before initiating this action, that it had failed to do so, and that, as a result, this action would be dismissed. In addition, the district court ruled that First Page is a public utility for property tax purposes.
The district court’s journal entry contains the following pertinent paragraphs:
“Thereupon the Court hears arguments of counsel, reviews the record herein, and being duly advised in the premises finds defendants’ motions to dismiss plaintiff’s petitions pursuant to K.S.A. 60-212(b)(l) for lack of subject matter jurisdiction should be and are hereby sustained for the reasons stated on the record in open court.
“Notwithstanding the above, however, the Court further finds that radio common carriers are public utilities as defined in K.S.A. 79-5a01 and subject to valuation and assessment pursuant to K.S.A. 79-5a01 et seq. for the reason that they are engaged in the business of transmitting telephonic or telegraphic messages to, from, through or in this state.”
The first issue First Page raises is whether the district court correctly dismissed its action for failure to exhaust administrative remedies. The Director concedes that First Page’s claims for declaratory and injunctive relief should not have been dismissed by the district court. The parties agree that Dean v. State, 250 Kan. 417, 826 P.2d 1372 (1992), and Zarda v. State, 250 Kan. 364, 826 P.2d 1365 (1992), control. Those opinions were filed on February 28, 1992, a little more than a month after the journal entry was filed in the present case.
Since the Director concedes that dismissal by the district court was error, the question becomes whether we should consider’ plaintiff’s second issue of whether First Page is a public utility for property tax purposes. That determination is the key to this case. Both First Page and the Director advocate that this court should decide the issue even though the district court dismissed First Page’s petition for lack of subject matter jurisdiction.
First Page simply argues that there is no reason to remand this case to the district court for a determination on the merits because the district court already expressed its opinion on the matter. The Director argues that, “[a]s a practical matter, the district court granted appellee’s motion for summary judgment.” The ground for the Director’s motion for summary judgment was that his assessment against First Page was correct because radio common carriers offering one-way paging services transmitted by radio frequency are public utilities as defined for tax purposes by K.S.A. 79-5a01. The Director also argues that the issue should be resolved by this court because it is a question of law, and, if the case were remanded for its determination by the district court, it would be given de novo review on a second appeal of this case.
We agree with the Director’s contention. The disposition of this case turns on the interpretation of K.S.A. 79-5a01, which defines public utility for property tax purposes. The interpretation of a statute is a question of law and is subject to unlimited appellate review. Steele v. City of Wichita, 250 Kan. 524, 527, 826 P.2d 1380 (1992). The district court has stated its reasons as well as its conclusion on the record. Moreover,' the Director now concedes that the district court did have jurisdiction to decide the merits of the action.
First Page contends that it is not a public utility within the meaning of K.S.A. 79-5a01 and that the tax on its commercial personal property should be assessed and calculated pursuant to Art. 11, § 1 of the Kansas Constitution and K.S.A. 79-1439(b)(2)(E). First Page asserts that “[m]ost commercial personal property” is assessed and calculated pursuant to those provisions. First Page asserts: (1) Its property should ‘he valued by applying straight-line depreciation to original cost over a period not to exceed seven years and down to a residual value of not less than 20% of original cost"; (2) the local county appraiser should then apply a 20% assessment rate to the depreciated value to determine the assessed value to which the local mill levy is applied; and (3) there is little discretion to be exercised by the appraiser, and the Director, who is a state official, has no direct involvement.
The Director contends that the tax on First Page’s commercial personal property should not be calculated by the typical method described above because First Page is a public utility within the meaning of K.S.A. 79-5a01. Public utility property is assessed by the Director pursuant to K.S.A. 79-5a04. The Director has some latitude in his valuation. The assessment rate is 30%, as contrasted with 20% for other commercial personal property.
Thus, the central issue is whether First Page is a public utility within the meaning of K.S.A. 79-5a01. The statute provides:
“(a) As used in this act, the terms ’public utility’ or ■public utilities’ shall mean every individual, company, corporation, association of persons, lessees or receivers that now or hereafter are in control, manage or operate a business of:
(1) A railroad or railroad corporation if such railroad or railroad corporation owns or holds, by deed or other instrument, an interest in right-of-way, track, franchise, roadbed or trackage in this state
(2) transmitting to, from, through or in this state telegraphic messages
(3) transmitting to, from, through or in this state telephonic messages
(4) transporting or distributing to, from, through or in this state natural gas, oil or other commodities in pipes or pipelines, or engaging primarily in the business of storing natural gas in an underground formation
(5) generating, conducting or distributing to, from, through or in this state electric power
(6) transmitting to, from, through or in this state water if for profit or subject to regulation of the state corporation commission
(7) transporting to, from, through or in this state cargo or passengers by means of any vessel or boat used in navigating any of the navigable watercourses within or bordering upon this state.
“(b) The terms ‘public utility’ or public utilities’ shall not include: (1) Rural water districts established under the laws of the state of Kansas; or (2) any individual, company, corporation, association of persons, lessee or receiver owning or operating an oil or natural gas production gathering line which is situated within one county in this state and does not cross any state boundary line; or (3) any individual, company, corporation, association of persons, lessee or receiver owning any vessel or boat operated upon the surface of any man-made waterway located entirely within one county in the state.” (Emphasis supplied.)
The district court reasoned that radio common carriers fall within subsection (a)(3) as “transmitting to, from, through or in this state telephonic messages.” Because there is no definition of “telephonic message” in Chapter 79, the district court looked to the definition in “the chapter devoted to public utilities.” K.S.A. 66-104 provides in pertinent part: “As used herein, the term ‘transmission of telephone messages’ shall include the transmission by wire or other means of any voice, data, signals or facsimile communications, including all such communications now in existence or as may be developed in the future.” The district court concluded that the definition is broad enough to encompass one-way radio paging.
The district court concluded that the Chapter 66 definition of public utility should be applied to the tax question because it “is the only legislative guidance on the matter.” If the legislature had intended the term to have a different meaning in Chapter 79, the court’s reasoning continued, a definition would have been provided there.
Although radio common carriers are “virtually unregulated” by the Kansas Corporation Commission (KCC), which regulates public utilities, the district court was further persuaded by legislative history that the intention was to include them as public utilities for property tax purposes.
The district court explained the 1986 amendment to 79-5a01 as follows:
“In 1986, the Kansas Legislature amended K.S.A. 79-5aOI to assure the continued State assessment of radio common carriers. The 1986 amendment removed from K.S.A. 79-5a01 a provision which formerly made regulation by the State Corporation Commission or the Federal Communications Commission a prerequisite to State assessment of certain sellers or lessors of telephonic equipment, products, or services. The bill in that year, House Bill No. 3013, was requested by the Property Valuation Division of the Kansas Department of Revenue.”
The district court cited the Director’s testimony to the House Committee on Assessment and Taxation as establishing that the provision which he sought to have removed from 79-5a01 originally had been inserted at the request of Southwestern Bell. Its original purpose was to exclude Southwestern Bell’s telephone stores from State assessment. The telephone stores were a non-regulated aspect of the public utility.
The district court quoted the following testimony of the Director:
“ ‘[F]ailure to repeal the language in question may allow others to now successfully argue against State assessment even though this was not the original intent of the law. Deregulation of long distance carriers and radio common carriers in recent years might allow these companies to now argue that they meet the requirements of the statutory exception.
“These companies are presently State assessed and we believe they should continue to be.’ ”
Simply stated, the district court concluded that, when radio common carriers were deregulated in 1986, 79-5a01 was amended to delete the requirement of regulation for State assessment of a public utility. Thus, the amendment permitted the State to continue its assessment of radio common carriers.
First Page concedes that it “is engaged in the business of ‘transmission of telephone messages’ as defined in K.S.A. 66-104.” It contends, however, that the definition is inapplicable for the purpose of applying 79-5a01.
K.S.A. 66-104 states in pertinent part:
“The term public utility,’ as used in this act, shall be construed to mean every corporation, company, individual, association of persons, their trustees, lessees or receivers, that now or hereafter may own, control, operate or manage, except for private use, any equipment, plant or generating machinery, or any part thereof, for the transmission of telephone messages or for the transmission of telegraph messages in or through any part of the state .... As used herein, the term ‘transmission of telephone messages’ shall include the transmission by wire or other means of any voice, data, signals or facsimile communications, including all such communications now in existence or as may be developed in the future.”
By enactment of K.S.A. 66-1,143, the legislature removed radio common carriers from among those utilities which are subject to supervision by the KCC. Radio common carriers are defined in K.S.A. 66-1,143 to
“include all persons and associations of persons, whether incorporated or not, operating a public ‘for hire’ radio service engaged in the business of providing a service of radio communication, including cellular radio, which is one-way, two-way or multiple, between mobile and base stations, between mobile and land stations, including land line telephones, between mobile stations or between land stations, but not engaged in the business of providing- a public land line message telephone service or a public message telegraph service within this state.”
K.S.A. 66-1,143 distinguishes the transmission of signals by radio common carriers from transmission by telephone public utilities and deregulates the former.
As to whether the K.S.A. 66-104 definition of transmission of telephone messages transfers to 79-5a01, the Director concedes nothing directly, but states that the “district court conceded that this definition was applicable to proceedings before the Kansas Corporation Commission and not applicable to proceedings pursuant [to] K.S.A. 79-5a01.” Nonetheless, the Director contends that a word or phrase which appears in different statutory sections should be consistently defined unless a contrary intention is apparent. He relies on federal case law in support of the principle. We do not find support for the Director’s contention in these cases.
The first case cited by the Director is In re Hartman, 110 Bankr. 951 (D. Kan. 1990). There, the court considered the meaning of a word used in different sections of the same “body of law,” the Bankruptcy Code. The court stated that such a word generally should be given the same meaning in each section. It cited Barnson v. U. S., 816 F.2d 549 (10th Cir.), cert. denied 484 U.S. 896 (1987), the other case relied on by the Director. 110 Bankr. at 955.
In Bamson, the court was concerned with terms used in different sections of the Atomic Energy Act, 42 U.S.C. §§ 2011-2296 (1982). The court stated that they should be given the same meaning. 816 F.2d at 554. It cited Firestone v. Howerton, 671 F.2d 317 (9th Cir. 1982), which involved the interpretation of different sections of the Immigration and Nationality Act, 8 U.S.C. §§ 1259 and 1182 (1982).
These federal cases do not stand for the proposition advocated by the Director. They stand for giving consistent meaning to a term used in different sections of the same legislative package. If applied to the Kansas statutes, the principle would require giving the phrase “transmission of telephone messages” the same definition no matter where it occurred within Chapter 66. It does not require that the term be given the same definition in Chapter 79 — Taxation—as it is given in Chapter 66 — Public Utilities.
We conclude that the all-embracing 66-104 definition of “transmission of telephone messages” should not be read into 79-5a01. In the matter of construing tax statutes, this court has stated:
“Tax statutes will not be extended by implication beyond the clear import of language employed therein, and their operation will not be enlarged so as to include matters not specifically embraced. Where there is reasonable doubt as to the meaning of a taxing act, it will be construed most favorable to the taxpayer.” Equitable Life Assurance Society v. Hobbs, 154 Kan. 1, Syl. ¶ 1, 114 P.2d 871 (1941).
K.S.A. 66-104 and 79-5a01 both serve the primary purpose of defining “public utility,” the former for establishing the KCC’s scope of regulatory authority and the latter for establishing the Directors scope of assessment authority. No one is suggesting that the 66-104 definition of public utility should be read into 79-5a01. Why then should the definition of “transmission of telephone messages,” which is a subpart of the 66-104 definition of public utility, be read into the 79-5a01 use of “transmitting . . . telephonic messages"? The public utility definitions of 66-104 and 79-5a01 diverge significantly from one another. The legislature drew them up separately and set them out separately to serve their independent purposes. Nothing indicates that the legislature intended that a subpart of one, which does not appear in the other, should have any application to the latter. It would have been a simple matter for the legislature to have done so if that were its intent.
With regard to statutory construction, this court has stated:
“Interpretation of a statute is a question of law, and it is a function of this court to interpret a statute to give it the effect intended by the legislature. The fundamental rule of statutory construction, to which all others are subordinate, is that the intent of the legislature governs. In determining legislative intent, we are not limited to consideration of the language used in the statute, but may look at the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have under the various constructions suggested.” Cyr v. Cyr, 249 Kan. 94, Syl. ¶ 2, 815 P.2d 97 (1991).
“The fundamental rule of statutory construction is that the intent of the legislature governs. When construing a statute, a court should give words in common usage their natural and ordinary meaning.” Bank IV Wichita v. Plein, 250 Kan. 701, Syl. ¶ 1, 830 P.2d 29 (1992). In this regard, First Page states: “We do hot believe that a one-way radio paging service constitutes the transmission of a ‘telephone message’ in common usage, any more than the average individual would believe radio or television broadcasting constitutes transmission of a telephone message.”
First Page further urges that taxing statutes must be strictly construed so as to be applied to a taxpayer only where expressly applicable. See Equitable Life Assurance Society v. Hobbs, 154 Kan. at 12.
First Page poses this rhetorical question:
“If . . . one-way paging companies are public utilities for taxation purposes under K.S.A. 79-5a01 because they transmit telephone messages as defined in K.S.A. 66-104, notwithstanding the fact that they are otherwise not regulated and are not telephone companies, can the Director explain why the same would not be true of commercial radio stations and television broadcasters or cable television companies or newspaper publishers?”
Simply stated, First Page contends that the paging company is in the business of transmitting messages about telephone communications. That business is separate and distinct from the business of providing the means for actual telephone communications. The paging company transmits a message to its subscriber that someone wants to be in telephonic communication with the subscriber. It is the telephone company, not the paging company, which makes it possible for the subscriber to have actual telephone communication.
In support of its contention, First Page cites cases involving the question whether a paging company is a public utility for regulatory purposes. First Page cites in particular the following: Zachs v. Groppo, 207 Conn. 683, 542 A.2d 1145 (1988); Illinois Cons. Telephone Co. v. Ill. Commerce Com., 95 Ill. 2d 142, 447 N.E.2d 295 (1983); and Radio Relay Corp. v. Pub. Util. Comm., 45 Ohio St. 2d 121, 341 N.E.2d 826 (1976).
The issue in the Connecticut case involved taxation. The principal issue was whether a one-way radio paging company was a “telephone answering service” so as to be subject to the state sales and use tax. The court also was called on to consider whether the one-way radio paging company was in the business of transmitting telephone messages. Citing the Illinois and Ohio cases discussed below, the Connecticut court concluded that the relay of a caller’s signal by the one-way paging service was not transmission of a telephone message. Zachs v. Groppo, 207 Conn. at 697 n.16.
The first issue before the Illinois Supreme Court was whether the activity of a one-way radio paging company falls within this provision of the state’s Public Utilities Act:
“Public utility” means and includes every corporation, company, association, joint stock company or association, firm, partnership or individual, their lessees, trustees, or receivers appointed by any court whatsoever that owns, controls, operates or manages, within this State, directly or indirectly, for public use, any plant, equipment or property used or to be used for or in connection with, or owns or controls any franchise, license, permit or right to engage in: •
b. the transmission of telegraph or telephone messages between points within this State ....’" 95 111. 2d at 145-46 (quoting Ill. Rev. Stat. ch. 111%, ¶ 10.3[b] [1979]).
The court concluded that the paging service at issue, “which consists only of one-way radio signaling, does not fall within the Public Utilities Act.” 95 Ill. 2d at 147.
The following rationale, which was offered by the Illinois court, is relevant to the present case:
“We do not judge that because the radio signal is a result of a telephone call by a person seeking the subscriber, the radio-paging business operates equipment used ‘for or in connection with . . . the transmission of . . . telephone messages.’ (Ill. Rev. Stat. 1979, ch. IIIV3, par. 10.3.) The paging service is but a recipient of a telephone call, and the service simply notifies its subscriber of the call. The Commission, having reconsidered and concluded that Aircall is not a public utility, argues that the paging company is in reality only an answering service with sophisticated equipment. (The only unique aspect of the service offered by paging businesses, the Commission argued in the appellate court, involves the use of radio signals, and the use of radio frequencies is licensed federally.) It may be that paging companies facilitate communication by telephone by signaling persons who are away from telephones, but the statute does not make every business that facilitates telephone communication a public utility. The Commission points out that the publishers of telephone classified directories, such as legal or medical directories, also facilitate telephone communication, but it could hardly be said that those publishers were intended by the legislature to be considered public utilities. Similarly it could be said that simple answering services aid and facilitate telephone communication. But it is obvious that the nature of the service is not a functional part of the transmission of messages by telephone, nor is radio paging.” 95 111. 2d at 148-49.
The question before the Ohio Supreme Court was whether a one-way paging company was engaged in the business of transmitting telephone messages to, from, through, or in the state. The court stated:
“Where a one-way radio paging service broadcasts a radio signal from its own transmitter to a subscriber’s pager, which the subscriber carries in his pocket, causing the pager to emit a beep which alerts the subscriber to make a telephone call, such signal is not a ‘telephonic message’ within the meaning of R.C. 4905.03(A)(2), even though the radio paging service is interconnected to a land-line telephone facility for the sole purpose of transmitting signalling instructions from the telephone company’s automatic answering device to the radio paging service’s transmitter.”
“A company engaged in the business of providing such a one-way radio paging service to its subscribers is not a ‘telephone company’ within the meaning of R.C. 4905.03(A)(2), nor is it a public utility’ within the meaning of R.C. 4595.02.” Radio Relay Corp. v. Pub. Util. Comm., 45 Ohio St. 2d 121, Syl. ¶¶ 1 and 2.
In the present case, the district court gave considerable weight to the legislative background, particularly the 1986 amendment to K.S.A. 79-5a01. The district court reasoned:
“The 1985 amendment to K.S.A. [66-1,143] had a pronounced impact on K.S.A. 79-5aOI. Prior to 1986, 79-5a01 provided that the term public utility would not include any individual, company, or corporation which was en gaged in the business of selling or leasing telephonic equipment, products, or services, and which was not regulated by either the State Corporation Commission or the F.C.C. Thus, during 1986 and 1987, radio common carriers could not be taxed as public utilities because of the change in K.S.A. [66-1,143].
“In 1986, the Legislature deleted the language in 79-5a01(b), which had created a loophole for the radio common carriers. Thus, beginning in 1987, radio common carriers were again subject to the taxation provisions of K.S.A. 79-5a01.”
The deleted language referred to by the district court was found in K.S.A. 79-5a01(b)(2) and (3) (Ensley 1984), which provided:
“The terms ‘public utility’ or ‘public utilities’ shall not include: ... (2) any individual, company, corporation, association of person, lessee or receiver which is engaged in the business of selling or leasing telephonic equipment, products or services and (A) which is not regulated by either the state corporation commission or the federal communications commission as to the price of such equipment, products or services or (B) which does not offer telephone service to the public under tariffs approved by the state corporation commission or the federal communications commission, even if such individual, company, corporation, association of persons, lessee or receiver is a subsidiary of or affiliated with a public utility providing telephone service to the public; or (3) the nonregulated portion of a public utility’s telephone service operation where that activity is conducted separately from its public utility telephone service operation or separate books and records or accounts are maintained for such nonregulated operation.”
In addressing the House Committee on Assessment and Taxation in 1986, the Director referred to the origins of the above-quoted language:
"The language we are requesting you strike was originally added to the statute, at the request of Southwestern Bell, to exclude from state assessment the non-regulated activities of a utility and was aimed at excluding Bell’s phone stores. Because of the restructuring of Bell, we believe such an exception is now unnecessary. Under the new structure of the company no argument could be made that these stores fall under the purview of state assessment.”
Clearly, the intent of the Property Valuation Division of the Department of Revenue in requesting the 1986 amendment was to head off questions that the deregulation of radio common carriers would result in a change in its assessment practices. However, since the above language was not added for the purpose of excluding radio common carriers from state assessment as a public utility, it does not follow that by striking the language the legislature intended to include radio common carriers within the meaning of the term “public utility.” What is lacking is any showing that, prior to 1986, “transmitting . . . telephonic messages” was intended by the legislature to include radio common carriers. Absent such a showing, Article 5a, Chapter 79 of the Kansas Statutes Annotated is being “enlarged so as to include matters not specifically embraced.” Equitable Life Assurance Society v. Hobbs, 154 Kan. 1, Syl. ¶ 1.
First Page has none of the trappings of a public utility. Its service is a convenience rather than an essential service. It is highly competitive rather than a monopoly. It does not make use of public property or rights-of-way and does not require a franchise or authority to operate. It is not guaranteed a rate of return on investments and cannot offset a tax increase by requesting a rate increase.
We find persuasive the rationales of the Connecticut, Illinois, and Ohio cases that the business of providing a one-way paging service does not constitute the transmission of telephone messages. Clearly, the natural and ordinary meaning of transmitting telephonic messages does not include one-way radio paging. We conclude that a company in the business of providing one-way radio paging service to its customers is not “transmitting to, from, through or in this state telephonic messages.” We therefore hold that First Page is not a public utility within the meaning of K.S.A. 79-5a01.
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The opinion of the court was delivered by
Holmes, C.J.:
Dwight E. McMillen, a tenured teacher of U.S.D. No. 380 in Marshall County, appeals from a decision of the district court which, in effect, upheld the school board’s decision not to renew McMillen’s teaching contract for the 1991-92 school year. In its decision, the trial court held that K.S.A. 1991 Supp. 72-5443 violates §§ 2 and 5 of Article 6 of the Kansas Constitution.
The facts are not in dispute. Dwight E. McMillen was a certified, tenured, public schoolteacher employed by U.S.D. No. 380. On April 1, 1991, the school board of the district adopted a resolution stating its intent to nonrenew McMillen’s contract. On April 10, 1991, the board notified McMillen in writing of its intent not to renew his contract for the 1991-92 academic year. McMillen timely requested a due process hearing pursuant to K.S.A. 72-5436 et seq. The hearing was conducted in August 1991, and on October 30, 1991, the hearing committee issued its written opinion in which it found, in a two-to-one decision, that the school board failed to show good cause to nonrenew McMillen’s employment contract. The hearing committee concluded that the resolution of intent to nonrenew the contract should be rescinded and that McMillen should be reinstated to his teaching position with back pay. On November 4, 1991, the school board adopted the opinion of the hearing committee as its decision, as required by K.S.A. 1991 Supp. 72-5443.
On November 20, 1991, U.S.D. No. 380 filed a notice of appeal and petition in district court, pursuant to K.S.A. 1991 Supp. 60-2101(d) and K.S.A. 1991 Supp. 72-5443. The school district alleged that it did not agree with the majority opinion of the hearing committee, but was forced by the statute to adopt the opinion as its decision. The school district later amended its appeal to include an allegation that K.S.A. 1991 Supp. 72-5443 is an unconstitutional violation of §§ 2 and 5 of Article 6 of the Kansas Constitution. The school district, in its amended appeal, requested that the court find K.S.A. 1991 Supp. 72-5443 unconstitutional.
On December 10, 1991, McMillen filed a motion to dismiss the appeal, asserting the district court lacked jurisdiction to hear the appeal. The district court denied the motion to dismiss at a hearing on January 14, 1992.
Following the filing of briefs, the trial court held a hearing on the issue of the constitutionality of K.S.A. 1991 Supp. 72-5443 and issued its opinion on April 7, 1992. The district court first addressed whether the authority granted to the due process hearing committee was in violation of the provisions of § 1 of Article 2 of the Kansas Constitution. The court reasoned that the function performed by the due process hearing committee was quasi-judicial in nature and not legislative and consequently was not an unlawful delegation of legislative authority. The court held that K.S.A. 1991 Supp. 72-5443 does not violate § 1 of Article 2 of the Kansas Constitution. There has been no cross-appeal from that determination, and whether the statute constitutes an unconstitutional delegation of legislative authority in violation of § 1 of Article 2 is not an issue presently before this court and will not be addressed in this appeal.
The district court next considered whether K.S.A. 1991 Supp. 72-5443 violated §§ 2 and 5 of Article 6 of the Kansas Constitution. The court determined that the statute removes from the local school board the authority to make the final decision whether a teacher’s contract should be renewed and does violate §§ 2 and 5 of Article 6 of the Kansas Constitution. The court then concluded that the school board was not bound by the statutory requirement to adopt the hearing committee’s opinion as its own decision. McMillen timely appeals from the district court’s order finding K.S.A. 1991 Supp. 72-5443 unconstitutional. The merits of McMillen’s dismissal and the specific findings of the hearing committee are not before the court for review and are not germane to the issues on appeal. Further proceedings in the district court have been stayed pending the final determination of this appeal.
K.S.A. 72-5436 et seq. set forth and govern the due process procedure afforded to a tenured schoolteacher in an employment dispute relating to the nonrenewal of a teacher’s contract. K.S.A. 1991 Supp. 72-5438 and K.S.A. 1991 Supp. 72-5439 provide for the selection of the due process committee and for the procedure before the committee. K.S.A. 1991 Supp. 72-5443, the statute at issue before us, provides:
“(a) Unless otherwise agreed to by both the board and the teacher, the hearing committee shall render a written opinion not later than 30 days after the close of the hearing, setting forth its findings of fact and determination of the issues. The opinion of the hearing committee shall be submitted to the teacher and to the board and shall be binding on both parties.
“(b) Upon receiving the written opinion of the hearing committee, the board shall adopt the opinion as its decision in the matter and such decision shall be final, subject to appeal to the district court as provided in K.S.A. 60-2101, and amendments thereto.”
At the outset, a brief review of the legislative history of 72-5443 is deemed appropriate. As originally adopted in 1974, 72-5443 permitted a board of education to accept or reject the recommendation of the hearing committee. The statute was amended in 1975 and 1976; however, those amendments are not material to the issues presented in this appeal. In 1984, the statute was amended to make a unanimous recommendation by the hearing committee binding on the school board. In 1991, the statute was again amended to make all decisions by the hearing committee binding on the school board. During the 1992 legislative session, the hearing process was changed again. The legislature replaced the three-person hearing committee with a single hearing officer. The decision of the hearing officer is final, subject to appeal by either party. L. 1992, ch. 185, §§ 2, 6. It is the 1991 amendment, as set forth above, which was controlling in this case and which the district court found violated §§ 2 and 5 of Article 6 of the Kansas Constitution.
Before turning to the constitutional issue, we are first faced with a jurisdictional challenge by McMillen in which he contends the school board lacked statutory authority pursuant to 72-5443(b) to appeal the hearing committee’s opinion that the board had failed to show good cause to nonrenew McMillen’s contract.
McMillen argues that K.S.A. 1991 Supp. 60-2101(d) does not provide the school district with the right to appeal, and thus the district court, as well as this court, lacks jurisdiction.
K.S.A. 1991 Supp. 60-2101(d) provides:
“A judgment rendered or final order made by a political or taxing subdivision., or any agency thereof, exercising judicial or quasi-judicial functions may be reversed, vacated or modified by the district court on appeal. If no other means for perfecting such appeal is provided by law, it shall be sufficient for an aggrieved party to file a notice that such party is appealing from such judgment or order with such subdivision or agency within 30 days of its entry, and then causing true copies of all pertinent proceedings before such subdivision or agency to be prepared and filed with the clerk of the district court in the county in which such judgment or order was entered. The clerk shall thereupon docket the same as an action in the district court, which court shall then proceed to review the same, either with or without additional pleadings and evidence, and enter such order or judgment as justice shall require. A docket fee shall be required by the clerk of the district court as in the filing of an original action.” (Emphasis added.)
Although somewhat confusing, the thrust of McMillen’s first argument seems to be that because K.S.A. 1991 Supp. 72-5443(b) requires the school board to adopt as its own decision the opinion of the hearing committee, the decision appealed from is really the decision of the hearing committee. McMillen asserts that a due process hearing committee is not a “political or taxing-subdivison, or any agency thereof.” Therefore, McMillen reasons, the school district lacks statutory authority to appeal the hearing committee’s decision.
While it is true K.S.A. 1991 Supp. 72-5443(b) requires the board to adopt the opinion of the hearing committee as the board’s decision, that requirement does not somehow convert the decision from one of the board into one solely of the hearing committee. K.S.A. 1991 Supp. 72-5443 clearly states “the board shall adopt the opinion [of the hearing committee] as its decision.” To follow McMillen’s argument to its logical conclusion would not only deny the school board the right to appeal, but also the teacher. If the ultimate decision is somehow one solely of the hearing committee and not of a “political or taxing subdivision, or any agency thereof,” then K.S.A. 1991 Supp. 60-2101(d) would not apply to either party and the appeal provisions of K.S.A. 1991 Supp. 72-5443(b) become meaningless.
In addressing this particular argument of McMillen, the Kansas Association of School Boards, as amicus curiae, states:
“When the Kansas Due Process Procedures Act was enacted, the right of appeal was included to ensure that a decision to terminate or nonrenew a teacher was not arbitrary, capricious, or unsupported by substantial evidence. At that time, because the decision was the board’s decision, it followed that it was the teacher who appealed. However, with the 1991 amendments to K.S.A. 72-5443, it is the hearing panel, not the board, who decides. Given that the purpose of the statute is to ensure against arbitrary and unsupported decisions, and that the board is forced to adopt that decision as its own, to construe the statute as suggested by Mr. McMillen would allow for no appellate review in situations where an arbitrary decision favoring a teacher is made by the hearing panel, defeating the purpose of the statute. Surely the legislature could not have intended that only a portion of decisions be reviewable.”
The language of K.S.A. 1991 Supp. 60-2101(d) does not limit the right to appeal to the teacher, but confers the right upon the “aggriéved party.” In the instant case the hearing panel found that the school board had failed in its burden of proof. The school board contends otherwise. In addition, the school board asserts that it is the final arbiter of who should be hired or retained as teachers in the local public school system and that the Constitution places that duty upon the local school board. The school board also contends the statute granting the ultimate decision to the hearing panel is unconstitutional. Under such circumstances and the facts of this case, the school board is an “aggrieved party” and is entitled to appeal under the language of K.S.A. 1991 Supp. 60-2101(d).
McMillen next cites several cases for the propositions that “a party has no right to complain on appeal of an order in his favor” and that “a prevailing party has no standing to seek appellate review.” He rather confusingly maintains that the school board, by adopting the hearing committee’s opinion as its own, somehow becomes the “prevailing party” and thus lacks standing to appeal. The school board, however, was not the “prevailing party.” The due process hearing committee’s opinion found that the school district had failed its burden of proving good cause to nonrenew McMillen. The school board adopted that opinion, not willingly, but because it was required to do so by statute. The board timely appealed from this decision. McMillen’s argument is simply inapplicable and unpersuasive.
McMillen’s additional argument that the school board “acquiesced” in the constitutionality of the statute by adopting the hearing committee’s recommendation, thus barring appellate review, is likewise unpersuasive.
We conclude that K.S.A. 1991 Supp. 72-5443(b) does grant a school district that is aggrieved by the opinion of the hearing committee the right to appeal and that McMillen’s various arguments attacking the jurisdiction of the district court and this court are without merit.
We now turn to the issues of whether K.S.A. 1991 Supp. 72-5443 violates §§ 2 and/or 5 of Article 6 of the Kansas Constitution. In considering the constitutionality of a statute duly enacted by the legislature, certain basic principles and rules apply.
“When a statute is attacked as unconstitutional a presumption of constitutionality exists and the statute must be allowed to stand unless it is shown to violate a clear constitutional inhibition. Shawnee Hills Mobile Homes, Inc. v. Rural Water District, 217 Kan. 421, 435, 537 P.2d 210 (1975). It is generally agreed that the Kansas Constitution limits rather than confers power and any power and authority not limited by the constitution remains with the people and their legislators. In Leek v. Theis, 217 Kan. 784, 800, 539 P.2d 304 (1975), this concept was stated as follows:
‘When an act of a state legislature is assailed as void, it is only necessary to look to the federal and state constitutions for a specific restriction on that power. Thus an act of a state legislature on a rightful subject of legislation, is valid unless prohibited by the federal or state constitution. . . .’
“This court need not attempt to search out constitutional authority for enacting a challenged statute, but rather must determine if the legislation so clearly violates a constitutional prohibition as to place it beyond legislative authority. Unified, School District No. 255 v. Unified School District No. 254, 204 Kan. 282, Syl. ¶ 2, 463 P.2d 499 (1969).” NEA-Fort Scott v. U.S.D. No. 234, 225 Kan. 607, 608-09, 592 P.2d 463 (1979).
In Bair v. Peck, 248 Kan. 824, Syl. ¶ 1, 811 P.2d 1176 (1991), we held:
“The constitutionality of a statute is presumed, and all doubts must be resolved in favor of its validity. Before a statute may be stricken down, it must clearly appear the statute violates the Constitution. Moreover, it is the court’s duty to uphold the statute under attack, if possible, rather than defeat it, and, if there is any reasonable way to construe the statute as constitutionally valid, that should be done.”
Furthermore, “[a] statute will not be declared unconstitutional unless its infringement on the superior law of the constitution is clear beyond substantial doubt.” Samsel v. Wheeler Transport Services, Inc., 246 Kan. 336, Syl. ¶ 3, 789 P.2d 541 (1990).
Section 2(a) of Article 6 of the Kansas Constitution provides:
“The legislature shall provide for a state board of education which shall have general supervision of public schools, educational institutions and all the educational interests of the state, except educational functions delegated by law to the state board of regents. The state board of education shall perform such other duties as may be provided by law.”
Section 5 of Article 6 of the Kansas Constitution provides:
“Local public schools. Local public schools under the general supervision of the state board of education shall be maintained, developed and operated by locally elected boards. When authorized by law, such boards may make and carry out agreements for co-operative operation and administration of educational programs under the general supervision of the state board of education, but such agreements shall be subject to limitation, change or termination by the legislature.”
In holding that K.S.A. 1991 Supp. 72-5443 violates §§ 2 and 5 of Article 6 of the Kansas Constitution, the trial court reasoned:
“Turning to the second issue, the Court notes Section 5 of Article 6 of the Kansas Constitution specifically provides that local public schools shall be maintained, developed and operated by locally elected boards subject to the general supervision of the State Board of Education. This provision of the Kansas Constitution limits the authority of the legislature to delegate the local board’s authority. Legislation which attempts to remove or limit such authority from locally elected boards is a violation of Section 5 of Article 6 of the Kansas Constitution.
“The provisions of K.S.A. 72-5443, as amended, continue to grant local boards of education the authority to initiate and present evidence in support of the termination or nonrenewal of teachers’ contracts; however, the statute, as amended, removes the authority of the boards to make the final decision as to whether a contract should be terminated or nonrenewed. Under the statute, as amended, this authority is delegated to the hearing committee and the local board is limited to a prosecutorial function and its right to appeal.
“The Kansas Supreme Court in the cases of Schulze v. Board of Education, 221 Kan. 351, and Crane v. Mitchell County U.S.D. No. 273, 232 Kan. 51, issued opinions that the provisions of K.S.A. 72-8205 granted local boards of education the authority to hire, fire and discipline employees. Since this statute has not been repealed or amended, and since the Kansas Appellate Courts have not reversed or modified their previous rulings, it is assumed this authority remains with the local boards unless the Court finds that it has been repealed by implication. In reading the Kansas Appellate Court decisions construing the provisions of K.S.A. 72-8205, along with Section 5 of Article 6 of the Kansas Constitution, it is the Court’s opinion that even if the legislature intended to repeal the authority granted the board of education by the provisions of K.S.A. 72-8205, it was prohibited from doing so by Section 5 of Article 6 of the Kansas Constitution.
“The Kansas Supreme Court, in the case of Wertz v. Southern Cloud Unified School District No. 334, 218 Kan. 25, states on page 31 of the opinion:
‘The interests- of the school district are to protect the students from incompetent teachers and to maintain a proper atmosphere in the classroom for learning.’
“In order to fulfill these functions, it appears basic to the Court that it is necessary for the local board of education to have the right to make the final decision, subject to a tenured teacher’s due process rights, of whether a teacher’s contract should be terminated or nonrenewed and subject to rights of appeal. In the Court’s opinion this is one of the [most], if not the most, important responsibility the board must exercise in order to build up, maintain, develop and operate efficient schools. In the event the final decision on this subject is denied the board of education, there is no limit on the effect it could have on the maintenance, development and operation of local schools.
“It is the opinion of the Court that the provisions of K.S.A. 72-5443 as amended violates Sections 2 and 5 of Article 6 of the Kansas Constitution.
“It is therefore ordered that the decision of the due process hearing committee be returned to the Board of Education of U.S.D. No. 380 for consideration in accordance with this decision.”
The school district advances the same reasoning, albeit in a more verbose manner, in its brief on . appeal.
Both McMillen and the school district, in their briefs, explicitly frame the constitutional issue as whether K.S.A. 1991 Supp. 72-5443 violates § 5 of Article 6 of the Kansas Constitution. The school district, in its docketing statement and in the body of its brief, however, does apparently maintain that the statute also violates § 2 of Article 6, and the trial court, although without analysis, held the statute did violate that portion of the Kansas Constitution.
Throughout the school district’s brief, it maintains that local school boards have a constitutional right to hire and fire, arid that K.S.A. 1991 Supp. 72-5443 usurps this power by removing it from the hands of the local boards and placing it in the hands of a three-member hearing committee, in violation of the explicit language of § 5 of Article 6.
Nowhere does the school district argue that the power to hire and fire is a power granted by the Kansas Constitution to the state board of education. Section 2 of Article 6 limits the power of the state board of education to “general supervision” of public schools.
As used in § 2(a) of Article 6 of the Kansas Constitution, general supervision means the power to inspect, to superintend, to evaluate, and to oversee for direction. State, ex rel., v. Board of Education, 212 Kan. 482, Syl. ¶ 9, 511 P.2d 705 (1973). As found and employed both in the Kansas Constitution and in the statutes of this state, this court has held the term “general supervision” means something more than to advise and confer with, but something less than to control. 212 Kan. 482, Syl. ¶ 10.
The powers of the hearing committee pursuant to K.S.A. 1991 Supp. 72-5443 in no way unconstitutionally impinge on the state board of education’s general supervisory authority. The hiring and firing of teachers and employees in a local school district has never been considered part of the supervisory duty of the state board of education and certainly is a duty best administered by local authorities within the statutory framework adopted by the legislature. The school district’s argument that the statute in question violates § 2(a) of Article 6 is without merit, and the trial court erred in so holding.
The school district next asserts that K.S.A. 1991 Supp. 72-5443 violates § 5 of Article 6 of the Kansas Constitution. The school district (and the trial court) rely upon Crane v. Mitchell County U.S.D. No. 273, 232 Kan. 51, 652 P.2d 205 (1982), and Schulze v. Board of Education, 221 Kan. 351, 559 P.2d 367 (1977), for the proposition that the right to hire and fire school teachers is constitutionally vested in locally elected boards of education.
The basic thrust of the school district’s arguments and the trial court’s decision is that the duty to select and maintain an efficient, knowledgeable, and adequate teaching staff is one that devolves upon the local school board under its constitutional mandate to maintain, develop, and operate the local school system. It is argued that the duty of determining whether a teacher should be retained in a local school system is one that must vest in the local school board, which is accountable to the public through the political, elective process, and not a duty that should be delegated to a committee which may be totally ignorant of local school policy and needs and is not accountable to anyone.
The position of the trial court and the school district is one that has considerable support, arguably makes sense, and certainly appeals to several, if not all, of the members of this court. However, if a legislative enactment is constitutional, it is not for this court to set policy or to substitute its opinion for that of the legislature no matter how strongly individual members of the court may personally feel on the issue.
The duty of an appellate court in considering a constitutional attack upon a legislative enactment was stated in Harris v. Shanahan, 192 Kan. 183, 206-07, 387 P.2d 771 (1963), as follows:
“It is sometimes said that courts assume a power to overrule or control the action of the people’s elected representative in the legislature. That is a misconception. . . . The judiciary interprets, explains and applies the law to controversies concerning rights, wrongs, duties and obligations arising under the law and has imposed upon it the obligation of interpreting the Constitution and of safeguarding the basic rights reserved thereby to the people. In this sphere of responsibility courts have no power to overturn a law enacted by the legislature within constitutional limitations, even though the law may be unwise, impolitic or unjust. The remedy in such a case lies with the people.”
See Kansas Malpractice Victims Coalition v. Bell, 243 Kan. 333, 341, 757 P.2d 251 (1988). In Samsel v. Wheeler Transport Services, Inc., 246 Kan. at 348-49, this court stated:
“The interpretation of constitutional principles is an important responsibility for both state and federal courts. In determining whether a statute is constitutional, courts must guard against substituting their views on economic or social policy for those of the legislature. Courts are only concerned with the legislative power to enact statutes, not with the wisdom behind those enactments. When a legislative act is appropriately challenged as not conforming to a constitutional mandate, the function of the court is to lay the constitutional provision invoked beside the challenged statute and decide whether the latter squares with the former — that is to say, the function of the court is merely to ascertain and declare whether legislation was enacted in accordance with or in contravention of the constitution — and not to approve or condemn the underlying policy.”
Thus, if the statute in question does not clearly contravene the provisions of § 5 of Article 6 of the Kansas Constitution, our duty is to uphold the statute, regardless of any personal views individual members of this court may have as to whether the statute is “unwise, impolitic, or unjust.”
As previously indicated, the school board and the trial court both relied upon Schulze v. Board of Education, 221 Kan. 351, and Crane v. Mitchell County U.S.D. No. 273, 232 Kan. 51, to support the contention that K.S.A. 1991 Supp. 72-5443 was unconstitutional. We find such reliance to be misplaced.
In Schulze, the plaintiff was issued a letter of reprimand by his employer, the local school board, which was placed in his personnel file. Schulze then filed suit against the school board seeking an injunction against the action of the board and damages for malicious prosecution, libel, and slander. The trial court granted the board’s motion for summary judgment and Schulze appealed. The issues before this court involved the jurisdiction of the school board over the administrative proceedings, the sufficiency of the due process granted Schulze, and whether the action of the board was a quasi-judicial function with immunity for the board members. There is nothing in Schulze which supports the contention that the constitutional duty of a local school board to maintain, develop, and operate the local school system includes the absolute right to hire and fire employees and precludes any statutory direction or control by the legislature.
Crane was another due process case that involved a nontenured teacher whose employment by the school board was terminated during the contract year for which he had been hired. Following administrative proceedings in which the school board terminated Crane’s employment, he filed a separate action for damages claiming his termination had been wrongful. This court found that Crane’s constitutional right to due process had been complied with by the board and that Crane’s refusal to participate in the administrative proceedings constituted a waiver of his right to a due process hearing or of any complaints he may have had as to the procedure followed by the board.
Although the issue of the school board’s power to hire and fire schoolteachers was not directly involved in either Schulze or Crane, this court did state in both cases that the right to hire, fire, and discipline employees, including teachers, is vested in the local school board by statute. Schulze, 221 Kan. at 353; Crane, 232 Kan. at 63. In Crane the court also stated:
“It is clearly the intention of our legislature that school boards in this state conduct hearings and make decisions regarding the dismissal of teachers for cause. Absent bias or other disqualifying reasons these decisions should remain with the body deemed by the legislature to be best qualified to make them.” (Emphasis added.) 232 Kan. at 63.
In the present case, the school district glosses over the fact that in both Schulze and Crane this court stated that the right to hire and fire was a right provided to school boards by statute. Although that determination was not directly controlling of the issues in the cases, Schulze and Crane do imply that the hiring and firing of teachers is not a right conferred directly upon the local school board by § 5 of Article 6 of the Kansas Constitution but, to the contrary, is statutory. As a right created by statute, it is within the authority of the legislature to modify or refine that right so long as the legislation is in harmony with, and not in derogation of, the constitutional provisions relating to the same subject. NEA-Fort Scott v. U.S.D. No. 234, 225 Kan. 607, 610, 592 P.2d 463 (1979). In 1977, when this court rendered its opinion in Schulze, it was clearly the intention of our legislature that school boards in this state conduct hearings and make decisions regarding the dismissal of teachers. See L. 1974, ch. 301, § 8. This was also the law in effect when Crane was decided. In 1991, the legislature deemed a hearing committee the body best qualified to assume these functions and, consequently, modified the statutes to reflect that determination.
In determining whether the statute in question is constitutional, we must weigh the powers granted the legislature by § 1 of Article 6 of our constitution against the authority of the local school board, under § 5 of Article 6, to maintain, develop, and operate the local school system. Section 1 of Article 6 provides:
“The legislature shall provide for intellectual, educational, vocational and scientific improvement by establishing and maintaining public schools, educational institutions and related activities which may be organized and changed in such manner as may be provided by law.”
It appears clear that the legislature under § 1 of Article 6 has the broad duty of establishing the public school system. The local school board’s duties under § 5 of Article 6 are not self-executing but are dependent upon statutory enactments of the legislature. However, we do not imply that the legislature has carte blanche over the duties and actions of local school boards. The respective duties and obligations vested in the legislature and the local school boards by the Kansas Constitution must be read together and harmonized so both entities may carry out their respective obligations. In considering the competing provisions, we do not find that the statute in question is so unreasonable that it unduly interferes with or hamstrings the local school board in performing its constitutional duty to maintain, develop, and operate the local public school system.
When viewed as this court must, under the presumption of constitutionality and with all doubts resolved in favor of the statute’s validity, it cannot be said K.S.A. 1991 Supp. 72-5443 “infringes beyond substantial doubt” upon § 5 of Article 6 of the Kansas Constitution. See Bair v. Peck, 248 Kan. 824, 811 P.2d 1176 (1991); Samsel v. Wheeler Transport Services, Inc., 246 Kan. 336, 789 P.2d 541 (1990).
We conclude that the legislature had the power to vest in the hearing committee the right to make a binding determination on the issue of McMillen’s retention as an employee of the school district, subject to the school board’s right to appeal as provided by the statute.
K.S.A. 1991 Supp. 72-5443 does not violate the provisions of either § 2 or § 5 of Article 6 of the Kansas Constitution.
The judgment of the district court is reversed, and the case is remanded for further proceedings. | [
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The opinion of the court was delivered by
Lockett, J.:
Plaintiff appeals a jury verdict in favor of defendant doctor in her medical malpractice action. On appeal, plaintiff contends that the trial judge erred by not setting aside the judgment for the defendant because of jury misconduct. The Court of Appeals affirmed the district court in an unpublished opinion filed May 22, 1992. We granted the plaintiff’s petition for review pursuant to K.S.A. 20-3018(b).
Lydia Saucedo commenced a malpractice action against Dr. Ray Winger, alleging that the doctor’s negligent diagnosis and treatment caused or substantially contributed to the death of her husband, Pablo, from cardiac infarction or cardiac arrhythmia. Dr. Winger’s defense was that Pablo died of respiratory failure from inhaling vomit into his lungs, not of a heart attack.
At trial, Ralph Medina, a friend of Pablo and Lydia, testified that during Thanksgiving Day he, his brother, and Pablo consumed as much as four and one-half cases of beer. Lydia testified that she believed Pablo had about 12 beers at Medina’s house, but Pablo and the two others could have consumed as much as four and one-half cases. Lydia estimated that they left Medina’s house around 2:30 A.M. She stated that she teased Pablo about having a hangover the morning after Thanksgiving.
Pablo, Lydia, and their two young sons went to the office of Dr. Winger that morning. Lydia and her sons were with Pablo throughout the visit to Dr. Winger’s office. Dr. Winger’s nurse, Patricia Phillips, inquired as to Pablo’s complaints and took a brief history. She noted on the chart: “Sharp pain in chest— started about 2 [hrs] ago; Arms numb; No Meds; B/P-130/84; NKA; T-98.0.”
Dr. Winger examined Pablo and ordered a chest x-ray. Dr. Winger diagnosed Pablo as having gastroenteritis with possible bronchitis. Pablo was given an injection of an antibiotic and a quantity of Maalox antacid. Pablo was then sent home with instructions to rest, to continue taking antacids, and to return if he did not get better.
Lydia testified that after leaving Dr. Winger’s office, they picked up Pablo’s paycheck at his place of employment and when they returned home Pablo lay down on the couch. Lydia went outside the house to hang some clothes. When she came back in the house, 5 or 10 minutes later, she saw Pablo lying on the floor jerking, and his lips and cheeks were purple. Lydia had her next-door neighbor stay with Pablo while she went to get her sister. When Lydia returned home, Pablo’s body was lying on the floor covered with a blanket, and she was told that Pablo had died.
Hospital records indicated that when the ambulance crew arrived Pablo had no vital signs, CPR was commenced, and Pablo was transported to the hospital. The emergency room chart indicated that Pablo was “D.O.A.,” with no vital signs. A variety of resuscitative techniques was attempted in the emergency room. The emergency room notes indicate: “[Rjepeated attempts to intubate unsuccessful. . . . Continuous emesis of stomach contents, with [high percentage] of what is apparently antacid.” At Lydia’s request, no autopsy was conducted.
Dr. Jack Perkins, plaintiff’s expert medical witness, testified that it was unlikely that Pablo died from inhaling vomit into his lungs or as a complication of bronchitis and gastroenteritis. Although Dr. Perkins agreed with Dr. Winger’s diagnosis that Pablo had bronchitis, it was his opinion that Pablo’s death was due to a cardiac infarction or arrhythmia. Dr. Perkins testified that Dr. Winger was negligent in not ordering further tests to determine the condition of Pablo’s heart.
The deposition of Lydia’s uncle, Jesse Rodriquez, was admitted into evidence. Rodriquez stated that he last saw Pablo on the day before Thanksgiving (two days before Pablo died). Rodriquez said that when he arrived at the hospital, just after Pablo had died, he met Dr. Winger in the hospital and inquired as to the cause of Pablo’s death. Rodriquez testified that Dr. Winger told him that Pablo could have died of a heart attack.
The defense presented several witnesses, including two members of the ambulance crew that treated Pablo. Kenton Brechbuhler, one of the crew members, stated that there was vomit on the side of Pablo’s face. He described the vomit as “a mixture of white and gastric contents.” He stated that during CPR Pablo’s stomach contents were moving into Pablo’s mouth with each compression of his chest. Janice Hickey, another crew member, described a white substance on the carpet and around Pablo’s mouth.
Dr. Lawrence Perry, defendant’s expert medical witness, testified that in his opinion Pablo probably died from respiratory failure of some sort. Dr. Perry indicated that struggling or jerking and a change in coloration could indicate that Pablo’s lungs were not functioning. It was Dr. Perry’s opinion that it was unlikely Pablo died from a myocardial infarction or any type of heart attack.
It is important to note that there is conflicting evidence as to what occurred during Dr. Winger’s examination of Pablo. Dr. Winger noted on Pablo’s chart “Spanish speaking only. . . . Low sternal chest pains & epigastric pain also vomit 6-7 [times] this A.M. . . . Both children had vomit/dia that resolved two days ago. . . . Lungs clear but shallow breath. [Chest x-ray with increased] bronchial markings. [T]ender epigastrium, [ijmp: Gastroenteritis [with] possible] Bronchitis.” Dr. Winger admitted that he made these notations on Pablo’s chart after he had learned of Pablo’s death.
In his deposition taken prior to trial, Dr. Winger first stated that he had obtained that information from the Saucedos’ daughter. (The Saucedos have two boys and no daughter.) At trial, Dr. Winger testified he talked to Pablo in Spanish but, when he had difficulty understanding Pablo, he asked one of the boys to help him. Dr. Winger said he was not sure whether the information about Pablo vomiting that morning came from Pablo or from the boys. He also said that the information about the children having diarrhea and vomiting two days earlier had come from either Pablo or one of the boys.
Lydia’s testimony of what occurred during the doctor’s examination of Pablo directly contradicted Dr. Winger’s version of events. Lydia testified that Pablo spoke some English to Dr. Winger during the examination. Lydia testified she was fluent in both English and Spanish. (Dr. Winger was not aware of this fact until Lydia Saucedo’s deposition was taken prior to trial.) She said that the children did not say anything during the examination and that no one told Dr. Winger that Pablo had vomited that morning. Lydia claimed that Dr. Winger’s notations on Pablo’s record that there was no history of high blood pressure, no history of chest pains, no blood in vomitus, and no blood in stools had no basis in fact because these subjects were not discussed during the examination. She stated the notation about the children being sick was totally false because the children had not been sick and the doctor had not asked the children whether they had been sick. Lydia stated that Dr. Winger never listened to Pablo’s heart or lungs during the examination nor did he physically touch her husband.
Near the end of the trial, Pablo’s now 11-year-old son, Eric Saucedo, was called to the stand by the plaintiff to demonstrate that Dr. Winger did not obtain any medical history from Pablo through Eric as an interpreter because the boy, who was 8 years old at the time of the examination, could not speak Spanish. Eric testified:
“Q. Eric, do you speak Spanish at all?
“A. No.
“Q. Do you understand Spanish?
“A. No.
“Q. Do you ever talk to your mom in Spanish?
“A. No.
“Q. Can you?
“A. No.
“Q. Eric, do you remember back the day that your dad died, having gone to the doctor with your mom and your dad and your little brother?
“A. No, I don’t remember.
“Q. You don’t remember being at the doctor’s office?
“A. No.”
After the evidence had been presented and the jury instructed, the jury was given a series of special questions to answer which included:
'T. Did the procedures used by Dr. Winger in making his diagnosis and rendering care and treatment to Pablo Saucedo fall below the standard of care required of a general family practitioner in Hugoton, Kansas, or communities of similar size, under the circumstances existing?”
“2. Did Dr. Winger’s diagnosis and treatment of Pablo Saucedo, or the lack thereof, cause or substantially contribute to Pablo Saucedo’s death or lessen his chances for survival?”
The jury answered the first question “Yes” and the second question “No.” The trial judge entered judgment for Dr. Winger and discharged the jury.
After the trial, Lydia submitted to the trial judge affidavits of three jurors which admitted misconduct and a motion to recall the jury. All three affidavits indicate that while the jury was deliberating, a juror, Alan Bultman, informed the jury that his daughter attended school with Eric Saucedo. According to the affidavits, Bultman told the jury that after Eric Saucedo had testified Bultman asked his daughter if Eric could speak Spanish and that his daughter told him that Eric could speak Spanish and did so regularly. Two of the affidavits also allege that during deliberations an unnamed juror stated that Jesse Rodriquez, Pablo’s uncle, was a cocaine dealer and that it was possible that Pablo died of a cocaine overdose. All three affidavits indicate that a majority of the jury initially voted “yes” to both of the questions submitted.
The judge agreed that the statements of juror Bultman constituted jury misconduct, but found that the juror’s misconduct was limited to whether Dr. Winger was negligent in his examination of Pablo and did not substantially affect the jury’s determination as to the cause of Pablo’s death. As to the juror’s comment that Jesse Rodriquez was a cocaine dealer, the trial judge stated it was “the sort of a ‘wild comment’ that is part of the mental processes of hammering out a jury verdict” and could not be seriously considered as affecting the judgment of the jury; therefore, it was not grounds for a new trial. The judge denied Lydia’s motion to recall the jury and her request for a new trial. Plaintiff appealed.
Both parties cite prior Kansas cases in support of their arguments as to whether under these facts the misconduct so prejudiced the jury that the plaintiff was entitled to a new trial. Lydia relied on State v. Stuart, 129 Kan. 588, 283 Pac. 630 (1930), and Kincaid v. Wade, 196 Kan. 174, 410 P.2d 333 (1966). In Stuart, after the defendant had been convicted of possession of intoxicating liquors, one of the jurors testified at the hearing on the defendant’s motion for a new trial that as soon as the jury retired he asked his fellow jurors if in considering the case it would be all right to state his personal knowledge of the witnesses. Another juror told him that it would be all right to do so. He then told the other members of the jury that he was personally acquainted with the two witnesses who had testified on behalf of defendant, that they were heavy drinkers and it was just a case of one of the bunch trying to protect another, and that they were trying to help the defendant. When the jury was recalled by the judge, all jurors admitted that the juror had made the statements during their deliberations and the statements were repeatedly discussed during the deliberations.
The Stuart court noted it is the duty of the jury to make its findings upon evidence regularly introduced in the trial and not upon the personal knowledge of jurors. A statement of fact by a juror to his fellow jurors of his personal knowledge of facts involved in the case is misconduct, but not every act of misconduct requires the granting of a new trial. If the misconduct is trivial, or not such as to influence the jury, the misconduct will not vitiate a verdict. But if facts outside of the evidence are brought before the jury based on the personal knowledge of a juror and those facts are likely to have influenced the minds of other jurors, the verdict should be set aside. (State v. Duncan, 70 Kan. 883, 78 Pac. 427 [1904]; State v. Lowe, 67 Kan. 183, 72 Pac. 524 [1903]; State v. Burton, 65 Kan. 704, 70 Pac. 640 [1902]; State v. McCormick, 57 Kan. 440, 46 Pac. 777 [1896].) The Stuart court stated it was obvious that the extraneous statements brought before the jury were prejudicial in character and naturally would have an effect upon the minds of the jury. It determined not only that the misconduct showed prejudice by the juror, but also that the juror’s statements were of a kind that were likely to influence other jurors, and the State did not attempt to show that defendant did not suffer prejudice by the misconduct. The Stuart court held that this type of misconduct required reversal of the conviction.
In Kincaid, plaintiff filed an action to recover damages for injuries he received in an automobile collision. The jury returned a verdict for only $300 more than the plaintiff claimed in actual damages. Kincaid appealed, claiming the verdict was so inadequate it . indicated passion and prejudice because of jury misconduct. At the hearing on Kincaid’s motion for a new trial, it was revealed that three jurors followed the defendant in an automobile to observe her driving habits, which were at issue in the case.
The Kincaid court noted it was misconduct for members of a jury to follow an automobile being driven by one of the parties for the purpose of observing the driver’s habits where the information obtained is then used in the jury’s deliberations and failure to display a stop or turn signal was a material factual issue in the case. It observed a juror may not be questioned or evidence received, for the purpose of challenging a verdict, as to what influenced the mental process of the jurors or concerning the mental process by which a verdict was reached. The Kincaid court concluded that, in challenging a verdict for misconduct of the jury, a juror may be questioned or evidence received as to physical facts, conditions, or occurrences, either within or without the jury room, which were material to the issues being determined. The Kincaid court held the conduct of the jury was prejudicial and granted a new trial.
Dr. Winger relies on State v. Arney, 218 Kan. 369, 544 P.2d 334 (1975), and State v. Fenton, 228 Kan. 658, 620 P.2d 813 (1980). In Amey, after the defendant had been convicted of two counts of kidnapping, one count of aggravated battery, and one count of murder, the defendant learned that a juror had driven his car to the scene of the crime, investigated the area, timed the drive from the crime scene to the defendant’s home, and. reported the results to his fellow jurors. The defendant did not question the sufficiency of the evidence but requested that the verdict be set aside due to the misconduct of the jury. Without recalling the jury, the trial judge ruled that under the facts this misconduct did not constitute sufficient cause for a new trial.
On appeal, the Amey court noted it was not disputed that, such conduct on the part of the juror was wrongful and in violation of K.S.A. 22-3413, thereby subjecting the errant juror to the possibility of contempt proceedings. The question for the trial, court to determine on the motion for new trial was whether the juror’s misconduct necessitated a new trial. Defendant argued the juror’s personal investigation permitted the jury to consider matters which were not in evidence and thereby deprived him of his constitutional right to confront the witnesses against him, as provided by the Sixth Amendment to the United States Constitution and § 10 of the Bill of Rights of the Kansas Constitution.
The Amey court agreed that a criminal defendant is denied his constitutional right to confront the witnesses against him when a juror conducts an independent investigation of a material issue of fact and reports the results thereof to the jury during its deliberations. The Amey court observed that the majority of the states which have considered the question of the unauthorized view of the scene of the crime by a juror have followed the rule that such conduct is not to be considered as grounds for reversal in the absence of a showing that the material rights of the accused were prejudiced thereby. It observed that even if an accused is denied his constitutional right to confront the witnesses against him when a juror conducts an independent investigation of a material issue of fact and reports the results thereof to the jury during its deliberations, it will not be grounds for reversal if the juror’s misconduct is harmless beyond a reasonable doubt. Although Amey acknowledged that this was clearly misconduct, it noted the defendant had not challenged the sufficiency of the evidence and that the trial court in considering the evidence in support of the motion for new trial was aware that the evidence establishing the guilt of the defendant was substantial. In addition to eyewitness identifications by three victims, there was persuasive' circumstantial evidence implicating defendant. The matter improperly investigated by the juror and discussed with the other members of the jury did not relate to a material issue in dispute. The Amey court refused to reverse the conviction because there was no evidence that the defendant was prejudiced by the jury’s misconduct.
In Fenton, 228 Kan. 658, several days after the defendant had been convicted of first-degree murder, a juror told the defendant that three of the jurors told the other members of the jury they had heard a threat that Fenton would kill the jurors if he was convicted. The defendant filed a motion for a new trial, claiming jury misconduct prevented him from receiving a fair trial. The trial court held an evidentiary hearing to determine the nature and source of the threat and whether the threat had a prejudicial effect on the defendant’s rights. At the evidentiary hearing three of the jurors testified that they had heard about the threat prior to the jury’s deliberation. The remaining nine jurors heard about the threat while still in the jury room but after the verdict had been determined. When questioned by the trial judge, each of the jurors stated the rumor did not affect his or her decision. The trial judge denied Fenton’s motion for a new trial.
The Fenton court noted that in recent years this court has consistently adhered to the rule in both civil and criminal cases that juror misconduct is not grounds for reversal, new trial, or mistrial unless it is shown to have substantially prejudiced a party’s rights. The party claiming prejudice has the burden of proof. It stated that juror misconduct is a broad label which has been used to describe such matters as communications with jurors from others, the unauthorized viewing of premises, or reading of newspaper articles. The Fenton court concluded that under the facts presented there the trial court properly questioned the jurors about the effect of an alleged threat upon their decision. It observed that the threat was not a matter which had been placed in evidence or a matter inherent in the verdict itself. The court noted that K.S.A. 60-444 permits inquiry into extraneous matters which may have a material bearing upon the validity of the verdict. The trial court’s conclusion that the rights of the defendant were not substantially prejudiced by the jurors’ misconduct was upheld on appeal.
At trial, Lydia had three major hurdles to overcome in proving her medical malpractice claim. First, she needed to prove that Dr. Winger’s treatment of Pablo fell below the required standard of care, i.e., that Dr. Winger was negligent. Second, she had to prove the doctor’s negligence caused or substantially contributed to Pablo’s death. Third, she had to prove that she sustained damages because of Pablo’s death. The jury found that although Dr. Winger’s diagnosis and treatment of Pablo fell below the required standard of care, Dr. Winger’s negligent diagnosis and treatment of Pablo did not cause or substantially contribute to Pablo’s death or lessen his chances of survival.
We agree with the trial judge and the Court of Appeals that juror Bultman’s communication to the jury about his daughter’s statement as to Eric Saucedo’s Spanish-speaking abilities and the unknown juror’s statement that Pablo’s uncle was a cocaine dealer and it was possible that Pablo died of a cocaine overdose constitute juror misconduct. The question is not, as stated in the cases discussed by the parties, whether this misconduct substantially prejudiced the plaintiff’s rights to a fair trial but whether the rights of the plaintiff were substantially affected by misconduct of the jury. See K.S.A. 60-259(a) First.
As to the first question submitted to the jury, the Court of Appeals noted that the jury concluded Dr. Winger did not conduct an adequate examination, i. e., Dr. Winger’s conduct fell below the required standard of care. The Court of Appeals concluded that the jury’s misconduct as to Eric’s ability to speak Spanish had not influenced the jury’s determination of the ultimate cause of Pablo’s death.
The Court of Appeals then considered whether the unnamed juror’s statement that Jesse Rodriquez was a cocaine dealer and the juror’s conclusion that since Pablo and Rodriquez were together two days before Pablo’s death, Pablo’s death might have been caused by a cocaine overdose improperly influenced the jury’s finding that the doctor’s treatment of Pablo did not cause or substantially contribute to Pablo’s death. It noted the district court’s ruling that, human nature being what it is, if every wild expression of opinion made in a jury room in the throes of hammering out a verdict could be made the basis for retrial, jury verdicts could seldom be preserved. The Court of Appeals stated such inquiries into the validity of jury verdicts, based on mental processes of the jurors, are foreclosed in Kansas, formerly by case law and now by statute. Brown v. Hardin, 197 Kan. 517, 523, 419 P.2d 912 (1966). The Court of Appeals concluded the district court did not abuse its discretion in denying the motion for new trial or recall of the jury.
We agree with the Court of Appeals’ statement that upon an inquiry as to the validity of a verdict or an indictment no evidence can be received to show the effect of any statement, conduct, event, or condition upon the mind of a juror as influencing him or her to assent to or dissent from the verdict or indictment or concerning the mental processes by which it was determined. K.S.A. 60-441. A verdict may not be impeached by (1) questions as to a jurors views or conclusions, or (2) questions as to the reasons for those views or as to factors used in determining those conclusions, or (3) questions involving what influences those views or involving factors which influence the mental process in reaching such conclusions. The mental process of a juror in reaching a verdict or the factors which influence the mental process cannot be inquired into for the purpose of impeaching a verdict. Public policy forbids the questioning of a juror on these matters for a very obvious reason, i.e., there is no possible way to test the truth or veracity of the answers. Kincaid v. Wade, 196 Kan. at 178.
The Sixth Amendment to the United States Constitution sets forth an accused’s right to a fair trial in a criminal action. Section 5 of the Kansas Constitution Bill of Rights guarantees the common-law right to a jury trial in civil actions. Implicit in the constitutional right to a civil trial is the right to a fair trial. The statutory prohibition of K.S.A. 60-441 against impeachment of a jury verdict does not apply when a party claims that his or her constitutional right to a trial by jury pursuant to § 5 of the Kansas Constitution Bill of Rights has been violated by jury misconduct. See K.S.A. 60-444. Where the rights of a party are substantially affected by the misconduct of a juror, there is an opposing matter of public policy to be considered and a new trial may be granted. See K.S.A. 60-259(a). Improper conduct on the part of a juror is charged to the entire panel, as the jurors operate as a unit, and public policy demands that misconduct be discouraged and, insofar as possible, prohibited. We have found it advisable to permit inquiry into a juror’s misconduct which comes to the attention of other members of the panel and may be verified or denied. City of Ottawa v. Heathman, 236 Kan. 417, 420, 690 P.2d 1375 (1984). The burden is on the party seeking an order recalling the jurors to show the necessity for the order.
The granting of a new trial or recalling the jury to answer for misconduct is within the sound discretion of the trial court. K.S.A. 60-259. See State v. Macomber, 244 Kan. 396, 407, 769 P.2d 621 (1989).
“Discretion is the freedom to act according to one’s judgment; and judicial discretion implies the liberty to act as a judge should act, applying the rules and analogies of the law to the facts found after weighing and examining the evidence — to act upon fair judicial consideration, and not arbitrarily. When so acting in a matter committed to the discretion of the court by the law the judgment ought not to be overruled by a reviewing court, for to do so would be to deny the right to exercise the discretion given by the law itself.” State v. Foren, 78 Kan. 654, 658-59, 97 Pac. 791 (1908).
The abuse of discretion “ ‘is really a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence.’ (Murray v. Buell and others, 74 Wis. 14, 19, 41 N. W. 1010 [1889].)” Deeds v. Deeds, 108 Kan. 770, 774, 196 Pac. 1109 (1921).
“ ‘It is regrettable, though a fact, that the term “judicial discretion” has become so deeply embedded in legal nomenclature that any attempt to dislodge it would be futile. It is an anonyme to be endured and dealt with and explained in the unnumbered instances where, on account of merely an unhappy phraseology definitive of certain judicial powers administrative in their character, both courts and practitioners have been led into paths of rather uncertain reasoning. There is in reality seldom a pure strict sense that implies a power of decision in every phase, uncontrolled and uncontrollable by any supervisory authority. And while appellate reports are teeming with expressions to the effect that certain enumerated matters were in the discretion of the trial court, and therefore, would not be reviewed or disturbed, yet what is in fact meant is that such matters have been reviewed and that the decision of the trial court was right under the particular circumstances and consequently the decision would be permitted to stand.’ ” Overton, The Meaning of Judicial Discretion, in Judicial Discretion 3, 5 (Smithbum 1991).
“Legal discretion is a readily comprehended concept. It means nothing more than the application of statutes and principles to all of the facts of a case.” Shopiro v. Shopiro, 153 P.2d 62, 66 (Cal. App. 1944). “Discretion in performing an act arises when it may be performed in [more than one way, any] of which would be lawful, and where it is left to the will or judgment of the performer to determine in which way it shall be performed.” Texas Indemnity Ins. Co. v. Arant, 171 S.W.2d 915, 919 n.1 (Tex. Civ. App. 1943). A decision which is contrary to the evidence or the law is sometimes referred to as an abuse of discretion, but it is nothing more than an erroneous decision, or a judgment rendered in violation of law. Griffin v. State, 12 Ga. App. 615, 621, 77 S.E. 1080 (1913).
The trial judge has unfettered discretion when the ruling is not subject to appellate review. “In this situation, the trial judge is much like the fictional king of common law who ‘can do no wrong.’ ” Wallach, Judicial Discretion: How Much, in Judicial Discretion 8, 9. An example is the judge’s right to grant or to refuse to grant probation where there is no statutory presumption for or against probation.
A high degree of appellate deference is allowed a trial judge’s exercise of discretion in assessing the texture and feel of the trial, the credibility of witnesses, and the perceived impact of an allegedly prejudicial event. In these circumstances, appellate decisions often recognize a presumption of validity in the exercise of discretion because of the superior vantage point of the trial judge. The judge’s decision will be affirmed even though the appellate tribunal might otherwise be inclined to take a precisely opposite view of the matter. An example of this presumptive validity of the trial judge’s ruling includes orders sustaining a jury verdict and denying motions for a mistrial in a civil case particularly where the unsuccessful challenger relies upon the alleged insufficiency of the evidence to sustain the jury verdict. Another example is the trial judge’s conclusion that the misconduct of counsel, or some other untoward event in the course of the trial, was not sufficiently grave to disturb the verdict. A third example is the judge’s granting or denying adjournments and/or continuances.
“[T]he amount and degree of judicial discretion will vary depending on the character of the question presented for determination. In the vast majority of non-discretionary instances, the judge’s choice must be made between competing rules of law, and once the case is properly categorized, the result is ineluctable. Less apparent perhaps is the proposition that once the occasion for a discretionary ruling appears, the amount and character of the discretion will vary widely. Yet that variance in the quantum of discretion is subject to some degree of systematic assessment.” Wallach, at 12.
If a constitutional or a statutory right has been violated, the trial judge’s use of discretion is limited. Under these circumstances there is a greater need for articulation by the trial judge of the reasons for his “discretionary” decision. Discretion must be exercised, not in opposition to, but in accordance with, established principles of law. It is not an arbitrary power. In its practical application in this state, judicial discretion is substantially synonymous with judicial power.
An exercise of discretion which results in an error of constitutional magnitude is serious and may not be held to be harmless unless the court is willing to declare a belief that it was harmless beyond a reasonable doubt. Thus, before a judge may declare the error harmless, the judge must be able to declare beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial. State v. Bowser, 252 Kan. 582, Syl. ¶ 2, 847 P.2d 1231 (1993). See State v. White, 246 Kan. 28, 37, 785 P.2d 950, aff'd as modified 246 Kan. 393, 789 P.2d 1175 (1990).
Here, the jurors were instructed not to discuss the case with persons who were not members of the jury and to consider only the evidence introduced during their deliberations. The jurors violated their oath and discussed statements that were material to the issue which were not made under oath and subject to cross-examination. Because the jurors’ misconduct was not discovered until after the jury had rendered a verdict, the trial judge did not have the opportunity to question the jurors about their misconduct and give additional instructions protecting the affected party’s right to a trial by jury. Where a juror’s misconduct relates to a material issue, the only way for a trial court to determine if the misconduct improperly influenced the jury’s verdict is to recall the jury and inquire.
A review of the Kansas cases cited indicates the statutory prohibition against receipt of evidence to impeach a jury verdict by showing the mental process by which the verdict was determined does not apply where a party claims the constitutional right to a trial by jury has been violated by jury misconduct which has a substantial effect on the rights of that party. Where a party alleges jury misconduct, the trial judge is required to recall the jury if the judge cannot determine that the evidence supporting the other party is substantial and that the jury misconduct did not relate to a material issue in dispute. When the jury is recalled, a juror may be questioned or evidence received as to physical facts, conditions, or occurrences of a juror’s misconduct, either within or without the jury room, which were material to the issues being determined.
We note that counsel has cited no cases where there were two separate acts of misconduct by jury members. In addition, the Court of Appeals in its statement of facts failed to consider that (1) the doctor first stated he obtained information from the young daughter, (2) the doctor was unaware that Pablo’s wife was fluent in English and Spanish until her deposition was taken prior to trial, (3) the doctor made the notations on Pablo’s chart after he learned of Pablo’s death, and, (4) all three juror affidavits indicated that a majority of the jury initially voted “yes” to both questions submitted by the judge. We have reviewed the record and the Court of Appeals’ unpublished opinion and conclude that plaintiff has shown that her right to a fair trial was substantially affected by the jury misconduct.
A party is denied the right to a fair trial when a juror introduces evidence on material issues of fact to the jury during its deliberations. Plaintiff did not receive a fair trial because, under the facts of this case, the two incidents of jury misconduct introduced extraneous evidence during jury deliberations which had a substantial effect upon the issues and the validity of the verdict. The trial judge’s refusal to recall the jury and determine whether the extraneous evidence substantially affected the jury’s verdict was error which requires that plaintiff receive a new trial.
Reversed and remanded for a new trial.
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The opinion of the court was delivered by
Allegrucci, J.:
Alan W. Kingsley appeals from his jury convictions of first-degree murder, K.S.A. 1992 Supp. 21-3401(a); aggravated robbery, K.S.A. 21-3427; aggravated arson, K.S.A. 21-3719; and forgery, K-S.A. 21-3710(b). He was sentenced to life without parole for 40 years, 15 years to life, 15 years to life, and 1 to 5 years, respectively. The life sentence is to run consecutively to one term of 15 years to life. The other term of 15 years to life is to run concurrently with the l-to-5-year term, and the concurrent terms are to run consecutively to the others.
The State’s theory of the murder was that Kingsley needed money to leave Wichita. He gained entry into Donna Baker’s house on the pretense of paying the next month’s rent. He knocked her unconscious, stabbed her five times in the chest, took her into the bedroom, and slit her throat. He took valuable items from the house, set fire to a pile of clothes in the bedroom, closed the bedroom door, and left the house;
The State’s evidence showed the following: Kingsley and his wife Sherri had moved from Florida to Kansas “around Easter time.” Easter was March 31, 1991. The move wa.s prompted by outstanding warrants for both of them in Florida. They arrived in Leon, Kansas, on the Tuesday after Easter, April 2, and stayed with Kingsley’s grandmother.
Donna Baker owned some apartments in Wichita. On April 7 she leased an apartment to the Kingsleys. Alan Kingsley used the name Duane Kingsley in the lease.
For a few days Kingsley tried to sell ersatz designer perfumes door to door. Then on Friday, April 19, Kingsley got a job at an automobile detail shop. There he used the name Duane Maxwell.
While Kingsley was at work on Monday, April 22, Sherri received a telephone call from a Butler County law enforcement officer who asked about Kingsley’s whereabouts, birthdate, and social security number. Sherri contacted Kingsley at the detail shop, and he returned to the apartment about mid-morning.
During that day, in preparation for leaving Wichita, they checked rental prices for U-Haul trucks. They went to several pawn shops but could not get as much money as they wanted for their items. They bought a BB gun that looked like a real gun, which Kingsley intended to use for robbing convenience stores.
About 3:30 p.m. they returned to the apartment, and Kingsley called Donna Baker. Sherri overheard him speak about making arrangements to visit Baker that evening or the next day to pay the next month’s rent. Kingsley called his grandparents in Elgin, Kansas, to see if he could pick up the title to his motorcycle. They drove to Elgin, approximately two hours from Wichita, stayed about 30 minutes, and returned.
When Sherri fell asleep that night, Kingsley was still up. She awakened at about 2:00 or 3:00 a.m. Kingsley came into the bedroom wearing a cap and jacket and placed wallets, checkbooks, and jewelry on the bed. Sherri testified that Kingsley told her that he had just killed and robbed Donna Baker.
Later that morning, April 23, Kingsley went to the detail shop to get his check for the work he had done. That afternoon Kingsley and a woman cashed a $500 check made payable to Sherri Olin on the account of Donna Baker. Sherri’s maiden name was Olin, and her identification still bore that name. A handwriting expert testified that Sherri endorsed the check but did not write on the face of the check.
Also on April 23, Donna Baker’s sister went to Baker’s house and saw that the bedroom window was black with soot. Upon entering the house she saw blood and broken items on the floor. She summoned the police.
The first police officer to arrive smelled smoke immediately upon entering the house. He saw blood and other signs of a struggle.
One of the bedroom doors was closed; it was smoke-smudged across the top and down one side. The door was warm to the officer’s touch. He pushed it open, and smoke billowed out. What appeared to have been clothing smoldered on a cabinet, and the nearby television was smoldering. As the smoke cleared, he saw Donna Baker’s body.
A forensic pathologist testified that various injuries to Donna Baker’s hands, face, and head were consistent with her putting up a fight and being hit on the head. She had been stabbed five times in the chest. Any or all of the stab wounds could have caused her death. He believed that she had been stabbed while she was lying down in the living room. In addition, her throat had been cut, and he believed that her throat wound was inflicted in the bedroom either as she was dying or after she was dead.
The fire in the bedroom had been intentionally set. The fire burned primarily in a pile of clothing on a desk in the bedroom. The oxygen supply to the fire was limited by the bedroom door being closed, and the fire smoldered in place instead of spreading to the rest of the house.
Kingsley testified that he and Sherri went to Donna Baker’s house together. They intended to knock her out, tie her up, and take her money. Once they were in the house, Kingsley hit Donna Baker on the head with a wine cooler until she was unconscious. Then he went to the bathroom. When he came out of the bathroom 10 or 15 minutes later, he saw Sherri kneeling over Donna Baker with a knife in her hand. There was blood on Donna Baker’s throat. Sherri tried unsuccessfully to drag the body; Kingsley picked the body up by the shoulders and dragged it into the bedroom. Then the couple picked through Donna Baker’s belongings.
Kingsley first claims that the district court erred in failing to appoint counsel other than trial counsel to represent him at the hearing on his untimely pro se motion for new trial, which alleged ineffective assistance of counsel. Kingsley’s trial was completed on August 27, 1991; the verdict was filed on September 4. On September 6 trial counsel filed a motion for new trial on Kingsley’s behalf. On October 8 Kingsley filed a pro se pleading entitled, “Motion for New Trial,” in which he complained of trial counsel’s ineffective representation.
On appeal Kingsley does not argue that his trial counsel was ineffective. Instead, he argues that the district court should have appointed other counsel to represent him at the hearing on his pro se motion. He relies on State v. Andrews, 228 Kan. 368, 614 P.2d 447 (1980).
K.S.A. 22-3501 governs motions for new trial in criminal cases. If the basis for the request for new trial is newly discovered evidence, it must be made within two years of judgment. “A motion for a new trial based on any other grounds shall be made within 10 days after the verdict.” With regard to entitlement to counsel on a motion for new trial, this court has stated:
“The customary motion for a new trial which must be filed within ten days under K.S.A. 22-3501 and which is principally for the purpose of calling to the attention of the trial court alleged trial errors is a stage of the criminal proceedings within the purview of K.S.A. 1979 Supp. 22-4503, and counsel must be provided to an indigent defendant for the purposes of such a motion.” State v. Andrews, 228 Kan. 368, Syl. ¶ 3.
A timely motion for new trial was filed on Kingsley’s behalf by trial counsel. Kingsley’s pro se motion alleged that trial counsel failed to call witnesses on his behalf and had been bribed by Sherri’s parents. It was not based on newly discovered evidence, and it was not filed within the 10-day period allowed for motions for new trial.
Kingsley asserts that, despite the apparent conflict, trial counsel represented him at the hearing on his pro se motion. The record does not support his assertion. On October 9, 1991, the district court first heard arguments on Kingsley’s motion for new trial and then on his pro se motion. Before taking up the pro se motion, the court noted that the motion contained complaints against trial counsel and asked whether she wished to be heard on the motion. Trial counsel stated that she would continue to represent Kingsley but deferred to him to argue his pro se motion. The court asked Kingsley whether that was the way he wished to proceed, and he answered that it was. Kingsley then made a fairly lengthy presentation to the court and even rebutted the State’s argument.
Kingsley’s argument consisted primarily of grievances against trial counsel. On appeal, he contends that it was trial counsel’s duty to request permission to withdraw because his success on the motion would have been her downfall.
The State suggests that Kingsley’s pro se motion is “more properly viewed as a post conviction motion.” In Andrews, which involved successive post-conviction motions based on newly discovered evidence, the court found no statutory requirement that counsel be appointed on each post-trial motion. 228 Kan. at 377. The court also concluded that there was no federal constitutional requirement for appointment of counsel at every post-trial proceeding. See 228 Kan. at 377. The court held, therefore, that it was a matter within the sound discretion of the district court. 228 Kan. at 378.
The State further argues that Kingsley was not entitled to appointment of counsel on his motion because there were no “substantial issues” raised. The State argues that Kingsley claimed trial counsel should have called witnesses who were, at best, of questionable value and that she should have pushed for the use and admission of polygraph tests, sodium pentothal, and hypnosis. According to the State, these would have been meritless measures. The State further argues that Kingsley’s claims are groundless. For example, based on his “gut feelings,” he claimed that trial counsel had been bribed by Sherri’s parents.
We find the State’s argument has merit. K.S.A. 22-4503(a) provides that a “defendant charged . . . with any felony is entitled to have the assistance of counsel at every stage of the proceedings against such defendant.” Entitlement eases into discretion following an appeal. K.S.A. 22-4503 governs pretrial and trial proceedings. Under K.S.A. 22-4505, an indigent defendant also is entitled to appointment of counsel on appeal. K.S.A. 22-4506 governs entitlement to counsel of persons in custody after felony convictions. It provides in pertinent part: “(b) If the court finds that the petition or motion presents substantial questions of law . . . the court shall appoint counsel ... to assist such person.”
Thus, there is no statutory requirement for “appointment of counsel at each and every post-trial motion . . . and such a decision rests within the sound discretion of the trial court.” Andrews, 228 Kan. at 377. In post-conviction proceedings, there also is some latitude in the constitutional requirement that a defendant be represented at critical stages. See 228 Kan. at 377-78.
In State v. Pierce, 246 Kan. 183, 787 P.2d 1189 (1990), this court concluded that defendant was neither constitutionally nor statutorily entitled to be represented by counsel on his pro se post-appeal motion to modify his sentence pursuant to K.S.A. 21-4603(3). This court counseled that the trial court should scrutinize such motions for signs of “a realistic basis for a reduction of sentence.” 246 Kan. at 198. If it appears that the motion may have some merit,
“then the trial court in the exercise of its discretion should set the matter for hearing and appoint counsel to represent the defendant. If there is to be a hearing at which the State will be represented, then due process of law does require that the defendant be represented unless the defendant waives the right to counsel. See State v. Buckland, 245 Kan. 132, 142, 777 P.2d 745 (1989).” 246 Kan. at 198-99.
In the present case, the pro se motion defies categorization. It was not made in a timely manner as a motion for new trial. It preceded appeal, however, and trial counsel still was representing Kingsley. He was not advised or questioned about waiving his right to counsel. He was present at the hearing on his pro se motion, but he was not represented by counsel who advocated his position. The State was represented at the hearing. The trial court’s ruling on the pro se motion was on its substance, and no mention was made of the motion being untimely. The trial court did note that there was some irregularity in the filing but passed over it to reach the merits.
In the circumstances of this case, Kingsley did not have an absolute right to appointment of counsel other than trial counsel to represent him on his pro se motion. First, the motion was untimely. Second, his motion does not contain a “realistic basis” for a new trial. Third, on appeal he neither argues that trial counsel was ineffective nor raises any of the issues in his pro se motion.
Kingsley next argues that the admission of certain exhibits was repetitious and unduly prejudicial. It appears that the exhibits of which he complains are Exhibit 50, a photograph of Baker’s pubic hair and some burnt matches; Exhibit 57, the bloody bra and shirt of the victim; and Exhibits 58-67, autopsy photographs.
Also mentioned in the argument are Exhibit 27, a videotape of the crime scene, and Exhibit 56, a photograph of the victim’s body at the crime scene. They seem to be included in the discussion to make the point that the other exhibits are repetitious.
Photographs. Trial counsel filed a motion in limine requesting that the district court review the State’s photographs for the purpose of determining whether they were cumulative and more prejudicial than probative. The motion was denied. The district court stated that “the objection of cumulative is one which can be made at trial after review.”
This court requires that “[w]hen a motion in limine is denied, the moving party must object to the evidence at trial to preserve the issue for appeal.” State v. Nunn, 244 Kan. 207, Syl. ¶ 5, 768 P.2d 268 (1989).
During the pretrial conference, defense counsel and the prosecutor had the following exchange:
“[Defense counsel]: I would like to bring up one matter that I always find kind of a stumbling block, and that is I’ve made some motions in limine, I’ve made some motions to suppress. It’s my understanding that I cannot rely on having made a pretrial motion. I have to object at the time that it’s introduced. And I often find that very awkward; obviously not always the wisest thing to do in front of a jury. What I would like to do is make the same agreement with the State that I have made in the past, and that is that upon appeal, the issue of a contemporary — excuse me — yes, contemporaneous objection will not be used against those issues which have been litigated by pretrial motions.
“[Prosecutor]: That’s correct. [Defense counsel] and I have had that agreement in the past, and I find it to be acceptable.”
The court’s only comment was, “All right. Good.”
On appeal Kingsley asserts that defense counsel preserved the issue of the admissibility of the photographs for appellate review and makes reference to the record of the agreement reached during pretrial conference. The agreement, made on the record and with the assent of the district court judge, seems to be analogous to a continuing objection to the introduction of certain evidence. Its admission, therefore, lies within the scope of this court’s review.
Consideration of the matter, however, does not end there. On appeal the State takes the position that this court may not review the admission of the autopsy photographs, with the exception of Exhibit 59. It urges that the following discourse superseded the agreement:
"[Prosecutor]: Your Honor, I move for the admission of State’s Exhibits Nos. 58 through 67 [autopsy photographs]. I tender them to counsel for inspection.
“[Defense counsel]: My position remains as previously discussed. I would object to [Exhibit] 59 being admitted as cumulative.
“THE COURT: Would counsel approach, please.
(There was a discussion at the bench between Court and counsel out of the hearing of the jury and the reporter.)
“THE COURT: Objection overruled. Exhibits 58 through 67 will be admitted.”
Without knowing the content of the unrecorded discussion, it is difficult at best to form an idea of what exactly was going on. If defense counsel had stopped after saying that her position was unchanged, there would be no question that the pretrial agreement covered this offer of evidence. Defense counsel, on the one hand, reiterated her previous position but, on the other, singles out Exhibit 59 for objection.
With regard to Exhibit 50, the State points out that defense counsel expressly stated that she had no objection. The State’s position is that this court’s review of its admission, therefore, is barred. The State, however, points to nothing in the record which indicates that the pretrial agreement was no longer in effect at the time the State moved for the admission of Exhibit 50. There was nothing in the agreement which required a reference to it at the time objectionable evidence was offered. The State is therefore barred by the pretrial agreement from raising the contemporaneous objection rule in this appeal.
In any event, it is well established that photographs such as these autopsy photographs and the photograph of burnt matches in Donna Baker’s pubic hair are admissible. The rule is stated in State v. Shehan, 242 Kan. 127, Syl. ¶ 8, 744 P.2d 824 (1987):
“The law is well settled in this state that in a crime of violence which results in death, photographs which serve to illustrate the nature and extent of the wounds inflicted are admissible when they corroborate the testimony of witnesses or are relevant to the testimony of a pathologist as to the cause of death, even though they may appear gruesome.”
Bra and Shirt. Exhibit 57 was described as being a sheet of posterboard approximately three feet by four feet with Donna Baker’s bloody turtleneck or cowlneck shirt and bra attached to it. Defense counsel objected on the ground that the display was far more inflammatory than probative. The State gave two reasons why it was probative. First, it corroborated some testimony as to what the victim had been wearing. Second, it tended to show the defendant’s premeditation. In this respect the State argued that thé display showed that there were no knife holes in the shirt or bra where the victim’s stab wounds were located in her chest. It was the State’s contention that the defendant pulled the victim’s bra and shirt up from her chest area, stabbed her five times, pulled the shirt back down, and then slit her throat.
K.S.A. 60-445 provides that “the judge may in his or her discretion exclude evidence if he or she finds that its probative value is substantially outweighed by the risk that its admission will unfairly and harmfully surprise a party who has not had reasonable opportunity to anticipate that such evidence would be offered.” Gard notes that, despite the wording of the statute, the element of surprise does not get factored into the equation. Comments, 1 Gard’s Kansas C. Civ. Proc. 2d Annot. § 60-445 (1979). Here, the district court judge weighed the prejudice potential of the evidence against its probative value and found the latter to outweigh the former.
By their very existence, exhibits in a murder trial are gruesome and unsettling. The exhibits here are no exception. The autopsy photographs were referred to during the pathologist’s testimony. The photograph of the pubic region showed an attempt to burn the body. The clothing display showed that the clothing had to have been moved before the victim was stabbed and moved again before her throat was cut. The videotape and the photograph of the body showed the crime scene.
We find no abuse of the district court’s discretion in the admission of the exhibits.
Kingsley next contends that the wording of the district court’s mid-deliberation instruction on premeditation was erroneous. During their deliberations the jurors sent this question to the judge: “Clarification of meaning of premeditation as to time frame. Before he went to the Baker residence or after he was at the residence.”
Defense counsel asked the district court to respond by suggesting to the jurors that they re-read the previously given Instruction No. 5. The pertinent portion of that instruction states: “Deliberately and with premeditation means to have thought over the matter beforehand.” Defense counsel stated that she wanted the jurors to re-read Instruction No. 5 because “[t]here is no reference to a certain amount of time in that.” What defense counsel asked the court not to do was answer the question, that is, apply the law to the facts of this case and answer “before” or “after.”
The district court judge reasoned that the jury’s uncertainty about the meaning of one of the important instructions warranted a response. The court made the following response: “Premeditation under the law does not require any specific time frame. Please review instruction five.”
The district court judge and defense counsel then had the following exchange:
“THE COURT: Understanding that you object to my responding, [defense counsel], do you have any specific objection to the response I plan to make?
“[Defense counsel]: No. I don’t. I heard it, Judge. I was thinking.
“THE COURT: So you have no objection to that language?
“[Defense counsel]: No.”
On appeal Kingsley argues that the additional instruction erroneously “allowed the jury to conclude that premeditated and deliberation can occur instantaneously with the killing.” Thus, the argument continues, the State was relieved of its burden of showing premeditation.
The State contends that the clearly erroneous standard applies to this court’s review of the substance of the additional instruction because trial counsel’s objection was to the court’s responding and not to the substance of the response. The State relies on State v. Serviora, 206 Kan. 29, 34-35, 476 P.2d 236 (1970). The State’s position is in accord with Serviora.
Irrespective of the standard of review, there is not any error in the district court’s additional instruction. In one of the cases cited by Kingsley on this issue, the following discussion occurs:
“The trial court gave the substance of the standard premeditated murder instruction, PIK Crim. 2d 56.01, to which the court added the following: ‘There is no specific time element required to establish premeditation.’ Also, the trial court gave the following definition from PIK Crim. 2d 56.04(b), which reads in part: ‘Deliberately and with premeditation means to have thought over the matter beforehand.’ ” State v. Patterson, 243 Kan. 262, 268, 755 P.2d 551 (1988).
In concluding that there was no error, this court stated that these instructions on premeditation “correctly state the law.” 243 Kan. at 269. The same instructions were given in the present case. We do not find the mid-deliberation instruction to be erroneous.
Kingsley next argues that the State’s exercise of peremptory challenges to exclude black prospective jurors was a violation of equal protection. In the recent case of State v. Clemons, 251 Kan. 473, 836 P.2d 1147 (1992), this court considered the strike of a white prospective juror who expressed concern over the racial composition of the jury. The following rule was stated:
“A criminal defendant may object to the race-based exclusion of jurors effected through a prosecutor’s use of peremptory challenges regardless of whether the defendant and the excluded juror share the same race. A same-race limitation on a defendant’s right to object violates the substantive guarantees of the Equal Protection Clause. Under those guarantees, a prosecutor is prohibited from using peremptory challenges to exclude otherwise qualified and unbiased persons from the petit jury solely by reason of their race.” 251 Kan. 473, Syl. ¶ 3.
Kingsley is white. There were two black members on the jury panel which heard the case. At the time of trial, Kingsley objected to the exclusion of two black prospective jurors, Betty Ewings and James Dukes. The district court ruled that the reasons given by the prosecutor for striking them were “clear, reasonably specific, neutral, legitimate, and sufficiently related to this case.”
This court has stated that “appellate review of a trial court’s acceptance of the State’s announced reasons for removal of a juror as being racially neutral is on the basis of abuse of discretion.” State v. Sledd, 250 Kan. 15, Syl. ¶ 2, 825 P.2d 114, cert. denied 121 L. Ed. 2d 98 (1992).
In State v. Belnavis, 246 Kan. 309, 312, 787 P.2d 1172 (1990), the analysis to be undertaken by this court is set forth:
“In order to determine whether the State has successfully provided a race-neutral explanation for the peremptory challenges, we must compare the characteristics of the individuals stricken with those not stricken. A prosecutor’s explanation fails to be racially neutral if characteristics of a [minority] person struck are present in white panel members not challenged by the State. U.S. v. Wilson, 853 F.2d 606, 610 (8th Cir. 1988).”
In the present case, the State gave the following reasons for striking Betty Ewings:
“It’s the State’s position, Your Honor, that the reason we’re asking her to be excused is a neutral, nondiscriminatory reason not based in any way on her race. The State has examined the witness and finds that Ms. Ewings is not a long time resident of the State of Kansas, has no vested interest in this community. She has moved from place to place and location to location. She has indicated that her mind would be on her school, although she was candid in her replies to the questions that I asked.
“One of the things of course that concerned me was she doesn’t even know what her husband does for a living at the present time. I am concerned about her ability to listen and comprehend the evidence and to weigh it in a manner that is consistent with the instructions and feel that I’ve articulated reasons that would allow her to be excused without- regard to her race.
“And the Court should note as well that there are several other people on the jury who are black that have not been excused by the State and [I] don’t intend to excuse Mrs. Ogletree, who is black, Ms. Young, who is black, . . .
“I also neglected to put in the additional basis that Ms. Bacon, counsel for the defendant, worked at the Derby school system apparently at a time period in which Miss Ewings might have been in that school system.”
The district court made the following observations:
“The record is not at all clear whether or not Mrs. Ewings was employed with the Derby school system at the same time Ms. Bacon was. That seems doubtful given what Mrs. Ewings said about her tenure with the Derby system and the nuinber of years that Ms. Bacon has been practicing law added into the number of years it would have taken her to get through law school. Nonetheless, there is that potential relationship or potential perceived relationship.
“It of course is not a requirement of a juror that he or she be a life-long member of the community, nor can one necessarily presume that a lifelong member of the community has any particular perceived investment in the community, more particularly any perceived investment in how this case should be decided. But the Court cannot say that that is not something the prosecutor may use as a criteria. And certainly that would be a neutral criteria.
“Perhaps most importantly it is significant to the Court that thus far two panel members have indicated that the approach of the school year and their job duties with respect to the school year would be some cause for concern for them if they were chosen as jurors in this case. Both went on to say that they of course would set that aside and would give their full attention to the issues in this matter. But the attorneys for the State may nonetheless consider that the problem was raised by the prospective jurors in the first place, and the two prospective jurors who have raised that concern have both been excused by the State, one of which being Mr. Skupa who is a white male, the other being Mrs. Ewings, who is a black female.
“The Court is satisfied that the reasons propounded by the State’s attorneys are clear, reasonably specific, neutral, legitimate, and sufficiently related to this case to overcome any of the concerns which the Batson and Hood rules are designed to protect.”
One of the reasons offered by the State for excluding Ewings was her expressed desire to be in school when it started. When asked whether her desire to be in school would prevent her from paying undivided attention to the case, Ewings replied: “No, I— I don’t think so, but I would — like I said before, I would be honest and say I would like to be there, yes, but I would have to put that aside if I were on this case.”
Kingsley contends that the State did not strike a white prospective juror, Willie Jefferson, who expressed a “similar concern.” In fact, Jefferson was much more negative than Ewings about his ability to be a fair and impartial juror due to his mind being on school. Here is the pertinent portion of his voir dire questioning:
“[Prosecutor]: Tell me about school starting. When is that?
“JUROR JEFFERSON: For me it starts tomorrow.
“[Prosecutor]: Oh, goodness.
“JUROR JEFFERSON: We get students on Monday a week from today.
“[Prosecutor]: How would you feel about serving as an alternate on a jury? Now, and you’re — now, I’m going to tell you once again, you’re the expert, so don’t pull any punches. Just go ahead and tell me how you feel.
“JUROR JEFFERSON: I’ve got some concerns about it because problems we’ve got with the district right now, and I’ve talked with my principal about it and they would like for us to really be in the classroom at the time we’re getting ready to start.
“[Prosecutor]: Do you feel the fact that you might be called on to serve as a juror in this case would interfere or your business concerns would interfere with you serving as a juror in this case?
“JUROR JEFFERSON: Good possibility it might because especially if it’s going to carry over into next year — next week.
“[Prosecutor]: Not next year.
“JUROR JEFFERSON: Next week.
“[Prosecutor]: I know you corrected yourself. I — you know, obviously we want individuals to be able to serve on juries, and we are cognizant, aware of commitments, but the test is whether or not you feel that you could give this case your undivided attention. And if you feel you could put aside like some people in this community would like to put aside what’s happening with the school board.
“JUROR JEFFERSON: Yes.
“[Prosecutor]: Then, you know, that’s the question I guess I would have for you. So do you feel that you could be a fair and impartial juror in this case?
“JUROR JEFFERSON: I believe I possibly could. I have some concerns about all the things I have in mind, you know, being honest about it, you know.”
Jefferson was being considered as an alternate juror rather than as a member of the jury panel. He did not serve. The State requested that the district court excuse him for cause based on his preoccupation with starting the school year, the school district being “in flux,” and his connections with some witnesses. The district court denied the request. In his brief, Kingsley asserts that Jefferson “was eventually stricken by the defense,” although the record neither supports nor controverts that assertion.
Neither party brings to the court’s attention any authority on the effect, if any, of the State’s request that Jefferson be excused for cause. In addition, the question may be somewhat confounded by Jefferson’s having been a prospective alternate, rather than regular, juror. Neither party has furnished any authority which touches on the comparison of prospective jurors with alternate or prospective alternate jurors.
The other novel aspect of these circumstances is that the comparison of Ewings with Jefferson is a comparison of stricken with stricken, rather than stricken with non-stricken. According to defense counsel, because the strike was made by defense counsel after the State’s strike-for-cause request failed, there would not seem to be any reason why the comparison should not be effective; that is, defense counsel should not be constrained from striking prospective jurors who have been passed over by the State in order to preserve them as comparables for a Batson challenge.
Jefferson’s reluctance to serve as an alternate juror in this case is palpable. Ewings’ hesitation seems mild in comparison. If the State did not exercise a peremptory challenge to exclude Jefferson, when it did exclude Ewings, the credibility of the “school distraction” explanation is in question. See Belnavis, 246 Kan. at 313.
It also should be noted, however, that at the time the district court considered the State’s explanation for striking Ewings, Jefferson had not yet been questioned. Thus, the comparison which this court is examining was not available to the district court. Instead, the district court considered that two prospective jurors, one white and one black, who had expressed concern about their job duties in the approaching school year had been excused by the State.
The State also offered other reasons for excluding Ewings. The State questioned her ability to comprehend the evidence and the instructions because “she doesn’t even know what her husband does for a living at the present time.” Ewings’ statement in this regard was made when she was asked what her husband did at Boeing: “His basic job is aircraft inspector, but they were laid off and now he’s doing something else which I don’t really know exactly what.it is.” The district court did not mention this reason.
On appeal, the State urges this court to consider other responses given by Ewings which tend to show that she had “difficulty answering other simple questions.” For example, when asked “what year” her daughter was at UNLV, she said, “Well, I think probably her — year and a half.” Ewings went on to explain that her daughter previously had attended two other colleges before transferring to UNLV. In the circumstances, her hesitancy in formulating an answer to “What year is she?” probably was justified. Likewise, in talking about her own education, Ewings was neither articulate nor particularly coherent.
The State noted that Ewings had moved from place to place and was not a long-time resident of Kansas. The district court expressed doubt about the efficacy of this criterion, but concluded that it was “neutral.” The district court did not mention whether or how this criterion had been applied to other prospective jurors.
On appeal, the State concedes that Ewings had lived in Wichita for 10 years and had a son in school in Butler County. The record shows that Ewings had been employed by the Derby school district throughout that 10-year period. The State argues that the length of residence is not the point and that earlier moves and failure to consider Wichita her home is the point. The State asserts that none of the jurors “viewed Wichita as a point of transition, as did Ewings.” When the State asked whether Wichita was “going to be your home,” Ewings replied, “We don’t really know.”
Kingsley contends that Ewings shared characteristics with non-black jurors; none of those mentioned, however, is relevant to this issue, and Kingsley’s argument gains nothing from the comparison.
The State also questioned whether Ewings and defense counsel might have worked in the Derby school system at the same time. The district court doubted that their paths had crossed, but concluded, “[n]onetheless, there is that potential relationship or potential perceived relationship.”
As to James Dukes, the State gave the following reasons for striking him:
“[I]n looking at Mr. Dukes, first of all, I had a — a lot of questions for him because I was concerned about his youth and his lack of experience. He’s not had very much life experience. And I — on the risk of having this appear in an appellate case, he just seemed a little flaky. And so I went on to question him. He did not appear attentive during my questioning. He was rocking back in the chair. And when I questioned him regarding his — his wife and her occupation, he was at a loss to talk about what his wife had done for a living at a time prior to March when she had been employed as a teller in Bank IV, which leads me to believe that he’s not paying very much attention to what’s going on in his life if he’d been married to her for a year and a half. That was a concern to me.
“Again, this individual, while it is not a criteria that you be a life-long resident of the community, he has moved from Texas to Oklahoma to Wichita, has been here and says he’ll just test it out for a while. He has — comes from a — not a very stable home or background, and it did not reasonably appear that he, in a case of this nature, which would have some complicated legal issues, had some difficulty in grasping concepts and understanding.”
Defense counsel corrected the prosecutor’s impression: “I thought he said his wife had worked there a year and a half but he had just married her last March.”
Even after the correction, however, the incorrect impression was perpetuated by the district court judge, who made the following observations:
“I have already addressed the question about a juror’s short term, temporary or transient residence in this county or state. Mr. Dukes also described that.
“I hesitate to use the word flaky, but it is rare that a potential juror who works for a food manufacturer declines to describe the nature of his work or the nature of the product that his company sells based on the fact that the food products are secret even though they’re in the retail market. And that, together with his inability to respond to even fairly basic questions about his wife and her background would seem to suggest that this is an individual who, while I hesitate to use the word flaky, might not give full attention to the issues to be resolved in a case such as this.
“Mr. Dukes is a juror whose responses were unlike any of those we had from any of our other panel members, and I am satisfied that the State’s explanation is clear, reasonably specific, neutral, legitimate and related to the issues which must be decided in this case.”
The State raised at least five questions about Dukes — lack of life experience, “flakiness,” transience, unstable background, and difficulty in grasping concepts. The district court alighted briefly on the issue of his transience and then settled on the issue of his “flakiness.” It seems clear that Dukes gave the impression of being odd and out-of-step, but Kingsley argues that Dukes’ unusual responses were not indicative of his ability to grapple with the jury’s issues. The State argues otherwise.
The State contends that Dukes was not suited for jury service. The signs the State points to are his difficulty answering simple questions and his inattentiveness, which was demonstrated by his “rocking back in the chair.” The State cites State v. Hood, 245 Kan. 367, 374, 780 P.2d 160 (1989), for its holding that the court can take into consideration a prospective juror’s body language, along with other neutral reasons, when deciding whether the prosecution has a valid, neutral reason for striking the juror. The district court obviously shared the State’s impression of Dukes as a prospective juror.
In United States v. Esparsen, 930 F.2d 1461, 1468 (10th Cir. 1991), the court stated:
“Although the mere presence of members of a certain race on the final jury does not automatically negate a Batson violation, Clemons, 843 F.2d at 748, it can be a relevant factor, particularly when the prosecution had the opportunity to strike them. See United States v. Grandison, 885 F.2d 143, 147 (4th Cir. 1989), cert. denied 495 U.S. 934, 110 S. Ct. 2178, 109 L. Ed. 2d 507 (1990) (one factor disproving discrimination was that prosecution did not exercise its last challenge, although Afro-Americans remained in the venire).”
In United States v. Grandison, 885 F.2d 143, 147 (4th Cir. 1989), the court’s discussion includes the following:
“While the racial composition of the actual petit jury is not dispositive of a Batson challenge, neither was the district court precluded from considering it. Here two of the twelve petit jurors were black. Although the mere presence of minorities on the jury does not mean that a Batson prima facie case cannot be made, Lane, 866 F.2d at 105; Clemons, 843 F.2d at 747; United States v. Cartlidge, 808 F.2d 1064, 1070 (5th Cir. 1987); Fleming v. Kemp, 794 F.2d 1457, 1483 (11th Cir. 1986), the fact the jury included two black jurors is significant. See Lane, 866 F.2d at 106; Montgomery, 819 F.2d at 851; United States v. Williams, 822 F.2d 512, 515 (5th Cir. 1987); United States v. Dennis, 804 F.2d 1208, 1211 (11th Cir. 1986). This is especially so where, as here, the government could have used a remaining strike against those jurors but three times declined to do so. See Lane, 866 F.2d at 106; Saqineto-Miranda, 859 F.2d at 1522; Woods, 812 F.2d at 1487; Williams, 822 F.2d at 515; Montgomery, 819 F.2d at 851; Dennis, 804 F.2d at 1210-11.”
In the present case, there were two black jurors. There are a number of courts which permit consideration of the racial composition of the actual jury in determining whether a prima facie showing has been made. Here, the question is whether the racial composition of the actual jury bears consideration after the burden has been shifted to the State to establish race-neutral reasons for its strikes. We find it is one of several factors to be considered. In viewing all the factors in the present case, we do not find the district court abused its discretion in finding race-neutral reasons for the State’s peremptory challenges of Ewings and Dukes.
We next consider if the defendant can be convicted of aggravated arson when the person in the house was dead before the fire was set.
K.S.A. 21-3718 provides as follows: “(1) Arson is knowingly, by means of fire or explosive: (a) Damaging any building or property in which another person has any interest without the consent of such other person; or (b) Damaging any building or property with intent to injure or defraud an insurer or lienholder.” K.S.A. 21-3719 provides: “Aggravated arson is arson, as defined in section 21-3718, and committed upon a building or property in which there is some human being.”
Kingsley argues that the term “human being,” as used in the statute, should not include a dead body because a human being is a living thing. Donna Baker, by all accounts, was dead by the time the fire was started. Kingsley acknowledges that State v. Case, 228 Kan. 733, 620 P.2d 821 (1980), runs counter to his position. In that case, defendant moved to dismiss the charge of aggravated arson on the ground that both victims were dead before the fire was set. This court stated: “It is argued that under such circumstances there was no ‘human being’ in the house as required by K.S.A. 21-3719. We find no merit in such an argument.” 228 Kan. at 738. We did not elaborate on the reasons for such a finding. Kingsley emphasizes the court’s postscript— “In addition there was evidence that Frank Peterson may have been still alive when the fire was set.” 228 Kan. at 738.
Kingsley argues that the holdings in two more recent cases, State v. Perkins, 248 Kan. 760, 811 P.2d 1142 (1991), and State v. Evans, 251 Kan. 132, 834 P.2d 335 (1992), require live victims to support the charges of rape and aggravated kidnapping, respectively. The rationale for requiring that the victim be living when the unlawful act was committed centers on the nonconsensual nature of the act being committed on the person. See 251 Kan. at 135.
In State v. William, 248 Kan. 389, 400, 807 P.2d 1292 (1991), this court decided that attempted aggravated criminal sodomy could not be committed if the defendant knew the victim was dead and the court accepted, as a starting premise, that aggravated criminal sodomy could not be committed against a dead body. In Perkins, the court applied the same principle in concluding that “[r]ape can only be committed against a living person.” 248 Kan. at 771.
In Evans, the court followed the rationale of Perkins in concluding that the charge of aggravated kidnapping requires a live victim. The court stated: “ ‘Person,’ as used in 21-3421, implies a living person, and the circumstances when a kidnapping occurs require that the victim be living when the acts constituting the crime take place.” 251 Kan. at 135. The circumstances when a kidnapping occurs include the defendant’s use of the victimized person for ransom, as a shield or hostage, to facilitate flight or commit a crime, for the infliction of injury or terror, or as a political means. K.S.A. 21-3420.
An essential element shared by the offenses of rape and aggravated kidnapping is the victim’s lack of consent to the use being made of his or her body. In contrast, the nonconsensual nature of the act being committed in the offense of aggravated arson is the lack of consent of the property owner to damaging the property. The presence or absence of consent of “some human being” in the property is not an element of the crime. Rape and aggravated kidnapping are not analogues for aggravated arson in this respect.
However, the policy behind elevating arson from a class C felony to aggravated arson, a class B felony, when there is a human being in the property must certainly involve the risk to human life and safety. There is no risk to human life or safety when there is no living person in the property. We are not aware of any rational basis to interpret a human being as other than a living person in the context of the aggravated arson statute.
Webster’s New Twentieth Century Dictionary 883 (2d ed. 1973) states the initial definition of the adjective “human” as: “1. of or characteristic of a person or persons, such as people have. 2. having the form or nature of a person; that is a person; consisting of people.” In defining the word “human” as a noun, it states the definition as “a human being,” and in defining the word “being” as a noun, it states the initial definition as: “1. existence; the state of existing; living; life.” Webster’s New Twentieth Century Dictionary 168. Absent a clear indication from the legislature to the contrary, we must conclude that in the context of K.S.A. 21-3719, a human being is a living person. We disapprove of the statement in Case to the contrary.
Here, the district court, relying on Case, included the following in the instructions on aggravated arson: “For purposes of this instruction in determining whether there was a human being in the residence, it does not matter if the person in the residence was dead or alive at the time of the damage by fire.” The defendant did not object to this instruction, and therefore this court may reverse only if the instruction is clearly erroneous.
An instruction is clearly erroneous only if the reviewing court reaches a firm conviction that if the trial error had not occurred, there was a real possibility the jury would have returned a different verdict. State v. Perkins, 248 Kan. 760, Syl. ¶ 8. Since the district court was relying on our statement in Case, the defendant’s objection would understandably have been denied. However, based upon our decision herein requiring the presence of a living person, the instruction is clearly erroneous.
Based in part on the insufficiency of the evidence, the district court also denied the defendant’s motion to set aside the jury’s verdict and enter a judgment of acquittal on the aggravated arson charge. On appeal, this court reviews all the evidence, viewed in the light most favorable to the State and, if we are convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt, the conviction will be affirmed. State v. Evans, 251 Kan. 132. In light of our finding that aggravated arson requires the presence of a living person, there is a failure of proof in that respect. The jury could not have concluded beyond a reasonable doubt that aggravated arson was committed where the fire occurred after the victim was dead. We therefore cannot affirm the defendant’s conviction for aggravated arson, and the sentence for that conviction must be vacated.
There was, however, sufficient evidence to support the lesser included offense of arson. Where a defendant has been convicted of the greater offense but evidence supports only a lesser included offense, the case must be remanded to resentence the defendant for conviction of the lesser included offense. State v. Moss, 221 Kan. 47, 50, 557 P.2d 1292 (1976); State v. Smith, 4 Kan. App. 2d 149, 153, 603 P.2d 638 (1979).
Kingsley next contends that the jury should have been instructed on the lesser included offense of voluntary manslaughter, the “unlawful killing of a human being, without malice, which is done intentionally upon a sudden quarrel or in the heat of passion.” K.S.A. 21-3403. Voluntary manslaughter is a lesser included offense of first-degree murder. State v. Seelke, 221 Kan. 672, 675, 561 P.2d 869 (1977). The defense theory was that the intention was to tie up Donna Baker and rob her. There was no evidence that Kingsley took a weapon with him to Baker’s house; there appeared to have been a struggle, and, Kingsley argues, the nature of the wounds suggests that they were inflicted in rage. Defendant’s argument is that, if the jury believed that he acted alone, it could have found that he killed Donna Baker “in the heat of passion”; if the jury believed that he found his wife over Baker’s body with a knife, it could have found that he aided and abetted voluntary manslaughter.
Kingsley further argues that the charge of felony murder against him does not relieve the court of its duty to instruct on voluntary manslaughter because the hard 40 penalty which he received does not apply to felony-murder convictions. He acknowledges that this court previously has held that there is no duty to instruct on lesser included offenses where the “defendant was charged with felony murder and the undisputed evidence established the commission of the homicide during the perpetration of a felony.” 221 Kan. at 676. However, he argues:
“Since the enactment of the hard-40 penalty, premeditated first-degree murder and felony murder must be viewed as separate offenses carrying separate penalties. For hard-40 purposes the premeditation necessary for premeditated first-degree murder cannot be satisfied simply by felony murder, i.e., a homicide committed during the perpetration of [a] felony. Hence, the trial court’s duty to instruct on [a] lesser included offense in this hard-40 case was not defeated by the fact that the killing was committed during the perpetration of a felony.”
The State argues that there was no duty for the district court to instruct on voluntary manslaughter because there was no evidence upon which Kingsley could have been convicted of the lesser offense. The State also argues that the mandatory 40-year penalty is irrelevant to determining whether an instruction on a lesser included offense was required. This court has stated that the district court’s duty to instruct on lesser included offenses “does not arise unless there is evidence supporting the lesser offense.” Patterson, 243 Kan. 262, Syl. ¶ 2. The evidence may be weak and inconclusive, but it must provide a basis upon which the accused might reasonably be convicted of the lesser offense. State v. Armstrong, 240 Kan. 446, 459, 731 P.2d 249, cert. denied 482 U.S. 929 (1987).
The court has stated that the reduction of a homicide to voluntary manslaughter requires provocation which is “calculated to deprive a reasonable man of self-control and to cause him to act out of passion rather than reason.” State v. Guebara, 236 Kan. 791, 796, 696 P.2d 381 (1985). It does not seem that an older woman’s resistance to being subdued so that her belongings could be stolen fits in the category of provocation “calculated to deprive a reasonable man of self-control.”
With regard to the wounds, it seems that Kingsley is referring to the stab wounds in Donna Baker’s chest. As he suggests, these wounds might have been inflicted in a rage. Other evidence which Kingsley disregards makes the “cold-blooded” interpretation of the wounds the only reasonable choice. For example, he ignores the evidence that her turtleneck shirt had been pulled up and out of the way and that her bra had been removed before she was stabbed. He ignores the evidence that her shirt was pulled back down and her throat was cut either after she was dead or when she was very nearly dead from the stab wounds.
If Sherri inflicted the wounds, she did so, according to Kingsley’s testimony, after Donna Baker was unconscious from a blow on the head. In Kingsley’s account, therefore, there is no evidence on which he might reasonably be convicted of voluntary manslaughter. Thus, the district court had no duty to instruct on it. We need not reach the hard 40 aspect of Kingsley’s argument as to this issue.
Kingsley also contends that the mandatory 40-year sentence should be vacated on the ground that the jury’s verdict on first-degree premeditated murder may not have been unanimous. K.S.A. 1992 Supp. 21-4624(2) provides that a defendant may be required to serve a mandatory term of imprisonment of 40 years “upon conviction or adjudication of guilt of a defendant of murder in the first degree based upon the finding of premeditated murder.” K.S.A. 1992 Supp. 21-3401 provides in pertinent part as follows: “(a) Murder in the first degree is premeditated murder or the killing of a human being committed: (1) In the perpetration of or attempt to perpetrate any felony.” Before enactment of the mandatory 40-year penalty provision in 1990, K.S.A. 1989 Supp. 21-3401 stated in pertinent part:
“Murder in the first degree is the killing of a human being committed:
(a) Maliciously, willfully, deliberately and with premeditation;
(b) in the perpetration of or attempt to perpetrate any felony; or
(c) in the perpetration of abuse of a child, as provided in K.S.A. 21-3609 and amendments thereto.”
Kingsley assumes that conviction of “murder in the first degree based upon the finding of premeditated murder,” for purposes of mandatory 40-year imprisonment, does not include conviction of felony murder. The State does not dispute the assumption. However, we need not determine that question since we conclude the defendant was convicted of premeditated first-degree murder.
Kingsley’s argument is that the forms of the instructions and verdicts give rise to the possibility that all the jurors agreed that he committed first-degree murder, but some based their finding on evidence supporting one theory and others based their finding on evidence supporting the alternative theory. In that event, he claims, he has not been convicted by a unanimous jury of “murder in the first degree based upon the finding of premeditated murder,” as required by 21-4624(2). We do not agree.
The jurors were instructed that Kingsley was charged in Count One with murder in the first degree, which required proof that the killing was done with premeditation. They also were instructed that he was charged in Count Two with felony murder in the first degree, which required proof that the killing was done while in the commission of aggravated robbery. In Instruction No. 7, which is PIK Crim. 2d 56.02-A (1992 Supp.), the jury received directions for considering the charges. It stated in full:
“In this case the State has charged the defendant with one offense of murder in the first degree and has introduced evidence on two alternate theories of proving this crime.
“The State may prove murder in the first degree by proving beyond a reasonable doubt that the defendant killed Donna J. Baker and that such killing was done while in the commission of aggravated robbery, a felony, or in the alternative by proving beyond a reasonable doubt that the defendant killed Donna J. Baker maliciously and with deliberation and premeditation, as fully set out in these instructions.
“Where evidence is presented on the two alternative theories of proving the crime charged, you must consider both in arriving at your verdict.
“In Instruction No. 6 the Court has set out for your consideration the essential claims which must be proved by the State before you may find the defendant guilty of felony murder, that is the killing of a person in the commission of a felony crime.
“In Instruction No. 5 the Court has set out for your consideration the essential claims which must be proved by the State before you may find the defendant guilty of premeditated murder.
“If you do not have reasonable doubt from all the evidence that the State has proven murder in the first degree on either or both theories, then you will enter a verdict of guilty.
“If you have a reasonable doubt as to the guilt of the defendant as to the crime of murder in the first degree, then you must consider whether the defendant is guilty of murder in the second degree.”
The jury also was instructed that its “agreement upon a verdict must be unanimous.”
The jury placed an “X” on the line next to “Guilty” on the verdict form for the charge of felony murder in the first degree as well as on the verdict form for the charge of premeditated murder in the first degree. According to the instructions, the jury had to be unanimous in its agreement on these verdicts. It appears from the completed verdict forms that the jury necessarily rendered an adjudication of Kingsley’s guilt of murder in the first degree based upon a finding of premeditated murder as well as of felony murder.
Kingsley’s argument seems to have been sparked by the court’s decision in State v. Hartfield, 245 Kan. 431, 781 P.2d 1050 (1989). There, the court reaffirmed the rule:
“ ‘When an accused is charged in one count of an information with both premeditated murder and felony murder it matters not whether some members of the jury arrive at a verdict of guilt based on proof of premeditation while others arrive at a verdict of guilty by reason of the killer’s malignant purpose.’ ” 245 Kan. at 447 (quoting State v. Wilson, 220 Kan. 341, 345, 552 P.2d 931 [1976]).
The verdict form completed by the jury in Hartfield’s trial “did not require the jury to reach a unanimous decision about the theory used to prove first-degree murder.” 245 Kan. at 446. There was no indication on the form “how many jurors believed the State proved felony murder and how many believed the State proved premeditated murder.” 245 Kan. at 446. The form, which is reproduced at 245 Kan. at 446, simply required the jury to decide among the following possibilities: not guilty, guilty of first-degree murder, guilty of second-degree murder, guilty of voluntary manslaughter, and guilty of involuntary manslaughter. In this respect, Hartfield differs from the present case where the jury completed separate verdict forms for the charges of felony murder in the first degree and premeditated murder in the first degree.
Kingsley next questions the jury’s verdict on the mandatory 40-year sentence. K.S.A. 1992 Supp. 21-4624(1) provides that the State may request a separate sentencing proceeding for a defendant charged with first-degree murder for the purpose of determining “whether the defendant should be required to serve a mandatory term of imprisonment of 40 years.”
K.S.A. 1992 Supp. 21-4624(3) and (4) provide that evidence may be presented and that the district court shall instruct the jury as to its deliberations on the sentence recommendation. Subsection (5) provides in pertinent part as follows:
“If, by unanimous vote, the jury finds beyond a reasonable doubt that one or more of the aggravating circumstances enumerated in K.S.A. 1992 Supp. 21-4625 and amendments thereto exist and, further, that the existence of such aggravating circumstances is not outweighed by any mitigating circumstances which are found to exist, the defendant shall be sentenced pursuant to K.S.A. 1992 Supp. 21-4628 and amendments thereto; otherwise, the defendant shall be sentenced as provided by law.”
Imprisonment pursuant to K.S.A. 1992 Supp. 21-4628 is for life without eligibility for parole until 40 years have been served. Three of the eight aggravating circumstances enumerated in K.S.A. 1992 Supp. 21-4625 were submitted to the jury in the present case:
“(3) The defendant committed the crime for the defendant’s self or another for the purpose of receiving money or any other thing of monetary value.
“(5) The defendant committed the crime in order to avoid or prevent a lawful arrest or prosecution.
“(6) The defendant committed the crime in an especially heinous, atrocious or cruel manner.”
The jury found that each of the three aggravating circumstances was present and found that they were not outweighed by mitigating circumstances. The jury recommended that Kingsley be sentenced to the hard 40.
Kingsley contends that there was insufficient evidence to establish aggravating circumstances (3) and (5), murder for pecuniary gain and murder to avoid arrest or prosecution. K.S.A. 1992 Supp. 21-4627(3)(b) provides the following with regard to appellate review of a hard 40 sentence:
“(3) With regard to the sentence, the court shall determine:
“(b) whether the evidence supports the findings that an aggravating circumstance or circumstances existed and that any mitigating circumstances were insufficient to outweigh the aggravating circumstances.”
The State contends that the standard of review for the sufficiency of evidence relevant to the question of sentence should be the same as for the sufficiency of evidence relevant to the question of guilt. The State cites State v. Graham, 247 Kan. 388, 398, 799 P.2d 1003 (1990), for the familiar maxim:
“When the sufficiency of the evidence is challenged, the standard of review on appeal is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.”
Kingsley does not advocate what the standard should be.
Kingsley’s argument with regard to aggravating circumstance (3), murder for pecuniary gain, is that the murder must be an essential prerequisite to financial gain, such as a murder to obtain life insurance proceeds. He relies on cases from other states, without showing (or even arguing) that the statutory schemes from those states parallel the Kansas hard 40 scheme. As Justice McFarland noted in State v. Bailey, 251 Kan. 156, 834 P.2d 342 (1992), the general scheme for jury involvement in post-trial sentencing proceedings has developed in states which have a death penalty. “Because of concerns . . . over the finality and severity of the imposition of the death penalty, the hurdles the prosecution must clear if the death penalty is to be imposed are higher than in any other area of criminal law.” 251 Kan. at 171. For this reason, cases which have arisen in the context of the death penalty are of limited precedential value for this court. 251 Kan. at 171. Each of the out-of-state cases relied on by Kingsley involved imposition of the death penalty.
The language of some of the statutes at issue in the cases cited by Kingsley differs from that of K.S.A. 1992 Supp. 21-4625. For example, an aggravating factor considered by the jury in the Oklahoma case of Boutwell v. State, 659 P.2d 322, 328 (Okla. Crim. 1983), provided: “The person committed the murder for remuneration or the promise of remuneration or employed another to commit the murder for remuneration or the promise of remuneration. ”
The gist of Kingsley’s argument is that the pecuniary gain aggravating circumstances must be interpreted narrowly enough to avoid a substantial overlap between felony murder, which he contends is not subject to the hard 40, and murder for financial gain. In other words, Kingsley contends that the pecuniary gain aggravating circumstance may not be established by a killing which incidentally occurs during the commission of an inherently dangerous act, but may be established by a killing which is the consideration for financial gain. He contends that there was insufficient evidence to establish that Donna Baker’s death was an essential prerequisite for financial gain.
Defendant argues that penal statutes must be strictly construed in favor of the accused, citing State v. Magness, 240 Kan. 719, 721, 732 P.2d 747 (1987). However, we have also held: “The rule of strict construction concerning penal statutes is subordinate to the rule that judicial interpretation must be reasonable and sensible to effectuate legislative design and the true intent of the legislature.” State v. Carmichael, 240 Kan. 149, Syl. ¶ 5, 727 P.2d 918 (1986).
Assuming for the purpose of argument that Kingsley’s interpretation of the pecuniary gain aggravating circumstance is correct and that the standard of review is as the State contends, the question is whether the evidence, viewed in the light most favorable to the prosecution, convinces this court that a rational factfinder could have found that Donna Baker’s killing was motivated by Kingsley’s desire for financial gain.
The answer is in the affirmative. The evidence which was examined with regard to Issue 6 (lesser included offense of voluntary manslaughter) is relevant here as well. It showed that when Kingsley went to Donna Baker’s house to rob her, he knew that she would be in the house. In fact, he had made arrangements by telephone for his visit to her house. He took surgical gloves with him at least in part for the purpose of concealing his fingerprints. Kingsley denied that these circumstances led inexorably to the conclusion that he planned to kill Donna Baker. He argues that Donna Baker knew him by an assumed name, and, thus, if he did not leave fingerprints, he would not be traced by the name Baker would give the police. The weakness in defendant’s argument is that Donna Baker knew Kingsley’s last name and certainly could have given the police a good description of him. It is unreasonable to think that some question about the first name would have been much of a stumbling block for law enforcement.
A rational factfinder could have found that Kingsley intended to kill Donna Baker for financial gain. The evidence supports a finding that Kingsley went to Donna Baker’s house with the intention of killing her and taking her money and valuables.
Kingsley’s argument with regard to aggravating circumstance (5), murder to avoid arrest or prosecution, is that the evidence must show that the arrest was imminent and that its avoidance was the dominant motive for the murder. He speculates that subsection (5) “was likely meant to address situations where a defendant murders a law enforcement officer or civilian who is about to apprehend or prosecute him.” Kingsley relies on cases which arose in the death penalty context in other states. Ex parte Johnson, 399 So. 2d 873 (Ala. 1979); People v. Bigelow, 37 Cal. 3d 731, 209 Cal. Rptr. 328, 691 P.2d 994 (1984); and Menendez v. State, 368 So. 2d 1278 (Fla. 1979).
We considered and rejected this argument in Bailey. There, defendant challenged subsection (5) as being unconstitutionally vague. We concluded that the subsection was not vague on its face or as applied to the facts of that case. Here is the court’s analysis and conclusion:
“When Sylvester escaped, covered with blood, his captors had no way of knowing whether or not he would survive to report the crimes involved or would be too frightened to identify the assailants. Further, Rose Ann, by defendant’s own testimony at the sentencing proceeding, was subject to additional crimes Sylvester knew nothing about — anal sodomy and multiple rapes. The jury could well have found she was killed to avoid or prevent a lawful arrest or prosecution.” 251 Kan. at 174.
The interpretation of the subsection employed in the Bailey analysis was not the narrow construction which is advocated by Kingsley. It did not require that the arrest be imminent, and it did not require that avoiding it was the dominant motive for murder. Nonetheless, the court found that aggravating circumstance (5) was not unconstitutionally vague and was not overbroad. We find Bailey controlling on this issue.
Kingsley challenges the constitutionality of aggravating circumstance (6), murder committed in an especially heinous, atrocious, or cruel manner, contending that the subsection is too vague. Precisely the same argument was made in Bailey and was rejected by this court. 251 Kan. at 174-75. This court found “the contention that this aggravating factor is unconstitutionally vague in the context of the hard 40 legislation to be without merit and especially so in light of the definitions included in the instructions herein.” 251 Kan. at 174. The reference is to jury instructions which defined heinous, atrocious, and cruel. The definitions of heinous and atrocious which were given in Bailey also were given in the present case: “Definitions: Heinous, extremely wicked or shockingly evil. Atrocious, outrageously wicked and vile.” 251 Kan. at 174.
Cruel was defined by the district court in Bailey to mean “pitiless or designed to inflict a high degree of pain, utter indifference to, or enjoyment of the sufferings of others.” 251 Kan. at 174. It was defined by the district court in the present case to mean “pitiless or designed to inflict a high degree of pain.”
The opinion in Bailey was filed in May 1992 and appellant’s brief was filed in June; Kingsley does not mention Bailey on this issue, although it is cited elsewhere in his brief. He argues that the “district court’s attempt to define the [terms] does not save the aggravating circumstance from being unconstitutionally vague.” Because the brief writer does not refer to Bailey, there is no specific effort made to distinguish it. The abbreviated definition of cruel given in the present case, however, is noted: “The definition given by Judge Royse in this case does not include the expanded definition of cruel’ set forth in the final draft of the PIK Advisory Committee’s proposed instructions, and set forth in Foster[v. State, 779 P.2d 591 (Okla. Crim. 1989)].”
Kingsley contends that the instruction defining heinous, atrocious, and cruel allowed the jurors “to consider events which occurred after the victim was unconscious or dead.” He concedes, however, that the definitions were only part of the instruction on aggravating circumstance (6). The definitions were followed by this statement: “The phrase especially heinous, atrocious or cruel is directed to those crimes where the death of the victim was preceded by torture of the victim or serious physical abuse.” (Emphasis added.)
For the proposition that what occurred after the victim died was not relevant, Kingsley relies on State v. Evans, 251 Kan. 132, 834 P.2d 335 (1992), and State v. William, 248 Kan. 389, 807 P.2d 1292 (1991), which stated that the crimes of aggravated kidnapping and aggravated criminal sodomy require live victims.
The draft of proposed instructions on the hard 40 penalty does not contain the admonition given by the district court in the present case that torture or serious physical abuse must have preceded death. This would seem, however, to be an appropriate instruction. The crime which defendant is accused of committing in an especially heinous, atrocious, or cruel manner is murder. The murder is complete with the death of the victim. Subsequent abuse of the body would not constitute the manner in which the murder was committed. Thus, the jury was correctly instructed that the torture or serious physical abuse of the victim must precede death.
For the proposition that what occurred after the victim was unconscious is not relevant to this aggravating circumstance, Kingsley relies on a death penalty case, State v. Hunt, 220 Neb. 707, 371 N.W.2d 708 (1985), overruled on other grounds 224 Neb. 282, 314, 399 N.W.2d 706 (1986). In Hunt, the jury “had to find that defendant went to the victim’s home with the intention of killing her so that he could play out his sexual fantasy with a female corpse.” 220 Neb. at 725. Hunt gained entry into the victim’s house by pointing a gun at her. 220 Neb. at 711. He tied her arms and legs with rope and stuffed two pairs of women’s underwear into her mouth. 220 Neb. at 711-12. One pair was pushed back into her throat so that her nasal passages were obstructed at the time of the autopsy. 220 Neb. at 714. Hunt strangled her into unconsciousness, masturbated, and ejaculated onto her stomach. Hunt testified that she still had a pulse. Then he put her head underwater in the tub; the victim was twitching and shaking. When the telephone rang, he left. 220 Neb. at 712.
The Nebraska court concluded that the aggravating circumstance — especially heinous, atrocious, or cruel — was not present. Here, in part, is the rationale:
“The evidence establishes that the victim was rendered unconscious within a short time of defendant’s intrusion into her home. It therefore cannot be said that the murder was of the nature described in aggravating circumstance (l)(d), as specified in § 29-2523: “The murder was especially heinous, atrocious, cruel, or manifested exceptional depravity by ordinary standards of morality and intelligence.’
“In order for aggravating circumstance (l)(d) to be present, the method of killing must entail something more than the ordinary circumstances which attend any death-dealing violence. See State v. Reeves, [216 Neb. 206, 344 N.W.2d 433 (1984)], wherein aggravating circumstance (l)(d) was held not to be present where a murder was achieved ‘swiftly and suddenly,’ but was held to be present in another murder in which the victim, who ‘did not die quickly,’ was subject to sexual penetration while conscious and defending herself. 216 Neb. at 227, 344 N.W.2d at 447. In contrast, the sexual acts in the present case, as noted earlier, were practiced either on a woman who was unconscious or in whom life had ceased to exist.
“Although the method by which defendant achieved sexual gratification may be accurately described as exceptionally heinous and atrocious, and as manifesting exceptional depravity by ordinary standards of morality and intelligence, the murder itself, given the inherent nature of a killing, cannot.” 220 Neb. at 725-26.
The evidence in the present case may not be sufficient to establish that torture or serious physical abuse occurred while Donna Baker was conscious. There were signs of a struggle, but the evidence tends to show that the victim had been rendered unconscious before she was dragged from room to room, before she was stabbed, before her throat was cut, before matches were placed in her pubic hair, and before the house was set afire.
As the State points out, there was blood throughout the house; the State relies on the videotape of the crime scene as evidence. In addition, Sherri testified that Kingsley had described the victim putting up a terrific struggle:
“[H]e used the rest room and came out and had told me that he went berserk, went crazy, tried to, you know, act like he was crazy and stuff. And then she had pulled a knife — a gun on him, and then he went after her, started to strangle her. She was fighting with him. And he kept on trying to strangle her. He told me one time he said he couldn’t believe that she wouldn’t die and that he finally got her to like pass out and he had used two or three different type knives of hers to slice her throat and stab her.
“Q. Did Mr. Kingsley tell you whether or not he used anything else on her to disable her?
“A. He said he had used a vase to try to knock her out.”
Hunt does not hold that what occurs after the victim is rendered unconscious is not relevant in determining if the murder was committed in an especially heinous, atrocious, or cruel manner. The court held that the evidence did not support the existence of the two aggravating circumstances. The occurrence of the acts after the victim was unconscious was one factor considered by the court in making that determination. As previously noted, Hunt is a death penalty case and, as we stated in Bailey, such cases “are, accordingly, of limited precedential value” in hard 40 cases. We also note that in Hunt, three justices dissented, finding that the evidence did support the existence of the aggravating circumstances.
We are not persuaded that what occurs after the victim is rendered unconscious is not relevant in determining if the victim was murdered in an especially heinous, atrocious, or cruel manner. What is relevant to that determination is the manner in which the victim was murdered. That determination ends upon the death of the victim and not when the victim is rendered unconscious.
Kingsley also argues that, if this court concludes that the jury erroneously found any of the aggravating circumstances, the hard 40 sentence should be vacated. Kingsley concedes, however, that even in a death penalty case the sentence would not necessarily be vacated. In Zant v. Stephens, 462 U.S. 862, 77 L. Ed. 2d 235, 103 S. Ct. 2733 (1983), imposition of the death penalty was upheld despite the appellate court’s striking one of three aggravating circumstances as being unconstitutional.
Kingsley next challenges the district court’s refusal to allow a second jury voir dire for the penalty proceedings. In Bailey, defendant contended that a second voir dire is authorized by K.S.A. 1992 Supp. 21-4624(2). This court rejected Bailey’s argument and stated: “Jury selection procedures, including voir dire, come into play only if a new jury is to be impaneled.” 251 Kan. at 170.
Kingsley acknowledges the Bailey holding on this issue, but attempts to distinguish his case. Kingsley argues that, irrespective of the statutory provision, a second voir dire was necessary be cause it is only after the jurors have heard the evidence on guilt that it can be ascertained what effect it had on them. He asserts that this argument was not advanced by Bailey.
We find no merit in Kingsley’s argument. This court’s ruling in Bailey controls this issue as well. In Bailey, this court read 21-4624(2) as contemplating that the same jury would render a verdict on both phases of a trial unless members of the trial jury are unavailable.
Finally, Kingsley argues that the penalty phase instructions erroneously stated the standard of proof for mitigating circumstances. Kingsley contends that the law does not require that mitigating factors be found beyond a reasonable doubt and does not require the jury to be in unanimous agreement on mitigating factors. He argues that the instruction given by the district court “would lead a reasonable juror to believe” that the higher standards applied; as a result, “there is a substantial risk that the recommended sentence is arbitrary and capricious.”
The district court gave the following instruction:
“The burden of proof is on the State in this proceeding; the burden of proof does not shift to the defendant. The test you must use is this:
“If, by unanimous vote, you find beyond a reasonable doubt, one or more aggravating circumstances, and further find that such aggravating circumstances are not outweighed by any mitigating circumstances, then the defendant shall be sentenced to imprisonment for life and shall not be eligible for parole prior to serving 40 years’ imprisonment.”
The instruction closely parallels K.S.A. 1992 Supp. 21-4624(5):
“If, by unanimous vote, the jury finds beyond a reasonable doubt that one or more of the aggravating circumstances enumerated in K.S.A. 1992 Supp. 21-4625 and amendments thereto exist and, further, that the existence of such aggravating circumstances is not outweighed by any mitigating circumstances which are found to exist, the defendant shall be sentenced pursuant to K.S.A. 1992 Supp. 21-4628 and amendments thereto; otherwise, the defendant shall be sentenced as provided by law.”
The State does not say what its position is with regard to whether application of mitigating factors depends on a unanimous vote and whether they must be proven beyond a reasonable doubt. The State argues that in the present case the “record is devoid of any mitigating factors.” Kingsley contends that the jury was precluded by the erroneous instruction from “weighing the mitigating circumstances,” but he does not specify which circumstances or what evidence there was for finding them.
In Bailey, this court noted that the defendant had not indicated what mitigating factors were established. Nevertheless, the court examined the record for mitigating circumstances which could have been established. 251 Kan. at 177. In the present case, the State is correct — the record is devoid of any of the statutory mitigating factors.
In Bailey, the court found that two of the statutory mitigating factors “could be considered to have been established.” 251 Kan. at 177. Nonetheless, the court stated that it had
“no hesitancy in concluding that the evidence supports the findings of aggravating circumstances and that any mitigating circumstances were insufficient to outweigh the aggravating circumstances. Indeed, under the facts herein any mitigating factors are not only outweighed by the aggravating factors, the aggravating factors overwhelm them.” 251 Kan. at 177-78.
Here, the mitigating factors are not overwhelmed, they are nonexistent, and we find no error in the instructions.
The convictions of first-degree murder, aggravated robbery, and forgery are affirmed. The conviction of and sentence for aggravated arson is reversed, and the case is remanded to the district court with directions to resentence the defendant for conviction of arson, a class C felony. | [
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In a letter dated January 13, 1993, to the Clerk of the Appellate Courts, respondent Mark A. Johnson, of Overland Park, Kansas, an attorney admitted to practice law in the State of Kansas, voluntarily surrendered his license to practice law in the State of Kansas, pursuant to Supreme Court Rule 217 (1992 Kan. Ct. R. Annot. 175).
There is one ethical complaint, filed by á member of respondent’s law firm, pending in the Office of the Disciplinary Administrator, which alleges that respondent engaged in misrepresentation, fraud, and/or deceit in his actions while representing a significant number of clients. The complaint also alleges that respondent diverted over $90,000 in attorney fees from the firm to his own personal use. Such conduct would clearly violate MRPC 8.4(b), (c), and (d) (1992 Kan. Ct. R. Annot. 328).
This court, having examined the files of the Office of the Disciplinary Administrator, finds that the surrender of respondent’s license should be accepted and that respondent should be disbarred.
It Is Therefore Ordered that Mark A. Johnson be and he is hereby disbarred from the practice of law in the State of Kansas and his license and privilege to practice law are hereby revoked.
It Is Further Ordered that the Clerk of the Appellate Courts strike the name of Mark A. Johnson from the roll of attorneys licensed to practice law in the State of Kansas.
It Is Further Ordered that this order shall be published in the Kansas Reports, that the costs herein be assessed to the respondent, and that respondent forthwith shall comply with Supreme Court Rule 218 (1992 Kan. Ct. R. Annot. 176). | [
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The opinion of the court was delivered by
Thiele, J.:
The question presented by this appeal is the liability of an insurance company under proceedings in garnishment, and arises out of the following undisputed facts.
In November, 1933, the Highland Park Cemetery Association of Pittsburg, Kan., owned a Ford truck which was insured by the New York Casualty Company, hereafter usually called the garnishee, under a policy which provided, among other things, for additional coverage of any person operating the truck with the permission of the assured. It is not necessary here that we detail that additional coverage.
The cemetery association had in its employ Joseph Schmuck and it permitted him to use the truck for many of his own purposes. On November 10, 1933, Joseph Schmuck used the truck to move a ■ piano to his son’s house, one Neal Phelps being present and assisting. There was an accident and Phelps was killed. On February 5, 1935, Lillie Phelps, the widow, brought an action against Joseph Schmuck alleging her husband’s death was due to Schmuck’s negligence in operating the truck. As a result of a trial, on October 26, 1936, she recovered judgment for $4,000.
On March 9, 1937, she caused an execution to issue against Schmuck, and it was returned nulla bona on the same day.
On June 25, 1937, she filed a document entitled “Affidavit in garnishment after judgment,” in which allegations were made respecting rendition of the above judgment, issuance and return of the execution, and that she had good reason to and did believe the garnishee was indebted to Joseph Schmuck, and that her grounds for belief were that the garnishee had issued to the cemetery association its certain policy of liability insurance covering the “assured” and any "additional assured,” being any person operating the truck with permission of the assured; that Schmuck was an employee of the cemetery association and was using the truck with its permission, and while so engaged Phelps was killed by the negligence of Schmuck, and that she had filed this action in which judgment was rendered in her favor; that Schmuck had performed all conditions of the policy, and the garnishee was liable to him in the sum of $4,000 and interest and the costs of suit; that demand had been made upon the garnishee and denied. The pleading concluded with a prayer for judgment for $4,000, interest, costs and attorneys’ fees. A copy of the policy was attached to the above pleading. On the same day, June 25, 1937, a summons in garnishment, in the form prescribed by G. S. 1935, 60-943, fixing the answer day as August 14, 1937, and directed to the casualty company as garnishee, was issued, and was served upon it through the commissioner of insurance.
On August 13, 1937, the garnishee filed its verified answer, admitting its corporate existence and authority to do business in Kansas; that it had been served with the garnishee summons; that it had issued the policy of insurance, and, in the language prescribed in G. S. 1935, 60-945, it denied it had any property in its possession belonging to defendant Schmuck or was indebted to him.
Nothing further was done until June 8, 1938, when plaintiff filed another pleading identical with that filed June 25, 1937, except as to the date of signing and verifying the same. Another summons similar to that above mentioned was issued and served. In due time and on July 25, 1938, the garnishee answered, setting up the facts with reference to the filing of the first affidavit on June 25,1937, the issuance and service of summons, and that it had filed its answer on August 13, 1937, and that within twenty days thereafter plaintiff did not serve upon the garnishee a notice in writing that she elected to take issue on the answer, etc., and that, as provided by G. S. 1935, 60-948, the answer became conclusive of the truth and of the facts stated, and thereafter plaintiff was barred and had no further right to proceed against the garnishee by the affidavit filed June 8, 1938, etc.
On August 6, 1938, and within twenty days, plaintiff filed a reply denying generally the allegations of the garnishee’s answer, and admitting the filing of the first affidavit in garnishment and issuance of summons, and the answer thereto, and alleging that no copy thereof was either delivered or mailed to plaintiff’s counsel or the plaintiff, contrary to rule 44 of the supreme court, and because thereof plaintiff had no notice or knowledge of the filing of said answer. Plaintiff also alleged the first garnishment of June 25, 1937, was abandoned.
The defendant, Joseph Schmuck, died in February, 1939, and in May, 1939, the judgment against him was revived against his administratrix. At the trial the garnishee contended that the first affidavit in garnishment having been filed, an answer alleging no liability having been made, and the plaintiff having failed to file notice in writing that she elected to take issue, the answer was conclusive and the facts therein stated stood as true. The plaintiff contended that she was not so bound for three reasons. One was that, contrary to rule 44 of this court, the garnishee had not delivered or mailed to plaintiff or her counsel a copy of the answer filed. A second was that plaintiff had abandoned that particular garnishment proceeding and had commenced another, and that she was not bound by failure to take issue on the first answer of the garnishee. The third was that she was proceeding by an action under G. S. 1935, 60-3485, and that the provisions of the code for proceedings otherwise were not applicable. Evidence pertinent to the entire matter was presented and the trial court made findings of fact, which are summarized, viz., the first seven findings cover the employment of Schmuck by the cemetery association; the insurance on the truck; the use of the truck; the death of Phelps; the recovery of judgment by plaintiff against Schmuck; the revivor of the judgment; the issuance of the first garnishment, and the answer of the garnishee; also, that counsel for the garnishee mailed a copy of the answer to Mr. Sylvan Bruner, plaintiff’s attorney; that Mr. Bruner did not receive the copy; and that plaintiff did not file in court or serve upon the garnishee or its counsel, within twenty days or at any time thereafter, notice on the garnishee’s answer filed August 13, 1937, “but abandoned said garnishment proceedings, and on June 8,1938, plaintiff instituted the garnishment proceedings on which trial was had.” As a matter of law, the trial court concluded the answer of the gar nishee filed on August 13, 1937, was not a bar to recovery by the plaintiff; that Joseph Schmuck was within the provisions of the omnibus clause of the insurance policy issued by the garnishee, and that plaintiff was entitled to judgment against it for $4,000, interest and costs.
We shall first notice appellee’s claim that she is not bound by the answer of August 13, 1937, because her counsel did not receive a copy of it. In essence her claim is that although the answer may have been filed, no copy was served upon her, or her counsel, nor did either receive a copy through the mail. Rule 44 of this court applicable to the district court requires that counsel filing a pleading subsequent to the petition “shall, on the day the same is filed, deliver or mail a copy thereof to counsel of record for all adverse parties.” The trial court found the copy was mailed, but not received by plaintiff’s counsel. The proof showed and the court found that on the day the garnishee filed its answer, counsel for the garnishee caused a copy of the answer and a letter of transmittal to be placed in an envelope bearing their return, addressed to Mr. Bruner at his proper office address in Pittsburg, and to be deposited in the United States mail, and that the letter of transmittal was not returned to the senders. It also found that Mr. Bruner did not get the letter. However, the proof showed that at the time the letter would Have been received by him at his office, Mr. Bruner was away on a vacation in the western part of the United States. He left a young man in his office who forwarded his mail to him. Mr. Wolf, an attorney who assisted Mr. Bruner in some matters, was at the office on occasion, but he opened no mail. It is obvious that counsel for the garnishee were not remiss; they did all that the rule required. The plaintiff was not relieved of any burden imposed on her by the code of civil procedure simply because her counsel failed to receive the letter of transmittal. And it may be remarked that the plaintiff, having instituted the garnishment proceedings, knew that an answer would have to be filed within the time fixed; she and her counsel could and should have informed themselves as to the state of the record as disclosed from time to time in the office of the clerk of the district court.
The plaintiff, having instituted proceedings in garnishment, by filing her affidavit thereof on June 25, 1937, is not in position to question the sufficiency of her own pleadings and does not do so. The affidavit then filed properly started a proceeding to determine the liability of the garnishee. (See Septer v. Boyles, 147 Kan. 364, 76 P. 2d 771.) After instituting the proceedings, the plaintiff did nothing, either by seeking dismissal or otherwise, that indicated any intention not to have matters proceed in due course until almost a year later, when, on June 8, 1938, she filed a second affidavit which, for purposes of discussion, was identical with the one filed in June, 1937. As has been noted, after the first affidavit was filed, the garnishee answered alleging no liability, and the plaintiff thereafter filed no notice in writing electing to take issue. The pertinent statute (G. S. 1935, 60-948) reads, in part:
“The answer of the garnishee shall in all cases be conclusive of the truth of the facts therein stated, unless the plaintiff shall within twenty days serve upon the garnishee a notice in writing that he elects to take issue on his answer.” .
That provision of the code has been before this court on a number of occasions and under somewhat varying circumstances, and it has always been held to mean that if the notice in writing to take issue is not filed, the facts stated in the answer stand as true. (See Turner v. Williams, 114 Kan. 769, 775, 221 Pac. 267, 270; Munz v. Hill, 121 Kan. 640, 641, 249 Pac. 590; First State Bank v. Lowder, 132 Kan. 216, 294 Pac. 852; State Bank of Dodge City v. McKibben, 146 Kan. 341, 346, 70 P. 2d 1.) (See, also, 28 C. J. [Garnishment, § 451], p. 300; 5 Am. Jur. [Attachment and Garnishment, § 763], p. 61, and the latter part of G. S. 1935, 60-945, from which such a conclusion may be inferred.)
To avoid the effect of the above provision of the code, appellee takes two positions, one that she abandoned the first proceeding, and second, that under the provisions of G. S. 1935, 60-3485, she was seeking to subject moneys claimed to bé due from the casualty company to Schmuck to the payment of her judgment against Schmuck by an action, and not by following applicable provisions of the code respecting garnishment. In support she cites and relies on Exchange Bank v. Gulick, 24 Kan. 359. Although there is language used therein that seems favorable to plaintiff, an analysis will show the contrary. That action was filed in the justice of the peace court where provision for taking issue in the manner above discussed will not be found. In that case, after garnishment had been begun, the bank answered admitting liability on a nonnegotiable past-due certificate of deposit, on which answer plaintiff gave no notice the answer was unsatisfactory, but obtained an order for payment. Later he brought suit on the order, but dismissed it. It was contended he was estopped from maintaining his suit and alleging the answer was unsatisfactory. This court stated it did not so understand the statute, and that while plaintiff might have given notice the answer was unsatisfactory, that remedy was cumulative; that failure to give notice was no waiver of objection to the answer; that the truth of the answer was the substance, and the manner of ascertaining it was optional with the plaintiff and “until a final decision in either proceeding, he may abandon one, and substitute another.” That situation did not obtain here, nor was the same code provision applicable. Here plaintiff instituted proceedings in garnishment, the garnishee answered, the plaintiff did not make timely election to take issue, and the matter ended with the passage of the twenty days. That failure to take issue cannot be called an abandonment of the proceedings. The only way it could be abandoned would be by some affirmative action, such as dismissal of the proceedings or by the commencement of an independent action in the nature of a creditor’s bill or in the nature of a substitute for the proceedings already commenced and then only before the other proceedings had become final. (See Ludes v. Hood, Bonbright & Co., 29 Kan. 49.) And it may not be successfully contended now that either the first or second proceedings was an action under G. S. 1935, 60-3485. Although the name attached to the pleading is not conclusive, it is to be considered in connection with what was otherwise done. The pleading was filed in a pending suit to which the casualty company was not a party. No summons was issued, served and returned, as would be the case if an action were begun. On the contrary, a summons in garnishment issued. We hold that the filing of each pleading headed “Affidavit in Garnishment” was not the beginning of an action as referred to in the statute last mentioned. Nor have we overlooked plaintiff’s contention that her failure to take issue amounted to a discontinuance of the proceedings, and she was not prejudiced to commence another proceedings thereafter. This contention is predicated on that part of G. S. 1935, 60-945, providing for affidavit of no liability and for discharge in statutory language which, as a matter of fact, was included in the garnishee’s verified answer, and that where such affidavit has been filed, “thereby the proceedings against such garnishee shall be deemed discontinued . . . unless within twenty days thereafter the plaintiff serves notice on such garnishee that he elects to take issue on his answer,” etc.
The discontinuance is for the benefit of the garnishee, and the statute is not to be interpreted to mean that by failing to take issue on the first, or, as contended, on a successive, garnishee’s affidavit or answer, the plaintiff may avoid a determination of the garnishee’s liability.
We are of opinion that the failure of the plaintiff to take issue on the answer made to the first affidavit in garnishment determined the question of the garnishee’s liability, and when that was disclosed the trial court should have quashed the second garnishment proceedings and have rendered judgment for the garnishee. •
The conclusion above reached makes it unnecessary to discuss any questions concerning the casualty company’s liability to Joseph Schmuck as an additional insured under the insurance policy.
The judgment of the trial court is reversed. | [
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Per Curiam:
This is a proceeding in quo warranto to test the validity of a resolution (resolution No. 11275) recently adopted by Kansas City which recites in substance that in order to obtain necessary tenants for its recently constructed wholesale terminal fruit and vegetable market it is necessary in making leases with certain prospective tenants that the city expend certain sums in cash out of its gross terminal market income and to allow certain credits on rentals to such tenants. Preliminary to carrying this resolution into effect, the city adopted a supplemental resolution which-reads:
“Be It Further Resolved:
“That said board of city commissioners hereby request the attorney general of the state of Kansas to forthwith proceed in the nature of a quo warranto in the name of the state and against the city and its governing body to determine whether or not the city and its commissioners, in its proprietary capacity, have authority to pay such sums as are necessary in the discretion and sound judgment of the board of city commissioners to carry out, in the discretion of said board, such policies and transactions as may be to the best interest of said city in securing tenants for said Kansas City Food Terminal.
“Said attorney general is also requested to raise any and all other questions as he shall deem just and proper in the premises.
“Adopted by the board of commissioners this 16th day of December, 1939.”
This action was accordingly filed on December 18, 1939, pleading the pertinent facts. On December 19 the city answered, and on the showing made as to the urgency of an immediate hearing and determination the cause was orally argued in chambers the same day, and typewritten briefs were submitted.
The argument, particularly on behalf of the city, took a wider range than that involved in the precise issue tendered by the attorney general, and the court makes no ruling except on the precise question briefly stated above.
On that issue the court renders judgment in favor of the defendant city and its officials.
A formal opinion will follow when it can be prepared. | [
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The opinion of the court was delivered by
Harvey, J.:
This was an action to' partition certain described real property in Barber county. The controverted issue in the case was whether plaintiffs have any share in the property. The trial court found for plaintiffs. Defendants have appealed.
The pertinent portions of the record may be summarized as follows: The real property was owned by Andrew J. Ogden, who died March 28, 1913, leaving a will in which he had devised to his wife, F. E. Ogden, the real property in question, “to be held by her as her own separate property during her natural life, and at her death to be divided equally between our lawful heirs.” The will contained a similar provision respecting the personal property, the remainder, at the death or remarriage of the widow, to “go to our lawful heirs,” and by it the testator bequeathed “to each of my children, Flora Wilson, Frances Elizabeth Rowley, Joseph Andrew Ogden, Priscilla Jewell, Rosa May Parson and Vina Esther Ogden; and to James Ogden, the sum of ten dollars ($10) each to be paid out of my estate.” On April 9, 1913, the widow, F. E. Ogden, filed her verified petition for the probate of the will, in which she alleged that “Andrew J. Ogden left surviving him as his heirs at law F. E. Ogden, his widow; Flora Wilson, his daughter; Frances Elizabeth Rowley, his daughter; Joseph Andrew Ogden, his son; Priscilla Jewell, his daughter; Rosa May Parson, his daughter; Yina Esther Ogden, his daughter; and James Ogden, his son; all of said children being of full age; the said James Ogden being the son of the said Andrew J. Ogden, deceased, but not a son of his widow, F. E. Ogden.” The journal entry of the probate court, on the final settlement of the estate of Andrew J. Ogden, contains this paragraph:
“The court further finds that the said executrix, F. E. Ogden, is the widow of the late Andrew J. Ogden, deceased, that he had five daughters and two sons, namely, Flora Wilson, Frances Elizabeth Rowley, Priscilla Jewell, Rosa May Parsons, Vina Esther Thomas, Joseph Andrew Ogden and James Ogden; the said James Ogden being the son of the said Andrew J. Ogden, deceased, but not the son of his widow, F. E. Ogden, and that said children are all of full age.”
James Ogden died June 2, 1928, intestate, leaving plaintiffs as his sole heirs at law, and F. E. Ogden died May 28, 1937, without having remarried since the death of Andrew J. Ogden.
This action was filed April 30, 1938. Plaintiffs alleged that they were the heirs at law of James Ogden, who is a son and one of the beneficiaries in the will of Andrew J. Ogden. The petition contained other allegations usual in a partition action. A copy of the will of Andrew J. Ogden was attached as an exhibit to the petition. The defendants are the surviving children of Andrew J. Ogden and F. E. Ogden, his wife. They answered, admitting the formal parts of the petition, but specifically denied that James Ogden was a son of Andrew J. Ogden, or that plaintiffs have any interest in the real property. The reply was a general denial. On the trial defendants took the position that if James Ogden was a son of Andrew J. Ogden he was an illegitimate child. To meet that issue plaintiffs produced evidence to the effect that Andrew J. Ogden, openly and notoriously and over a number of years, had recognized James Ogden as his son; also, that he was not an illegitimate child, but a child by a former common-law marriage. They relied, also, upon the allegations of the petition filed by F. E. Ogden for the probate of the will of Andrew J. Ogden and by the judgment of the probate court finding who were the heirs of Andrew J. Ogden. The trial court specifically found that James Ogden was a son of Andrew J. Ogden. We have examined the evidence and find it is ample to sustain that finding of the court.
Appellants further contend that the language of the will by which, at the death of the widow of the testator, the real property was to be divided equally between “our lawful heirs” should be construed as limited to the children of Andrew J. Ogden and his wife, F. E. Ogden, and should not be construed as including James Ogden, even if he were a son and therefore a lawful heir of Andrew J. Ogden. We have considered this contention and are unable to sustain it. The language was not particularly well chosen, but it certainly includes lawful heirs of the testator, therefore would include a child of the testator by a former marriage, or even an illegitimate child of the testator who had been openly and notoriously recognized as a son of the testator. (G. S. 1935, 22-122.)
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
Dawson, C. J.:
This is the second appearance of this case in' this court. (Turner v. Jarboe, 145 Kan. 202, 64 P. 2d 26.) In the former appeal we had to consider the sufficiency of plaintiff’s petition in which the plaintiff, Mrs. Maude Turner, alleged that through false and fraudulent representations of the defendant, Mrs. Harriet Jarboe, on which she relied-, she was induced to exchange certain real estate and personal property for a hotel property and its furnishings in Kansas City, Mo.
Summarizing the contents of plaintiff’s original petition, which she filed on June 10,1935, it was alleged that on December 20, 1934, the contract for the exchange of properties was effected; that on January 5, 1935, plaintiff took possession of the Missouri property known as the Hollywood Hotel, a three-story structure of thirty-nine rooms, together with its furnishings; that the hotel property and the condition of the business thereat were greatly inferior to the representations which the defendant, Mrs. Jarboe, had made to plaintiff and on which plaintiff had relied in making the contract of exchange; that plaintiff tendered to defendant a deed and bill of sale to the hotel property, and plaintiff asked—
“That all of said transactions, conveyances and written instruments be surrendered, canceled and held for naught, and that said defendants, Holly Jarboe and Harriet Jarboe, should be required to pay the expenses of this suit, including a reasonable attorneys’ fee for and on account of the willful, malicious, false and fraudulent statements hereinbefore alleged to have been made by them, and that the plaintiff has been compelled to and has paid out since the transfers above mentioned and before she discovered the fraud that had been practiced upon her, the sum of $1,409.58, or in all that plaintiff have a judgment against said defendants, Holly Jarboe and Harriet Jarboe and Leo McShane, for the sum of $3,500.”
Plaintiff also alleged that she had been compelled to make certain expenditures for which she claimed the right of recovery. Her petition closed with a prayer for judgment for $4,500, and that the deeds executed by her to Mrs. Jarboe be canceled and that she be required to reconvey to plaintiff the properties she had received in the contract of exchange.
The action was begun on June 10, 1935. Plaintiff’s petition was met by a demurrer, which the trial court overruled, and on appeal that judgment was reversed — this court holding that the petition was drawn on two inconsistent theories, one for rescission and another for damages. Section 2 of our syllabus reads:
“A petition in an action for rescission of an exchange of property on the ground of fraud contained allegations of damages because of the fraud and included a prayer for a money judgment therefor. Held, these allegations and that portion of the prayer should have been stricken from the petition oh motion, and if that was not done a demurrer to the petition should have been sustained.”
When the cause was remanded to the district court, plaintiff filed a third amended petition on March 8, 1937, which in large measure conformed to her first petition except that' so much thereof as tended to plead a cause of action for a money judgment for damages was eliminated.
To this petition defendants answered with a general denial, invoked the statute of limitations, pleaded laches, and—
“Further answering, the defendants state that immediately following the execution of said written contract, . . . plaintiff went into possession of the property conveyed to her by these defendants pursuant to said written contract; that plaintiff proceeded to operate said hotel property, collect rents, conduct said business, and perform all other conditions required of her to be performed by said written contract until after June 10, 1935, when the original petition was filed in this action, and if any of the grounds upon which plaintiff bases this action existed, all of which these defendants deny, the express agreement, conduct and action of plaintiff in entering into possession of said premises, operating said business, collecting and retaining the rents from said hotel and all other acts and conduct consistent with an affirmance of said contract, until after the time her original petition was filed in this action on June 10, 1935, constitute a -waiver thereof and the plaintiff is now barred and estopped from maintaining this action.
“Further answering, these defendants state that the plaintiff cannot now make good the claimed tender contained in paragraph 9 of her third amended petition for the reason that she does not now have title to either the real or personal property mentioned therein.”
Plaintiff filed a reply in which, among other allegations, she alleged that—
“She is not guilty of laches and has not waived any of her rights herein for the reason that she did not discover the fraud that had been committed upon her, . . . nor did she know nor learn of the real value of the property, which had been misrepresented to her, and which was the property defendants traded to her as a part of the consideration for the deeds that they obtained from her to the property she seeks to recover by her petition herein, and she did not know and did not learn of the exact situation until about the time she filed this suit, and that as soon as she did learn of the fraud that had been committed upon her, as soon as she could thereafter do so, she brought an action to set aside the conveyances executed by her and tendered back to the defendants all that she had received from them.”
On these issues the cause was tried.
Plaintiff testified when she was negotiating for the hotel she was not permitted to see but a few rooms and was assured by defendant that the furniture in all the rooms was in good shape, that the hotel was full of good-paying tenants who had been there a long time and that there was a list of tenants waiting for vacancies, that the income of the hotel was $1,000 per month, and that the property which was mortgaged for $16,000 was worth $23,000, and that plaintiff relied on these representations when she made the contract of exchange.
Plaintiff further testified that she took possession of the hotel on the evening of January 5, 1935, and discovered that two truck loads of the furniture in the hotel had not belonged to defendant and had been taken out. She also discovered that the hotel furniture was in bad shape, not as it had been represented. Within two weeks about one-third of the tenants moved out, and there was no waiting list. She testified:
“Oh my! They moved so fast — There was hardly anyone there in January, after the first two weeks.”
She also testified:
“I tried, after I had been in the hotel a while, to contact Mrs. Jarboe. I had been there for about two months. I called her up on the telephone and asked her if she would not come down and talk to me. She said she was awfully busy. I asked her if she could not come down when she wasn’t quite so busy. She said she was awful busy, and then I said: ‘Well, then, make an appointment and let me come out to your house and talk to you.’ ‘No,’ she said, 'that won’t do.’ She said, T don’t want you out here.’ I got to talk to her just once after I got into this hotel. I told her, ‘Mrs. Jarboe, this place is emptying up so fast.’ She said, ‘Mrs. Turner, don’t pay any attention to it, because,’ she said, ‘it will fill right up again.’ ”
Plaintiff also gave testimony touching the income of the hotel— that she only had occupants for about 15 or 16 rooms of the hotel, that the income was about $45 per week, and the expenses were about $156 per month. Other witnesses testified in plaintiff’s behalf touching the poor condition of the hotel and its furnishings, that for three years immediately prior to the exchange of properties the hotel had been operated at a loss, that its outgoing tenant had unavoidably defaulted in the payment of rent to the extent of $3,500, and that defendant had said to the outgoing tenant, “I’ve got to get rid of this place, I’ve got to get rid of it or trade it for something.” A witness who had worked in the hotel as janitor before and after plaintiff took charge testified as to the furnishings:
“I know the Hollywood Hotel. I went there in the spring of 1934 and got through in the spring of 1935. . . . The beds, the iron part of it was in pretty good condition, but the tickings were soiled. The sheets were torn and patched up, the pillowcases were the same, the covers were nothing extra to speak of. The rocking chairs and straight-backed chairs were rickety and the arms were loose and the spindles were loose. The legs would come out if they were tipped back.”
Touching the condition of the hotel itself, the same witness testified that the heating system was in bad condition, that the hot-water coils leaked, and that he had trouble with the plumbing and the faucets.’ “I couldn’t tamper with them for fear if I put any pressure onto them, something would snap.”
On May 21, 1935, plaintiff sent a communication to defendant notifying her that she rescinded the contract of December 20, 1934, because of false representations defendant and others had made to her and on which she relied, and plaintiff therein stated that she thereby tendered a deed to the hotel property and tendered also a bill of sale of all the chattel property she had received, and demanded a return and surrender of all the property, real and personal, plaintiff had delivered to defendant in exchange for the hotel.
This communication was ignored, and on June 10, 1935, plaintiff commenced the action in which her petition was held demurrable in this court in Turner v. Jarboe, supra.
Following the commencement of the action, plaintiff remained in the hotel until June 22, 1935, at which time she abandoned it. On cross-examination she testified:
“Q. You walked out on June the 22d, didn’t you? A. Yes.
“Q. You left it then? A. Yes, sir; I left it.
“Q. What happened to the furniture, you know not? A. No; I don’t know.”
Plaintiff also testified that she was about fifty years of age and had been born and reared in a rooming house, that she operated hotels and rooming houses all her life.
It was also developed and admitted that the hotel property was sold in foreclosure of a trust deed sometime in the latter part of 1935, and had passed completely out of plaintiff’s control.
At the conclusion of plaintiff’s evidence defendant’s demurrer thereto was sustained, and this ruling is the basis of this appeal.
Counsel for plaintiff, express their uncertainty as to the particular ground on which the demurrer was sustained. Be that as it may, if the ruling is correct, the trial court’s reasons for its ruling are not very important. (In re Estate of Dennis, 146 Kan. 121, 126, 68 P. 2d 1083.)
It is a familiar rule of law that a person who has been duped into the making of a contract must act promptly and effectively in order to take advantage of his right to rescind it. Once he has been apprised of sufficient facts to put him on inquiry as to whether he was a victim of misrepresentation or fraud which induced him to make the contract, he cannot let the matter drift, nor can he hesitate for long between two courses of action, one for rescission and another for damages. (Sylvester v. Lynde, 113 Kan. 450, 215 Pac. 305, and citations.) In Beneke v. Bankers Mortgage Co., 119 Kan. 105, 237 Pac. 932, it was said:
“A person fraudulently induced to buy and pay for property delivered to him has two remedies, one legal and one equitable. He may affirm the contract and sue for damages, or he may disaffirm and sue for rescission. If he affirm, he keeps the property, the seller keeps the consideration paid, and the buyer recovers damages for the difference in value between what he received and what he should have received. If he disaffirm, he seeks restoration of the status existing when the sale was made. Affirmance and disaffirmance are contradictory of each other. The sale cannot stand and at the same time be set aside'. Because the remedy by way of damages rests on affirmance, and the remedy by way of rescission rests on disaffirmance, the two are inconsistent and incompatible. Resort to one excludes resort to the other, and in-choosing a remedy it is the first decisive step which counts.” (p. 107.)
In Cleaves v. Thompson, 122 Kan. 43, 251 Pac. 429, it was said:
“Where a party desires to rescind a contract on the ground of fraud and misrepresentations, he must, upon discovery of the facts, at once or within a reasonable time announce his purpose and adhere to it.” (Syl. f 1.)
The equitable remedy of rescission is only open to the diligent. The time within which an action for rescission may be commenced is governed by the matter of plaintiff’s diligence rather than by some provision of the statute of limitations. It must be commenced promptly or it will be demurrable. In Wood v. Staudenmayer, 56 Kan. 399, 43 Pac. 760, it was said:
“A rescission of the contract for the purchase of land and the cancellation of the conveyances, on the ground that the representations of the vendor were false and fraudulent, is an extraordinary power of equity, . . . and the right to disaffirm, the contract must be exercised promptly after the discovery of the fraud.” (Syl. U 3.)
To the same effect was Trust Co. v. McIntosh, 68 Kan. 452, 75 Pac. 498; see, also, Laches, in 2 Bouvier, Rawle’s 3d revision, 1820-1823.
The present action for rescission cannot be said to have been begun until the filing of plaintiff’s third amended petition on March 8, 1937, which was two years, two months and three days after plaintiff took possession of the hotel. The very night she took possession she had notice that some of the representations made to her were false — that she did not get all she had bargained for. Two loads of furniture were gone. She was an experienced hotel keeper and the condition of the furniture would be obvious to her as soon as she looked at it. Indeed, one of the means whereby she was duped into the bargain, as she alleged and testified, was that she was put off when she desired to inspect the hotel and furnishings before she traded for it. Defendant had assured her that such an inspection was not necessary, that it was all in as good a condition as what she had seen some time previously, which representation was not true.
No significance can be attached to the letter plaintiff sent to defendant on May 21, 1935, signifying her intention to rescind, and demanding a return of the real and personal property plaintiff had delivered in exchange for the hotel. She did not follow up that expressed intention to rescind for nearly two years thereafter.
Counsel for plaintiff seek to give legal potency to the petition which she did file on June 10,1935, but since it was held demurrable because of misjoinder of inconsistent causes of action, it availed naught to excuse laches nor to interrupt the running of the statute of limitations. Not until plaintiff had definitely pleaded a cause of action for rescission without cluttering it up with matters of alleged damages can it be said that she made her election to sue for rescission and not for damages. That election was made on March 8, 1937. Until that date plaintiff could not be said to have chosen whether she would prosecute a cause of action for rescission or one for damages. Her defective petition of June 10, 1935, did not serve to toll the statute of limitations. In Clark v. Wilson, 149 Kan. 660, 88 P. 2d 1070, it was said:
“Where a demurrer to a petition is sustained on the ground that the petition does not state a cause of action, the filing of such petition does not arrest the running of the statute of limitations, and the filing of an amended petition does not relate back to the date of the filing of the original petition so as to deprive the defendant of the defense of the statute.” (Syl.)
See, also, Malone v. Young, 148 Kan. 250, 264, 81 P. 2d 23.
But whether the time in which plaintiff was entitled to commence her action be measured by the equitable rule of laches or by the two-years provision of the statute of limitations pertaining to an action for relief on the ground of fraud (G. S. 1935, 60-306, Third), its commencement by the filing of her third amended petition on March 8, 1937, for relief on the ground of fraud practiced on her on and prior to January 5, 1935, of which fraud she began to be aware on that date, and of which she was sufficiently apprised within two weeks thereafter, was too late.
Some other questions are argued in the briefs, but they do not require discussion.
The judgment is affirmed.
Allen, J., dissents. | [
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The opinion of the court was delivered by
Wedell, J.:
This was an action by a judgment debtor against the administrator of two estates of deceased cojudgment debtors to compel contribution after the joint and several judgment had been satisfied out of the property of the plaintiff. The plaintiff was one of four judgment debtors in a prior mortgage-foreclosure action. Plaintiff prevailed in the instant action for contribution, and the administrators of the decedents’ estates have appealed.
The judgment debtors had purchased the mortgaged real estate and assumed payment of the mortgage debt. A joint and several judgment was rendered in the mortgage-foreclosure action against the plaintiff, the two parties now deceased, and one other person.
The two estates here involved are those of Elizabeth Kreitzer and John Kreitzer, Jr. Harry A. Lanning was appointed administrator for each estate. The mortgagee was the Federal Land Bank of Wichita. It obtained a foreclosure judgment December 7, 1932, in the sum of $7,815.14, together with interest thereon at eight percent. The land was sold for $5,807.67, leaving a deficiency on its judgment in the sum of $2,007.47. The sale was confirmed February 27, 1933. Elizabeth Kreitzer died December 7,1933. The Federal Land Bank of Wichita filed an action September 18, 1937, upon its judgment against this appellee, in the state of Nebraska. It obtained a judgment there and on November 22, 1937, sold land of appellee to satisfy the unpaid balance of its joint and several judgment. John Kreitzer, Jr., died November 27, 1937. On January 27, 1938, petitions were filed in the probate court of Nemaha county, Kansas, for the appointment of administrators in the estates of both Elizabeth Kreitzer and John Kreitzer, Jr. Administrators were appointed for the respective estates February 17, 1938. On the date of their appointment, administrator’s bonds were given and approved. The instant action by appellee against the administrators for contribution was filed January 24,1939.
We shall first consider the validity of the judgment rendered against the administrator of the estate of Elizabeth Kreitzer. ' Appellee contends his cause of action did not accrue against his co-judgment debtors until the judgment in favor of the Federal Land Bank was satisfied out of the sale of his land in the state of Nebraska on November 22, 1937. He further contends that thereafter he had a right to establish his claim against the respective estates by obtaining a judgment thereon in the district court and by exhibiting a copy of such judgment to the probate court (G. S. 1935, 22-707), and that nonclaim statutes did not begin to run against his demand until the appointment of the administrator and the filing of the administrator’s bond. In support of his contention that the action was not barred, appellee cites Robertson v. Tarry, 83 Kan. 716, 112 Pac. 603; Robertson v. Tarry (on rehearing), 85 Kan. 450, 116 Pac. 486; Bowlus, Executor, v. Winters, 117 Kan. 726, 233 Pac. 111; and Farmers State Bank v. Callahan, 123 Kan. 638, 256 Pac. 961. He relies especially upon the Robertson case.
Appellants contend appellee’s claim is that of a creditor of the estate of Elizabeth Kreitzer, and since appellee failed to have an administrator appointed within a reasonable time after the period of fifty days and one year elapsed, from the death of Elizabeth Kreitzer, his claim is barred. He directs our attention to the fact that four years and fifty-one days elapsed between the date of Elizabeth Kreitzer’s death and the filing of a petition for the appointment of an administrator. Appellants also urge appellee has no claim against the estate of Elizabeth Kreitzer for the reason that no execution was issued by the Federal Land Bank on its judgment for a period of five years after its rendition, and that its judgment became dormant. (G. S. 1935, 60-3405.)
We deem it unnecessary to discuss the various contentions of the respective parties insofar as the judgment against the estate of Elizabeth Kreitzer is concerned. Under the conceded facts, we find no place for the application of the contentions made by the parties. Those contentions proceed upon the fallacious theory that on November 22,1937, the date appellee’s land was sold in Nebraska, there existed a valid judgment in favor of the Federal Land Bank and against Elizabeth Kreitzer. That judgment became dormant upon the death of Elizabeth Kreitzer, December 7, 1933. It might have been revived by her judgment creditor within two years after her death, but not thereafter. (G. S. 1935, 60-3221; Harvey v. Wasson, 91 Kan. 70, 136 Pac. 919; Butler v. Rumbeck, 143 Kan. 708, 56 P. 2d 80.) The judgment of the bank against Elizabeth Kreitzer was at no time revived. The judgment against her was not only dormant, but dead after December 7, 1935. Therefore, when the bank filed its action in Nebraska on September 18, 1937, and when it sold the property of appellee in Nebraska on November 22, 1937, Elizabeth Kreitzer was not indebted to the bank. Since she was not indebted to the bank, appellee could not and did not pay her debt. It follows appellee never acquired a cause of action against Elizabeth Kreitzer or her estate for contribution. Since appellee never had a claim against her estate it is, of course, futile to discuss statutes of nonclaim or limitation.
What about the judgment against the estate of John Kreitzer, Jr.? A brief review of dates will be helpful.
December 7, 1932. The joint and several judgment was rendered.
November 22, 1937. Appellee’s land was sold to satisfy the judgment.
November 27, 1937. John Kreitzer, Jr., died.
February 17, 1938. The administrator for the estate of John Kreitzer, Jr., was appointed and his bond was filed and approved.
January 24, 1939. Appellee filed this independent action in the district court for contribution.
This action by appellee for contribution' is based upon an implied promise of the cojudgment debtor to contribute toward the payment of the common debt when appellee paid that debt. (Mentzer v. Burlingame, 78 Kan. 219, 220, 95 Pac. 836; Guarantee Title and Trust Co. v. Viola State Bank, 124 Kan. 776, 779, 262 Pac. 1037.) That cause of action accrued to appellee when the common obligation was paid out of appellee’s property, and the statute of limitation against his cause of action did not begin to run until the debt was paid on November 22, 1937. (13 C. J. 833, Contribution, § 27, b. Limitations; 18 C. J. S. 23, Contribution, § 13, b. Limitations; 13 Am. Jur., Contribution, § 89; Mentzer v. Burlingame, supra; Guarantee Title and Trust Co. v. Viola State Bank, supra.)
G. S. 1935, 60-3437, provides for contribution between judgment debtors. It provides that a person who pays the judgment is entitled to the benefit of the judgment to enforce contribution or payment if, within ten days after his payment, he files with the clerk of the court where the judgment was rendered notice of his payment and claim to contribution, and that upon the filing of such notice the clerk shall make entry thereof in the margin of the docket. Such notice was not filed in the instant case. It has, however, been held the notice prescribed by the statute need not be given where the party seeking reimbursement brings an independent action to compel contribution, and that the notice provision was intended to give the additional privilege of enforcing the right to contribution by the 'summary method of taking out execution upon the very judgment he has paid. (Fort Scott v. Railroad Co., 66 Kan. 610, 612, 72 Pac. 238; Reed v. Humphrey, 69 Kan. 155, 160, 76 Pac. 390.) The action against the estate of John Kreitzer, Jr., was properly brought and was not barred by any statute of limitation.
Was the independent action equivalent to a demand against the estate and, if so, was it in time under our nonclaim statutes? Appellants contend the statutes of nonclaim begin to run from the date of the death of the decedent. In support of the contention, they rely upon cases involving claims of creditors in which no administrator had been appointed for more than fifty days and one year after the death of the decedent, and on certain other cases in which the claims of creditors were not filed within one year after the date of the administration bond. Those cases are not applicable to the facts in this case. Here the administrator’s bond was filed in less than three months after the death of the decedent and the action was filed within one year from the date of the administrator’s bond.
Appellants also rely upon section 4, chapter 218, Laws of 1937 (G. S. 1937 Supp. 22-70-2), which became effective June 30, 1937, and provides:
“All demands against an estate, whether due or to become due, whether , absolute or contingent, not exhibited as required by statute within one year after the date of the administration bond, shall be forever barred, including any demand arising from or out of any statutory liability of decedent or on account of or arising from any liability of decedent as surety, guarantor or indemnitor, saving to infants, persons of unsound mind, imprisoned or absent from the United States, one year after the removal of their disabilities, from payment by an administrator or by an executor unless a provision of a will requires payment of a demand filed later. No creditor shall have any claim against or lien upon the real property of the decedent, other than a lien of record prior to death of decedent, unless an executor or administrator has been appointed and he shall have filed his claim in the probate court within one year after the death of decedent.”
We need not deal, in the instant case, with the last sentence of that statute upon which appellants rely. That portion of the statute pertains to the subject of a claim against, or a lien upon, real prop erty of the decedent. In other words, it specifies the property out of which the creditor may not obtain satisfaction of his claim unless the claim is filed in the probate court within one year after the death of the decedent. The question whether appellee might have his judgment satisfied out of decedent’s real estate was not presented to or ruled upon by the trial court and it is not here for review. The questions presented were and are whether appellee had a claim against the estate of John Kreitzer, Jr., and, if so, whether it was made in time. The first of those questions has been answered. Was the claim filed in time? The first portion of the statute is clearly applicable to that question. John Kreitzer died November 27, 1937. The administrator’s bond was filed and approved February 17, 1938. This action to determine appellee’s right to contribution from thg estate of John Kreitzer, Jr., was filed January 24, 1939. That was less than one year from the date of the administrator’s bond. G. S. 1935, 22-727, provides:
“No executor or administrator, after having given notice of his appointment as provided in this act, shall be held to answer to the suit of any creditor of the deceased unless it be commenced within one year from the time of his giving bond.”
G. S. 1935, 22-704, provides:
“All actions commenced against such executor or administrator after the death of the deceased shall be considered demands legally exhibited against such estate from the time of serving the original process on such executor or administrator.” t
See, also, Bristow v. First Trust Co., 140 Kan. 711, 715, 38 P. 2d 108.
The action against the administrator of the estate of John Kreitzer, Jr., was not barred by any statute of limitation or nonclaim and the judgment against his estate is affirmed. The judgment-against the estate of Elizabeth Kreitzer must be reversed. It is so ordered. | [
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|
The opinion of the court was delivered by
Smith, J.:
This was an action to partition real estate. C. D. Pfister died owning an interest in seventy-eight acres of Brown county land. This land constituted his homestead at the time of his death, but his administrator claims part of the property may now be applied to the satisfaction of the debts of his estate. Judgment was for certain heirs holding that their share of the estate was not subject to pay the debts of the -father. The administrator appeals.
The deceased was survived by his widow, two married daughters, who did not live on the property, and an incompetent son. These persons constituted his heirs at law.
After the death of the father one of the daughters, Sarah B. Craig, conveyed her interest in the land to the other daughter, Georgia P. Brigham. The widow,'Stella Pfister, and the incompetent son continued to make their home on the land after the death of the father. On September 28, 1938, the widow and daughter Georgia brought this action. It should be noted that Georgia did not live on the land and had not lived on it for many years before her father’s death. The trial court partitioned the land, and the interests inherited from the father by Georgia and her sister Sarah were set off to Georgia. The administrator of the estate intervened in the action and contended that the share of Georgia and Sarah was subject to the debts of the father’s estate. The trial court held against the administrator, and decided that the whole of the interest of the father was still exempt from such debts as the homestead of the widow and incompetent son.
From this decision the administrator appeals, and claims that the property set off to Georgia, and which she and her sister had inherited from their father, was subject to the debts of the estate. The administrator makes no claim that the property set off to the widow and the son or the proceeds therefrom are not still exempt because of the homestead character thereof.
The homestead was secured to us by section 9 of article 15 of the constitution. It reads as follows:
“A homestead to the extent of one hundred and sixty acres of farming land, or of one acre within the limits of an incorporated town or city, occupied as a residence by the family of the owner, together with all the improvements on the same, shall be exempted from forced sale under any process of law, and shall not be alienated without the joint consent of husband and wife, when that relation exists; but 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: Provided, The provisions of this section shall not apply to any process of law obtained by virtue of a lien given by the consent of both husband and wife.”
Pursuant to the above constitutional provision, what is now G. S. 1935, 22-102 to 22-105, was enacted. Those sections are as follows:
“A homestead to the extent of one hundred and sixty acres of farming land, or of one acre within the limits of an incorporated town or city, occupied by the intestate and his family, at the time of his death, as a residence, and continued to be so occupied by his widow and children, after his death, together with all the improvements on the same, shall be wholly exempt from distribution under any of the laws of this state, and from the payment of the debts of the intestate, but shall be the absolute property of the said widow and children: Provided, however, That the provisions of this section shall not apply to any encumbrance given by the consent of both husband and wife, nor to obligations for the purchase of said premises, nor to liens for the erection of improvements thereon.” (22-102.)
“If the intestate at the time of his death owned a greater number of acres of land adjoining his residence than is allowed for a homestead in the preceding section, the widow may select said homestead.” (22-103.)
“If the intestate left no children, the widow shall be entitled to said homestead; and if he left children and no widow, such children shall be entitled to the same.” (22-104.)
“If the intestate left a widow and children, and the widow again marry, or when all of said children arrive at the age of majority, said homestead shall be divided one-half in value to the widow and the other one-half to the children.” (22-105.)
These provisions have been the subject of a great deal of litigation. We shall not endeavor to cover the whole field of homestead law in this opinion.
It is the contention of the appellees in this case that the statute exempting the homestead from payment of debts is a distinct exemption from the statute providing for the division of the homestead. She argues that G. S. 1935, 22-102, provides that the proceeds from the sale of the land constituting a homestead are exempt from the payment of debts under one statute and are still subject to division or partition under the other statute. It should be remarked here that it is so well settled as not to require citation of authorities that the homestead may be abandoned by the owner or by his widow or by his children. Whether or not it has been abandoned is a question of fact to be determined from all the circumstances.
In the case we are considering it is admitted by all parties that the two daughters whose share is sought to be held to pay the debts of the father had abandoned this homestead long before the death of their father. So we -do not have the question of whether or not these two daughters had actually abandoned this homestead.
We do not have the question of whether the homestead may be partitioned as long as the widow or one of the children is living on it as a homestead. In this case the widow and one of the children brought the action, and the only other child, the incompetent one, was made a party through his guardian. He filed a general denial, but did not contest the action, and has not appealed.
The appellees cite and rely on what this court said in Dayton v. Donart, 22 Kan. 256. It is difficult to see how this opinion helps appellees in this case. In that case a father died leaving a homestead and many more debts than his personal property would pay. At the time of his death his family consisted of his wife and five children. While they resided on the land two of the children conveyed their interest in the homestead to their mother and she conveyed portions of her interest to other parties for a consideration of a conveyance of a town lot which she afterwards made her homestead. On proper application the probate court ordered the land sold to pay the debts of the decedent. On appeal this order was approved by the district court. On the appeal to this court the widow and children and the parties to whom the widow had conveyed part of her interest argued that when the father died the title to the homestead went absolutely, unconditionally, entirely, and finally to his widow and children then occupying the premises. This court held against this theory and said:
“In. our opinion, when a man. dies intestate, leaving a widow and children, the ultimate title to his homestead descends to his widow and children just the same as the title to all his other real estate does, except that it descends to them subject to a homestead interest vested in the widow and such of the children as occupy the homestead at the time of the intestate’s death.” (p. 269.)
The exception at the close of the above quotation should be noted. Evidently this court had the idea that the homestead interest vested only in the wife and such children as occupied the premises at the time of the intestate’s death. This court said further on in the opinion:
“But evidently from the statutes they hold the property as their absolute property, free from debts and division only while some of them occupy the same as their homestead.” (p. 270.)
The above language carried the implication, at least, that the land would be treated as a homestead only as to the wife and the children who had not abandoned it. The net result of that case is set out in the following words:
“If we are correct in this — and we think we are, for we know of no reason why we are not correct — then it necessarily follows, from prior decisions of this court, that if the property or any interest therein is sold and conveyed while the property is still occupied as a homestead by the widow and any one or more of the minor children, the title to such property or interest passes to the purchaser free from all debts, except prior encumbrances given by the intestate and wife, or grantor and wife or husband, and taxes, and debts for purchase-money and improvements, although the property may afterward be abandoned as a homestead by the widow and children.” (p. 270.)
It should be noted that the conveyance of the interest spoken of in the above quotation is the interest of the widow and children who still occupy the place as a homestead. This must be true in view of the statement of this court earlier in the opinion that the ultimate title to the homestead descends to the widow and children just the same as the title to all the real estate except that it descends to them subject to a homestead interest vested in the widow and such of the children as occupy the homestead at the time of the death of the intestate.
In Sage v. Ijames, 118 Kan. 11, 233 Pac. 1013, the homestead was ordered sold by the probate court so that the proceeds of the sale could be used for the benefit of two minor heirs. The action was to subject the proceeds of the sale to the payment of debts of the deceased father. This court first took pains to make it clear that the two minors had not abandoned the homestead, and then followed the rule announced in Dayton v. Donart, as follows:
“'If the property, or any interest therein, is sold and conveyed while the property is still occupied as a homestead by the widow and any one or more of the minor children, the title to such property or interest passes to the purchaser free from all debts, except prior encumbrances given by the intestate and wife, or grantor and wife, or husband, and taxes, and debts for purchase-money and improvements, although the property may afterward be abandoned as a homestead by the widow and children.’ Syl. II2.” (p. 13.)
This is no authority for a holding that where land is sold in a partition action the share of an heir who had abandoned the homestead long before the death of-his father can take his or her share of the homestead free from the liability to pay the debts of the father’s estate. These children take their share of their father’s estate. They did not lose that by leaving home, and abandoning the homestead. They take, however, just a part of his estate and not a part of his homestead.
Barbe v. Hyatt, 50 Kan. 86, 31 Pac. 694, was a case where the probate court had ordered the sale of real property to pay debts. The owner of the real estate left to his widow such portions of the land as might be allowed her by law and to a son the southwest forty acres. There were other adult children. When the executor found that the personal property was insufficient to pay the debts of the estate he asked for authority to sell the southwest quarter of the homestead. This would be the quarter of the homestead that was not left to anyone. The probate court held that this real estate was occupied as a homestead and could not be sold to pay debts. Just before this holding by the probate court a judgment was entered in an action brought by the widow partitioning the homestead under which the widow was awarded the north half of the homestead and the son was awarded the southwest quarter and the other forty acres was allotted to the remaining heirs. This forty acres remained unsold and was not occupied by anyone. On proper application to the probate court this quarter of the homestead was ordered sold to pay debts. On appeal the district court held that all the land was exempt from the payment of the debts of the deceased and that by virtue of the proceedings in partition it had become the absolute property of the widow and children of the deceased according to their respective .interests. It should be noted that this is what the appellees contend for in this case. On appeal this court said:
“The order of the probate court directing the sale of the southeast forty acres of the homestead should have been affirmed. It has been settled that the death of the owner of the homestead does not transfer the title absolutely and unconditionally to the widow and children. It descends to them the same as other real estate owned by the deceased, except that it is subject to the homestead interests. So long as it retains its homestead character it cannot be sold to pay ordinary debts, nor can there be a compulsory division and distribution. While it is so occupied it may be conveyed by the persons in whom the homestead interests vest, and the title to the property or any interest therein will pass free from any liability for the ordinary debts of the estate. Abandonment by them, however, will destroy the homestead interest, and when it is .abandoned it becomes subject to the debts of the estate, the same as other lands which were never impressed with the homestead character. This homestead interest, however, only vests in the widow and such of the children as occupied the homestead at the time of the owner’s death.” (p. 89.)
Except for the fact that the land in that case was divided in kind, and a particular tract allotted to each of the claimants who was entitled to homestead rights, while in this case the land was sold and the proceeds divided, there is no difference in these cases. This difference would have no effect on the legal principles we are considering.
To the same effect is the holding of this court in Northrup v. Horville, 62 Kan. 767, 64 Pac. 622, and Postlethwaite v. Edson, 102 Kan. 104, 171 Pac. 769.
The Judicial Council of this state made a general study of the law in relation to homesteads and published the result in its bulletin for July, 1935. In that particular bulletin, at page 76, the rule is stated as follows:
“It will thus be seen that the homestead exemption from decedent’s debts continues in favor of adults as well as minors; and such exemption survives to occupying or nonoccupying members of the family as long as it is occupied as a homestead by the widow or widower, or by any of the children, but upon ceasing to be occupied as a homestead by any members of the family, the share of one not occupying it, if it has not been conveyed while yet a homestead, becomes liable for the debts of the decedent.”
The latter portion of the above is the answer to the question we are considering. It is upheld by the authorities we have heretofore cited.
The judgment of the trial court is reversed with directions to proceed in accordance with the views expressed herein. | [
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The opinion of the court was delivered by
Allen, J.:
In each case the defendants filed separate demurrers to the amended petitions of the plaintiffs. The appeals are from the orders and rulings of the trial court in sustaining the demurrers.
These appeals present the same questions ruled upon by this court in the case of Reynolds v. Armour & Co., 149 Kan. 460, 87 P. 2d 530. The allegations in the petitions are in substance the same as in the Reynolds case and these appeals are governed by that decision. Accordingly, the judgments must be and are hereby affirmed.
In Re Appeals Against Armour & Co.
Per Curiam: The appeals in the following numbered cases, 34,617, 34,618, 34,619, 34,620, 34,621, 34,631, 34,632, 34,633, 34,634, 34,635, which we permitted to be filed without the usual deposit for costs, present the same questions and are governed by the appeals against Armour & Co. in cases 34,622 and 34,681, this day decided. The judgment of the trial court in each of these cases is affirmed.
Counsel for appellants in the above-numbered actions also presented for filing with the clerk of this court appeals in thirty-nine other cases. In none of them was a deposit for costs tendered. They are companion cases to cases 34,622 and 34,681. Under an order of this court these additional thirty-nine cases were not placed on the docket, but have been held awaiting our decision in the two representative cases above noted. Accordingly, we order and direct that the clerk of this court will not file or docket the appeals in the thirty-nine additional cases. | [
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The opinion of the court was delivered by
Wedell, J.:
This was an action in partition and ejectment. Defendants prevailed, and plaintiff has appealed.
An undivided one-twelfth interest in land is involved. Appellant’s claim of title to that interest is based upon a sheriff’s deed, issued and delivered July 3, 1936. The owners of the entire interest were made defendants. The real issues, however, are between the appellant and appellee, W. D. Clark, who claims title to the one-twelfth interest involved, by virtue of a warranty deed from his brother, George L. Clark, executed October 9, 1931. It is conceded W. D. Clark had an undivided one-twelfth interest before he received a deed for the brother’s one-twelfth interest.
Appellant claims George L. Clark, her debtor, executed the deed to his brother, W. D. Clark, for the purpose and intent of defrauding, hindering and delaying her in the collection of a debt owed to her by George L. Clark, and the deed is therefore void and should be set aside. Appellant also contends she obtained the interest of George L. Clark by virtue of the sheriff’s deed.
A brief narrative of the chronological order of events may be helpful. They are: On March 5, 1930, George L. Clark became indebted to appellant on a promissory note in the sum of $322.50. George L. Clark executed a warranty deed to W. D. Clark to his one-twelfth interest in the land October 9, 1931. On May 16, 1932, George L. Clark and his wife executed a mortgage on the one-twelfth interest to one M. C. Cavanaugh in the sum of $866.30. That mortgage was recorded June 22, 1932. On July 12, 1932, appellant instituted an action against George L. Clark on the note and obtained judgment thereon October 25, 1932. Execution was issued July 20, 1933, and on October 7, 1933, the purported one-twelfth interest of George L. Clark was sold to the plaintiff at sheriff’s sale. That sale was set aside on the motion of George L. Clark, for the reason the sale was made more than sixty days after the return day. The purported one-twelfth interest of George L. Clark was sold on alias execution November 15, 1933, and a certificate of sale was issued and delivered to the appellant. A sheriff’s deed was issued and delivered to appellant July 3, 1936. Prior to the delivery of the sheriff’s deed, and on May 14, 1935, W. D. Clark recorded his warranty deed from George L. Clark. The instant action in partition and ejectment, in which appellant sought to set aside that deed, was not filed until June 8, 1938.
The issues were tried upon pleadings consisting of a petition, answers by all defendants, and an amended reply of appellant. In the petition appellant based her claim upon title acquired by virtue of the sheriff’s deed. For the purpose of this action appellant concedes it is necessary to note only the answers of the defendants, George L. Clark and W. D. Clark. The real issues, however, are between appellant and W. D. Clark, as George L. Clark does not claim title to the interest involved. We may, however, note the substance of both answers. Their separate answers denied appellant had acquired title to the one-twelfth interest of George L. Clark by virtue of the sheriff’s deed and further asserted, in substance: George L. Clark had sold and W. D. Clark had purchased the one-twelfth interest by warranty deed for a good and valuable consideration on October 9,’ 1931; W. D. Clark at all times since October 9, 1931, had been in the open and notorious possession of the land and had paid the taxes thereon at all times thereafter; W. D. Clark, by virtue of his original one-twelfth interest and the deed from George L. Clark, became and is the owner of an undivided one-sixth interest in the land; title to that interest should be quieted in him.
Appellant’s reply contained, among other allegations, averments calculated to constitute an estoppel to the defenses pleaded by George L. Clark and W. D. Clark. We are concerned with the question whether appellant pleaded facts which estop W. D. Clark, who claims the title, from asserting his title. The substance of the plea as to W. D. Clark was that he had failed to intervene and assert his title to the one-twelfth interest of George L. Clark prior to the sale of that interest on execution. The estoppel portion of the reply apparently also proceeded upon the theory appellant was an innocent purchaser at sheriff’s sale. The trial court, pursuant to motion, ordered appellant to strike out that portion of the reply. That order constitutes appellant’s first contention of error. W. D. Clark was not a party to appellant’s action on the promissory note. He was not obliged to intervene in that action and assert his title to land. W. D. Clark did not waive or forfeit his title by mere silence. By his failure to object to the sale on general execution appellant did not acquire a title which her judgment debtor did not possess. (Schilling v. Black, 49 Kan. 552, 558, 31 Pac. 143.) The sale under execution conveyed only such title as the judgment debtor actually had in the real estate at the time the judgment lien attached, and no more. Appellant, a judgment creditor, was not an innocent purchaser. (McCalla v. Knight, 77 Kan. 770, 94 Pac. 126; Brewer v. Warner, 105 Kan. 168, 170, 182 Pac. 411; Metz v. Hicklin, 126 Kan. 516, 518, 268 Pac. 823.) It follows the estoppel portion of the reply was properly stricken.
Appellant filed an amended reply in which she asserted, as in her petition, that she acquired title to^ the George L. Clark interest by sheriff’s deed. Appellant also sought to have the deed to W. D. Clark set aside on the ground it was void. We shall discuss first that portion of the amended reply in which appellant sought to set
aside the deed to W. D. Clark. That relief was sought on the ground the deed was made and delivered 'without consideration, and for the purpose and intent to cheat, hinder, delay and defraud appéllant in applying the interest of George L. Clark to the payment of her debt $nd judgment. The amended reply specifically alleged the purported deed to W. D. Clark, dated October 9, 1931, had been recorded May. 14, 1935. The instant action was not commenced until June 8, 1938. Appellee insists the a'ction was barred. An action to cancel and set aside a deed on account of fraud is governed by G. S. 1935, 60-306, third, which requires such an action to be brought within two years after the cause of action has accrued. The statute also provides the cause of action.shall not be deemed to have1 accrued until the discovery of the fraud. . The recording of the deed was constructive notice of the alleged fraud and sufficient to start the running of the statute on that particular cause of action. (Main v. Payne, 17 Kan. 608; Foy v. Greenwade, 111 Kan. 111, 117, 206 Pac. 332; Malone v. Young, 148 Kan. 250, 264, 81 P. 2d 23.) It will be observed appellant’s reply disclosed on its face the statute had run. Appellees’ demurrer to appellant’s evidence was. properly sustained as to' relief sought on the' ground of fraud. Appellant urges the statute of limitations constitutes an affirmative defense and that it was not pleaded. It is true it constitutes an affirmative defense and must ordinarily be pleaded. In the instant case, however, appellant’s first pleading which ’disclosed upon its face that the action was barred, as to the fraud feature, was’ her reply. The code does not provide for an affirmative pleading to a reply. It is true that if the reply to a defense set up in the answer be insufficient; the defendant may demur thereto. (G. S, 1935, 60-718.) In the case at bar it was not a question of the mere insufficiency of the reply, but the reply affirmatively disclosed if plaintiff ever had a cause of action on the ground of fraud, that cause of action was barred. Appellees were not precluded from demurring to the evidence on the ground the action was barred. The1 defense that the action was barred was promptly asserted in the opening, statement to the court by counsel for appellees. No objection was made by appellant to the raising of that issue. In Croan v. Baden, 73 Kan. 364, 85 Pac. 532, it was held: ' ' '
“The statute of limitations, to be available as a defense, must be affirmatively pleaded or otherwise asserted, and a failure to do so constitutes a waiver of such defense.” (Syl. ¶ 2.) (Italics ours.) • , •
Here that defense was expressly asserted before appellant and the court at the very beginning of the trial. The defense was not concealed, and the court did not abuse its discretion by considering that defense to the issue of fraud when it passed on the demurrer to the evidence. Nor did it constitute reversible error, under the circumstances, to sustain the demurrer to the evidence, on the fraud feature, because the statute had not been affirmatively pleaded. (Mercantile Co. v. Rooney, 114 Kan. 840, 220 Pac. 1048, and cases therein cited.)
Appellees contend since the action to set aside the deed to W. D. Clark was barred the judgment must be affirmed. It is unnecessary to rule upon that contention in this case. It is sufficient to say appellant’s cause of action for relief upon the ground of fraud was barred.
Let us now see whether appellant based her right to relief upon any other theory and whether she sustained the burden of proof, which she accepted, as to such additional theory.
The latter portion of the amended reply alleged the deed to W. D. Clark was not made, executed and acknowledged or delivered on October 9,1931, and it also denied the deed was ever acknowledged. While the intent of the pleader is not as clearly disclosed as it might have been, we shall assume she intended to plead a cause of action in addition to that of fraud. It appears those averments were made in order to enable her to prove W. D. Clark was not the owner of the George L. Clark one-twelfth interest and that she acquired that interest by virtue of the sheriff’s deed. , Unfortunately for appellant, she failed completely to prove any of those allegations and also failed to establish her former averment that the deed was made and. delivered without consideration. Furthermore, it would not have been sufficient to merely prove the deed was not executed, acknowledged and delivered on the exact date of its execution, namely, October 9, 1931. The deed might have been executed and acknowledged on October 9,1931, as it purported to be, and might have been delivered at any time prior to the date appellant’s judgment lien attached. That is necessarily true because by the execution sale appellant, a judgment creditor, obtained only such title as her judgment debtor had in the land at the time her judgment lien attached, and no more. Appellant failed to prove the deed was not executed, acknowledged and delivered on October 9, 1931, and also failed to prove it was not executed, acknowledged and delivered on some other date prior to the attachment of her judgment lien. Appellant ac cepted the burden of proof and failed to show she obtained the interest of George L. Clark by virtue of the sheriff’s deed. Having established no interest to partition, the second cause of action, namely, that of ejectment, was never reached. The demurrer to the evidence was properly sustained.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, C. J.:
This was an action for conversion of personal property. A demurrer to plaintiffs’ petition was sustained on the ground that the cause of action was barred by the statute of limitations.
In their petition plaintiffs alleged that on and prior to January 10, 1936, they were the owners of a steam engine and a “string” of tools used in drilling gas and oil wells, that these chattels were situated on a described quarter section of land in Okmulgee county, Oklahoma, and that—
“Some time prior to the year 1936, the exact date of which cannot now be more specifically and definitely ascertained, and having no claim or interest whatever in said personal property of plaintiffs, the defendant took possession of, and carried away all of said above-described personal property, converting the same to its own use and has ever since concealed and withheld from plaintiff its location or where it could be found.”
Plaintiffs’ petition further alleged that some person who then occupied the land where the engine and string of tools were situated informed defendant that those chattels were not connected with any oil and gas leasehold covering said land, and that defendant should not remove them, but nevertheless defendant with full knowledge of plaintiffs’ rights did—
“Without any right and authority of law, convert to its own use said personal property, thereby wrongfully exerting a distinct act of dominion over said personal property in denial of and inconsistent with the plaintiffs’ ownership thereof, from the date last above herein set forth and 'alleged.
“Plaintiffs further allege that they did not discover said fraud, nor did they have any knowledge that said fraud, as above herein alleged, had been committed until on or about the 10th day of November, 1937.”
Plaintiffs closed their petition with allegations of the value of the property, and prayed judgment for $1,000 actual damage, $1,500 for its use, and $300 for punitive damage, and for costs.
This action was begun on June 28, 1938. The petition was twice amended in particulars of no present concern.
Defendant’s demurrer interposed two points against this petition —no cause of action stated, and the statute of limitations. The trial court sustained the demurrer and rendered judgment for defendant.
Plaintiffs appeal, contending that their action was one for relief on the ground of fraud, and that defendant’s demurrer admits the truth of the allegation in the petition that the “fraud” was not discovered until about November 11, 1937, less than eight months before this action was begun.
But the only matters admitted by a demurrer are those which are well pleaded. The alleged wrong pleaded in plaintiffs’ petition was not fraud, but conversion; and it did not help plaintiffs’ belated action to characterize it as one sounding in fraud. Simply stated, fraud in contemplation of law is an act of deception or cunning intentionally and effectively used to cheat a person of his rights. In Bank v. Bay, 90 Kan. 506, 135 Pac. 584, the action was to recover on promissory notes, and a defense of duress, which is one species of fraud, was interposed. In discussing this point, this court said:
“There is no clear and all-inclusive definition of the term ‘fraud.’ .' . . But as generally understood fraud involves artifice, deceit, circumvention, breach of confidence, and the like. . . .” (p. 508.)
Moreover, this court has often held that where actual fraud is involved the facts constituting it must be pleaded, that the mere use of denunciatory adjectives will not suffice to plead a cause of action for relief on the ground of fraud. In Ladd v. Nystol, 63 Kan. 23, 64 Pac. 985, it was said:
“A mere general averment of fraud and illegality, without stating the facts upon which the charge is based, presents no issue, and is demurrable for insufficiency.” (Syl. ¶ 1.)
To the same effect were Dowell v. Railway Co., 83 Kan. 562, 112 Pac. 136, syl. ¶ 4; La Harpe Farmers Union v. United States F. & G. Co., 134 Kan. 826, 8 P. 2d 354. See, also, excerpt from Ambler v. Choteau, 107 U. S. 586, 27 L. Ed. 322, in Rogers v. J. R. Oil and Drilling Co., 149 Kan. 807, 812, 89 P. 2d 847.
Plaintiffs’ petition does not state when the conversion' of its property occurred, but they do allege that it was at “some time prior to the year 1936.” So it was at least two years and some months prior to the commencement of this action. They allege no facts which would interrupt the running of the statute. The pertinent provision of the statute of limitations was the third subdivision of section 17 of the civil code, G. S. 1935, 60-306, which declares that an action for the taking of personal property (conversion) must be brought within two years and not afterwards.
Plaintiffs direct our attention to the case of Algeo v. Algeo, 125 Kan. 245, 263 Pac. 1077. In that case, however, aggravating facts of actual fraud and concealment of the conversion of partnership assets were pleaded, so, of course, the time for commencing the action did not begin until the appellee learned, or with due diligence should have learned, of the conversion of the property.
The same distinction should be obvious as to another case, Maddox v. Smith, 46 Okla. 678, 148 Pac. 842, cited by plaintiffs. In that casé there was not only a conversion of plaintiff’s cattle, but the wrongful act was accompanied and effected by well-pleaded facts of deception and cunning whereby defendant substituted, and sold inferior cattle of his own for those of plaintiff. In such circum stances the wrong of specific well-pleaded fraud was a'fundamental part of plaintiff’s cause of action. There is' no analogy- betweén that-Oklahoma case-and the one at bar. In Malone v. Young, 148 Kan. 250, 264, 81 P. 2d 23, this court said:
“While the statute of limitations does not begin to run until the discovery of the fraud, plaintiff, under the general rule heretofore stated and under the repeated decisions of this court, is not relieved from such discovery by simply alleging ignorance of the fraud, but is required to plead facts which disclose inability to discover the fraud by the exercise of ordinary diligence.”
The record contains no 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 personal injuries growing out of a collision between the car in which plaintiff was riding and a truck operated by defendant warehouse company. Judgment was for the plaintiff. Defendants appeal. .
After the formal allegations, the petition alleged that the truck in question was being driven south on U. S. highway 75 north of Independence, Kan., by a servant of defendant warehouse company; that the trailer attached to the truck was about ten feet high and seven feet wide and the entire length was about thirty feet; that the truck and trailer were equipped with air brakes and the rear of the trailer was covered with mud; that on the same day, about 5 o’clock in the evening, the plaintiff was a passenger in an automobile being driven south on U. S. highway 75 by her daughter; that the highway at the place in question was a two-lane, hard-surfaced highway, approximately thirty 'feet in width; that when the automobile occupied by the plaintiff was several miles north of the city of Independence, Kan., the truck drove upon the highway and proceeded south ahead of the automobile occupied by plaintiff; that the automobile attempted to pass the truck just before they both entered the city limits of Independence, but was unable to do so; that the driver of the truck knew, or by the use of due diligence, should have known that the car was following the truck; that due to the size of the truck the driver of the automobile was unable to observe the conditions of the traffic on the highway ahead of the truck without driving the automobile over the center of the highway. The petition further alleged that as the tnick and automobile approached the city limits of Independence they both reduced their speed to about twenty-five miles an hour and as they entered the intersection of highway 75 with Oak street in the city of Independence, the automobile was being driven with due care and was following the truck at a distance of approximately thirty feet, and that as the truck approached the intersection the driver negligently and suddenly decreased the speed of the truck and stopped it with its left side in the middle portion óf the highway, completely blocking the right-hand side of the highway without giving any appropriate signal; that as a result of the negligence of the defendant warehouse company the automobile occupied by plaintiff collided with the rear end of the truck, and the driver of the automobile, although using due care, could not avoid the collision, and the plaintiff was injured; that the defendant warehouse company was negligent in that the truck was so constructed that the hand or arm signal would not be visible and the rear of the trailer was not equipped with any signal light or other device to inform the driver of plaintiff’s automobile that the defendant was about to suddenly decrease the speed of its truck or that said truck was about to stop or that if the truck was equipped with signal 'lights the same were covered with mud and were not visible; that defendant was further negligent in stopping the truck without first seeing that it could be stopped safely, and in failing to give any signal visible to the car in which plaintiff was'riding of its intention to suddenly decrease its speed or to stop the truck. The petition then ■alleged damages sustained by plaintiff, and that the truck company was insured against public liability by the insurance company. Judg•ment was asked in the amount of $20,168.65 against the warehouse .company and $10,000 against the insurance company.
.The warehouse company filed first a.general,denial and then admitted that the truck was being driven south on highway 75 in the city of Independence on the day in question. It then made an allegation which is in terms the same as a demurrer to the petition. It then alleged that the court was without jurisdiction of the parties and of the subject matter of the action. It then alleged that chapter 89 of the Laws of 1933 (Special Session) and especially section 5, paragraphs “D” and “E,” were unconstitutional. The answer then alleged that if plaintiff was injured her injuries were caused by her own negligence in failing to observe reasonable care and attention for her own safety and in permitting her daughter to drive the car into the truck as the truck was approaching the “Slow” sign at the intersection of highway 75 with Oak street, and in failing to warn the driver of her car to observe reasonable care and attention in attempting to pass the truck at a dangerous rate of speed. The answer next alleges that the driver of the car was guilty of negligence in driving a car at a greater speed than is reasonable and prudent under the conditions then existing and was guilty of negligence in not decreasing the speed of her car to avoid colliding with defendant’s truck as it approached the intersection, and the driver of the car was guilty of negligence in not using due care in approaching the intersection and in attempting to pass defendant’s truck and negligently failing to drive her car to the left of the truck at a safe distance so as to avoid colliding with defendant’s truck. The answer further alleged that plaintiff and her daughter were negligent in operating their automobile in that they were not looking at the road in front of them, not exercising due care in observing the truck ahead; that plaintiff and her daughter were engaged in a joint enterprise at the time of the alleged injury; that the negligence of the daughter was imputed to the plaintiff and was a bar to plaintiff’s recovery; that they knew, or by the use of due diligence, should have known that they were approaching the intersection and that by reason of the “Slow” sign thereon the truck would slow down for the intersection, and that they negligently failed to slow down in approaching the intersection according to the traffic condition then prevailing at the intersection; that she should have seen that the truck was slowing down at the intersection, but that they negligently drove their car at an unlawful speed, faster than was reasonable and prudent in attempting to pass the truck and were driving the car too fast and too close to the truck to avoid striking it in their attempt to pass. Certain ordinances of the city of Independence with reference to automobile traffic in the streets of Independence were also pleaded.
The reply of plaintiff was a general denial and especially a denial that the mother and daughter were engaged in a joint enterprise. At the conclusion of the evidence of the plaintiff the defendant filed a demurrer thereto on the ground that the evidence did not prove or tend to prove a cause of action against either of defendants. This demurrer was overruled.
At the conclusion of the evidence of defendants the court instructed the jury and the case was submitted. The jury returned a verdict for the plaintiff and answered special questions. The defendants moved the court for an order that the answers to special questions 5, 6, 7, 8, 8 (a) and 9 be set aside on the ground that they are not supported by any competent evidence; that they were contrary to the evidence and contrary to the law. The defendants also filed a motion for judgment notwithstanding the verdict. These motions were both overruled. A motion for a new trial was also filed by defendant.
From the journal entry it appears that plaintiffs filed a motion to strike the motion for a new trial from the files and that this motion was denied, but the motion of defendants for a new trial was overruled. The defendants appealed from the judgment overruling their demurrer to the evidence, from the judgment in favor of plaintiff, from the order overruling the motion of defendants to set aside answers to special questions and from the order denying their motion for judgment on the special findings notwithstanding the general verdict.
We shall first consider the argument of defendants that their demurrer to the evidence should have been sustained. The intersection in question is that of Pennsylvania avenue and Oak street in the city of Independence. Pennsylvania avenue is also known as highway 75. From the north line of Oak street to the “Slow” sign on the highway, which was referred to in the evidence, is 127.7 feet. The intersection is paved with brick and concrete and is thirty feet wide from curb to curb. The intersection in question is about a quarter of a mile south of the north city limits. The driver of the car testified that she was the daughter of the plaintiff. On the day the collision occurred she was eighteen years of age. She testified that she collided with the truck about ten or fifteen feet back of the “Slow” sign; that she was driving a Chrysler sedan; that her mother was sitting at her right in the front seat; her grandmother, sister and nephew were sitting in the back seat; that the truck was a big moving van; that she first noticed it on the road as she came out of Neodesha and followed it some distance on highway 75, attempted to pass it and was unable to pass; that she judged the city limits was about two blocks north of the place of collision; that after both vehicles entered the city limits they were each going about twenty-five or thirty miles an hour; that both slowed down within the city limits; that she was about thirty or thirty-five feet behind the truck when she came into Independence. Asked how it happened, the witness testified:
“A. Well, we were driving down the highway and just all of a sudden when we got up to where the accident happened why he just suddenly slowed, it seemed to me he stopped without giving any signal at all and we just hit. ... I tried to apply my brakes.”
Asked how long it was between the time that she saw him suddenly slow to the time she hit she answered: “Just right then.” She testified further she had her foot on the brake and did not see any lights on the back of the truck, and that the condition of the truck was muddy and she did not see the driver of the truck give any signal. She testified further:
“Q. I will ask you if in driving along behind this truck how far could you see ahead of the truck? A. Well, I could not see ahead of the truck.
“Q. What did you have to do to see ahead of the track? A. Well, I had to pull out to the left a little bit. Was looking at the track just prior to the time of the collision.”
She further testified that the driver asked her “If I didn’t see him stop” that she said “well, you didn’t give any signal”; that he said “well, can’t you see that sign,” and she looked down and said “well how can I, you are right over it.” She testified further that there was a “Slow” sign in the road which she did not know was there before, just a little in front of the back wheels of the trailer; that the truck with relation to the center of the street was a little to the left. Later on cross-examination she testified as follows:
“Q. What was the matter there when you ran into the truck, did you misjudge your distance or were you going too fast? A. It just suddenly stopped, or slowed down in front of me.
“Q. Well, didn’t you expect it to slow down at the ‘Slow’ sign at the intersection? A. No, I did not, I didn’t know the slow sign was there, I didn’t know the intersection was right there. . . .
“Q. You knew there was one ahead of you just a little ways? A. Well on up, away up.”
Her sister testified that it was about 4:30 in the afternnon that the collision occurred; that she never noticed any lights on the truck. She also testified as follows:
“Q. Now after you got into where the houses were along the road just how did your ear and the truck, just tell what both of you did, up to the time of the collision, as near as you can remember? A. Well I had my baby on my lap and we just suddenly slowed down and just about that time we hit.”
The plaintiff testified that the daughter and she were sitting in the front seat; that they could not see ahead of the truck; that her daughter was going about twenty-five miles an hour; that the truck slowed down when it got into town; that they were about forty feet, back of the truck. She further testified:
“Q. Now, after you got into Independence there, just tell the jury what happened from thereon, to the time of the collision? A. After we got into the city limits?
“Q. Yes. A. Well we were just driving along, and it just seemed like, while I had my eyes on that truck, because I was afraid of it, because it was so big and scarey looking, it just seemed like it all at once slowed down without giving us any signal or anything, and our ear just came up on it, and she put her brakes on, and just at that time we hit. It all just took place so fast that is the best I can tell about it.
“Q. How long a time expired between the time you saw the truck and the car coming together until it hit? A. I don’t know, it was all done so quick, just right now is all I know about it.”
The first argument of defendants is that the evidence did not establish any negligence of the truck driver. In testing the sufficiency of evidence as against a demurrer this court must consider all the plaintiff’s evidence as though it were true; must draw all the inferences in favor of the plaintiff and must consider the circumstances testified to and indulge every presumption in favor of the plaintiff. This rule is well settled. (See Clark v. Southwestern Greyhound Lines, 148 Kan. 155, 79 P. 2d 906.) When we follow this rule we find that there is evidence which, had the jury believed and drawn every inference favorable to the plaintiff’s case from it, would have warranted it in finding that this truck stopped suddenly without any warning. Chapter 283, section 47 (c), Laws of 1937, provides as follows:
“No person shall stop or suddenly decrease the speed of a vehicle without first giving an appropriate signal in the manner provided herein to the driver of any vehicle immediately to the rear when there is opportunity to give such signal.”
Section 48 of the same chapter provides as follows:
“Signals by hand and arm. or signal device. The signals herein required shall be given either by means of the hand and arm or by a signal lamp or signal device of a type approved by the department, but when a vehicle is so constructed or loaded that a hand and arm signal would not be visible both to the front and rear of such vehicle then said signals must be given by such lamp or device.”
Section 90 of the same chapter provides:
“Signal lamps and signal devices, (a) Any motor vehicle may be equipped, and when a signal lamp or device is required under this act shall be equipped, with a signal lamp or signal device which is so constructed and located on the vehicle as to give a signal of intention to stop which shall be red or yellow in color and signals of intention to turn to the right or left, all of which signals shall be plainly visible and understandable in normal sunlight and at night from a distance of 100 feet to the front and rear but shall not project glaring or dazzling light; except that a stop signal need be visibile only from the rear. (6) All mechanical signal devices shall be self-illuminated when in use at the times mentioned in section 81.”
Section 104 of the same chapter provides:
“Minors. Every motor vehicle which is so constructed or loaded as to obstruct the driver’s view to the rear thereof from the driver’s position shall be equipped with a mirror so located as to reflect to the driver a view of the highway for a distance of at least 200 feet to the rear of such vehicle.”
From an examination of these sections and the evidence of the driver of this car, it appears that the jury would have been warranted in finding that the truck driver violated section 47 (c) in that he stopped his truck suddenly without giving any appropriate signal. The rule in point in a situation such as this is stated in 1 Blashfield, Cyclopedia of Automobile Law and Practice, Permanent edition, section 706, as follows:
“The driver of a motor vehicle, which obscures the vision along the public highway to such an extent as to prevent persons following him from observing conditions which ought to be known to them to insure their safety, is under an obligation to use a reasonable degree of care that warning be given of approaching danger to those whose view of the impending peril he obstructs. . . .”
There is evidence in this case that had the truck been equipped as provided in the statutes quoted and the driver observed due diligence he could have given the warning as provided in the above quotation. (See, also, Cooper v. Kansas City Public Ser. Co., 146 Kan. 961, 73 P. 2d 1092.)
We conclude, therefore, that there was sufficient evidence in this record to warrant the action being submitted to the jury on the question of whether the driver of the truck was negligent.
The defendants next argue that the evidence of plaintiff shows that the daughter was negligent and that she and her mother were engaged in a joint enterprise so that the mother was charged with the negligence of the daughter and that it was the duty of the mother to remonstrate.
Before we consider that question, we shall consider the argument of the defendant that they were entitled to judgment on the answers to the special questions. These special questions are as follows:
“1. Was the collision the result of an accident as defined in instruction No. 2? A. No.
“2. At what distance was the car driven by Virginia Lee Strimple from the defendant’s truck as they approached the point of the collision? A. Thirty feet to forty feet.
“3. How far had plaintiff’s car been following behind defendant’s truck prior to the time of the accident? A. About nine miles.
“4. Was the defendant’s truck moving at the time when struck by plaintiff’s car? A. Yes. (a) If so, at what speed? A. Three to six miles.
“5. Should the plaintiff in the exercise of ordinary care for her own safety have warned her daughter that she was following too close behind the truck? A. No.
“6. Should plaintiff have warned her daughter not to attempt to pass the truck when approaching an intersection? A. No.
“7. Should plaintiff have known her car was approaching an intersection? A. No. (a) Should Virginia Lee Strimple have known she was approaching an intersection? A. Yes.
“8. Were plaintiff and daughter, Virginia Lee Strimple, using the family car for a common purpose? A. No.”
By the answer to question 4, the jury found that the truck had not stopped when the collision occurred, but was moving at the rate of three to six miles an hour. By the answer to question 9, the jury found that the proximate cause of the collision was “sudden slowing down by truck driver.”
The petition was drawn on the theory that the negligence of the truck driver was sudden slowing down or stopping without giving an appropriate signal. The testimony of the driver of the car in which plaintiff was riding was that the truck stopped or slowed down suddenly without giving a signal. This ground of negligence was stated in the instructions of the court to the jury. In the argument here G. S. 1937 Supp. 8-547 (c) is cited and relied on. That section makes it the duty of the driver of a vehicle to give an appropriate signal before he stops or suddenly decreases the speed of his vehicle. The case was tried on the theory that the truck driver either stopped or, slowed up suddenly without giving any signal. The jury found on disputed testimony that the truck had not come to a stop when the collision occurred, so that question is settled for us. There is no dispute but what there was a slow sign in the street at this intersection and that the driver of the truck slowed up in obedience to this sign. Under all these circumstances it would be necessary for him to be guilty of something more than mere sudden slowing down in order to make defendants liable. In this case all parties agree that the additional element necessary is the sudden slowing down without giving any signal. There is a dispute in the evidence, however, as to whether he did give a signal. Under such circumstances the answer to question 9 becomes important. That question and answer are as follows:
“9. What do you find to be the proximate cause of the collision? A. Sudden slowing down by the truck driver.”
Did the jury by the answer to this question find that the other element necessary to make the defendant liable was missing, that is, that the stopping was without an appropriate signal being given? Cole v. Cook, 137 Kan. 250, 20 P. 2d 483, was an action for personal injuries alleged to have been sustained when the car in which the plaintiff was riding ran into an open excavation. Among the special questions and answers was the following:
“16. What was the proximate cause or causes of the accident? A. Misleading detour sign and bad weather.”
In the consideration of the action on appeal this court considered the above answer and said:
“This finding had the legal effect of acquitting defendant of any other negligence with which he was charged.”
In support of that statement this court cited first Roberts v. Railway Co., 98 Kan. 705, 161 Pac. 590. In that case the question asked was as to what negligence the verdict was based upon. This court held that the finding that the verdict was based upon a particular act of negligence absolved the defendant from all other acts of negligence charged in the petition. This case is one of the many in which this court has announced and followed that rule.
In Stock v. Scott, 132 Kan. 300, 295 Pac. 638, the action was to recover damages for fraud -perpetrated upon defendant in the purchase of stock in a corporation. Many fraudulent representations were charged in the petition. In answer to a special question the jury found that the general verdict in favor of the plaintiff was based on three particular representations. This court followed the rule that had been announced in the negligence cases and held that this finding eliminated all other fraudulent representations alleged in the petition.
The next case followed in the opinion in Cole v. Cook, supra, is Brim v. Atchison, T. & S. F. Rly. Co., 136 Kan. 159, 12 P. 2d 715. This was a negligence case.
These cases and the many others examined by us have brought us to the conclusion that where there are two elements, both necessary to support a verdict, as closely related as the act of the suddenly slowing down of a truck and a failure to give a signal, a finding of the jury in response to a general question such as was asked here, that the truck driver did one of the acts, eliminates the other element necessary to fix liability.
In this case the sudden slowing down of the truck was not sufficient alone to make the defendants liable. There has to be the sudden slowing down without an appropriate signal. The jury refused to find that this necessary element existed. It follows that the motion of the defendants for judgment notwithstanding the general verdict should have been sustained.
The judgment of the trial court is reversed with directions to render judgment for the defendants. | [
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The opinion of the court was delivered by
Wedell, J.:
This was an action against a number of defendants to recover damages for the alleged slander of the plaintiff. The slander was alleged to have been effectuated pursuant to a common intent, purpose and design of the defendants. The substance of the slander was that plaintiff and one Fordyce had set fire to a building, in which they owned the contents, with the intent and purpose of defrauding the defendant insurance companies. The defendants were the owner of the building which was burned, one F. D. Hawkins, who was alleged to have had full authority to act for each and all of the insurance companies, and two fire marshals who, it is alleged, in fact represented the insurance companies. The appeal was taken by certain of the defendants from orders overruling motions and demurrers leveled against the petition.
The appealing defendants are the Fulton Fire Insurance Company, Western Adjustment and Inspection Company, F. D. Hawkins, Fireman’s Fund Insurance Company and the American Insurance Company.
It is first urged the court erred in overruling motions to require plaintiff to make the petition more definite and certain, to strike portions of the petition, to require plaintiff to elect whether he relied upon conspiracy to injure or upon conspiracy to slander, or upon slander, and if he intended to rely upon each of said causes of action that he then be required to separately state and number the causes of action. The motion to elect involves, in part, the same question as is involved in a special demurrer. That question will be treated presently. There is no showing the rulings on the motions affected a substantial right of the appellants or either of them and that the rulings, in effect, determined the action. They are therefore not appealable orders. In Nelson v. Schippel, 143 Kan. 546, 56 P. 2d 469, following numerous decisions, it was held:
“Motions to strike, to make definite and certain, and to separately state and number, rest in the sound discretion of the trial court, and from rulings thereon an appeal does not ordinarily lie. Unless it appears the ruling prejudiced or will prejudice the substantial rights of a party it will not be reversed. Unless it appears the ruling affects a substantial right and in effect determines the action it is not appealable.” (Syl. ff 1.)
In the view we take of the contentions made on appeal, it will not be necessary to narrate the facts alleged in the rather voluminous petition.
The substance of the motion to elect between causes of action has been stated. The motion, it will be noted, was in the alternative, that is, to require the plaintiff to “separately state and number” if he relied upon separate and distinct causes of action. Plaintiff did not rely upon separate and distinct causes of action. He relied upon one cause of action. It was an action to recover damages resulting from the alleged slander of the coconspirators.
The special and general demurrers were as follows:
“1. Several causes of action are improperly joined, because the petition undertakes to state a cause of action based upon conspiracy either to injure or to slander, or slander, but fails to state facts sufficient to constitute conspiracy, the allegations of the petition, amounting merely to conclusions of law, and for that reason separate causes of action are attempted to be stated against each of the several defendants on account of separate slanders which cannot be properly joined.
“2. The petition does not state facts sufficient to constitute a cause of action against this defendant.”
From what was said on oral argument we shall assume the same or similar motions and demurrers were filed by all appellants.
In ruling upon the motion to elect and upon the demurrers, the court held:
“First: There is but one theory of plaintiff’s cause of action. It is that the defendants and their authorized agents maliciously planned and agreed to slander plaintiff, and did so. Since only one theory is presented, there is no basis for an election. (Emphasis supplied.)
“Second: Plaintiff has made his action joint. Perhaps he could have brought an action against each defendant, but the procedural choice was his. Defendants have no right to compel plaintiff to sue them separately.
“Third: The petition states facts and circumstances which warrant recovery against defendants, if proved.
“It necessarily follows that the motions and demurrers should be and are overruled.”
A review of the petition convinces us the trial court correctly held only one cause of action was pleaded. The gist or gravamen of the charge was not conspiracy, but slander. Mere conspiracy is not actionable, but harmful consequences of conduct pursuant to conspiracy is actionable. (Rizer v. Geary County, 58 Kan. 114, 118, 48 Pac. 568; Beneke v. Bankers Mortgage Co., 135 Kan. 444, 446, 10 P. 2d 825; Adams v. Snyder, 137 Kan. 365, 369, 20 P. 2d 827; Clein v. City of Atlanta, 164 Ga. 529, 139 S. E. 46, 53 A. L. R. 933, 938; 5 R. C. L. 1090, Conspiracy, § 41; 15 C. J. S., Conspiracy, 1006, 1031, §§ 10, 21.) Appellee sought in the instant action to recover damages alleged to have resulted from the harmful consequences of the slander. That was one cause of action. That was the theory of appellee. That was the interpretation placed upon the petition by the trial court, and we think rightly. The action will, of course, be tried upon that theory.
The second ground of the special demurrer- was that the allegations concerning conspiracy were merely conclusions of law. Appellant’s theory is that if conspiracy was not properly pleaded then the averments as to each defendant constituted separate causes of action which could not be joined. Appellee concedes the theory, but contends that slander and not conspiracy was the gist of the action. The slander pleaded was slander per se. It was definitely pleaded. In at least one paragraph the slander was specifically pleaded as to time and place, including a designation of the persons who were present at the time. Appellee contends conspiracy was sufficiently pleaded by an allegation that defendants agreed to slander the plaintiff and by the further averments of acts and conduct from which a conspiracy to slander reasonably could be inferred. We think, as did the trial court, that the petition, when read in its entirety, was intended to plead an agreement between the defendants to slander plaintiff. That allegation is not a conclusion.- - Appellee may not be able to prove such an agreement by direct evidence, but that is not our present concern.
In order to sue all the defendants in one action it is only necessary to plead facts and circumstances from which if follows, or reasonably may be inferred, that there was a conspiracy, that is, a combination or concert of action between the appellants to slander appellee and that the slander resulted. (Stoner v. Wilson, 140 Kan. 383, 36 P. 2d 999; Calcutt v. Gerig, 271 Fed. 220, 27 A. L. R. 543.) We think the petition alleged such facts. Touching the sufficiency of proof of conspiracy, see, also, Mosley v. Unruh, 150 Kan. 469, 95 P. 2d 537. Some of those facts might have been pleaded with greater definiteness or certainty, but that fact did not render the petition demurrable. The petition quite fully- advised appellants of the nature of the charge and the character and type of facts and circumstances upon which appellee was relying to establish conspiracy. Furthermore, we think, as did the trial court, that the petition pleaded an agreement of appellants to slander appellee. It is not necessary, however, that an actual agreement between the defendants to slander be pleaded or proved, as it is seldom possible to prove such an agreement by direct evidence. It is nearly always necessary to prove conspiracy by circumstantial evidence, which is universally recognized as the proper means of proof. (Rickel v. Cooperative Exchange, 113 Kan. 592, 600, 215 Pac. 1015; Hutson v. Imperial Royalties Co., 135 Kan. 718, 723, 13 P. 2d 298; Adams v. Snyder, 137 Kan. 365, 369, 20 P. 2d 827; Calcutt v. Gerig, supra.) A plaintiff may, therefore, either prove the conspiracy itself, which renders the acts of the conspirators admissible in evidence, or he may prove the acts of the various defendants and thus prove the conspiracy. (Hutson v. Imperial Royalties Co., supra, 723; 5 R. C. L. 1103, Conspiracy, § 53; 11 Am. Jur. 585, Conspiracy, § 56.)
In 15 C. J. S. 1037', Conspiracy, § 25, the rule of pleading is stated thus:
“The conspiracy, not being the gravamen or gist of the action, as stated supra § 21, an allegation of conspiracy does not in and of itself allege a cause of action, and ordinarily it need not be alleged in order to impose liability for the wrong on all who have conspired to commit it, and, on the other hand, an allegation of conspiracy does not warrant a recovery, if there is no right of action indépendent of the conspiracy. An allegation of conspiracy becomes important only as it may affect the means and measure of redress. It may be pleaded and proved only in aggravation of the wrong of which plaintiff complains, or for the purpose of enabling him to recover against all the conspirators as joint tort-feasors, or for the purpose of holding one defendant responsible for the acts of his coconspirators. Such allegation is a mere matter of inducement leading up to the relation of the acts from which conspiracy may be inferred, and does not change the nature of the action from one purely on the case, subject to all the settled rules of such action, or add anything to its legal force and effect.” (p. 1037.)
In the same section of the same text it is further said:
“In alleging conspiracy, a general allegation that defendants entered into a conspiracy for a certain purpose and have committed acts in furtherance thereof, without setting out the facts constituting the conspiracy, ordinarily is not sufficient, although there are some decisions to the contrary. The facts and circumstances which constitute the conspiracy, or from which it may be inferred, should be set out clearly, concisely, and with sufficient particularity; but, being mere matter of inducement, they need not be alleged with the particularity required in pleading the acts constituting the gist of the action, and as a rule great latitude is allowed in setting out in the complaint the particular acts from which the conspiracy is to be inferred, even going so far as to allow the individual acts of the conspirators to be averred.” (p. 1038.)
Touching the extent of liberality permitted in such pleadings, see, also, 12 C. J. 629, § 215; 5 R. C. L. 1103, § 52; and Stoner v. Wilson, supra, 385-386.
Appellants finally contend that since they had moved to require appellee to more definitely state the pretended cause of action upon which he relied, which motions were resisted and overruled, the petition should have been strictly construed against appellee. In support of the contention they rely upon the rule as stated in Sluss v. Brown-Crummer Inv. Co., 137 Kan. 847, 22 P. 2d 965, and followed in Long v. Prairie Oil and Gas Co., 141 Kan. 47, 39 P. 2d 446. The statement in the Sluss case, relied upon by appellants, is as follows:
“If the petition is not drawn upon a single and definite theory, or there is such a confusion of theories alleged that the court cannot determine from the general scope of the petition upon which of several theories a recovery is sought, it is insufficient. (See Dassler’s Kan. Civ. Code, 2d ed., 220, and cases cited.) Under the circumstances of this case it is impossible to determine om what definite theory the plaintiff seeks recovery or on which of two inconsistent theories he relies, and the demurrer should have been sustained.” (p. 854.)
We adhere to the rule as stated. The trouble with appellants’ contention is, there were no inconsistent theories relied upon for recovery in the instant case and the district court had no difficulty —nor do we have any difficulty — in determining on what definite theory appellee sought recovery. That theory, as heretofore stated, was appellee’s right to recover damages for slander which it was alleged had been effectuated pursuant to the common purpose, intent and design of appellants. Upon that theory the petition stated a cause of action. It follows the special and general demurrers were properly overruled.
The rulings of the trial court, properly before us for review, are affirmed.
Harvey, J., dissents. | [
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The opinion of the court was delivered by
Harvey, J.:
This was an action to quiet title to certain real property in Ellis county, Kansas.- Some defendants who had been served by publication, proceeding under G. S. 1935, 60-2530, made application to have the judgment opened and to be permitted to defend. In doing so they filed answers. Plaintiff’s demurrers to thesé answers were sustained. The answering defendants have appealed.
The pertinent facts shown may be summarized or quoted as -follows : Plaintiff was the owner of a described quarter section of land in Ellis county. On May 3, 1924, he executed an oil and gas lease on the property to the Shawnee Oil Company. On July 1, 1925, he and his wife executed an instrument denominated a “mineral deed” to Dr. C. L. Hill, trustee. The construction of this instrument is involved on this appeal. On the same date they executed a similar instrument to Bruce Thorps, trustee. These instruments were duly recorded (G. S. 1935, 79-420). It appears that Dr. C. L. Hill was trustee under a parol agreement for a number of persons who had contributed to the fund for the purchase of the mineral deed, and that Bruce Thorps acted in the same capacity for another group of persons who had furnished money to purchase the mineral deed executed to him. No oil or gas was produced under the lease to the Shawnee Oil Company and it was canceled at some date not shown, and for several years there was no oil and gas lease on the property. On July 3, 1935, the plaintiff executed an oil and gas lease on the property to one Earl G. Lay. Producing wells have been brought in under this lease.
In October, 1935, plaintiff brought this action in the district court of Ellis county to quiet his title to the real property. There was a large number of defendants. Among them were Dr. C. L. Hill, trustee, Bruce Thorps, trustee, and the unknown members and beneficiaries of the trust, or trusts, of which Dr. C. L. Hill, W. K. Keithley and Bruce Thorps were trustees, and the unknown heirs, devisees, executors, trustees, administrators and assigns of any of the defendants who may be deceased. On January 16, 1936, an appropriate judgment and decree was rendered quieting title in plaintiff. No controversy is now raised as to the regularity or sufficiency of any of these proceedings.
In October, 1938, W. K. Keithley initiated a proceeding in the district court of Otoe county, Nebraska, where some of the beneficiaries of the Dr. C. L. Hill trusteeship resided, alleging the death of Dr. C. L. Hill and asking the court to appoint a trustee to control and manage the trust estate, as a result of which that court, on November 29, 1938, made an order appointing W. K. Keithley as trustee, with the usual powers to control and manage the property. A similar proceeding was had by which W. K. Keithley was by the same court appointed trustee as successor to Bruce Thorps, trustee. Plaintiff has questioned the validity of these proceedings, and there is in the record evidence tending to show that these proceedings and orders were void. However, because of the view we take of other questions presented it will not be necessary to consider the validity ■of these proceedings, and we do not do so.
Qn December 31, 1938, W. K. Keithley, as trustee, successor to Dr. C. L. Hill, trustee, and as an individual, filed in the action previously brought by plaintiff to quiet his title to the real property in the district court of Ellis county, Kansas, his petition to open the judgment, and with it his answer. Assuming the proceedings in the district court of Otoe county, Nebraska, appointing him trustee were valid, the proceedings initiated by him in the district court of Ellis county, Kansas, to open up the decree quieting title were regular and in conformity to our statute, if the answer filed by him is “a full answer” within the meaning of our statute (G. S. 1935, 60-2530). At the same time he filed a similar proceeding as successor to Bruce Thorps, trustee, but since the legal questions presented are the same in each of these proceedings we need give no further special attention to this.
The answer alleges the pertinent facts above stated; that W. K. Keithley had been duly appointed trustee as the successor of Dr. C. L. Hill, deceased; that W. K. Keithley had purchased the interest of several of the beneficiaries of the trust; and the answer was filed in his name as trustee, and also in his name as an individual. The mineral deed, executed July 1, 1925, by plaintiff and wife to Dr. C. L. Hill, trustee, is set out, and the answer contains allegations as to the construction of this instrument. The answer further alleges on information that on or about the 6th day of March, 1935, plaintiff executed an oil and gas lease on the property to Earl G. Lay; that the terms of that lease are known to plaintiff; that defendants are unable to set out a copy of it for the reason that the lease never was made a matter of record in the office of the register of deeds of Ellis county, Kansas, “and the transaction was had between said Earl G. Lay and said plaintiff for the purpose of deceiving said trustee and said beneficiaries of said trust and cheating and defrauding them of said property and property rights conveyed to said trustee and said beneficiaries by said mineral deed”; that defendants have been unable to procure a copy of that lease, but allege, on information and belief, that the terms and covenants in the lease thereof, except as to dates, are substantially the same as those contained in the lease executed by plaintiff and wife to Earl G. Lay, July 3, 1935, which was duly recorded in the office of the register of deeds of Ellis county, a copy of which is attached to the answer. It is further alleged that the oil and gas lease so executed on July 3, 1935, and recorded, “was made and entered into by and between said plaintiff and said Earl G. Lay as a substitute for said oil and gas lease made and entered into” between the same parties on or about March 6, 1935, “under which the drilling of said test well for oil and gas on said premises commenced, and to cheat and deceive these defendants into believing that the drilling of said well on said premises commenced subsequent to the first day of July, 1935, under the terms and conditions of said oil and gas lease” dated July 3, 1935. It is further alleged that the well commenced prior to July 1, 1935, resulted in the production of oil and gas in paying quantities, and since that time six wells have been drilled on the land and oil produced and sold from all of them without regard to the rights or interest of defendants. Estimates of the production of the well and of the value of defendants’ interest therein are set out. The prayer was for judgment quieting defendant’s title to the property and property rights conveyed to them under the mineral deed; that plaintiff be required to render an accounting as to the oil produced from the premises; that defendants have judgment against plaintiff for their proportional share thereof and that the same be adjudged a lien upon plaintiff’s interest in the premises and the oil and gas therein until the judgment be paid, and in the event plaintiff had conveyed away the rights of defendants that judgment be awarded against him in a sum named.
The mineral deed relied upon by defendants reads as follows:
“Mineral Deed
“This indenture, made this 1st day of July, 1925, between Fred A. Bemis and Ida May Bemis, his wife, of Ellis county, Kansas, party of the first part, and Dr. C. L. Hill, trustee, party of the second part.
“Witnesseth: That for and in consideration of the sum of one dollar ($1) and other valuable consideration to them duly paid, the receipt whereof is hereby acknowledged, the said party of the first part has granted, sold, conveyed, and assigned, and by these presents do grant, sell, convey and assign unto said party of the second part an undivided one thirty-second (1/32) interest in and to all of the oil and gas in and under, and that may be produced from, the following-described real estate, situated in Ellis county, Kansas, to wit:
“Southeast quarter (SE1^) section 16, township 11, range 17, together with right of ingress and egress at all times, for the purpose of mining, drilling and exploring said land for oil and gas and removing the same therefrom. Said land being now under an oil and gas lease executed by 'Said first party, as lessor to the Shawnee Oil Company as lessee dated May 3, 1924, and recorded on September 16, 1924, on page 600, book 1, Oil and Gas records in the office of the register of deeds of Ellis county, Kansas. It is understood and agreed that this sale and conveyance is made subject to the terms of said lease, but covers and includes one-fourth (%) of all the oil royalty and gas rental or royalty, due or to be paid under the terms of said lease now in force or under the terms of any other lease which may be hereafter executed upon said land within ten (10) years from this 1st day of July, 1925, in the event that the said lease now in force (or any lease executed within said ten-year period) should be for any reason canceled or forfeited.
“To have and to hold the above-described property, together with all and singular the rights and appurtenances thereto in anywise belonging, unto the said grantees herein, their heirs and assigns for the period hereinbefore specified; and the said.party of the first.part does hereby bind himself, his heirs, executors and administrators to warrant and forever defend all and singular the said property unto the said grantees herein, their heirs and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof.”
This was signed by plaintiff and his wife and duly acknowledged and recorded.
Appellant argues that by the instrument just quoted plaintiff conveyed to Dr. C. L. Hill, trustee, to whose rights appellant succeeded, two separate and distinct rights: First, “an undivided one thirty-second (1/32) interest in and to all of the oil and gas in and under, and that may be produced from,” the land in question; that this is a perpetual grant, not limited as to time; and, second, that it “covers and includes one-fourth U/jJ of all the oil royalty and gas rental or royalty, due or to be paid under the terms of said lease now in force or under the terms of any other lease which may be hereafter executed upon said land within ten (10) years from this 1st day of July, 1925.” Appellees contend that these so-called two rights are but one. They point out that one-fourth of the royalty refers to the landowner’s one-eighth under the ordinary oil and gas lease and is the equivalent of one thirty-second of the oil and gas under the land, and produced- therefrom, referred to in the earlier part of the paragraph. They further contend that all of the rights of the grantee in the instrument must arise from the production under a lease then existing, or a later lease executed within the ten-year period, and that this view is further fortified by the wording of the habendum clause, wherein it is stated that the rights were granted “for the period hereinbefore specified,” being of necessity the ten-year period mentioned in the previous paragraph. We have considered all the argument of counsel with respect to the construction of this instrument and have examined the authorities cited or referred to and concur in the views of the appellees.
It is conceded by counsel that had there been in existence an oil and gas lease on the premises under which oil and gas was being produced at the end of the ten-year period the rights of the grantee would continue so long as oil and gas were produced in paying quantities. It is clear from the answer, however, and from the argument of counsel that there was no production on the land at the end of the ten-year period, and there was in fact no existing oil and gas lease then of record. It is clear also that all the oil produced from the land has been produced under the lease dated July 3, 1935.
Appellant correctly argues that upon the execution of the mineral deed plaintiff and the grantee of the deed became tenants in common. (Rutland Savings Bank v. Norman, 125 Kan. 797, 802, 266 Pac. 98.) From this it is argued that a relation of trust and confidence existed which precluded plaintiff from doing anything to the detriment of his cotenant. We think this latter contention is not applicable here. As we construe the mineral deed, it created the relation of tenant in common for a limited time only. The instrument specifically gave the grantee therein the “right of ingress and egress at all times, for the purpose of mining, drilling and exploring said land for oil and gas and removing the same therefrom.” Hence, the right of the grantee to execute an oil and gas lease on the property, should the one then existing be canceled, was coextensive with that of the plaintiff, the only difference being that plaintiff had a larger fraction or interest in the oil and gas under the land, or pro duced therefrom, than did the grantee in the mineral deed. There is nothing in the instrument which required either of them to execute such an oil and gas lease on the land within the ten-year period, if the one then existing should be canceled.
Appellant argues that under the allegations of the answer the conduct of plaintiff and of Earl G. Lay was fraudulent as to appellant in that plaintiff had executed to Lay, in March, 1935, an oil and gas lease which under their fraudulent plan had not been recorded, but under which a well actually had been started and partially completed by July 1, 1935, and that for the purpose of defrauding appellant that lease had been canceled and a new one on substantially the same terms made on July 3, 1935, and recorded. With respect to that contention we observe, first, that this is not an action for damages for fraud. Neither is it a proceeding to set aside the judgment and decree quieting title on the grounds of fraud under G. S. 1935, 60-3007, fourth subdivision; and if so, it is brought too late. (G. S. 1935, 60-3008.) The answer was filed in connection with the proceedings authorized by G. S. 1935, 60-2530. Title is what is involved in this proceeding, and the statute requires appellant to “file a full answer to the petition,” which as here applied means to the petition of plaintiff to quiet his title. The term “full answer” as used in the statute means an “answer setting up a meritorious defense as to all or a material part of the petition.” (Frizell v. Northern Trust Co., 144 Kan. 481, 61 P. 2d 1344. See, also, Union Central Life Ins. Co. v. Heldstab, 145 Kan. 184, 64 P. 2d 579; Id. 146 Kan. 929, 73 P. 2d 1020.
While the answer characterizes certain alleged conduct of plaintiff and of Lay to have been fraudulent, it is difficult to see that they are charged with doing anything prohibited by the mineral deed, or not authorized under it. No duty is imposed upon the plaintiff by this instrument to execute a new lease on the land if the one existing at the time the instrument executed should be canceled. If a lease were executed, as upon information it was alleged in March, 1935, plaintiff had no duty to record it; the lessee, Earl G. Lay, had the option of recording it. If he had recorded it he could have canceled it of record for any reason which prompted him to do so without being liable to plaintiff. We take note of the fact that Earl G. Lay is not a party to this action and that plaintiff cannot well be charged with fraud because of the fact that lessee did not record the lease alleged on information to have been made to him in March, 1939. Neither can plaintiff be charged with fraud because Lay chose to surrender any lease made to him by the plaintiff ; hence, we are unable to see that the facts alleged here as being fraudulent were of a character which affected the title to this property.
The questions above considered are argued in the briefs from many angles and with the citation of many authorities. We think it would serve no useful purpose to discuss seriatim the points which may be regarded as subdivisions of the main question, or to analyze each of the authorities cited. After all, the. rights of the parties turn upon the construction of the mineral deed.
Also the validity of the appointment of appellant as trustee in Nebraska,' and the particular type of trust which existed between him and the beneficiaries of that trust are argued at considerable length. In reaching our conclusion we have assumed, without deciding, that appellant was correct in his contention respecting these matters, because that is the most favorable attitude for appellant.
We think the trial court committed no error, and its 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 by plaintiff falling over a depression in the parking between the sidewalk and the curb in Dodge City. The general demurrer of the defendant to the petition of plaintiff was overruled. Defendant stood upon the demurrer, and appeals.
After alleging that defendant was a city of the second class and that it maintained a street called First avenue, the petition alleged that on the 9th day of July, 1937, about ten o’clock in the evening at a point between the curb and the sidewalk about fifty feet north of where Walnut street crosses First avenue, the plaintiff was injured by stepping into a depression in the parking, which caused her to fall; that the depression was in the parking near the curb, but between the curb and sidewalk, the depression was from five to seven inches in depth, fifteen inches east and west, and two feet north and south; that at this point the street was dark and insufficiently lighted, the only light being at the corner fifty feet to the south, which was interfered with by telegraph poles and trees in the parking; that the street was a busy street; that to the west side of it automobiles were parked diagonal to the curb and throughout a large portion of the days and evenings many cars were parked there; that between the curb and sidewalk on the west side of the street this place had been graveled or sanded, but had been permitted to wash, out, or otherwise get into the condition it did; that persons who were getting out of or getting into automobiles parked at this place ordinarily traveled across the parking to get to and from their automobiles; that all these facts were well known and had existed for a long time. The petition then alleged that plaintiff had parked her car on First avenue and that as she left the sidewalk to walk to her car for the purpose of getting into it she stepped into the depression, which caused her to fall, and she was injured in the amount of $5,250. After setting out the damages, the petition alleged that the depression had existed for a long time and was well known to the city officials charged with the duty of inspecting and repairing the same, or by the exercise of ordinary care on their part could have been known to them, but that said officers wholly failed and neglected to repair the same and negligently allowed the parking to remain in an unsafe condition. To this petition the defendant interposed a general demurrer on the ground that it did not state facts sufficient to constitute a cause of action against defendant and in favor of the plaintiff. This demurrer was overruled, and the city appeals.
The question is whether or not a depression such as that described in the petition constituted a sufficient defect that the city was liable for permitting it to exist. A question similar to this was considered in Register v. City of Pittsburg, 139 Kan. 753, 33 P. 2d 173. There the plaintiff had been injured while stepping upon the curb. The trial court held against recovery and on appeal to this court the judgment was affirmed. The case is of interest to us here because the court, in discussing some authorities upon which the plaintiff relied in that case, said:
“While the eases cited authorize a recovery, they recognize that there are duties owed by the plaintiff to keep to streets and walks designed for travel to the place where the accident occurred and give consideration to the use that might be expected to be made of the streets at that place. The parkway is not expected to be used much by foot passengers.” (p. 754.)
It is well settled that the city is not held to the same degree of care as to the parking that it is in regard to sidewalks and crosswalks. This question was considered in the case of Hack v. City of Pittsburg, 145 Kan. 383, 65 P. 2d 580. There the injury occurred to plaintiff while she was walking along the street, but in the part that was intended for vehicular traffic. This court held the city liable, however, on the theory that the plaintiff in that case was walking in the only place that was provided for her to walk, that is, the part intended for vehicular traffic because there were no sidewalks provided at that particular place in the city. (See, also, Kuchler v. Milwaukee, 165 Wis. 320.)
In considering this question this court will take into consideration the amount of parking and the amount of sidewalks of a city and the condition of parkings generally. The plaintiff had no right to expect the parking to be in as safe a condition as was the walk. The city is held to a high degree of care as to sidewalks, but to hold it to the same degree of care as to parking would place a burden upon cities with which they would not be able to cope. Sidewalks are made of concrete or brick, while the parkings are of sod or earth, or, as in this case, sand or gravel. At any rate, they are more vulnerable to the ravages of weather — such as the washing caused by rain or snow — than are sidewalks or cross walks. It will not.-'do to make the city the insurer of the safety of everyone who uses the parkings to get to or go from his car. There must be negligence on the part of the city in order to make the defect an actionable one. We cannot hold that to permit a place such as is described in this petition to exist was negligence.
The judgment of the trial court is reversed with directions to render judgment for the defendant. | [
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The opinion of the court was delivered by
Smith, J.:
The same legal points are involved in this as were involved in Sorensen v. Pagenkopf, ante, p. 913, 101 P. 2d 928 (this day decided). On the authority of the opinion in that case, the judgment in this case is reversed with directions to enter judgment for the defendant. | [
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The opinion of the court was delivered by
Wedell, J.:
This was an action for damages for malpractice. Plaintiff has appealed from an order sustaining a demurrer to his evidence.
The negligence and the consequences thereof, as alleged, were as follows:
“That on the 24th day of October, 1937, this plaintiff suffered a right traumatic direct inguinal hernia, and on the 25th day of October, 1937, the defendant herein, holding himself out as a surgeon to this plaintiff, the plaintiff employed defendant at his request as such surgeon, to operate and cure said hernia and to attend this plaintiff until he should be cured, and pursuant to said employment, the defendant did operate upon this plaintiff for said hernia, but did so negligently and unskillfully and without the proper degree of care, diligence and learning, in this: That' the dejendant did sever and strangulate the plaintiff’s right spermatic cord and did cause it to- cease to- junction, and did so negligently and carelessly operate on the plaintiff that the cord became strangulated and bound down adhered to the adjacent tissue of the cord, and by reason thereof, caused the plaintiff’s right testicle to atrophy and become inert, pass away and become damaged permanently, and that said physical condition is deteriorating to this extent; that the plaintiff’s left testicle has become inflamed and [he] suffers loss of sexual activity. That the plaintiff was working as a driller and tool dresser and required to perform heavy manual labor, and that as a direct, controlling and proximate result of the .aforesaid operation, the plaintiff has been, and is now, in such a weakened physical condition he has been and is unable to pursue his duties as a driller and tool dresser.
“That all of the foregoing negligent and unskillful acts on the part of this defendant in said operation are the direct, proximate and controlling cause of this plaintiff’s injury, and that as a result thereof this plaintiff is now in a state of impotency and has, as a result thereof, lost all sexual desire and hope thereof, and as a result of which the plaintiff is suffering great physical and mental pain and anguish and as a result of said acts of this defendant, the defendant is indebted to this plaintiff in the sum of fifteen thousand dollars ($15,000).” (Italics ours.)
The evidence in behalf of plaintiff was in substance as follows: Plaintiff lived at Russell, and was employed as a driller by the Bison Drilling Company. On August 24,1937, while turning on the steam of a generator which operated the lights, the head of the generator blew off and struck plaintiff in the abdomen and legs. The head of the generator, which was made of cast iron, was about fourteen inches in diameter and about one-fourth of an inch thick. As a result of the accident plaintiff’s skin turned black from his navel to his knees. There was 140 pounds of steam on at the particular time and plaintiff was knocked back against the boiler about eight feet away. The main artery in one leg was ruptured and plaintiff crawled away from the boiler and lay on the ground until the tool dresser returned in about twenty minutes. He was taken to the hospital at Hays, and was there treated by a physician and surgeon for about two weeks. His left hip was out of place, and that was adjusted while in the hospital at Hays. In October, 1937, he came to Wichita to interview the defendant, Doctor Edgerton, and engaged defendant to operate upon him for a direct right inguinal hernia which resulted from the blow he had received. Plaintiff was given an abdominal belt to wear and was advised to return when the soreness in the abdominal region subsided. He returned at the end of about two weeks and the operation was performed at the Wichita hospital. The evidence adduced on behalf of plaintiff was in conflict as to whether both testicles were normal as to size prior to the operation. Plaintiff testified they were the same size before the operation. The defendant, whom plaintiff called as his own witness, testified they were not the same size. Following the operation he had a severe pain in his back. The pain continued until drainage started in his side about two weeks after the operation. About two weeks after the operation his right testicle had become reduced to about one-half its normal size, and was very hard. Plaintiff was a strong, healthy man, fifty-six years of age, and had never suffered from headaches prior to the operation. Following the operation he suffered severe attacks of headache, with pain originating in his back and running up his spine, neck and the back of his head. Doctor Edgerton did not see him often or examine him after the operation and while plaintiff was in the hospital. After he left the hospital he went to defendant’s office every day to have the incision dressed. The drain in his side was about the size of a lead pencil.
The only expert testimony adduced by plaintiff to establish the negligence charged was that of the defendant, Doctor Edgerton, whom plaintiff, as stated, called as his own witness. The doctor’s .testimony, in substance, was:
“I am a physician and surgeon and have been since 1910 and have specialized in general surgery. I am the defendant in this case and operated upon E. B. Pierce on the 25th of October, 1937. The incision was made through the. skin down to the muscular layers of the abdominal wall; the structures were identified; the outer muscular layer was cut through to expose the inguinal canal and its contents. The important content of the inguinal canal is the spermatic cord. I found a hernia, a protrusion through the inner muscular layer. It was a direct type of hernia or rupture. It was a different type hernia than the so-called indirect hernia. The indirect hernia is very closely associated with the structure of the cord. The direct hernia, which this man had, was not so closely associated with the cord itself. Having bared the covering of the sac that was protruding from the inside, this sac was opened and the contents pushed back in the abdominal cavity where they belong. The sac itself was tied off and closed off and the redundant part of the sac removed. Then to repair the weak place in the abdominal wall so that there would be no further recurrence, the muscles were sewed together and overlapped to build up a barrier at the site of this weak place. There was nothing to this repair that would damage this man’s cord or testicle; however, at the time of this operation this man’s testicle was noted to be smaller than normal. It was not as small then as it was later in June of the following year or July of the following year when I examined him. We examined the testicle as a part of the procedure. The cord was transplanted outside of these muscles as a part of the operation. We merely lift the cord up and bring the muscles together underneath so that it lies on top and not pressed upon by muscles. I am familiar with the ordinary care and skill and diligence and learning used by physicians and surgeons in good standing in the city of Wichita and like communities. It is possible that a spermatic cord might become strangulated in an operation — that is an exception rather than the rule. The only way that strangulation could occur upon the cord would be in a case in which the cord actually made up a part of the hernia itself, and it was necessary in order to repair the hernia to do a piece of work that might involve the cord as a part of the sac itself, and in handling that it is possible that it might become cut too deeply in the repair. Assuming that this was done, the blood supply to that organ would be interfered with and it would eventually result in atrophy or a shrinking. It would take considerable time for that to occur but it would occur. In my opinion the atrophy and shrinking of the right testicle of this plaintiff was not caused by a strangulation of the right spermatic cord. If you assume that the spermatic cord had been strangulated, then it might be due to that. Assuming that a man’s right testicle did become atrophied, it should not have any effect upon his ability to work or his ambition to commit sexual intercourse. I think the reason for the drainage was because the suture material failed adequately to absorb. We used cat gut, which is absorbable suture material, and use this in the deeper structures where it does not require removal later. This is in contrast to the type we use in suturing the skin, because that is to be removed later. We don’t like to have this condition happen, referring to the draining, but it does happen; it is not serious and requires dressing for some time. At the time of the draining, the hole was about the size of a lead pencil, but it was not flowing freely. It had very little stench. In a repair of a direct hernia such as this, the spermatic'cord would not become strangulated. The direct hernia is a hernia in which we are repairing away from the spermatic cord. It is necessary to adjust the spermatic cord in -an indirect type, but that is not interferred with in the repair of a direct hernia. In the repair of a direct herma, this cord is simply carried to one side and held apart, it is out of the field of operation, and is not in danger of injury. I sutured the muscles but not in the way to compromise the cord in any way. The atrophied condition of the right testicle of this man did not contribute anything to headaches.
“I have performed between seven and eight hundred hernia operations in Sedgwick county, Kansas. In performing this operation on Mr. Pierce, I followed the usually accepted procedure used by physicians and surgeons in the city of Wichita. Nothing happened at all out of the way during the operation.” (Italics ours.)
Plaintiff’s wife testified concerning the change in her husband’s physical conditioirand that their sexual relations after the operation were not normal and that the drainage had a terrible odor. Plaintiff testified, he was unable to have sexual relations since the operation.
It is elementary that on demurrer the evidence challenged must be given full credence and all reasonable inferences to be drawn therefrom must be construed in the light most favorable to the party adducing it (Hill v. Southern Kansas Stage Lines Co., 143 Kan. 44, 53 P. 2d 923), and that only such evidence is considered as is favorable to the party adducing it. (Meneley v. Montgomery, 145 Kan. 109, 64 P. 2d 550; State v. Linville, 150 Kan. 617, 618, 95 P. 2d 332.)
It will serve no useful purpose in the instant case' to narrate additional testimony. The evidence has been carefully reviewed and considered. Giving plaintiff the strongest possible benefit of the above rules, we simply are unable to find any evidence to support the negligence charged. The most that can be said is that if the operation had been negligently performed, as charged, the injury claimed could have, or might have, resulted from the operation. That, of course, did not constitute proof of negligence. In Updegraff v. Gage-Hall Clinic, 125 Kan. 518, 521, 264 Pac. 1078, it was said:
“ ‘What is the proper treatment to be used in a particular case is a medical question to be testified to by physicians, as expert witnesses; laymen, even jurors and courts, are not permitted to say what is the proper treatment for a disease or how a specific surgical operation should be handled.’ (James v. Grigsby, 114 Kan. 627, 632, 220 Pac. 267.)
“ ‘This evidence must, from the very nature of the case, come from experts, as other witnesses are not competent to give it, nor are juries supposed to be conversant with what is peculiar to the science and practice of the professions of medicine and surgery to that degree which will enable them to dispense with all explanations.’ (Tefft v. Wilcox, 6 Kan. 46, 59.)
“This court, in Pettigrew v. Lewis, 46 Kan. 78, 26 Pac. 458, quoted from McClelland, Civil Malpractice, p. 304, as follows:
“ ‘The question whether a surgical operation has been unskillfully performed or not is one of science, and is to be determined by the testimony of skillful surgeons as to their opinion, founded either wholly on an examination of the part operated upon, or partly on such examination and partly on information derived from the patient; or partly on such examination, partly on such information, and partly on facts conceded or proved at the trial.’ (p. 81; See, also, Sly v. Powell, 87 Kan. 142, 123 Pac. 881.)” (p. 521.) See, also, Flentie v. Townsend, 139 Kan. 82, 30 P. 2d 132, and Blackburn v. Security Benefit Ass’n, 149 Kan. 89, 98, 86 P. 2d 536.
In Saylor v. Brady, 114 Kan. 764, 220 P. 2d 1047, a case in which plaintiff offered no expert testimony, this court, after reviewing the authorities, remarked:
“In Pettigrew v. Lewis, supra, it was said: ‘Cases may arise where there is such gross negligence and want of skill in performing an operation as to dispense with the testimony of professional witnesses.’ (p. 81.) If, in performing a surgical operation, a metallic spring- twelve inches long were sewed up in the abdomen (Wharton v. Warner, 75 Wash. 470), or a jawbone broken in pulling a tooth was given no treatment of any kind (Eichholz v. Poe et al., 217 S. W. 282 [Mo.]), perhaps medical evidence would not be necessary to show negligence, but we have no such situation here.” (p. 765.)
What was said in the foregoing cases applies with equal force in the instant case. Negligence is never presumed, but must always be established. Until it is established by some competent evidence, a jury has no function to perform. The expert testimony of the defendant did not establish the negligence charged, but refuted it. There was no other testimony to substantiate, or which tended to substantiate, the alleged negligence. The trial court ruled properly when it sustained the demurrer to plaintiff’s evidence and rendered judgment in favor of defendant. The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, C. J.:
This appeal is from a judgment wherein the trial court disallowed an item of $500 for special medical and hospital expense included in an award of compensation to an injured workman.
On September 21,1938, the claimant was injured while working in the respondent’s zinc mine in Cherokee county. For a couple of weeks thereafter claimant tried to work, but his injuries were too severe to do so regularly. His home was in Joplin, Mo., and for some time following his accident he made occasional trips to the office of respondents’s doctor for treatment. Beginning about November 1, without a.formal claim for compensation, the respondent began paying claimant total disability compensation of $14.58 per week (60 percent of his weekly wage of $24.30). On November 15 claimant entered the company's hospital and remained there four days.
On Novembér 26 claimant filed an application with the compensation commissioner for a change of physicians and a change of hospitals, alleging that the respondent’s hospital and the physicians and surgeons furnished him were unsatisfactory. He prayed that the commissioner authorize him to go to Mt. Carmel hospital in Pittsburg for hospitalization and to receive treatment from Dr. A. W. Sandidge, of Mulberry, and Dr. C. S. Newman, of Crawford county.
This application was not verified, and no notice of a hearing or opportunity to be heard thereon was given. If any ex parte showing was made in support of the application, no record was made thereof ;• but on November 29, three days after the application was filed, the commissioner ordered—
“That the above-named claimant, Orville Wolgamott, be and he is hereby authorized to present himself for medical treatment at Mt. Carmel Hospital, Pittsburg, Kan., to be treated by Dr. A. W. Sandidge and Dr. C. S. Newman, such medical and hospital care to be paid for by the respondent, subject to the maximum costs provided by statute.” '
The respondent sought to appeal from this order, but the trial court ruled that it was not then a final order and. dismissed it.
On December 23 Wolgamott filed a regular claim for compensation. In due time a hearing was had thereon, and the commissioner found that the claimant was totally disabled and that the duration thereof was uncertain, and made an award of compensation at $14.58 for a period not exceeding 415 weeks. Included in the award was the following:
“Further award is made in favor of the claimant and against the respondent for medical and hospital expense in an amount not to exceed five hundred ($500) dollars, out of which shall be paid the bill of Dr. C. S. Newman, and any hospital bills that may have been incurred by reason of the commission’s order authorizing change of physician.”
On appeal to the district court the weekly award of compensation was affirmed. In other respects the trial court made findings and conclusions as follows:
“4. It is further found that the commissioner’s order made authorizing claimant to change physicians, was an ex parte order and made without notice to respondent and that said order is void and should be set aside.
“It is therefore by the court considered, ordered, adjudged and decreed that the order and award of the workmen’s compensation commissioner appealed from herein by respondent be and the same is hereby affirmed and approved, except that the order made by the commissioner authorizing a change of physicians, which was an ex parte order and made without notice to respondent, is void, and the same be and is hereby set aside and held for naught and void.”
Claimant appeals. He contends that the fact that the compensation commissioner’s order of November 29, 1938, was made without notice to respondent and without an opportunity to be heard on claimant’s application for a change of hospitalization and a change of doctors, was not a sufficient reason for setting that order aside.
The statutory provision relating to the care and treatment of injured employees reads:
“The amount of compensation under this act shall be: (1) Treatment and care of injured employees. It shall be the duty of the employer to provide the services of a physician or surgeon and such medical, surgical and hospital treatment, including nursing, medicines, medical and surgical supplies, ambulance, crutches and apparatus, as may be reasonably necessary to cure and relieve the workman from the effects of the injury; but the cost thereof shall not be more than $100, nor shall the period of time during which same are to be provided exceed sixty (60) days from date of accident: Provided, That in extreme cases the commission may, after proper showing, require the employer to provide medical, surgical and hospital treatment in an amount not in excess of $500: . . . Provided further, That if the services of the physician or surgeon furnished as above provided are not satisfactory to the injured workman the commission may authorize the appointment of some other physician or surgeon, subject to the limitations as to total charges for the benefits in this section provided and the period over which same shall extend as hereinbefore expressed.” (G. S. 1935, 44-510.)
Counsel for claimant argues that the section just quoted contains no provision for notice to the employer nor for an opportunity to be heard before a change of doctors or hospitals is authorized. Passing the obvious question of due process which that argument would inject (Cities Service Co. v. Koeneke, 137 Kan. 7, 18-20, 20 P. 2d 460), it is no longer an open question in this state that the furnishing of medical aid to an injured workman is payment of compensation, with exactly the same implications as are the weekly payments of money made to him by his employer for scheduled injuries or for total or partial incapacity. (Richardson v. National Refining Co., 136 Kan. 724, 727, 18 P. 2d 131, syl. ¶ 3; Ketchell v. Wilson & Co., 138 Kan. 97, 23 P. 2d 488, syl. ¶ 1.) This medical aid may be furnished by express agreement of employer and injured employee exactly as the monetary payment of weekly compensation may be made without a formal application therefor to the compensation commissioner. (G. S. 1935, 44-521.) So, too, all phases of compensation to an injured workman, including medical aid, may be settled by an arbitration committee. (G. S. 1935, 44-522, 44-523.) If and when a formal demand for compensation is made to the compensation commission, as usually happens in the cases which come to this court for review, the simple procedure prescribed by the statute and by the rules of the commission should be followed. That procedure requires that a copy of the application be furnished to the employer; due and reasonable notice of not less than twenty days shall be given, and all evidence in relation thereto shall be heard; and it is only pursuant to substantial compliance with this procedure that the commissioner may make findings and an award of compensation. (G. S. 1935, § 44-534.) In Waltz v. Missouri Pac. Rld. Co., 142 Kan. 164, 45 P. 2d 861, it was said that on the hearing of a claim for compensation it was the duty of the commissioner to hear all the evidence pertaining to any question at issue. It therefore becomes clear that the ex parte order of the commissioner authorizing the claimant to change hospitals and doctors and to incur expenses pertaining thereto to be paid by the respondent was not authorized by the statute.
It is suggested, however, that at the trial before the compensation commissioner the matter of claimant’s application to change hospitals and doctors was heard on evidence pro and con, so that whatever irregularity there was in the commissioner’s ex parte order was eventually cured. The trial court apparently did not think so; and while this court is without jurisdiction to determine a mere question of disputed fact in a compensation case, we have carefully read the record and can discern no basis for an order authorizing claimant, a citizen of Joplin with its 33,000 (U. S. census, 1930) population and probably a hundred doctors, to go thirty or forty miles from home to Crawford county for medical aid at his employer’s expense, even if he had some reasonable basis for dissatisfaction with the hospital and medical and surgical services supplied by his employer. Whatever the basis of the trial court’s ruling, in this particular matter, it cannot be disturbed. (State, ex rel., v. Iola Theater Corp., 136 Kan. 411, 414, 15 P. 2d 459; In re Estate of Dennis, 146 Kan. 121, 125-126, 68 P. 2d 1083.)
Judgment affirmed. | [
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|
The opinion of the court was delivered by
Wedell, J.:
This is a workmen’s compensation case. The compensation commission denied the claim. The district court did likewise and claimant has appealed.
The respondent, the Grace Oil Company, was a copartnership and the owner of an oil and gas lease. The Bituminous Casualty Corporation was the insurance carrier. The respondent, Will Ashcraft, who employed claimant, was engaged in the trade or business of moving buildings. The Grace Oil Company desired to place on the lease a house for a pumper. The house was located in the town of Nickerson. The evidence disclosed the moving trade or business required special skill and equipment. The-oil company had no men in its employ who were especially skilled in that trade or business and it did not have necessary facilities ■ and equipment to move ihouses. It had at no time been engaged in the moving trade or ^business as such. It had occasionally moved some small buildings which were located on its lease. It employed the respondent, Will Ashcraft, to move the house onto the lease. Claimant previously had been employed by Ashcraft on his moving jobs. He again nought work with Ashcraft and was employed and paid by Ashcraft \to assist him in moving the house in question. Claimant was entirely under the supervision and control of Ashcraft. He was detailed to the particular task of staying on the house, while it was being moved along the public highway, for the purpose of lifting telephone wires so as to make them clear the house. When the house had reached a place on a highway just across from the lease, claimant failed to see a telephone wire which crossed the highway and was connected with the toolhouse on the lease. The telephone line belonged to the Sterling Telephone Company. Claimant was thrown to the ground and injured by this line. The accident occurred on August 7, 1938, and the commission found the injuries incapacitated claimant to do heavy work, but that they were temporary in character and claimant would be handicapped for six months or a year. The evidence disclosed it was a common thing for producers to furnish the pumper a house on the lease and that a home on the lease constituted a part of the operation of the lease. The oil company had designated the location for the building on the lease.
The commissioner, insofar as is material to this appeal, in substance found: Claimant was employed by and was entirely under the supervision and control of Ashcraft, who was an independent contractor; Ashcraft was engaged in the trade or business of “moving buildings,” which under the compensation act is engineering work; the moving of buildings was not the trade or business of the Grace Oil Company; the oil company was engaged in the business of getting leases, drilling wells and producing oil; the oil company designated the location for the building on the lease; it was a common thing for producers to furnish a home for a pumper on a lease as a part of the operation of the lease; the oil company is not liable to claimant under the subcontracting section of the act.
The only question presented is whether the Grace Oil Company is liable for compensation to claimant under the pertinent portion of the subcontracting statute, G. S. 1935, 44-503, which provides:
“(a) Where any person (in this section referred to as principal) undertakes to execute any work which is a part of his. trade or business or which he has contracted to perform and contracts with any other person (in this section referred to as the contractor) for the execution by or under the contractor of the whole or any part of the work undertaken by the principal, the principal shall be liable to pay to any workman employed in the execution of the work any compensation under this act which he would have been liable to pay if that workman had been immediately employed by him; and where compensation is claimed from or proceedings are taken against the principal, then in the application of this act, references to the principal shall be substituted for references to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the workman under the employer by whom he is immediately employed.” (Italics ours.)
“(d) This section shall not apply to any case where the accident occurred elsewhere than on, in or about the premises on which the principal has undertaken to execute work or which are otherwise under his control or management, or on, in or about the execution of such work under his control or management.”
Appellee contends it is not liable and that the decision of the commissioner and district court should be affirmed on two grounds. The first ground asserted is that the compensation act applies only to work the principal undertakes to execute which is a part of his trade or business, or to work which the principal has contracted to perform for another (G. S. 1935, 44-503 a, 44-505), and that the oil company is not liable for compensation under either of the two statutory classifications. The second ground upon which appellee relies is that the facts, in any event, bring it squarely within the exception to G. S. 1935, 44-503 (a), provided by subdivision d of that statute.
Appellant concedes Ashcraft was employed by appellee to move the building and that the method or manner of moving the building was entirely under the supervision and control of Ashcraft, and that appellee designated only the location for the building on the lease. Appellant also concedes claimant was employed solely by, was paid by and was entirely under the supervision and control of Ashcraft, In view of those conceded facts Ashcraft was clearly an independent contractor. (Pottorff v. Mining Co., 86 Kan. 774, 779-781, 122 Pac. 120; Bittle v. Shell Petroleum Corp., 147 Kan. 227, 231, 75 P. 2d 829; Mendel v. Fort Scott Hydraulic Cement Co., 147 Kan. 719, 723, 78 P. 2d 868.)
Is appellees’ first contention correct? Appellant contends it is not, and insists that under the provisions of G. S. 1935, 44-503 (a), it is immaterial whether Ashcraft was an independent contractor or whether the trade or business in which Ashcraft was engaged was the trade or business of the oil company, if the work in which claimant was engaged facilitated or advanced the interests of the trade or business in which the oil company was engaged. In support of that contention appellant relies principally upon decisions in Spencer v. Marshall, 107 Kan. 264, 191 Pac. 468; Purkable v. Greenland Oil Co., 122 Kan. 720, 253 Pac. 219, and Fairchild v. Prairie Oil & Gas Co., 138 Kan. 651, 27 P. 2d 209. Do those decisions support appellant’s contention? In the last case it was held:
“Where an employee receives injuries while employed where he may reasonably be while performing his usual duties or other acts incidental thereto, which other acts are fairly connected with, and, in the judgment of the employee, are for the protection of the property and for the benefit of the business of the employer and are not so foreign to his usual duties as to amount to an abandonment thereof, such injuries are sustained in and arise out of his usual course of employment.” (Syl. H 1.)
In that case no independent contractor or subcontractor was involved, the accident occurred on the lease and the only question was whether the workman, a pumper on the lease, in assisting third parties in felling a tree had so far abandoned his usual duties that it could be said the injuries were not sustained in and did not arise out of his usual course of employment. In the instant case it is conceded the workman was not employed by the oil company and hence there could be no question presented as to whether the injuries were sustained in and arose out of his usual course of employment with that company. Here the workman was employed by an independent contractor who was engaged in the trade or business of “moving buildings,” which trade or business is expressly covered by the act and defined in the act as constituting engineering work. (G. S. 1935, 44-508 [g].)
In the Spencer case claimant was injured while working on machinery which was then being used in drilling for gas or oil on the lease. The evidence was not sufficient to establish the fact that plaintiff when injured was employed by a subcontractor. The evidence was, however, sufficient to establish the fact that appellants were operating the lease and that claimant was working for them. It was held appellants were liable for compensation, and further, that even if the evidence had disclosed claimant was working for a subcontractor, appellants would have been liable to them for compensation under subdivision (a) of the subcontractor section (G. S. 1915, § 5898), which was the same as subdivision (a) of G. S. 1935, 44-503. It will be observed claimant was working on the lease itself and assisting in the actual drilling of a well, which was the trade or business of the operators of the lease.
In the Purkable case, especially relied upon by claimant, it was held:
“An oil company engaged in developing mineral resources of leased land and producing oil therefrom, let to an independent contractor a contract to erect a derrick on the land, as an incident to the drilling of an oil well by the company. While the derrick was under construction one of the contractor’s workmen fell from it and received injuries which resulted in death. The workman’s dependents sued the company for compensation. Held, the work of building the derrick was part of the company’s business, within the meaning of the subcontracting section of the workmen’s compensation act (B. S. 44-B03); the accident occurred on premises on which the company had undertaken to- execute work, within the meaning of subdivision (d) of the section; and the company was liable to the dependents for compensation, under subdivision (a) of the section.” (Syl.) (Italics ours.)
After analyzing the facts the court concluded:
“The result is, the business of the company was operating for and producing oil, the work of building the derrick was part of its business, and the accident occurred on premises on which the company had undertaken to execute work under its management and control and a part of its business.’’ (p. 723.) (Italics ours.)
It will be noted the conclusion rested upon the two italicized factors. The factors were first, that the work of the independent contractor in building the derrick was a part of the company’s business within the meaning of the subcontracting statute, and second, that the accident occurred under circumstances which also made the oil company liable under the provisions of subdivision (d) of the statute. In concluding the opinion, the court said:
“In this instance, the work of building the derrick was part of the company’s business as a necessary incident to prosecution of its primary business of producing oil." (p. 724.) (Italics ours.)
There are cases other than those cited by appellant which bear directly upon the first contention of the parties to which we shall refer presently. Before doing so, however, it is obvious the cases cited by appellant are not authority for his contention that it is immaterial whether work is performed by an independent contractor, and whether that work is any part of the trade or business of the principal which brought the principal within- the act. They in fact disclose the contrary.
The principal, under the subcontractors statute, is not liable for injuries to the workman of an independent contractor simply because the work of the latter’s employee may facilitate the operation of the lease, where the work is no part of the trade or business of the principal but constitutes an entirely separate and distinct trade or business. In Bittle v. Shell Petroleum Corp., 147 Kan. 227, 75 P. 2d 829, it was said:
“In the light of these authorities, it seems clear that Churchill, plaintiff’s employer, was an independent contractor. Defendant had no control of Churchill. It was Churchill’s job to weld the boiler, and he sent his employee, Bittle, to do the work. It was a single isolated transaction, such as occurs in the business world every day, when one man has a machine which gets out of fix and he calls on another man skilled in repairing such machinery to put it to rights. The status -of the person so employed (contracted with) is familiarly designated in the lawbooks as that of an independent contractor. And as Bittle was the employee of the independent- contractor, the statute relied on by defendants to replace or supersede the common-law action plaintiff seeks to maintain against defendants has no application.” (p. 233.)
In Setter v. Wilson, 140 Kan. 447, 37 P. 2d 50, it was held:
“The workmen’s compensation act was intended to apply only to employment in the trade or business of the employer and, if the trade or business of the employer does not bring him within the terms of the act, he has no liability thereunder.”
“The mere owning of a house or building, maintaining it and keeping it in repair so that it may produce an income, is not sufficient to constitute a trade or business, but such transactions, at most, only amount to a trade or business, within the meaning of the workmen’s compensation act, when they are carried on to such an extent as to require a substantial and habitual devotion of time and labor to their management and operation.” (Syl. ¶¶ 1, 2.)
In the opinion it was stated:
“In R. S. 1933 Supp. 44-505, it is stated: ‘That this act shall apply only to employment in the course of the employer’s trade or business in the following hazardous employment,’ etc., and in R. S. 1933 Supp. 44-503, the act states: ‘Where any person . . . undertakes to execute any work which is a part of his trade or business,’ etc. It would thus appear that in order for the act to apply, the employment must be in the employer’s trade or business.” (p. 449.)
In the more recent case of Shrout v. Lewis, 147 Kan. 592, 77 P. 2d 973, we held:
“In order to render an employer liable for compensation to an injured workman the injury must occur in a trade or business of the employer.” (Syl. ¶ 3.)
In the opinion we said:
“In order to bring an employer within the act it is not enough that the work at which the laborer is employed is covered by the act, but it is also necessary that the work shall be a part of his employer’s trade or business. (G. S. 1935, 44-503, 44-505; Setter v. Wilson, 140 Kan. 447, 449, 37 P. 2d 50.) In other words, it is the purpose of workmen’s compensation acts to place the burden of compensation for accidents to employees upon the industry rather than upon the individual employer.” (p. 594.)
In Bittle v. Shell Petroleum Corp., supra, plaintiff, an employee of an independent contractor, brought a common-law action for damages against the owner and operator of the lease. The petition disclosed the injuries resulted on defendant’s private road on the lease while plaintiff was riding on a truck to a place on the lease where he had to weld a boiler. The truck in which plaintiff was riding struck and broke a gas pipe line of the co-defendant, the Kansas Power & Light Company, which was engaged in transporting' natural gas to the defendant, Shell Petroleum Corporation. The gas was ignited, owing to a fire in a near-by meter house, and plaintiff was severely burned. The defendant, Shell Petroleum Corporation, demurred to the petition on the ground the petition disclosed plaintiff was an employee of an independent contractor and that the latter had been employed by defendant to weld the boiler. In sup port of the demurrer defendant contended plaintiff’s remedy was under the subcontracting provision (G. S. 1935, 44-503) of the compensation act. The demurrer to the petition was overruled and the ruling was sustained by this court. We there held:
“Under the facts stated in the petition and summarized in the opinion, plaintiff’s immediate employer was an independent contractor; and plaintiff’s legal right of redress against defendant was not governed by the workmen’s compensation act.” (Syl. If 2.)
In the course of the opinion the court reviewed numerous decisions touching the liability of the principal under this identical subcontracting provision of our compensation act, in which independent contractors were involved. After defining the term “independent contractor,” the court said:
“Tested by this rule, our own cases where the workmen’s compensation act was invoked fall into two main classes — first, where it was held that the injured workman was the employee of an independent contractor, duty was measurably controlled by the contractee with whom' the workmen’s immediate employer had contracted, or where the workman himself was the contractor but the contractee exercised some measure of control of his work.
“Typical of the cases where the injured workman had to look to his own immediate employer, an independent contractor, for compensation and could not hold the contractee liable therefor, was Farmer v. Purcell, 109 Kan. 612, 201 Pac. 66, where the owner of a sawmill contracted with a person to take sawdust from a bin as fast as necessary to prevent such accumulation as to delay work and remove it to a designated place in consideration of a fixed price per hour,’ and a driver employed by such person was injured while attempting to load a wagon from the bin. It was held that such person was an independent contractor and the driver was not an employee of the mill owner so as to render him liable under the compensation act.
“In McIlvain v. Oil and Gas Co., 110 Kan. 266, 203 Pac. 701, it was held:
“ ‘One who contracts to haul oil-and-gas-well casing between the place where it is used and the place where it is repaired, and who employs but one workman to assist in performnig the labor does not come within the provisions of the workmen’s compensation act, although the one for whom the casing is hauled may come within that act.’ (Syl. If 2.)
“Commenting on the McIlvain case, Mr. Justice Burch, in Southern Surety Co. v. Parsons, 132 Kan. 355, 357, 295 Pac. 727, said:
“‘In the Mcllvain case the Prairie Oil & Gas Company was engaged in engineering work — drilling an oil well. Earl Blue was employed to haul casing to the well, which was not engineering work, and was not work done on, in, or about the place where the Prairie company was doing engineering work. Blue employed Mcllvain and Mcllvain was Blue’s only employee. Mcllvain was injured and sued the Prairie company and Blue. It was held the Prairie company was not liable to pay compensation, although subject to the act, because Blue was an independent contractor whose employment had nothing to do with that part of the Prairie company’s business which brought it within the act.’ (Italics ours.)” (p. 231.)
What did the trade or business of the independent contractor in the instant case, namely, that of “moving buildings,” have to do with the trade or business of the Grace Oil Company, which brought the latter within the act and which trade or business was the operating of oil and gas leases? Obviously nothing. Appellant reminds us the evidence disclosed it was common for lease operators to put a house on the lease for the pumper, and that a home on the lease constituted a part of the operating facilities of the lease. The trouble with that contention is the house was not on the lease, it had not yet become a home for the pumper, it was not being employed as one of the facilities for operating the lease and claimant was not injured in the operation of the lease. He was injured while engaged in an entirely different trade or business of an independent contractor, namely, that of moving a building, which building ultimately was to become a part of the operating facilities of the lease. In other words claimant was not injured in work which was a necessary incident of operation, but in specialized work which was designed to equip the lease for operation. That trade or business of the independent contractor, according to the evidence, was a specialized trade or business which, first, was no part of the trade or business of the principal, the oil company, and second, was not work which the principal had contracted to perform for anyone. A careful examination of subdivision (a) of the statute will clearly disclose the principal is not liable for compensation unless the work falls within one of the two classifications above stated. The court of appeals of Louisiana in Horrell et al. v. Gulf & Valley, etc., Inc., 15 La. App. 603, 103 So. 709 (Dec. 15, 1930), had occasion to pass upon this identical question, and under a statute (¶ 1, § 6 of its act) identically the same as subdivision (a) of our statute, except that the Louisiana statute contains also the word “occupation,” in addition to the words “trade or business.” In that case the workman died from burns received while working for an independent contractor in constructing furnaces for an oil refinery. His father brought a common-law action for damages against the refinery. Defendant contended redress, if any, was under the provisions of the above section of the compensation act. That court, as did this court in the Bittle case, supra, denied the defense upon the ground the compensation statute gave the workman no redress against the refining company and hence was not applicable. The court held:
“General employer or principal may employ independent contractor to do special work, not generally done directly by others in same line of business, without becoming liable for injuries to or death of contractor’s employees.
“Brick work on furnaces being constructed by independent contractor held not part of oil refining company’s trade, business, or occupation so as to render it liable for compensation for death of contractor’s employee; remedy being in tort. (Act No. 20 of 1914, sec. ©[13; Civ. Code, art. 2315.)” (Syl. Mill, 12.)
The opinion in the Louisiana case is so clear in its analysis of the statute involved and in its application to the facts that we are impelled to quote from it somewhat at length. It was there said:
“In considering the question raised by this contention, we at once notice that it is not all work which the principal may require that the act prevents his contracting away without retention of compensation liability, but only such as is a part of his trade, business, or occupation, or which he may have contracted to perform for some one else.
“It is, we believe, quite plain that a manufacturing concern, upon organization, may contract with an independent contractor for the erection of its factory building without retaining liability under the compensation act to employees of the independent contractor who undertakes the construction. It is no part of the trade, business, or occupation of the manufacturing concern to erect its factory building. Its business is to operate it after its erection.
“On the other hand, it is clear that, after the factory is completed and is in operation, the principal may not employ an independent contractor to undertake any part of the business of operating the factory and thus escape liability in compensation to the employees actually engaged in carrying out the work undertaken by the independent contractor. For instance, if defendant here had employed Horrell to furnish the necessary labor to operate the boilers, it is quite evident that Horrell’s employees would, under the provisions of section 6 of the act, be entitled to look to defendant for compensation in the event of injury. We thus see that, if the original construction work is not a part of the business of the principal, that work may be contracted away, whereas the operation of the factory after construction is completed, being a part of the business of the principal, may not be so contracted away without the retention of compensation liability.
“If the principal may contract with the independent contractor for original construction, we see no reason why he may not contract for additional necessary construction, or reconstruction later on. If the work contracted for is within the category of operation, then, of course, it may not be contracted for except under the conditions imposed by section 6.” (p. 607.) (Italics ours.)
Decisions might be cited from other courts which have given a statute substantially the same as ours the same construction, but we do not deem that necessary. We think the commissioner and the district court correctly ruled the work of the independent contractor, by whom claimant had been employed, was not the trade or business of the Grace Oil Company and that the oil company was not liable under the statute. It is not contended the oil company had contracted to perform the work of moving the building. That disposes of the contention with respect to subdivision (a) of the statute. Before concluding the discussion of that portion of the statute it may be helpful for the reader to note the case of Pribbenow v. Meeker, 139 Kan. 325, 31 P. 2d 15. That case clearly illustrates the liability, under subdivision (a), of a contractor, as a principal, for injuries sustained by an employee of a subcontractor where the former had contracted to perform completely and fully certain work for another. It was the agreement of the contractor to perform the services for another which brought the contractor squarely under the statute as a principal in the Pribbenow case.
Appellee further contends it is not liable because, under the facts, it is expressly relieved from liability by subdivision (d) of the statute. Appellant has not briefed or argued that contention. He contends the commissioner and the trial court ruled only on the first proposition heretofore discussed. Appellee states its second contention was made before both the commissioner and the trial court. That statement is not denied by appellant. Moreover, the record of the commissioner, among other things, discloses:
“The evidence shows that Will Ashcraft was an independent contractor and that the work being performed for the Grace Oil Company was not the trade or business of the Grace Oil Company, and the examiner is of the opinion that the Grace Oil Company is not liable to the claimant for compensation under the subcontracting section of the workmen’s compensation act" (Italics ours.)
Subdivision (d) is, of course, a part of the statute in question. In view of the record we shall assume the commissioner and the district court considered all pertinent parts of the statute. We, of course, are not permitted to ignore statutes or portions thereof which disclose or clearly tend to reflect the legislative will. Touching subdivision (d), it is sufficient to say that in the light of views already, expressed herein, there could be no liability of the oil company under that portion of the statute, first, because the oil company did not, under its control and management, undertake to move the house over the public highways between the city of Nickerson and the lease; and second, since under the facts the oil company is not liable under subdivision (a.), manifestly it could not be liable under subdivision (d), which is in the nature of an exception to its liability under subdivision («).
The judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
Plaintiff, a resident taxpayer of the defendant school district, brought this action under G. S. 1935, 60-1121, to enjoin defendants from using funds of the district, raised by taxation on property, for the support of a second school within the district which was alleged to be controlled and operated as a school for the teaching of sectarian religious doctrines. Defendants’ demurrer to the petition was sustained, and plaintiff has appealed.
So far as is pertinent here, the -allegations of the petition may be summarized as follows: The school district has a well-constructed school building, in good repair, properly equipped, and in all respects adequate for the educational needs of the district; that without authority of'law defendants are conducting a separate school at a stated place within the district remote from the school building just mentioned and in the dormitory and home of the priest and sisters of a Catholic church, which school is under the control of the priest and sisters, who are the .teachers; that the school program and curriculum as taught is sectarian and parochial, and that defendants are expending large sums, derived from school taxes, for the purpose of maintaining such school, duplicating equipment, libraries and facilities, heating arid lighting, and for maintaining, •heating and lighting the priest’s home arid dorriiitory.' It waá further alleged that defendants propose to or have entered into contracts to expend large sums derived from taxes for these purposes, and that such expenditures are unlawful and constitute a wrongful diversion of funds raised by taxation, to the burden of plaintiff>as a taxpayer.
Under our constitution (Bill of Rights, § 7, art. 6, § 8), our statutes (G. S. 1935, 72-1722, 72-1819) and our decisions (A., T. & S. F. Rld. Co. v. City of Atchison, 47 Kan. 712, 28 Pac. 1000; Billard v. Board of Education, 69 Kan. 53, 56, 76 Pac. 422), it is clear that no religious sect, or sects, can lawfully control our school funds, nor can sectarian doctrines be taught lawfully in our public schools. For other authorities see 5 A. L. R. 866, 879; 57 A. L. R. 195. Appellees not only concede this to be the law, but assure the court they agree and are in absolute accord with these fundamental principles.
Appellees rightfully contend that before one can maintain an injunction action under G. S. 1935, 60-1121, he must allege facts showing that the action, or threatened action, of defendant of which he complains is one which affects him personally as a taxpayer. This proposition is well established. (Young v. Washington County Comm’rs, 127 Kan. 227, 228, 273 Pac. 398, and authorities there cited.) We think the petition conforms to this test.
It is pointed out that a school district, if appropriate proceedings have been taken, may establish and maintain two or more schoolhouses in the district (Griebel v. School District, 110 Kan. 317, 321, 203 Pac. 718), and that, generally speaking, an allegation that the action of a board is illegal is a conclusion of law and not a statement of fact. (Sheldon v. Board of Education, 134 Kan. 135, 142, 4 P. 2d 430.) From these principles appellees argue that the allegation in the petition that “without authority of law” defendants are paying from tax moneys the expenses of conducting a separate school is a conclusion of law and not an allegation of fact. We think the point is not well taken. As used here, the allegation is tantamount to saying that legal steps had not been taken for the establishing of a second school in the district. The petition had not been attacked by motion to make it more definite, and for that reason is entitled to be liberally construed.
Appellees argue that plaintiff’s real complaint is that sectarian doctrines are being taught, and points out that determining what is taught in a public school, and how such schools are conducted, are within the duties of the educational department of the state, and argue that plaintiff should have complained to the school board, or county superintendent of public instruction, or the state superintendent, and if necessary should have called upon the attorney general to correct the wrong of which he complains by appropriate action, citing State, ex. rel., v. Storey, 144 Kan. 311, 58 P. 2d 1051. We think this doctrine is not applicable if plaintiff’s burdens as a taxpayer are increased by the alleged action of defendants. Indeed, under our constitutional provisions, we would be slow to say the action could not be maintained by taxpayers to enjoin the use of tax funds to teach sectarian doctrines in our schools, even though there was no question about the regularity or legality of the establishment of the school.
While the petition, which we have not copied in full, contains some superfluous language, and its pertinent allegations might have been more definitely, pleaded, we cannot say that it failed to state a cause of action.
The judgment of the court below is reversed with directions to overrule the demurrer. | [
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The opinion of the court was delivered by
Harvey, J.:
This was a suit in equity to determine the rights of the parties under an option-to-purchase contract pertaining to real property, and for an appropriate decree. The trial court found defendant had breached the conditions of the contract to be performed on her part necessary to keep the option to purchase the property in force, determined the amount she should pay to purchase the property if she desired to do so, and gave her an additional twelve months in which to make the payment. Defendant has appealed.
More specifically the facts may be stated briefly as follows: Plaintiffs, being the. owners of the real property involved, on March 12, 1924, entered into a written contract with Mary'E. McMahon by which, in consideration of $1,000 then paid, they gave to her the option for one month to purchase certain described real property in Wyandotte county for $6,500. The agreement provided the option might be renewed from month to month by the payment of $40 (later reduced to $30) on or before the 12th day of each month. The optionee was entitled to go in possession of the property, but if she did so was to pay the taxes and the special assessments as they became due and to pay for insurance on the property in a stated sum. Time of these payments was made of the essence of the contract. The optionee was not obliged by the contract to make any payments. At no time were the payments to be more than two months in arrears, and if they became so the rights of the optionee ceased and she agreed to surrender possession of the property to plaintiffs, and that all payments previously made and all improvements placed on the property by her should be forfeited to plaintiffs as liquidated damages. Mrs. McMahon went into possession of the property and paid the taxes to and including the year 1933, and she, or defendant as her successor in interest, paid the monthly payments to keep the option in force until August 12, 1937. In the meantime Mrs. McMahon died, and in June, 1937, her daughter, the defendant herein, and plaintiffs executed the following instrument:
“The undersigned agree, that Josephine Graff as assignee and successor of Mary Ellen McMahon, deceased, and as the second party to the annexed option contract, shall pay to the first party, C. E. Hively and Lu Ettes Hively, at the Victory State Bank of Kansas City, Kansas, all sums necessary to restore, place and keep said option contract in force according to its terms, and shall also pay all of the unpaid taxes and assessments on said real estate in said contract described; that second party shall make such payments by ■-- 12, 19-, and that thereupon the annexed option contract shall be and continue in force between the undersigned (except as hereby modified), in accordance with the terms thereof.” - .
On November 16, 1937, plaintiffs served notice upon defendant for the purpose of terminating the option agreement. This action was filed December 2, 1937.
Appellant contends the court erred in admitting in evidence this agreement between plaintiffs and defendant of June, 1937. It is argued that the original contract of March 12, 1924, is a mortgage within the definition of our mortgage registration act (G. S. 1935, 79-3101 ef seq.); that while the tax required by this statute does not apply to the original contract, because it was .executed before the statute went into effect, the agreement of June, 1937, is a renewal or extension of the original contract within the meaning of G. S. 1935, 79-3102, and since the mortgage registration fee was not paid on that instrument — a fact which is conceded — plaintiffs were not entitled to have it admitted in evidence (G. S. 1935, 79-3107). The point is not well taken. Defendant was the sole heir at law of Mrs. McMahon, the optionee in the original contract. The agreement of June, 1937, between plaintiffs and defendant was simply a recognition of her right to succeed to the interest of the original optionee in the contract. Appellant points to the language in this instrument by which it was agreed defendant “shall pay” plaintiffs “all sums necessary to restore, place and keep said option contract in force according to its terms.” That is no more than she would have been obliged to do if she cared to keep the option in force. “. . .. And shall also pay all of the unpaid taxes and assessments, . . . and that thereupon the annexed option contract shall be and continue in force between the undersigned, ... in accordance with the terms thereof.” This again is no more than the optionee was obligated to do if the option to purchase was to remain in force. We observe that the taxes were not paid for 1934 and subsequent years; hence, under this agreement appellant never did what was necessary for her to do in order to keep the option contract in force,, and had it been put in force it would then have been only in accordance with the terms thereof. More than that, if this instrument had not been received in evidence there would have been nothing in the record to show that appellant had any interest in this property. We think the court did not err in admitting the instrument in evidence.
It next is contended by appellant that in view of the fact that more than half of the purchase price had been paid, the court erred in forfeiting the contract; that it should have been treated as a mortgage, plaintiff should have been required to foreclose it as such, and the court should have granted appellant eighteen months in which to redeem, and possession of the property during that time. We think this point is not well taken. It was stipulated at the trial that the rental value of the property for the entire period was $30 per month. Up to the time of the decree rendered in January, 1939, the payment made to plaintiffs was substantially the amount of the rental value of the property plus unpaid taxes. At that time the court found the amount defendant would need to pay to purchase the property under the terms of the option contract to be $2,863.86, and the court gave defendant twelve months in which to pay that sum, with interest, and to be entitled to a deed to the property. After the beginning of this action defendant made no effort to. reinstate this contract, or to make further payments thereon. We are unable to say that the decree of the court was not equitable as applied to appellant. These contracts are not mortgages in form, and normally the statute pertaining to the foreclosure sale and redemption of mortgaged property has nothing to do with them. (Heard v. Gephart, 118 Kan. 82, 223 Pac. 1044.) Normally the rights of the parties under them are determined by courts of equity under equitable rules pertaining thereto and are treated as mortgages and required to be foreclosed as such only when under such equitable principles that would be fair to the parties. In view of the contract made, the fact that the optionee had the value of the use of the property almost equal to the amount paid, with taxes unpaid for almost five years, with no effort on defendant’s part at any time while the case was pending to pay a sum sufficient to keep the option in force, we think it would have been inequitable for the court to have decreed that the contract should be regarded as a mortgage, to have required the property to be sold, and to require plaintiffs to be out of possession for an additional eighteen months, with taxes accumulating.
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 damages alleged to have been sustained when defendant performed an operation upon plaintiff. Judgment was for defendant, sustaining a demurrer to the evidence of plaintiff. Plaintiff appeals.
The petition alleged that defendant performed an operation upon plaintiff on May 9,1934, for the removal of a part of her uterus, and that in performing the operation he used his instruments in a careless and negligent manner so as to cut an opening into the bladder of plaintiff; that plaintiff had had other operations to close this opening in her bladder, but without success, so there was a constant stream of urine from her bladder through her vagina onto her body and she had been damaged to the extent of $20,000.
The answer of the defendant was a general denial. Plaintiff testified about having had the operation performed and about a catheter being placed in her bladder; that defendant had told her a fistula had developed as a result; and that urine continually passed from her bladder and that three other doctors had operated on her in an attempt to close this opening, but had been unable to do so. Plaintiff then offered the testimony of a doctor and attempted to qualify him as, an expert witness. At this stage in the trial plaintiff had not established any negligence on the part of defendant. After some preliminary questions were asked this doctor, the defendant asked permission to cross-examine and did cross-examine at considerable length as to his experience in this type of operation, his general medical education and his general opportunities to observe such operations. At the conclusion of this somewhat extended cross-examination, the trial court announced that he would hold the witness to be qualified to testify. The defendant then asked permission to put in some testimony. This permission was granted, whereupon a doctor from Newton took the stand and testified in answer to hypothetical questions that in his opinion the doctor whose testimony had been offered was not qualified to testify on the matters at issue in this case. After an extended examination and cross-examination of this doctor, the court found that the doctor was not qualified to answer the hypothetical questions that would be submitted to him and was not competent as a witness, and sustained the objections of defendant to the admission of this testimony, whereupon the plaintiff made the following tender of proof:
“Comes now the plaintiff and states that if the witness, Dr. J. W. Young, had been permitted to testify, he would testify as follows:
“There would have been propounded to him a hypothetical question reading as follows: •
“Doctor, assume that a woman fifty-two years of age, approximately five feet two inches tall and weighing about 140 pounds, who has not experienced child-birth for sixteen years, and who has a sound, healthy bladder and natural control over the discharge of her urine, submits to a hysterectomy operation for the removal of the uterus, which operation covers a period of about two and one-half hours and that upon regaining consciousness she finds a retention catheter in her bladder, which catheter is removed approximately fifteen days after the operation, showing that the urine escapes in an unnatural manner from the bladder through the vagina and shows a fistula on the bladder, and assuming that blood is discharged through the catheter the afternoon following the performance of the operation.
“Do you have an opinion as to what caused the fistula, to which the witness would have answered, that in his opinion the fistula was caused by a puncture of the bladder by the defendant, Doctor Hertzler, in the performance of the operation, and that the puncture was caused by a surgical instrument. That the witness would have further testified that doctors and physicians in and about the vicinity of Halstead, Kan., do not commonly and ordinarily puncture the bladder in the performance of a hysterectomy or vaginal hysterectomy operation, and that if in the performance of such operation, a bladder is punctured, it is ordinarily the result of carelessness in the performance of the operation.”
This 'offer was again refused by the trial court.
The defendant then interposed a demurrer to the evidence of plaintiff, and this demurrer was sustained and plaintiff has appealed.
She assigns as specifications of error that the trial court erred in sustaining the objections of defendant to the testimony of Doctor Young and that the trial court erred in sustaining the demurrer to the plaintiff’s evidence.
At the outset, plaintiff states that unless the evidence of the doctor was admissible then the demurrer to the evidence was properly sustained. No motion for a new trial was filed in this case and no showing was made as to what the evidence of the doctor would have been had he been permitted to testify; that is, no affidavit was furnished the trial court as to what this evidence would have been nor did the doctor testify so that the court could know what it would have been.
The defendant argues that since this evidence was not furnished the trial court the question of whether it was error to refuse to permit this witness to testify cannot be raised on appeal.
Plaintiff argues here that since a ruling of the trial court on a demurrer to the evidence is an appealable order, which everybody admits, then a motion for a new trial was not necessary in order to make that order appealable — hence this court will examine questions of erroneous exclusion of evidence when considering the appeal from an order sustaining a demurrer to the evidence. There are some early authorities that tend to lend a little weight to this argument. However, the recent authorities are all to the contrary. The doctrine was expressly repudiated in Jett-Wood Central Mercantile Co. v. Pringle, 128 Kan. 159, 277 Pac. 37. There the early cases which had stated that the court would consider questions of the_ exclusion of evidence in considering a ruling on demurrer to the evidence, even though no motion for a new trial had been filed, were reviewed, and this court held as follows:
“An error in excluding evidence is not reviewable on appeal unless such excluded evidence has been produced and presented to the trial court by affidavit or otherwise at the hearing of the motion for a new trial, and this rule applies under R. S. 60-3004 in cases where a demurrer to the evidence has been sustained.” (Syl. H 2.)
To the same effect is the holding of this court in Walker v. S. H. Kress & Co., 147 Kan. 48, 75 P. 2d 820. There the court was considering a cross-appeal. On the question we are considering this court said:
“This brings us to a consideration of the excluded evidence. As to a portion of such evidence we are obliged to first inquire whether the mere fact that plaintiff has a right of review, relieves her from the duty of presenting the excluded evidence to the trial court in such form as to enable that court and this court to intelligently pass upon its admissibility. Obviously it does not. The evidence of the witness must either be contained in the record of the trial, or be produced in support of a motion for a new trial by affidavit of the witness or by an oral examination of the witness unless the evidence be documentary or by deposition. (Bank v. Seunier, 104 Kan. 7, 8, 178 Pac. 239; Cole v. Drum, 109 Kan. 148, 150, 197 Pac. 1105.) In the instant case we do not have b'efore us the examination of the witness, Roundtree, together with the rulings thereon, nor do we have her affidavit of what her testimony would have been had she been permitted to testify. We simply have a statement of her counsel to the court of what he hoped to prove by the witness. Such general proffer is not a sufficient basis for appellate review in criminal or civil cases. (.Elliott v. Oil Co., 106 Kan. 248, 251, 187 Pac. 692; State v. Ball, 110 Kan. 428, 432, 204 Pac. 701; State, ex rel., v. Wright, 140 Kan. 679, 683, 684, 38 P. 2d 125.)” (p. 56.)
(See, also, Carson v. City of Wichita, 148 Kan. 215, 80 P. 2d 1114.)
This is not just -an arbitrary rule. There is sound reason for it. In the first place, the trial court should be given a fair opportunity to know just what the witness, whose testimony he is considering, will testify to. This can only be done by having the witness himself take the stand. In the second place, this court should have an opportunity to ascertain whether the testimony offered would have been competent or whether what the witness would have testified to would have been important enough to warrant a new trial. The rule is not harsh. It can be easily complied with and there is no reason why it should ever work an injustice.
It follows the provisions of G. S. 1935, 60-3004, are now so well settled as to not permit of debate.
The judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Davis, J.:
The defendant, Michael W. Trammell, was charged in three separate counts with violations of K.S.A. 40-247. The gist of the complaints was that the defendant, acting as an insurance ágent, collected money from prospective customers for the purchase of annuities but failed to pay over the money to the insurance company. After the opening statement by the State, the defendant moved for an acquittal. Upon a hearing, the trial court granted the defendant’s motion on the basis that K.S.A. 40-247 covered a contract of insurance but did not cover a contract of annuity. The State appealed under K.S.A. 22-3602(b)(l), (3).
On June 8, 1992, this court entered an order limiting the appeal of the State to an appeal upon a question reserved by the pros ecution under K.S.A. 22-3602(b)(3). In State v. Hodges, 241 Kan. 183, Syl. ¶ 1, 734 P.2d 1161 (1987), we said:
“Appeals on questions reserved by the prosecution in criminal actions will not be entertained merely to demonstrate whether or not errors have been committed by the trial court in its rulings adverse to the State. Such questions must be of statewide interest and answers thereto must be vital to a correct and uniform administration of the criminal law.”
At the time the defendant was charged in this case, K.S.A. 40-247 provided as follows:
“An insurance agent or broker who acts in negotiating or renewing or continuing a contract of insurance by an insurance company lawfully doing business in this state, and who receives any money or substitute for money as a premium for such a contract from the insured, whether he shall be entitled to an interest in same or otherwise, shall be deemed to hold such premium in trust for the company making the contract. If he fails to pay the same over to the company after written demand made upon him therefor, less his commission and any deductions, to which by the written consent of the company he may be entitled, such failure shall be prima facie evidence that he has used or applied the said premium for a purpose other than paying the same over to the company, and upon conviction thereof he shall be deemed guilty of larceny and punished accordingly.” (Emphasis added.)
In 1992 the Kansas Legislature amended K.S.A. 40-247 to cover an agent’s or broker’s action with respect to “a contract of insurance including any type of annuity. ” (Emphasis added.) K.S.A. 1992 Supp. 40-247.
Based upon the 1992 amendment by the legislature, the question reserved by the State is no longer one of statewide interest, and our answer thereto is no longer vital to a correct and uniform administration of the criminal law. Under State v. Hodges, 241 Kan. 183, Syl. ¶ 1, we therefore dismiss the State’s appeal.
Appeal dismissed. | [
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|
The opinion of the court was delivered by
ALLEGRUCCI, J.:
The State of Kansas appeals from the district court’s dismissal of criminal charges against John D. Chapman. The complaint charged five counts which involved possession of controlled substances. The district magistrate judge declined to bind over Chapman on three counts; a fourth count later was dismissed for improper venue. The fifth count was dismissed because the State failed to comply with orders to file a written notice of election and to provide a bill of particulars. The State appeals pursuant to K.S.A. 22-3602(b)(l).
A five-count complaint was filed against Chapman in Ottawa County, Kansas. Counts I, II, and III charged, in the alternative, aiding and abetting possession with intent to sell methamphetamine or aiding and abetting possession with intent to deliver a simulated controlled substance. Count IV charged, in the alternative, sale of methamphetamine or aiding and abetting possession with intent to deliver a simulated controlled substance. Count V charged, in the alternative, possession of methamphetamine or possession of a simulated controlled substance.
As to Count I, Michael Porter testified at the preliminary hearing that he believed, based on the effect he experienced from ingesting it, that the substance he received from Chapman in April 1989 was methamphetamine. Porter received the substance from Chapman while in his car in front of a truck stop in Tonkawa, Oklahoma. Maurice Lee Heberly, Jr., was not in the car at the time. Porter estimated the amount at between one and two ounces. At the time he received the drugs from Chapman, Porter intended to sell some or all of the substance to Heberly, and he ultimately did sell some to Heberly. With the substance in their car, Porter and Heberly drove through Ottawa County on the way home to Glaseo.
Heberly’s testimony with regard to their meeting with Chapman in April 1989 substantially matched that of Porter. Heberly saw no money or drugs change hands. Porter told Heberly that he got the substance which he sold to Heberly from Chapman. After meeting with Chapman at the truck stop, Porter showed Heberly a Ziplock baggie of methamphetamine, which Heberly had not seen before the meeting. After leaving the truck stop, Porter and Heberly tried the substance. Based on his experience with the drug, Heberly believed that the substance received from Chapman was methamphetamine. Heberly paid Porter $1,900 for one ounce of the substance, and Heberly re-sold it in Vs-ounce quantities.
Porter testified that he had gotten controlled substances from Chapman for approximately two years before his own arrest. Heberly testified that he had been getting methamphetamine from Porter for approximately six to eight months before his arrest. Porter and Heberly were arrested at the same time, in August 1989, and convicted in Cloud County. Heberly was convicted of selling methamphetamine and Porter was convicted of possession with the intent to sell methamphetamine.
As to Count II, Heberly testified that he and Porter met Chapman in a hotel room in Wichita on June 27, 1989. With Heberly watching, Porter and Chapman sat at a table and exchanged $5,700 and four ounces of methamphetamine. Heberly, Porter, and Chapman tried the substance, and Heberly believed it to be methamphetamine. Porter and Heberly drove back to Glaseo and passed through Ottawa County. During the drive home, Heberly agreed to buy one ounce of the substance for $1,850. Heberly re-sold the substance in Vs-ounce quantities.
Porter’s testimony with regard to the transaction on June 27, 1989, did not deviate materially from that of Heberly.
As to Count III, Heberly testified that on July 9, 1989, he and Porter met Chapman in Salina. Heberly worked on Chapman’s car while Porter and Chapman sat in Porter’s car. On their drive home, Porter showed Heberly a baggie and said that “he had picked up a couple more ounces of that meth.” Porter sold an ounce of the substance to Heberly for $1,800. Heberly tried the substance and believed it to be methamphetamine. Heberly bought the substance from Porter for the purpose of re-selling it. Porter and Heberly passed through Ottawa County with the substance in their possession.
Porter’s testimony with regard to the transaction on July 9, 1989, did not deviate materially from that of Heberly. In addition, Porter testified that he received some methamphetamine from Chapman while they sat in Porter’s car and that he did not believe that he had given money to Chapman on that occasion. Porter said that “fronting” was his usual arrangement with Chapman. This practice allowed Porter to pay for the drugs previously received when he picked up more.
As to Count IV, Porter testified that between July 1988 and April 1989 he had purchased drugs from Chapman every two to four weeks. He had purchased the drugs at Chapmans house in Minneapolis, Kansas, for the purpose of re-selling them. Minneapolis is in Ottawa County.
As to Count V, the complaint charges that between September and December of 1989 Chapman, who previously had been convicted of a drug offense, possessed a controlled substance. At the preliminary hearing, Randy Cantor was asked whether between September 1988 and December 1989 he ever used a substance identified as methamphetamine or “crank” or “crystal” in the presence of Chapman. Cantor testified that “there’s one time that me and [Chapman] did a line together.” Although he earlier had given a videotaped statement in which he specified the September 1988 to December 1989 period, at the preliminary hearing Cantor was unable to pin down the time. When asked “from whom [he] got” the substance, Cantor testified that “it was mine at that time.” Cantor described the effect of the substance as a “pick me up . . . like you get from coffee.” He said that it burned his nose when he snorted it, and that it looked like pep pills crushed up. When asked whether the substance he used with Chapman affected him the same as crank or crystal he used on other occasions, Cantor gave a qualified “yes.” Cantor said he was living in Salina at the time of the preliminary hearing. He testified that he and Chapman “did the line” together in his garage, but he was not asked where that garage was located.
Following the preliminary hearing on October 15, 1991, the district magistrate judge filed his bindover order on November 1. He dismissed Counts I, III, and IV without comment. He concluded that Chapman should be bound over to the district court on Count II as it is stated in the complaint — in the alternative. He further concluded that “there is probable cause to believe that the crime of one count of possession of a stimulant, second time offender in violation of K.S.A. 1988 Supp. 65-4127b(a)(2), Class ‘D’ felony, has been committed.” This is Count V without the alternative charge of possession of a simulated controlled substance.
On December 2, 1991, Chapman filed a motion to dismiss the charges on which he had been bound over. On December 13, Chap man filed a motion for a bill of particulars for Count V. He requested that the State be required to state more precisely the time and place of the alleged offense so that he could prepare his defense.
There was a hearing on December 17, and on December 23 the district court judge filed a journal entry dismissing Count II on the ground that proper venue was in Cloud County. Count V was treated by the district court as if Chapman had been bound over on the alternative charges. In this regard, the final paragraph of the district court’s order stated:
“It Is Further Ordered that the State shall file with the Court and serve upon defense counsel on or before January 15, 1992, a written notice of election on Count V, second offense possession of stimulant or alternatively possession of a simulated controlled substance. Failure to file such election as directed will result in the dismissal of Count V.”
On January 21, 1992, Chapman filed another motion to dismiss Count V. The basis for the requested dismissal was the State’s failure to supply a bill of particulars. Chapman stated that “on December 10 [sic — correct date is 17], 1991, the Court granted the defendant’s motion for Bill of Particulars as it relates to Count V, and ordered the State to file a Bill of Particulars by January 15, 1992.” Chapman further stated that his motion is “independent of the Court’s own ruling requiring the State to file a written Notice of Election on Count V prior to January 15, 1992.” The transcript of the December 17 hearing contains the following ruling by the district court judge on Chapman’s motion for a bill of particulars:
“Well, I’ll sustain the motion for bill of particulars so that that can be— that can be progressing. I read the transcript of the cited, at least the portion of Mr. Cantor’s testimony. It would appear to have a rather broad time frame there. You need to pin it down substantially more than that.”
The State failed to respond or comply with the district court’s order to supply a bill of particulars.
With regard to the district court’s order to file a written notice of election on the alternative charges in Count V of the complaint, the prosecutor stated this position: “[W]e disagree with the Court’s order. We don’t feel that we have to make the election required. So that’s our response.” It had chosen to disregard the order and appeal the dismissal. The district court ordered that Count V be dismissed on the dual grounds that the alternative charges were impermissible and as a sanction for the State’s failure to comply with the court’s orders to file a written notice of election and to furnish a bill of particulars.
We first consider if venue is proper in Ottawa County for Counts I, II, and III of the complaint. K.S.A. 22-2602 provides: “Except as otherwise provided by law, the prosecution shall be in the county where the crime was committed.” K.S.A. 22-2607(1) provides: “A person who intentionally aids, abets, advises, counsels or procures another to commit a crime may be prosecuted in any county where any of such acts were performed or in the county where the principal crime was committed.” The Judicial Council note on 22-2607 states: “This section relates to prosecutions under §§ 21-3205 and 21-3812 of the Criminal Code and places venue in either the county where assistance is rendered or the county of the principal crime.” Chapman is charged under K.S.A. 21-3205 with criminal responsibility for the crime of possession with intent to sell methamphetamine which was committed by Porter and Heberly.
The State argues that Chapman has been charged in the county where the principal crime was committed. The State theorizes that Porter and Heberly’s possession with intent to sell methamphetamine was a continuing crime which was committed in each county in which they made an appearance or through which they passed while possessing with intent to sell the methamphetamine acquired from Chapman.
Pursuant to the State’s argument, when Porter and Heberly allegedly got methamphetamine from Chapman in Tonkawa, Oklahoma, Wichita, and Salina, Chapman could have been charged in any Kansas county through which the pair drove on their way home to Cloud County. In each instance, they drove through Ottawa County without stopping.
The State relies on federal cases for the proposition that any county entered by Porter and Heberly is a place where the crime was committed, the basic premise being that drug trafficking tends to be a continuing and transitory offense. In particular, the State cites United States v. Brantley, 733 F.2d 1429 (11th Cir. 1984), cert. denied 470 U.S. 1006 (1985), and United States v. Jackson, 482 F.2d 1167 (10th Cir. 1973), cert. denied 414 U.S. 1159 (1974). Jackson was charged with importation of heroin or aiding and abetting importation of heroin and with conspiracy to import heroin. 482 F.2d at 1170. There is no specific federal statute fixing venue in importation cases. 482 F.2d at 1178. Jackson, who had been charged in the district of Colorado, argued that the crime of importation was complete when the heroin was discovered in California. 482 F.2d at 1178. The Court of Appeals disagreed:
“It was a continuous crime which received no finality until the package arrived at Lowry Air Force Base [in Colorado]. Since an offense committed in more than one district ‘may be inquired of and prosecuted in any district [in] which such offense was . . . continued,’ 18 U.S.C. § 3237, venue for [importation of heroin] lies in any district used by appellants to complete their crime. [Citation omitted.] . . .
“It necessarily follows that as the substantive crime was committed in Colorado, the crime for aiding and abetting may also be tried in that district.” 482 F.2d at 1178-79.
Brantley was the navigator of a boat which left from Georgia, picked up about 500 bales of marijuana from off another boat near the Anguilla Banks, unloaded the marijuana in South Carolina, and returned to Georgia. 733 F.2d at 1433. A truckload of the marijuana was driven from South Carolina to Georgia, and the mastermind of the scheme remained in Georgia during the operation. 733 F.2d at 1433 and 1434 n.8. Brantley was charged with possession of marijuana with intent to distribute or aiding and abetting possession of marijuana with intent to distribute. 733 F.2d at 1433-34. He argued that the crime did not take place in the district of Georgia, where he was prosecuted. 733 F.2d at 1433. The Court of Appeals disagreed on the grounds that the truck driver had actual possession in Georgia and the mastermind had control, and thus constructive possession, in Georgia of the marijuana which had been transported in the boat to South Carolina. 733 F.2d at 1434 n.8. Brantley contended that his connection with the enterprise was severed with the unloading of the boat. The Court of Appeals rejected the contention because Brantley knowingly aided the possessors by supplying them with marijuana, because Brantley shared criminal intent with the possessors for the ultimate distribution of the marijuana, and because Brantley had a continuing interest in the success of the distribution on which his “compensation” depended. 733 F.2d at 1435.
We find the reasoning in Jackson and Brantley to be persuasive. However, these federal cases do not involve the question whether Porter and Heberly’s driving through a county without stopping affects the determination where the crime took place. In this regard, the State cited Marsh v. State, 95 N.M. 224, 620 P.2d 878 (1980).
Marsh involved the question of venue for possession of marijuana which had been flown over Valencia County enroute to McKinley County, where it had been unloaded. The New Mexico Supreme Court concluded that venue was proper in Valencia County “because a material element’ of the crime was committed in Valencia County, and where there is a continuing crime, venue lies in any county through which the defendant travelled.” 95 N.M. at 226. Nonetheless, the court held:
“[I]t would be more appropriate to try the case, if at all, in McKinley County where there is a more substantial nexus between the criminal acts and the county. Under the facts of this case, where the only contact with Valencia County was the passage of the airplane carrying the marijuana over it, we invoke our superintending powers over inferior courts to direct the District Court of Valencia County to transfer the case so that it can be tried, if at all, in McKinley County. N.M. Const., Art. VI, § 3. The facts that the marijuana was physically located in McKinley County, that defendant Marsh flew his plane carrying the illegal drug there to meet with defendant Bass, and that the alleged conspiracy ended there support our conclusion.” 95 N.M. at 226.
In the present case, neither the district court nor the defendant has cited any authority which would require that the aider be prosecuted where the principal was prosecuted. Chapman contends that in the cases relied on by the State the principals and defendants held criminally responsible for assisting them were prosecuted in the same locations. Assuming that his contention is correct, it does not necessarily follow that there is any requirement that principals and aiders be charged in the same place. Such a requirement might in some cases work to the disadvantage rather than to the advantage of a defendant. The federal constitutional venue requirements, at least, were intended to protect the “accused against the hardship and unfairness incident to a trial conducted in a remote place.” Jackson, 482 F.2d at 1178.
Because Chapman is charged with aiding and abetting Porter and Heberly’s possession with intent to sell methamphetamine rather than with sale or delivery of methamphetamine, prosecution is not confined to the county in which the drug passed from Chapman’s hands into Porter’s hands. K.S.A. 22-2607 does not require prosecution in the county in which the assistance was rendered. Moreover, it is not necessary under Kansas law that Chapman have been present within the state or county at the time of the commission of the crime with which he is charged with criminal responsibility. State v. Wolkow, 110 Kan. 722, Syl. ¶ 4, 205 Pac. 639 (1922).
The concept of aiding and abetting in Kansas allows any person who aids and abets in the commission of any offense to be charged, tried, and convicted as if he or she were a principal. State v. Smolin, 221 Kan. 149, 152, 557 P.2d 1241 (1976). Further, if charged only with the substantive offense, a defendant may be convicted on an aiding and abetting theory. 221 Kan. at 152. The defendant’s participation, not the commission of the substantive offense, is the act which constitutes aid to the principal.
Here, the offense of possession with the intent to sell methamphetamine was not completed when Chapman supplied the drugs to Porter. Chapman shared criminal intent with Porter and Heberly for the ultimate distribution of the drugs, and Chapman had a continuing interest in the success of the distribution because his financial reward depended on it. Porter and Heberly’s possession with the intent to sell did not commence and end upon Chapman’s supplying the drugs to Porter. It was a continuing offense which was committed in each county they subsequently traveled through in reaching their final destination. Accordingly, pursuant to K.S.A. 22-2607(1), venue in Ottawa County is proper.
We next consider if there is sufficient evidence to support a probable cause finding as to Counts I, III, and IV. The district magistrate judge dismissed Counts I and III after preliminary examination. No reasons were stated. The State, through a process of elimination, concluded that the reason was that Heberly did not witness the transfer of methamphetamine from Chapman to Porter in the transactions which form the bases of Counts I and III. The evidence as to the three counts was the same, with the exception of the location and that Heberly did not personally witness the exchange of the drugs and money. With regard to Count I, Heberly testified that he was in the truck stop in Tonkawa, Oklahoma, while Chapman and Porter met in a car. With regard to Count III, Heberly testified that he was working on Chapman’s car while Chapman and Porter met in another car. Heberly said that he saw Chapman and Porter exchange money and drugs in a hotel room in Wichita, which is the transaction underlying Count II.
As the State points out, there was other evidence of Chapman’s involvement in Counts I and III. Porter testified that Chapman supplied methamphetamine (or a substance with a like effect) to him on the dates and in the places charged in Counts I and III. The State also cites the following circumstantial evidence of varying degrees of probity:
Heberly testified that Porter did not have large quantities of methamphetamine with him on the way to meet Chapman in Oklahoma, but did have large quantities of the drug after the meeting. Heberly testified that neither he nor Porter used any drugs on the way to the Salina meeting and that Porter did not indicate that he had any with him. After the meeting, Porter showed Heberly a bag of methamphetamine.
Heberly testified that he witnessed Chapman and Porter exchange money and drugs on one occasion, that being the basis of Count II.
For the purpose of Count III, it can be inferred from Heberly’s witnessing the exchange that Chapman and Porter had an established business relationship.
The State contends that the evidence was sufficient to show that the alleged crimes had been committed and that there was probable cause that the defendant committed them. The function of the magistrate at the preliminary hearing is limited to making these determinations, and nothing more need be shown. State v. Boone, 218 Kan. 482, 485, 543 P.2d 945 (1975), cert. denied 425 U.S. 915 (1976).
Chapman argues that the evidence adduced at the preliminary hearing fell short of the mark. Deficiencies which he identifies include the following: Porter’s and Heberly’s questionable cred ibility due to agreements with the State on their own convictions; lack of physical evidence; Porter and Heberly did not stop in Ottawa County; Heberly’s lack of contact with Chapman; and lack of foreseeability that Porter and Heberly would possess with intent to sell methamphetamine in Ottawa County.
Research does not disclose many cases in which the credibility of witnesses at the preliminary examination remains an issue by the time the matter reaches an appellate court. In State v. Jones, 233 Kan. 170, 174, 660 P.2d 965 (1983), the court stated that the magistrate’s duties at a preliminary examination include passing judgment on the credibility and competency of witnesses. The question in Jones involved the defendant’s presentation at the preliminary hearing of evidence he acted in self-defense. The court stated that the magistrate was to seriously consider the defense, but concluded that the defendant should not be discharged on the basis of conflicts between his evidence and the State’s evidence. 233 Kan. at 174. “Where there is a conflict in testimony, a question of fact exists for the jury, and the magistrate must draw the inference favorable to the prosecution.” 233 Kan. at 174.
In the present case, the evidence at the preliminary examination was adduced by the State, and the bulk of it was the testimony of two convicted felons who may have hoped to lighten their own punishments by testifying against Chapman. It was the magistrate’s duty to assess their credibility. If the reasoning of Jones is followed, the court would not require the magistrate to discharge Chapman due to doubts about the witnesses’ credibility as long as the doubts did not obviate the appearance that he probably committed the felony with which he was charged. 233 Kan. at 173-74. The following statement of the applicable principle appears in Jones: “At the preliminary examination when there is a conflict in testimony, a question of fact exists for the jury, and the magistrate must draw the inference favorable to the prosecution.” 233 Kan. 170, Syl. ¶ 4.
In Jones, the State appealed the dismissal of a criminal complaint of aggravated battery at the close of the preliminary hearing. The State presented evidence of Jones being the aggressor; Jones presented evidence that he acted in self-defense. The magistrate dismissed the charges because he was not convinced by the evidence that Jones was not using reasonable force in protecting himself from attack. This court reversed and remanded with directions to reinstate the complaint on the ground that the evidence was sufficient to support a probable cause finding.
Chapman also questions the lack of physical evidence. None of the substance possessed by Porter and/or Heberly was introduced, nor was evidence of its chemical composition as determined by laboratory analysis introduced. The State defends its evidence by quoting from State v. Buckland, 245 Kan. 132, 140, 777 P.2d 745 (1989), “ ‘[E]ven the gravest offense may be sustained by circumstantial evidence’ ” (quoting State v. Burton, 235 Kan. 472, 478, 681 P.2d 646 [1984]).
The Court of Appeals recently affirmed drug convictions based on lay testimony and circumstantial evidence as to the identity of controlled substances. State v. Northrup, 16 Kan. App. 2d 443, 825 P.2d 174, rev. denied 250 Kan. 807 (1992). The convictions were based on evidence of two controlled purchases by Leslie Bowley, one of marijuana and one of methamphetamine. The marijuana was not subjected to laboratory analysis; the methamphetamine was. There was no exhibit admitted at trial which was identified as the marijuana.
Bowley testified that he asked to purchase some marijuana from defendant Northrup, who sold him a bag of green vegetation. 16 Kan. App. 2d at 450-51. A detective testified that it looked to him like marijuana. 16 Kan. App. 2d at 451. The defendant testified that “Bowley asked for marijuana, that he told Bowley that he would sell him marijuana, and that he would not ‘to my knowledge’ get him something that was not marijuana.” 16 Kan. App. 2d at 452.
The Court of Appeals concluded that the evidence was “sufficient to convince the jury, beyond a reasonable doubt, that the defendant sold marijuana to Bowley.” 16 Kan. App. 2d at 452. The Court of Appeals noted that “there was absolutely no evidence to suggest it could have been anything else.” 16 Kan. App. 2d at 452.
In reaching its conclusion, the Court of Appeals reviewed decisions from 23 other states and from 6 federal circuits which had sustained the proposition that the identity of substances such as marijuana may be proven by circumstantial evidence. 16 Kan. App. 2d at 448-49. It singled out United States v. Dolan, 544 F.2d 1219 (4th Cir. 1976), as a leading case and quoted from it as follows:
“ ‘Such circumstantial proof may include evidence of the physical appearance of the substance involved in the transaction, evidence that the substance produced the expected effects when sampled by someone familiar with the illicit drug, evidence that the substance was used in the same manner as the illicit drug, testimony that a high price was paid in cash for the substance, evidence that transactions involving the substance were carried on. with secrecy or deviousness, and evidence that the substance was called by the name of the illegal narcotic by the defendant or others in his presence. [Citations omitted.]’ 544 F.2d at 1221.” 16 Kan. App. 2d at 453.
Many of the elements of the circumstantial proof at issue in Dolan also appear in the present case with regard to the three instances when Porter and Heberly met Chapman. Thus, the evidence of the identity of the substance presented to the magistrate in the present case is sufficient for the purpose of binding Chapman over on Counts I and III of the complaint.
Count IV is based on Porter’s testimony that every few weeks between July 1988 and April 1989 he purchased drugs from Chapman at Chapman’s house. Here is Porter’s testimony on direct examination with regard to the identity of the substance(s):
“Q. Okay. And did he represent uh on these occasions when you purchased methamphetamine from him that you were purchasing the drug methamphetamine?
“A. Yes, that’s what I presumed.
“Q. Okay, you [sic] didn’t tell you that you were buying a comet, dish soap or crank.
“A. No.
“Q. Excuse me, or crack or cocaine or any derivative or designer drug, did he?
“A. No.
“Q. Have you ever tried any of those other drugs?
“A. No.
“Q. Okay. And do you recall what uh the price were, let’s say a half an punce would have been?
“A. Seems to be around 9.
“Q. $900 dollars?
“A. Yes.”
On cross-examination, Porter testified as follows:
“A. [answering question regarding what some drug looked like]: It was [a] white powder.
“Q. Likewise Mr. Porter at any time did you have chemical analysis done on any of that powder?
“A. No I didn’t.
“Q. Did you, do you have a sample that we can prove that it was drugs?
“A. No I don’t.
“Q. Do you know if the State has a sample that we can prove that that [sic] it’s [an] illegal substance?
“A. I believe Cloud County does have.
“Q. Do you know if Ottawa County has a sample of that same drugs that [you’re] testifying to from July ‘88 through April ‘89?
“A. Not to my knowledge.”
On re-direct, Porter testified:
“Q. What did he represent to you that it was?
“A. Methamphetamine.
“Q. And what did you pay him for?
“A. Methamphetamine.
“Q. Okay. You said that uh Cloud County, Kansas, has a sample, what do you mean by that?
“A. Well, I presume they still have it. That’s what, what they confiscated from me when I was arrested.
“Q. Okay. Was that tested?
“A. I be, yes it was.
“Q. And do you know what the results were or were you told what the results were?
“Q. Were you told what the substance was tested as being?
“A. Yes.
“Q. And what were you told?
“A. I was told it was methamphetamine.
“Q. Okay, and where did you get that drug?
“A. From John Chapman.”
There is evidence of the physical appearance of the drug, that it was expensive, that Porter had requested methamphetamine, that Chapman referred to the substance as methamphetamine, and that Porter had been informed that laboratory analysis showed the substance to be methamphetamine. This circumstantial proof is sufficient for the purpose of the preliminary examination.
The following excerpt from State v. Jones, 233 Kan. 170, sets forth other basic principles applicable to consideration of the sufficiency of the evidence at a preliminary examination:
“A preliminary examination differs from a trial. This court stated in In re Mortimer, 192 Kan. 164, 166, 386 P.2d 261 (1963):
There is a difference between the quantum of proof essential to a binding over for trial and that required to convict at the trial. The guilt or innocence of a defendant is not adjudged at a preliminary examination, and it is not necessary that evidence upon which a defendant is held for trial should be sufficient to support a conviction. It is enough if it shows that an offense has been committed and that there is probable cause to believe the defendant is guilty.’
“In the recent case of State v. Hunter, 232 Kan. 853, 854, 658 P.2d 1050 (1983), Justice Miller stated:
Hie reasonable doubt test has no place in a preliminary examination. As we have said many times, a magistrate conducting a preliminary examination serves a limited function: to determine whether it appears that a felony has been committed, and whether there is probable cause to believe that the accused committed it. It is an inquiry as to whether the defendant should be held for trial.’ ” 233 Kan. at 172-73.
Probable cause at a preliminary hearing signifies evidence sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused’s guilt. State v. Starks, 249 Kan. 516, Syl. ¶ 2, 820 P.2d 1243 (1991). In our judgment, the evidence was sufficient to find probable cause that the defendant committed the offenses charged in Counts I, III, and IV.
Finally, we consider the district court’s dismissal of Count V. The State has framed two issues around the dismissal of Count V. First, the State objects to the district court’s requiring it to elect between the alternative charges. Second, the State complains of being required to file a bill of particulars.
However, before we consider these issues, there is a question of venue which must be addressed. Counsel for the State, when asked at oral argument what evidence was presented at the preliminary examination to establish that the offense occurred in Ottawa County, responded by directing the court to paragraph 26 of Sheriff White’s affidavit, dated July 18, 1990. The affidavit was filed on that day together with the complaint and warrant for the defendant’s arrest. Sheriff White states in paragraph 26: “ That during the fall and winter of 1989, Randall Cantor, has indicated to this reporting officer that John D. Chapman set out lines of what he believed to be methamphetamine on a table in Mr. Cantor’s garage located at 222 Laurel, City of Minneapolis, Ottawa County, Kansas.” However, there is no evidence in the record of the preliminary hearing to that effect. Randy Cantor testified that he and Chapman used a stimulant drug together in Cantor’s garage. The only location about which Cantor testified was his residence in Salina, Kansas. That would be in Saline County. Although not entirely clear, it appears that Chapman was living with Cantor at the time. Cantor’s testimony does not reveal any evidence that the offense charged in Count V occurred in Ottawa County. As to Count V, Sheriff White testified on direct examination:
“Q. Alright [sic]. With regard to uh Count V, did you also have Randy Cantor under investigation and have his house under surveillance?
“A. Yes • sir, we did.
"Q. And did you see Mr. Chapman at that location?
“A. Numerous times.
“Q. And was that fairly frequently?
“A. Yes sir, it was.”
On cross-examination, the following exchange took place:
“Q. Where did he live at that time? [Referring to Chapman.]
“A. Two residences, one was uh if I remember the address is correct, the address is 813 Elm Street, which is located just west of the hospital, uh, and the other one was I think 707 North Rothsay which is a house that his father owned. He had resided in both of them.
“Q. Alright [sic] during that period of time, did your investigation reveal that he was separated from his wife?
“A. Yes sir, it did.
“Q. Did it reveal that he was living at uh, this Cantor’s house for some period of time?
“A. He was staying down at Cantor’s off and on, but when he moved out of the Elm Street house, he went over to the Rothsay house.
“Q. So it showed that he was uh, he did move into Cantor’s house for some time?
“A. He was stayin’ down there off and on.
“Q. Okay.”
Sheriff White was not asked nor did he state where Cantor was residing at the time the alleged use of methamphetamine occurred. The magistrate was not presented with any evidence that the offense described in Count V of the complaint occurred in Ottawa County. In Jones, we said: “The quality of the evidence to obtain the complaint/information is no longer sufficient during the preliminary examination. Only evidence admissible in the trial of the defendant is to be considered by the magistrate.” 233 Kan. at 172. It is solely from that evidence that the magistrate must determine that a felony has been committed and that there is probable cause to believe the defendant committed it. In State v. Myatt, 237 Kan. 17, 30, 697 P.2d 836 (1985), this court stated: “The venue of an offense is jurisdictional. The State must prove that the offense occurred in the county where it is prosecuted.” Here, the State failed to establish that the offense charged in Count V occurred in Ottawa County.
The dismissal by the trial court of Count V of the complaint is affirmed. We reverse as to Counts I, II, III, and IV, and the case is remanded with directions to reinstate those counts against the defendant, to arraign him, and to proceed in conformity with this opinion. | [
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The opinion of the court was delivered by
Abbott, J.:
The appellant, Kenneth Crease, appeals the denial of his K.S.A. 60-1507 motion in which he challenged his convictions, based upon an ex parte communication between the trial judge and at least one juror. The Court of Appeals affirmed the denial in an unpublished opinion filed August 7, 1992. We granted the petition for review.
The main issue is whether the trial judge’s ex parte communication with a juror is harmless error. Crease also claims there was insufficient evidence to support the district court’s finding that only one juror saw the judge ex parte; the failure of his attorney to object or move for a mistrial when learning of this meeting was ineffective assistance of counsel; and the assignment of this case by Judge Paul W. Clark, presiding judge of the Criminal Division, who was the prosecutor in the original case, to Judge Karl W. Friedel amounted to an appearance of impropriety requiring a new trial.
The background for this appeal is that in January 1981, a jury found Crease guilty of three counts of burglary, four counts of aggravated burglary, five counts of theft, and two counts of felony murder. During one of the burglaries perpetrated by Crease and one or more accomplices, a husband and wife were shot and killed while sleeping. The evidence was conflicting whether Crease shot one of the victims or whether Crease was in another room when the couple was shot. Crease was 16 years old at the time the offense was committed and was certified to stand trial as an adult. This court affirmed Crease’s convictions on direct appeal. State v. Crease, 230 Kan. 541, 638 P.2d 939 (1982).
In August 1988, after learning of an ex parte communication between the trial judge, Judge Ray Hodge, and one or more jurors, Crease filed a K.S.A. 60-1507 motion. Crease argued that, because of the ex parte communication, he was denied his right to be present at all critical stages of the trial. He subsequently filed affidavits, including two from jurors, in conjunction with his motion. The affidavits set forth that an ex parte conference between the trial judge and one or more jurors took place during the trial.
The trial judge refused to allow Crease to subpoena the jurors for an evidentiary hearing and subsequently denied Crease’s 60-1507 motion. Crease appealed. In an unpublished opinion No. 63,638 filed June 22, 1990, the Court of Appeals reversed and remanded “with directions to hold a meaningful evidentiary hearing.”
By way of background, Crease’s trial, including voir dire, lasted two months. Jury deliberation began on January 5, 1981, and continued for the next two days. The ex parte conversation occurred on January 7, 1981, sometime prior to 11:35 a.m. A juror, Stephanie Brinkley, pursuant to the suggestion of the trial judge during the ex parte conversation, submitted the following question in writing:
“If it is already pre-determined (it seems) that the defendant is guilty of a crime, whether or not he actually committed the particular act or not, do we as jurors really have a choice in the matter as to whether he is to be judged (by us) guilty or not guilty.
“The State tried to prove he was in the basement and actually committed the act. The defense says otherwise. Are we bound by the statement in [Instruction] 21. Do we have a choice?”
Instruction 21 provided: “A person is criminally 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.”
Shortly after 1:35 p.m., Judge Hodge orally responded as follows:
“To answer that question it is contained in the written Instructions in Instruction Number 1. I will read a portion of that to all of you again.
“ ‘Members of the Jury: It is my duty to instruct you in the law that applies to this case and it is your duty to follow the Instructions. You must not single out one or more Instructions and disregard others. You should construe each [In]struction in the light of and in harmony with the other Instructions, and you should apply the Instructions as a whole to the evidence.’ ”
The judge then excused the jury to resume deliberations. The jury reached a verdict that afternoon at 4:50 p.m.
An evidentiary hearing was held in February 1991, more than 10 years after Crease’s conviction. The Court of Appeals fairly and accurately summarized the testimony as follows:
“At the hearing John Hale, the bailiff at petitioner’s trial, testified that during jury deliberations certain jurors were crying and one woman approached him and wanted to see the trial judge. The judge allowed him to bring the woman into his chambers. Hale said he also remained there for awhile. He further testified the juror told the judge she did not want to be a juror and take the responsibility of being a juror. The judge told the juror that, as a juror, she was ‘no better than anybody else . . . [and she] should go back and do [her] duty.’ Hale thought he brought three jurors in, but he was sure that it was more than one. One juror was a black female and the others were white females. Kenneth Crease was not present for any of this discussion.
“Stephanie Washington Brinkley is the black juror who met with Judge Hodge. She testified she was having trouble accepting the felony-murder and aiding and abetting rules, and stated: T just couldn’t get over the fact that Mr. Crease was going to be . . . tried for murder . . . although he did not pull the trigger. He . . . wasn’t aware that the other guy . . . planned to go down and murder this couple — I couldn’t deal with the fact that he was going to be tried for murder even though he didn’t commit the act himself.’ She also said T can’t remember if [the sentence] was life or what it was, but we just felt [he] was too young for that. And since he didn’t do it, then why make him go through that[?]’ She stated that she and Barbara Poppenhagen, another juror, were having difficulty with this and went to see the judge.
“Ms. Brinkley stated the meeting involved her, Ms. Poppenhagen, and the judge. There was no defendant, no bailiff, and no attorney present. She said the judge reread the instructions to her. He told them to ‘use the evidence that was presented in court during the trial and base our decisions upon that.’ She stated he also told them that in the State of Kansas under the felony-murder rule ‘you’re just as guilty — when a felony is committed, you’re just as guilty as if you actually did it yourself.’
“Ms. Brinkley was asked:
‘Q. And so then the judge instructed you that if he was guilty of the burglary, then he was guilty of the murder?
‘A. Yes, just because he was there at the time, uh-huh.’
“She stated three or four people did not want to return a guilty verdict, but the other jurors were pressuring them. Ms. Brinkley said she did not know for sure what she was going to do when she left the judge’s chambers. Although she was uncomfortable with the extreme aspect of the felony-murder rule, she succumbed to the pressure of the other jurors and voted guilty. She said there was no pressure exerted by the judge. After having the judge explain things to her, she stated she interpreted it to mean ‘that there [was] no other recourse other than to vote guilty.’
“Barbara Poppenhagen testified she did not remember going into the judge’s chambers. However, she later added it was possible she was in his chambers.
“The jury foreman, Frank Rider, testified that Ms. Brinkley had some problems with the case. He recalled when she returned from the judge’s chambers she was distraught and upset. She asked Rider if she had to vote guilty according to the instructions, to which he replied, yes, they must follow the instructions. He recalled, from a previous affidavit, Ms. Brinkley told him the judge had talked to her about the felony-murder rule and that was why she would have to vote guilty. Rider thought Ms. Brinkley went to see the judge by herself.
“Ray Hodge, the trial judge, stated:
‘As I recall, she was a black lady. She came into the office what I perceived going off from the jury. I believe she stated she didn’t understand the jury instructions as it related to the felony murder rule. I tried to get her to write a note, put it in writing and send it back out. I believe I read her a part of the jury instructions or duties and admonitions about not allowing sympathy and prejudice to enter into her deliberations. She said she just couldn’t do it. She couldn’t do it. She couldn’t do it. I had assumed in my own mind, although I didn’t express it, that they were on the verge of finding Mr. Crease guilty, and she didn’t want to be part of finding a young man guilty under the felony murder rule. That was my own perceptions. After giving her the admonitions that are contained in the jury instructions, I sent her back into the jury room to continue deliberations, and then at some point after that made a record of it, and — of what transpired back in chambers and offered both sides an opportunity to cross examine that — inquire into the juror if they wanted to, and I believe they elected not to.’
He also felt that there were two jurors, one black and one white, who came to see him. He thought the black juror was having sympathy for the defendant so he instructed her not to have sympathy for Mr. Crease. Judge Hodge believed he told her she would have to ‘find the defendant guilty or not guilty.’ The judge also stated:
‘It was my attempt, be it right or be it wrong, to resolve a critical situation of a — what I want to classify as a turncoat juror, or a juror that heavily in her heart, for religious reasons or otherwise, was [having] difficulty in finding a young man guilty of a very heinous crime or crimes.’
Judge Hodge testified that, after his request to Ms. Brinkley to put any questions in writing, she did so, and he then answered the question in the courtroom for the entire jury. The judge then called the attorneys into his chambers with a court reporter and informed them of his conversation with Ms. Brinkley.
“His statements to counsel were:
‘Gentlemen, I really think that we need to bring Mrs. [Brinkley] in to question her, and the question is when — for the record, Mrs. [Brinkley] came into my chambers this morning and asked me if she didn’t understand a law, one of my instructions, if I could explain it to her. I told her that she should have a note sent out and I would answer the question on the note if I possibly could. She then said: Well, what if I am the only one that doesn’t understand it.
1 still suggested to her that she have a note sent out. She then started in crying very heavily saying that she just couldn’t do it, she wanted off the jury, she just couldn’t do it. I admonished her according to the jury instructions that she cannot allow prejudice or sympathy to enter into her deliberations, that the only thing that her job is to find the guilt or innocence of the Defendant in accordance with the instructions and the evidence. She then returned sobbing through the Court’s Chambers’ door and presumably back into the jury room.’
“Paul Clark, the prosecutor in the case and now a judge, testified he saw one woman leave the judge’s chambers and go into the jury room. Immediately after she left, he and the other attorneys were called into the chambers.
“Charles Millsap, another prosecutor in the case, testified that he thought the State’s case was in trouble after hearing about the condition of one of the jurors.
“Warner Eisenbise, the defendant’s attorney, stated he was called into the judge’s chambers and told about the ex parte communication. The defendant was not present for this conference. Mr. Eisenbise thought Ms. Brinkley would be a good juror for the defendant and therefore he did not ask for a mistrial or a hearing to question her. He stated that, even though it may have been a legal error, he felt it was a better strategy to keep her on the jury. He felt he did discuss the ex parte communication with Mr. Crease, but he is not sure when. Mr. Eisenbise admitted he made an error by waiving the defendant’s right to be present during this discussion.
“Kenneth Sperxarth, another juror, testified that he did not know any juror spoke with the judge. He stated that many of them were concerned about applying the felony-murder rule and they asked the judge to repeat the instruction, which he did in front of the whole jury. He felt that was the turning point for the guilty verdict.
“Defendant Kenneth Crease testified he was not at the meeting with Judge Hodge and the juror(s), he was never informed of the juror(s)-judge communication, and he never waived his right to be present.”
Marion Crease, defendant’s mother, testified that two or three years after the trial an alternate juror told her about the communication and she began to investigate it.
Evidence also was presented concerning the trial judge’s notification to trial counsel of the ex parte communication. The trial judge testified he called trial counsel into his chambers to inform them of his ex parte communication with Brinkley. A court reporter was present at this meeting, but was not the same court reporter who was present during the trial. Apparently, the reporter who took the trial testimony was not aware that any other proceeding had taken place. As a result, when different counsel was appointed to handle the direct appeal and that counsel ordered a complete transcript, the conference in chambers was not included and Crease’s counsel on appeal had no knowledge of the conference. The judge’s meeting with the attorneys was not transcribed until January 4, 1991.
After hearing the testimony, Judge Friedel held that Judge Hodge’s ex parte communication with the juror was error and, after commenting that it was a very close and difficult question, he ruled that the error was harmless. The Court of Appeals discussed the applicable law, summarized what had occurred, and held the error to be harmless beyond a reasonable doubt, stating:
“The facts before us in the instant case are as follows: one juror, and possibly two, was very concerned about finding the defendant guilty under the Kansas felony-murder rule. In chambers, the trial judge explained briefly the law involved and repeated the instructions. He directed that a written question be submitted and admonished them to do their duty.
“The court informed counsel of the meeting. Counsel for the defendant apparently saw no harm in what had occurred and desired to keep on the jury a juror who was showing reluctance to convict the defendant. He also did not want a mistrial.
“The juror indicated that with the application of the felony-murder rule (which is the law) there was no other reasonable action to take but convict. Some three hours after the court appropriately answered the requested written question in open court, and about seven hours after the contact with the juror(s), the jury returned a verdict of guilty.
“The petitioner’s trial counsel believes he informed petitioner of the proceedings. The issue was not deemed important enough to raise in the direct appeal.
“We find that the judge’s contact with the juror(s) was not of such a nature as to materially prejudice the petitioner’s rights. While it is regrettable that the contact occurred, the substance of the judge’s comments was not prejudicial. They were communicated to petitioner’s counsel, who saw no problem with them. The essence of the judge’s comments was little other than a recapitulation of some of the instructions briefly stated to a juror who only wanted to know if she had to follow them.
“The verdict which came seven hours later was in no way influenced by the judge’s ex parte comments.
“Taking into account the foregoing as well as the evidence of petitioner’s guilt, we find, beyond a reasonable doubt, the claimed error was harmless.”
I. HARMLESS ERROR
There is no dispute that an ex parte communication between Judge Hodge and at least one juror occurred and that this communication violated Crease’s constitutional right to be present at all critical stages of the trial. This constitutional right is rooted in the Confrontation Clause of the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment. United States v. Gagnon, 470 U.S. 522, 526, 84 L. Ed. 2d 486, 105 S. Ct. 1482, reh. denied 471 U.S. 1112 (1985). Kansas has codified the right of presence at K.S.A. 22-3405. This court has held that “[a] conference between a trial judge and a juror is a critical stage of the proceeding requiring the presence of the defendant.” State v. Lovely, 237 Kan. 838, Syl. ¶ 3, 703 P.2d 828 (1985); see State v. Garcia, 233 Kan. 589, Syl. ¶ 2, 664 P.2d 1343 (1983) (a defendant’s constitutional and statutory right to be present includes the right to be present “whenever the court communicates with the jury”). Additionally, K.S.A. 22-3420(3) requires that once the jury has begun deliberations, any questions from the jury concerning the law or evidence pertaining to the case must be answered in open court in the defendant’s presence, unless the defendant is absent voluntarily. Crease was not absent voluntarily.
Objections to the ex parte communication were raised for the first time in Crease’s K.S.A. 60-1507 motion. “[T]rial errors affecting constitutional rights may be raised [in a 60-1507 motion] even though the error could have been raised on appeal, provided there were exceptional circumstances excusing the failure to ap peal.” Rule 183(c)(3) (1992 Kan. Ct. R. Annot. 143). Here, there were exceptional circumstances. When advised of the communication, Crease’s trial counsel did not object or ask for a mistrial. If counsel discussed the matter with Crease, it was after the fact. See State v. Antwine, 4 Kan. App. 2d 389, Syl. ¶ 12, 607 P.2d 519 (1980)(“An attorney cannot waive the right of an accused to be present at trial without first having discussed the matter with the accused.”). Crease’s trial attorney never raised the issue in post-trial motions and never informed appellate counsel of the matter. Although a court reporter was present in 1981 when Judge Hodge apprised the attorneys of his communication with the juror, the proceeding was not transcribed until January 4, 1991. Crease’s appellate counsel at the time of the direct appeal was not aware of the error.
The question before us is whether this constitutional error requires reversal.
“An error of constitutional magnitude is serious and may not be held to be harmless unless the appellate court is willing to declare a belief that it was harmless beyond a reasonable doubt. [Citations omitted.] Thus, before we may declare the error harmless, we must be able to declare beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial. [Citation omitted.]” State v. White, 246 Kan. 28, 37, 785 P.2d 950, aff’d as modified 246 Kan. 393, 789 P.2d 1175 (1990).
See Delaware v. Van Arsdall, 475 U.S. 673, 681, 89 L. Ed. 2d 674, 106 S. Ct. 1431 (1986); Chapman v. California, 386 U.S. 18, 24, 17 L. Ed. 2d 705, 87 S. Ct. 824, reh. denied 386 U.S. 987 (1967); State v. Peltier, 249 Kan. 415, 426, 819 P.2d 628 (1991), cert. denied _ U.S. _, 120 L. Ed. 2d 875 (1992). On appeal, the defendant has the burden of showing the error substantially prejudiced his or her rights. Garcia, 233 Kan. at 596.
The Court of Appeals held that any error was harmless beyond a reasonable doubt because the ex parte discussion did not materially prejudice Crease’s rights and did not affect the verdict. The court also took into account the evidence of Crease’s guilt.
Crease takes exception to the Court of Appeals’ statement that “[t]he essence of the judge’s comments was little other than a recapitulation of some of the instructions briefly stated to a juror who only wanted to know if she had to follow them.” Judge Hodge and Brinkley recalled different instructions being discussed. Crease argues:
“It is difficult to determine which situation is more pernicious — Judge Hodge’s version of reinstructing an emotionally distraught ‘turncoat juror,’ who was preventing the jury from reaching a verdict, to not let sympathy influence her decision, or [Brinldey’s] version of the judge reinstructing her regarding the felony murder rule and implying that if . . . Crease was guilty of burglary, as she had stated she believed, then he was also guilty of murder. Both, in effect, constitute directions as to what the ‘proper’ verdict should be.”
Exactly what Judge Hodge said will never be known because no record was made of the ex parte communication. Additionally, a different meaning or significance could be imparted to a jury instruction depending upon whether the instruction was read verbatim or paraphrased.
Mo.st states follow the harmless error rule, but some have modified the rule concerning a judge’s ex parte communication with a juror. In Arizona, an ex parte communication between a judge and jury that is not recorded is presumed prejudicial. State v. Hilliard, 133 Ariz. 364, 651 P.2d 892 (1982). Arkansas and Florida also have held that an ex parte communication between the judge and jury is not harmless error if the record is incomplete. See Tarry v. State, 289 Ark. 193, 710 S.W.2d 202 (1986); Coley v. State, 431 So. 2d 194 (Fla. Dist. App. 1983); Caldwell v. State, 340 So. 2d 490 (Fla. Dist. App. 1976). Illinois has held that an ex parte communication by a judge with a juror that was not recorded is reversible error even if the court assumed that what was said and done by the judge did not influence the jury. People v. Childs, 230 Ill. App. 3d 993, 1001, 596 N.E.2d 108 (1992).
Although we cannot condone an off-the-record ex parte communication by a judge with a juror, we are not inclined at this time to adopt such a “bright line” rule. The issue then is whether we can say the error was harmless beyond a reasonable doubt.
Obviously, there is substantial competent evidence to support the findings of the district court in this case. That is not the standard of review, however. Our standard of review on this issue requires a review of the entire record by this court. “Since Chapman, we have repeatedly reaffirmed the principle that an 6th- erwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt. [Citation omitted.]” Delaware v. Van Arsdall, 475 U.S. at 681.
Our examination of the entire trial transcript convinces us the error was harmless beyond a reasonable doubt. The record indicates that Crease and his accomplice, or accomplices, committed an aggravated burglary and that one of the burglars carried a high-powered rifle and one carried a handgun similar to one a witness previously had observed in Crease’s bedroom. Crease’s own testimony acknowledged his participation in the burglary and his awareness that at least one rifle was carried into the house in which the sleeping couple was shot and killed during the burglary. Given the burglary convictions, only if one or more of the jurors did not follow the instructions could there have been a hung jury or an acquittal on the felony-murder charges.
Brinkley testified that the judge did not pressure her and that she had not decided how she would vote when she left his chambers. No objection was, or is, made to the trial judge’s instruction to the jury in response to Brinkley’s written question. Several hours later the jury returned its verdict of guilty.
We are convinced the ex parte communication between the judge and juror, or jurors, had little, if any, likelihood of changing the verdict, and thus we hold the error to be harmless beyond a reasonable doubt.
II. JUROR OR JURORS
Crease argues there was not substantial competent evidence to support the trial court’s finding that Judge Hodge had an ex parte communication with only one juror. In support of his argument, Crease directs this court’s attention to the 1991 testimony of Brinkley, the bailiff, and Judge Hodge, who all stated that they believed more than one juror visited the judge in his chambers during deliberations. Additionally, Crease points out that Barbara Poppenhagen admitted during a telephone conversation with Crease’s mother in 1987 she had gone to visit the judge in his chambers even though at the 1991 hearing Poppenhagen said she could not remember going to the judge’s chambers. The Court of Appeals did not address directly Crease’s argument.
If there is substantial competent evidence to support the trial court’s finding of fact, an appellate court will not disturb that finding on appeal. State v. Smith, 244 Kan. 283, 288, 767 P.2d 1302 (1989). Shortly after visiting with the juror, Judge Hodge informed the attorneys of what had transpired. According to the transcript of the 1981 meeting, Judge Hodge only referred to one juror. The evidentiary hearing occurred in 1991. Because the 1981 recollection of events was much closer in time to the event in question than the 1991 evidentiary hearing, there is substantial competent evidence to support the trial court’s finding of fact.
III. EFFECTIVE ASSISTANCE OF COUNSEL
Crease claims he was denied effective assistance of counsel because his trial attorney did not object to or request a hearing regarding the ex parte communication.
The Court of Appeals stated:
“In Kansas, the test to determine whether counsel has been ineffective is stated in Chamberlain v. State, 236 Kan. 650, 654-55, 694 P.2d 468 (1985): ‘Under the first part of this two-pronged approach, a convicted defendant must show counsel’s representation fell below an objective standard of reasonableness. . . . [The second requirement is] that [the] defendant establish a reasonable probability the decision challenged would have been different had he received effective assistance.’
“Chamberlain, 236 Kan. at 655, also states that the attorney’s performance should be judged ‘ “in light of all the circumstances.” ’ [Crease] cites to Murray v. Carrier, 477 U.S. 478, 496, 91 L. Ed. 2d 397, 106 S. Ct. 2639 (1986), as support that an isolated error may be enough to find ineffective assistance of counsel if the ‘error is sufficiently egregious and prejudicial.’ However, [Crease] does not state how the claimed error by his trial attorney is egregious and prejudicial.
“At the time the error occurred, defense counsel believed he had a sympathetic juror and hoped she would cause a hung jury. The prosecution even believed that its case was in trouble at that time based on Ms. Brinkley’s conversation with Judge Hodge. The defense counsel made a trial decision that, in retrospect, may not have been a good one. However, this decision does not fall below the Chamberlain standard.”
Crease disagrees, pointing out that trial counsel could have requested a hearing without challenging Brinkley’s continued participation as a juror. Crease’s trial counsel testified at the 1991 hearing that he did not want to “stir up the waters” because defense strategy was to invoke sympathy for the defendant and he felt Brinkley was sympathetic to his client. “If the counsel’s act was the result of a reasonable defense tactic, then this court will find his assistance to have been competent and effective.” State v. Logan, 236 Kan. 79, 83, 689 P.2d 778 (1984).
Crease also argues hindsight: Because the judge’s and Brinkley’s recollections of what was said differed, the trial attorney erred in basing his decision upon the judge’s representation of what occurred during the ex parte communication. Crease claims the trial attorney failed to make an informed decision because he could have, but failed to, clarify how Brinkley interpreted the communication. Hindsight is not a viable argument.
“ ‘It is one of the characteristics of human experience that hindsight often reveals alternative courses of conduct that may have produced different results if only they had been employed. Hindsight, however, is not the vantage point from which we judge allegations of incompetence. [Citation omitted.] It may be that had defendant’s counsel on appeal conducted the defense at trial, he would have done things differently. Whether or not he would have fared better before the jury is a matter of conjecture. Where experienced attorneys might disagree on the best tactics, deliberate decisions made for strategic reasons may not establish ineffective counsel. [Citation omitted.]’ ” State v. Kendig, 233 Kan. 890, 896, 666 P.2d 684 (1983).
Both the trial court and the Court of Appeals properly ruled that Crease was not denied effective assistance of counsel.
IV. ASSIGNMENT BY JUDGE CLARK
Crease contends that Judge Clark’s assignment of this case to Judge Friedel created an appearance of impropriety because Judge Clark had prosecuted Crease’s trial and would be a witness at the hearing.
The judicial disqualification standard, as set forth in State v. Strayer, 242 Kan. 618, Syl. ¶ 3, 750 P.2d 390 (1988), is
“whether the charge of lack of impartiality is grounded on facts that would create reasonable doubt concerning the impartiality, not in the mind of the judge himself, or even, necessarily, in the mind of the litigant filing the motion, but rather in the mind of a reasonable person with knowledge of all the circumstances.”
The Court of Appeals held that there was no appearance of impropriety, reasoning:
“[Crease] made a similar argument before this court in Crease v. State, unpublished opinion No. 63,638 filed June 22, 1990, to which this court stated that the action was a purely administrative function and there was no appearance of impropriety. [Crease] states that the Court of Appeals’ reliance on Collins v. Kansas Milling Co., 210 Kan. 701, 504 P.2d 586 (1972), is distinguishable because, not only was Judge Clark prejudiced, he was also to be called as a witness before the assigned judge and have his credibility judged. However, [Crease] offers no authority to support this distinction. Also, the possibility that Judge Clark would testify was also before the Court of Appeals on that appeal and did not change the opinion.”
The administrative judge assigned the case to Judge Clark, who, as the presiding judge of the criminal division, assigns criminal cases for hearing. Clearly Judge Clark was disqualified from hearing the case and better practice would have been for the administrative judge to have assigned the case for hearing, thus eliminating this issue. The best practice would be to request a judge from outside the judicial district to be assigned if the local judge’s testimony is material.
Here, Judge Clark’s testimony was of little importance. He understandably had little recollection independent of the record. He did recall seeing one black juror leave the judge’s chambers and enter the jury room. We consider that of little significance because Judge Friedel based his decision that only one juror was involved on the record of Judge Hodge’s meeting with the attorneys, which showed Judge Hodge only referred to one juror. We do not find reversible error on the facts of this case.
Affirmed. | [
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|
The opinion of the court was delivered by
McFarland, J.:
Jason L. Turner was convicted of first-degree murder (K.S.A. 1992 Supp. 21-3401) and kidnapping (K.S.A. 21-3420) upon acceptance of his nolo contendere pleas. He received a life sentence for the murder conviction and a 10 year to life sentence for the kidnapping conviction, said sentences to be served consecutively. For his sole issue on appeal, defendant contends that the running of the sentences consecutively constitutes an abuse of judicial discretion. We do not agree.
The facts may be summarized as follows. Defendant and Nathaniel Ellibee, soldiers stationed at Fort Riley, planned a robbery of Pate’s Convenience Store located at the intersection of highways 57 and 77 in Geary County. Pursuant to their plan, they commandeered a military HUM-V vehicle from Fort Riley and drove to the convenience store shortly before its closing time on September 20, 1991. The vehicle was secreted from sight. The two men, dressed in military battle gear with masks pulled over their faces, entered the store. Defendant was armed with a Ruger .7 millimeter rifle loaded with magnum shells. Ellibee was armed with a shotgun. The only person in the store was its clerk, 20r year-old Catherine Heintze.
Ms. Heintze was forced to the back of the store to turn off the store’s lights so that the premises would appear to be closed. This done, Ms. Heintze advised she needed to return to the front of the store to turn off some other lights. While there, she triggered a silent alarm switch. The clerk’s action was observed. The two men, with Ellibee in the lead, started to flee the scene. Defendant then shot Ms. Heintze with the rifle, literally blowing her head apart. When Ellibee asked defendant why he shot the clerk, defendant responded, “[S]he pissed me off.” The following day the defendant gave Ellibee the shell casing from the lethal bullet to keep as a trophy or souvenir of the event.
Defendant was charged with first-degree murder, aggravated kidnapping, attempted aggravated robbery, and conspiracy to commit aggravated robbery. As the result of plea negotiations, defendant entered nolo contendere pleas to first-degree murder and kidnapping. The presentence investigation report notes that both civilian and military jurisdiction existed for the crimes herein and, had prosecution been before a military tribunal, the death penalty could have been imposed. As a part of the plea negotiations, the State agreed to recommend a life sentence on the murder conviction and a 10 year to life sentence on the kidnapping, said sentences to run consecutively. This was the sentence ultimately imposed herein.
For his only issue on appeal, defendant contends the running of the sentences consecutively, as opposed to concurrently, constitutes an abuse of judicial discretion.
In State v. McDonald, 250 Kan. 73, Syl. ¶¶ 4, 5, 6, 824 P.2d 941 (1992), we held:
“It is the sentencing judge alone who determines the appropriate sentence or other disposition of the case. The sentencing judge determines the sentence by exercising his or her best judgment, common sense, and judicial discretion after considering all of the reports, the defendant’s background, the facts of the case, and the public safety. A sentence imposed within the statutory guidelines will not be disturbed on appeal if it is within the trial court’s discretion and not a result of partiality, prejudice, oppression, or corrupt motive.”
“K.S.A. 21-4606(2) sets forth seven factors which, while not controlling, are to be considered by the court in fixing the minimum term of imprisonment which is consistent with the public safety, the needs of the defendant, and the seriousness of the defendant’s crime.”
“When the sentence exceeds the minimum, it is the better practice for the sentencing court to place a detailed statement of facts and factors it considered on the record. Failure to do so does not necessarily indicate the sentencing court abused its discretion. Each case is to be considered on its facts.”
It is clear from the record herein that the trial court considered the factors set forth in K.S.A. 21-4606(2), and the defendant does not contend otherwise. Rather, defendant argues that consideration of the statutory factors should have resulted in concurrent sentences being imposed. In support thereof, defendant relies upon the following: (1) He had an unhappy, abused childhood; (2) he was only 21 years old at the time of the offenses and had no prior criminal record; (3) his wife is pregnant; (4) the rifle went off accidentally; and (5) the killing was somehow related to his service in Saudi Arabia as a part of Operation Desert Storm.
As the trial court noted, these were most serious and grievous crimes. As was further noted by the trial court, the community was shocked, frightened, and hurt by the killing of Ms. Heintze. She was a happy, attractive young woman who was working her way through Kansas State University. She had many friends and relatives who miss her deeply and whose letters were in the presentence file. Defendant and Ellibee planned the robbery and were heavily armed when they entered the store. Defendant killed the young woman because he was irritated with her for activating the silent alarm. Defendant’s statements of remorse and claim that the killing was accidental were, as the court noted, more than offset by his words and actions at the time of the killing, and his later award of the shell casing to Ellibee as a trophy. We have absolutely no hesitancy in concluding no abuse of judicial discretion has been shown relative to the sentences imposed herein.
The judgment is affirmed. | [
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|
The opinion of the court was delivered by
Abbott, J.:
This is a paternity action in which the trial court found it was not in the child’s best interests to order blood tests. The trial court then relied upon the presumption of paternity in determining the child’s biological father. The Court of Appeals reversed the trial court in an unpublished opinion filed March 13, 1992, and we accepted review.
It is easy to be critical of the three adults involved for putting their own desires, including the desire to punish one or more of the others, ahead of what is in the best interests of the minor child, Luke Christopher Runft. Nonetheless, in reading the facts, it is important to focus on the dispositive issue, which is what is in the best interests of Luke. Luke is now six years of age.
The plaintiff in this case is Luke’s mother, Anne Christine Jensen (Chris). Chris was married to Bruce Runft. They had two children, ages 1 and 4, when Chris began an affair with Dr. Robert D. Seaton (Bob). Chris is a nurse and worked with Bob. Bob was and is married and has two children by that marriage.
Chris became pregnant with Luke in late September or early October 1985. When she became pregnant, she was having sexual intercourse with Bruce approximately once a month. At the same time, she was having sexual intercourse with Bob two or three times a week. This course of conduct with Bob continued until several months after Luke’s birth.
Bruce did not believe Luke was his son. Nonetheless, in an effort to keep his family together, Bruce agreed to raise Luke as his own son and to place his name as the father on the birth certificate. Bruce was not aware the affair was continuing. The affair did not end until several months after Luke’s birth, when Bob made it clear to Chris he was remaining with his family.
In January or February of 1987, Bruce and Chris separated. A separation agreement was signed in which Bruce acknowledged Luke as his child and agreed to support him. Bruce did not raise an issue concerning Luke’s paternity in the divorce proceeding. Bruce was ordered to pay support and was given visitation rights. He testified it was his hope a reconciliation would occur and reunite the family unit. That did not occur.
Bruce has and continues to pay child support for Luke. He exercised regular visitation with the three children, and it appears from the record, he established a father-son relationship with Luke.
After Chris married Jerry Jensen, Bruce refused to continue a relationship with Luke. Bruce forced Chris to tell Luke that Bruce was not his father and that Luke would no longer be allowed to accompany the other two children when they visited Bruce. Chris was seeing Dr. John A. Sampson, a psychologist, concerning problems relating to the extramarital affair. Dr. Sampson advised and counseled Chris on how to tell Luke. The doctor since has counseled Luke. Luke was told his father lived in Salina.
Chris believed it would be in Luke’s best interests to have his paternity determined. She filed this paternity action, pursuant to K.S.A. 38-1110 et seq., naming Bruce and Bob as defendants. Chris alleged that Bob is the biological father of Luke. Bob requested a hearing pursuant to In re Marriage of Ross, 245 Kan. 591, 783 P.2d 331 (1989).
In Ross, this court commented that “the Kansas Parentage Act . . . provide[s] that every child has an interest not only in obtaining support, but also in inheritance rights, family bonds, and accurate identification of his parentage.” 245 Kan. at 597. We held: “The Uniform Parentage Act clearly was designed to provide for the equal, beneficial treatment of children. In this regard, it requires courts to act in the best interests of the child when imposing legal obligations or conferring legal rights on the mother/child relationship and the father/child relationship.” 245 Kan. at 597.
In this case, after making extensive and detailed findings, the trial court held it was not in the “best interests of Luke and contrary to public policy to permit Chris and Bruce to attempt to rebut the presumption of paternity.” (Emphasis supplied.)
Chris appealed, contending the trial court erred in not allowing a psychologist to give his opinion it was in Luke’s best interests that blood tests be taken and the paternity action go forward. Chris also claimed the trial court erroneously found it was not in Luke’s best interests that the paternity action proceed and that blood tests be taken.
The Court of Appeals, in an unpublished opinion, focused on the exclusion of Dr. Sampson’s opinion that it would be in Luke’s best interests to know who his biological father is. The court reversed, stating:
“Last, the trial court gave great weight to the ‘ancient presumption of legitimacy of a child bom in wedlock.’ The Kansas Supreme Court, in Ross, requires that a full hearing be held and that ‘the district court must consider the best interests of the child, including physical, mental, and emotional needs.’ 245 Kan. at 602. (Emphasis added.) We agree with the trial court that, in some cases, public policy would permit the presumption of paternity to prevail. However, this is not such a case. The court’s obligation here is to focus on the needs and interests of Luke. All other considerations are subservient to that end.”
A majority of this court agrees with the result reached by the Court of Appeals. The trial court did not allow the expert to testify that it would be in Luke’s best interests to proceed with the paternity action and to ascertain the identity of his biological father. Immediately thereafter, however, the trial court did allow the expert to give testimony that clearly indicated the expert was of the opinion it would be in the best interests of any child to have his or her biological father determined. We are of the opinion the excluded testimony was admissible, but the exclusion is harmless error because the evidence basically was admitted in other testimony. See K.S.A. 60-456(d) and State v. Graham, 246 Kan. 78, 80-81, 785 P.2d 983 (1990).
In determining the best interests of Luke, it is important to look at it from the child’s point of view. Luke lives in a rural area. This case was filed and the testimony was taken in his home county. Initials were not used. The full names of all the principals were used. Thus, nearly every member of the community has knowledge of the case and the facts. All of the information is available to Luke, his friends, and the entire world. The facts of this case are, therefore, common knowledge in Luke’s community, leaving Luke to face his peers knowing they are aware of the following: (1) The man Luke bonded with as a father no longer will have anything to do with Luke because he does not believe he is Luke’s father; (2) Luke’s own mother says Bob is Luke’s biological father; (3) Bob concedes he could be Luke’s father; and (4) blood tests can show with virtual certainty which of the two men is Luke’s biological father.
Although many people would regard Bruce’s actions in forcing disclosure and severing his relationship with Luke as calloused, the record gives every indication that Bruce was a good father to the three children, remained in close contact, and exercised meaningful visitation with the three children until he terminated the relationship with Luke. He has maintained that relationship with the other two children, has and still does meet his support obligations, and pays the medical expenses of the three children. There is no reason to believe he would not resume that relationship if he is satisfied Luke is his biological son.
If blood tests prove Bob to be the father, he and his family may take a different view from that taken at trial. The Seaton family appears to be a forgiving family. If Luke is indeed Bob’s son and because the family has forgiven Bob for his past transgressions, then the family members should not reject an innocent child who made none of the decisions that led to his birth. It is in Luke’s best interests that he be entitled to that chance.
It would be hard to justify telling Luke that because of the acts of Chris, Bruce, and Bob, he will never know with certainty the identity of his biological father, leaving him to ponder whether his “real” father would have rejected him if the courts had ordered blood tests.
Basically, all of the evidence, including the guardian ad litem’s recommendation, indicates that it would be in Luke’s best interests to know the identity of his father. The district court erred in holding otherwise.
The district court is reversed and the Court of Appeals is affirmed. The case is remanded to the district court for further proceedings, including the ordering of blood tests. | [
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The opinion of the court was delivered by
Lockett, J.:
Sanford Douglas Clardy appeals his conviction of one count of aggravated robbery and his sentence of 15 years to life. Clardy claims the trial court erred in failing to instruct the jury on the offense of battery as a lesser included offense of aggravated robbery.
Between 11:00 and 11:30 p.m. on October 2, 1990, Clardy, Marcus Eugene Coleman, Reginald Jones, and Dwayne Morgan were drinking alcoholic beverages in a Kansas City, Kansas, neighborhood. Walter Wright and Judy Summerville were walking to a grocery store in the same area. Words were exchanged between Jones and Wright. An altercation occurred. Clardy struck Wright, and Wright fell unconscious in the street.
Summerville ran to call the police. After Clardy walked away, Coleman and Jones took a small amount of money from the unconscious victim. After Clardy and his companions left the scene, a car ran over the unconscious Wright and dragged him some distance. Wright subsequently died from the injuries he sustained from being run over. Clardy, Coleman, and Jones were jointly charged) tried, and convicted of aggravated robbery.
After all the evidence had been submitted, the court instructed the jury on aggravated robbery and the lesser included offenses of robbery and theft. The defendant did not request the court to instruct the jury on the lesser offense of battery. On appeal, Clardy contends the trial court erred in failing to instruct the jury on battery as a lesser included offense of aggravated robbery.
Although Clardy failed to request an instruction on battery, the trial court’s duty to instruct on lesser included offenses is independent of any such request. See State v. Cummings, 242 Kan. 84, Syl. ¶ 7, 744 P.2d 858 (1987). K.S.A. 21-3107 provides in part:
“(2) Upon prosecution for a crime, the defendant may be convicted of either the crime charged or an included crime, but not both. An included crime may be any of the following:
“(a) A lesser degree of the same crime;
“(c) an attempt to commit a lesser degree of the crime charged; or
“(d) a crime necessarily proved if the crime charged were proved.
“(3) In cases where the crime charged may include some lesser crime, it is the duty of the trial court to instruct the jury, not only as to the crime charged but as to all lesser crimes of which the accused might be found guilty under the information or indictment and upon the evidence adduced.”
To determine whether the crime charged may include a lesser crime, a two-prong test has been developed. The first step is to determine whether all of the statutory elements of the alleged lesser included crime are among the statutory elements required to prove the crime charged. This approach is ordinarily fairly straightforward and requires a jury instruction on a particular lesser offense whenever all of its statutory elements will automatically be proved if the State establishes the elements of the crime as charged. For example, where the crime charged is aggravated burglary, the crime of burglary is clearly a lesser included offense because every one of the statutory elements of burglary must of necessity be proved in establishing the elements of aggravated burglary. State v. Fike, 243 Kan. 365, 368, 757 P.2d 724 (1988).
The result of the first step of the analysis, however, is not necessarily conclusive. Even if the statutory elements of the lesser offense are not all included in the statutory elements of the crime charged, a particular crime may nevertheless meet the statutory definition in 21-3107(2)(d) of an included crime under the second step of the analysis. This second step requires the trial court to carefully examine the allegations of the indictment, complaint, or information as well as the evidence which must be adduced at trial. If the factual allegations in the charging document constitute an allegation of a lesser crime than the crime charged and if the evidence which must be adduced at trial to prove the crime charged would also necessarily prove the lesser crime, the lesser crime is an “included crime” under K.S.A. 21-3107(2)(d). State v. Fike, 243 Kan. at 368. See State v. Adams, 242 Kan. 20, 744 P.2d 833 (1987).
The information charged Clardy and the other defendants with a single count of aggravated robbery, alleging that they did “unlawfully, feloniously and willfully take property, to wit: money, from the person of another, to wit: Walter D. Wright, by force to the person of Walter D. Wright, and did inflict bodily harm upon Walter D. Wright, in the course of such robbery, in violation of K.S.A. 21-3427.”
Aggravated robbery is “a robbery committed by a person who is armed with a dangerous weapon or who inflicts bodily harm upon any person in the course of such robbery.” K.S.A. 21-3427. Robbery is “the taking of property from the person or presence of another by threat of bodily harm to his person or the person of another or by force.” K.S.A. 21-3426. Battery is “the unlawful, intentional touching or application of force to the person of an other, when done in a rude, insolent or angry manner.” K.S.A. 21-3412.
Clardy asserts that, because of the allegations of the information and the evidence which must be adduced at trial, under the second prong of the test for lesser included offenses, battery is a lesser included offense of robbery. He argues that under these circumstances the trial court is required to instruct the jury on the lesser offense of battery.
For authority Clardy relies on State v. Hill, 16 Kan. App. 2d 432, 825 P.2d 1141, rev. denied 249 Kan. 777 (1991). Hill was charged with aggravated robbery by taking property by force and by inflicting bodily harm in the course of the robbery. Hill’s defense was that, although he hit and kicked the victim, he did not take part in the robbery. (Here, Clardy admits hitting Wright but denies any part in the robbery.) The Hill court first noted that in State v. Warwick, 232 Kan. 232, 654 P.2d 403 (1982), using only a comparison of the statutory elements of the crimes, we held that battery and aggravated battery are not lesser included offenses of robbery or aggravated robbery. It observed that Warwick was decided before Adams and Fike, which set out the second step under 21-3107(2)(d), and determined that the single step used in Warwick was no longer the only step necessary to determine if a lesser crime is an included crime. The court then proceeded under the second prong of the test for lesser included offenses. The Hill court noted that the information filed against Hill did not specifically state the offense was committed “in a rude, insolent, or angry manner,” but found that fact was not significant. It observed that at trial there was evidence that Hill hit and kicked the victim — an element of the aggravated robbery charge — but he denied that he robbed the victim. 16 Kan. App. 2d at 436. The Court of Appeals determined the trial court erred in failing to instruct that battery was a lesser offense of aggravated robbery and reversed and remanded for a new trial.
Clardy points out that the State alleged in the information he intended to rob the victim and bodily harm was inflicted on the victim. Clardy admits he struck Wright, but claims he had no intent to rob the victim. Clardy contends, as in Hill, under the information and upon the evidence adduced, the court is required to instruct on the lesser offense of battery. Clardy points out his evidence, the codefendant’s testimony, and the State’s evidence supported this theory.
The referenced testimony and statements are:
Clardy testified that he struck Wright and knocked him out and that about 15 minutes later Coleman and Jones went through Wright’s pockets. He claimed he did not intend to steal money from Wright, did not discuss stealing money from Wright, and did not see Coleman or Jones take any money from Wright. He also stated he saw some money lying in the street and assumed it was from Wright’s pockets.
Coleman testified that Clardy ran down the hill and struck Wright and then walked back up the hill. A short while later, according to Coleman, Coleman and Jones ran down the hill and took some money out of Wright’s pockets. Coleman said that the taking of the money just happened, that no one knew they were going to do it, and that Clardy had not told him to go through Wright’s pockets. He also said Clardy had not asked for any of the money taken from the victim or said anything about it.
Officer Fiscus testified that Coleman gave him a statement to the effect that Clardy had struck Wright with his fist and that Coleman and Jones had gone through the pockets of the unconscious man and had taken some change. He said Jones went through Wright’s wallet and found nothing and replaced it inside Wright’s pocket. Coleman said Clardy had not taken anything from the victim.
Detective Harris testified that Jones gave him a statement to the effect that Clardy had struck the victim. Nowhere in the interview did Jones say that Clardy took any money from Wright.
Clardy points out there is no evidence of an agreement between him and the others to rob the victim and no evidence that he assisted in the robbery.
There is no doubt that Clardy hit Wright. The dispute is whether Clardy had prior knowledge of or aided and abetted Coleman’s and Jones’ later act of robbing Wright. The State argues the evidence is that Clardy actually aided and abetted Cole man and Jones in the robbery. The State asserts that because Clardy aided and abetted Coleman and Jones in the aggravated robbery and received part of the proceeds, the court is not required to instruct on the lesser offense of battery.
The problem with this argument is that it does not negate the evidence regarding Clardy’s theory of the case. Clardy notes that, as in Hill, he was not charged as an aider and abettor in the information, and, as in Hill, the jury was instructed on that theory of liability. He argues, even if he could have hypothetically been convicted of aggravated robbery without having personally committed any of the acts set forth in the information, i.e., as an aider or abettor, that issue was resolved by Hill. We agree.
The State next argues that even under the second prong of Fike a jury instruction on battery was not warranted because an individual can be convicted of battery only if the touching is done in a rude, insolent, or angry manner. The State contends that, under the evidence adduced, the touching in this case was not done in a rude, insolent, or angry manner. The State points out that Clardy testified Wright said, “Which one of you think is tough enough come on with it.” Clardy decided to defend himself and went towards Wright. Wright balled up his fist. Clardy defended himself by striking Wright, knocking him out. The State asserts that because Clardy was defending himself when he struck Wright, the striking was not “done in a rude, insolent, or angry manner,” i.e., there was no battery. The State concludes Clardy’s testimony, if believed, showed he was not guilty of either aggravated robbery or battery; therefore, there was no need for the court to instruct on the crime of battery.
The State asserts the Court of Appeals, in Hill, glossed over the statutory elements of battery when it stated:
“We do not think it can be seriously argued that the absence [from the complaint/information] of the words ‘in a rude, insolent or angry manner’ is significant. The proof of the use of force to accomplish a taking of property from the person of another necessarily proves the application of the force in a rude, insolent, or angry manner.” Hill, 16 Kan. App. 2d at 436.
We note in this case that the jury was instructed “the term *bodily harm’ is any touching of the victim against the victim’s will, with physical force, in an intentional, hostile and aggravated manner.” Based upon the information and the instruction, the absence of the words “in a rude, insolent, or angry manner” is not significant.
The State’s final argument is that Hill is not controlling. The State points out that the opinion in Hill was filed on July 19, 1991, and that Clardy’s jury trial was in February 1991. At the time of the trial, according to the State, Warwick was controlling case law and that case held that battery was not a lesser included offense of aggravated robbery; presumably the trial court, by not affirmatively giving an instruction on battery as a lesser included offense, was adhering to Warwick. This argument is incorrect. Both Adams and Fike had been decided prior to Clardy’s trial— those cases were controlling case law.
Under K.S.A. 21-3107(3), the defendant in a criminal prosecution has a right to have the court instruct the jury on all lesser included offenses established by substantial evidence. Where there is no substantial testimony applicable to the lesser degrees of the offense charged, and all of the evidence taken together shows that the offense, if committed, was clearly of the higher degree, instructions relating to the lesser degrees of the offense are not necessary. State v. Deavers, 252 Kan. 149, 154-55, 843 P.2d 695 (1992).
When an information alleges a robbery was accomplished by force and that bodily harm was inflicted in the course of the robbery, battery will not be a lesser included offense of the aggravated robbery unless there is substantial evidence to prove the lesser offense of battery has been committed. Under the particular circumstances of this case, there is substantial evidence that the lesser degree of the offense charged had been committed, and an instruction on battery as a lesser included offense was required.
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The opinion of the court was delivered by
Dawson, C. J.:
This is an appeal from an adverse judgment in habeas corpus proceedings in which appellant sought to be released from jail in Sedgwick county.
By his petition for the writ and the sheriff's return thereto it appears that on April 26, 1937, the appellant had been sentenced to a term of six months in the county jail and to pay a fine of $500, consequent upon his conviction on a charge of violating the prohibitory liquor law. On appeal to this court that judgment was affirmed. (State v. Stephens, 146 Kan. 660, 72 P. 2d 975.)
Following such affirmance, the petitioner seems to have been incarcerated in the county jail for some time — the record is not clear on this point — and on April 15, 1938, he applied to the district court for a parole, which was granted. The record, in part, reads:
“Now on this 15th day of April, 1938, . . . it is ordered . . . that the defendant be paroled from serving the balance of the jail sentence and from paying the fine levied in this case, upon the condition that the defendant violate no laws of the state of Kansas for a period of two (2) years, and that he pay the costs of the action, including the parole officer’s fees of two dollars (S2) per year.”
• At the time the parole was granted the court (District Judge I. N. Williams presiding) stated to appellant the conditions of the parole and those were accepted. The court reporter’s notes read:
“The Court: You will be paroled- from serving the balance of the jail sentence and the payment of the fine on condition that you do not violate the law and that you report to the court on the first of each term for a period of two years. Mr. Harley (county attorney) will tell you when that time is for .you to report; and there will be an additional $2 court costs for the parole officer. . . . This, you understand, is on condition that you do not violate the law.
“The Defendant: Yes, sir.
“The Court: And the court will not have to have any competent evidence to revoke this parole. If any complaint comes in concerning it, this parole will be revoked. People may come to me and you won’t know who they are, and Mr. Harley may not know who they are. Citizens might come and report that you are violating the parole, and if they do your parole will be revoked. Do you want to accept the parole on that condition?
“The Defendant: Yes, sir.
“The Court: That will be a parole from this sentence. . . .
“The Defendant: Yes, sir.
“The Court: That’s all.”
On May 31, 1939, the court made an order which, in part, reads:
“The parole heretofore granted herein be and the same is hereby revoked and the defendant, Robert L. Stephens, is ordered committed to the county •jail to serve the balance of his jail sentence and to pay the fine heretofore imposed, and -the sheriff of Sedgwick county is hereby ordered to apprehend the said defendant and confine him to the jail of Sedgwick county, Kansas, to serve the balance of said jail sentence.
(Signed) I. N. Williams, Judge.”
. On application of appellant, Judge Williams allowed a writ of habeas corpus, and the sheriff made his return thereto, following which the cause was heard by Hon. Ross McCormick, judge of division No. 1 of the district court of Sedgwick county. At the insistence of counsel for appellant, Judge McCormick permitted evidence to be introduced in extenso by various witnesses — the clerk of the police court, the sheriff’s clerk, the sheriff himself and his deputy, the parole officer of the court, and the clerk of the district court, all of whom testified that they had no information tending to show that appellant had violated his parole, and none of whom could give any intimation of the motive which had prompted Judge Williams to revoke the parole. By stipulation of counsel all files of earlier proceedings pertinent to the hearing were considered in evidence; and on June 26,1939, the district court (District Judge McCormick pre siding) denied the writ, and the matter is brought here for review.
On the threshold of this review we encounter a barrier to any consideration of the matters assigned as error. That barrier is the statute which confers on the district court the power to grant paroles to persons convicted of crime. (Laws 1907, ch. 178, G. S. 1935, 62-2201 et seq.)„ Section 2 of that statute, in part, reads:
“The courts ... or the judge thereof . . . may, in their discretion, when satisfied that any person against whom a fine has been assessed or a jail sentence imposed by said court, or any person actually confined in jail under judgment of a justice of the peace, city court, or other like inferior court, . . . will, if permitted to go at large, not again violate the law, parole such person and permit him to go at large, upon such conditions and under such restrictions as the court or judge granting the parole shall see fit to impose; such court or judge may at any time, without notice to such person, terminate such parole by simply directing execution to issue on the judgment, or, in case the person shall have been actually confined in jail, the parole may be terminated by directing the sheriff or jailer to retake such person under the commitment already in his hands. . . .” (G. S. 1935, 62-2202.)
Section 14 of the same statute, in part, reads:
“. . . nor shall the action of any court or judge in granting or terminating a parole be subject to a review by an appellate court.” (G. S. 1935,62-2214.)
This court has repeatedly upheld the discretionary authority of the district court to revoke paroles. In the appeal of In re Patterson, 94 Kan. 439, 146 Pac. 1009, in which he complained of the summary revocation of his parole, this court, speaking through Chief Justice Johnston, said:
“The statute expressly provides that the court may grant the parole on such conditions and under such restrictions as it may see fit to impose. In its discretion it may attach any conditions to the parole that are not immoral, illegal or impossible of performance, and as the authority is to be exercised by a court or judge it is expressly provided that the parole may be terminated at any time and the convict remanded to prison without notice to him. It is competent for the legislature to provide that the court may, upon information that is satisfactory to it, revoke the parole and summarily remand the convict to prison to serve out a sentence legally imposed. The failure of the convict to observe the conditions of a parole is not a new offense, and the revocation of the parole and the returning of the convict to prison is not an added punishment for the offense of which he was convicted nor a punishment for any other offense, but it is rather a disciplinary regulation of prison management in carrying out the sentence of the law already imposed and growing out of the effort to ameliorate the condition of the convict. There was, therefore, no occasion for the making of an affidavit before petitioner’s rearrest, nor any necessity for the filing of an information or indictment, nor for providing a trial by a jury. The rights which he is insisting upon and which are guaranteed to him by the constitution were accorded to him when he was arrested and prosecuted for the offense of which he was convicted and for which he is now imprisoned. The legislature might have required that notice be given to him and others, and also that there be a hearing as to the violation of the conditions of the parole before revoking it and remanding him to prison, but instead of that the legislature expressly provided that there might be a revocation without notice to him. The petitioner obtained a parole knowing of this provision of the statute and that the parole might be revoked by the court without notice, and, more than that, it was one of the conditions written in the parole which the petitioner sought and accepted . . . and it was expressly stated . . . that the judge might, upon information to his satis- ' faction of the violation of the parole, recommit the petitioner to jail without either notice or hearing. The petitioner was at liberty to accept the parole with the conditions attached or to decline it and serve out the sentence imposed, but when he accepted it he, in effect, agreed to all the conditions of the parole, and, among them, that when the judge or the court became satisfied that he had violated the conditions of the parole it might be terminated without notice to him and he be recommitted to jail to complete his sentence.” (pp. 442, 443.)
The syllabus of the same case, in part, reads:
“A parole granted by the district court or a judge thereof under section 2 of chapter 178 of the Laws of 1907 (Gen. Stat. 1909, §2460), containing a provision that upon satisfactory information that the conditions of the parole have been violated the court or judge is authorized to revoke the parole and cause the convict to be reimprisoned under the sentence pronounced by the court without notice or hearing, may be revoked by the court or judge and the convict may be recommitted to serve out his sentence without either notice or hearing, ...”
See, also, In re Henry Millert, 114 Kan. 745, 747, 220 Pac. 509; State v. Harris, 116 Kan. 387, 389, 226 Pac. 715; Bowers v. Wilson, 143 Kan. 732, 56 P. 2d 1212; State v. Frame, 150 Kan. 646, 95 P. 2d 278, syl. ¶ 3.
Counsel for appellant cite for our instruction the case of State v. Zolantakis, 70 Utah 296, 259 Pac. 1044, 54 A. L. R. 1463, in which it was held that a convicted violator of the prohibitory law who had been given a suspended sentence upon certain conditions was entitled to a judicial hearing before such suspension of sentence could be vacated and before an order was made recommitting him to prison. Doubtless that Utah decision, although rendered by a divided court, correctly interpreted the statute of that state. In that case it was said that “in the absence of statutory authority, district courts do not have inherent power to suspend sentences except for some specific temporary purpose.” Our statute is unqualifiedly to the contrary. The authorities hold generally that where the power of parole is conferred on the court by statute, its power to revoke such parole is not subject to procedural regulations unless they are likewise imposed by statute. (See Annotations, 54 A. L. R. 1471 et seq.)
This appeal is dismissed. | [
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The opinion of the court was delivered by
Dawson, C. J.:
This is an appeal from a judgment in proceedings in habeas corpus wherein the appellant sought unsuccessfully to recover the custody of a nine-year-old child who has been a member of the family of defendants for the past seven years pursuant to adoption proceedings in the probate court of Reno county in 1933.
The basis of appellant’s action in the trial court and likewise asserted here is her contention that the adoption proceedings were void. For a solution of that proposition we resort to the record.
It appears that in 1933 and for some years prior thereto the appellant and one Kelley E. Robinson, of Reno county, were husband and wife and that there was born to them the child, Billy Jean Robinson, now called Billy Jean Zumalt. Early in 1933 marital difficulties arose between these parents, and proceedings were instituted in the probate court to effect the adoption of their child by Charles L. Zumalt and Florence Zumalt, his wife. The parents separately gave their consent to such adoption, the father on December 28,1932, and the mother on February 20,1933.
Later, on March 7, 1933, this petitioner filed an action against her husband for divorce, in which among other matters she alleged that her husband was in the state penitentiary serving a sentence for theft of an automobile, and—
“That there has been born to plaintiff and defendant one child, a little boy named Billy Jean Robinson, and about two and one-half years of age, and that said child has been adopted by a man and his wife who reside here in the city of Hutchinson, and named Charles Zumalt and Florence Zumalt, his wife, and plaintiff and defendant, as parents of said child, consented to said adoption and now approve same. . . .”
The prayer of her petition was for a divorce and attorney fees.
On April 22, 1933, the trial court granted her a divorce and, among other matters, decreed—
“That plaintiff have and is hereby given the care and custody of said minor child.”
Later, on May 11, 1933, a further hearing was held before the probate court in respect to the adoption of the child — the petitioner, the child, and Mr. and Mrs. Zumalt being personally before the court. The Zumalts filed a formal instrument, reciting that—
“We, the undersigned, do hereby offer to adopt Billy Jean Robinson, the minor child above mentioned, as our own child.”
The record also recites—
“And Billy Jean Robinson, the said minor, and Isabelle Robinson, his mother, at the same time appear before said court, and consent to such adoption.
“And thereupon the said probate court, being satisfied that such consent is free and voluntary, the said court doth now make its proceedings of record in said probate court, and doth declare Billy Jean Robinson, the minor child aforesaid, the child and heir of Charles L. Zumalt and Florence Zumalt aforesaid, so adopting him and his name be changed to Billy Jean Zumalt.
(Signed) A. B. Leigh, Probate Judge.”
Since the foregoing proceedings occurred, the petitioner has remarried. Summarizing her complaints against the judgment, she says that she was coerced into giving her consent to the adoption of her child by—
“Hon. Judge Nicklin, the judge of the probate court, and H. A. Nichols, probation officer; that these threats were made prior to the said officers leaving office.”
Be that as it may, there could be no pretense that such coercion was still restraining her when she gave the facts to her attorney who filed her divorce petition some three months later, and in which she neither gave a hint of such coercion nor did she ask for the custody of the child. Obviously the recital in the divorce decree that she should have its custody was a mere inadvertence. While the prayer of a petition is no part of the cause of action (Eagan v. Murray, 102 Kan. 193, 170 Pac. 389), the judgment cannot properly extend to matters not in issue and excluded from the issues by the explicit allegations of the pleadings.
Appellant’s contention that her husband did not sign his consent to the adoption of the child on December 28, 1932, is merely a quibble. He gave his consent on that date, but signed his name on the instrument of consent in the wrong place. Moreover, the statute does not require that such consent be in writing. (G. S. 38-106.)
The petitioner seeks to make another point which, if it had any merit, would be highly ill-advised. She argues that her divorce was prematurely granted on April 22, 1933. What should we imply from that contention — that her present marriage is a nullity, and that the subsequent adoption proceedings in the probate court were void because her lawful husband, Kelley E. Robinson, did not give his consent thereto? For the appellant’s own good name and standing we give no countenance to such an unusual contention. {Reinhart v. Reinhart, 148 Kan. 542, 83 P. 2d 628.) If further answer to this point were needed, the consent given by the husband in December, 1932, to the adoption which was later completely effected on May 11, 1933, was quite sufficient (G. S. 1935, 38-105), especially since on the latter date he was incarcerated in the penitentiary.
Whatever infirmities may have inhered in the prior adoption proceedings at the time appellant filed her action for a divorce, the later adoption proceedings of May 11, 1933, met every requirement of the statute. The petitioner was then in court, the child was in court, and the adoptive parents were in court. And each and all of them gave their assent thereto. And even if some infirmity had inhered in them, they would not be open to collateral attack as attempted in these habeas corpus proceedings. (G. S. 1935, 60-2213; Chamberlin v. Thorne, 145 Kan. 663, 66 P. 2d 571; In re MacLean, 147 Kan. 678, 78 P. 2d 855; Hardesty v. Hardesty, 150 Kan. 271, 92 P. 2d 49.)
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The opinion of the court was delivered by
Thiele, J.:
This was an action in replevin, and from an adverse judgment defendant appeals.
The litigation arose out of the following facts, which are undisputed. Under date of February 22, 1938, Air Cooling & Heating Company made a proposal in writing to the defendant, John Dodson, to install a cooling plant in his barbershop in Wichita, at a price of $507. Thereafter and under date of March 21,1938, Dodson gave the company a written order for a described conditioner and pump to be installed as stated in the proposal, the price to be $507, on which he was given a credit of $107 for a used conditioner, pump and pipe, the balance of $400 to be paid $100 on May 15, and $300 on July 15,1938. The conditioner and equipment were installed by May 7, 1938. On May 27, 1938, Dodson executed and delivered to the company an instrument in writing containing the elements of a conditional sale or title note in the body of which Dodson acknowledged receipt and acceptance of the conditioner, pump and equipment, for which he promised to pay $515 as follows: $217 cash, balance of $298 on July 15, 1938. There was a reservation of title in the seller until the purchase price was fully paid, and a further statement Dodson had thoroughly inspected the property, that it was satisfactory, etc., and as to third persons purchasing the instrument Dodson waived all rights of action, setoff and counterclaim he might have against the seller. This instrument was assigned to plaintiff. On the due date the plaintiff made a demand for payment of the $298; that demand was refused and thereafter this action was commenced in the city court of Wichita, by the filing of an affidavit in replevin, and on trial a judgment was rendered in favor of plaintiff. An appeal was taken to the district court.
No formal pleadings were filed either in the city court or in the district court. In the district court appellant objected to the introduction of evidence and moved that the action be dismissed, the contention there made and here repeated being the affidavit in replevin was insufficient to invoke the jurisdiction of the court because several articles were claimed, and the affidavit failed to set out the value of each article as required by G. S. 1935, 61-502, Fifth clause. With slight variations, the original proposal of February 22, 1938, the order of March 21, 1938, and the instrument of May 27, 1938, each described the equipment being sold and purchased as “Oomfortaire Conditioner, No. S2-16%; Weil Electropump No. 5440, and all installation equipment.” The affidavit in replevin so described it, and attached to the affidavit was a copy of the instrument of May 27, 1938, bearing the assignment to plaintiff. There are a number of reasons the complaint is not good. It does not appear the question was raised in the city court. It does appear the two described articles were part of equipment having a single value for the purposes of the proposal, order and title note. It likewise appears that the value alleged, i. e., $298, was within the limits of the jurisdiction of the city court. And finally it does not appear that it would have been practicable to have separately valued the integral parts of the equipment. There is no complaint the affidavit was not otherwise fully sufficient. Even though it might be said to have been irregular because not containing a more complete statement of values, the affidavit was sufficient to vest the court with jurisdiction. (See Williams v. Gardner, 22 Kan. 122, and Upton v. Pendry, 109 Kan. 744, 202 Pac. 73.)
The gist of the defense, as outlined by defendant’s counsel orally at the start of the trial, was that defendant had been induced through fraud to contract for the purchase of the air-conditioning equipment in that the Air Cooling and Heating Company had represented to him that water of sixty degrees or lower would be obtained for operation of the plant, and that it had not been done. Considerable evidence to prove and disprove that contention was admitted, and the cause was submitted to the jury under instructions of which no complaint was made. The court instructed the jury that it was admitted by all parties that the property was sold to the defendant and that the title note or sales contract was sold to the plaintiff, and that the burden of proof was upon the defendant to prove he was induced to sign the title note or sales agreement by fraudulent representations and that in order to be fraudulent the representation must refer to a present or past state of facts, and not a promise looking to the future. The jury returned a general verdict in favor of the defendant and answered two special questions:
“1. Do you find that false representations were made to the defendant at the time the contract involved was signed by him? A. Yes.
“2. If you answer question No. 1 in the affirmative, state in substance what false and fraudulent representations were made to the defendant which induced him to sign the contract. A. The preponderance of the evidence shows that the defendant was promised, or led to believe, that water of sixty degrees or lower would be obtained and it was not furnished. This fact being known by the representative of the Air Cooling & Heating Company at the time the defendant was induced to sign the contract.”
Following return of the verdict, the plaintiff filed what was denominated “motion for judgment non obstante veredicto.” It asked that the court render judgment in favor of plaintiff and against the defendant for four reasons: (1) Because the verdict was not supported by and was contrary to the special answers; (2) the special answers failed to establish any defense; (3) the evidence failed to establish any defense, and (4) under the law, the evidence and the. admitted facts, plaintiff, as a matter of law, was entitled to judgment. The plaintiff also filed a motion for a new trial, but it was withdrawn. The trial court sustained the first motion, not indicating on which particular ground it relied. The defendant appeals.
Appellant presents an argument, citing many authorities, to the effect that the general verdict was in his favor and imports a finding in his favor upon all the issues which are not inconsistent with the special findings; that the special findings can be reconciled with the general verdict, and the trial court erred in holding otherwise. The general statement of the law is correct and the result contended for might follow. The record does not disclose the trial court based its ruling on that particular ground. If the motion was properly sustained on another ground, it may not be said there was reversible error.
Although a motion for judgment non obstante veredicto is usually held to be a concession that the special findings are supported by the evidence (Webb v. City of Oswego, 149 Kan. 156, 162, 86 P. 2d 553), and would apply to the first ground of the motion, it could hardly be applied to the third and fourth grounds, i. e., that the evidence fails to establish a defense, and that under the law, the evidence and the admitted facts, judgment should be for the plaintiff. There is no dispute that following the proposal to install the equipment, a contract was entered into on March 21, 1938, for its installation. Without detailing it, the evidence tending to show fraud was that the Air Cooling and Heating Company had represented that in connection with the installation, it would drill a well to obtain water for cooling purposes; that it had drilled other wells and that the temperature of the water to be obtained would be sixty degrees; that the well was drilled, but the temperature of the water was sixty-eight degrees. The installation of the equipment was completed and the truth or falsity of the claimed misrepresentation was apparent, when, on May 27, 1938, the defendant executed the title note, in which he explicitly stated he had received and accepted the equipment and that as to third persons purchasing the note he waived all setoffs and counterclaims he might have against the seller. Thereafter and before maturity, the plaintiff bought the note. There was no evidence offered tending to show that plaintiff had any notice whatever of any claimed fraud at the time he purchased the note nor until after its maturity when he demanded payment. An examination of the title note leads to a conclusion that it was a negotiable instrument and that plaintiff was a holder in due course, and that if any fraud inhered, it was not available as a defense. We prefer, however, to say the judgment of the trial court was correct for the following reason: At a time when the defendant was aware the seller had not furnished a well with water of a particular temperature, he executed the title note above referred to, some of the statements of which were that as to third persons purchasing the note, he waived any claims he might have against the seller. That statement led the plaintiff to purchase, and under familiar principles of law the defendant may not now say otherwise.
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The opinion of the court was delivered by
Hoch, J.:
Plaintiff was awarded damages for personal injuries which she alleged were the result of eating part of an unwholesome sandwich served by the defendant company in a public eating place. Judgment was for $937, from which defendant appeals, and also from orders overruling motions for a new trial and for judgment notwithstanding the verdict.
Appellant contends: (1) that the verdict was procured by perjured and fraudulent testimony of the plaintiff and her doctor; (2) that the verdict was arrived at under the influence of passion and prejudice induced by improper and prejudicial statements made by plaintiff’s counsel in his argument to the jury; and (3) that the damages awarded were excessive.
« The plaintiff, Delores Taylor, testified that about noon on Wednesday, September 12, 1938, she went to the store of the defendant company — the Woolworth store, in Wichita, Kansas — accompanied by her mother and her young son. They stopped at the eating place maintained in the store and she ordered a ham sandwich and ate about half of it; that it tasted “sort of -moldy” and she handed it to her mother, who said it was “terribly molded and black,” that the girl at the counter took it and threw it in the garbage can and she ordered another sandwich, that she ate part of it and got so sick she had to leave; that they went to the office of Doctor Chipps and Doctor Chipps gave her some medicine; that they were there about half an hour and then took a cab and went home and she stayed in bed all day; that she was worried about a radio singing contest that she was to take part in, and that she did sing that afternoon, but did not go to the club where she was accustomed to sing until the next night; that in the afternoon of the day she ate the sandwich she called Doctor Bernstorf and went to his office; that Doctor Bernstorf gave her some medicine to take home with her and that she had been taking it ever since until the week before the trial (which was in April, 1939), and that he then gave her a different kind of medicine for her nerves; that she had not been able to eat pork or ham and didn’t eat at all for four days after eating the sandwich; that she had been nervous and could not eat the food that she ate before; that she fell off in weight from 112 or 115 to 96 pounds in two weeks and that she then weighed 102 or 103 pounds; that she had been filling singing engagements as many times as possible, but hadn’t been able to do all her work; that she was doing radio work fifteen minutes a day. On cross-examination she testified that immediately after leaving the store they went to Doctor Chipp’s office and home from there, that later she called Doctor Chipps, but he wasn’t in his office, and then she called Doctor Bernstorf and went to his office, then went back home, and then to the radio station. She said that she did not know Doctor Bernstorf before and that he was recommended to her by a lady who lived in her mother’s house; that she went to the radio station between four and five o’clock in the afternoon to take part in a contest and was there about twenty minutes; that she sang at a club the next day, Thursday, and on Friday, Saturday and Sunday nights, and as a prize for winning the contest was given a trip to Chicago on September 27, for an audition with one of the major broadcasting com panies; that she was in Chicago four days; that she saw Doctor Bernstorf every other day before she went to Chicago; that she started singing over the radio right after Thanksgiving and had been singing there every morning since January 1; that she had not refused any engagements at the radio station but had-refused two programs from someone else and they were the only ones she had refused; that she went back to Chicago on November 12 for two weeks, during which time she rehearsed in the studio and sang one program on the radio; that she did not see a doctor while in Chicago but took with her a supply of medicine which Doctor Bernstorf had given her; that she sang three times a week over the radio until January 1 and six days a week since that time and did not miss a program after January 1; that she missed four programs before January 1 because she was too nervous and sick. Later on she testified that she went to Chicago the second time on October 12 or 13, instead of on November 12, and came back about November 1.
Doctor Chipps testified that the plaintiff came to his office and said that she was very sick and thought she had been poisoned by some food, that he examined her and found her pulse and color normal and that her heart wasn’t exaggerated or weak, that' she tried two or three times to vomit but couldn’t vomit and that she didn’t look ill; that he gave her a dose of alkaline powder; that she was in his office about thirty minutes; that in his opinion she was not ill from food poisoning, and that she was not poisoned by anything she ate at noon, as food poisoning would not develop that quickly; that he later saw the ham sandwich which was represented to be part of the one she had eaten, that the bread and meat appeared fresh and he suggested that it be taken to Mr. Kabler, a chemist and bacteriologist, for examination; that he was in his office the remainder of the afternoon after the plaintiff left.
Doctor Bernstorf testified that he first met the plaintiff on September 12, when she came to his office and complained of cramping and sickness of her stomach. She said she had been vomiting and was rather in a state of collapse; th$t she had eaten a sandwich which made her sick; that he had treated her since September 12 and she was still under his- care; that she was suffering from food poisoning when he first saw her on September 12; that she had been weak, her blood pressure was down, she was losing some weight, had indigestion, that she would probably never be able to eat certain foods again and is probably allergic to pork; that he couldn’t state how long she would suffer from nervous disorders; that her singing made her nervous; that the poison food affected her nerves and that he had been giving her medicine to help her digestion and nervousness. On cross-examination he testified that he did not have his office records with him and could not tell how many times he had seen her, that it was around twenty or thirty times as nearly as he could recall; that when the plaintiff called at his office on September 12 she told him that Mr. Sowers, plaintiff’s attorney in the action, had sent her to him. Later, on redirect examination, he testified that he imagined he had been mistaken when he said that Mr. Sowers sent the plaintiff to his office on September 12, because he found a notation on his record “Clarence Sowers on October 11.” Later in the trial Doctor Bernstorf produced his office books and an office card purporting to show the office visits made by the plaintiff. Testifying therefrom he said that he saw seven patients at his office on September 12, that the plaintiff’s name was fifth for that day, that he saw the plaintiff twenty-seven times up to and including April 15, 1939, and that on each occasion except that of September 12 and April 15 the plaintiff’s name was shown as the last person he saw on each day¡ and that the record showed that on the days when the plaintiff called at his office he saw from four to twenty patients; that he didn’t know why it was that his records showed that he saw the plaintiff on October 29 and November 7 when she was in Chicago at that time; that the last charge in his book on October 13 was “Laverne Taylor;” that Laverne was a patient of his and that he had scratched out “Delores” and written “Laverne” because when he was posting it he discovered that the entry wasn’t right and that Delores had not been in that day; that “Laverne” is the last name which appeared on October 17 and that it had originally been written “Delores” but he had struck it' out and inserted “Laverne” because the first entry was wrong and also that the same thing occurred as of October 22. He testified that Delores’ name always appeared as the last patient of the day, except on the first and last visits, because she usually c^me late in the evening; that after the plaintiff’s name in his record the notation always appeared “office visit,” and that he didn’t use that notation for any other patients because this was a case in litigation and he wanted to designate that she had made an office call.
Doctor Gouldner testified that he had examined the plaintiff the day before and found her a very nervous woman, with a high pulse rate, highly excitable, but otherwise there was nothing abnormal about her; that based upon the history which she gave him and his examination it was his opinion that she did not'suffer food poisoning on September 12, that no food poisoning is known to occur earlier than six to twelve hours after the digestion of food; that common food poisoning occurs after that time and is accompanied by cramps, vomiting and temperature of 102 to 103, and after two or three days the whole thing is over; that the other type of food poisoning is botulism, that it shows symptoms from twelve to thirty-six hours after the food is taken, and. that it is fatal sixty-five percent of the time. He testified that her nervousness was associated with the condition of her eyes; that she had one glass eye and the other eye was affected in a way which caused it to continually vibrate.
Doctor Callahan testified that he had examined the plaintiff on the day he was testifying, and that he found her physical condition to be normal in all respects except that she was very nervous and “as to her eyes.” He testified that ordinarily it takes food poisoning about four hours to develop after the food is eaten and that her condition of nervousness had no relation to a sandwich eaten by her on September 12. He said she told him that she became sick fifteen minutes after she had eaten the sandwich, but that food poisoning would not come on within fifteen minutes, as that would not give her time to assimulate the poison to produce the toxic condition; that if she had a severe case of food poisoning it would have lasted twenty-four to forty-eight hours; that the symptoms she was then complaining of had nothing to do with food eaten the previous September; that there might be some connection between the condition of her eyes and her nervousness; that ptomaine poisoning might cause loss of weight during the next week or two afterward; that the plaintiff had lost her left eye as a child; that she wore a glass eye and as a result of the injury has an eye “astigment” in the right eye which quite possibly would have a great' deal to do with her nervous condition.
Mrs. Frank, plaintiff’s mother, testified that her daughter couldn’t see very well; that after she ate half of the sandwich she handed it to her; that the meat looked dark and the bread was green and black; that the girl at the counter threw it in a can and handed her another that she couldn’t eat; that her daughter’s lips were pale and her face was white. She told about the visit to Doctor Chipps’ office and later to Doctor Bernstorf’s, and that after they had visited Doctor Bernstorf they went home, and that the plaintiff went to the radio station, and she went back to the defendant’s store at three o’clock in the afternoon and talked to the manager. She also testified as to the plaintiff’s physical condition after September 12.
Witness Shearman was qualified as an examiner of questioned documents and stated that he had been so testifying for more than twenty years and had devoted all of his time to that study since 1917. He testified in detail as to the separate entries in question in Doctor Bernstorf’s records and said that the relative position of the pen and the paper was the same over a period of nearly two months, that in his opinion the entry “Delores Taylor” in the cases where it appeared as the last name on the respective pages had been made within a week because every entry was remarkably like the others as to position on the pages; that they were alike as to the notations following them; that they were much different from the other entries in the book in most instances; that the book had been in a constant position to the writer; that there were a few normal entries, namely on September 12, the first entry on October 11, the first entry on February 6, and an entry on February 27, which latter entry was not shown on the card; that in his opinion much of the card, if not all of it, was written at the same time, because of the tendency of the writer to go to the left side and because of the slight difference of ink color as between the entries; that the ink color of the entries in question were too consistent over a three-and-one-half-months period.
Vern L. Taylor testified that he had never been a patient of Doctor Bernstorf and that he was not in his office on October 13, 17 or 22, 1938. Ela Taylor, his wife, testified that she was treated in December, 1938, for a sore throat but she was not in his office at any time within sixty days prior to her December illness, as far as she could recall.
Miss Clinton, stenographer in Mr. Sowers’ office, testified that she kept the names of all the persons who enter the office, and her books showed that the first time plaintiff came to the office was on October 11, 1938.
Employees of the store testified that subsequent to the complaint, a sandwich which they identified as the one in question was taken fx-om the garbage can in which it had been thrown; that there was no indication that there was anything wrong with it and that it was taken to Mr. Kabler for examination. Witness Kabler, having been qualified as a chemist and bacteriologist, testified that he examined the sandwich brought to him by an employee of the store, that he made a cursory examination of it at the time and then started cultures and chemical tests; that the bread was soft, moist and fresh and the ham clear, normal in color and texture and that there were no spots or discoloration under a high-powered hand lens on either the ham, bread or lettuce; that he made bacteriological culture tests which were negative for the three types of food poison organisms generally encountered; that he tested it for heavy metals and found none present; that he ground up the remainder of the sandwich and fed it to guinea pigs and they showed absolutely no effect of food poisoning.
A number of witnesses both for plaintiff and for defendant testified concerning the plaintiff’s physical appearance and condition prior to and after September 12. Recital of that testimony, substantial but conflicting, is not required in presenting the issue here determined.
In the journal entry of judgment is noted the overruling of defendant’s demurrer to the plaintiff’s evidence, but the abstract does not show the demurrer nor the grounds assigned therein. Appellant, however, does not here urge the merits of the demurrer, but contends that the verdict was procured by fraudulent testimony, that it was contrary to the evidence, and that the trial court abused its discretion in refusing to set it aside and grant a new trial. In support of the motion for new trial there was submitted an affidavit of the county director of welfare to the effect that welfare payments had been made to the plaintiff by his office from August, 1937, until May, 1939, in the total sum of $506.52 cash and $121.56 in clothing, food, etc., and that subsequent to November 1, 1937, the plaintiff had received from $26.23 to $28.43 a month in cash as blind assistance, and that dental and medical services in the amount of $1.50 had been furnished in February, 1937. This affidavit was submitted in view of the following statements made by plaintiff’s counsel in his opening argument to the jury:
“I am a lawyer representing this client. She is not a WPA worker. She is blind in one eye and the other one is defective, that is true. She is not a chiseler, because if she was a chiseler she and her little boy would be on WPA, but not doing that and not being a chiseler, she is trying to make a living and not charge the taxpayers with it, and yet they make us come into court and feel like a bunch of criminals.”
Defendant’s objection to these statements was overruled.
Certainly no discredit would necessarily attach to the plaintiff if she had received aid “charged to the taxpayers.” But there was nothing in the evidence concerning the matter, and the comment was clearly intended to influence the jury by injecting matters outside the record. Although the comment was manifestly improper, and the affidavit presented on the motion for a new trial was pertinent, we cannot say that this particular comment alone, which the court permitted to stand, so prejudiced the rights of the defendant as to require a new trial. Nor is it our function to pass upon the weight of the evidence on the question of whether the plaintiff was injured by unwholesome food served by the defendant. That issue was for the jury to determine in the face of the conflicting testimony heretofore summarized. We are concerned, however, that the jury be permitted to determine it in a trial lawfully and properly conducted.
We come now to consideration of other statements made to the jury by plaintiff’s counsel.
In his opening argument counsel said:
“They have brought in here paid experts and I am telling you they can pay experts; we can’t. But they have brought in paid experts to testify the way they want their case and the way they want to present their evidence.”
Objection was made to this statement on the ground that it was improper. The objection was overruled. Plaintiff’s counsel then continued:
“You will notice that the court reporter is taking a record of my argument because of their great precautions of this big corporation on their appeal in the higher court.”
Objection to this statement was sustained and the jury instructed to disregard it. Again counsel for plaintiff said:
“All these witnesses are working for the defendant and they are relying upon the defendant for their livelihood; even the doctors; even the chemist; even the rubber expert; they are all relying for their livelihood upon this corporation; this defendant.”
Objection to that statement was overruled. In his closing argument plaintiff’s counsel said:
“I have never yet tried a case on the other side of Mr. Fleeson but that he made the plaintiff feel like a thief.”
Objection to that statement as an improper argument was sustained, but no direction given to the jury to disregard it. Other statements from plaintiff’s argument have been heretofore referred to.
Statements complained of were highly improper, especially the statement that the defendant had “brought in paid experts to testify the way they want their case.”
There was also submitted, as showing prejudice, on the motion for new trial the affidavit of one of the jurors to the effect that a woman juror had stated during the deliberations, and in the presence of the other jurors, that “. . . it cost ‘Babs’ Hutton more to get her count than the plaintiff was asking in this case and that she did not like ‘Babs’ because she had blondined her hair” (“Babs” Hutton being a Woolworth heiress of considerable newspaper notoriety).
In extenuation of the improper remarks made by plaintiff’s counsel, it is urged that they were incited by improper attacks upon him by counsel for the defendant. No such remarks are shown by the record before us, and we have no way of determining what basis, if any, there is for such allegation. Moreover, if such improper remarks were made by defendant’s counsel it was the duty of opposing counsel to make proper objection and the duty of the court to see to it that proper bounds were observed. This court has consistently followed the general rule against imposing narrow and unreasonable limitations upon argument of counsel made to the jury. Counsel are entitled to comment freely upon the evidence, upon the credibility of witnesses where such comment is based upon facts appearing in the evidence, and to state their own views concerning the evidence. But countenance is not to be given to arguments based in no way upon the evidence or to appeals outside the record manifestly intended to create passion and prejudice on the part of the jury. Counsel have the unquestionable privilege to indulge in all fair argument in support of the contentions of their clients, but no right to appeal on the mere ground that the opposing party is a large corporation or of such wealth that a judgment against it would be no considerable burden upon it. It is impossible to lay down any definite rule as to when an improper argument by counsel, objected to at the time, will be ground for a new trial, and the circumstances of each case are controlling (2 R. C. L. 453). This matter is largely in the hands of the trial court. Where it appears, however, from the whole record that a sound discretion has not been exercised in controlling the argument of counsel and the right to a fair and impartial trial has been prejudiced, a new trial will be granted (2 R. C. L. 435). It is stated in 46 C. J. 108, that “If it is reasonably doubtful whether harm has resulted from improper argument, such argument must be held to have been calculated to prejudice,” citing Hubb Diggs Co. v. Bell, 116 Tex. 427, 293 S. W. 808, wherein it was said:
“If the trial court holds that under all the facts and circumstances in the case there exists no reasonable doubt as to whether harm has resulted from improper argument, and it appears from the record on appeal that under all the facts and circumstances such doubt does exist, the holding is erroneous.” (p. 432.)
Upon examination of all of the facts and circumstances shown by the instant record it is our opinion that unwarranted latitude was permitted counsel for the plaintiff in his argument, outside the record, and that the only purpose and the probable effect of the improper comments heretofore quoted were to produce a prejudicial attitude toward the defendant on the part of the jury and thus prevent a fair and impartial trial.
The conclusions already reached make unnecessary a consideration of defendant’s contention that the amount of the verdict was excessive.
The judgment is reversed with directions to grant a new trial. | [
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The opinion of the court was delivered by
Harvey, J.:
This was an action to quiet plaintiff's title in and to a described 480 acres of land in Ellis county owned by Grace E. McConchie at the time of her death on August 6, 1931, and for the construction of her will, the pertinent portions of which read:
“I, Grace E. McConchie, being of sound mind, do hereby bequeath all my earthly possessions to my four children, Guy E. Lewis, Jessie E. Lesher, James C. McConchie and William McConchie. I wish said property or real estate to be held in common as long as my children live. Either of them dieing, their share goes to the surviving above-mentioned children, but, in case of any of said children dieing and leaving children of their own, those children are to take their parent’s share, and said real estate still be kept together and after the present encumbrance is canceled no other mortgage shall ever be put on real estate again.”
Plaintiffs are the four children of Grace E. McConchie (together with their spouses) named in her will. The defendants are the grandchildren of the testatrix and children of plaintiffs. All of the defendants are minors, and each of them was duly served with summons as provided by law. The court appointed a guardian ad litem, for all of the minor defendants. The court, also, upon the petition of and at the request of plaintiffs, appointed a trustee to act for and on behalf of the unknown and unborn grandchildren of Grace E. McConchie, deceased, and any and all unknown and unborn remaindermen under her last will. The guardian ad litem filed an answer containing a general denial, and alleging that each of the minors has a contingent interest in the real estate involved in the action under the terms of the will above mentioned, and that the will should be construed as devising to each of the children, and the survivor of them, a life estate only, and devising remainder interest in said property to the grandchildren of said Grace E. McConchie who may survive all of her children. The trustee filed an answer of the same tenor on behalf of the unknown and unborn.grandchildren of Grace E. McConchie, deceased, and the unknown and unborn remaindermen under her last will.
Plaintiffs’ reply was a general denial.
Pertinent findings of fact made by the trial court are as follows:
“1. Grace E. McConchie died August 6, 1931, testate, resident of Ellis county, Kansas; her last will was duly admitted to probate and record, letters issued, the estate administered ánd closed and the representative discharged in the probate court of said county.
“2. At her death Grace E. McConchie was seized in fee simple title and was in possession of the (lands in question), subject only to mortgage lien of Laconia Savings Bank, defendant, upon the three quarter sections in Ellis county.
. “3. No husband survived Grace E. McConchie. She left no children, natural or adopted, except plaintiffs Guy E. Lewis, Jessie E. Lesher, James C. McConchie and William McConchie, who were her only children. She left no grandchildren other than children of her four children herein named. By her will testatrix devised and bequeathed all her property to her said four children. ...
“4. No child, heir-at-law, issue, grandchild or descendant, whether, living or in being or unborn at the time of testatrix’s death, took' or had' or has or will in the future have or take any right, title, interest, estate, claim or equity in or to the estate or any part thereof of testatrix, Grace E. McConchie, either' directly or contingently or as remainderman, except her said four children:' Guy E. Lewis, Jessie E. Lesher, James C. McConchie and William McCÍónchie. That all of said four children are of full age. ' '
“5. By the provisions of said will of Grace E. McConchie, the fee-simple title to all lands (in question) vested at once and absolutely in said four children named as devisees, to the total exclusion of all other children, if any, issue, descendants, and grandchildren of said testatrix, and of all parties to this action and of all persons now claiming, or who may hereafter claim under said will whether presently or contingently in the future.
“6. No right, title, interest, estate or equity may be claimed hereafter either legally or equitably in said real estate or any part thereof under and by virtue of the terms of said will, by any minor defendant herein or by any grandchildren or grandchild of said Grace E. McConchie now unborn, or by any remainderman contingent or unborn, whether during minority of any such person or upon such person’s reaching and attaining rights of legal majority, but all such should be and are now forever barred. . . .
“9. Guy E. Lewis, Jessie E. Lesher, James C. McConchie and William McConchie are owners in fee simple and are in possession of the (land in question) free and clear of any right, title, interest, estate or equity of any defendant herein, or of any unborn or unknown claimant under the will of Grace E. McConchie, subject, however, to the leasehold rights aforesaid of said Cities Service companies, and subject also to the rights aforesaid of Laconia Savings Bank.
“10. All defendants and all persons claiming or to claim by, through or under them or any of them, at the present time or at any future time, and whether during or after the minority of such claimant should be and are barred of and from any and all right, title, interest, estate or equity of any kind or nature whatsoever in or to said real estate devised by testatrix, or any part thereof, saving only as to defendants as set out above in the last preceding paragraph
Judgment was rendered in harmony with these findings. Defendants, by their guardian ad litem, and trustee, have appealed and question the trial court’s construction of the will as devising the land in fee to the four children of the testatrix. Appellants submit that the will involved should be construed as devising a life estate only to the four children and the remainder to the grandchildren of the testatrix living at her death and such other grandchildren of the testatrix, if any, yet unborn. The will, of course, must be construed by considering the situation of the testatrix and all the provisions of the will relating to the disposition of the real property. Jn Hawkins v. Hansen, 92 Kan. 73, 139 Pac. 1022, it was held:
“The rules of construction applied to wills by this court in numerous cases recognize that each will must be construed by its own terms, and that where there is any ambiguity in the language the court must, as far as possible, put itself in the position of the testator, taking into consideration all the circumstances under which the will was executed, the condition of the testator’s family and his estate, and from all the facts and circumstances find' what his intention was.” (Syl. ¶ 1.)
See, also, Jameson v. Best, 124 Kan. 633, 635, 261 Pac. 582. There are many other cases to the same effect. We must consider, also, our statute (G. S. 1935^ 22-258), which reads:
“Every devise of real property in any will shall be construed to convey all the estate of the testator therein which he could, lawfully devise, unless it shall clearly appear by the will that the testator intended to convey a less estate.”
By the first sentence of the portion of the will in question the testatrix devised the real property in controversy “to my four children,” naming them. Standing alone, this is an unrestricted devise in fee simple of the real property to the four persons named in the will as the children of the testatrix.
Does it clearly appear by the will that the testatrix intended to convey a lesser estate? The second sentence, “I wish said property or real estate to be held in common as long as my children live,” simply expresses a desire or hope of the testatrix. The same may be said concerning the phrase which occurs later in the will, “and said real estate shall be kept together and after the present encumbrance is canceled no other mortgage shall ever be put on the real estate again.” This also expresses the hope or expectation the children would be able to pay and have canceled the mortgage then encumbering the land. This proved to be a vain hope; the mortgage has been foreclosed. There is nothing imperative about these provisions. The will makes no alternative consequences to flow from the inability or failure of the named devisees to carry out these provisions. In Wright v. Jenks, 124 Kan. 604, 261 Pac. 840, it was held:
“An attempted restriction upon the alienation of property is ineffective where no person but the alienor is concerned and where the grantor or testator who sought to impose the restriction prescribed no effective barrier to enforce it, such as an active trusteeship, provision for reentry, alternative grant or devise over for breach thereof.” (Syl. IT 3.)
And at pages 609 and 610 a number of cases in support of the rule aré cited. For later cases, see Somers v. O’Brien, 129 Kan. 24, 281 Pac. 888; Guarantee Title & Trust Co. v. Siedhoff, 144 Kan'. 13, 16-18, 58 P. 2d 66; Bank of Powhattan v. Rooney, 146 Kan. 559, 561, 72 P. 2d 993.
The other pertinent provision pertains to whom goes the share of a child who died. Omitting the second sentence, and connecting this with the first, the will reads:
“I, Grace McConchie, being of sound mind, hereby bequeath all my earthly possessions to my four children, Guy E. Lewis, Jessie E. Lesher, James C. McConchie and William McConchie. . . . Either of them dieing, their share goes to the surviving above-mentioned children, but, in case of any of said children dieing and leaving children of their own, those children are to take their parent’s share, ...” •
If there is anything indefinite in this it is with respect to the time the' testatrix had in mind when one of her children might die. The languáge indicates the time she had in mind was that prior to her death. Under the first sentence if all her children were living at her death and the will was probated the property would go to the four children in equal shares. In this event there would be no occasion to provide an alternative place for one of the shares to go. A similar provision was before the court in Hodges v. Lanyon, 108 Kan. 407, 195 Pac. 882. There the syllabus reads:
“A will devised, property to certain parties and then provided—
‘“In the event of the death of any of the beneficiaries named in this paragraph 14 of my will, then and in that event the portion of my estate arising from the properties described in this paragraph 14 to which such deceased beneficiary would be entitled, I will and bequeath and direct that it be paid to Mirza Temple, Ancient Arabic Order, Nobles of the Mystic Shrine, to be used by Mirza Temple for their charitable purposes as the officers of said Temple may direct.’
“Held, that the words, ‘In the event of the death of any of the beneficiaries,’ mean the death of any of the devisees before the death of the testator.”
In Koelliker v. Denkinger, 148 Kan. 503, 507,. 83 P. 2d 703, in discussing the aspects of a will then before the court, it was said:
“If land be devised to B and his heirs, but if he shall die, then to C and his heirs, ‘die’ means if B shall die before the testator. If B dies before the testator, C takes; if B survives the testator he takes a fee simple absolute, and C is out.”
More than that, by the terms of the will there appears to be only one time when the title to property passes under it, and that is at the death of the testatrix. We cannot therefore construe the will, as is suggested by appellant, that the children named in the first sentence receive only a life estate, and that the fee never actually vested in anyone permanently until the death of the last one of the surviving children of the testatrix; for, if so construed, there is no provision in the will for title to vest at all. By its terms the grandchildren “are to take their parent’s share.” If their parents had only a life estate those children could take no more; hence, there would be no ultimate vesting of title. The law favors the vesting of estates. (Votapka v. Votapka, 136 Kan. 224, 14 P. 2d 732.) G. S. 1935, 22-258, tends to forbid such a construction. The testatrix appears to have had in mind the fixing of title in her four children, if they were living at the time of her death, but if one or more of them should be dead at that time, then to fix title in either the survivors of the four children or in the children, if any, of the deceased child. We find no error in the construction of the will as given by the trial court.
Apparently out of an abundance of caution counsel raise the question again as to the binding effect of a judgment against minor defendants properly served and represented by a guardian ad litem. In Kistler v. Fitzpatrick Mortgage Co., 146 Kan. 467, where the same question was before the court, it was held:
"A minor defendant in a civil action, properly served with summons and represented at the hearing of the case by a guardian ad litem, duly appointed, is bound by the judgment to the same extent as an adult would be bound.”
We think this holding applies to any type of civil action.
Plaintiffs in their petition name as defendants all of the .living grandchildren of the testatrix and allege that no trustee had been appointed by any court to act for and on behalf of the unknown and unborn grandchildren of the testatrix and unknown and unborn remaindermen under her last will, and ask that such a trustee be appointed. The court made an order appointing a trustee to act for and on behalf of the unknown and unborn grandchildren of the testatrix and the unknown and unborn remaindermen under her last will, and said trustee duly qualified” and filed an answér substantially the same as the answer of the guardian ad litem. The question is raised as to whether it was proper to appoint such trustee. E.ven though the statute makes no specific provision for such an appointment the court repeatedly, under general rules of equity, has been required to meet the question. (See Bell v. Watkins, 90 Kan. 558,135 Pac. 596; Bartram v. Kemp, 113 Kan. 246, 214 Pac. 96; Davis v. Davis, 121 Kan. 312, 246 Pac. 982; Robinson v. Barrett, 142 Kan. 68, 45 P. 2d 587; Ragland v. Ragland, 146 Kan. 103, 68 P. 2d 1100.) In this case, while the court unquestionably had authority to appoint, the trustee, yet the only real interest the trustee could represent in this case would be that of grandchildren of the testatrix who are as yet unborn, if any there may be, or someone claiming under them. However, such grandchildren could have no greater interest or claims at any time than the grandchildren living at present, who were properly served in this case by summons, as provided by statute, and who were properly represented in the case by a guardian ad litem duly appointed in conformity to our statute; and certainly, if the living grandchildren of the testatrix have no interest in the property in question under the will before the court, any later born grandchildren of the testatrix could not be in any better position.
We find no error in the record. The judgment of the trial court is affirmed. | [
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Per Curiam:
This appeal involves the question of the validity of an ex parte order of the compensation commissioner permitting claimant for compensation to change doctors and hospitals. The trial court set aside that part of the award. The appeal presents no material variation in the facts from those stated in Wolgamott v. Vinegar Hill Zinc Co., post, p. 374, 99 P. 2d 755 (this day decided), and it involves precisely the same question of law.
Judgment affirmed. | [
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The opinion of the comet was delivered by
Hoch, J.:
This appeal is from a conviction of second-degree manslaughter. Appellant was tried on a charge of manslaughter in the first degree. The court instructed also as to manslaughter in the second and the fourth degrees, advising the jury that it should successively consider the question of defendant’s guilt under the lesser degi’ees if it found him not guilty of the greater.
The appellant makes two principal contentions; first, that there was no evidence to warrant instructions on manslaughter in the second degree or to support such a verdict; second, that under the definitions of the statute, manslaughter in the second degree is not a lesser offense falling within the offense of manslaughter in the first degree. Before stating the contentions more specifically let us note the provisions of the statutes.
Manslaughter in the first degree is defined in G. S. 1935, 21-407, as follows:
“The killing of a human being without a design to effect death, by the act, procurement or culpable negligence of another, while such other is engaged in the perpetration or attempt to perpetrate any crime or misdemeanor, not amounting to a felony, in cases when such killing would be murder at the common law, shall be deemed manslaughter in the first degree.”
Manslaughter in the second degree is defined in G. S. 1935, 21-412, as follows:
“Every person who shall unnecessarily kill another, either while resisting an attempt by such other person to commit any felony, or do any other unlawful act, after such attempt shall have failed, shall be deemed guilty of manslaughter in the second degree.”
The first contention is that in order to establish guilt of manslaughter in the second degreé, it is necessary to show that the killing took place “after an attempt” by the deceased to commit a felony or do any other unlawful act “shall have failed,” and that in the instant case there was no evidence that any such attempt had been made and had failed.
The point urged in the second contention is that the definition of manslaughter in the first degree definitely excludes intent — by using the words “without a design to effect death” — while the definition of manslaughter in the second degree includes, by implication, the element of intent, and that therefore the second offense cannot be a “lesser offense” within the first.
Preliminary to discussion of these contentions, a brief narration of the facts will suffice. The appellant will be referred to as the defendant and the man he was charged with killing as the deceased.
The defendant was an employee of a pool hall. On the morning in question he was cleaning up the place, being assisted by a helper. Soon after they started work the deceased entered the pool hall and asked for beer. The defendant refused to give him beer, telling him he was intoxicated and should go on home. Angered by the refusal, the deceased threatened the defendant, called him a vile name and approached him in a menacing manner. The defendant seized a stick, struck the deceased repeatedly, knocking him down at least once and possibly more than once. These blows were on the head, arms, hip, and perhaps other parts of the body. Soon after leaving the pool hall the deceased died, the cause of death being ascribed by the attending doctor to a hemorrhage caused by one or more of the blows.
We first review the record for the sole purpose of determining whether there was any substantial evidence bringing the acts of the defendant within the definition of manslaughter in the second degree. In other words, whether there was any substantial evidence indicat ing an unnecessary killing in resisting an attempt by the deceased to commit an unlawful act after failure of the attempt. Needless to say, it is not our function to weigh the evidence and determine the guilt or innocence of the defendant.
While the record is not entirely definite in all details and the precise order in which some of the events took place may not be free from doubt, the substance of the testimony is reasonably clear. The defendant testified that he told the deceased that he couldn’t let him have any beer; that he was drunk and should leave the place and go on home; that at that time he (defendant) was out in front of the bar between two front tables; that he told the deceased that he would not give him any beer or anything to drink because he was too drunk; that the deceased did not start home but “came at” the defendant, calling him a vile name and telling him “you will give me beer;” that he was afraid he would suffer serious injury; that as he looked up and saw the deceased coming, he attempted to get away from him by going around behind the bar; that when he got to the end of the bar the deceased caught him and took hold of him with a heavy grip on his left wrist; that he jerked away and went on around the end of the bar; that the deceased came on behind the bar after him; that he grabbed what was said to be the butt end of a billiard cue and struck the- deceased with the intention of stopping him; that he first struck him about the jaw; that the blow did not knock him down; that the deceased came on and he struck him again; that the deceased dropped down on his hands and tried to get a bottle from a case of bottles beneath the bar; that he hit him about the back and shoulders; that he did not know exactly how many times he struck the deceased; that the deceased straightened up and looked like he had something in his hand; that he started hitting him again; that the deceased dropped down on his hands and the helper came up and said, “For God’s sake, Burvle (defendant’s first name), let up;” that he didn’t strike him after that, but told the helper to get the deceased out of there. The defendant did not testify that the deceased got hold of a bottle or that he held anything in his hand at any time. He said that it looked like he had something in his hand.
The helper’s testimony was substantially the same as that of the defendant concerning what happened in the pool hall that morning prior to the time the blows were struck. He then testified that he did not pay much attention because he didn’t think anything was going to happen; that the next thing he knew “they were into it up there”; that when he turned around the defendant was back of the bar and had a stick or club in his hand and was “coming down with it”; that he couldn’t tell just exactly where the blows were landing, but they must have been some place about the head and shoulders; that he didn’t count the blows and couldn’t tell how many there were, but his best estimate was seven or eight; that when he first observed them, the deceased was about halfway in behind the bar and was coming up from the floor; that his (deceased) hands were out in front of his face or head; that he saw the blows struck while the deceased was coming up; that the deceased reached around and got hold of the bar; that the defendant walked to the end of the bar and after that he saw one blow struck which he thought landed across the hip; that most of the blows he saw were struck as the deceased was rising from the floor; that when he saw these blows being struck he yelled for the defendant to “lay off” or something to that effect; that he didn’t see the deceased strike any blows; that he didn’t see anything in the hands of the deceased at any time. On cross-examination the helper testified that his best guess was that the defendant struck the deceased seven times, but he could only remember of seeing two blows; that the first blow he remembered was across the head. When asked whether the deceased went down as a result of the blows, he answered: “No, I can’t even remember him being down.” He further testified on cross-examination that he thought the other blow he saw was across the hip; that as the deceased came up the defendant struck him; that when he testified it was the first blow that floored the deceased he meant it was the first blow he saw him strike; that he didn’t know for sure whether it was the first blow that floored him because he didn’t know whether there were any blows struck before the first blow that he saw.
From this testimony the jury was undoubtedly justified in believing that the deceased had attempted to injure the defendant, thereby committing an unlawful act. Can it then be said that the jury could not also arrive at the conclusion, from the evidence, that this attempt to assault and seriously injure the defendant had failed and that thereafter the defendant continued to strike severe and unnecessary blows? We think not. There was testimony sufficient to support the verdict. Had the court, in the face of the evidence adduced, refused to instruct the jury that they should consider the question of second-degree manslaughter if they had reasonable doubt as to defendant’s guilt of first-degree manslaughter, and the jury had found the defendant guilty of first-degree manslaughter, there can be little doubt that the defendant would then be here — and properly so — assigning error in the refusal to instruct as to manslaughter in the second degree. An instruction concerning manslaughter in the second degree was not only justified, but upon the record before us, the court would have erred had it failed to give such an instruction. (State v. Buffington, 66 Kan. 706, 72 Pac. 213; State v. Clark, 69 Kan. 576, 77 Pac. 287; State v. Newton, 74 Kan. 561, 87 Pac. 757; State v. Hardisty, 121 Kan. 576, 580, 249 Pac. 617; State v. Phelps, ante, p. 199, 97 P. 2d 1105, and cases therein cited.)
The gist of appellant’s second contention is that “intent to kill” is an implied element in the definition of manslaughter in the second degree, and that when a defendant is charged with manslaughter in the first degree, which applies only to “the killing of a human being without a design to effect death,” he is thereby absolved from an intent to kill, and cannot be found guilty of manslaughter in the second degree. In the first place, this contention inaccurately assumes that the word “design” is fully synonymous with the word “intent.” The word “design” may and usually does mean something more than the word “intent” as ordinarily understood in connection with criminal offenses. It carries with it an idea of a plan, a scheme, a deliberate purpose. (2 Words & Phrases, 2d Series, 16, 17.) The word “intent,” on the other hand, does not necessarily carry with it the idea of a deliberate purpose or plan. While persons of sound mind are ordinarily presumed to intend the natural and probable consequences of their acts, it does not follow that design to effect the result is thereby presumed to exist.
In the second place, we find nothing in the definition of manslaughter in the second degree which limits it to voluntary homicide. The only necessary elements are that the killing be unnecessary under the facts and circumstances and that it take place while resisting an attempt to commit a felony or do another unlawful act, after the attempt has failed. It is unnecessary here to discuss the familiar distinction between voluntary and involuntary manslaughter. We find nothing in the statute itself which precludes a defendant who is charged with manslaughter in the first degree from being found guilty of manslaughter in the second degree.
No error in the record being shown, the judgment is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
This is an action to set aside a tax deed. Judgment was for defendants. Plaintiff appeals.
The petition alleged that plaintiff on or about May 26, 1927, became the owner in fee of the lot in question in the city of Leavenworth; that on October 19,1935, the board of county commissioners filed a suit in district court by the county attorney to foreclose a tax lien on the lot in question for taxes on it for the years 1927 to 1931, inclusive, in the amount of $90.11; that this cause of action was known as cause of action No. 140 in civil action No. 26996 in the district court of Leavenworth county. The petition then alleged that on July 26, 1932, she redeemed this property by paying the delinquent taxes on it for 1927, 1928, 1929 and 1930 and received a receipt therefor from the county treasurer and county clerk, this payment being in the amount of $72.35. The petition alleged that after payment of the taxes, as above set out, the taxes on the property again became delinquent for the year 1931 and the property was sold to the county on the first Tuesday in September, 1932, for the 1931 taxes, and remained unredeemed until October 19, 1935, less than three and one-fourth years, when civil action No. 26996 was filed to foreclose a purported tax lien on the property, as shown by cause of action No. 140 in civil action No. 26996; that thereafter a void judgment was taken in that action and the real estate was sold at a sheriff’s sale on July 21, 1936, to Graham, one of the defendants in this action. The petition further alleged that on August 27, 1936, plaintiff redeemed the land in question by paying to the county treasurer the taxes on the lot in question for the years 1931, 1982 f 1933 and 1934, and received a-tax certificate in the amount of ■ $61.14. The petition further alleged that Graham had removed two houses from the property of the value of $400, and that plaintiff 'was ready and willing to do equity and to pay whatever taxes and ' ihtere'st'which by law she might be required to pay to obtain the relief sought.
.The prayer of the petition was that the deed in question be set aside, and for such other relief as was just and equitable.
In their answer the defendants alleged that prior to October 19, 1935, the board of county commissioners caused certain information concerning delinquent taxes to be prepared; that included therein was the lot in question; that this information was to the effect that taxes on the lot in question for the years 1927, 1928, 1930 and 1931 were unpaid; that the county attorney prepared a petition to foreclose these tax liens and on October 19, 1935, the commissioner authorized the suit and it was duly filed; that plaintiff under her name at that time was duly made a party, together with other parties who claimed interest in the lot; that plaintiff was a nonresident of Leavenworth county and was served by publication. The answer further alleged that none of the parties who were made defendants in the tax suit answered or made any appearance in the action; that thereafter and on May 26, 1936, the tax suit came on to be heard and the plaintiff presented the proof of publication of notice, and notice was approved and judgment was duly entered foreclosing the tax lien against the property. The answer further alleged that plaintiff Helen Moore was formerly Helen Williams and as such she permitted the lot in question to stand on the tax rolls for many years. The answer further alleged that after the rendition of the ¡judgment in the tax suit an execution was issued to the sheriff, ordering him to sell the lots according to law, and on July 21, 1936, the sheriff did sell the lot at public auction to defendant Graham; that this sale was confirmed on August 1, 1936, the deed issued to Graham on August 10, 1936, and recorded by Graham on August 14, 1936. The answer further alleged that on September 5, 1936, Graham redeemed the property from sale for delinquent taxes for the years 1932, 1933 and 1934 in the amount of $45.21. The answer further alleged that about September 25, 1936, Graham deeded the lot to H. S. Tulloclc, who was at the time the answer was filed the owner and in possession of it. The answer then alleged that by reason of the allegations that had been pointed out, and the judgment to which reference had been made, all the allegations in plaintiff’s petition had been adjudicated and the plaintiff had failed within a period of six months after the sale of the lot to take proper proceedings to set the sale aside, and on that account the judgment in the tax suit was binding on the plaintiff, and the plaintiff was barred from setting up or asserting any right, title or interest in the lot and the sheriff’s deed issued to Graham was good.
The reply was a general denial.
There was a stipulation as to the facts. As far as we are concerned they were as follows: Plaintiff became the owner of the lot May 27, 1927; on July 26, 1932, the taxes were delinquent for 1927, 1928,1929,1930 and 1931, and plaintiff redeemed them for the years 1927,1928,1929 and 1930. On the first Tuesday in September, 1932, the taxes again became delinquent for 1931, and on that date Leavenworth county bid the property in at a delinquent tax sale and the property remained unredeemed until October 19,1935, when civil action No. 26996 was filed to foreclose a tax lien alleged to exist for the years 1927, 1928, 1929, 1930 and 1931. By virtue of a judgment in that action obtained on May 26, 1936, the lot was sold at sheriff’s sale on July 21, 1936, to Graham for $1 and a sheriff’s deed was issued to him and the sale was confirmed August 1, 1936. A statement of an abstractor, delivered to the county attorney, showed that the taxes were delinquent for the years 1927 to 1931, inclusive. However, the delinquent taxes for the years 1927 to 1930 had been paid on July 26, 1932, and a tax certificate issued.
Thereafter plaintiff was served with notice by publication of the pendency of the action to foreclose the tax lien, but she failed to appear or answer, and on May 26, 1936, judgment was rendered,, foreclosing it.
Thereafter an execution was issued and on July 21, 1936, the sheriff sold the lot at public sale, and on August 10, 1936, he issued his deed to Graham and on August 14, 1936, the deed was recorded.
The notice of sheriff’s sale, published by the sheriff, stated that the property would be sold, subject to the taxes for the years 1931, 1932, 1933, 1934 and 1935, inclusive.
The amount of the tax lien charged to each tract, as determined by the judgment of the court, was not published by the sheriff in the notice of sale pursuant to the execution.
On August 27, 1936, the plaintiff paid to the sheriff the delinquent taxes on the property for the years 1931, 1932, 1933 and 1934, and the payment was accepted.
On September 5, 1936, Graham paid the delinquent taxes for the years 1932, 1933 and 1934.
Immediately after the delivery to defendant Graham of the deed he caused two small houses to be removed from the lot.
On October 8, 1936, the plaintiff in this case caused to be filed in the tax suit her motion to vacate and set aside the judgment foreclosing the tax lien.
On November 9, 1936, the above motion was duly presented in court and was overruled.
•On or about September 25, 1936, Graham deeded the lot to H. S. Tullock and he went into possession of it.
On these pleadings and the facts as above stipulated the trial court gave judgment for the defendants. Hence this appeal.
At the outset, plaintiff realizes that this is a collateral attack on a judgment and that she has the burden of overturning the judgment in the tax foreclosure action and that in order to accomplish this she must establish that the judgment in that case was void. She points out that the delinquent taxes prior to 1931 had been paid on July 26, 1932, the lot was bid in by the county on the first Tuesday in September, 1932, and the action to foreclose the tax lien was filed October 19, 1935; that G. S. 1935, 79-2801, provides for the foreclosure of tax liens in cases of this sort. The part of that statute with which we are interested is as follows:
“That in all cases in which, real estate has been or shall be sold and bid in by the county at any delinquent tax sale, and shall remain or shall have remained unredeemed and the certificate of sale untransferred for the periqd- of three and one-fourth years after such sale, or any extension thereof as provided in sections 1 (79-2326) and 2 (79-2401) hereof, it shall be the duty of the county attorney of such county, when so ordered by the board of county commissioners, to institute an action in the district court in the name of the board of county commissioners, against the owners or supposed owners of such real estate, or so much thereof as the commissioners may direct.”
It will be noted that this statute provides that the action to foreclose a tax lien cannot be commenced until the land in question shall have remained unredeemed from the sale to the county for three and one-fourth years. In this case three and one-fourth years had not elapsed since the lot was bid in for the 1931 taxes before the action to foreclose the tax lien was filed. She argues from this that the trial court did not have jurisdiction of the subject matter of the action, and hence the judgment was void. The district court had jurisdiction of the subject matter of foreclosure of tax liens. There can be no doubt about that. The matter which plaintiff argues made the judgment void could have been raised by answer. The mere fact that there was a fact which had it been pleaded would have been a defense to the action does not take away from the court jurisdiction of the subject matter. The subject matter of the action was the foreclosure of. tax liens and the trial court had jurisdiction of this at all times. Rowe v. Palmer, 29 Kan. 337, was a case where the judgment was based on service by publication. The judgment, was attacked collaterally and a defect in the service was relied on. This court said:
“It is not necessary for us to decide whether the petition states such a cause of action as would be good if challenged by a demurrer. If it contains sufficient matter to challenge the attention of the court as to its merits, and such a case is thereby presented as to authorize the trial court to deliberate and act, a judgment rendered thereon is not void. From the petition and notice by publication the court acquired jurisdiction; thereafter it had the right to decide every question that occurred in the cause, and whether its decisions be correct or not, its judgment until reversed must be regarded as binding. Therefore, the objections made to the judgment in the collateral way in which plaintiffs sought to do upon the trial of the case were properly overruled.” (p. 340.)
In Anthony v. Smithson, 70 Kan. 132, the plaintiff had brought an • action for the amount due him for drilling some wells on the farm of the defendant. Section 5119 of the General Statutes of 1901 provided that no owner should be liable in an action on a claim by a contractor for improvements on land owned by the person sued until the expiration of sixty days from the time the labor was performed or the material furnished. The action was of that sort and sixty days had not elapsed. It was argued that this deprived the court óf jurisdiction. This court said:
“From the amended bill of particulars it appeared that the suit was prematurely brought, at least as to a portion of the claim, and the defendant argues that such fact deprived the court of power to proceed. Such, however, is not the law. Prematurity in bringing suit is not a jurisdictional matter. As stated at page 746 of volume 1 of the Cyclopedia of Law and Procedure: ‘It has been held that where defendant is sued on a demand before it is due, and pleads in chief, it is too late afterward to make objection that the action is premature.’” (p. 134.)
See, also, Stryker v. Welch, 128 Kan. 632, 279 Pac. 25. Our books are full of cases in which this general rule is announced.
Moreover, in the action to foreclose the tax lien the plaintiff filed a motion to set aside the judgment. This motion was heard by the trial court and denied. Plaintiff did not appeal from that order. We do not find a copy of that motion in this record, but there can be no doubt that the motion could have raised the question of the irregularities in bringing the actions that are relied upon here. We are not called on to say here whether this motion to set the judgment aside should have been sustained, since the plaintiff did not appeal from that order. An appeal may be taken from any final order. G. S. 1935, 60-3303, defines a final order as, “. . . an order affecting a substantial right, made in a special proceeding or upon a summary application in an action after judgment.” There can be no doubt that the denial of the motion of plaintiff to vacate the judgment in the tax foreclosure action affected a substantial right of plaintiff. It was her only chance to be let into that case to defend. The ruling of the district court on that motion was res judicata of the matter raised by the pleadings and admitted facts in this case.
Plaintiff also points out that the notice of sale which was published by the sheriff did not contain any statement of the amount of the tax lien charged against each parcel of land. She argues that this omission makes the judgment void. The same answer must be made to this that has been made to the argument with which we have already dealt in this opinion. The omission was an irregularity only and did not affect the jurisdiction of the court.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Hoch, J.:
This is an original proceeding in quo warranto to oust the defendant, Truman T. Burr, from the office of justice of the peace of Delaware township, Leavenworth county, Kansas. It was brought by the state of Kansas, on relation of the attorney general, under our statute, G. S. 1935, 60-1609 et seq., which provides for such procedure. The statute, so far as necessary to be set out, reads as follows:
“Every person holding any office of trust or profit under and by virtue of any of the laws of the state of Kansas, either state, district, county, township or city office, who shall willfully misconduct himself in office, or who shall willfully neglect to perform any duty enjoined upon such officer by any of the laws of the state of Kansas, . . . shall forfeit his office and shall be ousted from such office in the manner hereinafter provided.”
The petition filed July 10, 1939, alleged in detail various acts of willful misconduct on the part of the defendant. Application was filed for an order suspending the defendant from office pending final determination of the proceedings, and on July 17, after hearing and full consideration, an order of suspension was issued. On August 7, 1939, the defendant filed his answer, denying the charges. The issues having been joined, the attorney general, by motion filed on August 8, 1939, asked that a commissioner be appointed, and on September 20,1939, an order was issued appointing Honorable O. P. May, of Atchison, Kan., as a commissioner to take testimony, and at its conclusion to file his findings and recommendations. The case was set for hearing by the commissioner on October 16, 1939, at the district courtroom at Leavenworth, Kan. At the opening of the hearing the defendant filed with the commissioner a plea in abatement alleging that he and his wife had removed from, Delaware township, with the intention of remaining permanently outside of the township, and that such removal constituted an abandonment of his office. The commissioner overruled the plea and the hearing proceeded.
On December 2, 1939, the commissioner filed his report, consisting of findings of fact, conclusions of law, and recommendations, together with transcript of the testimony. The report of the commissioner is quite lengthy and it is not necessary to set it out in full. The findings of fact upon which the commissioner bases his conclusions and recommendations are covered in detail in the report. The commissioner’s conclusions and summary are as follows:
“Defendant’s plea in abatement should be overruled for the reason that he cannot defeat the purpose of the action and avoid the payment of costs by abandoning the office and filing a plea in abatement on that ground after a commissioner has been appointed, a court reporter engaged, and the witnesses subpoenaed, with everyone present and ready for the hearing. (State, ex rel., v. Rose, 74 Kan. 262, 266.) The question of whether or not the defendant’s moving from Lansing to the Veterans’ Facility at Wadsworth amounts to the defendant becoming a nonresident of Delaware township, is not decided, since it was not briefed by the parties and it is understood that this question is before the supreme court in another case from Leavenworth county. However, if the Veterans’ Facility at Wadsworth is not under the jurisdiction of the state of Kansas, then the defendant was not a qualified elector of Delaware township at the time of his election, since he had not resided in the state for six months prior to the election on November 8, 1939, to say nothing of the fact that .he was not a resident of the township at the time of the primary. G. S. 80-202, sec. 1, art. 5, constitution of Kansas.
“2. The defendant’s official bond was defective in that it was not made in a sum required by the statute, was not signed by sureties residing in the proper township, and was not conditioned Tor the due, honest and faithful discharge and performance of all and singular his duties as such justice of the peace, according to law, during his continuance in office,’ as required by G. S. 80-205, and defendant did not file such bond nor his oath of office in the time required by law, G. S. 80-202, and, consequently, the defendant did not properly qualify for the office of justice of the peace of Delaware township, Leavenworth county, Kansas.
“3. The defendant was guilty of willful misconduct in office for the following reasons:
“(a) By appointing without statutory authority Wesley H. Kilgore and Ernest Forbach, constables of Delaware township, Leavenworth county, Kansas, to perform the work of a constable generally and not for a special purpose.
“(b) For imposing without statutory authority fines and costs upon individuals for alleged traffic violations on U. S. highway No. 73, when there was no statute or regulation by the State Highway Commission making the acts with which such individuals were charged illegal.
“(c) By imposing or attempting to impose fines and costs upon individuals for alleged traffic violations by letter and by telephone.
“(d) For ordering Ernest Forbach, constable, to release a slot machine to Bert E. Miller, that was taken, under an execution, while in operation in a beer joint.
“(e) For consistently taxing excessive and unwarranted costs against defendants charged with alleged traffic violations.
“(f) For conducting and directing a speed trap to catch unsuspecting victims for the collection of unwarranted and illegal costs for the unjust enrichment of the defendant.
“4. For all of the above reasons it is recommended that the defendant be ousted from office and the costs of this action assessed against him.”
The action is now before us on a motion of the attorney general for an order confirming and approving the report.
The brief submitted in behalf of the defendant is devoted in most part to arguments in support of the plea in abatement filed before the commissioner. We cannot, however, give consideration to that question, as the issue is not properly before us. No plea in abatement was filed with the court. The functions of a commissioner are advisory only and he is without power to take any action determining the issues. (State, ex rel., v. Buchanan, 142 Kan. 515, 51 P. 2d 5; State, ex rel., v. Foley, 107 Kan. 608, 193 Pac. 361; and State, ex rel., v. Harvey, 148 Kan. 166, 167, 80 P. 2d 1095.) Pleadings must be filed with the clerk of the court.
We have carefully reviewed the evidence taken before the commissioner and think it amply supports his findings and recommendations. We find that the commissioner’s report should be confirmed and approved and an order issued ousting the defendant, Truman T. Burr, from office. It is so ordered. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action to enjoin the city commissioners, the city manager and the market master of the city of Wichita from interpreting an ordinance in a certain manner and also to enjoin the enforcement of another ordinance. Judgment was for the plaintiff. The defendants appeal.
The petition stated two causes of action. In the first cause of action, after alleging the official position of the parties, the petition alleged that in 1929 the electors of Wichita voted $25,000 in bonds for the purpose of paying for and equipping a market place; that pursuant to this election a tract of land was secured and a market place built. An ordinance was enacted providing for the operation of the market, and farmers, growers and producers of vegetables and other produce began to use it. The petition further alleged that during the years 1936, 1937 and 1938 certain wholesale produce dealers brought pressure upon the city commission to close or restrict the operation of the market; that as a result of this agitation the commissioners ordered the market closed except between the hours of four o’clock and nine o’clock a. m.; that this was grossly inadequate for the needs of the farmers, producers, and growers selling upon the market and also for the needs of the grocers, dealers, caterers and other persons purchasing upon the market, and as a result thereof the market was unable to operate, and shortly thereafter failed to operate; that thereafter an ordinance was initiated by the people of the city in accordance with G. S. 1935, 12-107. This ordinance was submitted to the electors of the city and adopted by them. It was attached to the petition and marked “Exhibit A.” This ordinance will be referred to hereafter as ordinance No. 12-137. The petition further alleged that pursuant to this ordinance the market was reopened and continued in operation up to the time of the filing of this action; that when the market was originally opened and since it was opened under ordinance No. 12-137 it was the practice of those who used this market to haul produce into it in automobiles or trucks and to rent a stall in the market where the produce would be exhibited and sold; that the method of exhibition of the produce had at all times consisted both of arranging it on the vehicles in which it was brought into the market and also placing it on the floor of the market within the confines of the stall. The petition further alleged that since the market had been reopened pursuant to ordinance No. 12-137 the same wholesale produce dealers of the city of Wichita who previously caused the closing of it started to again hamper and restrict its operation and had represented to the city commissioners that ordinance No. 12-137 should be interpreted to mean that no produce could be exhibited in the market except and unless it was actually deposited and kept on a vehicle within the market and that no produce whatsoever' could be exhibited by placing or arranging it off the vehicles; that on June 19, 1939, a motion was adopted by the commissioners, the substance of which was that all produce sold within the market must be sold from the vehicle on which it was brought to market and if any person who had rented a stall in the market removed therefrom his vehicle, his right to the use of the stall was thereby lost; that notice of this interpretation had been given to all farmers, producers, growers, truckers and all other users of the said market. The petition further alleged that this interpretation was wholly contrary to the express terms of ordinance No. 12-137, was arbitrary, unreasonable, capricious and unlawful and made for the purpose of hindering the operation of the market; that it would work an irreparable injury on the users of the market and the people of Wichita. The prayer was that the defendants be restrained from attempting to enforce this interpretation.
In the second cause of action the plaintiff alleged that the same produce dealers who had agitated for the closing of the market had also brought pressure upon the city commissioners to adopt a further ordinance to limit and restrict in an unreasonable and unlawful manner the sale of the produce upon the market; that on June 12, 1939, the ordinance, marked “Exhibit B,” being ordinance No. 12-158, and attached to the petition, was adopted; that although this ordinance purported to be for the purpose of regulating persons or firms engaged in the business of wholesaling the produce there was no reasonable need for such regulations and they constituted an arbitrary and unreasonable interference with the wholesaling of produce in Wichita; that the assessment of any charge or license fee as prescribed in the ordinance was unnecessary and grossly in excess of the necessary cost of any regulation of wholesaling of produce and constituted an arbitrary, void and illegal charge ox-assessment upon the people of Wichita engaged in selling or offering for sale produce at wholesale; that the provisions of section 3 of the ordinance required the posting of a bond by any person engaged in such business was wholly and entirely unreasonable and arbitrary and unnecessary for the purpose of providing proper regulation of the business of wholesaling produce in the city of Wichita; that the ordinance was not enacted in good faith, but solely and entirely for the purpose of hampering and restricting the sale of produce in the city of Wichita; that it would be impossible for a great number of persons engaged in- the wholesale produce business to comply with the terms of the ordinance; that the ordinance was void because it constituted an attempt to amend and add to ordinance No. 12-137, whereas the defendants had no power to alter or amend that ordinance; that notwithstanding this ordinance was unreasonable, arbitrary, illegal and void the defendants were threatening to enforce it and had notified all persons engaged in the wholesale produce business that after June 29 they would be arrested unless they complied with it. The prayer of the petition was that the enforcement of this ordinance be enjoined.
The two ordinances will not be set out just now in the opinion, but will be referred to later.
For their answer to the first cause of action, the defendants admitted that the bond election was had and the market was constructed and that the ordinance No. 12-137 was passed, as alleged in the petition. The answer further alleged that a certain group of wholesale produce dealers who hauled commodities in from markets and other states and had no established place of business contended that ordinance No. 12-137 should be interpreted so that they could have an established place of business at a very small rental and that the expenses should be paid by the taxpayers of Wichita; that by the payment of one dollar per stall for each twenty-four hours, or two dollars for two stalls for each twenty-four hours, the members of this group contended they might establish a place of business in the public market in such stalls, stacking produce upon the cement floor and carrying on a general business in no way connected with trucks and wagons, except that trucks and wagons are used to haul in the produce and unload it within the market; that this group was backed in its contention by another group in the city of Wichita who contended’for the same interpretation of the ordinance; that there was another group of produce dealers who had established places of business in Wichita and were backed by other citizens of Wichita who contended that the public market was constructed for the benefit of the public and was not for the benefit of wholesale dealers; that a fair interpretation of ordinance No. 12-137 was that the market was to be operated only as a market for the marketing of produce brought in by growers and others by truck to be sold and disposed of out of the truck, and the possession of the stall be re linquished to others who might bring in another load of produce; that this matter was set down for hearing by the board of commissioners of the city of Wichita and counsel appeared for both groups of wholesalers and as a result of this hearing a motion was passed as follows:
“Israel moved that it is the sense of this commission that ordinance No. 12-137 must be interpreted to provide that at the public market the sale of produce at wholesale must and can be made from trucks only. Therefore, the display or sale of produce at wholesale other than from trucks is prohibited by said ordinance, and as soon as the load brought in upon any truck is disposed of or the truck is removed, the stall or stalls occupied by it must be vacated. Motion carried.”
At the same meeting another motion was passed as follows:
“Israel moved that inasmuch as an actual controversy exists over ordinance 12-137, as interpreted by this commission, between the city and certain wholesale produce dealers who operate at the public market, the city attorney is directed to bring an action under the declaratory-judgment law to secure a binding adjudication of right, as to the proper interpretation of said ordinance. Motion carried.”
The answer further alleged that pursuant to the above motion the city attorneys, with the view of bringing an action against the dealers who contended for the construction of the ordinance contrary to the one adopted by the board of commissioners, conferred with the attorneys for this group in order that a judicial interpretation of the ordinance might be secured under the declaratory-judgment act. While these negotiations were in progress the above dealers induced the county attorney of Sedgwick county to bring the present action; that the city commissioners are interested only in having the true meaning of ordinance No. 12-137 determined.
As an answer to the second cause of action, the defendants admitted the passage of ordinance No. 12-158 and alleged that it was a valid and existing ordinance of the city.
For a cross petition in the first cause of action the defendants alleged that ordinance No. 12-137 was passed and that after the market was opened a certain group of wholesale dealers, most of whom hauled in produce purchased from the markets in other states and who had no established place of business, contended that under the terms of this ordinance they could establish for themselves a place of business in the Wichita market by renting one or two stalls permanently at a rental of one dollar to two dollars per day, depending on whether one or two stalls were rented, and that the Wichita market under the terms of the ordinance was to be operated for the benefit of such produce dealers instead of for the benefit of the public, even though the taxpayers of Wichita had to pay the expenses of this market; that this contention on the part of this group was supported by another organization of citizens of Wichita; that another group of wholesale dealers contended that under the terms of ordinance No. 12-137 it provided a market for the benefit of the people and particularly of the growers who would bring their produce in by truck, sell it from their trucks and go back to their fields to gather other produce for the market and that by such action the stalls would be vacated as soon as the produce was disposed of and would be available for rental to other dealers, as provided under the terms of this ordinance; that under the method of operation contended for by the first class of wholesale dealers the members contended they could haul produce by truck and unload it upon their one or two stalls, stack it upon the cement floor, and immediately drive out the truck to secure another load, leaving a clerk to dispose of the produce; that the market place was a large building having ten double doors, that no screens can be put up before the doors, since the trucks are continuously driving in and out; that the building is a large building and that persons can go there day or night and large numbers congregate there; that due to the fact no obstruction could be placed before the doors, dogs wandered into it and it was impossible to keep it wholly free from such animals. The cross petition then alleged the meeting of the board of commissioners already described herein and the passage of the two motions that have been described and that an effort was being made to start an action for a declaratory judgment when this action was brought. The prayer of the cross petition was for an interpretation of ordinance 12-137, the initiated ordinance.
In a cross petition in the second cause of action the defendants set out the passage of ordinance marked “Exhibit B,” and contend that it was a valid ordinance and pray that it be declared to be a valid ordinance. In reply to the answer and cross petition of defendants, the plaintiff denied all the allegations of the answers and cross petitions except those that admit the allegations of plaintiff’s petition; plaintiff further denied that the controversy over the method of operation of the market grew out of the contention of any group of wholesale producers who hauled in produce purchased from the markets in other states, as alleged in the first cause of action, but alleged that the contention grew out of contentions made by whole sale dealers having established places of business in the city. The reply -further denied that any group of persons ever made any contention that they could establish for themselves a place of business in Wichita permanently or that the Wichita public market was to be operated for the benefit of such produce dealers instead of for the benefit of the public and at the expense of the taxpayers of Wichita. Plaintiff alleged that the Wichita market showed an operating income in excess of the operating expense thereof and was operated at a profit to the city of Wichita instead of any expense to the taxpayers and further alleged that the market, if operated as contemplated by ordinance No. 12-137, would be for the benefit of the public and not to the detriment of the taxpayers of Wichita. The reply further alleged that the motion adopted by the commissioners, which had been set out in this opinion, was an attempt on the part of the commission to adopt a rule or regulation relative to the provisions of ordinance No. 12-137 and constituted an attempt on their part to amend its provisions and this amendment was contrary to the provisions of G. S. 1935, 12-107.
With the issues thus made up the case was submitted to the trial court. That court found generally for the plaintiff and enjoined the defendants from enforcing the interpretation of the ordinance referred to in the first cause of action, and enjoined the defendants from enforcing ordinance No. 12-158 as against any persons engaged in the wholesale selling of produce within the public produce market. Hence this appeal.
There is very little dispute as to the facts.. It is apparent that all parties are seeking an adjudication of certain questions involved in the operation of the market. We will deal first with the question raised with reference to ordinance No. 12-137, known as the initiated ordinance. This ordinance was initiated and became effective pursuant to the provisions of G. S. 1935, 12-107. That section provides for the initiation of an ordinance by the electors of the city and for its becoming effective upon a favorable vote by the electors. The statute also contains a provision, as follows:
“Any ordinance proposed by a petition, or which shall be adopted by a vote of the people, cannot be repealed or amended except by a vote of the people.”
The effect of this provision in this case is that once the electors of Wichita adopted ordinance No. 12-137 it could not be repealed or amended except by the provision for the amendment or repeal being submitted to the electors. That has not been done.
The next point for us to consider, then, is whether the interpretation challenged here amounts to an amendment. Before we consider that, however, we must dispose of another matter. Section 15 of ordinance No. 12-137 provides as follows:
“For the purpose of adopting and making effective the provisions of this ordinance, the city manager shall have authority to make supplemental rules and regulations for the conduct and administration of said market and control, management of the business thereof not inconsistent with, and for giving effect to the provisions of this ordinance, and the market master shall enforce same in accordance with the provisions hereof.”
It will be noted that this section provides for the city manager making certain “supplemental rules and regulations” for the conduct of the market. It will also be noted that the interpretation set out in the answers filed in this action was made by the city commission. Had the interpretation contended for been made by the city manager we might have a different question here, since the section above referred to gives the city manager broad discretionary powers in making supplemental rules and regulations. Where an ordinance confers certain authority on the city manager it is the duty of that official to exercise the authority. The provision to which reference is made did not authorize the city manager to submit the question )f what supplementary rules should be made to the commission. It directed him to make such rules as he deemed necessary for the conduct of the market. This view is strengthened by the fact that it does not appear that the authority contained in section 14 was the basis for the action taken.
It is clear from the record in this case that the city authorities, the county attorney, and the different groups of wholesalers, all desired an interpretation of what the ordinance actually provided irrespective of any supplemental rules that the city manager might make under the authority conferred on him. To that end the hearing was had before the commission, with the result that the resolution providing for the interpretation was passed and also a resolution directing the city attorney to bring a declaratory-judgment action to secure a binding adjudication as to the proper interpretation of the ordinance. While the form this action has taken is injunction against the city officials, the various answers and cross petitions that have been noted heretofore in this opinion present a question of whether the interpretation placed on this ordinance is a correct one. The city officials are going to follow this interpretation unless they are enjoined from doing so. If it is the correct interpretation they should not be enjoined regardless of who made the interpretation in the first place. If it is an incorrect interpretation, they should be enjoined. Some time or another this court will have to interpret this ordinance. The judgment of the trial court has made this a proper action for such interpretation.
In the first place, the resolution of the city commission provided that the ordinance must be interpreted to mean that “the display or sale of produce at wholesale other than from trucks is prohibited by the ordinance, and as soon as the load brought in upon any truck is disposed of or the truck is removed the stall or stalls occupied by it must be vacated.” It will be noted that this interpretation is twofold. This presents two questions. To answer them we must examine ordinance No. 12-137.
Section 1 provided for the establishment of the market.
Section 2 provided that the city manager should cause the market to be divided into stalls of equal size, suitably spaced for the individual parking of trucks.
Section 3 divided the twenty-four hour day into two periods, called “market periods,” one to begin at midnight, and end at noon, and the other to begin at noon, and end at midnight. It provided that the rate to farmers, growers or producers selling their own produce should be twenty-five cents per load for each stall during each market period and for persons other than farmers, growers or producers selling produce not of their own, fifty cents per load for each stall for each market period. It then contained the following provision:
“Each stall or space must be vacated as soon as the load is disposed of, and the city reserves the right to re-rent the stall when vacated for the remainder of any market period.”
Section 4 provided for the appointment of a market master by the city manager.
Section 5 provided that the market master should exercise a general supervision over the market house, premises and appurtenances and enforce orders and assign and direct the placing of vehicles, stands and marketing privileges in conformity with the plan laid out so as to afford convenient access to patrons with the least possible interference; that he should take care that the market place and premises were kept clean and should prevent depositing of or accumulation of refuse or filth and should prevent exposure for sale in the market and order therefrom all blown, unsound, diseased and impure, unwholesome produce and foodstuffs offered for sale; that he should examine weights and measures of produce sold and enforce generally the provisions of the ordinance.
Section 6 provided that the market master should keep a daily record of all receipts and collections, and for his giving bond.
Section 7 provided that the north eighty feet of the market building was declared to be a retail market for carrying on retail business of country produce brought into the market in wagons, autos, trucks or-trailers and that all the remaining portion of the building south of that part of the market building was declared to be a wholesale market for the wholesaling of country produce brought into the market in wagons, autos, trucks or trailers.
Section 8 provided that the market should remain open during certain hours and for its being closed on certain other days.
Section 9 provided for certain restrictions as to the retailing in the market.
Section 10 provided for certain places allotted for wholesaling during certain months.
Section 11 provided as follows:
“The manager of the city of Wichita may cause to be built division walls between the stalls in that part of the market building provided in this ordinance to be used for retail trade or business and cause the same to be equipped for the display of produce, and when properly equipped there shall be made to the users and occupants for such equipped stalls, a charge which shall be payable in advance to the market master, as follows:
“(a) Farmers or producers selling their own raising, 50 cents per load for each stall or space during each market period.
“(b) For all other persons than farmers or producers selling produce not of their own raising $1 per load for each stall or space during each market period, and the south twenty feet (20') of the market building provided in this ordinance to be used for retail sales, shall be reserved for the use of farmers who wholesale from the vehicle in which they bring produce into the market.”
Section 12 exempted farmers, growers or producers from the provisions of certain ordinances with which we are not now concerned.
Section 13 set out certain regulations—
Regulation (a) prohibited the leaving of any discarded commodity or produce or other litter in the market place.
Regulation (b) forbade the sale of any unsound article.
Regulation (c) forbade domestic livestock being on the market place.
Regulation (d) provided that no obstructions such as barrels, boxes, cases, crates or such should be deposited or permitted in the passageways, avenue or aisles.
Regulation (e) provided as follows:
“Every person or firm having occupied a stall or space in said market for the time allotted may be required to move his vehicle and effects therefrom unless with the approval of the market master as not inconsistent with the regulations thereof, he shall pay the fixed market charge as for a newly commenced period of occupancy.”
Regulation (/) provided how bulk commodities should be sold.
Regulation (g) forbade loitering.
Regulation (h) forbade violent or turbulent conduct.
Regulation (i) provided that when a vehicle was so large that it could not be placed in one stall then the person in charge would be required to rent two stalls.
Regulation {j) provided no person should be permitted to use more than two stalls at any one time.
Regulation (k) provided that no lessee would be permitted to encroach upon an adjoining stall.
Regulation (l) provided as follows:
“All vehicles shall be placed in the stalls assigned immediately upon assignment in the manner directed by the market master.”
Regulation (m) forbade the sale of fish and fresh meat.
Regulation (n) forbade having sleeping quarters or cooking food in the market.
Regulation (o) provided that the lessee who desired to do both wholesale and retail business must have a stall on each side of the market.
Regulation (p) forbade leasing the stalls for selling anything other than food products.
Regulation (q) forbade any person retailing in the south end of the market, which was declared to be a wholesale market.
Regulation (r) provided as follows:
“No lessee or licensee shall be permitted to transfer from one stall or stalls to another stall or stalls without first releasing such stall or stalls occupied and having assigned to him a new stall or stalls and paying the rent therefor as herein provided.”
Section 14 of the ordinance gave the city manager authority to designate a certain room as a storeroom.
Section 15 has already been noted.
Section 16 provided a penalty for violation of the ordinance.
Section 17 provided that if any provision should be held unreason-, able or void it would not render the rest of the ordinance void.
Section 18 repealed all ordinances in conflict therewith.
It will be noted that in accordance with the generally accepted idea of a market, this ordinance treated the subject as though it was to be a place where food products were brought to the market in trucks and disposed of as quickly as possible with a minimum of overhead expense. The origin of market places lies in antiquity, but it is safe to say that the first ones were maintained at some particular spot in the ancient cities and provided a place where those who produced food could bring it for sale, and where they could be readily found by the citizen who wished to patronize them.' That such was the idea of this market is clear from the many references to trucks and trailers, the division of the market place into stalls and of the day into two market periods, the provision that a stall must be vacated as soon as a load was disposed of and many provisions of similar import. We do not find any provision, however, that in terms requires all produce to be sold from trucks. Whether such a provision is to be implied from the terms of the ordinance will require a consideration of the evidence in the case.
In the first place there was evidence as to the practice at this market when it was first organized and before the enactment of ordinance No. 12-137. This evidence was to the effect that users of the market must either leave produce on their truck or put it on the floor; that if they had several varieties of merchandise on their truck they would have to uncover,some of them and put some of them on the floor; that those who put produce on the floor would sometimes remove their truck from the building, and that was a common practice; that it was impossible to effectively display any load of produce and keep it entirely on the truck. This evidence was offered by plaintiff and was not contradicted.
After the market was first opened it closed for a while when the hours during which, it should be kept open were curtailed. It was opened- again after the enactment of ordinance No. 12-137. This ordinance appears to have been drawn with considerable care as to details. If the practice of displaying produce partly on the floor was as general as would appear from the evidence noted, then had the framers of ordinance No. 12-137 intended that produce should be sold from the truck only they would surely have included such a provision among the regulations that were a part of section 13 of the ordinance. On the other hand, the undisputed evidence that it would be impossible to effectively display a load of produce without unloading part of it is a persuasive circumstance against reading a provision to that effect into the ordinance.
Considerable light may be shed upon this question by a consideration of the actual practice at this market with which the interpretation we are considering sought to deal.
There was evidence there was an average of seventy-five or eighty users of the market during the month before the trial of this action; that the local growers partially unloaded, but very few totally unloaded, their produce; that about three or four out of forty totally unloaded and took their trucks out of the market; that about eighty percent of those who are not local growers totally unloaded and took their trucks out of the building; that wholesalers came from Arkansas, Oklahoma and Missouri; that one of these was a potato operator; that he rented two stalls for about three weeks, used Wichita for a division point, sold potatoes in Great Bend, Dodge City and other towns; that during this time two stalls in the market were continuously occupied by him; that except right at first he at no time removed from the stalls rented when any load had been sold; that when he got low on potatoes he would back a truck in and unload some more and he kept a large total of potatoes on hand in these stalls during that time; that he paid fifty cents per stall for each twelve hours, or, in other words, two dollars per day to carry on the wholesale potato business in this space; that they hauled these potatoes from Louisiana and from around Muskogee, Okla.; that some of the trucks in which he brought potatoes would haul fifteen tons, and some of his trucks were not so large; that there were probably three or four others who occupied space in the south 220 feet of the market and operated in the same manner as Mr. Hess; that Mr. Hess claimed he was a grower, but the market master had no way of knowing whether or not he was buying these potatoes or raising them to sell; that until this last regulation was made, men such as this one, and others, would come in and ask to rent two stalls or one stall, whichever they wanted; that the market master would fix out a receipt and they would pay their rent until noon or midnight. If until noon, sometimes after twelve o’clock he would make out a ticket and collect again, which would pay them until midnight. And then about 2:30 in the morning he would collect again, which would pay them until noon.. As a matter of fact, as far as Hess and the other salesmen who operated as he did were concerned, there never was any attempt to make them vacate the stalls when their load was sold because they never got it empty, it was never all sold. They might only leave one sack there, which would hold the stall. One tomato or one cantaloupe left in the stall would hold it.
This evidence brings us to the real question in this case. The market was not intended as a place where jobbers in produce could come and conduct a business with only an outlay of two dollars a day. It was a practice such as this that the interpretation of the ordinance with which we are concerned was intended'to correct. The defendants argue that the interpretation prohibiting the sale of produce other than from a truck is necessary to enable the market master to put a stop to this practice. This brings us to an examination of the second part of the interpretation. That was as follows:
“As soon as the load brought in upon any truck is disposed of or the truck is removed, the stall or stalls occupied by it must be vacated.”
Bearing on this interpretation is the provision of section 3 of the ordinance, which has already been quoted in this opinion. That provision prohibits in plain terms the practice such as that of the potato dealer described in the evidence. Clearly the intent of that provision was that only one truck load of produce could be sold during the time for which one market period was paid. The practice of leaving a sack of potatoes in the stall just to hold it was a subterfuge to evade the terms of the ordinance. The payment of the fee provided for a market period gave the lessee the right to dispose of one load of produce therein during that market period and no more. Regulation (e) of section 13 has already been quoted in this opinion. Under the clear provisions of that regulation when a dealer such as Hess had sold one truckload he should be required to move his vehicle and effects therefrom unless he gained the approval of the market master and paid for a new market period. To the-same general effect is regulation (r) of section 13, which has already been quoted. We are unable, however, to find any provision that supports the interpretation that “as soon as . . . the truck is removed the stall or stalls occupied by it must be vacated.” We see no provision in the ■ ordinance which prohibits a truck from being unloaded and then being driven away so long as a new market period is paid for when the load is disposed of. We have considered the question of whether the interpretation about selling from trucks and the one about driving the truck away is necessary in order to enforce the one about selling only one load during the time for which one market fee was paid. It does not appear to us that they are necessary. With so few users’of the market following the practice, the market'master should be able to handle the situation. It follows that while the judgment of the trial court enjoining the enforcement of the interpretation of the ordinance contended for by the city was correct, the ordinance is interpreted to mean that the payment of the fee for a market period by a wholesaler gives him the right to occupy a stall or stalls until the load he brought to market is sold, and when that load is sold he must either vacate and get the approval of the market master to occupy a n'ew stall or pay again the market-period fee for the stall or stalls he has been occupying.
The next question is that raised in the second cause of action. In this cause of action the trial court enjoined the enforcement of ordinance No. 12-158. This ordinance provided in general as follows:
Section 1 provided who should be considered wholesale dealers in fruits, berries, vegetables or melons.
Section 2 provided/that no person should engage in such business until he should have paid the license fee, secured the license, and furnished the bond provided.
Section 3 provided • for one wishing to engage in such business to furnish certain information; that he should file with the city clerk a surety bond, or a private bond, provided that he deposit with the city treasurer $2,000 in bonds of the United States, the state of Kansas or of the city of Wichita. It was provided that this bond should be conditioned that the dealer would pay all liability devolving upon him for which he might become liable because of misrepresentation or fraud and that if the dealer could show that he owned real estate of the value of $5,000 in Wichita he could sign his own bond.
Section 4 provided a license fee of ten dollars and five dollars for each additional truck.
Section 5 provided for the issuance of a license containing certain information.
Section 6 provided that the license would authorize the holder to sell only the produce actually owned by him unless he should have secured a license as a commission merchant.
Section 7 provided for inspection by the city health officer.
Section 8 provided that no produce should be offered for sale except at the place described in the license.
Section 9 provided a penalty for violation of the ordinance. It will be noted that the above ordinance covers the field of regulation of wholesale dealing in fruits, berries, vegetables, melons and other produce of like nature.
The attack leveled at this ordinance by plaintiff is, first, that sections 2 and 3 of it constitute an amendment to and an alteration of ordinance No. 12-137. In connection with this argument we must note that a provision of section 3 of that ordinance is as follows:
“All persons selling produce shall comply with all the requirements relating to license required by other ordinances of the city of Wichita now in effect and not hereby repealed or inconsistent herewith.”
This provision leads us to examine what ordinances relating to license requirements were in effect when ordinance No. 12-137 was enacted. Ordinances 11-524 and 11-607 were both in effect. In ordinance 11-524, section 2 prohibited any person from selling by wholesale or retail “berries, vegetables, melons or other produce” without having procured a license. Section 3 provided for the obtaining of a license or furnishing certain information and giving a bond for $500. Section 4 prohibited any grower from selling produce in the city to any hotel for the purpose of resale without registering with the city clerk and paying a fee of one dollar. Section 5 provided a license fee of ten dollars for each person and five dollars for each additional truck. The ordinance contained additional sections with which we are not concerned here. Ordinance 11-607 provided in the first section for the amendment of the first section of ordinance No. 11-524. This section also contained, among other things, the following provision:
“Provided further, that any wholesale producer dealer, as hereinafter defined, who sells, offers for sale or exposes for sale produce only at the public wholesale produce market operated by the city of Wichita, shall not be required to comply with sections 2 and 3 of this ordinance relating to the securing of a license, the furnishing of a bond and the designation of an established place of business.”
It will thus be seen that when the electors of Wichita adopted ordinance No. 12-137 with the provision in section 3, that has just been quoted, it was intended that the city governing body should not adopt any ordinances with reference to business conducted at the market place that would have the effect of changing the law as it existed at the time the ordinance was adopted. Our question then is whether the provisions of G. S. 1935,12-107, take away from the city governing body the power to do that. In Stetson v. Seattle, 74 Wash. 606, 134 Pac. 494, an ordinance had been adopted by the electors of the city. This ordinance fixed the hours which firemen should work. Thereafter the city council passed an ordinance providing for eight-hour shifts. It was contended that the second ordinance was valid because it was not inconsistent with the ordinance upon which the people had voted. It is not clear whether the charter of the city, which provided for referendum ordinances, prohibited the amendment or repeal of an ordinance in as plain terms as does the statute we are considering. In any event, the court said:
“We think the charter, taken as a whole, must be held to mean that a referendum ordinance cannot be altered, amended or repealed by any less authority than that which called it into being. We do not question the right of the council to pass any amendatory or repealing ordinance as the charter is now framed, but we believe that it should be referred to the people under the simple referendum.” (p. 612.)
The court further held:
“In considering laws passed by the direct vote of the people, a court should not presume anything that would negative the natural inferences that may be drawn from the act itself. The ordinance provides that there shall be two platoons, and fixed the hours that each platoon shall work. We would have to go beyond the terms of the law and resort to technical reasoning to follow counsel in his present contention. It is evident that the public considered the hours fixed in the ordinance, which are ten for day service and fourteen for night service. We find no merit in this contention.” (p. 613.)
In Allen v. Hollingsworth, 246 Ky. 812, 56 S. W. 2d 530, in considering a similar question, the court said:
“Looking for specific authority in relating to referendum acts of general operation or concerning municipal legislation along other lines, it is found that in order to render the plan of referendum effective, the legislative power of the city council is commonly restricted by the express provision that no ordinance or amendment to an ordinance adopted by the electors shall be repealed or amended by the council. ‘In such cases an ordinance or amendment thereto adopted by a vote of the electorate can be repealed or amended only in the same manner.’ (McQuillen on Municipal Corporations, sec. 865.) Such specific limitations on the power of the board of commissioners is not made by the statute under consideration, but we think the restriction is there by implication. Such is the rationale of the decisions we have cited. The fixing of salaries was no less the act of the people than the establishment of the form of government by the same vote.” (p. 820.)
See, also, State, ex rel. Knez, v. Seattle, 176 Wash. 283, 28 P. 2d 1020.
The conclusion is inescapable that the electors, when they adopted ordinance No. 12-137, intended that it should go into effect and be construed together with ordinance Nos. 11-524 and 11-607. Ordinance No. 12-158 provided additional burdens and regulations for the wholesaling of berries, vegetables, fruits and other produce beyond that contemplated by the electors when ordinance No. 12-137 was adopted and has the effect of amending that ordinance.
It follows that the judgment of the trial court on the first cause of action is modified so that the defendants are not to be enjoined from interpreting ordinance No. 12-137 to mean that as soon as the load brought upon any truck is disposed of the stall or stalls occupied by it must be vacated, and the judgment of the trial court on the second cause of action is affirmed. | [
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|
The opinion of the court was delivered by
Harvey, J.:
In previous litigation between the parties Bocook had recovered judgment against the Roglers in the district court. They appealed, and in each of two cases gave a supersedeas bond. The judgments of the trial court were affirmed. (Rogler v. Bocook, 146 Kan. 933, 73 P. 2d 1100, and Rogler v. Bocook, 148 Kan. 858, 84 P. 2d 893.) This litigation involved a certain residence property in Cottonwood Falls, and one of them was an action for forcible detention originally brought before a justice of the peace. On January 8,1939, after this court's decision in the last of the cases above mentioned and Bocook’s title and.right to the possession of the residence property had been determined, Bocook had a writ of restitution issued out of the justice of the peace court to be put into possession of the property. On February 9, 1939, the sheriff went to the residence to place Bocook in possession thereof. The Roglers wanted a few days’ time to get a place to move, whereupon they and Bocook entered into a written agreement, the substance of which was that Bocook would ask the sheriff not to serve the writ of restitution before February 18, which was the last day he would have to serve it, in consideration of which the Roglers agreed to vacate the premises by that date and if not Bocook could have the sheriff proceed to place him in possession. The Roglers surrendered possession of the property before the 18th.
These two actions were by Bocook against the Roglers and the sureties on their respective supersedeas bonds. The answers contained a paragraph setting up the agreement made between Bocook and the Roglers February 9, 1939, and alleged that by virtue of it the sureties on the supersedeas bonds were released. The trial court sustained plaintiff’s demurrer to this paragraph of the answers. The cases proceeded to trial, resulting in a judgment for plaintiff of $136 in one case and $170 in the other. The Roglers have appealed. The cases have been consolidated in this court because the legal question presented in each of them is identical. No contention is made that the judgments in favor of Bocook .in the two cases duplicate each other. No question is raised as to the amount of the recovery.
Appellants’ sole contention is that the sureties on the supersedeas bonds are released because of the agreement entered into between Bocook and the Roglers on February 9,1939. Counsel for appellants cite the authorities in support of the rule that an agreement between the maker and the payee of the note extending the time for the payment without the knowledge or consent of a noncompensated surety releases the surety, and the application of the doctrine to some other instrument. We think these principles not applicable here. Mere indulgence of time does not have the effect contended for by appellants. (Ray v. Brenner, 12 Kan. 105; Hall v. First National Bank, 5 Kan. App. 493; Halderman v. Woodward, Assignee, &c., 22 Kan. 734, 741; Hier v. Harpster, 76 Kan. 1, 4, 90 Pac. 817.) In Tackett v. Guaranty Co., 112 Kan. 500, 212 Pac. 357, plaintiff had recovered a judgment against the railway company for $15,000. Defendant took steps to appeal and gave a supersedeas bond. Thereafter plaintiff and defendant agreed that the appeal would not be perfected and that, defendant should pay the judgment in install ments. In pursuance of this agreement payments were made until the judgment was reduced to $9,500, at which time the railway company became insolvent and ceased payment. In an action by the plaintiff on the supersedeas bond the surety argued that it had been released by the agreement respecting payment in installments. This contention was denied and the surety held for the balance due on the judgment.
We think the court ruled correctly in sustaining the demurrer to that portion of the answer setting up as a defense the agreement made between the parties on February 9,1939.
The judgments of the court below are affirmed. | [
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The opinion of the court was delivered by
Wedell, J.:
This was an action to recover damages to personalty in plaintiff’s- shoe store and incidental damages resulting from the ignition of natural gas which it was alleged was occasioned by defective gas lines owned by two commercial gas companies in the ■city of Wichita. The defendants, the Gas Service Company, and the Consolidated Gas Utilities Corporation, each serviced certain occupants of the building in which plaintiff’s store was located. Separate demurrers to plaintiff’s evidence were interposed by defendants, but only the demurrer of the Gas Service Company was sustained. The other defendant has appealed.
The first complaint of the Consolidated Gas Utilities Corporation, to which we shall hereafter refer as the defendant, concerns the ruling on its demurrer. It is, of course, elementary that in ruling on a demurrer to evidence courts consider only evidence favorable to the party adducing it, give full credence thereto, and construe all evidence and reasonable inferences to be drawn therefrom in the light most favorable to the party adducing it. (Meneley v. Montgomery, 145 Kan. 109, 64 P. 2d 550; State v. Linville, 150 Kan. 617, 618, 95 P. 2d 332; Trezise v. State Highway Comm., 150 Kan. 845, 96 P. 2d 637.) Applying these principles, we shall review plaintiff’s evidence, which was, in substance, as follows:
Plaintiff operated a shoe store in the city of Wichita, on the ground floor of a building which faced the south. The building was approximately 125 feet long and 25 feet wide. The rear twelve or twelve and one-half feet of the building was used for a storeroom, which was separated from the front portion by a wall which did not extend to the ceiling. There was no basement under the building, and the gas furnace which heated plaintiff’s portion of the building was located in about the center of the storeroom. The storeroom had a wooden floor and there were some cracks in the floor. There was an air space of approximately a few feet between the ground and the floor. In the northeast corner of the storeroom there was located a small washroom. The gas meters of both defendants were attached to the wall of the washroom. The defendant, on the date of the fire and for a period prior thereto, had not sold gas to the plaintiff, but was servicing other occupants on the second floor. The Gas Service Company was servicing plaintiff’s furnace at the time of the fire. The main service lines of both gas companies were buried in the ground underneath the pavement in the alley which ran east and west immediately north of the building. The alley was approximately twenty feet in width. Immediately adjacent to the north of the building was a cement walk approximately two feet in width. The service lines of both gas companies were iron pipes of about an inch or an inch and a quarter in diameter. Both lines entered the building from the north. The Gas Service Company’s line entered the building above plaintiff’s ground floor. Defendant’s line entered the building below that floor. The service line of the Gas Service Company was buried in the alley to a depth of approximately fifteen inches. The service line of the defendant was three or four inches lower. The lines were approximately twelve to fourteen inches apart.
The fire occurred on Saturday, January 16, 1937, between three and four-thirty o’clock -in the afternoon. There was no explosion. The gas simply ignited and the fire and damage ensued. Plaintiff’s store had become cold at the time above indicated and he went to the storeroom to light the furnace. He discovered the furnace had gone out. He turned off the gas and waited for some period of time for the gas in the furnace, if any, to get out of the furnace before- he tried to light it. He then struck a match to light the furnace and shortly thereafter noticed some small flames“coming up through the openings in the floor northeast of the furnace and from five to ten feet from where he was standing. He ran into the washroom for water to put out the fire, and while in the washroom noticed a fire coming through the floor right at the pipes which ran to the meters. He poured the water on the last-mentioned flames and got* another bucket of water to extinguish the flames outside of the washroom. When he came out of the washroom he observed another flame which was coming from underneath the floor molding on the west side of the building. He next observed the flames coming through the floor at approximately the center of the storeroom, which was near the furnace. The fire department was called and arrived within about ten minutes. By that time the flames were coming through the entire floor. As previously stated, the service line of the defendant came into the building under the wooden floor. The hole in the wall through which its pipe extended had not been cemented, with the result that an opening remained in the wall around the pipe. Tests for gas were made in the northeast corner of the room about two hours after the fire with a J. W. combustible gas indicator. The tests disclosed a small percent of gas above the floor and a combustible mixture of air and gas below the floor where defendant’s service pipe entered. The same afternoon the alley pavement was torn up in part by the Gas Service Company, and a test of its service line disclosed no leaks therein. The following Monday that company also made tests of the connection of its service line with its main line in the alley, of its meter, and of its house line from the meter to the furnace. No leaks were discovered in its equipment. On Monday gas could be heard escaping from defendant’s pipes, after the pavement had been lifted but before the pipes were uncovered. At that time the indicator disclosed an explosive mixture near a point at which a leak was discovered in defendant’s line on the following Wednesday. No gas lines entered the building except the lines owned by the two companies mentioned. The only tests made by defendant of its lines for escaping gas, so far as the evidence disclosed, were made on Wednesday following the fire on Saturday. When it uncovered its service line gas could be heard escaping therefrom. The pressure of the gas was sufficient to blow up dust around the leaks. The dirt around defendant’s service pipe was grayish-white in color, dry and pulverized. One hole in defendant’s service pipe was observed at a point about 18 to 24 inches north Of the building. The size of the holes in defendant’s pipe were variously described as being the size of a pencil and as being about three-sixteenths of an inch in diameter. Some of the witnesses testified they observed one hole in the pipe, while others testified there were two holes. Defendant’s service pipe was also found to be old, badly rusted, corroded and pitted. The dry condition of the dirt around its pipe extended as far as the dirt was excavated toward the building. The evidence disclosed dry dirt was less resistent to the flow of gas than wet dirt, and that gas followed the line of least resistance. There was evidence the character of the escaping gas was such that it might have been ignited from the spark from the match lighted by plaintiff. A plumber testified that twenty years would be the limit of the life of such pipe in that type of soil and that he would not expect it to corrode and get holes in it in less than five, six or seven years.
In support of defendant’s contention its demurrer should have been sustained it urges the evidence was insufficient in the following particulars: There was no evidence the agency which caused the fire was natural gas; this was a circumstantial-evidence case and plaintiff’s evidence did not exclude other possible agencies which might have caused the fire; the evidence failed to disclose defendant had notice or knowledge of leaks in its line; there was no proof defendant had failed to inspect its lines.
We shall treat the contentions in the order stated. It is true the petition charged it was escape of natural gas from defendant’s line that caused the fire. The lawsuit was clearly tried upon the theory it was the gas, irrespective of its name, which leaked from defendant’s line that caused the fire. In plaintiff’s proof he eliminated the source of gas from leaks in the line of the only other gas company which serviced the building. It is also true plaintiff’s witnesses, except in rebuttal testimony, did not expressly label the gas escaping from defendant’s line as natural gas. They, of course, simply called it gas. Manifestly a leak in defendant’s gas lines would scarcely permit the leakage of any other kind of gas than the gas defendant was delivering through its pipes, which was natural gas. Witnesses detected the odor of that gas, heard it escaping from defendant’s line, and gas at a point where defendant’s line entered the building under the floor, according to valid tests, was combustible. Flames were seen in close proximity to that very point in the building. Moreover, this was defendant’s own line in which leaks existed, and it was not incumbent upon plaintiff to prove those leaks were actually in that portion of defendant’s line which was within the building. It was sufficient to show the leaks were at a point in close proximity to the wall of the building. (Koch v. Southern Cities Distributing Co. et al., 18 La. App. 664, 138 So. 178.) Proof was therefore not lacking that the presence of natural gas was the agency which probably occasioned the fire. Moreover, we also note that defendant, in a requested instruction, repeatedly employed the term “natural gas.” The first contention touching the ruling on the demurrer is not persuasive.
What about the second contention? It is true plaintiff attempted to establish the cause of the fire by circumstantial evidence. If such evidence fairly authorized the inference of negligence it was sufficient. (Hashman v. Gas Co., 83 Kan. 328, 111 Pac. 468; Cracraft v. Wichita Gas Co., 127 Kan. 741, 742, 275 Pac. 164.) This, however, was not a criminal action, but a civil action, and in order to sustain a verdict in a civil case circumstantial evidence need not rise to that degree of certainty which will exclude every reasonable conclusion other than that arrived at by the jury. (Railroad Co. v. Perry, 65 Kan. 792, 70 Pac. 876; Railway Co. v. Wood, 66 Kan. 613, 72 Pac. 215; Hashman v. Gas Co., 83 Kan. 328, 329, 111 Pac. 468; Cracraft v. Wichita Gas Co., 127 Kan. 741, 742, 275 Pac. 164; Asche v. Mathews, 136 Kan. 740, 18 P. 2d 177; Noller v. Aetna Life Ins. Co., 142 Kan. 35, 38, 46 P. 2d 22.) In Railroad Co. v. Perry it was held:
“The fact that soon after the passing of an engine a fire starts near a railway track in an enclosed field covered at the time with a growth of highly inflammable vegetation, and travels before a high wind in a direction away from the track, is sufficient to warrant a jury in finding that the fire was caused by the operation of the railroad, without its appearing that the engine emitted sparks or live cinders or was put to special exertion, and without further proof excluding other possible origins.” (Syl. ¶ 1.)
In the instant case the only other conclusion the jury might have reached as to the cause of the fire, insofar as the record discloses, was gas from the lines of the Gas Service Company, and that source was completely eliminated by plaintiff’s evidence. Plaintiff’s evi dence, and reasonable inferences to be drawn therefrom, definitely disclosed a strong probability the fire was occasioned by leaks from defendant’s line. Having definitely succeeded in his proof to that extent, plaintiff was under no duty to eliminate every other imaginary agency which possibly might have caused or contributed to the fire and resulting damage. Defendant later had the privilege of showing, if he desired and was able to do so, that some other agency was the efficient or procuring cause of the fire, but such attempt was not made.
Touching the demurrer defendant next, in substance, contends liability of a distributor of natural gas can attach only by reason of negligence on its part after it has notice or knowledge of the existence of defects in its lines. In support of that contention it cites Hashman v. Gas Company, 83 Kan. 328, 111 Pac. 468; Luengene v. Power Co., 86 Kan. 866, 122 Pac. 1032; Basnett v. Power Co., 99 Kan. 716, 163 Pac. 161; Swayzee v. City of Augusta, 108 Kan. 785, 197 Pac. 208, 113 Kan. 658, 216 Pac. 265; Webb v. City of Chanute, 118 Kan. 505, 235 Pac. 838; Schoen v. Arkansas Valley Gas Co., 125 Kan. 206, 263 Pac. 1079; Cracraft v. Wichita Gas Co., 126 Kan. 775, 271 Pac. 273; rehearing, 127 Kan. 741, 275 Pac. 164; Atkinson v. Wichita Gas Co., 136 Kan. 854, 18 P. 2d 127; House v. Wichita Gas Co., 137 Kan. 332, 20 P. 2d 479; Carlisle v. Union Public Ser. Co., 137 Kan. 636, 21 P. 2d 395; Miller v. Wichita Gas Co., 139 Kan. 729, 33 P. 2d 130; Baker v. Kansas Power & Light Co., 146 Kan. 258, 69 P. 2d 731. Those decisions do not support the broad contention urged by defendant, nor do we now subscribe to such a doctrine. It is true that in cases where notice, actual or constructive, was involved, the language employed in opinions similar to that in the Craeraft case, supra, referred to the negligence as commencing only after notice of a defective condition. That was the particular negligence charged and specifically found by the jury in those particular cases. The Craeraft case or other cases cited, however, are not authority for the broad doctrine that distributors of a commodity as dangerous as natural gas have no duty whatsoever to protect consumers or the public generally until after they have notice or knowledge of the dangerous condition. If notice of leaks, actual or constructive, was the sole test of liability, then distributors of a highly dangerous commodity, such as natural gas, would be completely exonerated from all negligence in discovering a highly dangerous condition which they themselves had created by installing defective equipment, and of which fact, in the exercise of proper diligence and care, they should have been aware. Were notice the only test of liability, distributors of such commodities would likewise be under' no duty or obligation whatsoever to exercise proper diligence in the inspection of, or in the maintenance of, their own facilities of transportation after the original installation thereof. Manifestly that cannot be, and it is not, the rule in this nor in many other jurisdictions. In Hashman v. Gas Co., 83 Kan. 328, 111 Pac. 468, this court said:
“It is contended that if defects or leaks existed there was no proof that appellant had notice of them. Natural gas, as all know, is inflammable and explosive in a high degree — a very dangerous agency — and those who transport it are held to the exercise of great care; they are required to lay and maintain pipes that are safe and secure for transporting gas, and carefully to overlook and inspect the pipes in order to keep them in a safe condition, and to detect and repair any leaks or defects in them." (p. 331.)' Italics ours.)
In Cramm v. Hutchinson Gas Co., 130 Kan. 853, 288 Pac. 599, it was held:
“A gas company furnishing gas in residences for domestic use is guilty of negligence when it fails to inspect its meters and pipes and see that there is no leakage of gas therefrom.” (Syl.)
See, also, Miller v. Wichita Gas Co., 139 Kan. 729, 732, 33 P. 2d 130; Brown v. Kansas Natural Gas Co., 299 Fed. 463; Koch v. Southern Cities Distributing Co. et al., 18 La. App. 664; Natural Gas Co. v. Church, 126 Ohio St. 140; Vaillancourt v. Company, 88 N. H. 95; Springfield Gas Co. v. Herman, 46 Ohio App. 309; Groff v. Gas Co., 110 W. Va. 54.
In 3 Willis, Thornton Oil and Gas, § 1093, it is said:
“A gas company is chargeable with notice of the fact that gas pipes and mains are liable to rust and decay, and by reason of such rusting or decaying permit gas to escape. . . . Being thus chargeable, a duty devolves upon gas companies to inspect their pipes and mains and the connections therewith. It must use reasonable care in making these inspections; and if a leak could have been discovered and prevented by such an inspection, that fact of itself will be sufficient to charge the company with negligence if it fail to make the inspection. And this is true of a company that purchases the plant of another company, with respect to such plant, for its liability is not dependent on its knowledge of the pipes’ defective condition, or escaping’gas; but upon its care in keeping the pipes in a reasonably safe condition, and using them so as not unnecessarily to injure persons and their property.” (pp. 1491, 1492.)
In Brown v. Kansas Natural Gas Co., supra, it was said:
“Defendant argues in effect that as its pipe had been in the ground for seventeen years without leaking, it had the right to assume that it would so continue until actual notice of deterioration or leak was brought to its attention. We cannot subscribe to any such doctrine. On the contrary, the evidence made it, after the lapse of such a time, an issue of fact whether defendant was negligent if it failed to discover that its pipe was corroded and rusted, and liable to such leaks as were actually disclosed by the tests made after the accident. (Dow v. Winnipesaukee G. Co., 69 N. H. 312, 41 Atl. 288, 42 L. R. A. 569; 76 Am. St. Rep. 173; 28 C. J. 593.)” (p. 466.)
In the instant case plaintiff attempted to prove defendant had previously received actual notice of leaks in its line. The proffered evidence was excluded. The correctness of that ruling has not been brought here for review. No direct notice to defendant is therefore involved. Plaintiff contends an admission by counsel for defendant in the course of the trial discloses defendant’s service line had been laid 25 or 30 years ago. Counsel for defendant deny the admission went that far. The record is not sufficiently clear as to the extent of the admission and we shall not speculate concerning it. Plaintiff also directs our attention to the testimony of one of his witnesses who testified that the lines of a gas company, which may have been defendant’s predecessor, were laid 25 to 30 years ago. A careful review of the testimony does not permit us to say with assurance such testimony was intended to refer to service pipes. It may have been intended to refer only to main lines. A plumber did, however, testify that the kind of service pipe used by defendant in the instant case would not be filled with holes in that type of ground in less than five, six or seven years, and that the maximum life of the pipe in that kind of ground was twenty years. The condition of this particular service pipe was fully described and no speculation concerning its condition is necessary. It was clearly very bad and in nowise fit to be used for transporting an agency as dangerous as natural gas. Construing the plumber’s testimony in the light most favorable to plaintiff, as of course it must be on demurrer, the triers of fact had the right to believe this service pipe, if new when laid, had been laid longer than five, six or seven years or that it was old pipe when first laid. On the other hand, the inference is warranted .that if the service pipe was of the kind and character which would last the maximum period, then and in that event it had lain in the ground twenty years or more. Under the circumstances we think the trial court properly held the question of proper diligence on defendant’s part in inspecting and maintaining its pipe was a question for ihe jury.
Defendant, however, insists no liability can attach unless it reasonably can be anticipated that damages may result. That particular contention undoubtedly is sound, but it does not follow that defendant is under no duty to make diligent and adequate inspection in order to ascertain whether leaks in its lines reasonably may be anticipated. In Koch v. Southern Cities Distributing Co. et al., 18 La. App. 664, it was held:
“Natural gas distributor is liable for injury resulting from failure to exercise degree of care commensurate to danger involved.” (Syl. If 8.)
Defendant finally urges there was no evidence defendant had not inspected its lines and pipes. It is true there was no direct evidence to that effect. Neither was there evidence its lines or service pipes had been inspected. In view of the very bad condition of the pipe, the inference was warranted that if defendant, in fact, ever tested this pipe, it must have done so entirely too long ago to have been of any practical benefit on January 16, 1937, the date of the fire, or that if it inspected the pipe recently the inspection must have been superficial and entirely inadequate. The evidence was sufficient to take the case to the jury on the questions of diligent and adequate inspection and proper maintenance of defendant’s lines.
Defendant next contends some of the instructions were erroneous and that the instructions as a whole cannot be reconciled. It asserts some of the instructions made defendant’s duty to prevent leaks absolute, and made defendant an insurer of the safety of its mains and service pipes, regardless of circumstances. Defendant concedes other instructions properly advised the jury that defendant was not an insurer, and that before plaintiff could recover it would be necessary to find defendant guilty of negligence in some particular as charged in the petition. Plaintiff asserts the specific objections now made were not made to the trial court. From the record it does not affirmatively appear the particular complaints now made were called to the trial court’s attention when the instructions were given or on motion for a new trial, but we prefer, in the instant case, to pass that point also. Defendant’s complaint of the instructions, assuming it was made, might be somewhat troublesome, except for the fact that the jury by its special findings made the error, if such it was, nonprejudicial. The jury did not find defendant liable as an insurer of the safety of its lines, but expressly found the fire was caused by gas from defendant’s line or pipe, and further expressly found that defendant was guilty of one of the grounds of negligence substantially as charged in the petition. That finding was:
“We the jury find that the defendant was negligent in that they did not and have not properly and diligently inspected their lines running into plaintiff’s store.” (Italics ours.)
Where error complained of does not prejudice the substantial rights of a party it must be disregarded (G. S. 1935, 60-3317), and the rule is, of course, applicable where errors or defects in instructions become nonprejudicial by reason of special findings. (Head v. Dyson, 31 Kan. 74, 76, 1 Pac. 258; Forbes v. Railway Co., 101 Kan. 477, 168 Pac. 314.)
The last complaint pertains to the subject of damages. The complaint involves the various amounts allowed as damages to plaintiff’s stock of merchandise, which consisted mainly of shoes, and involves also amounts allowed for various and sundry articles of personal property used in the conduct of the shoe-store business. It involves, also, prospective profits over a period of about seven days during which the store was closed or partially closed. Two suits of clothes which happened to be in the store were also burned. The principal objection to numerous items, other than the stock of merchandise, was that plaintiff’s evidence to establish value was not competent, and that some of it constituted hearsay. A careful review of the evidence has led us to conclude there was nothing sufficiently serious in the admission of testimony to warrant a new trial. Plaintiff had been engaged in the shoe business for a great many years. He was conversant with the value of the various articles which formed a part of and were necessary to his business. It was his own property and his testimony concerning its value was competent. To be sure, the persuasiveness of the testimony touching its value was for the jury, but that fact did not destroy its competency. (Brenneisen v. Phillips, 142 Kan. 98, 45 P. 2d 867.)
It is true there was certain conflict between plaintiff’s own evidence and the testimony of some of his witnesses concerning the damage to his stock of merchandise. It was the province of the jury to resolve the conflict. There was evidence to support the amount allowed as damages to his stock, and that finding cannot be disturbed.
A small remittitur was offered by plaintiff on two items. The court accepted the remittitur, and judgment was rendered accordingly. The technical error as to those two items was, therefore, cured.
The judgment should be affirmed. It.is so ordered. | [
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The opinion of the court was delivered by
Horton, C. J.:
Plaintiff in error brought his action in replevin against defendant in error, in the district court of Osage county, to obtain possession of a horse alleged to have been wrongfully detained by him. The summons and writ of replevin were directed to and served by the coroner of Osage county. The defendant filed no answer, but made a special appearance and asked the court to strike the pretended summons and the pretended writ of replevin from the files, for the reason they were not directed to or served by the proper officer, and for want of any legal service on the defendant. The plaintiff, pending this motion, interposed a request to be allowed to produce and offer testimony to show that a certain affidavit filed at the institution of the action was made by the attorney of the plaintiff. This the court refused to allow. The plaintiff then asked leave to amend the affidavit by inserting the words, “that he is attorney for the said plaintiff.” This was also refused. The plaintiff then asked leave to file an amended affidavit, which amended affidavit was then offered to the court. This again the court refused to allow. The court granted the motion of the defendant, and struck the summons and writ of replevin from the files, and set aside the service, and entered judgment of dismissal of the action, with costs taxed against the plaintiff. All of these rulings were over the objection of the plaintiff, and the points are all saved by proper exceptions. The affidavit filed at the commencement of the case is as follows:
(Title, and Venue.) “ S. B. Bradford, being first duly sworn, deposeth and says, that M. C. Fleak, the defendant above named, at the time and before the commencement of this action was a deputy-sheriff of Osage county, Kansas, and in said capacity as deputy-sheriff, took the said property de-. scribed in the petition herewith filed.”. (Name, and Jurat.)
Sections 118 and 119, ch. 25, Gen. Stat., provide in sub stance, that the clerk, in cases pending in district court, shall direct the original or other process to the coroner, who shall execute the same in like manner as the sheriff might or ought to have done, when the sheriff shall be a party to the case, or whenever any party to the case, his agent, or attorney, shall make and file with the clerk an affidavit stating that he believes that the sheriff will not, by reason of either partiality, prejudice, consanguinity, or interest, faithfully perform his duties in any suit commenced, or about to be commenced in said court. Sec. 701 of the civil code further provides: “An order for a provisional remedy, or any other process in an action wherein the sheriff is a party, or is interested, shall be directed to the coroner.” Construing these various sections together, we are of the opinion the district court committed error in refusing the amendments, and in dismissing the case. The sheriff was responsible for the official acts of his deputy, and liable on his official bond for his misconduct. (Sec. 103, ch. 25, Gen. Stat.) Hence, according to the statements of the affidavit, the sheriff was interested. Therefore the summons and writ were not irregularly served. In the absence of any allegation in the petition that the sheriff was interested, the affidavit should have been made by the plaintiff, his agent, or attorney, and this fact should have appeared in the affidavit; but under the provisions of the code for amendments of any process, or proceeding, in the furtherance of justice, the court below should have permitted the affidavit to have been amended to show that at the time the same was made S. B. Bradford was the attorney of the plaintiff; or the court might have permitted'the amended affidavit, which was presented, to have been filed. As the affidavit was actually made by the attorney of the plaintiff, and not being fatally defective, an opportunity should have been given to rectify the defect, or rather its informality, when the attention of the court was called to it. Robinson v. Burton, 5 Kas. 293; Forman v. Carter, 9 Kas. 674. Sec. 701 of the code does not provide for an affidavit; but it would be inconsistent with the other provisions of the code to permit the clerk in such cases to act upon his own knowledge, or verbal information received from others. If an affidavit is to be filed, it should of course, be made by some one interested, and not by a mere volunteer.
The judgment of the district court will be reversed, and the case remanded with instructions to permit the affidavit to be amended; and when amended, to overrule the motion to set aside the service and strike the writ and summons from the files.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The defendant in error George D. Miller had filed declaratory statement for, and was in possession of, a tract of land in Marion county, under the congressional preemption act of 4th September 1841. With the knowledge and consent of his wife, the other defendant in error, he agreed with Daniel Ainsworth, one of the plaintiffs in error, and one George M. Berdine, td “prove up” and enter said land, and then convey the same to the said Berdine, he (Berdine) agreeing to advance the purchase-money ($400) to the government, and then pay Miller $1,000. In pursuance of said agreement Miller “proved up,” taking the oath required by the 13th section of the preemption act. Berdine paid the $400 entry-money, about $350 of which he obtained by drawing a check on a bank in Indiana, and getting Ainsworth to indorse it, which check was protested, and subsequently paid by Ainsworth. After making the entry, Miller and his wife' conveyed the land to Berdine in pursuance of the previous agreement, but Berdine, instead of paying the remaining $1,000 of the purchase price, gave to Miller what he represented to be an U. S. bond for $1,000, and which Miller believed to be genuine, but which was in fact a Mexican bond for $1,000. Upon the discovery of that fact, Miller demanded of Berdine the payment of the $1,000 in money, according to the original agreement, but the matter was finally adjusted by Miller returning the Mexican bond to Berdine, and taking a mortgage for' $1,000 upon the land, to secure the payment of that amount in ten days, with an agreement that it should not be recorded until the ten days had expired without payment. It was never paid. Prior to the giving of the mortgage, Berdine conveyed the land to Ainsworth, who then conveyed' it to Stone, a resident of England, in consideration of a preexisting debt. Ainsworth, at the time of this conveyance, was Stone’s agent for the purchase and sale of lands, the renting of property, etc. Stone accepted the conveyance. The deed to him was recorded by Ainsworth, but was held by him as his agent, to await the issuance of the patent before delivery.
Upon discovering that these conveyances had been made, Miller and wife brought suit against Berdine, Ainsworth and Stone, to set aside the same, charging fraud against all of them, but without offering to-return the $400 entry-money. Berdine and Stone were served by publication, but Berdine did not answer. Ainsworth and Stone filed separate answers, each denying the fraud imputed, and asserting their bona fides, and also alleging the fact of the oath in accordance with the 13th section of the preemption act.
'Objection was made to the introduction of any evidence, under the petition, because it did not state sufficient facts, and a demurrer to the evidence was filed, because a cause of action had not been proved, which objection and demurrer were overruled, and exceptions duly taken. The questions of fact were referred to a jury, who made special answers, and rendered a general verdict in favor of plaintiffs, upon the strength of which the court decreed to the plaintiffs all the relief asked, but without ordering or providing for the repayment of the $400 entry-money advanced by Berdine or Ainsworth. The defendant's moved for a new trial, which was refused, and they bring the case here.
The facts in this case prevent any recovery on the part of the defendants in error in the court below, and therefore the judgment is erroneous. No contract prohibited by the express provisions of a statute can be enforced in any court, either of law or equity; and where an illegal contract has been Pai’k Perf°rmed, a court of justice will altogether refrain from adjudicating between the par-ties tainted with the wrong, on the ground that ex turpi causa non oritur actio. Generally, those who violate law in their dealings with one another, aré left precisely in the same condition they placed _themselves. Where money is paid in pursuance of an illegal contract, the consideration of course fails, for it is impossible for the party who has paid the money to enforce the performance of the illegal contract. Still, no action will lie to recover it back again. The reason of this is, that the law will not assist a party to an illegal ■contract. He has lost his money, it is true, in such a case, but he has lost it by his own folly or wrong in entering into a transaction which the law forbids. The end attempted to be reached by this principle is, to restrain and discourage a violation of law by withholding a remedy founded on the illegal contract. Said Lord Mansfield, in Hulman v. Johnson, Com. B. Rep. 343, “the objection that a contract is immoral, or illegal, as between plaintiff’ and defendant, sounds at all times very ill in the mouth of a defendant. It is not for his sake that the objection is ever allowed, but is founded on the general principles of policy, which the defendant has the advantage of, contrary to the real justice between himself and the plaintiff.” So, where it appears in a case, that a plaintiff cannot make out a claim, except through an alleged transaction with which he is tainted, such claim cannot be effectual in a court. Thus, “Those who make the covinous conveyances, and other acts denounced by the statute of fraud and perjuries, are not permitted to apply to the courts ■for extrication from the consequences of their fraudulent acts, if the grantee prove false to the secret trust reposed in him.” We need only refer to the preemption act of 1841, 5 U. S. Stat. at Large, 456, as conclusive proof of the express illegality of the-transactions between Miller and Berdine. Section 13 provides that a person claiming a right of entry under said act, “shall make oath that he or she has not, directly or indirectly, made any agreement or contract, in any way or manner, with any person or persons whatsoever, by which the title which he or she might acquire from the government of the United States, should inure, in whole or ■in part, to the benefit of any person except himself or herself; and if any person taking such oath shall swear falsely in the premises, he or she shall be subject to all the pains nnd penalties of perjury, and shall forfeit the money which he or she may have pa!id for said land, and all right and title to the same; and any grant or conveyance which he or she may have made, except in the hands of bona fide purchasers for a valuable consideration, shall be null and void.” This-section is plain, direct and certain in its terms, and was openly violated by Miller on 11th September 1875, when he-subscribed to and took the oath before the register of the land office, at Wichita, that “he had not directly or indirectly made any agreement or contract, in any way or manner, with any person or persons whatsoever, by which the title which he was then seeking to acquire from the government should inure, in whole or in part, to the benefit of any person except himself.” The arrangement on the part of Miller was, to make the final proof, including the oath taken by him, and then to convey and give possession of the premises to Berdine. Berdine substantially said to Miller: “I will give you $1,400 for your land, if you will agree to sell it to me; if you will agree to swear that you have not sold it to me; if you will agree to enter it, and will agree to give me a deed.” Miller said to Berdine: “For $1,400 I agree-to sell the land to you; agree to swear that I have not sold it to you; agree to enter it, and agree to give you a deed.”' Certainly under suph a contract, no specific performance could be decreed in favor of Berdine; nor can Miller, who comes thus unclean into a court of justice, have a right of action against a partioeps in the fraud, based upon the refusal of such party to carry out his part of the illegal contract.
From the findings of the jury, Miller has not been very greatly overreached. He is in the possession of the premises, which were paid for by Berdine and Ainsworth; no bona fide purchaser has obtained any title or interest in the same; Berdine and Ainsworth can never assert any title, owing to their criminality in the transactions; and unless the United States steps in and cancels the fraudulent entry, and dispossesses Miller and wife, they are still the gainers by the bargain, notwithstanding they stupidly accepted a worthless Mexican bond of $1,000 for a promised U. S. bond of that denomination. It is true, that Miller’s title is clouded by his own conveyance, but Berditfe and Ainsworth lose the $400. ' This case literally verifies the old maxim, that “honesty is the best policy.” The excuse of Miller, that he did not know what the affidavit contained, which was sworn to by him in making his final proof, does not, in this proceeding, assist him. He derives his title under such affidavit, and cannot be heard to say he disowns its statements. If the maker of such an affidavit shall be permitted to deny its contents, or plead ignorance of its language, after having obtained benefit from its use, or after it has subserved his purpose, there is no saying to what extent the excuse of ignorance might be carried. It would always be urged in false oaths; and if this qualification should be inserted in said section 13th, the oath provided for would become nugatory. Within the rule, that all men are presumed cognizant of the law, both Miller and his wife were bound to know the character of the affidavit required to be filed to enter the land in controversy, and they will not now be heard to say they were ignorant. Ignorantia juris non exeusat. Whether Miller was in fa,ct acquainted with all the contents of his affidavit of final proof, is immaterial. It was his duty" to know its contents. The law favors no trifling with oaths, and in this case estops him from pleading ignorance.
Neither the petition nor the evidence in the case, nor the 'findings of the jury, alone, or together, state sufficient facts to authorize any judgment for the defendants in error. The judgment of the district court must be reversed, and the case remanded.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This was an action brought by the plaintiff in error in the court below to recover upon a note for the sum of $1,142.72, given by the defendant to the plaintiff, September 23d 1874, and due in thirty-seven days from date. The defendant answered the petition of the plaintiff by a general denial, and a plea of failure of consideration for the note, in this, that the meat for which the note was given was not the kind which he agreed to purchase, and that he returned the same and rescinded the contract. He also pleáded a counterclaim, about which there was no controversy. The answer was not verified, and hence the execution of the note wfis admitted. The issues were made up by the reply of the plaintiff — a general denial of the new matter in the answer. The evidence on the trial showed that the consideration of the note was a certain bill of meat sold by the plaintiff to the defendant, and the plaintiff knew the market for which the defendant bought the meat, viz., for the use of men engaged in mining coal iri the coal mines in Bourbon county, near Godfrey station, on the Missouri River, Fort Scott & Gulf railroad. It further showed that the defendant claimed that the meat did not comply with his contract of purchase, and that he returned the meat to the defendant, and claimed a rescission of the contract. The case was tried to a jury, and certain special findings of fact were returned. The general verdict was in favor of the defendant, and judgment was entered accordingly. The plaintiff claims that the judgment was erroneous under the special findings of fact made by the jury, and that the court, below erred in not granting him a new trial. The special findings of fact found by the jury were as follows:
Ques. 1 — Where was the meat delivered by the plaintiff to the defendant ? Ans.-At Kansas City.
Ques. á?.-Was the meat in good merchantable condition when it was delivered by the plaintiff to the defendant? Ans.-No; not quite.
Ques. A-Did the plaintiff, when he obtained the note from the defendant’s agent, make false or fraudulent representations to said agent, which induced said agent to givé the note to the plaintiff. Ans.-No.
Ques. Was the meat in .as good condition when it was returned to the plaintiff as when he delivered the meat to the defendant, except any depreciation arising from unsoundness when delivered ? Ans.-No.
Ques. 5.-Was the meat mentioned in defendant’s answer the only consideration for the note sued on in this action ? Ans.-Yes.
Ques. (?.-Did said defendant rescind said contract as soon as he found said meat was -unmarketable, and not the kind of meat contracted for ? Ans.-Yes.
Ques. 7. — Did the defendant contract with the plaintiff for merchantable meat? and did defendant make known to plaintiff the purpose for which he intended said meat ? Ans.Yes.
Ques. <§.-Did the defendant return said meat to plaintiff so soon as he found it to be unfit for the use for which he purchased, and unmerchantable? Ans.^Yes.
Ques. 5.-Did the plaintiff comply with his contract with the defendant, as to the different kinds of meat ordered; that is, in reference to the number of pounds of each kind ? Ans.-No.
The sole question presented is, whether the special findings harmonize with the general verdict? Counsel for plaintiff assert that the findings show that the defendant did not put the plaintiff in such a condition as entitled him to a rescission of the contract; that the meat was not returned in as good condition as it was when he received it, allowing for any unsoundness it had when'delivered, and that he failed to take proper care of the meat while he retained it. These conclusions are attempted to be forced from the fourth finding of fact. But we do not think this finding, taken in connection with the other findings, can be so construed. All that finding is, when the meat was returned it was not in as good condition as delivered, allowing for the depreciation of its original unsoundness. There is no statement therein that the defendant failed to exercise ordinary care while it was in his possession, nor that he surrounded it with other meat that was spoiled, nor wantonly exposed it to the heat of the sun, as •counsel intimate may have been done. As the law permits the retention. of goods by the buyer, bought under circumstances as these were, for the time necessary to examine them, and if on examination the same prove to be unmerchantable, to return them without unreasonable delay, and thus have a rescission of the sale, the defendant had the right to so act in this case; and said fourth finding does not conflict with this principle. The most that can be said of it, is, it finds the meat was damaged, not merely by its own unsoundness, but from other causes. The finding does not connect defendant with any such injury, except that counsel assumes that he was responsible for all injury or damage to the meat from the time of its delivery to him until his return of it, not resulting from its unsoundness. Such is not the law. If the goods delivered to the buyer are inferior in quality to that which was warranted by the vendor, the vendor may refuse to accept the goods, and return them; and while in his charge or possession he is certainly not liable for injury to the goods resulting from no want of due care on his part. In the absence of all fault or negligence on the part of the defendant, he is not chargeable for any damage or injury to the meat on its return to the plaintiff. If there was any exposure, or other act committed, whereby the meat was injured from other influences than its impaired condition when delivered, nothing is contained in said fourth finding to make the defendant responsible therefor, in view of the general verdict, and the other findings of fact.
The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action brought under the- law of 1874, to recover for the value of a certain mare killed by the train of defendant. The action was brought before a justice of the peace, and upon the trial judgment was rendered in favor of the plaintiff. A bill of exceptions was taken, and the case removed on error to the district court, and upon affirmance of judgment there, is now brought here.
The only question in this case is, as to the sufficiency of the demand, notice of which was served only upon the general superintendent. The statute provides that an action may be brought if the railway company “shall fail, for thirty days after demand made therefor by the owner of such animal, or his agent or attorney, to pay such owner, or his agent or attorney, the full value of such animal, if killed, or damages thereto, if wounded.” And further, in a subsequent section, that “the demand * * * may be made of any ticket-agent or station-agent of such railway company.” Upon this, counsel invokes the aid of the rule, that where a new right is created by statute, and a specific remedy provided, the right can be pursued only through the remedy prescribed; Almy v. Harris, 5 Johns. (N. Y.) 175; Stafford v. Ingersoll, 3 Hill (N. Y.), 38; Renwick v. Morris, 7 Hill (N. Y.), 575; and insists, that the word “ may ” should be construed as equivalent to “ must,” inasmuch as the rights of third parties are concerned; that demand is a prerequisite to any action, and that demand can be made only upon a ticket or station-agent. We cannot assent to this claim, nor give to the word “may” such imperative construction. An examination of the statute indicates clearly the intention of the legislature to enlarge, by the third section, rather than restrict in the matter of demand, and that “ may ” is here used, in its ordinary and permissive sense, and as giving to the owner of the stock an additional privilege and increased facility in the collection of his claim. Were this third section omitted, notice of demand would have been served upon some general officer of the company, or some one specially charged with the adjustment of such claims. But such an officer may not be easy of access in each county through which the road runs, and so, to facilitate the collection of these claims this section was added authorizing the service of notice upon ticket and station-agents — officers who are not general representatives of the company, and whose duties do not include the adjustment of such claims, but who are ordinarily to be found in every county. Surely it would be strange if service of a notice was good upon an officer whose duties in no manner embraced the subject-matter of the notice, and not good upon one chai’ged with the care of such matters, or one having general control. Before such an intention is imputed to the legislature, (and it is the legislative intention which we are to ascertain, and which must control,) the language should clearly indicate such intention to require such construction. Again, if the principal were an individual instead of a corporation, a statute authorizing notice to be served upon an agent would not be construed as making void notice served upon the principal. The greater includes the less. The owner, the party actually responsible, is the one to whom notice in the end is to go; and permitting it to be served upon an agent, is simply granting an additional aid to the claimant. But the general superintendent of a company represents the company for all purposes connected with the management of its road. Ticket and station-agents are but his aids. Contracts with him concerning injuries by tbe trains, or on the road, and promises by him to pay for such injuries, bind the company. Mo. P. Rld. Co. v. Thomas, 19 Kas, 256; A. & N. Rld. Co. v. Reisner, 18 Kas. 458. Notice to him, of any matter connected with such injuries, is notice to the company; demand ■upon him is demand upon the company. And before a statute is to be construed as limiting his capacity to represent ■the company as to any matters connected, with the management of the road, the language must, as we said above, be plain. • We conclude then that proof of demand upon the general superintendent of a railroad company, is sufficient proof of demand upon the company to authorize a recovery under the special statute of 1874.' So far as the notice failing to specify the amount of attorney-fees claimed, none are •due until after suit is brought; and the actual value of the •animal was stated.
We have considered the principal question in this case, passing by the question of practice; but our silence upon the latter must not be construed into an overruling of the point made by the learned counsel for defendant -in error.
The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an action to subject real property, the title of which is in the name of Ida Crossfield, to the payment of a judgment against her husband, L. L. Crossfield. The trial court made findings of fact and rendered judgment for defendants. Plaintiffs have appealed.
Broadly speaking, it is argued that Ida Crossfield is estopped from claiming ownership of the property or from contending that it is not the property of her husband. Specifically appellants complain of findings of fact made by the trial court and of its refusal to make findings requested.
The petition in this action named S. L. Chastain as plaintiff and L. L. Crossfield and Ida Crossfield as defendants. It alleged that in September, 1927, one W. H. Jones obtained a judgment in the district court of Sedgwick county against L. L. Crossfield, S. L. Chastain, and others, for $10,431.50; that in December, 1927, Jones caused execution to be issued on the judgment against L. L. Cross- field, which execution was returned unsatisfied; that in May, 1929, Jones, for a valuable consideration, duly assigned the judgment to plaintiff, who became and is the owner thereof; that during all the times mentioned L. L. Crossfield was, and is now, the owner of certain described real estate in Sedgwick county, and that for the purpose of hindering, delaying and defrauding his creditors he secretly conveyed the real property to the defendant, Ida Crossfield, who paid no consideration therefor; that since the conveyance L. L. Crossfield has been in the apparent ownership and has managed 'and controlled the real estate and collected the income and profits therefrom, and in truth and fact the property belongs to him; that Ida Crossfield took the conveyance from L. L. Crossfield in secret trust so that it could not be subjected to the payment of his debts. The prayer was that Ida Crossfield be adjudged a trustee of the real property for the benefit of the plaintiff as a creditor of L. L. Cross-field, and that the property be subjected to the payment of the judgment. The answer of L. L. Crossfield contained a general denial and specifically alleged that the real property in question is now and for many years has been owned by the defendant, Ida Crossfield. The answer of Ida Crossfield contained a general denial and specifically denied that she held the property in trust for her husband, and alleged that she is now and for many years has been the owner in fee simple of the legal and equitable title thereto.
The action went to trial on those issues. At the close of plaintiff’s evidence he asked and obtained permission to file an amended petition which joined W. E. Chastain as a party plaintiff, changed the allegation that L. L. Crossfield secretly conveyed the land to Ida Crossfield so as to allege that he secretly conveyed, or caused to be conveyed, the land to her; changed the allegation that Ida Cross-field took the conveyance from L. L. Crossfield in secret trust so that it read “took said conveyance in secret trust”; and further alleged that at all times prior to July 6, 1926, Ida Crossfield, notwithstanding that the title to the real property was in her name, represented that it was the property of L. L. Crossfield; that such oral representations and statements were made by Ida Crossfield directly to the plaintiffs and to others who communicated them to plaintiffs; that plaintiffs relied upon the representations so made, and believing them to be true, extended credit to L. L. Crossfield and signed as sureties the note sued upon by Jones, the judgment upon winch was assigned to plaintiffs, as previously alleged. By the time the amended petition was drafted and filed a part of defendants’ evidence had been introduced. Defendants’ objection to the filing of this amended petition was overruled. They then asked for time to prepare and file proper pleadings and to meet the issue set forth therein. The court overruled this request with the remark: “You have got practically the same lawsuit. You have got part of your evidence in. Call your next witness.” After the evidence was concluded and at the beginning of the argument to the court defendants asked leave to recall Ida Crossfield for the introduction of further testimony and for the case to be reopened for that purpose. That request was refused, the court stating that it did not care to hear more evidence.
The theory upon which the case was originally brought, namely, that the real property in question was purchased by L. L. Crossfield with his own money; that he conveyed it to his wife in fraud of his creditors; that he still held the equitable title thereto and all the outward appearances of actual ownership therein, has been abandoned. The evidence was overwhelmingly to the contrary. Appellants now rely solely upon the additional matter alleged in their belated amended petition, namely, that the defendants told plaintiffs, and others who communicated the information to them, before the note sued upon by Jones was executed, that L. L. Crossfield was the owner of the real property in question and that plaintiffs relied upon those statements at the time they signed the note with L. L. Cross-field. Appellants now argue that Ida Crossfield is estopped to claim ownership of the real property in question as against these plaintiffs. On that point the court found “that no representations were made by Ida Crossfield that said real estate was the property of L. L. Crossfield directly to the plaintiffs or to other persons and that plaintiffs did not rely upon any such representations nor believe them to be true, nor extend credit to L. L. Crossfield, nor sign as surety the note” sued upon by Jones by reason thereof.
Appellants contend this finding is not supported by any evidence, that all the evidence bearing on the question is ,to the contrary, and that their requested finding to the contrary should have been made. This requires an examination of the evidence, which, for convenience of statement, may be grouped under three headings:
First, as to which of the defendants owned the real property in controversy — the same being two farms, one of twenty acres and the other of thirty-two acres, a few miles south of Wichita. The defend ants were married at Pratt, Kan., in 1884. The wife learned the millinery business there and went to Joplin, Mo., where she worked at that business on a salary for about two years. She then went to Elgin, Kan., and established a millinery business, which she conducted about two years. During that time, or part of it, her husband was working on a ranch. She sold her millinery business and had between seven and eight hundred dollars in cash. They went to Ponca City, Okla., “when the strip opened,” being among the first settlers there. With her money the wife bought a lot with a small house on it, in what proved to be the residence part of the city, for $25. She also bought a lot which proved to be in the business part of the city, on which there was a small building, for $225, and started a millinery business which she operated for more than fifteen years and which was successful financially. Within that time she had bought a quarter section of land near Ponca City, had acquired title to another residence property there, and had moved the small building on the business lot and erected a better building. During this time her husband was engaged in gambling and the liquor business, part of the time running a saloon; but in 1900 she had to pay all of the living expenses. They went to Bartlesville, where they installed a bakery and conducted it for several years. That was sold out and they moved to Wichita in 1907. A property was bought there, the title taken in the name of the husband. He conveyed it to his wife for $8,000, which she had previously advanced to him. When they left Ponca City she sold her millinery business for $3,000. Not far from that time she sold the business property there for $5,500, and the residence lot, for which she had paid $25, she sold for $4,000. She sold forty acres of the farm land near Ponca City for $10,000. This money she had invested, a substantial part of it in building and loan stock. She traded the residence she had acquired in Ponca City for a property in Wichita. In April, 1920, she bought the twenty-acre tract of land south of Wichita; in 1922 bought the thirty-two-acre tract. She paid for these with the funds previously mentioned. All during her married life she had conducted her own business, kept her own' bank account, and made her own investments. She produced in court canceled checks, title papers, and other instruments, clearly establishing these facts. It is true that in purchasing the two tracts of real property in question the husband conducted a part of the negotiations, but she paid for them. The title was taken in her name and promptly placed of record. The husband looked after the farming operations on these lands, but she has paid the taxes on them and received the rents and profits. The wife has been an industrious, conservative, successful business woman. This showing made is obviously genuine. It could not have been prepared simply for this case. As previously stated, appellants have abandoned any claim that the property sought to be charged with the judgment in this case ever belonged to L. L. Crossfield.
Second, as to the judgment sought to be enforced in this action and the note which formed the basis of it. The eárly history of ‘the dealings among the parties not being essential in this case are not shown by the record, but this much is shown: Perhaps early in 1926 the defendant L. L. Crossfield, the plaintiffs S. L. Chastain and W. E. Chastain, and L. E. Hesman and A. 0. Borland, under some kind of arrangement among themselves, were having a well drilled for gas or oil, apparently in what oil men speak of as “wild cat” territory. They became indebted to W. H. Jones, of Augusta, Kan., in the sum of $9,500, and on July 6, 1926, all five of them executed a note for that amount payable to W. H. Jones in one year after date, with interest at eight per cent per annum. The note was not paid when due, and soon thereafter Jones brought a suit on the note in the district court of Sedgwick county, naming all of the makers as parties defendant, but alleged that the whereabouts of A. 0. Borland was unknown to him. Service of summons was had on L. L. Crossfield, S. L. Chastain and W. E. Chastain. In September, 1927, the action came on for trial and was continued as to defendants Hesman and Borland. The court found that personal service had been made on L. L. Crossfield, S. L. Chastain and W. E. Chastain; that they had failed to plead or answer, and the time therefor had expired, and rendered judgment “against the defendants L. L. Crossfield, S. L. Chastain and W. E. Chastain, and each of them, for $10,431.50, with eight per cent interest from the date of judgment.” Execution on this judgment was issued against the defendant L. L. Crossfield and returned unsatisfied. Thereafter, and in May, 1929, W. H. Jones, in consideration of full payment by S. L. Chastain and W. E. Chastain, assigned to them “all of his right, title and interest in and to said judgment, interest and costs.” Thereafter S. L. Chastain alone brought this action, claiming to be the owner of the judgment by virtue of this assignment, but in amending the petition when the trial was almost completed added the name of W. E. Chastain as plaintiff. Appellants in the court below and here speak of this note as having- been the debt of L. L. Crossfield and the other signers as being sureties. There is nothing on the face of the note which shows this or indicates otherwise than that the signers were joint makers. Neither does the judgment rendered on the note so indicate; but, on the other hand, was a judgment against them jointly and severally. It is true that W. H. Jones, in his petition suing on the note, alleged that L. L. Crossfield was principal and the other makers sureties. But the payee of a note is not concerned with that matter. The word “surety” in this connection does not appear in our negotiable-instruments law. (R. S. 52-101 to 52-1801.) All persons who sign a promissory note as makers are primarily liable thereon to the payee. (R. S. 52-103, 52-601; Swan Savings Bank v. Snyder, 124 Kan. 827, 830, 262 Pac. 547.) Had the defendants in that case answered they could have raised the question of which, as between them, was principal and surety, and could have had the determination of that matter embodied in the judgment as affecting their rights as between themselves. But that would not have affected their liability to the plaintiff. No such pleading was made by them, hence, on the face of the note and the judgment thereon, appellants are not in a position to urge that point. We shall not decide this case on this point, however, for the reason that, although mentioned, it is not specifically urged by appellee; but it was necessarily before the trial court on the face of the record and was proper for the court to consider.
Third, as to statements of defendants regarding the ownership of the real property in question and the effect they had on the signers of the note. The plaintiff S. L. Chastain testified that for more than twenty years he was engaged in the lumber business in Wichita and had been acquainted with defendants about eighteen years; that they lived directly across the street from his lumber yard; that one or the other of them was in his office more or less frequently; that prior to the date the note was executed he had a conversation with. L. L. Crossfield in the presence of his wife with reference to the property he owned; that in 1910 or 1911 Mrs. Cross-field told witness they owned property in Oklahoma. In 1919 or 1920 she told him that L. L. Crossfield was buying one of the farms in question, and the second one in 1921; that thereafter she told him that Mr. Crossfield had purchased the farms and' thought he had got them cheap and would make some money on them; that thereafter, and before July, 1926, on one occasion Mrs. Crossfield told witness that her husband was going to build a house on the farm. She had a drawing or rough plat of the house and asked him for some suggestions about it. At one time she said her husband had a farm in Oklahoma for which he had been offered $50,000, and that in none of these conversations did she ever say that she was the real owner of the farms. He further testified that he had conversations with L. L. Crossfield about his property, the first along about 1919 to 1922; that he told witness he was on a deal for these farms and was getting them cheap; that later and in the summer of 1926, he told witness that he was raising apples, hogs and chickens and was doing well on the farm. From these and some things Hesman and Borland had told him, and relying upon them, he signed the note in question. On cross-examination, among other things, he stated that he did not know that Mr. Crossfield showed any anxiety to sign the note, but wanted to make it to satisfy the debt of Mr. Jones for the time being, and that the money raised by the note was for the drilling operations in the oil well, in which the signers of the note were interested in having the drilling proceed. A. 0. Borland testified that he had known defendants since the spring of 1924, having first met them at the office of the Chastain Lumber Company in Wichita; that some time in the fall of 1925 defendants took him and Mr. Hesman to the farm south of Wichita; that Mr. Crossfield showed them about the place and in the presence of his wife stated that he owned the farm; said he was going to build a house for Mrs. Crossfield on the farm; that he then said he would take them over and show them his other farm, and they drove over to the other place; that on another occasion Mr. Crossfield stated that he owned the two farms which the witness had seen and some city property, and that his wife spoke up and said: “That is not all he owns. He has property close to Ponca City, Okla., a farm. He had been offered over $40,000 for one corner of the Oklahoma farm for water purposes for the city.” This statement was made in March or April, 1926, when Hesman and a Doctor Embry were present.- W. E. Chastain, L. F. Hesman and Doctor Embry testified to similar statements. Another witness testified that in 1924 or 1925, when Mr. Crossfield was buying some trees from an agent, in the course of the conversation Mrs. Cross-field said that her husband had two farms down by the river and the farm in Oklahoma and that he had to buy lots of trees; that Mr. Crossfield signed the order for the trees purchased. Another witness testified that in a conversation at which he was present Mr. Crossfield said that he owned two farms south of town and was making plenty of money on them. Barring some details, this is the extent of this evidence with reference to the ownership of the farms. The defendant L. L. Crossfield testified that never in his presence did his wife tell anyone that he was the owner of these farms. He was asked if he had ever told anyone in the presence of his wife that the farms were his and not hers, and he answered, “I don’t think I did.” The record does not show that Mrs. Crossfield testified on this point, although she gave testimony as to her purchase and ownership of the properties. Perhaps this is why her counsel wanted to recall her as a witness; but whatever the reason was we must consider this record as it was made, and there was no specific denial of those matters by Ida Crossfield. It is argued by appellants that the testimony of plaintiffs and their witnesses as to statements made by Ida Crossfield to them, or in their presence and in the presence of her husband, to the effect that he owned the land in question, was uncontradicted. But this is inaccurate. The defendant L. L. Crossfield specifically contradicted it. .His answer to the question as to whether he stated that he owned the farms might be construed as a contradiction of the testimony of the other witnesses on that point, although it is not so positive. It is clear the court did not believe that Mrs. Crossfield had ever made any representations that the land in question belonged to her husband, for at the close of all the evidence the court, after announcing that it found for the defendants generally, stated, among other things: “Now Mr. Crossfield probably said it was his property, but then that wouldn’t take the property away from Mrs. Crossfield.” But, passing the question of the influence of the testimony of the defendant L. L. Crossfield on that point, the remarks testified to by witnesses on behalf of plaintiffs were casual remarks at the best. At no time did any of the conversations referred to have reference to any dealings respecting the title to the lands. Defendants were not selling the lands nor encumbering them. None of the witnesses was having any business transactions with the defendants which called for any binding statement from either of the defendants with respect to the title of the land. Had these plaintiffs at the time this note was executed inquired of Ida Crossfield with respect to the title to the land, and told her in substance that they understood the land belonged to L. L. Crossfield, and that she had no interest in the title except such as she might have by being his wife, and that they would not sign this note unless that condition existed, and had she, definitely knowing the purpose of the inquiry, represented and assured them that her husband owned that land and had title to it, and thereby induced them to execute the note with him, a different question would be presented. No such situation is shown by the evidence in this case. Clearly the contention now made that because of the statements shown by the evidence Ida Crossfield is now estopped from claiming title to the land is an afterthought. Neither the appellants nor their resourceful counsel made any such contention when this action was brought, and, considering all the facts and circumstances disclosed by the record, including the delay in raising this question, the trial court should not be criticized for exhibiting some impatience with the request that it hear more evidence about it.
The previously quoted finding of the court is readily divided into two parts: First, that no representations were made by Ida Crossfield that the real estate in question was the property of her husband, directly to plaintiffs or to other persons. Second, that plaintiffs did not rely upon any such representations and extended credit to her husband by signing the note to Jones by reason thereof. As to the first of these, appellants argue that it is not supported by any evidence and is contrary to all the evidence. But this is inaccurate. It accords with the positive testimony of L. L. Crossfield that no such representations were made to plaintiffs or to others in his presence, as testified to by plaintiffs’ witnesses. It -accords, also, with many of the facts and circumstances disclosed by the record. As to the second of these, whether plaintiffs relied on such representations, it is true S. L. Chastain testified he did rely upon them. He is the only one who signed the note to Jones with L. L. Crossfield who did so testify. Many things in the record support the finding of the court on this point. None of the conversations testified to - by any of the witnesses for the plaintiffs was made at the time any note was being executed, nor when any contract concerning the real property or its title was being considered and when indebtedness of L. L. Crossfield was being incurred. Plaintiffs therefore had no right to rely upon such statements, even if they were made, as testified to by them and witnesses called in their behalf. The record titles to these farms since they were purchased were in the name of Ida Crossfield. One purpose of the recording statute is to enable persons dealing with the owners, or supposed owners, to know in whom the title is vested. Plaintiffs were engaged in a business in which frequently they were required, or it was at least prudent for them, to examine the record with respect to titles of land owned, or claimed to be owned, by persons with whom they were dealing. They made no such examination. The evidence discloses that at one time, when they were forming this little group of persons to engage in the oil-drilling operations, Mrs. Crossfield said she would take a share or an interest in it. The other parties did not let her have it. No doubt at that time profits were anticipated. Now that losses have resulted they appear to be anxious to subject her property to the payment of the losses. It cannot be said as a matter of law that the finding of the court above quoted is not sustained by the record.
There is not much else to this lawsuit. Appellants rely on estoppel and cite Gray v. Crockett, 35 Kan. 66, 10 Pac. 452; Westerman v. Corder, 86 Kan. 239, 119 Pac. 868; Disney v. Lang, 90 Kan. 309, 133 Pac. 572, and allied cases. None of these cases is in point —the facts differing materially. This court wrote five opinions in the controversy between Gray and Crockett (30 Kan. 138, 1 Pac. 50; 31 Kan. 346, 2 Pac. 809; 35 Kan. 66, 10 Pac. 452; 35 Kan. 686, 12 Pac. 129; and 39 Kan. 659, 18 Pac. 905). It was an action for specific performance of a contract for the sale of real estate made by the husband, in whose name the title was of record. The wife had not signed the contract and claimed to own the property under an unrecorded deed from her husband. The wife was present when the contract was made, was familiar with its terms, and made suggestions as to deferred payments. She did not disclose her claim of title until more than two years after the suit was brought. The court said (35 Kan. 73):
“Mrs. Long stood by and allowed the contract to be executed; to some extent she participated in the negotiations preliminary to the execution of the contract. Her silence as to her title, her acquiescence at the time of the contract, and her failure to disclose her title during the earlier stages of this litigation, invoke against her the familiar rule of justice, that if one stands by and allows another to purchase his property without giving him any notice of his title, a court of equity will treat it as fraudulent for the owner to afterward try to assert his title. 'He who will not speak when he should, will not be allowed to speak when he would.’ ” (Citing authorities and quoting from one of them) :
“ ‘If a married woman owns real property, but her title is not of record, and her husband enters into a contract for the sale of it, of which she is informed at the time and to which she makes no objection, she will be estopped from setting up her title to the land to defeat a suit brought against her husband for specific performance of his contract, and so would her grantee.’ ”
The Westerman case involved representations as to title made by the vendor to the vendee on the sale of real property. He represented and assured the vendee that his title was good, except an outstanding interest not in controversy, and, based upon such representations, a price was agreed upon and paid. About ten months later the vendor learned through an abstracter of what appeared to be an outstanding interest, and gave two dollars for a quitclaim deed. Under it he then asserted a claim to an undivided half interest of the property sold, which the court would not permit him to do.
The Disney case is an action to foreclose a mortgage given for a part of the purchase price of real property. A defense, urged to reduce the amount of the judgment, was that the mortgagee, who was the vendor, had falsely represented the number of acres. The court held that the fraudulent representations, if made, would entitle defendant to recovery of damages for the loss actually sustained, and further held the evidence on the question sufficient to go to the jury.
Here Ida Crossfield’s title was of record. In fact, the cases cited by appellants, particularly Gray v. Crockett, supra, disclose what plaintiffs would have to show in order to invoke the. doctrine of estoppel relied upon. (See, also, Kinsley Bank v. Aderhold, 131 Kan. 448, 292 Pac. 798.) Their showing was far short of what was necessary. Here no situation testified to required Mrs. Crossfield either to assert or deny her title. The record title was available to plaintiffs. (Kelling v. Brooks, 128 Kan. 55, 275 Pac. 1077; Debenture Co. v. Hopkins, 63 Kan. 678, 66 Pac. 1015.)
The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Smith, J.:
The action was for damages on account of an alleged defectively constructed concrete floor in a new garage building. Judgment was for plaintiff. Defendants appeal.
Appellants were building contractors. They had a conversation with a man named McKay about erecting a building on some lots owned by them suitable for use as a garage. This building was to be rented to McKay. In the conversation he specified that it must have a first-class cement floor and a certain type heating plant. A lease for the building was entered into between Ellis and Singleton on the one hand and McKay on the other. This written lease was executed by both parties and contained' no provision or any reference to the floor being first class or in regard to the heating plant.
Before the building was entirely completed it was sold by Ellis and Singleton to J. R. Jay, the appellee in this case. This sale was evidenced by a written contract between Ellis and Singleton on one side and Jay on the other. The parts of that contract which interest us are as follows:
“It is hereby guaranteed by the sellers that this building is at this time or will be before the nine thousand dollars (89,000) above mentioned is paid, entirely completed as to any agreements between Ellis & Singleton, the sellers, and R. D. McKay Motor Co. at the time of making the lease, whether such agreement be verbal or in writing, so that the purchaser will not be put to any expense to satisfy the tenant as to the construction and equipment.
“It is hereby understood and agreed by both parties that the purchaser, J. R. Jay, with the sale of this real estate, as a further consideration is also buying any personal property which is or will be put in the building and owned strictly by Ellis & Singleton.
“It is further understood and agreed by both parties that this being a new building, just completed, Ellis & Singleton, the sellers, will guarantee the purchaser that they will make good for the operation and performance in a reasonable way the same as they would if they had built this building under a contract.”
After McKay had been in the building about six weeks the floor began to sink in one place and it scaled off in several places. This suit is the result.
The petition set out the contract between appellee and appellants into which there was incorporated the oral contract between appellants and McKay as to the floor and alleged a breach of this contract. Neither the petition nor the evidence showed that the oral contract between McKay and appellants was ever actually incorporated into the written contract between appellant and appellee other than by reference. There were some allegations in the petition as to a tort liability on the part of appellants, but since the case was tried entirely on the contract theory it will not be necessary to notice that feature of the case further.
The answer of appellants admitted the lease between appellants and McKay and the contract of purchase between appellants and appellee, but denied all other allegations. The case was tried on the evidence of appellee. At the close of appellee’s evidence counsel moved the court to strike out all the evidence of appellee on account of the fact that it showed the contract sued on was within the statute of frauds, demurred to the evidence of appellee on the ground that it failed to prove a cause of action against appellants, and moved for judgment for appellants on the ground that there was a variance between the pleadings and proof. These motions were overruled and the case submitted to the jury. Verdict and judgment were for plaintiff. From this judgment the appeal is taken.
The first question urged by appellants here and the one which in our view is decisive of the case is that the contract sued on is void under the statute of frauds. It will be noted that the contract between appellants and McKay for a first-class concrete floor was oral. In order to prove it evidence of oral conversations had to be introduced. The contract of sale between appellants and appellee was in writing and referred to oral contracts between appellants and McKay, but the substance of these conversations was not written into the contract between appellant and appellee.
We have concluded that the contract in question is indivisible. We cannot separate the oral contract calling for a first-class concrete floor and the written contract of sale. In fact, the oral contract is referred to in the written one and we would not be confronted with this question if it had been written in. Since the oral contract and the written one are indivisible we must hold that the contract is for the sale of an interest in real estate and comes under the provisions of R. S. 33-10.6, referred to as the statute of frauds. The general rule is stated in 27 C. J. 196, as follows:
“A promise to perform work or labor upon land, the performance of which would not pass any interest in the land, is not within the statute. A verbal agreement to make or pay for improvements on land is one for labor and materials or for payment therefor and is not within the operation of the statute. However, where an agreement to construct a building involved the transfer of land or an interest therein from one party to the other, the statute applies.”
See, also, Holloway v. Smith, 198 Ala. 118, 73 So. 417. In Wing v. Mollett, 115 Kan. 116, 222 Pac. 88, this court said:
“In order to maintain an action for the specific performance of a contract required by the statute of frauds to be in writing, it is essential that the con tract, with all its terms and conditions, be sufficiently definite and certain, or that they can be made definite and certain by reference to other data.” (Syl.)
Certainly it cannot be said that the written contract contained the provision relied on by appellee with reference to the cement floor of the building. Indeed, appellee does not contend for this in his brief. He meets what has been said about the statute of frauds by claiming that the contract sued on is not an executory contract, has been fully performed and hence the statute of frauds does not apply. It is true that appellee has performed all that he was bound to perform under the contract, but it cannot be said that appellant has fully performed and that hence the contract is executory because this lawsuit is a controversy as to whether the vendor has performed, and to ascertain whether appellant has performed appellee asks us to examine an oral contract for the sale of an interest in real estate. Were it not for the existence of this alleged oral contract appellee would have no grounds whatever for the claim with reference to the cement floor.
It could be said by appellee that he had fully performed the contract on his part, but in order for that to lift the oral contract out of the statute of frauds it must appear the case is one where it would be a fraud on the party seeking to enforce the contract to refuse to enforce it. The doctrine is an equitable one. In the case at bar we cannot say that a court of equity would have ordered specific performance of the contract in question and would have decreed specific performance with reference to the floor in the building in question. (See Engelbrecht v. Herrington, 103 Kan. 21, 172 Pac. 716, and cases cited.) We conclude that the contention of appellant that the contract between appellant and appellee as pleaded and proved, being partly oral and partly written, but single and indivisible, is unenforceable by reason of the fact that the terms embodied in the oral portions are within the statute of frauds.
The judgment of the trial court is reversed with directions to dismiss the case. | [
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The opinion of the court was delivered by
Sloan, J.:
This was an action to recover damages growing out of an automobile accident. The plaintiff prevailed, and the defendant appeals.
The accident occurred on Sunday afternoon, February 9, 1930, about sixty feet north of the junction of Rainbow boulevard and Adams street in Kansas City, Kan. Adams street and Rainbow boulevard join near Thirty-eighth street and extend north under the name of Rainbow boulevard. Rainbow boulevard comes into Adams street from the southeast. The plaintiff, with two companions, was riding in a car on the boulevard. They saw a pocketbook lying in the street about sixty feet north of the junction. They parked their car on the west side of the street at the junction, and the plaintiff, a boy fifteen years of age, went back to get the pocketbook. He went along the west side of the street on the parking until he was directly west of the pocketbook and then walked out in the street to pick it up. The street was forty feet wide and the pocketbook was about the center of the street. A string was tied to the pocketbook and a boy was at the other end of the string west of the boulevard. The plaintiff picked up the pocketbook and about that time one of the boys holloed, and he started back towards the west curb. The defendant’s delivery truck, driven by Charles Cohrs, was traveling north on the boulevard. The truck was a model A Ford, with a specially designed closed body for the purpose of carrying pies and brea,d. He was driving between fifteen and thirty miles an hour. The driver of the truck saw the plaintiff get out of the car, go back along the street and pick up the pocketbook. He turned to the left and attempted, to pass the plaintiff. There is a dispute in the testimony relating to the location of the plaintiff at the time he was struck, and whether it was the front or rear fender that struck him. The plaintiff was injured. He was unconscious for several minutes. His back and hip were injured to such an extent that he was con-, fined to his home for three weeks. At the expiration of this time he returned to his work. The jury returned a general verdict in favor of the plaintiff in the amount of $5,000, and answered special questions as follows:
“1. At and immediately prior to the accident complained of in plaintiff’s petition, what, if anything, was there to prevent the plaintiff from seeing the approaching car? A. Plaintiff had his back to defendant’s car, which was traveling on wrong side of street.
“2. What part of the defendant’s car came in contact with the body of the plaintiff? A. Right front fender.
“3. If you find for the plaintiff, of what, if any, negligence do you find the defendant guilty? A. Driving on the wrong side of street, no warning.”
At the close of plaintiff’s testimony the appellant interposed a demurrer which was overruled by the court, and this is assigned as error.
The appellant argues that under the evidence the appellee was negligent in that he went upon a thickly traveled street in broad daylight, with full knowledge of the passage of cars to and fro, and deliberately backed into the car driven by the appellant, and that the court should have held the appellee guilty of negligence as a matter of law.
There were four witnesses to the accident, exclusive of the truck driver and the appellee. The appellee testified that the pocketbook was lying very near the middle of the-street; that he did not enter the street until he was even with the pocketbook. “I looked up the street to see if there was any traffic coming and there was not. I went to get the pocketbook and I turned around facing the north. As-1 turned around facing the north, I walked towards the west curb, watching the traffic that was coming up on the wrest side of the curb, and I didn’t think there would be a car coming down on the wrong side of the street. As I was watching the traffic on the other side, on the west side of the street, I heard one of the boys holler and that is all I ever knew.”
John Aldrich, one of the boys who was riding with the appellee in the car, testified as followte:
“He picked up the pocketbook and started back towards the west curb, and he was about six or eight feet from the curb when this bakery truck came around the comer from Rainbow and instead of driving on his own side he cut in behind this boy and this boy was going backwards, facing the northeast, and he ran right in behind him, and the car struck him as he was backing in. It was the right front fender that struck the boy.”
Another witness, who was riding in the car with the appellee, testified as follows:
“Earl picked up the pocketbook and looked to the north and there wasn’t any cars or anything in sight there close enough to interfere with his passage tq the curb. He picked it up and started to go toward the west curbing of Rainbow boulevard, facing not exactly .west or north, nor exactly south, when this truck coming down Rainbow boulevard at about thirty miles an hour, came around the comer, and when it neared Earl the brakes were applied and the car turned to the left to avoid the accident — the truck was going north and it turned to the west. The brakes were applied heavy and the fender struck Earl and the left front wheel hit the curbing.”
One of the boys who was operating the string attached to the pocketbook testified:
“Someone came back from the car. He had a blue sweater on — and he picked the pocketbook up and when he did the kid that had the string hollered at him, and then he saw the string and started over towards the curb and got about eight or ten feet from the curb and some one hollered and he sort of stopped, and just then this car came around there and he hit him.”
Three of the witnesses to the accident testified that they did not hear the horn. One witness, however, testified that he heard the horn at about the time the car struck the appellee. The testimony clearly shows that there was nothing to prevent the driver of the truck from seeing the appellee for a distance of at least one hundred feet south of the place of the accident. The general rule is that the defense of contributory negligence is a question of fact to be de termined by the jury. (Keir v. Trager, 134 Kan. 505, 7 P. 2d 49.) This case does not appear to be an exception to the general rule. It is argued by the appellant that since the appellee w<as near the middle of the street facing the north, that the statutory rule with reference to passing vehicles traveling in the same direction would apply, and that under this rule the driver of the truck was fully justified and could not be charged with negligence in turning to the west or left side of the street to pass the appellee. (R. S. 8-123.) The difficulty with this argument is that the evidence does not warrant the inference that the appellee was traveling toward the north. The testimony is that he went directly east to the middle of the street, picked up the pocketbook and was returning to the west side of the street When the accident occurred. The driver of the truck had ample opportunity to view the circumstances. He is charged with seeing what was in the range of his vision. (McDonald v. Yoder, 80 Kan. 25, 101 Pac. 468.) He observed the appellee approaching the middle of the street from the west, pick up the pocketbook and his movement toward the west side of the street. We cannot say as a matter of law that the appellee was negligent in entering upon the street to pick up the pocketbook, neither can we say that he wi-as negligent as a matter of law in failing to look toward the south. He was not on the east side of the street. He had the right to assum'p that the users of the highway would observe the law of the road and he is not charged with negligence in relying upon such assumption. (Keir v. Trager, supra; Kersting v. Reese, 123 Kan. 277, 255 Pac. 74.) There is very little, if any, evidence of negligence on the part of the appellee, but, in any event, the oft-repeated rule that where the evidence relating to contributory negligence is of such character that reasonable minds might reach a different conclusion thereon it presents a question of fact for determination by the jury, must be adhered to in this case. (Lilly v. Wichita Railroad & Light Co., 127 Kan. 527, 274 Pac. 205; Zumbrun v. City of Osawatomie, 130 Kan. 719. 288 Pac. 584.)
The appellant contends that the court erred in overruling appellant’s motion to set aside the answer to finding of fact number two on the ground that it is contrary to the evidence and not supported by the evidence. The witness Aldrich testified that “it was the right front fender that struck the boy,” while the witness Turner testified that it was “the right rear fender, to my knowledge.” It was within the province of the jury to determine which witness it would believe. Apparently the jury accepted the testimony of Aldrich, and the trial court approved their choice. This court is bound thereby.
It is next contended, and earnestly argued, that the court erred in overruling appellant’s motion for a judgment notwithstanding the general verdict. The petition alleged that the appellant was negligent in the following particulars:
“(a) In that they did not give the plaintiff any reasonably sufficient warning of the approach of said truck.
“(b) In that they were operating said truck on the west and wrong side of said boulevard; that the plaintiff was struck about six feet from the west curb of said boulevard.
“(c) In that they did not have said truck under reasonable and proper control.
“(d) In that they did not keep a reasonably sufficient lookout for plaintiff.
“(e) In that they saw the plaintiff in a position of danger and peril from which he could not extricate himself in time thereafter by the exercise of reasonable care and caution to have stopped said automobile or slackened the speed thereof, or turned the same aside or have given reasonably sufficient warning of the approach thereof in time thereafter to have avoided striking plaintiff, all of which they negligently and carelessly neglected and failed to do.”
Appellant argues that the last specification of negligence is an attempt to charge the appellant under the last-clear-chance theory, and that the preceding four allegations of negligence blend in with and become a part of the final charge. From this he reaches the conclusion that the only theory on which the appellee was entitled to recover is under the doctrine of the last clear chance. It is argued that the last-clear-chance doctrine presupposes negligence on the part of the injured person, and he must therefore clear himself of negligence before he can recover. We are inclined to agree with appellant’s theory as to the doctrine of last clear chance. This court said in Tarter v. Missouri-K.-T. Rld. Co., 119 Kan. 365, 367, 239 Pac. 754:
“The case turns on that doctrine. [Last clear chance.] It is a rule of law which makes the defendant liable where the plaintiff through his own negligence has placed himself in a place of danger from which he cannot extricate himself and where the defendant saw or should have seen the situation of the plaintiff in time to avoid injuring him.” (See cases there cited.)
The last-clear-chance doctrine, being a rule of law, the pleadings and facts found by the jury must come within the rule to make it applicable. There are five specific charges of negligence either one of which, if established, would support a judgment. The appellee had the right to charge all of the acts of negligence known to him-. He could, of course, only recover on such acts of negligence as are established by the evidence. (Benelli v. Atchison, T. & S. F. Rly. Co., 120 Kan. 237, 243 Pac. 1004.) We have trouble in finding that the allegations of the petition are sufficient to bring the appellee within the doctrine. The allegation that the appellee was in a position of danger and peril does not concede that he negligently assumed such position. The evidence does not show and the jury did not find that he negligently assumed a position of peril. The jury found that he did not see the approaching car because the car Was traveling on the wrong side of the street, and that the truck driver was guilty of negligence in that he was driving on the wrong side of the street and failed to give any warning of his approach. The facts found take the case out of the doctrine of last clear chance and make the rule inapplicable.
The findings of fact are supported by substantial evidence. The driver of the truck admitted that he saw the appellee from the time he left the car until he attempted to pass him in the street. He had ample opportunity to give a warning signal, and the evidence clearly shows that had he kept on the right side of the street he would have avoided the collision and its consequences.
It is next contended that the verdict is excessive. The appellee challenges the right of the appellant to be heard on this question for the reason that it was not specified as one of the grounds upon which a new trial was asked. (Garcia v. Slater-Breitag Yeamans Motor Co., 128 Kan. 365, 368, 278 Pac. 23.) The motion for a new trial contains all of the statutory grounds. No reference is made to an excessive verdict except as it may be implied in the statutory grounds set out in the motion. The record shows that in the argument of the motion the court’s attention was specifically called to the amount of the verdict, and it was urged that the verdict was excessive when considered in connection with the extent of the injury. While we think it is the better practice to raise this question specifically in the motion for a new trial, which would eliminate any question as to its being presented to the trial court, we hold that the record in this case sufficiently shows that the question was fairly presented and considered by the trial court, and that it is properly here for review.
The jury allowed the appellee $5,000 and found that he suffered an injury to- his hip and spine. The evidence was to the effect that the boy was unconscious for about forty-five minutes; that he was confined to his home for three weeks and then returned to his work. Since that time he has engaged in school athletics and performed the work of a normal boy. Appellee’s doctor testified:
“I found he had a left innominate lesion. And also a lesion of the twelfth rib on the left side. A lesion downward. I found a scar on the left hip, of no.special importance at the present time, only as evidence of some injury. I found in the cervical region there was a posterior occiput; also a right latéral first cervical vertebra.”
The doctor further testified that he could cure all of the injuries with osteopathic treatment, and that the injuries were not permanent. The court appointed a commission of three doctors to examine the appellee. They found that the appellee was not permanently injured. Their examination showed, however, that he had high blood pressure, increased pulse and albumen in the urine, indicating some disease in the genito-urinary tract, which was not attributed to any traumatism or injury but probably came from some disease of the kidney. In view of this testimony the court is of the opinion that $5,000 is excessive, and that the judgment should be reduced to $3,500, the appellee to be given the election to accept that amount or another trial upon that issue. The judgment will be modified in respect to the amount of the judgment, and as modified, affirmed. It is so ordered. | [
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The opinion of the court was delivered by
Hutchison, J.:
Ten different parties brought separate actions in the district court of Bourbon county against Charles W. Johnson, receiver of the Peoples State Bank of Fort Scott, Kan., and the bank itself, to obtain preferred claims on the funds of the insolvent bank in the hands of the receiver. Four of them were for the proceeds of bonds and other securities intrusted to the bank for special purposes, which had been misappropriated and wrongfully disposed of by the bank or its officers without the authority or consent of the owiners, and six of them were for deposits made in the bank very shortly before it closed-its doors and when it was known to its officers to have been insolvent. The answers were general denials, and the trial court, after hearing the evidence, granted each of the ten plaintiffs a common claim against the receiver and the bank funds in his hands, but denied each and every plaintiff a preferred claim, and each of the plaintiffs appeals. In this court the ten cases were heard, argued and submitted together, and the errors assigned in all of them will be reviewed and considered in this opinion.
No. 30,524 is an action brought and later an appeal taken by Hattie J. Cheney to obtain a preference judgment on twto items, one for $5,000 and the other for $1,000. The first was the proceeds of a note and mortgage collected by the bank for the plaintiff at her request, which was to be reinvested by the bank for her as shown by the following receipt given shortly after the collection was made:
“Fokt Scott, Kan.., 5-5-28.
“Received of Mrs. Hattie J. Cheney five thousand dollars, to be loaned the Fort Scott Hide, Fur and Wool Company for one year from May 5, 1928, at 6 per cent.
Peoples State Bank,
By P. H. McAfee.”
Said fund was never loaned to the fur company or any other company or party for her, but was kept and used by the bank. The other item was the collection in February or March, 1929, of a municipal bond of the city of Kansas City, Kan., for $1,000, Which was sold by the bank and proceeds collected, but never paid to the plaintiff.
The evidence shows that the bank got the money, that it went into the funds of the bank and was used to take out of the bank Worthless notes and to take care of losses that were being sustained as well as to make loans, but these funds cannot be traced on the books of the bank. When the bank closed on May 1, 1930, and the receiver took charge of its affairs, he took over $12,311.25 cash in the vault, sight exchange in four banks — Merchants Bank of Kansas City, $17,894.22; Citizens National Bank at Fort Scott, $8,209.70; Commerce Trust Company at Kansas City, $366.46; and National Bank of Chicago, $76.75 — and states that he had at the time of the trial in his hands approximately $35,000 and uncollected notes worth about $25,000. This he said was outside of and apart from the $10,000 fidelity bond for shortage and the double liability of stockholders. It is also shown from the books of the bank that the Peoples State Bank owed the Merchants Bank $32,500 and that the deposits there were used to help liquidate this indebtedness and release the collateral.
The court gave plaintiff a judgment for $6,000, adjudging it to be only a common claim against the receiver. Appellant assigns it as error for the trial court to deny the prayer of the plaintiff for a preference.
There seems to be no contention as to these items being trust funds in the hands of the bank, but the remaining questions in order to make them preferred claims are, Did these trust funds augment the assets of the bank, and did they later reach the hands of the receiver? The unauthorized appropriation of these tw'o items by the bank did certainly increase the assets of the bank at the time they were put into use ■ for and by the bank, the first item nearly two years before the bank closed, and the last item more than one year before it closed. They were both cash items and increased the assets by $6,000. Appellant cites the case of Nelson v. Paxton, Receiver, 113 Kan. 394, 214 Pac. 784, in support of the contention that the use of the funds to take up bad notes may increase the assets of the. bank, but that case plainly distinquishes between the fact of increasing the assets of the bank and the fact of those assets coming into the hands of the receiver. It was there said that—
“It would seem to require no argument to establish the fact that if the bank held notes that were valueless, though carried on their books as valuable, money placed in the bank for those notes increased the live and valuable assets of the bank by the amount of the money so deposited.” (p. 397.)
And in the same opinion it was said:
“It is well settled that before one having a claim arising from a misappropriation, such as this, can have it decreed to be a trust fund and a first lien upon the assets in the hands of the receiver he must show that the proceeds arising from the unauthorized appropriation of his property were a part, in some form, of the assets which came into the hands of the receiver.” (p. 396.)
The judgment in favor of the plaintiff was reversed because there was no showing that the misappropriated funds in some form came into the hands of the receiver.
Appellant further cites Vincent Grain Co. v. Docking, 124 Kan. 391, 260 Pac. 610, in support of her claim that trust funds once traced into the hands of the bank are presumed to remain there and to have gone into the hands of the receiver and that they remain at the bottom of the till and are not presumed to have been used in the daily business of the bank as long as there are funds of the bank for such use. In the case cited the trust funds were shown to have been deposited in a certain exchange bank, and when the insolvent bank failed there were on deposit in that exchange bank nearly sufficient to pay the trust fund, but in the case at bar there is no showing that these funds were placed on deposit anywhere, but on the contrary that they were used to take up bad notes and to take care of losses. There is also a showing in the record of this case that although there was a substantial deposit in the Merchants Bank on the day the bank closed it had been carrying an overdraft three or four days earlier.
Appellant further cites the well-stated equitable principle in the case of Investment Co. v. Bank, 98 Kan. 412, 158 Pac. 68, to the effect that—
“If the money misappropriated reaches the hands of the custodian who administers the estate, in its original form or in any other — that is, if the assets in his hands are thereby increased by the amount fraudulently obtained —the fund can be restored to the lawful owner and no one will be any worse off than if the transaction never had occurred.” (p. 416.)
The difficulty is in tracing the funds to the hands of the receiver. In this case, as well as in the case last cited by appellant, the funds went into bad notes and indebtedness and losses of the bank. There it was said:
“But if it used the money to pay debts of Turner, or even to pay valid .indebtedness of the bank, that circumstance does not make a preferred creditor of the plaintiff. The reason for the distinction is clear, although it has not always been regarded. Priority of payment cannot be conceded to a particular creditor of an insolvent estate merely because his claim originated in a fraud practiced upon him. Such preference as he is given must be based upon the equities of the case, considering the rights of all the parties affected.” ' (p. 416.)
Another statement in the same opinion serves to make the distinction clearer.
“It is not enough to show that the assets of the bank were increased by the deposit to its credit of the money obtained from the plaintiff. That condition necessarily results whenever money is paid to a bank, whatever may afterwards become of it. It is not enough that what may be called the net value of the insolvent estate to be administered has been increased — that the discrepancy between the liabilities and assets is diminished — that the percentage disbursed in dividends shall be enlarged. The test is whether the money which was wrongfully obtained has been disposed of as to increase the fund that reaches the hand of the person charged with administering the insolvent estate, to be by him distributed among the creditors.” (p. 415.)
The decision in this case has been cited approvingly in many cases, among which are the following: City of Spring Hill v. Paxton, Receiver, 115 Kan. 412, 223 Pac. 283; Colorado & S. Rly. Co. v. Docking, 124 Kan. 48, 257 Pac. 743; and Schoen v. Johnson, 134 Kan. 612, 7 P. 2d 117.
The facts in this case do not establish enough to meet the test above given, for there is no showing that any of this money wrongfully used by the bank had increased the fund that actually reached the hands of the receiver, to be by him distributed among the creditors. It was said in the case of Honer v. State Bank, 114 Kan. 123, 216 Pac. 822, that it was not enough to show that the assets of the bank were increased or that the money received by the bank had been used in reducing the indebtedness of the bank. The most favorable view of the use made of these funds, as shown by the evidence, would be to reduce the indebtedness of the bank, which would not entitle the owner thereof to a preference above the common creditors.
We find no error in the ruling of the trial court denying the plaintiff’s claim of preference.
As to the $1,100 balance in the item of $3,000' after the withdrawal of the claim to the extent of $1,900, we think under the limited amount of evidence before us there was no error in the court considering it as one transaction, rather than a divided one leaving a balance which was not affected as the major portion of the amount was affected, which necessitated its withdrawal.
No. 30,520 is an action brought and later an appeal taken by Ella Louise Clary, administratrix of the estate of U. G. Clary, de ceased, to obtain a preference judgment for $6,131.92, which amount she claims to have given to the bank to be invested for her by the bank in six thousand dollars worth of fourth Liberty loan bonds, which she never received. The evidence shows that on March 10, 1929, she deposited, as administratrix, in the Peoples State Bank $12,500 and shortly after doing so talked with the president of the bank about investing for her $6,000 of said funds in government bonds, and frequently thereafter inquired if he had procured them, and on December 13,1929, was informed they had arrived. She then gave her check for $6,131.92, the odd amount being for the accrued interest on the bonds, and the president the same day gave her a receipt for the bonds kept at the bank for safe-keeping. She asked to see them but was informed he was then too busy to get them out for her. It later develops that he had several months earlier withdrawn from her account on a debit slip $6,920.49, and he now says he placed it in the escrow account which was used to take out bad notes and to meet the indebtedness of the bank, large amounts of which were referred to as the Maytag notes, the Woolsey notes and the Bly notes. The check she gave was in fact never entered on her account, although it was later marked paid. The records showed the earlier withdrawal from her account of this larger amount. The evidence in this case shows further concerning the funds reaching the hands of the receiver that there were cash and collections amounting to $53,000, which, with the $25,000 of notes on hand, made the total assets between $75,000 and $80,000, not including the $10,000 fidelity bond and the stockholders’ double liability.
If this item is a trust fund the reasons given above in the Cheney case will apply with equal force as to it not reaching the hands of the receiver. But the trial court did not expressly find it to be a trust fund, and it appears to us from the evidence to lack the necessary element of being actually set apart and intrusted to the bank for a specific purpose. It was originally a deposit, but when the check was given the funds were not there to meet it, having been misappropriated earlier. Both the check and the receipt definitely described the bond, but the bonds were never procured.
“A claim against the receiver of a bank cannot be declared a trust fund where the claim arises out of the wrongful acts of the bank’s cashier by which the money of the claimant was deposited in the bank in an account belonging to the bank and all the funds in that account had been dissipated at the time the receiver was appointed.” (City of Spring Hill v. Paxton, Receiver, 115 Kan. 412, syl. ¶ 3, 223 Pac. 283. See, also, Miller v. Viola State Bank, 121 Kan. 193, 246 Pac. 517.)
No. 30,463 is an action brought and later an appeal taken by John Scholfield, executor of the estate of James Scholfield, deceased, to obtain a preference judgment on $9,000 of fourth Liberty loan bonds left for safe-keeping at the bank, which were taken and sold by an officer of the bank and the proceeds placed in the escrow account, as above described. Originally there were $9,500 of such bonds so placed for safe-keeping, but $500 of bonds were withdrawn and two installments of interest were collected from the government and paid to the owner by the bank.
The following additional items of evidence appear in the record in this case not noted in the former cases, viz., that there remained in the escrow account when the bank closed, as shown by the books of the bank, the sum of $8,114.47, and the copies of three daily blotters are given showing several general debits in large amounts and several notes paid — one of them shown to have been shortly after bank examiners had been there. The evidence concerning the use of the escrow account to the effect that it was simply a channel through which the misappropriated and embezzled funds passed in the payment of bad notes and bank indebtedness makes the record balance therein of little value and insufficient proof of indentification of any fund passing through it or of the balance remaining therein.
The bonds were left at the bank on November 9, 1928, and receipt given by the bank for them that day. The plaintiff saw them at the bank on May 16, 1929, when he withdrew $500 from them. The bank closed May 1, 1930. The escrow account was opened December 17, 1928, and continued as an active account until the bank closed. There is no question under the authorities above cited that the plaintiff’s bonds were a trust fund and the proceeds of them by embezzlement reached the bank and increased the funds thereof, but there is an entire lack of evidence to show that these funds ever reached the hands of the receiver, and therefore the plaintiff was not entitled to a preferred claim, but only a common claim as allowed by the trial court.
No. 30,523 is an action brought and later an appeal taken by E. J. Rollings to obtain a preference judgment on three items, one for $9,000 and the*other two for $10,000 each. The first is for a loan of $10,000 made by the plaintiff at the request of the bank in May, 1924, to Ray Duboc, which was made payable at the bank and amply secured by collateral and the note turned over to the plaintiff. This note was renewed every six months and interest paid thereon regularly until May 29,1928, when Duboc paid $1,000 on the principal and the note was then renewed for $9,000 and given to the plaintiff. Thereafter the renewal of the note for $9,000 was made every six months until the bank closed, but they were all forgeries and not genuine. Duboc during this time had been reducing the principal from time to time and the bank had been keeping in the bank the genuine note for reduced amount as was given by Duboc, and when the bank closed he had paid $5,000 more on the note and it was reduced to a genuine note of $4,000 still due, which was found among the papers in the bank. The proceeds of this note went into the bank in some form. It is not clear into what form they did gOj and the records do not make any mention whatever of them. The plaintiff claims this $9,000 is a trust fund ex maleficio, as is described and approved in the case of First Nat’l Bank v. Farmers State Bank, 120 Kan. 706, 244 Pac. 1039. At any rate it must be at this time held to be a trust fund.
The other two items of $10,000 each are claimed by plaintiff by virtue of two receipts which he holds that were issued by the bank to him, one on January 20, 1930, for $10,000 in automobile payment notes for collection and credit and placing such funds into municipal bonds as fast as collections amounted to $1,000. The other receipt is dated three days later, given for $10,000 in bonds for sale and purchase of notes. The court in this case rendered a lengthy opinion in which it concluded there was confusion as to these receipts and that they both have reference to one transaction, and there is sufficient doubt in the matter, as shown by the evidence before us, to justify such a finding, and the court finds and concludes that it is a $10,000 item of securities turned over to the bank by the plaintiff for which he never received any return whatever in money, notes or bonds. The evidence is also confusing, and the court so finds, as to what became of the funds derived from these notes and bonds. None of them were found in the bank at the time it closed. The proceeds were traced in some instances to the bank from the institutions purchasing the same or the party paying the same, and the court concludes that it is unable to tell into which fund the proceeds went when they reached the bank, whether in the general fund, the escrow account or were embezzled by an officer of the bank. In this connection it is further shown by the evidence that the amount in the escrow account on April 19, 1930, which was only a few days before the bank closed, was only $672.01.
The court held the plaintiff was entitled to a common claim against the receiver for $19,000, but not entitled to a preference. In this we concur, approving the finding of the court as to the amount and the conclusion that the claim for preference was properly denied. The trial court further directed on the strength of the evidence that the plaintiff herein, E. J. Rollings, had been a director of the bank since the year 1927 and had signed the reports and statements made by the bank regularly and those made shortly before the closing of the bank, which statements show the situation as to the assets and liabilities widely different from that found at the time the receiver took charge shortly thereafter; that the allowance of a common claim to the plaintiff against the receiver be upon the express condition that, payment thereof be postponed until all other creditors of the bank are paid in full. This is in line with well-recognized authority in this state and elsewhere.
“The claims of officers whose mismanagement has occasioned the insolvency of the bank are postponed to those of other creditors.” (7 C. J. 751.)
“For several years before a bank failed, the published reports of its financial condition, required by R. S. 9-121, omitted from the statement of liabilities a liability to the directors as individuals, in a sum equal to two-fifths of the bank’s capital. Held, that in the distribution of assets by the receiver among creditors, payment of the claim of the director-creditors should be postponed until the claims of depositors and other creditors, for whose benefit the statute was enacted, have been satisfied.” (Mulligan v. Emmett State Bank, 124 Kan. 699, syl., 261 Pac. 567. See, also, Elliott v. Farmers’ Bank of Philippi, 61 W. Va. 641.)
No. 30,525 is an action brought by John Balocca, doing business under the name of Balocca Candy Company, to recover $1,826.88 for deposits made by him in the Peoples State Bank at Fort Scott on the four days immediately before the closing of the bank, namely, April 28, 29, 30 and May 1, 1930, the bank closing on the evening of May 1, 1930. The plaintiff alleges that these amounts were deposited by him in the course of general business with the bank and that they were impressed with a trust for the reason that the plaintiff had been defrauded; that they are a trust fund in the hands of the receiver, and the plaintiff is entitled to have them returned as a preferred debt over claims of general creditors of the bank upon the assets thereof in the hands of the receiver; that the plaintiff has been defrauded by the action of the bank and its officers in that the bank received these deposits when it was irretrievably and hopelessly insolvent and when its officers knew that it was insolvent and unable to meet its obligations and indebtedness, and that he has demanded the payment of the same by the receiver as a preferred claim and the receiver has refused to so recognize it. The answer is a general denial as to the liability. The court, after hearing the evidence, rendered judgment in favor of the plaintiff for the full amount of the deposit and made it a common claim against the assets of the bank in the hands of the receiver, but refused to make it a preferred claim. From this ruling the plaintiff appeals, alleging error in the denial of the court of his claim for preference.
The evidence in the case'shows this amount of deposit on these four days after deducting the checks issued by the plaintiff during those four days, thus reducing the amount deposited each day, also deducting one or two checks upon which payment was later refused and also some checks deposited the last day on which payment was purposely refused because of the failure of the bank, so that there exists no question as to the net amount actually deposited in cash, checks and drafts which were ultimately converted into cash. Some of these foreign checks were collected by the Merchants Bank at Kansas City and credited to the exchange account of the Peoples State Bank. The balance of the Peoples State Bank in the Merchants Bank on April 26, 1930, was $4,472.56; April 28, $1,752.66; April 29, $2,542.52 overdraft; April 30, $5,552.14 overdraft; May 1, $2,510.31; May 2, $15,212.63; May 3, $14,195.83; May 5, $14,084.27; and May 6, $13,593.59. The testimony of the assistant receiver, made after a thorough examination of the assets of the bank, is that the bank was hopelessly insolvent during the entire month of April.
The Merchants Bank of Kansas City held two notes of the Peoples State Bank at the time it closed its doors; one was for $12,500, and the other for $20,000. It also held collateral security on the first note in the sum of notes to the face value of $15,020, of which amount it was discovered there was a $5,000 note that was forged, leaving genuine notes in the sum of $10,020. As collateral for the second note it held notes to the amount of $46,210.27, of which amount it was later discovered that $15,500 of these notes were forged, leaving genuine collateral notes amounting to $30,-710.27, thus making the aggregate collateral of genuine notes held by the Merchants Bank as security for these two notes the sum of $40,730.27 to secure the total indebtedness to that bank of $32,500. The evidence shows that because of this indebtedness the Merchants Bank used all of its balance at the time of the closing of the bank, and they collected or procured thereafter and applied the same on the two notes; and the evidence shows that in September following the failure of the bank in May the receiver remitted to the Merchants Bank the sum of $11,109.91 cash to pay off these two notes and to recover the collateral security that was held by the Merchants Bank. There is no specific evidence as to the value of the uncollected notes thus returned except the assistant receiver’s estimate of the value of all uncollected assets as being approximately $25,000, which is included in the estimate of the total assets of the bank of $75,000 or $80,000.
The evidence further shows that the liabilities of the bank when it closed on May 1 were $497,508.41 and that this approximate amount of liability ran about the same during the month of April. It also further show^ that there was cash on hand in the bank when it closed in the sum of $12,311.25, and the deposits at that time, as shown by the books, were about $419,000; that on January 23, 1930, the firm of Lotterer & Sons furniture store drew a check against its account in the Peoples State Bank for the sum of $2,600, which check the bank refused to cash on that date when presented with that request, but offered to give a check or draft in lieu of cash.
The appellant insists that the deposits made by him so shortly before the failure of the bank when it was hopelessly insolvent were trust funds when received under those conditions, and that they went to the receiver and augmented the assets in the hands of the receiver and therefore should have been given a preference over the claims of the general creditors. Appellant cites Washbon v. Bank, 87 Kan. 698, 125 Pac. 17, and Tire & Rubber Co. v. Bank, 109 Kan. 772, 204 Pac. 992, to show that a credit given for the amount of a check is equivalent to and should be treated as a payment of the check, and that it is the same as if the money had been paid over the counter on the check and immediately paid back. In the same connection the rule stated in 7 C. J. 730 is urged where the acceptance of deposits when the bank is hopelessly insolvent is a fraud and the fund deposited can be followed and recovered if it can be identified and has augmented the assets in the receiver’s hands. These are the generally accepted views upon this question, subject to the specific requirements the rules themselves contain and a few modifications perhaps not pertinent here. Appellant strongly relies upon the decision in the case of Kime v. Ladd, 112 Kan. 603, 211 Pac. 628, the syllabus of which is as follows:
“A bank is guilty of fraud on a general depositor in accepting his deposit after the bank has become hopelessly insolvent and has committed an act of insolvency, and the depositor may recover from the receiver of the bank to the extent the deposit augmented the funds coming into the hands of the receiver." (Syl.)
The requirements there definitely named are the commission of an act of insolvency and the augmenting of the funds coming into the hands of the receiver. A special reason given for the deposits in this case augmenting the funds coming into the hands of the receiver is the very short time before the closing of the bank. Just as the plaintiff on each of the four days checked out certain amounts from his account so others with equal opportunities m'ay have withdrawn far more than plaintiff deposited during those four closing days. Again the facts show the foreign checks were sent to the Merchants Bank for collection and wbre collected and placed to the credit of the Peoples State Bank and by the Merchants Bank applied on the two large notes it held and the large exchange overdraft the day before the bank closed. The funds from these foreign checks never did reach the receiver, but on the contrary he had to send more than $11,000 in cash to redeem the collateral pledged upon these notes.
“Before a trust can. be declared against assets in the hands of a receiver of a bank, it mUst be shown that the assets received by him were increased by the funds sought to be declared trust funds; it is not enough to show that the assets of the bank were increased or that the money received by the bank was used in reducing its indebtedness.” (Honer v. State Bank, 114 Kan. 123, syl., 216 Pac. 822.)
In the case of State Bank v. State Bank, 114 Kan. 463, 218 Pac. 1000, where two banks effected their clearing for the day by one giving a draft to the other and before the draft was paid the bank giving it failed, it was held that the relation between them “was that of debtor and creditor and not that of principal and agent or trustee and cestui que trust}, and that plaintiff is not entitled to a preference.”
The case of First Nat’l Bank v. Farmers State Bank, 120 Kant 706, 244 Pac. 1039, was between two banks and the failure of the clearance draft to be paid because the bank went into the hands of a receiver, and it was there said:
“Where the officers and employees of the defendant bank who effected the daily clearance of checks and settlement of accounts with plaintiff banks and issued the customary drafts for the balances due from it to plaintiffs did not know that defendant was insolvent, the fact that the bank was actually insolvent and passed into the hands of a receiver and that the drafts were dishonored by the drawee did not give rise to preferred claims in favor of the plaintiffs against the assets of the defendant bank.” (Syl. If 2.)
The case of First Nat’l Bank v. Farmers State Bank, 119 Kan. 198, 237 Pac. 652, was where the plaintiff bank assisted another bank, which was short of cash, to meet current obligations and to carry on its banldng business, and in return the cashier’s check was given with the understanding that the check would not be sent through the clearing bank for four or five days. The bank remained open only one day after the check was given, and in fact had been in a state of insolvency for some time before the transaction, but this fact was not known to the other bank. The defendant bank and its assets passed into the hands of a receiver and the plaintiff bank made a claim that the money furnished constituted a trust 'fund and entitled it to a preference over general creditors, and it was held that the “transaction did not create a trust relationship nor give the plaintiff bank a right to the preference claimed.”
A still more recent case, Colorado & S. Rly. Co. v. Docking, 124 Kan. 48, 257 Pac. 743, is one in which the collection was made and paid by cashier’s check, but before the check was cashed the collecting bank failed, and it was held the relation existing was that of debtor and creditor and that the item was not a trust fund; and it was further held:
“Where the above transaction took place while the bank was in an insolvent condition, being one of many other similar transactions taking place at the same time and as a usual and ordinary line of banking business, it is not such a fraudulent transaction as to make the collected item a trust fund, even if the officers of the bank knew of its insolvent condition.” (Syl. f2. See, also, Massey-Harris Harvester Co. v. First State Bank, 122 Kan. 483, 252 Pac. 247; and Schoen v. Johnson, 134 Kan. 612, 7 P. 2d 117.)
There is nothing in the evidence in this case to show that the plaintiff was the only substantial depositor of the Peoples State Bank on these four last days of its existence, or that his deposits and his withdrawals especially ever augmented the assets of the bank so that his deposits could be singled out from other deposits made on that day and those four days so as to have entitled him to a preference above and beyond others depositing during that time or during even earlier dates, unless the situation was changed as to the earlier time.
As to the disposition of funds and to assist in determining whether or not these funds can be considered as having augmented the assets of the bank and increased those reaching the hands of the receiver, the able discussion of this matter in the case of Investment Co. v. Bank, 98 Kan. 412, 158 Pac. 68, may well be referred to again, as it has been above, in connection with bonds and other securities, and also the following language used as to- such matters in the case of Bank v. Bank, 62 Kan. 788, 64 Pac. 634:
“The use of the money so collected for the mere payment of the indebtedness of the trustee is not to be regarded as an enlargement and betterment of the trustee’s estate; but the plan of exchanging checks and making a settlement of the day’s business which was adopted by the banks in the present case is not to be regarded as a mere payment of indebtedness.” (Syl. J 3.)
The general relation of a bank and one of its depositors is that of debtor and creditor (Eply v. Bank, 104 Kan. 489, 180 Pac. 187), and the facts and circumstances surrounding their business transactions must show that an entirely different situation existed between them before that relationship should be changed. None of the elements necessary to constitute the relation of trustee and cestui que trust is shown here; neither is it shown that the deposits augmented the funds reaching the receiver. The refusal of the bank in January, 1930, to cash a check for $2,600, at the request of one of its depositors, cannot under the circumstances of this case be regarded as committing an act of insolvency. Much of what was said in the earlier part of this opinion, and many of the authorities there cited in connection with the trust funds for the purchase of bonds and funds received from the sale of bonds augmenting the assets of the bank and later increasing the funds reaching the hands of the receiver, are applicable here.
We conclude it was not error for the trial court to deny the claim of the appellant for a preference over the general creditors, referring again to the appropriate language found in the opinion of Justice Mason in the case of Investment Co. v. Bank, supra, “Such preference as he is given must be based upon the equities of the case, considering the rights of all the parties affected.” (p. 416.)
No. 30,522 is an action brought by Frank Cunningham, doing ■business under the name of Cunningham Investment Company, to obtain a preference judgment against the funds in the hands of the receiver for $1,158.38 for deposits made by him in the Peoples State Bank on April 29 and 30 and May 1, 1930, and three cashier’s checks purchased on April 26, 1930, for $150, and one check given the bank on April 30, 1930, for payment of a $24 note through another bank. The note was never paid. Payment was refused on the cashier’s checks after the bank failed and the balance of the $1,158.38 was deposited and consisted of cash, post-office money orders and local and foreign checks. The deposit on May 1 was made about fifteen minutes before three p. m., when the bank closed its doors for all time. The trial court segregated the $24 item and rendered judgment for plaintiff for $1,134.38, making it a common claim and denying a preference judgment. The cash and local checks deposited amounted to more than $600, left in the bank by the appellant, and more than $300 foreign checks went to the credit of the bank in its exchange account with the Merchants Bank.
The general allegations of the petition, the defense and the evidence were substantially the same as in the Balocca case, supra, and the plaintiff appeals, assigning error in denying his claim of preference. We observe 'no distinction between this case and the Balocca case, and find no error in denying the preference.
No. 30,367 is an action brought by the Sisters of Mercy, a corporation, to obtain a preference judgment against the receiver of the Peoples State Bank for three deposits made by them in that bank on April 28, April 30 and May 1, 1930, aggregating $1,512.82. All the items of the deposits were foreign checks, and the record shows they were sent to the Merchants Bank in Kansas City and were paid and credit was given to the Peoples State Bank for each and every check so deposited.
It is shown in this case that the Peoples State Bank was a one-man institution, and that after the bank was closed on May 1, 1930, there were found on the desk of the president unpaid checks, which fact is urged as showing the bank had committed an act of insolvency. It is further urged that the foreign checks deposited May 1 were not paid or credit given by the Merchañts Bank at Kansas City until the receiver was in charge, and therefore that credit was necessarily given to the receiver and that augmented the assets coming into his hands. If this be the rule, would it not in the same way apply to all collections made by the receiver on notes as against the value of the notes themselves as assets in his hands from the time of the closing of the bank? We do not find it neces sary to reverse or modify the ruling in the Kime case, as counsel for appellant claims, unless this is declared to be a preferred claim. That case fully protects the conclusion reached by the requirements of committing an act of insolvency and showing an increase in the funds that reach the hands of the receiver. In this case, as in the preceding ones concerning deposits, the only question involved is whether the appellant is entitled to a preference above that of the general creditors.
The general allegations, the defense and the evidence affecting the bank generally were the same as recited in the former cases involving deposits. The additional authorities cited do not, in our opinion, change the rule so as to make this a trust fund and traceable as an increase reaching the hands of the receiver. The two recent decisions cited by appellant, Peoples State Bank v. Burlington State Bank, 128 Kan. 274, 277 Pac. 39, and Duncan v. Farmers State Bank, 128 Kan. 591, 278 Pac. 763, do not in our opinion change or modify the requirements for a preference or the rule as to a deposit not ordinarily being a trust fund. The syllabus in the latter case is as follows:
“In an action by a depositor against the receiver of an insolvent bank to determine the question of preference, the record considered and ■ held, the relationship established by the plaintiff and the bank was that of debtor and creditor and not that of principal and agent, nor trustees and cestui que trust.”
The second paragraph of the syllabus in the case of Kirby v. Wait, 120 Kan. 400, 243 Pac. 1058, cited by appellant, is as follows:
“Money placed in a bank as a trust fund to pay a certain debt cannot, after the failure of the bank and the appointment of a receiver for it, be declared a preferred claim against the assets of the bank unless it is shown that the ‘assets which reached the hands of the receiver were larger by reason of such transaction than they otherwise would have been.’ ”
In this case it is shown that during those four days the Peoples State Bank did business its deposits amounted to more than $80,000, and the probability is that other deposits contained foreign checks, as did the deposits of the appellant. On May 1 it took in more than $20,000 in deposits, which was more than the cash on hand when it closed. The authorities cited in. the earlier part of this opinion have equal application to the question involved.
No. 30,702 is an action brought by Thomas Bryden, doing business under the name and style of Bryden Auto Supply Co., to obtain a preference judgment against the receiver of the Peoples State Bank.for five deposits on April 25, 26, 28, 29 and 30, 1930, in the aggregate sum of $3,767.93, which consisted of currency and checks, both domestic and foreign, the domestic being entered as cash at the home bank, and the foreign being collected by the Merchants Bank of Kansas City, which gave the home bank credit therefor. It is shown in this case that at the time the bank closed the plaintiff had on deposit, in the general balance therein, the sum of $7,081.13. All the foreign checks deposited have been paid in full and credited by the Merchants Bank. It is further shown in this case that the loans and discounts on May 1,1930, when the bank closed, amounted to $339,156.67, and of this amount there was a shortage in the account of about $79,000 where the notes or other evidences of indebtedness could not be found. It is further shown that the real estate was estimated to be worth $2,500 and the furniture and fixtures $500, and as an item under resources was the safety-deposit-vault, carried at $6,035.59. Including these items, the assistant receiver estimated the total assets of the bank as being between $85,000 and $95,000. A comparison of the deposits and amounts drawn out of the bank is shown in this case on the last few days of the business career of this bank as follows: April 25, checks, $22,518.80, deposits, $17,578.44; April 26, checks, $16,603.25, deposits, $10,907.34; April 28, checks, $13,285.10, deposits, $18,529.16; April 30, checks, $11,150.45; May 1, checks, $17,381.05. That on January 23, 1930, when the bank refused to cash the $2,600 check of one of its depositors, this bank had a balance in the Commerce Trust Company of $4,304.38, in the Merchants Bank of $25,299.46, in the National Reserve Bank of $76.75 and cash on hand $27,239.56.
The only question involved in this case is like that in the preceding deposit cases — the right to a preference judgment. The trial court gave plaintiff judgment for a common claim, denying a preference, and he appeals alleging error in that ruling. Appellant cites in addition to the citations in the foregoing cases the decision in the case of Federal Reserve Bank v. Omaha Nat. Bank, 45 F. 2d 511, where some exceedingly strong and forceful principles are enunciated in favor of the theory of the appellant, but the facts in the two cases are so dissimilar that the same rules are hardly applicable to both cases. There three directors of the hopelessly insolvent bank were directors and officers in another bank which kept a large deposit with the insolvent bank, and during the three or four days prior to the closing of its doors, while in conference with the bank examiner on that subject, the failing bank transferred by wire through a common correspondent bank to the other bank more than $80,000, and the court set aside this self-arranged preference as a fraud upon the general depositors — very different from the fraud in this case of receiving deposits when the bank was hopelessly insolvent and the officers of the bank knew it. The same fraud was perpetrated upon all the customers who made deposits in this bank on the same day or days as this plaintiff did. There is not a word of testimony in these deposit cases that shows a peculiar or different situation as to these plaintiffs from the fraud upon all the other depositors, as there was in the fraudulent transactions in the first four cases decided in this opinion, where it consisted of misappropriating bonds left there for safe-keeping or money left specially for particular investments. Here the fraud practiced upon these plaintiffs is no different, as far as the evidence shows, from that imposed upon all others making deposits on the same days, and a preference among such depositors under these circumstances would be unfair and inequitable.
No. 30,526 is an action brought by G. P. Hutchison against the receiver of the Peoples State Bank to obtain a preference judgment for deposits made by plaintiff in that bank on April 21, 23 and 29, 1930, amounting to $961.46. Part of these deposits were cash and local checks which were equivalent to cash, and the foreign checks were collected by the Merchants Bank before the Peoples Bank failed on May 1. It is urged that while this collection was used to pay an obligation of the Peoples Bank due the Merchants Bank, yet the Peoples Bank later received the collateral pledged to the Merchants Bank, which the record shows to have been about $21,000 of genuine notes. The allegations, defense, evidence and ruling in this case were substantially the same as in the preceding deposit cases and the same question is involved, viz., a claim of preference because of the bank receiving these deposits when it was hopelessly insolvent, which condition was known to its officers at the time, and that the deposits augmented the assets of the bank coming into the hands of the receiver. As stated earlier herein, the rights of the appellant under the decisions upon which he relies are dependent not only on the alleged fraudulent act and the knowledge of the officers of the hopelessly insolvent condition of the bank at the time of receiving the deposits, but also the need of the commission of an act of insolvency and a showing that the augmented assets reached the hands of the receiver. We think appellant has failed in these respects and therefore is not entitled to a preference over and above the general creditors.
No. 30,521 is an action brought by the General Contract Purchase Corporation against the receiver of the Peoples State Bank to obtain a preference judgment for four deposits made in the bank on April 8, 12, 17 and 28, 1930, of money belonging to this plaintiff, amounting to $527.83, but which had been deposited in the account of the Four-State Maytag Company, which was making the collections for the plaintiff company under contract and for a commission — the president of the bank being the managing officer of the collecting company. At the time of the bank failure the Four-State Maytag Company had on deposit in the bank more than the amount here involved, but the receiver appropriated it to pay a note of that company held by the bank. Judgment was rendered for the plaintiff for a common claim, and plaintiff appeals on account of the refusal of the trial coúrt to grant a preference. The pleadings and facts in this case are substantially the same as in the preceding deposit cases and the authorities governing in those cases we think control in this cáse, to the effect that the deposit is not under the facts and circumstances a trust fund and has not augmented the assets of the insolvent bank coming into the hands of the receiver. Hence it is not a trust fund nor equitably entitled to a preference over the other depositors and creditors of the bank.
We find no error in the denial by the trial court of the preference judgment claimed by the appellant in each of the foregoing ten cases, and therefore the judgment rendered in each of the cases here considered is affirmed. | [
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The opinion of the court was delivered by
Abbott, J.:
This is an appeal from the trial court’s grant of summary judgment in favor of Kansas City Power & Light Company (KCPL). This is a class action negligence suit on behalf of current and former employees of KCPL, alleging property damage to their vehicles because of exposure to acidic particulate emissions (acid rain) from the plant. The plaintiffs also appeal from the trial court’s denial of class certification to the plaintiffs’ spouses.
KCPL is a public utility that owns and operates the LaCygne Generating Station, a two-unit coal-fired electric generation facility located near LaCygne, Kansas, in Linn County. -
To generate electric energy, both units at the LaCygne plant bum coal as fuel. To remove a percentage of the particulates, including fly ash, sulphur dioxide (SOa), and sulphur trioxide (S03), from the combustion gases emitted from the boiler and discharged into the stack, Unit No. 1 employs a limestone wet slurry scrubber, which uses a mixture of water and ground limestone. Unit No. 2 employs an electrostatic precipitator to remove a percentage of the particulates (fly ash) from the combustion gases emitted from the boiler and discharged into the stack. No pollution control equipment is used to remove sulphur compounds from the combustion gases in Unit No. 2 because a better grade of coal with a low sulphur content was burned. Unit No. 1 bums a lower grade of coal and has design features and prob lems unique to it. When combined with water, S02 forms sulphurous acid and S03 forms sulphuric acid. These acids corrode the exterior surfaces of vehicles.
The substances emitted from the stacks of the two units are governed by federal and state air quality control laws. Congress enacted the Clean Air Act to regulate and control air pollution. The Act enables the Environmental Protection Agency (EPA) to identify air pollutants posing a hazard to public health and welfare and to promulgate the National Ambient Air Quality Standards (NAAQS) for those pollutants. Such a standard has been promulgated for S02. To comply with the NAAQS, Kansas has developed a State Implementation Plan (SIP), which the EPA has approved. K.A.R. 28-19-31(C), part of the Kansas SIP, provides:
“A person responsible for operation of any indirect heating equipment having a heat input of 250 million BTU/hr or greater shall not cause or permit the emission or more than 1.5 pounds of sulfur per million BTU of heat input per hour.”
Both parties agree this regulation governs the emissions from Unit No. 1, which has indirect heating equipment with a heat input of 250 million BTU/hr or greater.
In August 1977, KCPL hired Bums & McDonnell to conduct emissions tests. Bums & McDonnell reported that Unit No. 1 was emitting less than the legal limit, which is three pounds of S02 per million BTU. The record is not clear how the “1.5 pounds of sulfur per million BTU of heat input per hour” language of K.A.R. 28-19-31(C) translates into the “three pounds of S02 per million BTU” that the parties agree is the legal limit.
In 1987, Bums & McDonnell again conducted emissions tests at the request of KCPL. On June 24, 1987, the tests performed reflected S02 emissions of 3.12, 3.71, 3.65, and 5.68 pounds per million BTUs. The average test ran was 3.49. In December 1987, two of the seven tests performed were under the three-pound limit, reflecting S02 emissions of 2.98 and 2.89 pounds per million BTU. The other five tests performed were above the three-pound limit. KCPL did not inform employees of any of the 1987 test results.
In December 1975, at the LaCygne Generating Station, KCPL posted written notices disclaiming responsibility for damage to vehicles.
The notice read:
“NOTICE TO ALL EMPLOYEES OF KANSAS CITY POWER & LIGHT COMPANY ....
Within the past several weeks, Kansas City Power & Light Company has received numerous damage claims by insurance companies which have paid losses to their insureds for damage to motor vehicle finishes allegedly the result of stack emissions. These claims have all been denied by the Company due to the fact that stack emissions are a normal result of day-to-day operations and are not the result of any negligent activity by the Company or its employees.
PLEASE BE ADVISED THAT THE COMPANY WILL CONTINUE TO DENY THESE TYPES OF CLAIMS, AND THAT PARKING YOUR MOTOR VEHICLE AT OR NEAR THE PLANT SITE IS AT YOUR RISK.”
James A. Tuley, who filed the original petition, denied ever seeing or being aware of this notice.
In February 1976, KCPL erected a permanent outdoor sign that reads as follows:
“NOTICE TO PARKING LOT USERS - AIRBORNE MATERIALS FROM CONSTRUCTION ACTIVITIES AND FROM INTERMITTENT STACK EMISSIONS MAY CAUSE DAMAGE TO VEHICLES - USE OF THIS LOT IS AT YOUR OWN RISK.”
The sign is eight by four feet with the top of the sign eight feet above the ground. The sign is located 1,136 feet from the main gate and 851 feet from the entrance to the parking shelter. Tuley and Angela Hatfield, the plaintiffs representing the class, admitted to reading the sign and being aware of its warning.
Beginning in 1978, KCPL constructed four separate covered parking lots to provide parking for its employees. After these four lots were constructed, there were no major incidents involving paint damage to employees’ vehicles parked at the LaCygne plant until 1987. That does not mean there was no damage. The record shows there was damage to at least some vehicles. In fact, Tuley testified he had been an employee of KCPL for 18 years and that “[ejvery vehicle [he has] ever owned and driven in the power plant has been damaged.”
From December 1987 to February 1988, Unit No. 1 operated with severe problems. The unit’s steam generator and AQC system were designed to bum coal containing a higher thermal content and a significantly lower ash and sulphur content than the coal actually burned from 1987 to 1989. The change in coal quality had a negative effect on the performance of the unit’s steam generator and AQC system. The type of emissions released by a unit depends upon the quality of the coal burned. In 1977, because of historically poor coal quality, KCPL had agreed to adjust the contract with the coal supplier and accept coal with a lower thermal content and a higher ash content. By or before the spring of 1988, KCPL concluded Unit No. 1 could not comply with the air quality control regulation on SOz emissions because of the type of coal being burned in the unit. KCPL did not inform the plaintiffs that it was in violation of and could not comply with the applicable air quality control standards.
It is undisputed that the risk of particulate emission damage to employees’ vehicles, which were parked in the parking lot KCPL provided, was increased because KCPL did not comply with the air quality control standards, particularly the regulation limiting SOz emissions. Because of the combination of factors set forth above, there was a sufficient quantity of moisture residue for the wind to carry the residue underneath the canopies covering the employee parking lot. The canopies range from 14 feet 4 inches to 18 feet above the surface level, a height that is higher than necessary to accommodate employee vehicles. The canopies’ design did not consider horizontal wind reaction. As a result, the canopies are effective only if there is no wind.
In July 1989, Tuley filed a negligence action against KCPL, requesting that the trial court certify the action as a class action with KCPL employees composing the class members and alleging KCPL’s negligence caused employee vehicles to be exposed to acid rain, that is, acidic particulate emissions from the plant. The petition was amended to include employees’ spouses within the requested class. The trial court certified the action as a class action, but declined to include the spouses of employees within the class. KCPL filed a motion for summary judgment, alleging that the assumption of risk doctrine barred the plaintiffs’ claims. The trial court granted this motion.
The plaintiffs appeal, arguing that the trial court erred in finding the assumption of risk doctrine barred the plaintiffs’ claim and in denying class certification to the plaintiffs’ spouses. The plaintiffs’ motion, pursuant to K.S.A. 20-3017, to transfer the case from the Court of Appeals to this court was granted.
I. Viability of Assumption of Risk Defense
The plaintiffs ask this court to abolish the defense of assumption of risk. In Kansas, the common-law assumption of risk doctrine is restricted to cases involving employer-employee relationships. Smith v. Blakey, Administrator, 213 Kan. 91, 101, 515 P.2d 1062 (1973). This case involves an employment relationship. Therefore, under Jackson v. City of Kansas City, 235 Kan. 278, 680 P.2d 877 (1984), KCPL could raise assumption of risk as a defense. The plaintiffs acknowledge the Jackson court held that comparative negligence principles do not abrogate the doctrine of assumption of risk. Nonetheless, the plaintiffs claim the issue warrants reconsideration because the rationale for retaining the doctrine is no longer persuasive in that it has outlived its utility and it defeats the purpose of comparative fault legislation. In order to consider the viability of the plaintiffs’ claim, we first must review the Jackson decision.
The Jackson court held: “Within its very restricted periphery of application, the common law defense of assumption of risk has not been altered by the adoption of comparative fault, K.S.A. 60-258a, and continues to constitute an absolute bar to recovery.” 235 Kan. 278, Syl. ¶ 6. In so holding, the court paid special attention to the fact that prior cases treated the doctrines of assumption of risk and contributory negligence as distinct concepts. The statutory comparative negligence scheme, enacted in 1974 and codified at K.S.A. 1991 Supp. 60-258a, only provides that contributory negligence is not a complete bar to recovery. The statute is silent concerning the effect of comparative negligence principles upon the doctrine of assumption of risk. Therefore, the Jackson court concluded the legislature did not intend 60-258a to apply to the doctrine of assumption of risk.
Additionally, the Jackson court noted that two years after the enactment of 60-258a, the legislature amended the affirmative defenses statute, now K.S.A. 1991 Supp. 60-208(c), but did not delete assumption of risk or injury by fellow servant from the list of affirmative defenses. Thus, it was concluded the legislature had the opportunity to abolish the assumption of risk defense, but did not do so, giving an indication it did not intend for the doctrine to be abolished. Based upon this analysis of legislative intent, we held assumption of risk applicable to employer-em ployee negligence cases not otherwise excluded, such as workers compensation cases.
It cannot be ignored that the legislature has had eight years since the Jackson decision to abrogate statutorily assumption of risk and has not done so. We are unwilling now to abolish the doctrine because the legislature has given no indication it desires to do so. Thus, we affirm syllabus ¶ 6 of Jackson v. City of Kansas City, 235 Kan. 278, which reads as follows:
“Within its very restricted periphery of application, the common law defense of assumption of risk has not been altered by the adoption of comparative fault, K.S.A. 60-258a, and continues to constitute an absolute bar to recovery.”
II. Plaintiffs’ Property Damages Claim
Relying upon Schoof v. Byrd, 197 Kan. 38, 415 P.2d 384 (1966), the trial court found that the defense of assumption of risk applies to property damages. The Schoof court stated: “Under the doctrine of assumed risk, one who voluntarily exposes himself or his property to a known or appreciated danger due to the negligence of another may not recover [for] the injury sustained thereby.” 197 Kan. at 52-53.
The plaintiffs contend the trial court erred in relying upon this statement in Schoof in that the statement was dictum because the damages claimed in Schoof were for personal injuries, not property damages. The plaintiffs, however, do not cite any authority from Kansas, other jurisdictions, or secondary sources to support their proposition that assumption of risk cannot be raised in a case involving only property damages.
KCPL cites three cases from other jurisdictions to refute the plaintiffs’ proposition. See Wilder v. DiPiazza, 481 So. 2d 1091 (Ala. 1985); Reckart v. Avra Valley Air, Inc., 19 Ariz. App. 538, 509 P.2d 231 (1973); Commonwealth v. Millsaps, 232 Va. 502, 352 S.E.2d 311 (1987). Although none of the cases cited involved an employer-employee relationship, assumption of risk was applied as a defense. Millsaps and Reckart involved only property damages. Wilder involved both property damages and personal injury. None of the courts expressly addressed the issue that is before this court. KCPL also directs this court’s attention to a C.J.S. discussion in which the doctrine of assumption of risk is described as being applicable to both personal injury and property damage. See 65A C.J.S., Negligence § 174(1), (4), pp. 289, 299; and see 57A Am. Jur. 2d, Negligence § 804. The general rule is that assumption of risk can be raised as a defense to a claim involving property damages. We are cited no valid reason why Kansas should not follow the general rule. Kansas has assumed that to be the law in this state as evidenced by Schoof v. Byrd.
According to the plaintiffs, the trial court also erred in deciding this issue as a matter of law. Again, without citing any authority, the plaintiffs argue it is a question of fact whether assumption of risk applies to property damages. The Jackson court restated that assumption of the usual risk of employment is a question of law, but a jury question can arise if the risks of employment are unusual. 235 Kan. at 294. The plaintiffs’ proposition does not fit within the Jackson court’s discussion concerning questions of law and fact. The trial court did not err in holding as a matter of law that assumption of risk applies to the property damages claimed in this case.
III. Summary Judgment
The trial court granted KCPL’s motion for summary judgment, in which KCPL had argued that the defense of assumption of risk barred the plaintiffs’ claims and that KCPL had not violated its duty to provide a safe work place. The plaintiffs argue that the trial court erred in granting KCPL’s motion.
The trial court listed the key elements in proving the defense of assumption of risk as “knowledge or appreciation of the danger of the risk, an employment agreement, and a voluntary assumption of that risk by acceptance or continuation of employment.” Dean Prosser lists two requirements: “[T]he plaintiff must know and understand the risk he is incurring, and . . . his choice to incur it must be entirely free and voluntary.” Prosser, Law of Torts § 68, p. 447 (4th ed. 1971). These requirements or elements will be referred to as “knowledge of risk” and “voluntary assumption.”
The plaintiffs interpret Jackson v. City of Kansas City, 235 Kan. 278, 680 P.2d 877 (1984), to mean a defendant’s negligence is an absolute bar to asserting a successful assumption of risk defense, based upon the following statements in Jackson:
“In Miller v. Beech Aircraft Corporation, 204 Kan. 184, 460 P.2d 535 (1969), this court noted the doctrine was not viable when the risks resulted from the masters negligence. 204 Kan. at 190.” 235 Kan. at 294.
“In discussing the common law defense of fellow servant, which is a subspecies of assumption of risk, this court in Taylor v. Hostetler, 186 Kan. 788, 352 P.2d 1042 (1960), stated:
‘For the master to claim exemption from liabilities for injuries to a servant on the ground that the negligent act was that of a fellow servant, the master must have exercised reasonable care to prevent the injury. The risk that the master may be negligent in performing his duty is not one that the servant assumes.’ ” 235 Kan. at 304.
“As shown by the cases heretofore cited the employer must, in essence, be negligence free as a condition to the successful assertion of the defense of assumption of risk. Therefore, when assumption of risk has been established there is no negligence to be compared between the employer and the injured employee.” 235 Kan. at 305. (Emphasis added.)
The trial court acknowledged it was troubled by these statements, commenting:
“It has been the general rule that ‘a servant generally assumes the risks attributable to his employer’s negligence where he has knowledge of such risks or they are so patent and obvious that he should have known of their existence.’ 56 C.J.S., Master and Servant, § 384, p. 1194. This general rule flows consistently throughout the Kansas case law regarding the assumption of risk doctrine excepting, arguably, only the decision of Jackson v. City of Kansas City, 235 Kan. 278, 680 P.2d 877 (1984).”
The trial court asserted that these statements were dicta; that this court had not intended for the statements to be taken as a "universal conclusion that whenever the defendant is negligent, the assumption of risk doctrine cannot apply”; that the cases the Jackson court relied upon did not support such a conclusion; and that to interpret Jackson as the plaintiffs suggest would require reversing a long line of cases.
KCPL contends it is illogical to require an employer to be free of negligence before the employer can raise assumption of risk as a defense. KCPL asks, “What need has the defendant for such a ‘complete defense,’ when his freedom from negligence is already a complete defense?”
The plaintiffs’ interpretation of the language in Jackson is overbroad. This court did not intend the interpretation the plaintiffs place on the language. In Jackson, this court reviewed the general law of assumption of risk when we stated “in essence” and in dicta made a sweeping generalization; that, if interpreted literally, is not a correct statement of law. The law governing an employer s negligence in assumption of risk cases is set forth in Schoof v. Byrd, 197 Kan. at 55:
“ ‘An employee cannot recover from an employer unless the employer has been guilty of negligence. The employer must have been guilty of some breach of duty which he owed to the servant. The employer is not to be held liable for an injury to an employee simply because of danger which was inherent in the employment, whether in the place of employment or the cause of the danger inherent in the tools, machinery or appliances with which the work must be performed. A master is not an insurer against injuries which his servants may incur in the discharge of their duties. See, e.g., West v. Packing Co., 86 Kan. 890, 122 Pac. 1024; Udey v. City of Winfield, 97 Kan. 279, 155 Pac. 43; Gentry v. Davis, Agent, 115 Kan. 335, 222 Pac. 769, and Hunter v. Barnsdall Refining Co., 126 Kan. 277, 268 Pac. 86.’ ”
Other applicable rules of law pertaining to this case are set forth in Jackson as follows:
“Borth v. Borth, 221 Kan. 494, 561 P.2d 408 (1977), contains a good summary of Kansas law on assumption of risk. Although decided after the introduction of comparative fault (1974), the cause of action arose prior thereto (1971). This court stated:
‘The doctrine of assumption of risk is still viable in Kansas though its application is limited to cases such as this where a master-servant relationship is involved. Smith v. Blakey, Administrator, 213 Kan. 91, 101, 515 P.2d 1062. We turn first to our recent decisions in master-servant cases involving the doctrine. Mechtley v. Price, 217 Kan. 344, 536 P.2d 1385, was an action by a farm employee against his employers to recover for personal injuries when an unshod horse he was riding stumbled and fell. We there said:
“ ‘. . . Assumption of risk, in the law of master and servant, is a phrase commonly used to describe a term or condition in the contract of employment, either express or implied from the circumstances of the employment, by which the employee agrees that certain dangers of injury, while he is engaged in the service for which he is hired, shall be at the risk of the employee (Blackmore v. Auer, 187 Kan. 434, 357 P.2d 765). Assumption of risk generally bars recovery by an employee who knows of the danger in a situation but nevertheless voluntarily exposes himself to that danger. In Kleppe v. Prawl, 181 Kan. 590, 313 P.2d 227, 63 A.L.R.2d 175, we said:
“ ‘ “. . . [Assumption of risk arises through implied contract of assuming the risk of a known danger; the essence of it is venturousness; it implies intentional exposure to a known danger; it embraces a mental state of willingness; it pertains to the preliminary conduct of getting into a dangerous employment or relation; it means voluntarily incurring the risk of an accident, which may not occur, and which the person assuming the risk may be careful to avoid; it defeats recovery because it is a previous abandonment of the right to complain if an accident occurs.” ’ (p. 594.)
“ ‘It should be noted the knowledge and appreciation of the risk involved is to he judged by a subjective standard, by knowledge attributable to the individual plaintiff and his situation (Prosser, Law of Torts, 4th ed„ 1971, § 68, p. 447).’ (p. 348.)
‘ “However, we should note that Prosser goes on to say that:
‘ . . [A] purely subjective standard opens a very wide door for the plaintiff who is willing to testify that he did not know or understand the risk; and there have been a good many cases in which the courts have said in effect that he is not to be believed, so that in effect something of an objective element enters the case, and the standard applied in fact does not differ greatly from that of the reasonable man. The plaintiff will not be heard to say that he did not comprehend a risk which must have been quite clear and obvious to him. . . .” Prosser, Law of Torts, 4th ed., 1971, § 68, p. 448.’ ” Jackson, 235 Kan. at 302-03.
“ ‘In Blackmore v. Auer, 187 Kan. 434, 357 P.2d 765, where a farm laborer was injured while loading baled hay, we said:
“ ‘ “The assumption of the usual risks of an employment is not ordinarily a jury question. It is a matter of law. It is only where the risk is or may be unusual that a jury question can arise; and even in such cases, if the risk though unusual is obvious, such as an ordinarily prudent man could appreciate and understand, the workman who persists in the employment assumes the risk of it. Lively v. Railway Co., 115 Kan. 784, 225 Pac. 103, and authorities cited' therein.” (pp. 444, 445.)’ 221 Kan. at 499-501.” Jackson, 235 Kan. at 304.
Here, KCPL had no duty to furnish parking to its employees. It did so, but placed a large sign in a conspicuous place warning of the risk and advising people they parked at their own risk. Anyone driving by the sign on a daily basis is presumed to have read the sign. The fact that employees on the morale committee worked with management to install covered parking leaves no room for doubt it was done to protect vehicles from acid rain.
Tuley’s testimony was that the emissions had damaged every vehicle he had owned and driven to the plant for 18 years. Common sense tells one that a car parked in an open pasture setting, under a roof, open on four sides, will have whatever is in the air blown on it when the wind blows, and this is so whatever the height of the roof. Thus, the employees knew of the risk and knew both of the potential harm and of the actual harm.
It is not knowledge of the actual facts that is determinative in applying assumption of risk; it is knowledge of the risk involved. Here, the risk was obvious and, although KCPL (for the purpose of a summary judgment motion) was negligent to some extent in allowing excessive omissions into the air, even then, the employees observed splotches of ash, etc., on their vehicles. The plaintiffs did not have knowledge of the act, or acts, of negligence concerning the emissions, but they did know, or should have known, of and appreciated the risk of parking their vehicles next to the plant.
With regard to the canopies, the trial court found “that the construction of the cover parking facilities subsequent to the erection of the warning sign might, at best, constitute an inducement to continue employment.”
“ ‘. . . [TJhere is an exception to the general rule of the assumption of risk in those cases where an employee, after complaint has been made of a defective or dangerous condition, is induced to continue his service for a reasonable time by reason of his employer’s promise to remedy the defect. [Citations.] The application of this exception presupposes that the employee has complained of the dangerous condition to his employer; that the employer has promised to remedy the dangerous condition; and that the employee has thereafter continued his service for a reasonable time in reliance upon the employer’s promise.’ [Citation omitted.]” Mechtley v. Price, 217 Kan. 344, 349, 536 P.2d 1385 (1975).
The trial court concluded that the record did not support the finding that KCPL had promised to remedy the situation or had induced the plaintiffs to continue employment for a reasonable time. The covered parking was installed in 1978. Thus, employees had an opportunity to gauge the roofs’ effectiveness for some 10 years, and the record contains nothing that can be construed as a promise to remedy the situation or to do anything further.
The trial court found that assumption of risk can be raised as a defense even if the defendant’s alleged negligence is based upon violation of a statute. We agree. See Prosser, Law of Torts § 68, p. 453 (“Where the defendant’s negligence consists of the violation of a statute, the traditional view has been that the plaintiff may still assume the risk.”).
The trial court did not err in granting summary judgment in favor of KCPL.
IV. Members’ Spouses
The trial court rejected the plaintiffs’ argument that the class membership should include employees’ spouses because the spouses owned an interest in the vehicles damaged by the acid rain. The court found “that the basis for this joinder, i.e., ownership of an interest in the vehicle, opens the class to a number of persons and/or parties, including financial institutions, insurance companies, etc., whose participation in the class action is unnecessary, unmanageable, and inappropriate.”
The standard of review is whether the trial court abused its discretion. See Connolly v. Frobenius, 2 Kan. App. 2d 18, Syl. ¶ 3, 574 P.2d 971, rev. denied 225 Kan. 843 (1978) (“The trial judge must be afforded substantial discretion in the decision-making process as to the maintenance of a class action.”); Steele v. Security Benefit Life Ins. Co., 226 Kan. 631, 638, 602 P.2d 1305 (1979). “Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable person would take the view adopted by the trial court.” In re Marriage of Soden, 251 Kan. 225, Syl. ¶ 9, 834 P.2d 358 (1992).
The plaintiffs disagree with the trial court’s rationale that joinder of spouses would open the class to financial institutions, insurance companies, etc. The plaintiffs contend such parties’ interest in the vehicle would be triggered only upon some condition precedent, such as default, loss, payment, or subrogation. The plaintiffs maintain that joinder of spouses is necessary to avoid duplication of lawsuits and directs this court’s attention to federal cases in which spouses were allowed to join the class of members.
KCPL responds that other federal cases have denied class membership to spouses. The defendant asserts the fact “[t]hat other courts in other cases presenting different facts and different claims reached a different decision does not render the trial court’s decision an abuse of discretion.” KCPL also points out that the plaintiffs attempted to join all spouses, regardless of whether the individual spouse had an ownership interest in the employee vehicle. The defendant contends that each plaintiff adequately protects his or her membership in the class and can assert the interest of the joint tenant, if there is one.
The trial court’s decision was not arbitrary, fanciful, or unreasonable. Furthermore, we cannot say no reasonable person would take the view adopted by the trial court. Thus, the trial court did not abuse its discretion, and this court will not disturb the trial court’s ruling on appeal.
Affirmed. | [
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|
The opinion of the court was delivered by
Allen, J.:
This action was to set aside a deed on the ground of fraud. The original petition was filed March 27, 1937. A demurrer to the petition was sustained.
Thereafter divers motions and demurrers were leveled at the first, second and third amended petitions filed by plaintiffs. Details are not here important.
On September 6, 1938, the fourth amended petition was filed. Seven separate causes of action were pleaded. A demurrer to the fourth amended petition was overruled on January 23, 1939.' No appeal was taken from the order overruling the demurrer.
On May 5, 1939, defendant filed an answer. The answer admitted certain facts alleged in the petition, denied others, and alleged various facts in answer to the separate causes of action in the petition. On August 31, 1939, plaintiffs filed a reply.
Thereupon the defendant filed a motion for judgment on the pleadings. On November 6, 1939, this motion was denied. This appeal is from the order and ruling of the court overruling defendant’s motion for judgment on the pleadings.
Plaintiffs have filed a motion to dismiss the appeal. The motion must be sustained.
Ordinarily a motion for judgment on the pleadings has the effect of a demurrer. The defendant is in this dilemma: If the motion is not to be treated as a demurrer it is not an appealable order. If we are to consider the motion as equivalent to a demurrer, then it is merely a second challenge to the sufficiency of the petition. Our code does not provide for a second demurrer to the same petition. No appeal was taken from the order on November 6, 1939, overruling the demurrer. The time for perfecting an appeal cannot be extended by filing a subsequent motion having the effect of a demurrer. The case cannot be differentiated from our recent case of Gas Service Co. v. Consolidated Gas Utilities Corp., 150 Kan. 715, 96 P. 2d 608. See, also, Thresher Co. v. Nelson, 106 Kan. 716, 189 Pac. 907; Tarnstrom v. Olson, 150 Kan. 528, 95 P. 2d 352. Under the ruling in the Gas Service Co. case, supra, the appeal must be dismissed. It is so ordered., | [
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|
The opinion of the court was delivered by
Dawson, C. J.:
This was an action by stockholders of a bank in behalf of their corporation against the defendant directors thereof to set aside and hold for naught a sale of fifteen shares of stock in the corporation which the directors had made to themselves and to recover for the corporation the profits defendants had made on the challenged transaction.
It appears that in the spring of 1938 some of the officers, directors and stockholders were contemplating a voluntary liquidation of the First National Bank, of Lewis, Kan. One of the slow assets of that bank was a note for $3,500 executed by one S. A. Rouse in 1923 which had been scaled down or partly charged off from time to time over a period of years, until in the spring of 1938 it was 'carried on the books of the bank at a valuation of $650 (plus $30 accrued interest) and was secured by fifteen shares of the capital stock of the bank owned by Rouse.
On May 11, 1938, the board of directors met, all five of these defendants, no others being present. On motion it was decided to accept $250 in cash and the fifteen shares of bank stock in final payment of the note of S. A. Rouse.
On May 14, at an adjourned meeting the same defendant directors, no others being present, voted to have the Rouse shares of stock transferred to themselves individually at the figure at which they were taken over by the bank two days before, in the settlement of the Rouse indebtedness. That figure was $430. Each of the five defendant directors accordingly paid into the bank the sum of $86, and three shares of the bank stock were reissued to each of them — ■ at $28.66 per share.
The book value of the stock at that time was $117 per share.
Significant entries in the minutes of the board of directors at subsequent meetings held shortly thereafter, in part, read:
“May 16, 1938. . . . The meeting was called to order for the purpose of appointing a committee to sell the assets of this bank to the Home State Bank for book value of our stock for cash. G. [S.] White and Ben Bordewick were appointed to receive the offer and present it to the shareholders at a future meeting.
“May 23. . . . The meeting was called for the purpose of discussing voluntary liquidation, . . . A. E. Jarvis moved that the First National Bank of Lewis, Kan., go into voluntary liquidation. Seconded by T. P. Sparke. Carried.”
The plaintiff stockholders went through the formality of demanding that the board of directors institute proper proceedings to restore the bank’s assets existing before the challenged transaction occurred. They also demanded that the bank’s liquidating agent should proceed against the defendant directors to attain the same object. Both demands were refused, and this action followed.
On issues joined the cause was tried by the court without a jury. The court made findings of fact and conclusions of law in favor of plaintiffs, and gave judgment as follows:
“And now on this 8th day of September, 1939, . . . It is by the court considered, ordered and adjudged that the said plaintiffs have judgment herein, for the benefit of the First National Bank of Lewis, Kan., a national banking corporation, against the defendants, G. W. Wells, G. S. White, A. E. Jarvis, O. T. Madden and T. P. Sparke, and each of them, for the sum of $545, and for costs of this aetion, taxed at $-, and further judgment and decree against the said defendants last above named that the transfer of fifteen shares of the stock of said First National Bank of Lewis, Kan., to said defendants, and whereby each of said defendants received three shares of said stock, said transfers having been made or authorized on or about the 14th day of May, 1938, and being the fifteen shares of said stock procured by said bank from one S. A. Rouse, be and the same hereby is canceled, set aside and held for naught, and that said defendants and no one of them have any right, or title in or to said stock or any part thereof by virtue of such transfer, and it is by the court further considered, ordered, adjudged and decreed that the First National Bank of Lewis, Kan., is the owner of said stock.”
Defendants appeal, assigning various errors which center about their general objection to the net result.
At the outset plaintiffs present a motion to dismiss the appeal on the ground that it was not taken in time. However, owing to the condition of the record, the trial court’s submission of tentative findings of fact, the making and mailing of later findings from Denver, Colo, (which involved a question of jurisdiction), and certain subsequent motions which the trial court saw fit to consider and rule upon in sequence, this phase of the appeal is so much entangled in subtleties that we prefer not to consider them unless we find the questions involved in the merits of the appeal equally difficult of solution.
Turning therefore to the latter, we must first take note of the trial court’s findings of fact, the substance of which has been included, in part, in our statement above. The trial court found that prior to the final disposition of the Rouse indebtedness the directors of the bank had tried unsuccessfully to sell the Rouse bank stock; that in the spring of 1938 the stock had no market value; that its book value was $117 per share, and that its actual value was uncertain; that the deputy comptroller of the currency had criticized the Rouse loan as excessive—
“Suggesting that the board of directors purchase the Rouse stock in order to enable the bank to collect as much as possible upon his indebtedness, and suggesting that apparently the book value of the asset could be realized and there would be a material recovery on the charged-off portion of the assets of the bank.”
The trial court also found that in taking title to the Rouse bank stock in their own names at $28.66 per share — ■
“The directors did not, in fixing the price for the purchase of this stock, consider the book value of the stock, or the actual value of the stock, but took the stock at a price that would balance the Rouse loan. In this transaction the directors were acting for the purpose of complying with the objections of the bank examiners to the Rouse loan, and did not want to purchase the stock, but did so under the belief that as officials of the bank it was their duty to comply with the requirements of the banking department. The directors acted in good faith in purchasing the stock, but did not act in good faith in determining the purchase price of the stock to themselves.”
The court’s findings also stated that on the date when the directors purchased the bank stock some of them knew that a movement looking toward a liquidation of the bank was on foot, and two days later the defendant directors did institute proceedings to that effect.
Before this lawsuit was commenced, the liquidation of the bank had so far proceeded that the liquidating agent had paid a dividend of $65 per share on all the bank stock, including the shares the defendants had taken over from the bank at $28.66 per share; and the trial court also found that the remaining assets of the bank would pay a further dividend of $28.33 per share.
The trial court’s conclusions of law read:
“(1) The failure of the members of the board of directors to act in good faith in fixing the purchase price of the Rouse stock to themselves rendered the transaction fraudulent and void.
“(2) Since the transaction of the Rouse stock to the members of the board of directors was void, the same could not be ratified by the stockholders at a stockholders meeting.
“(3) The First National Bank of Lewis, Kan., is the owner of the Rouse stock and the certificates of transfer of the Rouse stock to the members of the board of directors should be canceled.
“(4) The First National Bank of Lewis, Kan., has a cause of action for the cancellation of the transfers of the Rouse stock to the members of the board of directors and for recovery of dividends received on said stock since the transfers. The failure of the bank to bring such action upon demand entitles the plaintiff to bring this action for the benefit of the bank.
“(5) The plaintiffs are entitled to judgment against the defendants, for the benefit of the First National Bank of Lewis, for the cancellation of the Rouse stock transfers to the members of the board of directors; and judgment against the defendants, for the benefit of the bank, for the difference between $975 received in liquidating dividends for the fifteen shares of Rouse stock and the $430 paid by the defendants for the Rouse stock, or judgment for $545 and costs.”
One of the defendants’ objections to the judgment based on the foregoing conclusions of fact and of law is that the plaintiffs did not establish their right to sue on behalf of the corporation and for its benefit. We think the evidence clearly established the conditions precedent under which minority stockholders could maintain the action. In Mitchell v. Beachy, 110 Kan. 60, 202 Pac. 624, it was said:
“It is the law that one or more stockholders who have a substantial amount of corporate stock, i. e., more than a trivial amount, have the right to maintain an action in behalf of their corporation to protect its rights or to redress or prevent injuries to it, where the duty of its officers to do so is clear and imperative and where the latter will not discharge that duty. In Ryan et al., v. L., A. & N. W. Rly. Co., 21 Kan. 365, it was held:
“ ‘As the corporation itself holds its property as trustee for the stockholders, who have a joint interest in all its property and effects, and each of whom.is related to it as cestui que trust, if the corporation refuses to call to account, by proper legal proceedings, its directors and officers who are abusing their trust, misapplying the. funds of the corporation, and receiving profits from contracts made by other parties with the corporation, through their aid, or if such corporation is still under the control of those who necessarily must be ma.de defendants in such" proceedings, so that it would be a mockery to require or permit a suit against them to be brought and prosecuted under their management, the stockholders who are the' real parties in interest, or a part of them, may maintain an action to make such officers, and all parties who have participated with said officers in their unlawful transactions, account for their wrongs and frauds; and the corporation is a proper party defendant with them.’ (Syl.([4.)” (p. 61.)
In Planten v. National Nassau Bank, 160 N. Y. S. 297, which was a suit by a stockholder for himself and other stockholders, in the right of the corporation which was in process of liquidation, for an accounting by directors for losses resulting from their mismanagement, wrongful acts and negligence, three of the headnotes state the pertinent law thus:
“While the authority of a stockholder to sue in the right of the corporation is a rule of necessity, resting solely on judicial decisions, to protect the stockholders when those in authority fail or refuse to protect the rights of the corporation, when a proper foundation is laid for the action by a stockholder, although the cause of action belongs to the corporation, the fruits of the litigation inure to its benefit, and it must be made a party 'defendant, the control of the litigation becomes vested' in the shareholder who brings it and such others as may join therein.
“In order that a stockholder may not be permitted unnecessarily to maintain an action for the benefit of the corporation, he is required to show, as a condition precedent to his right to sue, a demand and refusal by those authorized to represent the corporation, and whose duty it is to bring the action, or facts indicating that a demand upon them would be futile, or that they would not be likely’to prosecute the action in good faith.
“Where the affairs of a corporation are in the hands of a receiver, 'or trustee, or other person who has superseded the board of directors, and is clothed-with authority to sqp, a stockholder must make demand upon him .before .bringing action for the benefit of the corporation, regardless of whether or not the directors are hostile, for in such case their attitude is immaterial.”
These same rules have often been stated in our own reports. (A., T. & S. F. Rld. Co. v. Comm’rs of Sumner Co., 51 Kan. 617, 628, 33 Pac. 312, and syl. ¶ 3; Mining Co., v. McKibben, 60 Kan. 387, 388, 56 Pac. 756; Fitzwater v. Bank, 62 Kan. 163, 166, 61 Pac. 684; Fry v. Rush, 63 Kan. 429, 438-440, 65 Pac. 701, and syl. ¶ 3.) See, also, 51 L. R. A., n. s., 99-112.
Defendants stress the fact that the federal bank examiners had insisted that the Rouse loan should be cleaned up. The trial court’s findings of fact gave the defendant directors due credit for complying with the bank examiners' requirements, but such compliance gave them no excuse to turn around and by getting on both sides of the subsequent transaction, sell the bank stock to themselves at a fraction of what it was worth. The evidence inherent in the- circumstances fully justified the trial court’s finding that in so doing the defendants had not acted in good faith. The instances recorded in the lawbooks are rare — and this was not one of them — where a person in a representative capacity deals with himself individually so uprightly that his transaction will successfully pass the scrutiny of a court of equity. In Meinhard v. Salmon 249 N. Y. 458, 464, 164 N. E. 545, 546, 62 A. L. R. 1, the late Mr. Justice Cardozo of the United States supreme court, while serving as chief judge of the New York court of appeals, said:
“Many forms of conduct permissible in a workaday world for those acting at arm’s length are forbidden to those bound by fiduciary ties. A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior. As to this there has been developed a tradition that is unbending and inveterate. Uncompromising rigidity has been the attitude of courts of equity when petitioned to undermine the rule of undivided loyalty by the ‘disintegrating erosion’ of particular exceptions (Wendt v. Fischer, 243 N. Y. 439, 444). Only thus has the level of conduct for fiduciaries been kept at a level higher than that trodden by the crowd. It will not consciously be lowered by any judgment of this court.”
In our own case of Alumbaugh v. Hedges, 125 Kan. 449, 453, 265 Pac. 50, we stressed the general rule that executors, administrators, guardians, trustees, and functionaries of that general character, may not traffic to their own private advantage in estates or properties towards which they have any official or moral responsibility. We said this rule was as much a principle of ethics and of practical honesty as it was of law. (See, also, Crowley v. Nixon, 132 Kan. 552, 556-557, 296 Pac. 376.)
It is also argued in defendants’ behalf that the evidence did not show that the corporation was damaged by the challenged transaction. The book value of the stock was $117 per share. The defendant directors sold it to themselves for $28.66 per share. It is a fair presumption that the directors had been giving enough attention to the business of the corporation under their charge that they should have had a reasonably approximate estimate of the actual value of the stock. (National Bank v. Drake, 29 Kan. 311.) That is what directors are for. It does not seem to have occurred to them to include in their bargain with themselves that if it should transpire in the liquidation of the bank that they had grossly underestimated the value of the stock they were selling to themselves they would account to the bank for the disparity and not retain it as their own. Of course it is futile for the courts to deliver a homily on practices of this sort. But when they do come under the scrutiny of the courts, it. should not be expected that they should receive the sanction of judicial approval or even of tolerance.
An argument is advanced that the bank “never did acquire title to the stock” of S. A. Rouse. The established facts make that argument untenable. Indeed, the defendants in their answer alleged that “They did not want to purchase said stock, and only did so because they were required so to do.”
And later in their answer defendants alleged that at a regularly called stockholders’ meeting a resolution was adopted—
“Approving and confirming the action of the board of directors in the liquidation of the Rouse note and purchase of said stock, and repudiated the action of the plaintiffs in the institution of this action.”
After this lawsuit was commenced, which was on October 26, 1938, the defendant directors met on January 7, 1939, and adopted a lengthy resolution reciting that the minutes of the board of directors dated May 11, 1938, were “indefinite and did not properly set forth the true facts and complete arrangements had at that time concerning the payment of said Rouse note and disposition of said Rouse bank stock aforesaid.” The resolution then stated that Rouse arranged with Jarvis to take the fifteen shares of stock and that Rouse agreed to procure the cancellation of the Rouse loan, and that Jarvis was to contribute the $250 in cash which figured in the transaction. We cannot see that this homeopathic explanation of the transaction would have exculpated the defendants if the trial court had given it credence, and that, of course, the court was not bound to do.
Touching the action of a majority of the stockholders approving the purchase of the Rouse stock by the defendant directors, it should be noted that if their contention that they did not purchase the stock from the bank, but got it in a roundabout way from Rouse was correct, then the action of the stockholders’ meeting approving and ratifying the purchase was unnecessary and altogether without effect. Passing that, and dealing with the transaction for what it was — as found by the trial court — we think it was so flagrantly improper and against public policy that it was not merely voidable but void and not subject to ratification by a majority vote of the stockholders. (Land Co. v. Lewis, 101 Me. 78, 63 Atl. 523; Continental Securities Co. v. Belmont, 134 N. Y. S. 635, Commonwealth v. R. F. & P. R. Co., 111 Va. 611, 69 S. E. 1070; 14A C. J. 378-379.) In Klein v. Independent Brewing Ass’n., 231 Ill. 594, 83 N. E. 434, the action was by a minority stockholder who challenged the validity of a sale of property to the corporation by certain of its officers and directors and to require them to account to the corporation for the profits of the transaction. One of the defenses was that the transaction had subsequently been ratified at a stockholders’ meeting. 'But the supreme court said:
“We do not think these acts at the stockholders’ meetings can be held to have been, a ratification of the action of the directors in purchasing" the property. Both these meetings were held after this suit was instituted. . . . In this case, however, the directors purchased from themselves property for an amount much in excess of its value, and this was a fraud upon the stockholders which could not be ratified or condoned by a stockholders’ meeting at which a majority of the votes cast in favor of the ratification were cast by or under the control of the directors who were guilty of the wrongdoing. If the reverse were true, then the minority stockholders would be at the mercy of the majority, who would be able to elect the directors and control stockholders’ meetngs and thereby ratify the acts of the directors, however wrongful and injurious they might be to the corporation.” (pp. 613, 614.)
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|
The opinion of the court was delivered by
Thiele, J.:
The question in this appeal is the liability of an administrator for failure to sell bank stock belonging to the decedent’s estate.
One Rodney J. Park, who was a farmer of Ottawa county, died intestate June 5, 1928, leaving a widow, Adella, and two daughters, Yelna Fay Hess and Della V. Park, as his heirs. At the time of his death and for some years prior, Park had owned eighteen shares in the Farmers State Bank of Tescott and had been a director of the bank. After Park’s death, his widow and daughters went to the bank and talked over matters with N. C. Emery, cashier of the bank, and who had known Mrs. Park for many years. Their relations had been friendly and she had confidence in him and his ability as a business man. It was suggested by Emery he was as familiar with the business affairs of Rodney Park as anyone, and that he could act as administrator of the estate of the deceased. As a result of that conversation proper proceedings were had and Emery was appointed as administrator and gave bond in the sum of $7,000 with the American Surety Company of New York as surety. On June 25, 1928, Emery filed his inventory and appraisement showing livestock and other personal property appraised at $1,010, and a checking account of $383.78, the eighteen shares of bank stock appraised at $4,050, farm lands valued at $10,470, and a residence in Salina valued at $2,385. A single share in an elevator corporation was subsequently discovered. It will not be noticed further. At the time of his death Park was indebted to the bank in the sum of $2,325, evidenced by his note, and on April 25, 1929, the bank filed its claim against the estate for that amount and interest. The personal property, other than the bank stock, was sold at public sale for a net amount of $1,286.88 and report duly made to the probate court. Sometime within three months after his appointment Emery and his attorney talked with the probate judge, who told Emery to sell the bank shares at private sale. No representation was ever made to the probate judge, nor was any order ever made by the probate court, that it was not necessary to sell the personal property to pay debts, nor was any order ever made not to sell the bank stock.
The bank stock was never offered at public sale, but in July, 1928, the administrator did offer privately to sell the stock to a few individuals most of whom were connected with the bank. The price asked was $225 a share. Emery also offered the stock to some other selected purchasers who did not purchase. All of the offers were to sell the entire eighteen shares and the price asked was approximately $225 per share.
In March, 1931, and more than two and one-half years after Emery’s appointment as administrator, he filed a petition asking for authority to sell the Salina residence, alleging the personal property would be insufficient to pay the debts. Thereafter the property was sold for $2,500 cash, and of this amount $1,325 was applied on the principal of the bank’s note, the balance being deposited in the administrator’s account and used to pay interest on the indebtedness to the bank, taxes, and for other disbursements. After the sale had been made, but before a deed had been executed, the widow protested to the probate judge, who told her the property was sold and he could do nothing about it. She then saw Emery, asked him why he had sold that property as she had frequently told him she didn’t want to sell it, and he informed her he had to sell that property in order to pay the indebtedness to the bank and other debts and that was all he could do about it. Mrs. Park told Emery she was dissatisfied and she then consulted an attorney, and in February, 1932, an action was commenced against Emery for damages growing out of the sale of the Salina property. Shortly after, Mrs. Park died and the suit was dismissed. About the same time Mrs. Park brought that suit, her daughter, Velna Fay Hess, filed a petition in the probate court alleging that Emery had failed to sell the bank stock within the time fixed by statute, to the injury of the estate; that he was not administering the estate for the real parties in interest, but for his own personal profit, and asking for his removal as administrator. Shortly after the petition to remove him was filed, Emery procured a reappraisement of the bank stock at $100 per share and attempted to sell it to some of those he had previously approached, pricing the stock at $175 and $150 per share. He did not dispose of the stock until March 1, 1935, when he filed a petition for approval of a compromise settlement of the balance of the debt due to the bank in the sum of $1,000. This petition set up that the bank had a lien on the stock; that the bank was in process of liquidation; that there was no market for the stock, and he prayed for authority to assign the stock to the bank in full settlement. The court authorized the settlement. The acceptance on the part of the bank was signed by its vice-president and by Emery as its cashier. On the same day this settlement was made, Emery, as administrator, filed his final account and final settlement of the estate.
The daughters, Yelna Fay Hess and Della V. Park, and Velna Fay Hess, as administratrix of the mother’s estate, filed objections to the approval of the final account. These objections were overruled by the probate court, which closed the estate and discharged the administrator. The objectors perfected an appeal to the district court, where amended objections were filed. A demurrer lodged thereto by the administrator and his bondsmen was overruled, and on appeal that ruling was affirmed by this court (In re Estate of Park, 147 Kan. 142, 75 P. 2d 842).
Following disposition of that appeal the matter came on for hearing on the objections which are set out in the above opinion and need not be repeated here, and upon separate answers of Emery and the American Surety Company, but which contained identical allegations, which' are summarized, viz.: The death of Park, heirship of ,his widow and children, Emery’s appointment as administrator and qualification are admitted, all other objections being denied. It was affirmatively alleged the probate court and the district court on appeal were without jurisdiction to require the surety to account; that Park was the owner of eighteen shares of the stock of the named bank, that at the time of his death he was indebted to the bank on a promissory note, that the bank had a lien on the stock for the amount due and no valid transfer of the stock could be made; that when Park died general economic conditions were depressed, the market value of the bank stock could not be truly ascertained and the appraisers listed it at its book value; that the bank was finally merged with another bank and its stock was of little value at the time of the merger and thereafter; that the administrator at the time of qualifying offered said stock for sale, but could not find a purchaser; that the widow objected to the sale of the stock and requested it not be sold, the probate court found it should not be sold and it was not sold until it was assigned to the bank under the compromise settlement on March 1,1935; that the orders for compromise were not appealed from and are res judicata; that the heirs had full knowledge at all times of the condition of the estate, etc., and that the administrator acted in good faith; that the estate was indebted for more than the value of the personal estate and by reason of request of the heirs the Salina real estate was sold instead of the bank stock; that the heirs had full notice and never perfected any proceedings for the sale of the bank stock and are guilty of laches and not entitled to recover against the administrator or his surety. It was also alleged the petition to remove the administrator had been denied and the heirs had never appealed and by reason thereof the claims now asserted were fully determined and became res-judicata.
At the trial in the district court, findings of fact were made by the court from which the statement above made is taken, and the court also made findings as to the value of the stock and the good faith of the administrator, to which reference will later be made, and it concluded the final account of the administrator should not be approved nor final settlement ordered, and that the administrator and his surety should not be discharged until the administrator or his surety should make good the loss in the sum of $3,573.50 suffered by the estate by reason of the administrator's willful carelessness, neglect of duty and maladministration of the estate. Judgment was rendered accordingly.
Defendants filed a motion to set aside the findings of fact and conclusions of law and a motion for a new trial. The court made two corrections and then denied both motions. Defendants appealed.
Appellants first complain the trial court erred in ruling the burden of proof to establish his final account was on the administrator.
In support appellants direct our attention to Calnan v. Savidge, 68 Kan. 620, 624, 75 Pac. 1010. In considering that case it must be borne in mind that at the time it was decided three years were required for final settlement, and that there was a material and substantial difference between an annual and a final settlement was demonstrated in Musick v. Beebe, Adm’r., 17 Kan. 47, 52, to which attention is directed. In the Calnan case an annual settlement was in controversy, and it was said an annual settlement was judicial in nature, and its allowance in its nature a judicial determination, not final, but prima facie evidence of correctness, and if objections are afterwards made, the burden of showing incorrectness is upon the objector. In the case at bar the settlement was a final account and the objections were made prior to any determination. As a condition to his discharge, the administrator had to establish the correctness of his account. The fact some of the heirs filed objections did not relieve him. Nor did the fact the matter was being tried on appeal alter the situation. There was no provision of the probate code in effect at the time the final account was filed in the probate court that made any ruling of that court as to its correctness prima facie evidence on an appeal to the district court. The trial in the district court is a trial de novo. (G. S. 1935, 22-1107; Darnell v. Haines, 110 Kan. 363, 203 Pac. 712; In re Estate of Woodworth, 145 Kan. 870, 881, 67 P. 2d 553.) The trial court ruled correctly on the burden of proof to establish the account. The question of burden of proof is also further discussed later herein, as pertaining to particular items.
Appellants complain as to the findings of fact with respect to the value of the bank stock, that improper evidence was received, that proffered evidence was excluded, and that findings concerning the diligence and care exercised by the administrator are not supported by the evidence. The court’s findings go into detail. They may be summarized thus: The appraisement was made June 23, 1928, by the appraisers, one of whom was president of the bank, another was a director of the bank and the third was a businessman in Tescott, and that they consulted together and with Emery, the administrator, who was also cashier of the bank, and it was agreed the book value of the stock was $238 per share and that the value for the purpose of appraisement was $225 per share, or $4,050 for the eighteen shares. The court further found that during the year 1929 an eight percent dividend was paid by the bank to its stockholders and on January 9, 1929, the administrator was paid $144 dividends and accounted for the same in the probate court; and that the true value of the stock on the date of appraisal was $225 per share and that if the eighteen shares had been sold at public sale within three months after the date the administrator gave bond, as required by law, the same would have sold for $225 per share; also that the failure of the administrator to sell the stock within three months after giving his bond caused a loss to the estate of $3,573.50, of which $3,050 was caused by decrease in its value, and $667.50 paid by the administrator to the bank as interest on Park’s note to the bank during the long period of administration, less, however, the sum of $144 received as dividends. The court further found that the administrator did not make his final settlement in one year, never made any showing to the probate court for an extension of time to make final settlement and no such extension was ever granted by that court. The court further found the administrator was guilty of negligence and carelessness in looking after and handling the estate, and allowed his duties and fidelity to the bank of which he was cashier to unfairly influence his actions in handling the estate, and that he failed to exercise the diligence and care required of administrators and thereby caused the estate to suffer the loss of $3,573.50.
The first question is whether the evidence sustained the finding as to the value of the stock. Under the provisions of the statute then in force (R. S. 22-313), the administrator qualified by giving a bond, conditioned in part that he would file a true inventory of the assets of the estate, and that he would render a true account of his administration. By reason of other provisions, the administrator was required to return into court a true inventory (R. S. 22-501), the personal assets of which must be appraised in the manner required (R. S. 22-504 to 22-508, inch), the inventory signed by the appraisers and administrator (R. S. 22-515), verified by the administrator (R. S. 22-517) and returned into court. Under R. S. 22-601 et seq., the administrator was directed to sell at public sale the whole of the personal estate liable for the payment of debts, although under R. S. 22-603 he could be authorized to sell at private sale. In connection with provisions for making settlement, it was provided by R. S. 22-909 the administrator should be chargeable with the amount of the sale bill and with all goods, chattels, etc., which should come to his hands to be administered. From the above-mentioned sections and others kindred thereto but not specifically pointed out, it would appear that the inventory returned by the administrator was prima facie evidence as to the property belonging to the estate and the value of the respective items. And that is the general rule (23 C. J. [Ex. & Admr., § 383], p. 1166). It follows from the inventory and appraisement returned by him, the administrator stood charged with the particular eighteen shares of bank stock, the prima facie value of which was $225 per share, or a total of $4,050, and that the burden of proof was on the administrator to prove his contention that it was worth a less sum. To sus tain that burden appellants offered the testimony of three witnesses. Emery, testifying in his own behalf, was asked many questions to show reasons why he did not sell the bank stock belonging to the estate, in the course of which it was shown he personally owned thirty-three shares. As abstracted, the record does not show any particular qualifications, but he testified that in 1928 the stock was worth not to exceed $150 per share. Keesling, an assistant bank examiner, produced and identified a report of the examination of-the bank as of August 15, 1928. From the information therein contained he was permitted to state the book value of the stock was $240 per share, and deducting certain criticized and questionable assets from the book value would leave an actual value of about-$200 per share. He also testified at length about various matters he would consider if he were a prospective buyer, from which he concluded the stock was worth about $130 to $135 per share. G. C. Hitchcock testified that Emery offered to sell him the stock. At one place he stated Emery’s first offer was at $200 per share. Later he stated he had $4,000 to invest and it was going to take it all, then stated the price might have been at $225. Negotiations for sale continued but he found an investment he thought was better and bought a farm.
In addition, Heckert, who was a director and vice-president of the bank, and who was an appraiser of the estate, testified on direct examination the stock was appraised at its book value and its salability was not considered, and on cross-examination that the appraisers discussed the matter with Emery and put the value at $4,050, which figure they thought was fair.
Appellee’s evidence included testimony of C. C. Hess, who stated that a share of the stock was offered to him by a third person at $175 in April of 1929 and that he went to Emery, told him of the offer and inquired as to the value, at which time Emery told him the book value was $238, the cash value was $225 and that he would make $50 if he bought. He followed the advice and bought the share. Appellants are critical and complain the appellee produced no witness to testify he would have paid $225 in 1928. It must be borne in mind it was not their duty to find a purchaser at any price in 1928 or thereafter, and the fact that over ten years thereafter such a witness was not produced is not important. The duty to find a purchaser for the shares of stock was on the administrator. Although it is more to be considered in connection with the adminis trator's diligence, there was evidence that Emery offered to sell the stock only in a single block, and that the persons whom .he approached were those who would have been satisfactory to the bank’s directorate.
Appellants direct our attention to authorities on the question of elements of proof of value of stocks under conditions similar to those existing here. We do not find it necessary to discuss them. As heretofore indicated, the return to the probate court of an inventory which listed the stock at its appraised value created a prima facie showing as to its worth. There was some testimony tending to support that showing. It seems undisputed that- after Park’s death in June, 1928, a dividend of eight percent on the stock was paid to the administrator in January, 1929. This could also be considered in determining value. The weight to be given Emery’s statement and the somewhat inconclusive testimony of Keesling was for the trial court. We cannot say the trial court’s finding as to value of the stock is either contrary to or not supported by the evidence.
Appellants also complain of the trial court’s findings that the administrator was guilty of negligence and carelessness in handling the estate, and in allowing his interests in the bank of which he was cashier to unfairly influence him, as the result of which the estate suffered. The standard of duty to be performed by the administrator was set by the statutes. At the time of the death of Park, the widow consulted him, and as a result of his own representation that he knew more about her husband’s business affairs than any other person, she consented to his appointment as administrator. With that knowledge and with the knowledge almost immediately disclosed to him when the inventory was prepared, and when it was quite evident that all of the personal estate except the bank stock was not sufficient to pay the bank’s claim, let alone any other debts that might be proved and allowed as claims, he procured an order to sell the bank stock at private sale. His actions thereafter would indicate he thought that gave him unlimited time and discretion in selling the bank stock. He takes two positions as to its sale — one that the widow did not want him to sell it; the other that he immediately commenced to find a purchaser, but was never able to do so. Insofar as the first position is concerned, it is true the widow wrote him a letter in August of 1928 that she was against selling the bank stock because it was the easiest property to look after and her husband always figured it good property. It appears this letter was the result of Emery’s advice to her. In any event it could not control him in the performance of his duties, and as a matter of fact his testimony indicates he paid no attention to it, for he stated that immediately after qualifying he commenced looking for a purchaser. The testimony indicates he inquired of the directors of the bank whether they wished to purchase, and that he talked with them as to who would be a satisfactory purchaser to succeed Mr. Park on the board of directors. There is no evidence that he offered to sell the stock except as a unit of eighteen shares. The fact he got an order to sell at private sale did not extend the time when the personal assets liable for the payment of debts had to be sold. He knew that such effort as he exerted did not result in private sale, but he made no attempt to have that order modified and the stock sold at public sale, a thing which would have been in strict conformance with the statutes, the performance of his duties, and an absolute protection to him. Moreover, he allowed the matter to drift from the date of his qualification in June, 1928, until March, 1931, when, without having sold the unexempt bank stock, he procured an order for the sale of real estate, sold it, the most of the proceeds being applied to the debt of the estate to the bank of which he was cashier, as has been heretofore shown in more detail. But that is not all; he then did nothing about the bank stock until March, 1932, when he procured its re-appraisement at $100 per share. He again made futile attempts to sell the stock in a block and at private sale. Accomplishing nothing, he waited until March 1,1935, when he procured an order permitting him as administrator to assign the stock to the bank of which he was cashier, in settlement of the balance of $1,000 due on the estate’s debt to the bank. In the meantime interest on that debt had been paid out of the assets of the estate. The result was that an asset of the estate, worth at the time of the death the sum of $4,050 was so handled that it was only sufficient to satisfy a liability of $1,000, the balance due on the bank’s claim. And it is not to be overlooked that the administrator did not complete the administration within one year, nor did he obtain any order granting him any extension of time as contemplated by R. S. 22-907 as amended by Laws of 1925, ch. 161, § 9, now appearing as G. S. 1935, 22-907.
We are of opinion the trial court rightly found that Emery as administrator was guilty of negligence and carelessness in handling the estate and that the finding that he allowed his duties and fidelity to the bank of which he was cashier to unfairly influence his actions as administrator has ample support in the testimony, and that the conclusion must be there was unfaithful administration by reason of which the administrator is liable on his bond for damages and as provided by R. S. 22-1001.
Appellants present some contention that because of the statutory lien on the bank stock (G. S. 1935, 9-153), coupled with their claim there was no showing the bank stock could ever have been sold for more than the amount of the debt to the bank, a situation is presented where the administrator should not be held liable. The claim as to the facts is not borne out by the record. The legal question was determined in the first appeal. (See In re Park, 147 Kan. 142, syl. ¶¶ 2, 3, 75 P. 2d 842.) No more need.be said than that the administrator had the same duty to handle and dispose of the bank stock as he would have had if the stock had been in a corporation where there'was no provision for a statutory lien.
Appellants also-contend the administrator should not be held liable for depreciation in the value of the bank stock. Their argument is founded on a premise the trial court’s findings of carelessness, negligence and infidelity are not supported by the evidence. The premise is not true. The statutory provision applicable was R. S. 22-910, that administrators shall not “sustain any loss by the decrease- or destruction, without their fault, of any part of the estate.” The converse would seem to be that if the decrease were occasioned with or by the fault of the administrator he is liable.
Finally, it is argued there wa§ no deviation from statutory duties imposed. This is predicated in part on the fact that the probate court failed to enter upon the records an order permitting sale at private sale. Certainly the probate court should make appropriate record of its orders on its journal. Here we have treated the order to sell at private sale as though the record were complete. The remainder of the argument is based on appellant’s version of what the evidence showed, not on what the trial court concluded.
The conclusions above reached dispense with the necessity of discussing many of the authorities cited in the briefs.
Our review of the record convinces us that the trial court’s conclusion, as reflected in its judgment, was correct, and the judgment is affirmed. | [
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|
The opinion of the court was delivered by
Harvey, J.:
This was an action by a judgment creditor of J. E. Hardesty to subject certain real property, the title of which was in the name of Emery M. Fairchilds, to the payment of plaintiff’s judgment against Hardesty. The sole defendants were Fairchilds and his wife. The trial court made findings of fact and rendered judgment for plaintiff. Defendants have appealed.
The Citizens State Bank of Pratt closed its doors October 16,1931, and Charles W. Johnson became its receiver. J. E. Hardesty, who was the president of the bank when it closed and for several years prior thereto, owned shares of stock in the bank. On December 10, 1932, the plaintiff in this action recovered a judgment against J. E. Hardesty on his double liability as a stockholder, then authorized by statute (G. S. 1935, 9-110, since amended as Laws 1937, ch. 75), for the sum of $27,621. At that time Hardesty owned a described tract of about 520 acres of ranch land mortgaged to the Farmers & Bankers Life Insurance Company, and which tract became known in this record as the Farmers & Bankers ranch. He also owned another described tract of ranch land of about 500 acres, mortgaged to the Prudential Insurance Company of America, and spoken of as the Prudential ranch. Hardesty also had an undivided half interest in another described tract of ranch land of about 1,200 acres, which was mortgaged and is known as the Cairo ranch, and some other real property, which was sold under mortgages, or plaintiff’s judgment, and with which we are not concerned in this action.
The Farmers & Bankers Life Insurance Company foreclosed its mortgage, making the plaintiff in this action a party defendant, and this plaintiff set up its judgment and asked and obtained a decree that it had a lien on the property second to that of the mortgagee. The foreclosure decree was on November 13, 1933. At the sale, January 22, 1934, under that decree the property was bid in by the Farmers & Bankers Life Insurance Company. The period of redemption was fixed at eighteen months. Neither Hardesty nor the plaintiff in this action, or anyone else, redeemed. A sheriff’s deed was issued to the Farmers & Bankers Life Insurance Company on August 15, 1935. By a warranty deed, dated August 20, 1935, the Farmers & Bankers Life Insurance Company conveyed the land to E. M. Fairchilds for a consideration of $9,500, of which $2,500 was paid, and Fairchilds and his wife executed notes and a mortgage on the land for $7,000 to the Farmers & Bankers Life Insurance Company for the balance of the purchase price.
The Prudential Insurance Company foreclosed its mortgage on the Prudential ranch. The plaintiff in this action was made a party defendant and set up its judgment against Hardesty, and it was decreed to be a lien second to that of the Prudential Insurance Company in the decree rendered June 2, 1934. The sheriff’s sale under that foreclosure was October 18, 1934, and the property was bid in by the Prudential Insurance Company. A period of eighteen months for redemption was given, and neither Hardesty nor the plaintiff in this action, or anyone else, redeemed from the sale, and a sheriff’s deed was issued to the Prudential Insurance Company- on April 14, 1936. On May 19, 1936, the Prudential Insurance Company conveyed this property to Emery M. Fairchilds for a consideration of $12,400, of which $4,100 was paid, and Fairchilds and his wife gave notes and a mortgage on the land to'the Prudential Insurance Company for $8,300, the balance of the purchase price.
In the petition in this action, filed March 3, 1937, after appropriate allegations as to the parties, it was alleged that plaintiff, on December 10, 1932, procured a judgment against J. E. Hardesty upon which there was a balance due of $22,400 and interest; that execution had been issued thereon and returned unsatisfied, and that "about the 20th day of August, 1935, said J. E. Hardesty contracted for and purchased . . . from the Farmers & Bankers Life Insurance Company” the Farmers & Bankers ranch “for the consideration of $9,500, of which $7,000 consisted of a mortgage” to the vendor, “executed and delivered by the defendant, E. M. Fairchilds, . . . and that said J. E. Hardesty at said time paid or. caused to be paid to the Farmers & Bankers Life Insurance Company upon the purchase price of said land the sum of $2,500 of said J. E. Hardesty’s own money and then and there caused the said real estate to be conveyed by the Farmers & Bankers Life Insurance Company to the defendant, E. M. Fairchilds, who at all times herein mentioned was, and now is, the husband of J. E. Hardesty’s daughter, Fern Fairchilds, with intent to cheat and defraud plaintiffs and other creditors of the said J. E. Hardesty similarly situated, and to prevent the enforcement of plaintiff’s judgment. The defendant accepted said warranty deed with knowledge of the foregoing facts and with the intent to aid the said J. E. Hardesty in so cheating and defrauding the plaintiff and other creditors of J. E. Hardesty similarly situated.” For a second cause of action it was alleged that “about the 19th day of May, 1936, the said J. E. Hardesty contracted for and purchased . . . from the Prudential Insurance Company of America” the Prudential ranch “for a consideration of $12,400, of which $8,300 thereof was a mortgage executed and delivered by Emery M. Fairchilds” to the vendor, “and then and there paid or caused to be paid to the Prudential Insurance Company of America upon the purchase price of said land the sum of $4,100 of said J. E. Hardesty’s own money and then and there caused the said real estate to be conveyed by the Prudential Insurance Company of America to the defendant, who at all times herein mentioned was, and now is, the husband of Fern Fairchilds, the daughter of said J. E. Hardesty, with intent to cheat and defraud the plaintiff and other creditors of J. E. Hardesty similarly situated as aforesaid.” As to both tracts of the land it was alleged that by reason of the premises defendant holds title to the real estate as trustee for plaintiff and other creditors of J. E. Hardesty who may be similarly situated. The prayer was that the defendant be decreed to hold the title to the real estate described as such trustee. There are other allegations respecting rents and profits and a prayer for accounting of these items, and for a receivership. A copy of the deed from the Farmers & Bankers Life Insurance Company to E. M. Fairchilds for the one tract, and from the Prudential Insurance Company of America to Emery M. Fairchilds for the other tract, were attached and made a part of the petition.
The answer contained a general denial, except as to matters specifically admitted. It admitted the names and places of residence of the parties as alleged; alleged that Emery M. Fairchilds did purchase the land described in the petition, but denied that J. E. Hardesty owned or had any interest in the land, and alleged the deed to the land described in the first cause of action is good and valid. As an additional defense it was alleged that the mortgage on the land had been foreclosed, that plaintiff had been made-a party defendant, had set up its judgment, and had it established as a lien upon the property; that there had been no redemption from the sale under the foreclosure decree, and that by reason thereof plaintiff had no further interest in the land. Similar allegations were made as to plaintiff’s second cause of action. Copies of the decrees in the two foreclosure cases were set up and made a part of the answer. Plaintiff’s reply contained a general denial, but admitted that by the judgments in the foreclosure actions it was decreed to have a second lien upon the real property, and that no redemption was made from the sale of the land, but alleged that these facts do not constitute a defense to plaintiff’s first or second cause of action.
Appellants argue two points: First, that the mortgages on these ranches having been foreclosed, in an action in which the plaintiff here was a party, plaintiff having set u.p its judgment and had it decreed to be a second lien, and having failed to redeem, that the land cannot again be sold for the payment of that judgment, citing G. S. 1935, 60-3460, and cases construing and applying that section. Appellee answers this contention by saying that this is a redemption statute; that the defendants Fairchilds were not defendants in the foreclosure actions, and had no right to redeem in those cases, and that Hardesty, who did have a right to redeem, is not a party to this action, and hence that neither of them can raise the question of the application of this section. We find it unnecessary in this case to determine that controverted question. Appellants further contend there is no substantial, competent evidence to support a judgment predicated upon the view that Hardesty paid the purchase price of these lands and had the title taken in the name of Fairchilds.
To sustain the judgment of the trial court appellee relies largely on G. S. 1935, 67-406 and 67-407. These statutes read:
“When a conveyance for a valuable consideration is made to one person and the consideration therefor paid by another, no use or trust shall result in favor of the latter; but the title shall vest, in the former, subject to the provisions of the next two sections.” (G. S. 1935, 67-406.)
“Every such conveyance shall be presumed fraudulent as against the creditors of the person paying the. consideration therefor; and where a fraudulent intent is not dispi’oved, a trust shall in all cases result in favor of prior creditors to the extent of their just demands, a.nd also in favor of subsequent creditors if there be sufficient evidence of fraudulent intent.” (G. S. 1935, 67-407.)
No one contends Hardesty paid the full purchase price of either of these ranches. Fairchilds and wife executed their notes for $7,000, secured by a mortgage for a part of the purchase price of one of them, and for $8,300 for a part of the purchase price of the other. Their liability on these instruments is unquestioned. Appellee says that is of no importance, but cites no specific authorities in support of that view. The decisions cited in the brief of the appellants tend to lead to a contrary conclusion. But we do not have to decide that question here, for the trial court did not find that the $2,500 cash payment made on the purchase price of one of the ranches, and the $4,100 cash payment made on the purchase price of the other, were paid by Hardesty. The court’s finding on this point reads:
“No. 17. The real estate described in ‘a’ and ‘b’ of finding No. 3 (the two ranches in question) was purchased with the funds of J. E. Hardesty or from the funds of Hardesty and Fairchilds which were to [so] intentionally commingled that it is impossible to separate the same.”
A brief explanation of this finding is that after the failure of the Citizens State Bank of Pratt J. E. Hardesty had no bank account in his own name. The defendant Fairchilds opened an account in the Peoples Bank of Pratt. It is the contention of the plaintiff in the trial court that this account was jointly used by Hardesty and Fairchilds, that moneys of each of them were deposited in the account, and that it was not possible to determine from the evidence how much of the money in the account was that of Hardesty and how much of it was that of Fairchilds. More will be said on this point later in the opinion. The .check for $2,500, being the down payment on one ranch, and of $4,100, the down payment on the other, were checks drawn upon and charged to this account. It seems clear to us that this finding No. 17, above quoted, cannot be construed as a finding that Hardesty made these down payments from his own money. Appellee contends that this finding alone sustains the judgment upon the general rule respecting confusion of goods (12 C. J. 496; 11 Am. Jur. 535), such as wheat (Allis Chalmers Mfg. Co. v. Security Elev. Co., 140 Kan. 580, 38 P. 2d 138), or natural gas (Hall v. Shaffer, 131 Kan. 109, 289 Pac. 442), or funds deposited in a bank account (Gurney v. Tenney, 226 Mass. 277, 115 N. E. 313), and argues that when the evidence disclosed and the court found that some of Hardesty’s money went into Fairchilds’ bank account, all of it could be treated as Hardesty's money, unless it could be shown clearly from the record of deposits and withdrawals just how much of it was Hardesty’s and how much of it was Fairchilds’, and that the statute above quoted (G. S. 1935, 67-407) placed that burden on the defendant Fairchilds. This point is not well taken. Before G. S. 1935, 67-407, can become operative it must be established that the debtor, Hardesty in this case, purchased the lands, and that means that he purchased them with his own money, and had the title taken in the name of another, which in this case would be Fairchilds. The result is that the finding of the court above quoted is not sufficient to bring the facts within the operation of the above-quoted statutes.
It must be remembered that plaintiff did not seek to have its judgment established as a lien upon the lands. If that were the claim the application of G. S. 1935, 60-3460, would have to be de termined. There was no judgment in this case that plaintiff had a lien upon the land; and the decree in this case ordering the land to be sold provided “said sale to be without right of redemption.” If Hardesty did purchase the lands with his own money, and have these conveyances made to Fairchilds, he could not recover them from Fairchilds, for under G. S. 1935, 67-406, he would have no title or interest in the lands. (Mitchell v. Skinner, 17 Kan. 563; Weatherbee v. Cockrell, 44 Kan. 380, 24 Pac. 417; Chantland v. Bank, 66 Kan. 549, 72 Pac. 230.)
With the view just expressed we need to consider only briefly appellants’ contention that there is no substantial evidence to sustain the judgment of the trial court. The defendant Fern Fairchilds, the daughter of J. E. Hardesty, had worked as a stenographer and bookkeeper in the Citizens State Bank for perhaps fifteen years before it closed. A few years prior thereto she married the defendant Emery M. Fairchilds. He had grown up on a farm, but for a few years before the bank closed had been employed as an antomobile salesman. Shortly after the bank closed he leased a suitable, well-located building in Pratt and began to operate a gas filling station, auto storage and garage, and the sale of auto tires, etc. For a time the garage part of the building was leased to mechanics, but later Fairchilds operated that. His wife assisted in conducting this business, and particularly kept the books. Fairchilds opened an account with the Peoples Bank on November 27,1931. The court found that deposits in that account from that date to December 31, 1931, were $842.75; for the year 1932, $7,038.12; for 1933, $7,318.82; for 1934, $12,344.40; for 1935, $48,825.86; for 1936, $37,344.88. The increase in these gross deposits, in addition to the natural growth of defendant’s business, which seems to have been a successful one, was occasioned by two things: Defendant’s place of business was situated on a main U. S. highway; it became the truck and bus depot, and Fairchilds had the agency for the sale of bus tickets and the collection for merchandise shipments. The receipts from that business grew rapidly and by 1935 and 1936 amounted to approximately one-third of the total deposits. Defendant, of course,, had only a commission on those receipts. In the fall of 1934 defendant, ostensibly at least, began to operate the two ranches here involved and another in which Hardesty had a half interest, subject to a mortgage, upon an oral lease with Hardesty by which he gave or paid to Hardesty one-third of the crops, including the alfalfa. Fairchilds bought cattle, giving his note in many instances for all or a large part of the piirchase price, and securing the same by a mortgage on the cattle, which cattle were taken to the ranch and fed or pastured, and later sold. Also, hogs were raised or bought, fed upon the ranch, and later sold. The proceeds of these farming and livestock operations, handled through the bank account, swelled the total deposits. The total of this class of deposits is not shown, neither is it shown what profit, if any, was made from the operations of this farm and livestock business.
The actual work on the ranch was done, for the most part at least, by persons employed for that purpose. Defendant Fairchilds gave some of his time to overseeing and managing the farm and livestock business, but the most of that was done by J. E. Hardesty, who was more familiar with it than was the defendant Fairchilds. Hardesty frequently employed the men, instructed them as to what to do, and paid them by check on Fairchilds’ account in the Peoples Bank, which checks he signed “E. M. Fairchilds by J. E. Hardesty,” or “by J. E. H.” He supervised the feeding, care and the sale of the livestock. The proceeds of the sale, or the net proceeds after paying the mortgage on the livestock, were deposited to the credit of Fairchilds in his account at the Peoples Bank. Hardesty sometimes attended sales at the several sales pavilions in that part of the state and purchased livestock, which were taken to the ranch, paying for them by check on Fairchilds’ account, signed as above stated. He signed the assessment list for the taxation of the personal property on the ranch in the same way. Fairchilds did not pay Hardesty any specified salary for this work. Mrs. Fairchilds kept an account of the business relations between E. M. Fairchilds and Hardesty. When the Citizens State Bank closed it appears that Hardesty had debts in excess of his assets. He spent quite a lot of time looking after his own affairs, and trying to save or redeem his mortgaged properties. He did a lot of traveling. When he wanted money for his living expenses, or any other personal purpose, he went to defendants for it; they let him have it. Mrs. Fairchilds made memoranda of those items and at some time later, or at the end of the year, would enter that in a record book she kept. When Hardesty had checks paid to him for his share of crops or government allotment, or other income, he took them to Mrs. Fairchilds and she gave him credit for them on money that had been advanced to him, or gave him the money at that time. Hardesty and Mrs. Fairchilds both testi fied that he was always indebted to the defendants, that every year they had paid him more money than he had turned in to them. The court found they had so testified. We find in the record no evidence to the contrary, yet it is these items which Hardesty turned in to defendants, amounting approximately to $1,000 or $1,500 a year, which the appellee claims to have traced into the Fairchilds’ account, and which form the basis for the finding of the court that “Many thousand dollars of the funds of J. E. Hardesty have been traced into the Fairchilds account in the Peoples Bank of Pratt, Kan.” We think this type of evidence forms no basis for this finding, and, of course, gross deposits in a bank, considered alone, are insufficient to find that a profit was made by anyone on the business represented by such deposits. More than that, much of the deposit in this account, claimed to be J. E. Hardesty’s money, and which in this way was traced to the account, was during the period when Hardesty had possession of and was entitled to the use and income from these farm lands during the periods of redemption, which periods of redemption, as originally fixed, had been extended by orders of the court made under the moratorium act. As to any profits Hardesty received from the use or occupation of these ranches during that period, he was under no obligation to account to the plaintiff in this action. He could have given those profits to the defendant Fairchilds if he wanted to and it would have been of no concern to the plaintiff. There is no contention, of course, that Hardesty received anything from these ranches, or either of them, in the short period after the sheriff’s deed was executed and delivered and the time they were purchased and deeded to Fairchilds.
The judgment of the court below is reversed with directions to render judgment for defendants. | [
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Per Curiam:
This is an original proceeding in discipline filed by the Office of the Disciplinary Administrator against Thomas N. Jones, of Topeka, an attorney duly admitted and licensed to practice law in the state of Kansas. Jones stipulated to the basic facts.
Jones was the Executive Director of the National Organization on Legal Problems of Education (NOLPE), a nonpartisan school law organization headquartered in Topeka, Kansas. His duties included management, programming, and membership functions, as well as governance, of NOLPE.
In January 1989, Jones commenced drawing unauthorized advances on his salary, and by November 1989, he was some $1,300 in arrears. When the books were audited in November, the NOLPE board of directors told Jones “to take care of it.” He did not. Instead, starting in November, he began to remove blank checks from the bookkeeper’s desk in her absence. The checks were not taken in numerical sequence. Jones stated that all of the checks were reported to the bookkeeper. The bookkeeper filed an affidavit that she discovered the checks were missing, called the bank, and learned Jones had handwritten the checks and made them payable to himself. The bookkeeper confronted him, and copies of the checks subsequently turned up on her desk after she was absent from her desk. Other copies were found in Jones’ wastebasket.
The unauthorized checks Jones wrote to himself were written from November 1989 through January 1990. The checks totaled $13,869.77. Payment was stopped on two other checks written on the NOLPE account. Jones wrote one of those checks to himself in the amount of $900. The other was written by Jones in the amount of $475 and was payable to one of his private law clients.
As a fringe benefit of employment, NOLPE provided disability insurance to Jones. Jones personally paid the premiums monthly and was reimbursed by NOLPE annually. The policy year was from November 11, 1989, to November 10, 1990. On November 8, 1989, Jones obtained a check for $492 after advising the bookkeeper that the insurance agent desired payment each six months. Two days later, he advised the bookkeeper that the agent needed the second half of the premium and obtained a second check for $492. Jones retained the money and did not pay the insurance agent. Jones terminated his employment with NOLPE on January 10, 1990, and his benefits ceased that day. NOLPE was entitled to a refund of the unused premium in the amount of $820. No restitution has been made toward this amount.
In addition, Jones wrongfully arranged for two of his individual clients to stay at a hotel in Florida at the expense of NOLPE. NOLPE paid the sum of $382.72 to avoid a lawsuit.
Jones also owes NOLPE restitution for air fare and accommodation expenses incurred by his wife at the 1989 NOLPE convention in San Francisco in the amount of $683.72.
On January 10, 1990, the Executive Committee of NOLPE came to Topeka and confronted Jones, and he resigned. He cashed in his retirement benefits and paid some $6,800 of the misappropriated money. He also paid $230 toward his wife’s travel expenses to San Francisco. He has made no other payments, although he did send a $100 check the Monday before the disciplinary hearing convened. NOLPE returned the check because the parties had not agreed that NOLPE would accept payments. There have been no payments since the hearing.
Immediately after terminating his employment with NOLPE, Jones entered treatment for cocaine addiction at the Menninger Clinic. He left the 28-day inpatient treatment program at the end of 22 days. Jones maintains that he “completed” the program and that Menninger’s knew he had to leave early when he entered the program. Menninger’s report indicates Jones took “flight from treatment.”
After this proceeding was commenced, Jones entered St. Francis Hospital and Medical Center’s outpatient program to treat his chemical dependency on August 8, 1991. He successfully completed the course and actively participates in Cocaine Anonymous.
The hearing panel recommended Jones be suspended from the practice of law for two years, but that imposition of discipline be suspended and Jones be authorized to practice law under supervision of a member of the Topeka Impaired Lawyers Assistance Committee.
The Disciplinary Administrator recommends disbarment.
Jones and the hearing panel cite In re Jantz, 243 Kan. 770, 763 P.2d 626 (1988), as well as other cases in which this court has disciplined but not disbarred the attorney for misappropriating a client’s money.
In Jantz, $8,534.61 was misappropriated. Full restitution was made prior to disciplinary charges being filed. The court commented:
“We have rarely failed to disbar or suspend any attorney whose professional misconduct parallels that of the respondent. Nevertheless, the majority of this court is inclined to follow the recommendations of the hearing panel in this case. The help and guidance given by Judges Smith and Fossey and by Messrs. Fraker and Craig indicate their sincere interest in Mr. Jantz, and he has responded by taking substantial steps toward rehabilitation.” 243 Kan. at 775.
Comparison of past sanctions imposed in disciplinary cases is of little guidance. Each case is evaluated individually in light of its particular facts and circumstances and in light of protecting the public. The public is protected if attorneys furnish adequate legal services with integrity and honesty.
Furthermore, this court is not bound by the recommendation of a hearing panel. Disbarment is an appropriate sanction in cases involving a serious breach of the disciplinary rules.
Here, Jones misappropriated money from his employer, in large part, to purchase cocaine for his personal use. The fact that the money taken belonged to an employer rather than a client is immaterial because lawyers are subject to discipline for improper conduct in individual, personal, or business activities. State v. Russell, 227 Kan. 897, 902, 610 P.2d 1122, cert. denied 449 U.S. 983 (1980).
In determining the appropriate discipline to be imposed for violating the disciplinary rules, we consider the facts surrounding the violation as well as any aggravating or mitigating circumstances. State v. Stakes, 227 Kan. 711, 720, 608 P.2d 997 (1980). Here, Jones stipulated he violated MRPC 8.4(b) (1992 Kan. Ct. R. Annot. 328) (“commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects”); 8.4(c) (“engage in conduct involving dishonesty, fraud, deceit or misrepresentation”); and 8.4(g) (“engage in any other conduct that adversely reflects on the lawyer’s fitness to practice law”).
We have never addressed specifically whether addiction to a drug that is unlawful to purchase, possess, or use is an aggravating or mitigating circumstance. The addiction in this case was acquired through recreational use for pleasure. Although we have not considered this issue, other states have.
In 1987, the Supreme Court of California considered a case in which an attorney misappropriated funds in order to finance his cocaine and alcohol addictions. In Rosenthal v. State Bar, 43 Cal. 3d 658, 238 Cal. Rptr. 394, 738 P.2d 740 (1987), the court con- eluded that successful recovery from substance abuse is a mitigating factor, but that addiction to any illicit drug is an aggravating factor as well as a violation of the disciplinary rules. The court stated, however, that protecting the public is the foremost concern. Rosenthal developed the addiction in 1981, withdrew from substance abuse in 1983, and returned to substance abuse in 1983. He entered treatment and had been free of substance abuse for over eight months when the hearing commenced. Thus, Rosenthal is similar to this case.
Of interest in Rosenthal is the court’s emphasis that Rosenthal’s “return of client funds after the State Bar’s investigation had begun is entitled to no weight in mitigation.” 43 Cal. 3d at 664. Full restitution had been made. Nonetheless, Rosenthal was disbarred.
In In re Demergian, 48 Cal. 3d 284, 256 Cal. Rptr. 392, 768 P.2d 1069 (1989), Demergian was addicted to cocaine and alcohol. He misappropriated money to purchase cocaine. There, the California Supreme Court stated:
“Finally, cocaine use is hardly a mitigating factor. Petitioner became addicted through voluntary use of an illicit drug. (Compare In re Nadrich (1988) 44 Cal. 3d 271, 243 Cal. Rptr. 218, 747 P.2d 1146 [drug addiction resulted from legitimate medical treatment].) Apart from petitioner’s subsequent rehabilitative efforts, his use of cocaine increases the danger he presents to the public, the courts, and the reputation of the legal profession. Logically, therefore, it is a factor in aggravation.” 48 Cal. 3d at 295.
Recovery from substance abuse remains a mitigating factor. As in Rosenthal, the California Supreme Court disbarred Demergian. The court emphasized that Demergian’s “addiction resulted from voluntary use of an illegal drug.” 48 Cal. 3d at 298.
In Matter of Zauber, 122 N.J. 87, 583 A.2d 1140 (1991), the New Jersey Supreme Court held that drug addiction may not mitigate serious ethical infractions such as misappropriation or crimes involving dishonesty, fraud, deceit, or misrepresentation. The court followed the principles set forth in Matter of Hein, 104 N.J. 297, 304-05, 516 A.2d 1105 (1986):
“ “The circumstance of the rehabilitated alcoholic or addict is deeply troubling to us. He has presumably recovered from the condition that contributed to . . . [his unethical conduct], and he will probably never again do any harm. But many of the lawyers, nonalcoholic, nonaddicted, disbarred by us . . . would probably never again [commit unethical acts]. . . . Yet we disbar. That individual harshness ... is justified only if we are right about the devastating effect misappropriation — unless so treated — has on the public’s confidence in the Bar and in this Court. Our primary concern must remain protection of the public interest and maintenance of the confidence of the public and the integrity of the Bar.’ ” 122 N.J. at 94.
We agree addiction to a substance that is unlawful to purchase, possess, or use should not be a mitigating factor in disciplinary cases and should be considered as an aggravating factor if that addiction is not itself charged as a basis for discipline. Recovery from abuse of an illegal substance should be considered as a mitigating factor.
Here, Jones underwent treatment only after his employment was terminated. Subsequently, he had a relapse, and it was not until a formal complaint had been filed that Jones sought and received treatment at St. Francis. He is now free of substance abuse and would consent to random drug testing.
Jones has not made restitution and, despite his good intentions, has made little effort to do so. In fact, it appears that had he made restitution, this serious matter would never have come to the court’s attention.
This court agrees with and applies the rationale set forth by the Nebraska Supreme Court in State ex rel. NSBA v. Veith, 238 Neb. 239, 251-52, 470 N.W.2d 549 (1991):
“There has been a trend in recent years toward lighter sanctions, a trend this court is convinced must be reversed. The correlation between the decline of public confidence in the legal profession and the trend toward lighter attorney discipline sanctions is no coincidence.
‘[Excuses such as] a “lack of intent to deprive the client of his money” or “personal hardship” . . . stand out like an invitation to the lawyer who is in financial difficulty for one reason or another. All too often he is willing to risk a slap on the wrist, and even a little ignominy, hoping he won’t get caught, but knowing that if he is he can plead restitution, [be] duly contrite, and escape the ultimate punishment. The profession and the public suffer as a consequence. The willful misappropriation of client firnds should be the Bar’s equivalent of a capital offense. [There] should be no excuses.’ ”
A majority of the court is satisfied the facts of this case warrant disbarment.
It Is Therefore Ordered that the respondent, Thomas N. Jones, be, and he is hereby, disbarred from the practice of law in the state of Kansas.
It Is Further Ordered that the Clerk of the Supreme Court strike the name of Thomas N. Jones from the roll of attorneys admitted to the practice of law in this state and that respondent forthwith comply with the provisions of Supreme Court Rule 218 (1992 Kan. Ct. R. Annot. 176).
It Is Further Ordered that this decision be published in the Kansas Reports and that the costs herein be assessed to the respondent. | [
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Per Curiam-.
This is an original proceeding in discipline filed by the Office of the Disciplinary Administrator against Wesley M. Norwood, of Lawrence, an attorney admitted to the practice of law in Kansas.
A formal disciplinary complaint was filed against Wesley M. Norwood on July 23, 1991, in connection with his financial dealings with two of his clients. A formal hearing was held before a hearing panel of the Kansas Board for Discipline of Attorneys. The following findings of fact and conclusions of law are supported by substantial competent evidence and we unanimously adopt them.
“FINDINGS OF FACT
“1. Respondent, Wesley M. Norwood, was admitted to the practice of law in Kansas on February 16, 1955, and is currently a registered Kansas Attorney ....
“COUNT I (B4971)
“2. On or about June 24, 1982, one Richard Vance Swaggerty was arrested and charged with Second Degree Murder in Case No. CR 82-644 as filed in Douglas County District Court. . . .
“3. Sometime prior to the events stated in paragraph 2, Anna Faye Swaggerty, a Texas resident and mother of Richard Vance Swaggerty, retained the services of Respondent, Wesley M. Norwood, to defend her son in the Douglas County criminal case.
“4. A fiduciary relationship was first established between Respondent, Wesley M. Norwood, and Anna Faye Swaggerty when she retained him to defend her son. A fiduciary relationship was also created between Respondent, Wesley M. Norwood, and Richard Vance Swaggerty when his defense was undertaken by Respondent, Wesley M. Norwood. Both of these fiduciary relationships continued generally throughout any time period relevant hereto and at least through September 25, 1989, at which time Richard Vance Swaggerty [was] granted probation. [See generally Hazard and Hodes, The Law of Lawyering, 2nd Edition S 1.5:103 (1990)].
“5. Respondent, Wesley M. Norwood, borrowed: $30,000.00 from Anna Faye Swaggerty on May 20, 1987; $5,000.00 from Anna Faye Swaggerty on November 5, 1987; $5,000.00 from Anna Faye Swaggerty on January 27, 1988; $65,000.00 from Anna Faye Swaggerty on June 7, 1988; and $12,000.00 on January 26, 1989, for a total of $117,000.00 (Note: because of the times involved the Code of Professional Responsibility, [1992] Kan. Ct. R. Annot. [189] applies to the first three transactions while the Model Rules of Professional Conduct, Rule 226, [1992] Kan. Ct. R. Annot. [238] applies to the last two transactions.)
“6. Respondent, Wesley M. Norwood, gave no collateral or security to Anna Faye Swaggerty for any of the five (5) loans described in paragraph 5.
“7. Respondent, Wesley M. Norwood, gave no Promissory note or any other evidence of obligation to Anna Faye Swaggerty in any of the five (5) loan transactions described in paragraph 5.
“8. Respondent, Wesley M. Norwood, agreed to give no interest to Anna-Faye Swaggerty in any of the five (5) [loan] transactions described in paragraph five (5) when the normal commercial loan note in Lawrence, Kansas as Respondent, Wesley M. Norwood, well knew, was between 12% and 14% in 1987 to 1989.
“9. Respondent, Wesley M. Norwood, never agreed to a due date on any of the five (5) loans he obtained from Anna Faye Swaggerty as described' in paragraph 5.
“10. Respondent, Wesley M. Norwood’s five (5) loan transactions were not on fair and reasonable terms for Anna Faye Swaggerty.
“11. Respondent, Wesley M. Norwood, never reduced any of the five (5) loan transactions described in paragraph 5 to a written form for the benefit of Anna Faye Swaggerty.
“12. Respondent, Wesley M. Norwood, never suggested or required Anna Faye Swaggerty to seek legal advice of independent counsel to the five (5) loan transactions described in paragraph 5.
“13. Respondent, Wesley M. Norwood, did not repay Anna Faye Swaggerty the money in a timely manner nor when requested to do so in December 1989. Since 1989, Respondent, Wesley M. Norwood, has repaid approximately $30,000.00 of the $117,000.00 in loans outlined in paragraph 5. In addition, Respondent, Wesley M. Norwood, has agreed to allow an outstanding attorney fee bill in the amount of $3,250.00 incurred in representing Richard Vance Swaggerty and owed by Anna Faye Swaggerty to be credited toward the debt owed by Respondent, Wesley M. Norwood to Anna Faye Swaggerty. No payments have been made by Respondent, Wesley M. Norwood, since December 1990.
“14. These acts of Respondent, Wesley M. Norwood, may amount to a violation of DR 5-104(a) [1992 Kan. Ct. R. Annot. 210], DR 7-101(A)(3) [1992 Kan. Ct. R. Annot. 219], DR 1-102(A)(1) and (6) [1992 Kan. Ct. R. Annot. 189] or MRPC 1.7 [1992 Kan. Ct. R. Annot. 261]; 1.8(a) [1992 Kan. Ct. R. Annot. 265], 1.15(d)(2)(iii) and (iv) [1992 Kan. Ct. R. Annot. 281], and 8.4(a) and (g) [1992 Kan. Ct. R. Annot. 328], and Respondent, Wesley M. Norwood’s oath of office, In re Wilkinson, 242 Kan. 133 (1987), and other ethical provisions as determined by the hearing panel.
“COUNT II (B4994)
“15. On or about June 30, 1989, one Wayne F. McKinney was charged in Douglas County District Court Case No. 89 CR-490 with two felonies one count of Possession of Marijuana With Intent to Sell and one count of Tax Stamp violations. . . .
“16. At about the same time Wayne F. McKinney retained Respondent, Wesley M. Norwood, to defend him on the two Douglas County felony charges.
“17. The Douglas County charges were set for trial on October 16, 1989, but were continued because plea negotiations were continuing between Respondent Wesley M. Norwood, and the District Attorney’s office.
“18. On or about October 18, 1989, during the process of plea negotiating, Respondent, Wesley M. Norwood, knowing the financial status of Wayne McKinney obtained a personal cash loan from McKinney in the amount of $15,000.00. Wayne McKinney felt trapped, uncomfortable and that he had no choice except to loan the money to Respondent, Wesley M. Norwood. . . .
“19. Within days a plea agreement was reached and on November 29, 1989, Wayne McKinney plead guilty to reduced charges. . . .
“20. Respondent, Wesley M. Norwood, gave no collateral or security to Wayne McKinney for the $15,000.00 loan, nor did he discuss his $117,000.00 debt to Anna Faye Swaggerty or other relevant debts.
“21. Respondent, Wesley M. Norwood, did give Wayne McKinney 10% interest on the $15,000.00 [note] when he knew that just five months earlier he had paid 14% interest on a six month $23,000.00 loan from the Kaw Valley State Bank. The 10% interest rate was below the standard commercial loan rate in Douglas County, Kansas, in October 1989.
“22. Respondent, Wesley M. Norwood, agreed to repay the $15,000.00 note with interest on January 18, 1990. Respondent, Wesley M. Norwood failed to repay the note as promised even after many demands by Wayne F. McKinney. Three months after the filing of the original complaint in B4994 Respondent, Wesley M. Norwood, repaid the debt plus interest to Wayne McKinney on November 30, 1990.
“23. Respondent, Wesley M. Norwood’s loan from Wayne F. McKinney was obtained under duress and was not on fair and reasonable terms.
“24. Respondent, Wesley M. Norwood, never suggested, required or allowed Wayne F. McKinney to seek legal advice from independent counsel concerning the loan described in paragraph [18].
“CONCLUSIONS OF LAW
“(1) That the acts of Respondent, Wesley M. Norwood amount to a vi olation of MRPC 1.7, 1.8(a), 1.15(d)(2)(iii) and (iv) and 8.4(a) and (g) and Respondent Wesley M. Norwood’s oath of office.”
At the conclusion of the hearing before the Kansas Board for Discipline of Attorneys, the Disciplinary Administrator recommended, and Wesley M. Norwood agreed, that there should be an informal admonition with a plan of oversight and supervision. The hearing panel agreed and found that Wesley M. Norwood should be informally admonished with the following plan of oversight and supervision:
“PLAN OF OVERSIGHT AND SUPERVISION — WESLEY M. NORWOOD “1. Oversight and Supervision of Practice of Law:
Norwood’s practice of law will be supervised by Bruce J. Woner for a 3 year period. The supervising attorney will review Norwood’s case load and discuss his progress with members of the bar and the bench. The supervisor will make monthly reports to the disciplinary administrator regarding his fitness for the continued practice of law.
“2. Alcohol Rehabilitation:
A. Norwood shall abstain from all alcoholic beverages.
B. Norwood will be supervised by John Hampton of the Impaired Lawyers Committee or his designee. The supervisor shall meet with Nor-wood on a regular basis to ensure that Norwood is attending required meetings and is abstaining from the use of alcohol. The supervisor shall make monthly reports through the balance of 1992 and quarterly reports thereafter to the disciplinary administrator regarding Norwood’s compliance with this section during the 3 year period.
C. Norwood shall continue to attend and participate in the following: 1) MCC Aftercare Counseling for so long as it is required by MCC; 2) Alcoholics Anonymous meetings at least three times a week for the 3 year period of oversight and supervision; and 3) the Valley Hope Aftercare program on a monthly basis through 1992 and potentially quarterly thereafter during the 3 year period.
“3. Restitution to Anna Faye Swaggerty:
A. Norwood will repay Anna Faye Swaggerty the lull amount of the judgment plus interest.
B. A minimum of 12.5% of Norwood’s net monthly income will go to pay Mrs. Swaggerty.
C. Any payments to Norwood from his children for monies loaned will be used to reduce Norwood’s obligation to Mrs. Swaggerty.
D. Norwood will work toward, making arrangements to sell certain real property owned. Proceeds from the sale of the property will be used to pay the expenses of sale and first mortgage. All other proceeds will be used to reduce the debt to Mrs. Swaggerty.
E. Norwood’s financial condition will be supervised by Woner, Glenn, Reeder, Lowry & Girard of Topeka, Kansas. The supervisor will prepare monthly reports of Norwood’s income; payments to Mrs. Swaggerty, and overall financial position to the disciplinary administrator.
“4. Financial Condition:
Norwood’s financial condition will be reviewed on a quarterly basis by Woner, Glenn, Reeder, Lowry & Girard and Norwood’s primary bankers, Georgeson and Hoover, and an updated financial statement and financial report will be forwarded at least on a quarterly basis to the disciplinary administrator.
“5. Norwood pledges himself to [fully] cooperate and work with the Supreme Court of Kansas, the office of the Disciplinary Administrator and all institutions or individuals identified above or their successors.
“6. At the end of the 3 year term, the office of the Disciplinary Administrator will make a report to the Supreme Court relative to this plan of oversight and supervision with a recommendation as to whether or not the plan should be continued or terminated.”
Respondent has filed no exception to the hearing panel’s final report and has accepted the findings of fact and conclusions of law of the hearing panel. He may not and does not challenge those findings and conclusions.
Respondent and his counsel urge this court to adopt the recommendations of the hearing panel. We understand the recommendations of the hearing panel to be a sincere attempt to provide a method for returning to Mrs. Swaggerty the funds loaned to respondent. We also understand the recommendations to be an attempt to provide respondent with a method of rehabilitating himself. Both attempts are laudable, but we are more inclined to examine carefully the nature of respondent’s conduct, which amounts to serious violations of the Model Rules of Professional Conduct.
The admitted violations are compounded by the fact that respondent solicited the funds from his clients within the context of the attorney-client relationship at a time when critical services had yet to be accomplished for the clients by respondent. This point is perhaps no better illustrated than by quoting from Wayne McKinney’s letter to the Disciplinary Administrator concerning the $15,000 loan he made to repondent:
“During the process of negotiating with the District Attorney, Mr. Nor-wood, aware of my financial situation, asked me rather firmly for a $15,000.00 personal loan .... Reluctantly, I gave it to him. During the course of our conversations, Mr. Norwood [repeatedly] asked me not to talk to anyone. Since I have never been in any legal trouble before, I was extremely nervous, stressed, and willing to do anything to get this part of my life over with. Being unfamiliar with the judicial process, I felt my situation would be compromised since he knew I had the money. I felt very trapped and uncomfortable, but felt I had no choice.”
Our examination of respondent’s conduct leads us to conclude that the appropriate sanction in this case is suspension from the practice of law. We have considered matters in mitigation, arguments of counsel, and the statement of respondent. The conduct reflected in the stipulated facts giving rise to the violations set forth in the conclusions warrant no less than suspension. Although we realize that respondent is not bound by the “plan of oversight” upon entry of this order, we urge him to follow through with this plan to the extent possible.
It Is Therefore Ordered that. Wesley M. Norwood be and he is hereby indefinitely suspended from the practice of law in the State of Kansas.
It Is Further Ordered that respondent shall comply with the provisions of Supreme Court Rule 218 (1992 Kan. Ct. R. Annot. 177), that the cost of these proceedings be assessed to respondent, and that this order be published in the official Kansas Reports.
Six and Abbott, JJ., not participating.
William J. Dick, district judge, assigned. | [
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On September 14, 1973, Benjamin L. Evans, respondent, was admitted to the practice of law in Kansas. He was suspended by this court on November 20, 1987, for failing to properly register under Supreme Court Rule 208 (1991 Kan. Ct. R. Anhot. 151)»
On September 30, 1992, respondent untimely notified the Disciplinary Administrator by letter, stating in part:
“Pursuant to Kansas Supreme Court Rule 207, this letter is to advise you that in 1981, I was convicted in the U.S. District Court for the District of Columbia of criminal offenses as follows: (1) mail fraud in violation of 18 U.S.C. 1341 and (2) obstruction of an official investigation in violation of 18 U.S.C. 1510. As a result of this conviction, I was disbarred by consent in the District of Columbia where I also was a member of the bar.”
On July 6, 1981, the United States Attorney filed a Memorandum of United States Regarding Sentencing in United States of America v. Benjamin L. Evans, Criminal No. 81-91, in the United States District Court for the District of Columbia. The Memorandum stated:
“On March 18, 1981, the defendant, BENJAMIN L. EVANS, was indicted by a Federal Grand Jury and charged with 12 counts of Mail Fraud (18 U.S.C. 1341) and 2 counts of Obstruction of an Investigation (18 U.S.C. 1510). On May 15, 1981, the defendant entered a guilty plea to Counts 3 and 14 (Mail Fraud and Obstruction of an Investigation) and is to be sentenced on July 7, 1981. We file this allocution memorandum to aid the Court in acquainting itself with the factors the government feels are pertinent to the Court’s decision at sentencing.
“As was made clear on May 15, 1981, at the time of the defendant’s guilty plea in this case, the defendant was an officer of this Court and a practicing attorney during the four years (1976-1980) relevant to this indictment. During that time he generated a scheme to defraud numerous clients that had entrusted injury cases to him as well as at least eight insurance companies that were forced to pay fraudulent claims. The defendant did this by any one or combination of ways. He knowingly would refer clients to certain physicians who would prepare false and fraudulent medical reports and bills. Often the client had never even seen the physicians and the medical report was totally made up. Sometimes the services and treatment were inflated by the physician and sometimes the injuries were inflated. In any event, in order to obtain favorable monetary settlements, the defendant knowingly caused these false medical reports to be submitted to the insurance companies who in turn paid off on the inflated claims. In some instances the defendant would forge the signature of his clients on release forms in order to settle at the fraudulently inflated amount and conceal the receipt of the settlement from his client and indeed totally embezzle the proceeds.
“As the Court is aware, and the defendant has admitted by his plea, when he became aware of the Postal Services investigation of him, he deliberately attempted to obstruct the investigation by telling Michael Jackson what to do and. tell the investigator.
“It is not possible for us to spell out the exact amount of money the defendant received by falsifying all of the claims to the insurance companies. This is because, as the Court knows, for the most part, all of his clients had some legitimate cause of action or injury for which [they] were entitled compensation. However, because of the defendant’s obvious greed, the insurance companies paid well more than they should have, and this money went into his pocket, not the clients’. Fraudulent claims mean higher rates for us all, or even the inability of some of us to obtain insurance. In short, the effect of the defendant’s greed can logically be expected to be borne by all of us.
“It is our position that because of the above, the defendant deserves a, substantial period of incarceration.”
Dated this 17th day of November, 1992.
On October 30, 1992, the Clerk of the Appellate Courts received an undated letter in which respondent, pursuant to Supreme Court Rule 217 (1991 Kan. Ct. R. Annot. 162), voluntarily surrendered his license to practice law in the State of Kansas.
The court, having examined the files and records of the Office of the Disciplinary Administrator, finds that the surrender of respondent’s license should be accepted and that respondent should be disbarred.
It Is Therefore Ordered that Benjamin L. Evans be and he is hereby disbarred from the practice of law in the State of Kansas and his license and privilege to practice law are hereby revoked.
It Is Further Ordered that the Clerk of the Appellate Courts strike the name of Benjamin L. Evans from the roll of attorneys licensed to practice law in the State of Kansas and that respondent forthwith comply with Supreme Court Rule 218 (1991 Kan. Ct. R. Annot. 163).
It Is Further Ordered that this order shall be published in the Kansas Reports and that the costs herein be assessed to the respondent. | [
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|
The opinion of the court was delivered by
ALLEGRUCCI, J.:
This is an action by court reporting students who are seeking damages against Washburn University of Topeka (Washburn). They alleged a violation of the Kansas Consumer Protection Act (KCPA), K.S.A. 50-623 et seq., in that the school falsely stated in its 1987-89 catalogue that its program in court reporting was accredited or approved by the National Shorthand Reporters Association (NSRA). They further alleged “educational malpractice” in the conduct and supervision of the court reporting program. The district court granted summary judgment in favor of the school, and the students appealed. The appeal was transferred to this court pursuant to K.S.A. 20-3018(c).
The material facts are not in dispute. Washburn initiated its court reporting program in the fall of 1984. In 1985, Debra Smith became the instructor of the program and was instructor until her resignation in the spring of 1990. Smith was a Certified Shorthand Reporter (CSR) and a Registered Professional Reporter. She had worked as a reporter for a judge and as a freelance reporter for two reporting firms; she also had owned a reporting firm.
Before the fall of 1989, student evaluations of Debra Smith as an instructor ranked her as average to above average. In the fall of 1989, some students complained to the Washburn administration regarding the lack of quality instruction in the court reporting program. Following the complaints, Washburn attempted remedial action.
Washburn’s 1985-87 academic catalogue stated: “The School of Applied and Continuing Education’s Court and Conference Reporting program began in the Fall Semester of 1984. Washburn University will apply for full accreditation with the National Shorthand Reporters Association (NSRA), which is expected in 1986.”
The 1987-89 catalogue stated: “Washburn is accredited or approved by the . . . National Association of Shorthand Reporters.” The statement appeared in a section entitled “General Information,” which was applicable to the entire university. The catalogue description of the court reporting program does not contain a statement about accreditation.
Also in the 1987-89 catalogue there was a section devoted to the School of Applied and Continuing Education, which offered the court reporting program. Listed in that section were accrediting agencies that had approved other programs in the School of Applied and Continuing Education. There was no statement in that section that the court reporting program was accredited.
On approximately September 25, 1989, Washburn became aware of the claim of accreditation in the catalogue. Beginning on October 1, 1989, white tape was placed over the word on all undistributed catalogues. An announcement was made to classes that there was an error in the catalogue and that accreditation was being sought.
There were several brochures which, at different times during the history of the court reporting program, were made available to students. One version stated: “Washburn University will apply for full accreditation with the National Shorthand Reporters Association (NSRA), which is expected in 1987. Graduates are eligible to take the examination for certification as a shorthand reporter under the laws of the State of Kansas (C.S.R.).” Other brochures, dated September 1988 and February 1989, stated: “Washburn University’s court reporting program has applied for and is seeking full accreditation through the National Shorthand Reporters Association (NSRA).” A brochure, dated July 1990, contained the same statement except “accreditation” had been changed to “approval.”
Washburn was notified in the summer of 1990 that its court reporting program had received approval by the NSRA. At no time had the program been denied accreditation or approval.
The 1987-89 academic catalogue stated in large print that Wash-bum does not guarantee that specific achievement, success, or employment will result from any of its degree programs. It also stated that the catalogue does not create contractual rights.
The percentage of Washburn students who passed the Kansas CSR examination from 1987 through 1991 is lower than the percentage of other students who passed.
The district court regarded the argument made by the students as asking for an “unusually liberal interpretation of the KCPA.” For the purpose of their motion for summary judgment, the students had stated that “it should be assumed as fact that no Plaintiff relied upon defendant’s representation of approval/accreditation by the National Shorthand Reporters Association of defendant’s Court and Conference Reporting Program.” Many of the plaintiffs enrolled prior to the publication of the 1987-88 catalogue or enrolled without knowledge of the error in the catalogue. The students claimed that they were aggrieved because they paid tuition for a program that was not accredited, but they do not claim that they were induced to enroll in the program by the false statement that it was accredited. Thus, the students did not demonstrate a causal link between Washburn’s false statement and their injuries.
The district court reasoned that it was necessary for the students to show a causal link because the recovery provided under K.S.A. 50-634(b) is for consumers “aggrieved by a violation of this act.” (Emphasis added.) The district court, therefore, ruled against the students on this issue.
The basic issue presented by this appeal is whether summary judgment was proper under the facts in this case. Where the facts are not disputed, summary judgment is appropriate. We must view those facts in the light most favorable to the party who defended against the motion for summary judgment, and if reasonable minds could differ as to the conclusion drawn from the facts, summary judgment must be denied. However, if the only questions presented are questions of law, the summary judgment is proper. McGee v. Chalfant, 248 Kan. 434, 437, 806 P.2d 980 (1991).
The Kansas Consumer Protection Act was enacted in 1973 to promote the following policy, among others: “to protect consumers from suppliers who commit deceptive and unconscionable practices.” K.S.A. 50-623(b). In order to promote this policy, the “KCPA is to be construed liberally. Willman v. Ewen, 230 Kan. 262, 267, 634 P.2d 1061 (1981).” Stair v. Gaylord, 232 Kan. 765, 775, 659 P.2d 178 (1983).
Private remedies available under the Act include the following: “A consumer who is aggrieved by a violation of this act may recover . . . actual damages or a civil penalty, ... whichever is greater.” K.S.A. 50-634(b). K.S.A. 50-636(a) provides, in pertinent part:
“The commission of any act or practice declared to be a violation of this act shall render the violator liable to the aggrieved consumer . . . for the payment of a civil penalty ... in a sum set by the court of not more than $2,000 for each violation.”
The penalty was raised from $2,000 to $5,000 after this suit was filed.
K.S.A. 1973 Supp. 50-634(b), as originally passed, provided that “[a] consumer who suffers loss as a result of a violation of this act may recover, but not in a class action, actual damages or a civil penalty as provided in . . . 50-636(a), whichever is greater.” In 1976, the legislature amended this provision by striking the phrase “suffers loss as a result of” and replacing it with “is aggrieved by.” L. 1976, ch. 236, § 5.
“Consumer” is defined in the KCPA as “an individual who seeks or acquires property or services for personal, family, house hold, business or agricultural purposes.” K.S.A. 50-624(b). “Aggrieved” is not defined.
On appeal, the students argue that there is no requirement of a causal connection in the language of the Act. They argue that all they need to show for recovery is that they are consumers who are engaged in a consumer transaction with defendant and that defendant committed a deceptive act or practice under the Act. They extract the word “aggrieved” from its context in 50-634(b) and offer dictionary definitions of the isolated term. They ignore the phrase “by a violation of this act,” which follows the word “aggrieved” in 50-634(b).
The students make the unsupported assertion that the KCPA is not a- codification of the common-law causes of action for fraud or misrepresentation. They want the court to draw the conclusion that liability under the Act does not require a showing of causation. They cite Bell v. Kent-Brown Chevrolet Co., 1 Kan. App. 2d 131, 133, 561 P.2d 907 (1977), for the proposition that liability under the KCPA does not depend on the supplier’s having intent or prior knowledge. Washburn’s “state of mind” is not an issue in the present case.
The students cite Manley v. Wichita Business College, 237 Kan. 427, 439, 701 P.2d 893 (1985) (citing Watkins v. Roach Cadillac, Inc., 7 Kan. App. 2d 8, 15, 637 P.2d 458 [1981], rev. denied 230 Kan. 819 [1982]), for the proposition that the “existence of the actual damages is proof of prejudice even though actual damages are not required in consumer protection cases.” The students relate the proposition to the present case as follows: “If damages, as such, are not required, then damages resulting from reliance are not required either. If damages resulting from reliance are not required, the reliance itself is not required.” The students do not cite Manley for the principle that damages prove prejudice, which is what the case stands for. The students quote it for the principle that actual damages need not be shown in consumer protection cases. Under K.S.A. 50-634(b), a civil penalty is available when actual damages are minimal, but the availability of either damages or a penalty depends on the consumer’s being “aggrieved by a violation of [the] act.” If the students are not aggrieved by the violation, then they do not have a remedy under K.S.A. 50-634(b).
The students also argue that an action brought by the attorney general or a county attorney or district attorney need not be brought for an “aggrieved consumer.” The attorney general is charged with investigation and enforcement of the Act. K.S.A. 50-628. K.S.A. 50-631, K.S.A. 50-632, and K.S.A. 50:633 spell out the means for accomplishing these responsibilities. Because a remedy is available to the attorney general is not a basis for concluding that the same is true for a consumer whose private remedies are set out in K.S.A. 50-634.
Finally, the students argue that the KCPA previously contained a causal link requirement, but that it “has been amended out of the Act.” This argument is based on the following statement in Note, A New Kansas Approach to an Old Fraud, 14 Washburn L.J. 623, 636-37 (1975): “As in tort actions generally, . . . the plaintiff must prove a causal connection between the alleged deception and his damage. He can show this by proving his reliance on the alleged deceptive act.” The pertinent portion of footnote 90 to the text quoted above quotes K.S.A. 1974 Supp. 50-634(b) as follows: “ ‘A consumer who suffers loss as a result of a violation of this act may recover . . . actual damages . . . .’ (emphasis added).” We do not agree that the change from the 1974 version of this section to the current one eliminates the need to show a causal connection.
We note the amendment in 1991 to the KCPA is not mentioned by either party. K.S.A. 1991 Supp. 50-626(b)(l)(B) provides:
“Deceptive acts and practices include, but are not limited to, the following, each of which is hereby declared to be a violation of this act, whether or not any consumer has in fact been misled:
(1) Representations made knowingly or with reason to know that:
(B) the supplier has a sponsorship, approval, status, affiliation or connection that the supplier does not have.” (Emphasis added.)
The italicized phrase, whether or not any consumer has in fact been misled, was added in the 1991 legislative session, effective July 1, 1991. L. 1991, ch. 159, § 2. K.S.A. 50-626(a) provides that “[n]o supplier shall engage in any deceptive act or practice in connection with a consumer transaction.” Thus, a supplier’s commission of a deceptive act, as described in 50-626(b), constitutes a violation of the KCPA.
The students’ petition was filed approximately a year before this amendment became effective. This court has stated: “Ordinarily, courts presume that, by changing the language of a statute, the legislature intends either to clarify its meaning or to change its effect.” Watkins v. Hartsock, 245 Kan. 756, 759, 783 P.2d 1293 (1989). It appears from the 1973 Kansas Comment to 50-626 that the 1991 change amounted to clarification. The Comment states, in pertinent part:
“The acts and practices listed in subsection (b) are treated as per se deceptive, and are merely illustrative of the acts and practices which violate the act as set forth in the broadly worded subsection (a). The old Buyer Protection Act contained no list of per se deceptive practices, but relied on general language.
“Subsection (b)(1)(B) would, for example, preclude a seller from holding himself out as an authorized dealer, or having received a favorable rating from an organization like Underwriters’ Laboratories, when such was not the case.”
Thus, from the time the KCPA initially was enacted, Washburn’s false statement that its court reporting program was accredited or approved by the National Association of Shorthand Reporters has been a per se violation of the Act. However, it does not follow that the students can recover, absent a showing that they are “aggrieved by” such violation.
The interpretation of a statute is a question of law, and it is the function of the court to interpret a statute to give it the effect intended by the legislature. Director of Taxation v. Kansas Krude Oil Reclaiming Co., 236 Kan. 450, 455, 691 P.2d 1303 (1984). “The fundamental rule of statutory construction is that the intent of the legislature governs. [Citation omitted.] When construing a statute, a court should give words in common usage their natural and ordinary meaning.” Hill v. Hill, 13 Kan. App. 2d 107, 108, 763 P.2d 640 (1988). In determining legislative intent, we are not limited to consideration of the language Used in the statute, but may look to the purpose to be accomplished and the effect the statute may have under the various constructions suggested. In re Petition of City of Moran, 238 Kan. 513, 520, 713 P.2d 451 (1986).
This court has never been called upon to interpret the meaning of “aggrieved” in the context of the KCPA. Black’s Law Dictionary defines aggrieved as “[h]aving suffered loss or injury.” Black’s Law Dictionary 65 (6th ed. 1990). In Fairfax Drainage District v. City of Kansas City, 190 Kan. 308, 374 P.2d 35 (1962), this court was called upon to determine the meaning of aggrieved in the context of G.S. 1949, 12-502a, which authorized an appeal by the owner of land within the city limits “ ‘who shall be aggrieved by the decision of the board of county commissioners.’ ” 190 Kan. at 314. The district court held the drainage district was not an aggrieved party and, therefore, could not appeal from the order of the board of county commissioners. In affirming the district court, this court quoted with approval from the district court’s decision:
“ ‘A party is aggrieved whose legal right is invaded by an act complained of or whose pecuniary interest is directly affected by the order. The term refers to a substantial grievance, a denial of some personal or property right, or the imposition upon a party of some burden or obligation. In this sense it does not refer to persons who may happen to entertain desires on the subject, but only to those who have rights which may be enforced at law and whose pecuniary interest may be affected. (2 Am. Jur. 941, Appeal and Error, Secs. 149-152; Black’s Law Dictionary, 3rd ed.)’ ” 190 Kan. at 314-15.
In the present case, the students did not rely on the false statement, and many, if not all, of the students were unaware of the statement. Many enrolled prior to the publication of the statement in the university catalogue. Nor is there any showing that any of the students suffered injury or loss as a result of the publication of the statement. The students enrolled and paid the tuition. By so doing, they were consumers under the KCPA; however, the Act requires more in that they must also be aggrieved by the violation.
The students are consumers, but are they aggrieved by the publication of the false statement in the Washburn catalogue? If they are not, then they cannot bring this action to recover damages or a civil penalty under 50-634(b). As we previously noted, the attorney general is charged with the investigation and enforcement of the Act. Alleged violations of the Act, such as the one in the present case, can be brought by the attorney general, and a civil penalty assessed under K.S.A. 50-636. Our statement in Manley, 237 Kan. at 439, that “actual damages are not required in consumer protection cases” was too broad. That is demonstrated by our citation of Watkins v. Roach Cadillac, Inc., 7 Kan. App. 2d 8, as authority for that statement. Watkins brought an action under the KCPA, alleging Roach Leasing, Inc., had committed a deceptive consumer sales practice. Watkins leased a Cadillac automobile from Roach and several months later the paint started cracking; he then learned for the first time that the car had been shipped from the factory with an inferior paint job and Roach had repainted the car. Justice Fromme, speaking for a unanimous court, said:
“Appellant [Roach] contends next that the trial court erred in assessing a civil penalty of $2,000.00 under K.S.A. 50-636(o) because plaintiff failed to establish that he suffered damage by reason of the deceptive act charged. K.S.A. 50-634, relating to private remedies, provided:
‘(b) A .consumer who is aggrieved by a violation of this act may recover, but not in a class action, actual damages or a civil penalty as provided in K.S.A. 50-636(a), and amendments thereto, whichever is greater.’
“In this case there can be little doubt the consumer plaintiff was aggrieved by a violation of the Act. There was evidence the car was in need of a complete paint job costing at least $200.00. The statute authorizes recovery of actual damages or a civil penalty, not to exceed $2,000.00, to be set by the court. The alternative depends on whichever is greater. The $2,000.00 civil penalty was properly imposed in this case.” 7 Kan. App. 2d at 15.
A loss or injury resulting from a violation of the Act is not required in an action filed by the attorney general under K.S.A. 50-632 and K.S.A. 50-636; it is, however, required for one filed by a consumer under K.S.A. 50-634(b).
Ordinarily, there is a presumption that by changing the language of a statute, the intent is to change its effect or clarify its meaning. However, as noted in Citizens State Bank of Grainfield v. Kaiser, 12 Kan. App. 2d 530, 536, 750 P.2d 422, rev. denied 243 Kan. 777 (1988), the intent-to-change presumption “may be strong or weak according to the circumstances, and may be wanting altogether in a particular case.” We do not believe the legislature intended to change the private remedy available to a consumer by the 1976 amendment to 50-634(b). We do not interpret an aggrieved consumer to be one who is neither aware of nor damaged by a violation of the Act. If that had been the intention, it could have been simply and clearly stated in the amendment. If the intent was to change the effect of the statute, as is urged by the students, the legislature would have merely struck the phrase “suffers a loss as a result of” and not substituted “is aggrieved by” in its place. We conclude that the 1976 amendment to 50-634(b) did not alter the private remedy available to a consumer. Thus, the district court did not err in holding that a causal connection is still required to maintain an action under K.S.A. 50-634(b), and the granting of summary judgment was correct.
The district court also rejected the students’ claims of breach of contract and negligent supervision. The district court discussed these two theories of recovery under the single heading, “educational malpractice.” On appeal, the students do not object to this characterization of their claims, and in their brief state the issue to be whether this court will “recognize a claim of ‘educational malpractice’ in this case.”
The district court relied on Ross v. Creighton University, 740 F. Supp. 1319 (N.D. Ill. 1990), in granting summary judgment to Washburn, stating:
“Applying the reasoning in Ross, Plaintiffs’ claims are clearly not actionable. While Plaintiffs present statistics demonstrating the low pass rates of Washburn students sitting for the Kansas C.S.R. examination, these statistics prove only that the performances of the Washburn students were indeed poor, not why the performances were poor. The low pass rates may be indicative of factors having nothing to do with the instruction of the court reporting course, such as student absenteeism, student apathy, or student incompetence.”
In Ross, a former student athlete’s lawsuit was dismissed for failure to state a claim upon which relief could be granted. The federal court predicted that Illinois state courts would refuse to recognize a cause of action for educational malpractice. In holding that such an action did not exist in Illinois, the court stated:
“Educational malpractice is a tort theory beloved of commentators, but not of courts. While often proposed as a remedy for those who think themselves wronged by educators [citations omitted], educational malpractice has been repeatedly rejected by the American courts [citations omitted].
“The closest any case cited to this Court has come to accepting a cause of action for educational malpractice is B.M. v. State of Montana, 200 Mont. 58, 649 P.2d 425 (1982), which nevertheless failed to muster a majority of the state Supreme Court’s seven justices in favor of the tort. . . . [R]ather than provide reasons to adopt the tort, B.M. illustrates the common law’s extreme reluctance to embrace it.” 740 F. Supp. at 1327.
The federal court further stated:
“Admittedly, the term ‘educational malpractice’ has a seductive ring to it; after all, if doctors, lawyers, accountants and other professionals can be held liable for failing to exercise due care, why can’t teachers? [Citation omitted]. The answer is that the nature of education radically differs from other professions. Education is an intensely collaborative process, requiring the interaction of student with teacher. A good student can learn from a poor teacher; a poor student can close his mind to a good teacher. Without effort by a student, he cannot be educated. Good teaching method may vary with the needs of the individual student. In other professions, by contrast, client cooperation is far less important; given a modicum of cooperation, a competent professional in other fields can control the results obtained. But in education, the ultimate responsibility for success remains always with the student. Both the process and the result are subjective, and proof or disproof extremely difficult.” 740 F. Supp. at 1328.
On the subject of the floodgates, the federal court stated:
“It also must be remembered that education is a service rendered on an immensely greater scale than other professional services. If every failed student could seek tort damages against any teacher, administrator and school he feels may have shortchanged him at some point in his education, the courts could be deluged and schools shut down. [Citations omitted.] . . . This is not to say that the mere worry that litigation will increase justifies a court’s refusal to remedy a wrong; it is to say that the real danger of an unrestrained multiplication of lawsuits shows the disutility of the proposed remedy. If poor education (or student laziness) is to be corrected, a common law action for negligence is not a practical means of going about it.” 740 F. Supp. at 1329.
The case of Donohue v. Copiague UFSD, 47 N.Y.2d 440, 418 N.Y.S.2d 375, 391 N.E.2d 1352 (1979), is a landmark case that is cited by most if not all state courts that have subsequently considered this issue. In Donohue, the Court of Appeals of New York, as a matter of public policy, refused to recognize a cause of action seeking monetary damages for educational malpractice, stating:
“To entertain a cause of action for ‘educational malpractice’ would require the courts not merely to make judgments as to the validity of broad educational policies — a course we have unalteringly eschewed in the past — but, more importantly, to sit in review of the day-to-day implementation of these policies. Recognition in the courts of this cause of action would constitute blatant interference with the responsibility for the administration of the public school system lodged by Constitution and statute in school administrative agencies. [Citation omitted.] Of course, ‘[t]his is not to say that there may never be gross violations of defined public policy-which the courts would be obliged to recognize and correct.’ (Matter of New York City Schools Bds. Assn. v. Board of Educ., 39 N.Y.2d [111], at p.121, supra).” 47 N.Y.2d at 444-45.
Justice Wachtler, concurring, stated:
“I agree that complaints of ‘educational malpractice’ are for school administrative agencies, rather than the courts, to resolve.
“There is, however, another even more fundamental objection to entertaining plaintiff’s cause of action alleging educational malpractice. It is a basic principle that the law does not provide a remedy for every injury (Howard v. Lecher, 42 N.Y.2d 109, 113). As the majority notes, the decision of whether a new cause of action should be recognized at law is largely a question of policy. Critical to such a determination is whether the cause of action sought to be pleaded would be reasonably manageable within our legal system. The practical problems raised by a cause of action sounding in educational malpractice are so formidable that I would conclude that such a legal theory should not be cognizable in our courts. These problems, clearly articulated at the Appellate Division, include the practical impossibility of proving that the alleged malpractice of the teacher proximately caused the learning deficiency of the plaintiff student. Factors such as the student’s attitude, motivation, temperament, past experience and home environment may all play an essential and immeasurable role in learning. Indeed as the majority observes proximate cause might he difficult, if not impossible, to prove.’ ” 47 N.Y.2d at 445-46.
This is an issue of first impression in Kansas. As noted in Ross, the overwhelming majority of courts that have considered a cause of action for educational malpractice have rejected it. 740 F. Supp. at 1327. In fact, the students do not cite nor are we aware of any case which has recognized it.
The students do not offer a single valid reason why this court should create a cause of action against schools and/or teachers for negligence in education. They offer gross generalizations in response to the public policy considerations for rejecting educational malpractice as a tort action. They seem to suggest that a flood of litigation can be avoided if the cause of action is restricted to colleges, universities, and vocational schools. They suggest using “reasonably competent instruction” or “commonly accepted instructional practice” as the standard for judging the adequacy of educational methods. They suggest that thorny questions of causation and damages will resolve themselves if the burden for their proof is placed upon the complaining students.
The strong public policy reasons for not recognizing a tort action for educational malpractice are identified in Ross and Donohue as (1) a lack of a measurable standard of care; (2) inherent uncertainties as to the cause and nature of damages; (3) the potential for a flood of litigation; and (4) the courts’ overseeing the day-to-day operation of the schools. We find these reasons to be compelling and the rationales of Ross and Donohue to be persuasive. We therefore do not recognize a cause of action in tort for educational malpractice and find that the district court did not err in granting the defendant’s motion for summary judgment on plaintiffs’ claim for educational malpractice.
The judgment of the district court granting summary judgment to Washburn University is affirmed.
McFarland, J., not participating.
Terry L. Bullock, district judge, assigned. | [
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The opinion of the court was delivered by
Jackson, J.:
This is an action by a minor child, appearing by her father as natural guardian and next friend, against the appellees as defendants seeking to recover damages for personal injuries alleged to have been suffered due to the negligence of the defendants. This appeal is from an order of the district court sustaining a demurrer to the first cause of action in plaintiff’s third amended petition, and also from the denial of certain motions filed by plaintiff.
Plaintiff is alleged to have suffered a broken leg and other injuries on February 15, 1954. At that time plaintiff is alleged to have been seven years of age. This action was originally begun February 21, 1955, to recover damages to compensate plaintiff for the alleged injuries. The case is still not at issue and no answer has ever been filed by defendants. We find it unnecessary to recount all the motions and amendments which have been filed. The case was before this court as to • an appeal on a different part of the petition in Farran v. Peterson, 181 Kan. 145, 309 P. 2d 677. The record of the case up to that time will be found in the former opinion.
One issue in the present appeal should be laid tp rest at the outset. The defendants seem to have raised the question of the statute of limitations in the lower court and also in the briefs in this court. The plaintiff is still a minor since only a little more than five years have passed since her alleged injury. In the recent case of Domann v. Pence, 183 Kan. 196, 326 P. 2d 260, the syllabus reads as follows:
“A cause of action in favor of an infant for personal injuries sustained may be brought by the infant at any time during infancy, and will in no event be barred by the two-year limitation until one year after the disability of infancy has been removed.”
The force and effect of the above clear statement of the law is that a minor child will not be barred of a right of action during his minority. Of course, a final judgment will determine the rights of a minor (Burdette v. Corgan, 26 Kan. 102; Huls v. Gafford Lumber & Grain Co., 120 Kan. 209, 243 Pac. 306; Perry v. Umberger, 145 Kan. 367, 65 P. 2d 280; Lewis v. McConchie, 151 Kan. 778, 100 P. 2d 752). No such adjudication has been had in this case during the last four years of this litigation.
In considering the other questions on this appeal, a more particular inspection of the pleadings will be necessary. We shall begin, however, with the third amended petition. As shown ,in our former opinion, supra, that pleading included three causes of action. The first cause of action was based upon negligence in creating and permitting a dangerous condition to exist; the second cause charged the defendants with maintaining a nuisance; and the third cause sought to allege that the defendants had created and maintained an attractive nuisance. Only the third cause of action was involved in the first appeal to this court. The order of the trial court in striking the third cause from the petition was affirmed in our former opinion.
We are advised that the third amended petition was filed in the instant case on March 8, 1956. The defendants seem to have adopted an unusual and irregular procedure in pleading to this third amended petition. On March 28, 1956, defendants filed a motion to strike the third cause of action in the petition, but failed in any way to plead to the other causes contained therein until after the decision of this court on the former appeal relating to the third cause. Finally on May 27, 1957, more than a year later, defendants filed demurrers to the first and second causes of the amended petition as to which they had been in default for want of answer or other pleading. Plaintiff then through counsel belatedly filed motions to strike the demurrers of defendants as being filed out of time and without leave of court and “that the defendants by filing said instruments are attempting to avoid and delay trial.”
Plaintiff also filed a motion denominated “motion for judgment on the pleadings” as to count one of the third amended petition. In this motion plaintiff seems to have contended that she was entitled to a default judgment against the defendants.
On June 19, 1957, the trial court overruled both plaintiff’s motions to strike and- the “motion for judgment on the pleadings.” On August 1, 1957, the trial court is shown to have sustained the defendants’ demurrers to the first and second causes of action. The reasons for the order are not indicated in the journal entry.
Ry timely appeal plaintiff brought the case to this court seeking a review of the trial court’s ruling on the above motions and as to the order relative to the demurrers of the defendants.
Subsequent to this appeal, the defendant W. F. Peterson died and the action has been revived in the name of his administrator.
In the supplemental brief of the appellant herein, the appellant waives all matters relating to the second cause of action and relies entirely upon the first cause of the petition based upon negligence. The case was submitted to this court without benefit of oral argu ment, and will be decided from the matters gleaned from the abstracts and briefs.
We shall first take up the matter of the plaintiff’s motions to strike the demurrers to the first cause of action because of being filed out of time and for delay. Of course, these motions are within the sound discretion of the trial court. But we would point out the provisions of G. S. 1949, 60-708 reading as follows:
“The defendant may demur to one or more of the several causes of action stated in the petition, and answer to the residue.”
The above section of the civil code and the code in general have never been thought to sanction the response to an adversary’s pleading in piecemeal stages. As early as Adams v. Lockwood, Englehart & Co., 30 Kan. 373, 2 Pac. 626, Mr. Justice Brewer, speaking for the court said:
“A motion was made to discharge the attachment, which was overruled. After it had been overruled, defendants filed a second motion to discharge the attachment upon different grounds. This motion was filed apparently without any leave of the court. Upon a hearing it was also overruled, and of these rulings defendants now complain. As this second motion was filed without leave of the court, it might properly have been disregarded. None of the grounds stated in it could by any pretense be called new matter; that is, facts arising since the decision of the first motion. A party has no right to trouble the court or annoy the opposite party by successive motions seeking the same relief, even though he bases them upon different grounds. He must include everything in the first motion, and can only file a second motion upon leave of the court, which will be rarely granted, and then only where justice seems manifestly to require it. (Freeman on Judgments, §§325, 326.) So that if the court had disregarded the second motion, there would be no error.”
Again in Krey v. Schmidt, 170 Kan. 86, at p. 89, 223 P. 2d 1015, the court pointed out the impropriety of pleading to part of a petition, and see Zinn v. Hill Lumber & Investment Co., 176 Kan. 669, at p. 671, 272 P. 2d 1106. Be that as it may, we do not believe that-we can reverse the rulings of the trial court as to its refusal to strike the demurrers of the defendants.
It may be that the trial court sustained the demurrers to the first cause of action in the belief that the statute of limitations has run since the filing of the action. The case of Domann v. Pence, supra, reiterating the rules appertaining thereto, had not been decided at that time. As shown supra, the statute of limitations can play no part in this case.
The first cause of action of the petition which is now under consideration contains some matters of evidence and anticipatory ma terial, which may have been inserted into the pleading in response to motions directed at prior pleadings, but the best manner to consider the sufficiency of the petition would seem to be to set out the main portions thereof in this opinion. After three introductory paragraphs, paragraph numbered three continues:
“3. Plaintiff further alleges that on or about the 1st day of February, 1952, Clarence R. Farran and family rented and leased the south apartment on the second floor of the building located at 2530% Main Street, Parsons, Kansas, from W. F. Peterson and Stella Peterson, the owners thereof, who were joint tenants and not tenants in common of said property; that said property is situated in Labette County, Kansas, to wit:
[legal description]
and consists of a two story brick building having a vacant store building on the first floor, and two four room apartments on the second floor. That in addition thereto there is a plot of ground at the rear of said building, approximately 35' North and South by 28' East and West, upon which there was situated clothes lines and trash burner and playground for the use of the occupants of the second floor apartments, being a portion of property leased.
“4. That below the two apartments situated on the upper floor located at 2530% Main Street, there was situated a grocery store previously leased by other parties, but which was vacant in December, 1953; that W. F. Peterson and Stella Peterson, his wife, employed M. H. Walker, a contractor, to remodel the lower floor of the building; that the work was performed by M. H. Walker, contractor, who wás agent, servant and employee of defendants, W. F. Peterson and Stella Peterson, that said contractor threw and scattered all the debris, old equipment, rubbish and old lumber taken from the lower floor of said building, in disorderly loose heaps on the south half or the vacant portion of said lot being leased and commonly used by Clarence R. Farran and his family and the other tenants in the apartment directly above the store, and upon which the clothes lines and trash burner and playground were located; said debris, old equipment, rubbish and old lumber consisted of plaster, wooden boxes, shelving and counters commonly used in a grocery store, a better description of which this plaintiff cannot at this time give.
“5. That the remodeling work on the grocery store located on the lower floor was commenced on or about December 18, 1953, and was completed on or about the 4th day of January, 1954; that M. H. Walker, the contractor, who was an employee, servant and agent, was acting under the direction of W. F. Peterson and Stella Peterson, the owners of said building at all times referred to herein, when he left the debris, old equipment, rubbish and old lumber taken from the lower portion of said building in the back yard heretofore referred to.
“Mrs. Clarence Farran on numerous occasions between January 4, 1954, and the 1st day of February, 1954, orally notified the defendants, W. F. Peterson and Stella Peterson that said' materials should be removed, and that it was dangerous to the tenants'and their families living in said property, and that it was interfering with their lease.
“6. That the plaintiff,-Beatrice Farran, on'or about the 15th day of February, 1954, at about 4:00 P. M., without fault or negligence on her part, fell four feet from the top of the heap of debris, old equipment, rubbish and old lumber, the same toppling under the weight of said child, and broke her leg. That W. F. Peterson and Stella Peterson, the defendants were landlords of the plaintiff, and M. H. Walker, who was jointly acting as their agent, servant and contractor in remodeling the lower portions of said building, were negligent in the manner in which said work was done, and Beatrice Farran, a minor, who is the daughter of Clarence R. Farran, the tenant of said premises, was without fault; and that said defendants and each of them owed to this plaintiff a duty to do this work in a workmanlike manner, and to keep said premises in a safe condition for the tenants and their families using said premises, and they and each of them knew or should have known that plaintiff, using the said premises, would be in danger of being injured, and in fact plaintiff was injured thereby.
“7. That defendants, and each of them, are guilty of the following acts of negligence, recklessness and carelessness in throwing and scattering the debris, old equipment, rubbish and old lumber in loose heaps upon said premises, the said acts being the proximate cause of Plaintiff’s injuries, in that they did the following, to wit:
“(a) That defendant, M. H. Walker, contractor, agent, servant and employee of W. F. Peterson and Stella Peterson, threw and scattered the debris, old equipment, rubbish and old lumber on the premises and left it there, thrown in a negligent manner in the tenants and plaintiff’s playground, where she, as the tenant’s child, was accustomed to play.
“8. That upon the 15th day of February, 1954, at about 4:00 o’clock P. M., after due notice had been given to the defendants, and each of them, and as a direct and proximate result of said defendants’ negligence, recklessness and carelessness as heretofore stated, Beatrice Farran, age seven years, while playing in her own yard, fell from the heap of debris, old equipment, rubbish and old lumber removed from the lower portion of the store building and deposited on the premises as heretofore alleged, and as a result of said fall Beatrice Farran received numerous bruises, lacerations and contusions to her body, which were accompanied by severe pain which made her sick, sore, lame, and disabled. So far as is now known to this plaintiff the principal injuries sustained were the following, to wit:”
The pleading continues with minute descriptions of plaintiff’s injuries and prays judgment in the sum of $13,238 and interest.
The attention of counsel is directed to the fact, that under the above allegations, plaintiff is seeking compensation for injuries suffered upon a part of a piece of land possessed by the owner who has leased another portion with permission that all of his tenants may use the portion still possessed by the owner. It is clear that the owner and possessor of such a parcel of land may well be responsible for injuries to persons coming upon such real estate under the authority of his tenants, if he negligently allows a dangerous condition to exist thereon.
In Restatement, Torts, § 360, it is said:
“A possessor of land, who leases a part thereof and retains in his own possession any other part which the lessee is entitled to use as appurtenant to the part leased to him, is subject to liability to his lessee and others lawfully upon the land with the consent of the lessee or a sub-lessee for bodily harm caused to them by a dangerous condition upon that part of the land retained in the lessor’s control, if the lessor by the exercise of reasonable care could have discovered the condition and the unreasonable risk involved therein and could have made the condition safe.”
Attention is especially directed also to Comment c. found under the above quoted rule.
In the case of Hinthorn v. Benfer, 90 Kan. 731, 136 Pac. 247, the syllabus of the opinion written by Mr. Justice Porter reads:
“A narrow porch or landing of an outside stairway used and intended for the use of different tenants of a building, and connected with a common hallway, is part of the stairway itself and necessarily in the possession and control of the landlord; and he is bound to exercise reasonable care to render it safe for the use which he invites others to make of it.
“Whether the landlord in this case was guilty of negligence in failing to discover the defective condition of the landing was a question of fact for the jury, and it was error to sustain a demurrer to the evidence.”
Attention is also directed to Zinn v. Hill Lumber & Investment Co., supra, and same case on later appeal, 180 Kan. 625, 305 P. 2d 1056; Trimble v. Spears, 182 Kan. 406, 320 P. 2d 1029; 52 C. J. S. 38, § 417(4); 32 Am. Jur. 559, § 687.
We direct special attention to the third paragraph of the syllabus of the opinion in the first appeal in the Zinn case, supra, stating the old rule:
“A demurrer to a petition admits all facts well pleaded.”
It is also Hornbook law, that matters of defense need not be anticipated in a petition (Clark, Code Pleading, 2d Ed. 250, § 40).
Appellees in their brief seem to admit that the seven year old girl could not be charged with contributory negligence, which we agree would be exceedingly difficult to do, but suggest that plaintiff’s parents should have kept her out of the way of danger. While if this theory were relevant it would seem to be a matter of defense to be raised by answer, attention is directed to the statement of Mr. Justice Dawson in the syllabus of Garcia v. Slater-Breitag Yeamans Motor Co., 128 Kan. 365, 278 Pac. 23, a case where a six year old girl had been injured by defendant’s negligence. The statement reads:
“(f) contributory negligence on the part of plaintiff’s parents or guardian did not relieve defendant of liability for the injury and damage sustained by plaintiff because of defendant’s negligence.”
All other matters raised in the briefs of counsel have been carefully considered but require no further comment. The court is of the opinion that the first cause of action stated sufficient facts to constitute a cause of action against the defendants. The order of the trial court must be reversed with directions to require the defendants to file their answers to the above cause of action within a reasonable time and that the case be set down for trial at the earliest possible moment.
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The opinion of the court was delivered by
Jackson, J.:
This is an original petition for habeas corpus. The petition prepared by petitioner, an inmate of the penitentiary at Lansing, is not a work of legal art. Under the circumstances, we have given the petition the most liberal construction possible, but must say at the outset that we fail to find any ground for the allowance of the writ.
Petitioner was arraigned on October 2,1943, and charged with the crime of grand larceny in the Sedgwick county district court. When it appeared petitioner had no counsel, the judge promptly appointed a regularly practicing member of the bar to represent him. On October 22, 1943, petitioner was tried on the above charge and found guilty by a jury. On November 5, 1943, the court overruled petitioner’s motion for new trial and sentenced him to a term of twenty-five years in the penitentiary under the provisions of the habitual criminal act, then appearing as G. S. 1941 Supp. 21-107a. The journal entry of judgment recites that petitioner’s court appointed counsel was present and represented him in all of these proceedings. It is also shown that from the evidence before the court and as admitted by petitioner when he testified in his own behalf at the trial, petitioner had been convicted of three prior felonies and had served a sentence in the Kansas penitentiary and two sentences in the Missouri penitentiary.
We interpret the petition to attempt to raise two questions; first, that the habitual criminal act is unconstitutional; and second, that at least two of the prior sentences for which petitioner served in penitentiaries were void and therefore section 21-107a could not be applied to him.
As to the first contention as to the validity of the statute, the contention is absolutely without merit. This court has many times upheld the statute and similar statutes have been sustained by the Supreme Court of the United States and the courts of other jurisdictions (See Scott v. Hudspeth, 171 Kan. 320, 232 P. 2d 464, and cases cited; 25 Am. Jur. 261, §3 et seq.).
The second question is raised by the petitioner as follows:
“The conviction from Crawford county, City of Girard, Kansas, in January, 1937, and the conviction from Henry county, City of Clinton, Missouri, January, 1940, this petitioner did not have counsel and did not sign a waiver or anything stating that he did not want counsel. This petitioner has got certified copies of the informations and journal entries of these two before courts showing that this petitioner did not have an attorney or any kind of counsel to represent him in the before mentioned convictions.”
Apparently petitioner is relying in the first instance on the statute now appearing as G. S. 1957 Supp. 62-1304. Petitioner may not be so advised but the statute read quite differently in 1937 at the time of the Kansas judgment which he attacks. In Crisp v. Hudspeth, 162 Kan. 567, 178 P. 2d 228, the court said at page 569:
“In considering petitioner’s contentions we follow the rule often stated, that where a petitioner in a habeas corpus proceeding attacks the judgment against him on the ground his constitutional rights have been violated, the burden of proof is upon him to establish the facts relied upon as having that effect. See Bissell v. Amrine, 159 Kan. 358, syl. ¶ 2, 155 P. 2d 413, certiorari denied 324 U. S. 875, 65 S. Ct. 1013, 89 L. Ed. 1428, rehearing denied 325 U. S. 894, 65 S. Ct. 1190, 89 L. Ed. 2005. See, also, the opinion in Downs v. Hudspeth, this day decided (post, p. 575). And it has also been held that where a person accused of a crime has been sentenced following his plea of guilty, the judgment, when collaterally attacked, carries' with it a presumption of regularity. See Brewer v. Amrine, 155 Kan. 525, 127 P. 2d 447, certiorari denied 317 U. S. 702, 63 S. Ct. 525, 87 L. Ed. 561. We note also our decisions to the effect that the mere fact a journal entry of judgment, in a case tried prior to the change in the criminal code of 1941, may have recited that defendant was without counsel, is not to be held to show that he was deprived of counsel. See Garrison v. Amrine, 155 Kan. 509, 126 P. 2d 228, certiorari denied 317 U. S. 630, 63 S. Ct. 51, 87 L. Ed. 509; Hill v. Hudspeth, 161 Kan. 376, 168 P. 2d 922.”
A fortiori, section 62-1304 has never had any application to the courts of the state of Missouri, and the judgments of that state are entitled to full faith and credit and to a presumption of validity.
It may be noted that petitioner has not claimed that he was deprived of counsel either in Kansas or Missouri (Arnold v. Hudspeth, 166 Kan. 628, 203 P. 2d 205).
We have held in a somewhat similar situation that a petitioner in habeas corpus could not challenge the sufficiency of the evidence shown as to the application of the habitual criminal act, Darling v. Hoffman, 180 Kan. 137, 299 P. 2d 594. Moreover, it has long been the rule of this court that the unsupported testimony of a petitioner in a habeas corpus proceeding was insufficient to sustain the burden of proof or justify the granting of a writ when confronted by judgments entitled to the presumption of regularity and validity (Scott v. Hudspeth, supra; Cunningham v. Hoffman, 179 Kan. 609, 296 P. 2d 1081, and cases cited).
From the foregoing, it is apparent that petitioner has failed to show any valid ground for the issuance of a writ of habeas corpus, and the same is denied. It is so ordered. | [
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The opinion of the court was delivered by
Price, J.:
This is an action for wrongful death arising out of an automobile collision. Judgment was for plaintiffs and defendant has appealed.
Plaintiffs are the parents of Ronald Foreman, who was six years of age at the time of his death. At about 8:35 P. M. on August 6, 1957, Ronald was out for a ride with the Carmichaels, who were friends and neighbors of his parents. The Carmichael car was traveling east on Pawnee Street at about thirty to thirty-five miles per -hour. Mr. Carmichael, the driver, intended to turn north on Webb Road and slowed to ábout fifteen miles per hour, and, when about 100 feet west of the intersection, set his left-turn indicator light. While negotiating the turn the Carmichael car was hit by the car owned, and driven from the east, by defendant, William E. Heinz, age nineteen. The approximate point of impact was on Pawnee Street three feet south of the north edge of that street and seven feet west of the west side of Webb Road. The force of impact caused the Carmichael car, traveling in a northeasterly direction, to be thrown west and north, and it came to rest facing south, about thirty-five feet distant from the point of impact. Defendant’s westbound car laid down 105 feet of braking skid marks prior to the collision, continued on west for 136 feet, and came to rest facing east. The passengers in the Carmichael car were thrown from it. Both cars were demolished, and plaintiff’s son was killed instantly.
Leonard N. Heinz, the father of defendant William E. Heinz, was joined as a party defendant on the theory of ownership of the car and that he knowingly permitted William, a known reckless driver, to operate a vehicle. His demurrer to plaintiffs’ evidence was sustained, however, thereby removing him from the case.
The petition charged that William E. Heinz, hereafter referred to as defendant, was negligent in that he failed to keep a proper lookout for vehicles at the time and place in question; failed to have proper brakes in order to be able to stop, turn aside, or avoid striking the Carmichael car; in driving at' a high and dangerous rate of speed in excess of seventy miles per hour; failing to keep his car under control, and in driving his car at a speed at which he could not stop within range of his vision. Recovery was sought in the amount of $25,000.
The answer denied negligence on the part of defendant and alleged that the death of plaintiffs’ son was caused solely by the negligence of the driver of the Carmichael car in that he suddenly and without prior warning made a left turn directly in front of defendant’s car; that he failed to keep a proper lookout and to give a proper signal of his intention to turn, and failed to observe defendant’s car. As further defenses the answer alleged that defendant was acting in an emergency, and that if the collision was not caused by the negligence of the driver of the Carmichael car then it was an unavoidable accident for which no one was to blame.
Upon the issues thus joined the parties proceeded to trial and at the conclusion thereof the jury returned a general verdict for plaintiffs in the amount of $8,076.03, and answered special questions as follow:
“1. State the location of defendant’s vehicle with reference to the point of collision at the time the plaintiff car commenced its left turn.
“Answer: East of Webb Road and north lane of Pawnee.
“2. State the speed of defendant’s vehicle immediately prior to the time he observed the plaintiff vehicle turning.
“Answer: High and dangerous rate of speed at and on approach to intersection, in excess of 60 miles per hour. •
“3. State, if you can determine from the evidence, what is the braking distance, exclusive of reaction time, for defendant’s vehicle operated at the speed found in 2 above?
“Answer: Cannot determine.
“4. State, if you can determine from the evidence, what the braking distance would be for defendant’s vehicle at a speed of:
“Answer:
(a) 55 miles per hour 226.9'.
(b) 60 miles per hour 270'.
(c) 65 miles per hour insufficient evidence.
(d) 70 miles per hour 367.6'.
(e) 75 miles per hour insufficient evidence.
(/) 80 miles per hour 480'.
“5. If you find for the plaintiffs, state the act or acts of negligence you find against the defendant which were a proximate cause of the collision.
“Answer:
1. Driving at high and dangerous rate of speed, at and on approach of intersection.
2. Failing to keep control of his car which enabled him to stop or turn aside.
3. Failing to drive his car at a speed at which he could stop or turn aside, after a left-turn signal had been given by Carmichael while 100 ft. west of intersection.”
Defendant’s post-trial motions, including one for a new trial, were overruled and judgment was entered on the verdict. Defendant has appealed, and although nine specifications of error are assigned only two questions are argued.
The first is that it was error to admit expert or opinion evidence of defendant’s speed based on skid marks, location of vehicles, damage to vehicles and independent tests — or, if otherwise admissible, that no proper foundation was laid for its introduction.
The second point is that the jury’s answers to the special questions are so indefinite as to constitute a failure to decide the issue, thus entitling defendant to a new trial.
The first question concerns the testimony of Sheriff Bland of Sedgwick county who at the time of the collision was captain of the sheriff’s patrol division, and of Lieutenant Clark of the traffic division of the Wichita police department.
Sheriff Bland testified that while with the sheriff’s office he had investigated 1,500 to 2,000 traffic accidents, and that while a police officer with the city he had occasion to investigate 2,500 to 3,000 traffic accidents. He had served as a patrolman, motorcycle traffic officer and traffic-accident investigator for the police department.
Lieutenant Clark testified that he had been a police officer for over eighteen years and presently was a lieutenant in the traffic division of the department, one of his principal duties being to investigate accidents and to make conclusions as the result of such investigations. He was a graduate of the traffic institute at Northwestern University, had attended various other traffic schools, and had taught an accredited course at Wichita University and also Kansas University on various phases of accident investigation and traffic control.
Sheriff Bland was at the scene of the collision, whereas Lieutenant Clark was not. Based on length of skid marks, types of cars involved, type and nature of the highway surface, location and damage to the two cars, and other physical facts, each of these witnesses was permitted to give his opinion as to the speed of defendant’s car at the time of the collision. Sheriff Bland estimated defendant’s speed at the time of impact as sixty to sixty-five miles per hour. Lieutenant Clark estimated defendant’s speed at forty miles per hour at the time of impact.
It is argued that no proper foundation for such expert or opinion evidence was laid, and that such evidence was clearly inadmissible.
The qualifications, experience and background of each of the two witnesses has been related, and, in our opinion, it may not be said that a proper foundation for their testimony was not laid. As pointed out by defendant, we realize that courts throughout the land are not in complete agreement on the question of admissibility of opinion evidence as to speed based on physical facts such as skid marks, damage to vehicles, and the like. While not precisely in point, in Briley v. Nussbaum, 122 Kan. 438, 252 Pac. 223, it was held not to be error to instruct the jury that in determining the rate of speed a vehicle was traveling the length of skid marks might be taken into consideration. In Cherry v. State Automobile Insurance Association, 181 Kan. 205, 310 P. 2d 907, it was said:
“Under the conditions and circumstances heretofore related, and since as we have previously indicated the weight of such evidence is for the triers of fact, we have little difficulty in concluding that a witness qualified as an expert may give his opinion, based upon the length of skid marks as shown by a picture, as to the speed of a motor vehicle involved in an accident.” (p. 211.)
See also the annotations at 133 A. L. R. 726, and 23 A. L. R. 2d 112, 116 and 141.
Close-up photographs of the two cars were introduced in evidence and are included in the record before us. They have been examined and we feel constrained to say that they offer silent but conclusive proof of the fact that at the time of impact at least one of the cars was traveling at a high rate of speed.
With respect to the second proposition, concerning tibe alleged evasiveness of tibe jury’s answers to special questions, the chief complaint appears to be against the first two answers. We think, however, the contention lacks substantial merit. We are told that the special questions were prepared by and submitted at the request of defendant. It is noted that the first question does not ask for the distance in feet east of tibe point of collision. The jury’s answer was that defendant’s car was east of the intersection and in the right traffic lane, which fact, of course, is correct. In its answer to the second question the jury simply replied that it could not specifically and definitely state the speed of defendant’s car, but that under the circumstances it was high and dangerous and in excess of sixty miles per hour.
Considerable evidence was introduced in the trial of this case. Each of the drivers testified as to his version of how the collision occurred. No complaint is made concerning instructions and it must be presumed tibe jury was fully and correctly instructed on all phases of the case. We have considered all contentions made by defendant, but, nothing of a prejudicial nature being made to appear, and, the verdict having been approved by the trial court, the judgment is affirmed. | [
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The opinion of the court was delivered by
Schboeder, J.;
This is an appeal in a habeas corpus action by the petitioner from an order of the district court of Leavenworth County, Kansas, denying the petitioner’s writ.
The appellant is presently confined in the Kansas State Penitentiary pursuant to the order of the district court of Finney County, Kansas, entered on the 20th day of December, 1957, wherein he was sentenced to a term of not more than ten years on each of two counts of second degree forgery. On May 8, 1959, the appellant filed a petition for a writ of habeas corpus in the district court of Leavenworth County, Kansas. The matter was heard on the 20th day of May, 1959, at which time the writ was denied and the appellant remanded to the custody of the Warden of the Kansas State Penitentiary, appellee. Thereafter, appellant perfected this appeal.
The sole question presented is whether the district court of Finney County, which originally tried the appellant, fully complied with the jurisdictional requirements of G. S. 1957 Supp., 62-1304, regarding the appointment of counsel.
On December 17, 1957, the appellant was about to be arraigned on an information in the district court of Finney County, Kansas, charging him with two counts of second degree forgery. The appellant appeared without counsel, and the court appointed Harrison Smith, a member of the Finney County Bar, to represent him. The matter was then continued to December 20, 1957. On this latter date, the appellant appeared before the court with his attorney, waived formal arraignment, and pleaded guilty to each count in the information. He was thereupon sentenced to the penitentiary.
The appellant’s sole contention in this proceeding is that the official court reporter did not make and transcribe the notes of the appointment of counsel on the 17th day of December, 1957, or of the arraignment and plea on the 20th day of December, 1957, in the district court of Finney County.
There is attached to the petition of the appellant for the writ of habeas corpus, however, a transcript prepared by the official court reporter showing the appointment of counsel for the appellant in the district court of Finney County. Omitting the caption, it reads:
“Appearances: For the State — Duane E. West, County Attorney. For the Defendant — In Person.
“The Court: Let the record show that the defendant is without counsel; that the defendant is without funds with which to employ counsel; that the defendant desires that the Court appoint counsel to represent him in this action; that the defendant has been informed by the Court of his right to trial by a Jury, and that the Court appoints Harrison Smith, a duly licensed and practicing attorney within the Thirty-Second Judicial District, as counsel for the defendant in this action.
“Date: December 17, 1957.”
The foregoing transcript was certified as true and correct by the official court reporter of the Thirty-Second Judicial District of Kansas over her signature.
In his brief, among other things, the appellant charges that he did tell the court he had preference to an attorney but was denied that preference, and that he “never did plead guilty but was plead guilty by one Harrison Smith, Court appointed attorney who was appointed by the Court over the protests of defendant.”
Assuming the charges set forth in the appellant’s brief are properly before the court, they are the uncorroborated statements of the appellant. This court is committed to the rule that the unsupported and uncorroborated statements of a petitioner in a habeas corpus proceeding do not sustain the burden of proof or justify the granting of his writ where 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 cited therein.)
The journal entry of trial and judgment in the Finney County district court introduced by the respondent appellee, after placing in issue the material allegations of the petition, fully discloses the trial proceedings of the appellant before the district court of Finney County. On the 17th day of December, 1957, the matter came on for hearing and the appellant appeared in person in the custody of the sheriff with no attorney.
The journal entry then reads in part:
“The court is informed that the defendant does not have an attorney and the court interrogates the defendant as to whether or not he has funds with which to employ counsel and the defendant informs the court that he does not have funds with which to employ an attorney but that if counsel were appointed for him he would consult with such counsel and heed his advice. The court thereupon inquiries of the defendant if he has any preference as to counsel if one were appointed for him and the defendant advises the court that he has no preference.
“Thereupon the court appoints Harrison Smith, a regular, competent, qualified and practicing attorney of the Finney County Bar to represent the defendant in this action.
“Thereafter, and on the 20th day of December, 1957, this being a judicial day of this court, this cause again comes on for hearing, the plaintiff appearing by Duane E. West, County Attorney, and the defendant appearing in person and by his attorney, Harrison Smith.
“Thereupon, the defendant informs the court, by his attorney, that he waives formal arraignment of the charges and desires to enter pleas of guilty to each count of the crimes as charged in the Information, said crimes being defined in Section 21-608 and Section 21-609 of the General Statutes of Kansas for 1949, and the penalties for said crimes being outlined in Section 21-631 of said Statutes, said crimes being that of forging and uttering a check.
“Counsel for the defendant informs the court that he has furnished the defendant with a copy of the Information filed in this cause and has explained the charges to defendant and discussed it with him; that he has fully advised defendant as to the nature of the crimes with which he is charged, the penalties prescribed therefor and the possible sentence if, in fact, the defendant were upon jury trial found guilty of said offenses.
“Thereupon, the court interrogates the defendant as to his knowledge of the offenses charged; the penalties prescribed therefor,. and as to defendant’s desire to enter a plea of guilty to both counts as charged. Defendant informs the court that he is well aware of the offenses, the penalties prescribed therefor, and his right to trial by jury on said charges and that it is still his desire that his pleas of guilty to the counts be accepted by the court. Thereupon the court announces that the pleas offered by the defendant are accepted and the court then inquires of defendant and of his attorney if they or either of them, have any reason to give why sentence should not now be passed upon the defendant and no reason is given.”
The appellant’s contention that the official court reporter did not make and transcribe the notes of the appointment of counsel on the 17th day of December, 1957, cannot be sustained. Conceding that the court reporter did not take notes or make a record of the arraignment and plea on the 20th day of December, 1957, and even assuming the record made by the court reporter of the appointment of counsel was insufficient, the appellant has not established grounds for a discharge. Under these facts and circumstances the decision is controlled by Goetz v. Hand, 185 Kan. 788, 347 P. 2d 349, decided this date. It was there held:
‘Tn a criminal action where counsel is appointed to represent an accused who is sentenced to imprisonment upon his plea of guilty, a judgment record showing full compliance with the jurisdictional requirements of G. S. 1957 Supp., ¿2-1304, (specified in Ramsey v. Hand, 185 Kan. 350, 343 P. 2d 225), insofar as applicable, is prima facie evidence to prove that the primary rights of the accused to a trial have been safeguarded as provided in the statute, and the uncorroborated statements of the accused in a subsequent habeas corpus action are insufficient to overcome this evidence. The failure of the court reporter to be present and make a record of the proceedings under such circumstances is merely an irregularity which is not sufficient to vitiate the proceedings.”
The judgment of the district court of Leavenworth County denying the appellant’s writ of habeas corpus is affirmed. | [
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Per Curiam:
This appeal is from a conviction of aggravated robbery and resisting arrest.
In the early evening hours of June 28, 1973, Snyder’s Liquor Store, located in Hutchinson, Kansas, was robbed. The liquor store attendant testified that a man, whom he later identified as the appellant, came into the store and asked for a fifth of Hill and Hill whiskey. The attendant turned around to get the liquor and when he turned back the appellant was holding a revolver and ordered the attendant to hand over all the money in the cash register. Apparently, the gun was fired during the course of the robbery. The robber left the store with the money ($300 to $360) and the liquor.
Officer Robert Miller of the Hutchinson Police Department was patrolling approximately three blocks from the liquor store when the robbery occurred, and was dispatched to the store to investigate. The dispatch described the robber as a short, young black male in dark clothes and advised the officer that money and a fifth of Hill and Hill whiskey had been taken.
As Officer Miller was going east to the liquor store, he saw a station wagon traveling west toward him. The station wagon caught his attention for several reasons: (1) it was coming from the direction of the liquor store; (2) it contained three black males; (3) Miller recognized the front seat passenger as Cedrick Jackson, whom Miller had known before; (4) Jackson turned clear around in his seat and looked at Miller after Miller had gone by; (5) the station wagon then put on its left turn signal and pulled into a left turn bay area until another police car crossed in front of the station wagon traveling south. The station wagon then accelerated across the street and continued west, instead of making the indicated left turn to the south. At this time, Miller felt something was amiss and turned around to pursue the station wagon.
As Miller followed the station wagon, he saw a passenger in the back seat, who turned out to be the appellant, “kinda digging down around the floorboard and raised up one time and went back, and looked like making some kind of furtive movements underneath.”
Miller stopped the station wagon and shortly thereafter Officer Sharp arrived on the scene. As Sharp approached the station wagon he observed a whiskey bottle wrapped in a paper sack laying in the back seat. Sharp checked with headquarters and ascertained that a fifth of Hill and Hill had been taken. Upon removing the bottle from the sack he discovered the bottle was a fifth of Hill and Hill whiskey.
Sharp also found a .22 caliber revolver under the front seat on the passenger side. During this time neither officer asked any of the occupants of the station wagon for permission to search nor did the officers have a search warrant.
Miller then transported the appellant back to the liquor store where the attendant identified the appellant as the man who had robbed him approximately fifteen minutes earlier.
At this point Miller advised the appellant he was under arrest and started to handcuff him. Appellant began struggling violently and Miller required the assistance of two other officers to subdue him. The charge of resisting arrest stemmed from this struggle..
The appellant was then taken to the county jail. At the booking window Officer Miller attempted to advise the appellant of his Miranda rights, but the appellant interrupted, saying he did not need to be informed of his rights because he was already aware of them. Miller testified that as he was accompanying the appellant to a cell, the appellant stated that he wanted to talk with Miller at a later time because “he wasn’t the only one in on this thing and he wasn’t going to stand this heat alone.”
Shortly thereafter, Officers Miller and Shgrp returned to the station wagon, which had been locked in their absence, to search it. Miller testified that the station wagon was registered to one Marion Crawford, and he further stated that Crawford “said something about he didn’t have any objection to us looking in it.” The officers located $177 underneath the right rear seat of the station wagon.
The appellant complains on appeal that: (1) the station wagon was illegally searched, so the whiskey, revolver and money were illegally seized; (2) his statements to Miller were inadmissible because the appellant had not been fully and properly advised of his rights; (3) the on-the-scene identification was inherently prejudicial, and (4) the conviction is not supported by the evidence since only $177 was found in the station wagon and approximately $330 was taken from the store.
With respect to the appellant’s first three points the record does not disclose an objection on the part of the appellant to the admission of any of the evidence complained about. This court has consistently held that a verdict will not be reversed by reason of erroneous admission of evidence unless the party objecting to its admission interposes a timely objection which makes clear the specific grounds therefor. (K. S. A. 60-404; State v. Lee, 197 Kan. 463, 419 P. 2d 927; and State v. Parker, 213 Kan. 229, 516 P. 2d 153.)
Even had there been objections there would still be no merit to the appellant’s points on appeal.
The physical evidence was admissible because appellant claims no interest in the station wagon or the property seized and therefore has no standing to object to the seizure (State v. Sumner, 210 Kan. 802, 504 P. 2d 239). In addition, the money was seized pursuant to a search authorized by the owner of the vehicle. Finally, the whiskey and revolver were seized because of Officer Sharp’s belief, based on probable cause, that the contents of the automobile offended against the law. (State v. Garcia & Bell, 210 Kan. 806, 504 P. 2d 172; State v. Atkinson, 215 Kan. 139, 523 P. 2d 737.)
Appellant’s second point lacks merit because his statements to Miller were voluntary and spontaneous, and were not elicited through custodial interrogation. (State v. Miles, 213 Kan. 245, 515 P. 2d 742.)
Thirdly, the on-the-scene identification of the appellant by the liquor store attendant, within minutes of the offense, was not improper. This court has approved similar identifications. (State v. Meeks, 205 Kan. 261, 469 P. 2d 302; State v. Kress, 210 Kan. 522, 502 P. 2d 827.)
Finally, the fact that not all of the stolen money was recovered is of no consequence. The store attendant’s identification coupled with the evidence seized and the appellant’s incriminating statements amply support the verdict.
The judgment is affirmed.
Fromme, J., not participating. | [
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The opinion of the court was delivered by
Harman, C.:
This is a declaratory judgment action commenced July 16, 1964, by Leland C. Waechter and approximately five hundred other named landowner-lessors, representing a class of some 3000 landowner-lessors, all in the Kansas Hugoton gas field, involving two separate claims against Amoco Production Company, formerly Pan American Petroleum Corporation, formerly S'tanolind Oil and Gas Company, as a result of gas taken by Amoco.
One claim is to determine whether Amoco as lessee under certain gas leases is obligated to account to the plaintiff-landowners for gas taken during the period June 23, 1961, to June 23, 1966, on the basis of 14.50 per thousand cubic feet at 14.65 pounds per square inch absolute instead of the lower prices actually paid to Amoco by the purchaser of the gas. The other claim is to determine whether Amoco is entitled to be repaid for overpayments of royalty it made to the plaintiff-landowners during the period from January 1, 1954, through December 22, 1957, pursuant to an 110 minimum price order of the Kansas corporation commission, and whether Amoco is obligated to account to' certain plaintiffs who have already made refunds to Amoco. The trial court rendered judgment for plaintiffs upon all issues in the case, procedural and substantive, and defendant Amoco has appealed.
At the heart of this litigation, which has been a protracted three-sided battle over the years (between Amoco and the Cities Service Gas Company, purchaser of the gas, over price of gas on the one hand, and between Amoco and plaintiffs over royalties on the other) are two writings — the gas purchase contract between Amoco and Cities and the royalty clause in Amoco’s leases with plaintiffs. Although, as will be seen later, there are actually forty-eight different forms of royalty clauses in the leases, in somewhat similar language, plaintiffs and Amoco are agreed the royalty clause covering most of the approximately 600,000 acres involved and also that upon which all parties will stand or fall, provides as follows:
“Lessee shall pay lessor monthly as royalty on gas marketed from each well one-eighth (Is) of the proceeds if sold at the well, or, if marketed by lessee off the leased premises, then one-eighth ()s) of the market value thereof at the well.”
The gas purchase contract dated June 23, 1950, under which Amoco sold the gas to Cities, contained these provisos:
“1. Buyer shall pay Seller for all gas purchased by it hereunder the price of 8.4 cents per 1,000 cubic feet until June 23, 1961.
“2. For all natural gas purchased by Buyer from and after June 22, 1961, the price of such gas shall be the fair and reasonable price for each successive five (5) year period thereafter based on and compared with the price for gas then being paid by other purchasers in the field under similar contracts and conditions, but in no event shall the price be less than 12 cents per 1,000 cubic feet.”
The entire story of this litigation and the contentions of the parties pertinent to determination of this appeal may best be presented by quoting the trial courts findings of fact and conclusions of law, filed July 3, 1973, as follows:
“1. This suit was brought in the name of Leland C. Waechter and (approximately 500) other Plaintiffs named on Exhibit ‘A’ (attached to the original and amended petitions) individually on their own behalf, and also as representatives for and on behalf of the other members of the class of landowners similarly situated owning lands (and minerals) subject to oil and gas leases owned and operated (in part) by Defendant, Amoco Production Company, formerly Pan American Petroleum Corporation, formerly Stanolind Oil and Gas Company, gas from which is delivered to Cities Service Gas Company under contract dated June 23, 1950.
“2. Plaintiffs ask for (1) a declaratory judgment decreeing that Amoco, and its successors in interest, account and pay royalty to the Plaintiffs at the rate of 14K cents per Mcf at 14.65 psia for gas produced after June 23, 1961 to June 23, 1966, from said dedicated leasehold estate; and (2) for judgment decreeing that Defendant has no legally enforceable claim for a refund of royalties or any portion thereof paid by the Defendant to the Plaintiffs by reason of gas production prior to December 22, 1957, and ask for consequential accounting relief.
“3. Defendant contends that the U. S. Supreme Court has determined that the Federal Power Commission has and has assumed jurisdiction of gas, including the sale price thereof, which is sold and transported in interstate commerce, to the exclusion of all state agencies and courts, and that the prices which the producer, as a natural gas company, under the Natural Gas Act, is permitted to receive unconditionally and not subject to refund obligations or other contingent claims affords the exclusive basis upon which landowners’ royalty should be computed.
“4. Defendant further contends that it has at all times relevant paid royalties provided for under the terms of the various leases based upon amounts received unconditionally and without refund obligation or contingent claims by the buyer as to such gas produced and sold to Cities Service which satisfies all contract obligations from the payment of royalties under the various terms set out in the many oil and gas leases dedicated to said gas purchase contract.
“5. On June 23, 1950, the Defendant at that time doing business under the name of Stanolind Oil and Gas Company, a Delaware Corparation, as seller, entered into a ‘Gas Purchase Contract’ with Cities Service Gas Company, a Delaware Corporation, as buyer conveying the natural gas produced from depths from the surface down to sea level (except certain liquifiable hydrocarbon from certain described leases) from oil and gas leases on approximately 600,000 acres of land located in the Kansas Hugoton Gas Field. Such contract, by its terms, superseded the previously existing contract dated June 13, 1946, between Defendant and Cities Service Gas Company, and under said contract Defendant undertook and agreed to make settlements for all royalties due and all payments to mineral and royalty owners and to make settlements with all persons having any interest in the gas covered by the contract.
“6. Buyer agreed to furnish all gas gathering and gas transportation pipe lines and pay seller 8.40 per Mcf at 16.4 psia for the gas until June 23, 1961. Then the price was to be the fair and reasonable price for each successive five year period based on and compared with the price for gas being paid by other purchasers in the field under similar contracts and conditions, but in no event shall the price be less than 12‡ per Mcf.
“7. Stanolind Oil and Gas Company, as seller, dedicated to the fulfillment of said contract the gas to be produced from depths from surface down to sea level from gas leasehold estates located in the Kansas-Hugoton Gas Field which covered lands owned by the Plaintiffs herein, whether designed by name or as a descriptive class. Said contract reserved to Defendant the right to extract liquifiable hydrocarbons under the terms and conditions provided for in a processing agreement of the same date between the same parties. On the same date Defendant also sold to Cities Service Gas Company its gas pipeline gathering system connected to the wells.
“8. On December 2, 1953, the Kansas Corporation Commission issued the following order: ‘That all persons, firms, or corporations which take gas or cause gas to be taken from the Hugoton Gas Field in Kansas on and after January 1, 1954, at 12:01 A. M., shall, as a condition precedent to a withdrawal from the common source of supply, pay or attribute to all gas taken except gas for the operation of leases, for all purposes including payments to producers, landowners, lease-owners and royalty owners, the fair and reasonable minimum price of not less than 110 Mcf (14.65 psia) at the well head until further order or orders of this Commission.’ The 110 minimum price order of the Kansas Corporation Commission is still in force and effect and is enforced as to certain gas produced from the Kansas Hugoton Field, and has never been challenged or attacked as to the fact-finding that such gas had a minimum fair and reasonable value of 110 at the wellhead beginning on January 1, 1954.
“9. From January 1, 1954, through November 22, 1957, Cities Service Gas Company paid Pan American 110 per Mcf (14.65 psia). Pan American paid royalties on the same rate to the oil and gas lease royalty owners and transmitted payments at the same rate to its farmoutees mentioned in finding No. 13 below, for the period from January 1, 1954, through December 22, 1957.
“10. Cities Service Gas Company notified Defendant that it considered the 110 price order to be illegal and would demand a refund of the difference between said 110 per Mcf (14.65 psia) and 8.40 per Mcf (16.4 psia) if their contentions proved to be correct. Defendant then by letters dated February 19, 1954, notified ‘all persons receiving gas settlements for Kansas Hugoton production from or through Stanolind Oil and Gas Co.’ that settlements are being made on the basis of the K. C. C. order dated December 2, 1954, and in the event said order is held invalid, a refund be made to the purchaser of any amount so paid in excess of that payable in the absence of said Order . . . acceptance of checks computed on the basis of said Order will constitute your agreement to refund amounts paid you over and above the amount to which you would have been entitled. By letter, Defendant agreed to accept payments on the basis of the purchaser’s letter first above mentioned.
“11. On June 7, 1954, the United States Supreme Court in the case of Phillips Petroleum Co. vs. Wisconsin, et al., 347 US 672, held the sale and transportation of natural gas into interstate commerce is subject to ‘The Federal Natural Gas Act’ and is subject to regulation by the Federal Power Commission exclusively.
“12. Defendant, as an independent producer of natural gas under the Natural Gas Act shortly after the Phillips decision, filed with the Federal Power Commission its rate schedule of 110 per Mcf at 14.65 psia and made application for a certificate of public convenience and necessity. The Federal Power Commission accepted said filing and issued such certificate.
“13. Defendant has assigned various gas rights under the leases dedicated to the Cities Service Gas purchase contract to approximately 168 owners and producers, who have made their own rate filings with, and made application for certificates of public convenience and necessity to the Federal Power Commission as independent producers and who are also referred to as farmoutees and whose interests cover approximately K of the acreage dedicated to said gas purchase contract. Late in 1964, there were approximately 136 farmoutees and as of September, 1966, the number of such persons was approximately 96. The numbers have changed by reason of the reacquisition by Defendant of assigned interests under the terms of the farmout agreements and due to assignments by the farmoutees of their interests under such farmout agreements.
“14. Cities Service Gas Co. has at all times relevant herein paid the total purchase price, for gas purchased under said gas purchase contract to Defendant, which, in turn, used a portion of the funds to make royalty payments to the lessors and payments to the farmoutees for such gas, retaining the balance of such funds for its own account.
"15. There are approximately 975 gas wells located on 593,818 gas leasehold acres dedicated to the fulfillment of the gas purchase contract. The number of landowners varies from time to time. At the time of the last evidentiary hearing, there were about 2,000 to 3,000 of them. The identity of the royalty owners is ascertainable from Defendant’s records for all relevant periods. The oil and gas leases are on 48 different forms, of which 34 are commercially printed forms, 3 are United States Department of the Interior, Bureau of Land Management forms, and 11 are individually typed forms. The leases cover lands in Stevens, Seward, Stanton, Grant, Haskell, Hamilton, Kearny, Morton and Finney Counties, Kansas.
“16. The assignments by Defendant to the farmoutees provide that such assignments ‘shall in all respects, be subject to the following contracts affecting the lease acreage:
“ ‘(a) A certain gas purchase contract dated the 23rd of June, 1950, by and between Stanolind Oil and Gas Company and Cities Service Gas Company.’
“Such assignments contained the following additional provisions:
“It is understood and agreed that to the extent of any conflict between the terms, covenants of this arrangement and conditions of this arrangement and the terms, covenants and conditions of the foregoing contraot . . . the teams, and conditions of said contraot shall govern and prevail.
“2. . . . the assignor hereby excepts and reserves unto itself, its successors and assigns, an overriding royalty of one-eighth of seven-eights (Is of %) of all the gas produced and saved from all horizons from the surface to the base of the Hugoton Pay Zone. . . .
“3. (d) When, as to each well, . . . assignee shall have received the aggregate gross sum of Fifty Thousand Dollars ($50,000.00) from the sala of his interest in the production from said well, assignor shall have the right and option, free of all cost, expense or other consideration, of exchanging its overriding royalty interest . . . for an undivided one-half (K) interest in the working interest . . . and an undivided one-half (I2) interest in the tangible equipment. . . .
“7. In the event that the assignee receives a bonafide offer which he is willing to accept for the purchase of said lease acreage. . . . the assignee immediately shall give written notice thereof to the assignor . . . The assignor . . . shall have the prior and preferred right and option to purchase . . . the lease acreage. . . .
“8. In the event that the assignee should elect to surrender, let expire, abandon or release . . . said lease acreage . . . the assignee . . . if required to do so . . . shall reassign such rights ... to the assignor.
“17. On December 8, 1956, the Kansas Supreme Court in the case of Cities Service Co. vs. The Kansas Corporation Commission, 180 K 454, upheld the 11$ price order set by the K. C. C. and held that said well head order did not contravene the provisions of the Federal Natural Gas Act.
“18. On January 20, 1958, said Kansas Supreme Court decision was reversed by the United State Supreme Court in a per curiam opinion, 355 US 391.
"19. By letter dated February 20, 1958, Defendant notified ‘all persons receiving gas settlements for Kansas Hugoton Production from or through Pan American Petroleum Co., formerly Stanolind Oil and Gas Company’ that subsequent to the decision of the U. S. Supreme Court, on January 20, 1958, voiding the K. C. C. 11$ price order, Cities Service Gas Company had discontinued payments to Defendant under said 11$ order and had tendered as full contract payment on the reduced basis of the contract price, and had made demand for a refund of all over-payments made since January 1, 1954; that Defendant had not accepted the tender nor paid such demand but in turn would remit such payments as it received from Cities Service Gas Co. and Defendant’s claim for refund against the interest owners will be held in abeyance pending final determination of Defendant’s denied liability to Cities Service Gas Company.
“20. On April 11, 1959, in the case of Cities Service Gas Co. vs. The Kansas Corporation Commission, 184 K 540, the Kansas Supreme Court said they understood the per curiam opinion of the United States Supreme Court to hold that the State of Kansas had no jurisdiction to regulate the price of natural gas as it came out of the gas well since that price would affect interstate commerce and the jurisdiction of the Federal Power Commission. This was true even though the FPC had not at that time exercised jurisdiction.
“21. Then Cities Service filed suit against Pan American in the Superior Court of the State of Delaware in and for New Castle County, Civil Action No. 722 for said over-payments made under the KCC 11$ price order. A decision therein upon a jurisdictional issue was appealed by Pan American to the Delaware Supreme Court and was affirmed by said Court, 158 A. 2d 478. Pan American filed a petition for and was granted certiorari by the United States Supreme Court, in the case of Pan American Petroleum Corporation vs. Superior Court of Delaware, 366 US 656, which resulted in a decision affirming the Delaware Court.
“22. The trial in the Delaware Superior Court resulted in a judgment in favor of Cities Service Gas Co. against Pan American dated November 19, 1962, for $9,420,627.40 with 6% simple interest per annum from January 20, 1958. Cities Service agreed to accept 50% of the 6% interest due on said judgment, pursuant to a letter agreement under which Defendant agreed not to further contest or appeal the judgment and allow it to become final, in return for which Cities would assign to Defendant all of its assignable rights and claims against the farmoutees as to alleged overpayments during the period covered by the judgment.
“23. Shortly after the suit was filed in Delaware, Pan American instituted a declaratory judgment action against Cities Service Gas Company for construction of the terms of the 1950 contract in the District Court of Seward County, Kansas, (Case No. 7219). Cities Service removed this case to the United States District Court, District of Kansas, which Court on December 31, 1958, entered an opinion, 182 F. Supp. 439, remanding the case to the Seward County District Court. A procedural issue in this case reached the Kansas Supreme Court (185 K. 315).
“24. Upon final determination of the Delaware cases this case was dismissed by Pan American Petroleum Corporation.
“25. Under date of February 15, 1963, Defendant mailed letters to its individual royalty owners describing its litigation with Cities Service Gas Co. and made a request for a refund and set out in each letter the amount addressee owed and requested that the refund be paid in cash or that each landowner sign the letter, authorizing that 25% of the royalty due each month be withheld until said amount was recovered without interest. Defendant sent such letters to about 2,630 persons. Eighteen of the named Plaintiffs and between 200 and 250 class members, have paid Defendant without written protest in cash for such alleged overpayment of royalties. One hundred nine of the named Plaintiffs and several hundred other class members have signed the form letter to withhold 25% of current royalty payments until said over-payments are recovered, and Defendant has been and is so withholding, with 316 accounts paid in full by withholding as of July 22, 1966. That at the time said named Plaintiffs and other class members signed said form letters to withhold current royalty payment, no written protests were made by them. Ninety of the named Plaintiffs acquired their interests in the oil and gas leases after December 22, 1957, and Defendant has not claimed that these Plaintiffs are required to pay back Defendant any overpayments of royalty. One of the named Plaintiffs received payments based only on the price of 8.4<¡í per Mcf for the period January 1, 1954, through December 22, 1957. Nine of the named Plaintiffs who acquired an interest after December 22, 1957, have not been billed by Defendant for such overpayments, such claims having been paid in full by said Plaintiffs’ predecessors in interest. Forty of the named Plaintiffs acquired their interests from estates several years ago which are presumed closed. Sixteen of the named Plaintiffs were paid said overpayment, but Defendant has not claimed that said Plaintiffs pay back these amounts because of administrative reasons. Four of the named Plaintiffs are lessors under leases on farmout acreage. As of the time the last evidence was intro duced, there were between 2,500 and 3,000 royalty owners under oil and gas leases from which gas is sold to Cities Service Gas Company under the contract dated June 23, 1950. Defendant had filed claims for said overpayments against nine estates which were pending in various Probate Courts in the State of Kansas. Three other similar claims previously filed had [been] allowed by the Probate Courts and paid to Defendant, and such estates were either closed or in the process of closing. Seven other similar claims previously filed had been compromised and settled in full satisfaction thereof, and such estates were either closed or in the process of closing. Two hundred fifty-nine of its owners who were billed by Defendant for said over-payments had been deceased for several years and their estates presumed closed.
“26. On June 27, 1963, Pan American Petroleum Corporation filed suit in the Federal Court, District of Kansas, against Leland C. Waechter for $24,630.58 plus interest at 6% from November 28, 1962, alleging this represented Defendant’s share, as royalty owner for overpayments made by Pan American, by virtue of the void K. C. C. 11$ price order.
"27. Defendant Waechter filed his answer denying ah liability and as affirmative defenses pled the statute of limitations, laches and acquiescence. Said action was dismissed without prejudice by Pan American on April 31, 1964.
“28. Commencing on December 9, 1963, Defendant withheld amounts over the price of 8.4$ at 16.4 psia from each monthly royalty check until the alleged overpayments were or are recovered, except as to the following:
“(1) Royalty owners who paid cash refunds in response to Pan American’s February 15, 1963 letter;
“(2) Royalty owners who signed written authorizations to withhold ii of monthly royalty payment to apply on refunds;
“(3) Royalty owners acquiring interests from estates now closed and thus barred by non-claim statute;
“(4) Royalty owners who acquired their interests after December 22, 1957, except in those instances where Defendant withheld because of alleged overpayment; and
“(5) Royalty owners whose overpayments amount to less than $25.00 from whom no refund was requested.
“29. In April, 1961, Pan American Petroleum Corporation filed a Declaratory Judgment Action against Cities Service Gas Company in District Court of Shawnee County, Kansas. On May 2, 1962, said Court held that a fair and reasonable price for gas sold under the contract involved herein for five years commencing June 23, 1961, based on and compared with the price for gas then being paid by other purchasers in the field under similar contracts and conditions is the sum of 14/1$ per Mcf at 14.65 psia. This judgment was affirmed by the Kansas Supreme Court, 191 K 511.
“30. On May 23, 1961, Defendant filed a Notice of Rate Change with the FPC requesting a rate of 12$ per Mcf at 16.4 psia to be effective on June 23, 1961, as the guaranteed minimum under the contract. Cities filed a protest with the Commission alleging that Pan American’s farmoutees holding interests in oil and gas leases subject to that contract should be included in Pan American's filing and that such persons should not be allowed to make their own separate rate filings. In view of that protest the Commission issued an order dated June 22, 1961, which provided for a hearing and suspended the rate increase for one day until June 23, 1961, in Docket R161-532. Upon application for rehearing filed by Pan American, the Commission issued an order on August 4, 1961, terminating the suspension proceeding which would allow Pan American to collect the 120 rate as of June 24, 1961. However, Cities filed an application for rehearing on that order alleging that without suspension Cities would be unprotected because of its inability to compute payments to Pan American and the farmoutees. The Commission thereupon reopened the proceeedings in Docket R161-532 on September 29, 1961, setting a hearing solely to determine the issue of coverage of these interests, leaving the 120 rate effective with no inquiry as to its reasonableness. The hearing before an examiner in Washington, D. C. commenced on November 15, 1961, and concluded February 7, 1962.
“On January 23, 1963, the examiner issued a decision stating that Pan American’s rate filing should have included the interests of the farmoutees. This decision was reversed by the Commission’s Opinion No. 391 on June 20, 1963. Cities filed an application for rehearing on this order which was denied by the Commission, and that order which established the validity of the 120 rate filings of Pan American and the farmoutees became final on or about October 15,1963.
“Although the aforementioned Commission’s order of September 29, 1961, which set the above-mentioned hearing, removed any obligation on Pan American’s part to refund to Cities any part of the new 120 price, Cities insisted that it could not and would not pay Pan American that price without Pan American’s assuming an obligation to refund such price, since Cities alleged that if the 120 filings of Pan American and the farmoutees were held to be invalid, Cities would have no right to recover monies paid at that price. Due to the question of whether Pan American’s 120 filing might have covered just its own acreage, Cities also alleged that it could not pay the 120 price to Pan American or the farmoutees until the matter was resolved. On August 23, 1961, Pan American served a written demand upon Cities for the payment at the 120 price, but Cities continued to pay at the 8.40 price. Thereafter Pan American renewed its demand upon receipt of each monthly payment from Cities which was accepted only as a partial payment on account and without prejudice to the rights of Pan American and the other interest owners to collect the correct price.
“On March 25, 1963, Cities paid Pan American amounts attributable to the 120 price retroactive to June 24, 1961, with three percent interest subject to Pan American’s agreeing to refund any amounts thereof which might be required in Docket No. R161-532. After the validity of the 120 rate filings was established on October 15, 1963, in the proceedings in Docket No. R161-532, on December 9, 1963, Pan American paid the 120 price and the interest retroactive to June 24, 1961, to approximately 1,800’ royalty owners, including the royalty owners who had paid Pan American in cash for its claims for the overpayments of the 110 price and to the royalty owners who signed agreements providing for Pan American to withhold a portion of current royalty payments in satisfaction of such claims. Other royalty owners have been paid the 120 price as their overpayments are recovered in full. The farmoutees in most instances also filed for the 120 rate; however, they commenced collecting that rate at dates different than the date of Defendant.
“Various others, but not all, of the 136 so-called ‘farmoutees’ filed for the same FPC rate increase and were allowed to collect it as of various dates.
“31. On June 12, 1962, Defendant filed with the FPC a Notice of Rate Change from 120 at 16.4 psia to 14/20 per Mcf at 14.65 psia and attached a copy of the Journal Entry in the Shawnee County, Kansas, case reported in 191 K 511. Cities Service filed its protest to this increased rate because of the dispute in Docket No. R161-532.
“32. On July 12, 1962, the FPC suspended this increased rate until December 13, 1962, (five months) reciting that the proposed increase exceeded the applicable price ceiling.
“33. On December 10, 1962, Defendant filed with the FPC a motion to make effective the suspended rate of 14.50 and tendered a refund undertaking bearing 7% interest rate on any refund order.
“34. This was approved by the Commission, the bond was posted and by an order dated January 25, 1963, the increased rate of 14.50 per Mcf at 14.65 psia became effective as of December 13, 1962, subject to further orders of the FPC as to reasonableness. The farmoutees in some instances also filed for the 14/20 rate and were collecting it under their bonds. However, their rates were effective on dates different than December 13, 1962. Some of the farmoutees had not filed to collect the 14.50 rate.
“35. Cities Service made such payments to Defendant for the gas delivered from December 13, 1962, to April 13, 1966, with payments commencing on November 5, 1963, after the Commission’s Opinion No. 391 establishing the validity of the filings of Defendant and the farmoutees became final.
“36. Beginning December 9, 1963, and continuing until April 13, 1966, Defendant computed the landowners’ royalties on the basis of 120 per Mcf at 16.4 psia and contended that until the FPC determined 14.50 per Mcf at 14.65 psia to be a fair and reasonable rate it could have been ordered to make refunds with interest at 7% per annum on its bond to Cities Service Gas Company.
“37. Defendant offered to pay royalty on a basis of 14.50 per Mcf at 14.65 psia to any of its inquiring royalty owners that would post a satisfactory corporate surety refunding bond carrying the same conditions of repayment as its bond to Cities Service Gas Company carried.
“38. Under date of April 13, 1966, the FPC issued an order approving a proposal settlement (and an amendment to the Gas Purchase Contract dated June 23, 1950) filed January 24, 1966, by Pan American Petroleum Corporation, which amendment provided that effective as of December 13, 1962, and continuing until June 23, 1971, Cities Service Gas Co. was obligated under the contract to pay for the gas received 12.50 per Mcf at 14.65 psia. This settlement resulted from a series of negotiations by Defendant aimed at arriving at agreed FPC rates for gas sold to various purchasers under 258 contracts (including the Cities Service contract of June 23, 1950), which it had on file with the FPC as a part of its various rate schedules.
“39. As a result of such FPC approval, Pan American has paid to any or all of its royalty owners under said contract (provided such payment will not prejudice its rights under this action) for gas it had produced during the time between December 13, 1962, and April 31, 1966, the difference between the price of 12$ per Mcf at 16.4 psia and 12.5$ per Mcf at 14.65 psia, and since April 13, 1966, have continued to pay royalties at the rate of 12.5$ per Mcf at 14.65 psia.
“The following interesting history of royalty payments over the entire period in question can be gleaned from the record and reveals the background leading to this litigation.
“With minor exceptions, Defendant paid royalties on an identical basis to all lessors by reason of production from January 1, 1954, until sometime in 1963, after it had sent its form letter of February 15, 1963. For gas produced during the period from January 1, 1954, through December 22, 1957, it accounted to the lessors for a proportional part of 11$ per Mcf at 14.65 psia. In the case of the exceptions, it paid on the basis of 8.4$ at 16.4 psia. For gas produced during the period from December 23, 1957, through October 22, 1963, it accounted to the lessors on the basis of 8.4$ per Mcf at 16.4 psia.
“Under date of February 15, 1963, it mailed to a substantial number of its lessors its refund letter of that date, without distinction as to farmout acreage. The dollar amounts claimed in the various letters differed. The letter was mailed only to those from whom the company claimed refunds for alleged overpayments of royalty by reason of gas production between January 1, 1954, and December 22, 1957. The letter was not mailed to landowners from whom it claimed refunds of less than $25.00.
“What happened then depended on what the landowner did. If the landowner paid the amount demanded of him in cash, he was thereafter paid royalties on the basis of whatever current figure Defendant used in making royalty computations. Those persons from whom no refunds were demanded were paid on the same basis. On October 23, 1963, royalty began to be paid on a current basis to those lessors who had paid the demand in cash and to those from whom no refunds were requested based upon a price of 12$ per Mcf at 16.4 psia with retroactive payment made December 9, 1963, up to 12$ for the period June 24, 1961 through October 22, 1963, with interest at 3% from June 24, 1961, to March 24, 1963, and without interest thereafter.
“Those landowners who signed the February 15, 1963 form were paid three-fourths of the royalty to which they would have been entitled if the royalties had been computed on the basis of 12$ per Mcf at 16.4 psia. The remaining one-fourth was withheld by Defendant and credited against the amount claimed to be due to it on the refunds. Where the form was neither signed nor a cash payment made, the lessors were paid royalty based on 8.4$ per Mcf at 16.4 psia. Without notifying the landowner that it was doing so, (unless specific inquiry was made of Defendant), Defendant withheld the difference between that price and 12$ per Mcf at 16.4 psia and credited the withheld sums against the claimed refund. When Defendant had recovered the full amount it claimed to be due from lessors, royalty payments were thereafter made on the basis of a fractional share of 12$ per Mcf at 16.4 psia.
“This basis was used until about April, 1966. Beginning at that time, Pan American began paying royalties to those landowners from whom it no longer claimed refunds computed on the basis of 12.5$ per Mcf at 14.65 psia (except as to some farmed-out leases). Pan American treated the named Plaintiffs differently than it did landowners who were not named Plaintiffs. As to the landowners who were named Plaintiffs and from whom Pan American claimed no additional refunds, it paid royalties based on 12.50 per Mcf at 14.65 psia retroactive to December 13, 1962, without interest for the four-year period. As to those named Plaintiffs from whom Defendant still claimed refunds, it withheld from these retroactive payments the remaining balance (without crediting interest), which it claimed to be due on refunds and paid to the landowners the difference. As to some named Plaintiffs, the retroactive payment still did not equal the amount which Defendant claimed was owed to it, and in these cases, Defendant withheld the entire amount of the retroactive payment (without crediting interest), but continued .to pay royalties after April, 1966, computed on the basis of 8.40 per Mcf at 16.4 psia. As to those named Plaintiffs who had signed the refund agreements, Defendant paid three-fourths of the amount of royalty computed, crediting the remaining one-fourth (without an interest credit) against the claimed refund until it had recovered the total amount claimed that such people owed them. After recovering the entire amount claimed (which did include interest), Defendant paid the full difference to the landowner. In some cases, even after withholding one-fourth of the retroactive payment, Defendant still claimed that a balance was due from the landowner to Defendant. After April, 1966, in such cases, it paid royalties on the basis of three-fourths of 12.50 per Mcf at 14.65 psia and credited the remaining one-fourth to the claimed refund until such time as it had succeeded in recovering the entire amount which it claimed to be due. Lessors who were not named Plaintiffs were paid these retroactive payments on May 26, 1967.
“Current royalties were at the end of the hearing, being paid to those landowners from whom Defendant did not claim further refunds, on the basis of 12.50 per Mcf at 14.65 psia. As to those computed from which Defendant still claimed a refund, Defendant was computing royalties on the basis of 8.40 per Mcf at 16.4 psia, or at three-fourths of 12.50 per Mcf at 14.65 psia (except as to some farmed out leases), depending on whether or not the letter of February 15, 1963, was signed.
“Defendant has taken the position that even though all of this gas is sold under terms of the June 23, 1956 contract, each of the farmoutees or its representatives must file its own rate schedule with the Federal Power Commission. It has been successful in this contention before the Federal Power Commission with the result that Cities Service was paying to Defendant for portions of the gas purchased under this contract at four different prices. Some of the so-called ‘farmoutees’ never filed for increased rates and were still receiving 8.4 cents per Mcf at 16.4 psia for gas produced from wells which they operate. As mentioned in these findings elsewhere, others filed only for the 120 price and Defendant was still receiving the 120 per Mcf at 16.4 psia. Others settled their own rate proceedings and Defendant was receiving the same rate which Defendant was receiving for its own gas. Defendant was still receiving, as to others, 14.50 per Mcf at 14.65 psia under bond.
“Where the farmoutees’ rates were 8.40 per Mcf at 16.4 psia, Defendant was paying royalties to the landowners on that basis. As to these landowners, Defendant still claimed the right to recoup the full amount of the refund claims on February 15, 1963, although no amounts had as yet been withheld from current royalties. Where the farmoutees’ rates were 120, royalties were being paid to the landowners exactly as they were paid on gas from wells operated by Defendant itself prior to the approval of its 12.5$ settlement price by the FPC. Where the farmoutees’ rates were 12.5$, royalties were being paid to landowners on exactly the same basis as on gas from acreage not farmed out. Where farmoutees’ rates were 14.5$ per Mcf at 14.65 psia under bond, Defendant was paying royalties to the landowners on the basis of 12$ with all of the various credits and deductions described above, and holding the balance until such time as a final FPC rate was established for this gas.
“40. Defendant’s ‘Exhibit D’ attached to the Colonkey affidavit of November 23, 1964, contains 48 different forms of gas or oil and gas leases which have been dedicated to the fulfillment of the gas purchase contract with Cities Service Gas Company (dated June 23, 1950). These exhibits contain variations in the gas royalty clauses, some of which are herein mentioned for the purpose of showing the extremes of such variations:
“(a) One-eighth of the proceeds when the gas is marketed off the leased premises or if not marketed off the leased premises then Jé of the market value at the well.
“(b) One-eighth of the proceeds from the sale of the gas — annual $100.00 shut-in clause — minimum price of 6$ per Mcf — if gas sold for less than lessee to pay lessor the difference.
“(c) One-fourth of the proceeds of gas sold at the prevailing market rate but not less than 6$ per Mcf — $200.00 a month shut-in clause.
“(d) One-fourth of the proceeds if sold at the well — if marketed off leased premises then & of the market value at the well.
“(e) On gas sold off the leased premises or used by lessee — Yb of the market value at the well — $80.00 a year shut-in clause.
“(/) For gas sold and used off leased premises the market value at the well Yb of the gas so sold or used — if sold at the well Ys of the amount realized from the sale.
“(g) One-eighth of the proceeds if sold at the well — if used off the premises Is of the market value at the well but for no less than 4$ per Mcf — if natural gasoline or liquid products extracted the market value of Yb of 60% of the volume extracted.
“(h) One-eighth of the gross proceeds at the prevailing market rate for gas used off the premises.
“(i) One-eighth of the proceeds from the sale of gas.
“(j) One-eighth of the net proceeds when gas used off the premises.
“(k) One-eighth of the net proceeds when gas used off the premises— payable quarterly.
“(I) 16/á% of amount or value of gas and liquid products. (U. S. A.)
“41. Defendant made all payments of royalty and all claims and demands for refunds without any assumed, claimed or explained distinction between acreage not farmed out and that farmed out, and without reference to any variations in the terms of the various gas royalty provisions contained in the leases. None of the lessors were parties to, participated in, or were invited to participate in, the suits between Defendant and Cities Service Gas Company, the FPC proceedings above-mentioned, the settlement negotiations between Defendant and Cities Service Gas Company relating to or participants in, any agreement to refund any amount to Cities at any time.
“42. The June 23, 1950 gas purchase contract between Stanolind Oil and Gas Company (now Defendant Amoco Production Company) and Cities Service Gas Company superceded, previous gas purchase contract between the parties dated June 13, 1946. Under both contracts, Defendant had the right to process certain gas covered thereby for the recovery of natural gasoline (liquid or liquifiable hydrocarbons) before final delivery to Cities of the gas so processed.
“Under both contracts, the natural gas purchased and so processed was taken from the various wells to* Defendant’s processing plant located off the leased premises through a gathering system leading from the wells to Defendant’s plant, and after the gas was so processed by Defendant, the residue thereof was delivered into Cities’ mainline transmission system. Under both contracts, all of the gas so processed was and is used by lessee off the leased premises for the purpose of carrying on such processing in Defendant’s plant for that purchase. Under the 1950 contract, every cubic foot of gas from the wells connected to Defendant’s processing plant is sold, in part, by lessee off the leased premises. Defendant only has this right for gas from the A and B areas described in the contract dated June 23, 1950. Gas from C area is not processed by Defendant. The part so sold off the leased premises is the liquified hydrocarbon content thereof later recovered in the plant. Under both contracts, it is sold, after being removed from the processed wellhead streams, with the FPC having no jurisdiction over the sales price thereof.
“Royalties are paid by Defendant to the lessors by reason of the enhanced wellhead value of the produced streams, including those from farmed-out acreage, resulting from such processing operation. While no issue in this case relates to such additional incremental payments made to lessors because of such enhanced additional wellhead value by reason of the processing by the lessee of the gas off the leased premises, this does not change the fact that all of such processed wellhead production from A and B areas is used by the lessee off the leased premises and does not change the fact that each cubic foot of gas produced from the lands in these areas and so processed is sold, in part, by the lessee off the leased premises.
“In connection with the transition from the old contract to the new one, Defendant sold its gathering system connected to the various wells to Cities, by reason of which the gas mentioned now flows from the wells to Defendant’s plant in gathering lines acquired by Cities for that purpose. After Defendant uses the gas in its plant for the processing operation, it is put into Cities’ transmission lines, as under the old contract.
“Cities agreed to pay Defendant an indeterminate price for the gathering system, in monthly payments measured at the rate of six-tenths cent per Mcf for all gas purchased under the new contract until June 23, 1961, the payment, whatever it would amount to, to be considered as full and complete payment for the same.
“A portion of the gas sold under the June 23, 1950 gas purchase contract, consisting of that produced from the C area, is not so processed, and all of such gas is delivered into Cities’ gathering system and sold to Cities at the wellhead under such contract, with no additional royalty payments being made to landowners by reason of liquifiable hydrocarbon content.
“Whether the gas from the leases involved herein was produced from farmed-out acreage or otherwise, and whether it was used off the leased premises for processing and sold, in part, in liquid form or sold in its entirety at the wellhead, and regardless of the differing royalty provisions of the leases involved, the amounts due by reason of monthly production in dispute in this case (whether paid or withheld) were computed by Defendant on the same per Mcf basis until Defendant began making differing computations for payments on farmed-out acreage based on differing FPC rate treatment of farmoutees.
[To understand better the sequence of events narrated in these findings we should at this point interpolate the following: On April 22, 1967, the trial court in this case mailed to the litigants copies of its tentative findings and conclusions, which would have resulted in judgment against defendant, and it set the date of May 23, 1967, for hearing objections to and arguments on the proposed findings and conclusions.]
“43. On May 11, 1967, Pan American Petroleum Corporation (sometimes hereinafter referred to as Pan American) filed a complaint with the F. P. C. against Plaintiffs herein which was docketed as Pan American Petroleum Corporation v. Leland C. Waechter, et al., F. P. C. Docket No. R167-400. On June 23, 1967, this proceeding was consolidated with three other consolidated proceedings, namely William Harvey Denman, Trustee, et al., v. J. M. Huber Corporation, F. P. C. Docket No. R167-113, Mobil Oil Corporation v. Carl F. Matzen, et al., F. P. C. Docket No. R167-114, and Western Natural Gas Company v. Elmer Hennigh, et al., F. P. C. Docket No. R167-310.
“44. Prior to the time when Pan American filed its own complaint mentioned above, it had intervened in the last three proceedings mentioned above. Also participating as intervenors in these consolidated proceedings were Sinclair Oil and Gas Company (now Atlantic-Richfield Company), Shell Oil Company, Cities Service Oil Company, Columbian Fuel Corporation, Gulf Oil Corporation, Northern Natural Gas Company, Texaco, Inc., Cities Service Gas Company, Panhandle Eastern Pipeline Company, Colorado Interstate Gas Company, and many other oil and gas companies, pipeline companies and distributing, consuming and political groups.
“45. On May 17, 1967, one week prior to the last hearing in this matter, Pan American filed an injunction suit in the U. S. District Court for the District of Kansas against Leland C. Waechter and other named Defendants herein, together with ... all parties similarly situated . . .” (emphasis supplied), captioned Pan American Petroleum Corporation v. Leland C. Waechter, et al., No. W-3842.
“46. In its complaint, Pan American was explicit in characterizing the named Plaintiffs herein as ‘ . . . representatives of a class of lessors and landowners to whom royalty is required to be paid under the terms and provisions of oil and gas leases,’ gas from which is delivered under the above-mentioned June 23, 1950, Gas Purchase Contract.
“47. On May 25, 1967, Pan American secured federal court order enjoining Plaintiffs from proceeding further herein pending further proceedings before the F. P. C.
“48. Four similar complaints were filed against landowner-lessors by Mobil Oil Corporation, Western Natural Gas Company, Sinclair Oil and Gas Company, and Mapco Production Company.
“49. Extensive hearings were held before the F. P. C. examiner, all involving the parties herein, including pre-hearing conferences on May 9 and 10, 1967, .and on July 25, 1967; evidentiary hearings were held before the examiner on January 22-25, 1968. Extensive evidence was presented and many briefs filed by the parties.
“50. On July 23, 1968, the presiding examiner issued his Initial Decision on Jurisdiction over Royalty Owners, which held that royalty owners were natural gas companies within the meaning of the Natural Gas Act and accordingly an increase in royalty rate paid would need to receive F. P. C. approval.
“51. Extensive briefs and responsive briefs on exceptions to the above report were presented to the F. P. C. by interested parties. Oral argument was presented on November 25, 1968.
“52. On July 23, 1969, the Commission, by a three to two majority, held that the royalty provisions of oil and gas leases constituted sales for resale of natural gas in interstate commerce subject to regulation by the F. P. C. under the Natural Gas Act. They further provided the manner of such regulation and regarding the amounts of payments retroactively to 1954.
“53. Judicial review proceedings were instituted by various' parties from this F. P. C. opinion in various courts. Both Plaintiffs and Defendant herein filed judicial review proceedings. Eventually, all review proceedings were transferred to and consolidated in the United States Circuit Court of Appeals for the District of Columbia.
“54. On December 17, 1971, the Circuit Court of Appeals, in a unanimous decision, reversed the F. P. C. on the grounds that neither the statutory language nor congressional intent justified an attempt to extend the jurisdiction of the Commission to cover royalty interests. This decision is reported in Mobil Oil Corporation v. Federal Power Commission, 463 F. 2d 256 (1972).
“55. Various petitions for Writ of Certiorari were filed in the United States Supreme Court. Certiorari was denied oni June 7, 1972, . . . U. S. . . ., 32 L. Ed. 2d 676. Defendant (now Amoco Production Company) together with others, filed petitions for rehearing which were finally denied October 10, 1972, . . . U. S.....34 L. Ed. 2d 116.
“56. On December 4, 1972, the U. S. District Court for the District of Kansas, pursuant to Plaintiffs’ motion set aside its restraining order.
“CONCLUSIONS OF LAW
“Class Action
[The trial court here recited that procedural requirements for maintenance of a class action had been satisfied.]
“Attorney Fees
[The trial court retained jurisdiction of the cause to make allowances for attorney fees.]
“Motions by Defendant to Dismiss
[Here the trial court denied defendant’s motion to dismiss which was based on four grounds: Plaintiffs’ petition did not state a claim; that primary jurisdiction of the gas sold was vested in the FPC; plaintiff’s petition did not state a controversy justiciable as a declaratory judgment action; and the failure of plaintiffs to join indispensable parties defendant, namely, defendant’s farmoutees. Because of the trial court’s later reference to defendant’s duties as lessee we quote a part of the court’s conclusions stated in connection with its denial of defendant’s motion to dismiss on the ground primary jurisdiction of gas sold was vested in the FPC, as follows:]
“13. Lessors have absolutely no say as to when, where, or how deep the wells .are drilled, nor the size of the hole or pipeline, when or how much gas is produced, to whom it is sold, the price for which it is sold, where it is transported, how it is used, whether burned, stored, processed or recycled. Since lessees have the exclusive control of these matters surely this creates a relationship to lessors which requires the utmost good faith by lessees in all their dealings as to such gas because of lessees’ opportunities, as a result of such exclusive controls, to take an unfair advantage of the lessors.
“The recorded opinions of the Courts in the United States have stayed away from the use of the term ‘fiduciary’ when describing the lessee relationship to the lessor as applied to gas leasehold estates. However, when the above listed rights contained in all the lease exhibits are construed, in connection with the many U. S. .and Kansas statutes, Commission orders and Court decisions, the term ‘fiduciary’ is not an exaggeration but is an accurate as well as an appropriate description of the trust and confidence contemplated by good faith as well as a legal obligation.
"The decisions which construe the lessee relationship to the lessor as a ‘debtor-creditor’ relationship, have apparently, without exception, placed a strict but limited construction to the one paragraph pertaining to royalty payments of the gas lease rather than construing the gas leasehold estates as a whole, or to leases containing special clauses, inserted at the request of the lessors, pertaining to special royalty provisions.
“Issue One
“23. Did the Defendant have on or subsequent to February 15, 1963, a legally enforcible claim against the landowners for a refund of royalties paid by Defendant by reason of the production of gas prior to December 22, 1957?
“24. Defendant in its answer as supplemented after the May 23 and 24, 1967 hearing, describes the following groups of named Plaintiffs who are in slightly different factual circumstances than the remainder of the named Plaintiffs on this issue. They consist of Plaintiffs who:
“(a) Were never paid any royalty by Defendant;
“(b) Paid cash refunds requested by Defendant;
"(c) Signed the authorization to withhold % of monthly royalty payments to apply on refunds as requested by Defendant;
“(d) Acquired their interest from estates now closed, with claims barred by non-claim statute;
“(e) Acquired their interest after December 22, 1957;
“(f) Did not receive any alleged overpayments;
“(g) Allegedly owed amounts less than $25.00, with no refund requested of them.
“Therefore, so far as groups (a), (d), (e), (f) and (g) are concerned, this issue is moot as no claimed refunds were collected from such persons. However, insofar as those shown in groups (b) and (c) are concerned, the issue is not moot. As to named Plaintiffs and class members falling in such groups, refunds were either made, or the letter dated February 15, 1963, or similar letters of later dates, were signed by such people and Defendant asserts that such action constitutes an accord and satisfaction.
“As of the date such demands were first made, on February 15, 1963, and before that time, Defendant had no legally enforceable claim to any such demands. This is particularly true since, in view of its duty to its lessors, it had an obligation to advise all persons upon whom it made demands, fully and fairly, as to the legal basis of such demands and as to possible legal defenses thereto.
“Having never had any legally enforceable right to such refunds and having failed to fully and fairly present the possible defenses to the Plaintiff-class, Defendant cannot rely upon the payments or upon the signatures as constituting an accord and satisfaction. As a legal matter there is no consideration for such an alleged accord and satisfaction.
“It hardly seems fair for Defendant to discriminate against its lessors who followed Defendant’s advice and suggestions to its lessors’ financial detriment by invoking against such lessors technical provisions of 20 year old gas leases pertaining to* royalty payments. This is especially true when such technical provisions have been disregarded by the Defendant for all other purposes and thus invokes the doctrine of estoppel.
“25. None of the named Plaintiffs (except those listed in groups (b) and (c) Defendant’s ‘Exhibit A’ as amended) insofar as disclosed by the evidence, expressly consented or agreed to Defendant’s letter dated February 19, 1954 (Finding No. 10) nor Defendant’s letter dated February 20, 1958 (Finding No. 19) nor to letter dated February 15, 1963 (Finding No. 25). To the contrary, some of the Plaintiffs informed the Defendant of their disapproval by letters, special endorsements on the royalty checks, and both oral and written notices through the Southwest Kansas Royalty Owners Association. The Plaintiff Waechter even resisted suit for such refunds.
“26. Because of the duty owed by the Defendant, to all its royalty owners, implied consent cannot properly be inferred by any inaction on the part of any of the named Plaintiffs nor by the deposit of royalty checks containing unlimited endorsements.
“27. Therefore, the same having been properly pled, the Statute of Limitations as to written contracts applies since more than five years elapsed between December 22, 1957, and Defendant’s withholding of royalties which started December 9, 1963.
“28. The 110 payment was a voluntary payment and Defendant never had a valid claim for such refunds. There was no consideration for cash repayments made or for agreements to refund made by lessors, and Defendant is es-topped to deny that the 110 payments were proper payments.
“29. It is therefore ordered that the Defendant account to the named Plaintiffs and class members from whom such purported refunds were received or retained for the account thereof together with interest on the amount of each of said payments or retentions from thei date any such sum was received or retained to the date repayment to Plaintiffs and class members is finally made, with interest to be computed at the legal rate from time to time.
“Issue Two
“30. Is the lessee-producer obligated to account to the landowners for royalties computed on the basis of not less than 14.5$ per Mcf at 14.65 psia for the gas produced, delivered and transported in interstate commerce and sold to Cities Service Gas Company during the period from June 23, 1961, through June 23, 1966?
“31. Defendants, in the proper exercise of its duties to its royalty owners, procured an adjudication as to the value of its gas for the five year period commencing June 23, 1961. Pan American Petroleum Company vs. Cities Service Gas Company, 191 K 511. This judgment has not been reversed nor modified. Even though the F. P. C. might have primary jurisdiction over leasehold royalty value (which this Court does not think it has) it certainly does not have appellate jurisdiction over the Kansas Supreme Court to make a binding adjudication changing the Kansas Supreme Court adjudicated value of gas for the 5 year period commencing June 23, 1961.
“32. After the 14K$ judgment became final the matter became a collection matter. This was not changed by the fact that Cities Service Gas Company resisted collection and F. P. C. approval was delayed.
“33. Pan American Petroleum Company had the right and authority to compromise this judgment as a collection settlement insofar as it affected its own interests, but without the consent of its royalty owners it breached its duty to its royalty owners. No doubt the Defendant calculated a settlement of the judgment on the basis made was financially more profitable to itself than would be a continued struggle with Cities Service Gas Company and an overburdened F. P. C. This is probably true though speculative. However, it is obvious that this settlement is not financially beneficial to the Defendant’s royalty owners. This is not contradictory to the case of Matzen v. Hugoton Production Company, 182 K. 456, but is in harmony therewith.
“34. Defendant alleges that this cannot be a class action because of the variations in the royalty clauses of the various leases. In contesting the Court’s jurisdiction, it alleges the F. P. C. has jurisdiction to set the royalty price for all the gas going into interstate commerce by virtue of the Cities Service contract. This creates a contradiction since the Defendant for jurisdictional purposes contends that the price is set or must be set by the F. P. C. This means that the price is based per Mcf upon the value of intermingled gas going into interstate commerce by virtue of the Cities Service contract and wholly disregards the alleged price variations of the individual leases. Neither does Defendant’s payment of royalties recognize the individual lease variations. For the Defendant to contend otherwise — since Defendant receives the same price for the gas regardless of its origin as between the individual lessors herein — is to profit at the expenses of its lessors.
“35. The intention of the parties to all of these leases was that royalties should be computed on the basis of the fair and reasonable market value of natural gas, whether such gas was sold at the wellhead or off the leased premises, and all of the lease provisions in controversy here provide in substance and legal effect that all royalties will be computed on such basis.
“36. Defendant has by its conduct through the years, and by its arguments here, recognized that all of the various lease provisions in question here are identical and place upon the Defendant the identical legal obligation as to the payment of royalties, and it cannot now contend that the various different lease provisions have a different legal effect.
“37. It is therefore ordered that the Defendant account to each of the named Plaintiffs and class members for gas taken on the basis of 14per Mcf at 14.65 psia for the period of time commencing June 23, 1961, through June 22, 1966, with interest at the legal rate prevailing from time to time on the difference between the amount owed (according to this judgment) and the amount paid.
“38. The parties are agreed that the controversy does not include the question of the value of liquified hydrocarbon content of the gas removed by Defendant in liquid form (on which royalties have been separately paid and about which there is no dispute herein) and that it does not include the question of Plaintiff’s entitlement to royalty by reason of the helium content of the gas (which is the subject of wholly separate litigation between the parties and others in a case pending in the Federal District Court of Kansas), the 14K$ figure does not include royalty paid by reason of such removal of liquids, nor royalty to be paid, if any, by reason of helium content.”
The trial court entered judgment for plaintiffs and against defendant as'set out in the foregoing conclusions and defendant now appeals.
Upon appeal appellant Amoco renews its objections made at trial level, both procedural and substantive; however, we go directly to consideration of each of the two claims upon its merits.
We treat first with that denominated by the trial court as Issue Two — whether appellant must account to the landowners for gas taken by it during the period June 23, 1961, to June 23, 1966, on the basis of 14.50 per mcf instead of on the basis of lower prices actually received by appellant from Cities, purchaser of the gas. The facts are undisputed. Under the 1950 sales contract Cities was to pay appellant 8.40 per mcf at 16.4 psi for gas until June 23, 1961. Then the price for each successive five year period was to be a fair and reasonable one based upon like sales in the field but in no event less than 120 per mcf. Negotiations between Cities and appellant prior to June 23, 1961, failed to result in an agreed price, whereupon appellant filed the declaratory judgment action in Shawnee county seeking determination of a price based on other contracts. In this action appellant contended the price should be 190 per mof at 14.65 psi while Cities said it should be 120 per mcf at 16.4 psi (this latter figure would translate to 10.71950 at 14.65 psi, there having been a pressure base reduction in the field during the interval). Appellant also- filed with the FPC a rate schedule of 120, the guaranteed minimum under the 1950 contract, reserving the right to file for any increase the Shawnee county court might allow. Cities pro tested this filing in several ways; however, the FPC permitted the 120 rate to remain effective but made no inquiry as to its reasonableness.
On May 2, 1962, the Shawnee county district court held that the reasonable price under the 1950 contract for the five year period commencing June 23, 1961, was 14.50 per mcf at 14.65 psi, which decision was affirmed in Pan American Petroleum Corporation v. Cities Service Gas Co., 191 Kan. 511, 382 P. 2d 645. On June 12, 1962, appellant filed with the FPC notice of rate change from 120 at 16.4 psi to 14.50 per mcf at 14.65 psi. Cities again protested, citing the ongoing hearings on the 120 rate. After more hearings arid litigation, Cities and appellant entered into an agreement settling their disputes over a group of 258 gas purchase contracts, whereby effective December 13, 1962, and continuing until June 23, 1971, Cities was obligated to pay under the oontract in question 12.50 per mcf at 14.65 psi. The FPC approved this settlement. The net result of all the foregoing was that during the period in question appellant received from Cities payment for gas at the rate of both 120 and 12.50 and it has paid royalty to appellees on that basis; for a time appellant did receive payment at the higher rate of 14.50 but it had to make refund of payments so made. Appellant has, paid its royalty owners their one-eighth part of the amount actually received by it from Cities.
Under the leases appellees’ royalty was “one-eighth (Is) of the proceeds if sold at the well, or, if marketed by lessee off the leased premises, then one-eighth (Is) of the market value thereof at the well”. In its finding of fact No. 42 the trial court pointed out that under the gas purchase contract with Cities appellant had the right to process gas taken from wells located in areas designated A and R for the recovery of natural gasoline, for which a royalty was separately paid; that appellant did so by taking gas to its processing plant which was “off the leased premises” and from this it concluded as a fact that the sale to Cities occurred “off the leased premises”, which would make “market value” the measure for royalty. The trial court acknowledged that gas taken from area C was not so processed but made no differentiation as to it in this regard. This court has twice heretofore had occasion to discuss the point of delivery and sale of gas sold by appellant to Cities under the identical purchase contract involved here. In Stanolind Oil & Gas Co. v. Cities Service Gas Co., 178 Kan. 202, 284 P. 2d 608, the court construed the contractual arrangement between the parties and said:
“Under the Gas Purchase Contract the point of delivery was at the wellheads. . . . [p. 204]
". . . This [Gas Purchase Contract] reserved to Stanolind the right to process and extract gasoline and other liquefiable hydrocarbons from the raw gas thus sold by Stanolind to Cities, in accordance with the provisions of the Gas Processing Agreement. This last-mentioned instrument provided that, subject to the reservation to Stanolind with respect to the liquid and liquefiable hydrocarbons, Cities at all times was the owner of all the gas delivered by Cities to Stanolind at the latter’s processing plant. . . . [p. 205]
“. . . Taking the contracts and construing them as a whole, it seems clear that the ‘exceptions and reservations’ in question mean that Stanolind reserved the right to process the gas that it sold to Cities. From the over-all picture and taking all of the provisions of the instruments into consideration, it is dear that the entire arrangement was one whereby Stanolind sold its gathering system to Cities, Cities purchased all gas delivered to it by Stanolind at the well-heads, and then in turn transported the raw gas to Stanolind’s processing plant, at which point Stanolind, under rights reserved to it in the contracts, processed and extracted gasoline and other liquefiable hydrocarbons from such quantity of gas as it desired, and for which is obligated itself to pay Cities, and then released to Cities such gas as remained, and which such residue gas was satisfactory for Cities’ purposes [p. 206]”.
Upon a second appearance here of the same case (181 Kan. 526, 313 P. 2d 279) this court reexamined the foregoing findings, on which judgment had been rendered upon appeal, and adhered to both the findings and the judgment. Consequently, in the case at bar it must be held the trial court erred in its finding that the gas was sold “off the leased premises”. Instead it was sold at the well, title there passed to Cities with appellant having only a right to process some of the gas covered by the contract.
In ruling against appellant the trial court also made reference to appellant’s duties to its royalty owners, both in connection with its declaratory judgment action against Cities in Shawnee county and in later settling with Cities on a lower basis after FPC. approval oould riot be had on the 14.50 rate. Apparently the trial court had in mind the duty of a fiduciary mentioned in its conclusion 13, already quoted. We know of no precedent to the effect stated therein nor of any reason why an oil and gas lessee should be declared a fiduciary. It seems well established that a lessee under an oil and gas lease is not a fiduciary to his lessor; his duty is to act honestly and fairly under a contractual relationship (Bunger v. Rogers, 188 Okla. 620, 112 P. 2d 361). Here there was no charge of bad faith or collusion made against appellant; in fact appellees expressly concede in their brief they have never contended ap pellant exercised bad faith or was guilty of fraud or dishonesty in connection with their company-wide settlement with Cities which was later approved by the FPC. There is no indication appellees’ rights were in any way sacrificed in that settlement. The record reveals sustained efforts by appellant to secure a price greater than the minimum of 120 fixed in the purchase contract for the period in question and there is nothing to suggest it did not use the utmost diligence to obtain the best price possible.
The issue really boils down to the parties’ intent in entering into the leases in question. In the royalty clauses they used the term “proceeds” and the term “market value”. Appellees contend that when the royalty clause is considered as a whole it is clear the parties intended those terms to be synonymous — that they meant the same thing in terms of money. They say in the case of arms-length unregulated wellhead sale the market value of the gas would naturally equal the proceeds from a wellhead sale. They further say that the 14.5(¿ price fixed in the Shawnee county case is “the best evidence of the market value or price for the gas for the period in question and would result in the proceeds’ contemplated by the parties, where mentioned in the lease”. There are difficulties in appellees’ position.
The sales of gas were not unregulated. Sales of natural gas in interstate commerce became subject to' federal regulation by virtue of the National Gas Act of 1938; however, the FPC did not assume jurisdiction over the pricing of natural gas at the wellhead in the Hugoton field until in 1954 (see Cities Service Gas Co. v. State Corporation Commission, 184 Kan. 540, 337 P. 2d 640). Prior to that time there had been a measure of state regulation. Most of the leases contained a clause that both the lessor and lessee contemplated and agreed that the lease in all respects should be subject to valid orders of any duly constituted authority having jurisdiction of the subject matter of the lease. Even without such language in a lease private contracts are subject to the laws of the land (Home Bldg, & L. Assn. v. Blaisdell, 290 U. S. 398, 78 L. Ed. 413, 54 S. Ct. 231). Appellees never were able to* maintain the 14.5^ price obtained by them in the Shawnee county case. In our opinion of affirmance of that court’s order we pointed out that what the lessee was attempting to do was to have fixed a fair and reasonable price for gas under the contract which could be submitted to the FPC for its approval or rejection. It was further stated the lessee could not have a finding or conclusion made in the case which would form the basis, of a money judgment; the most the lessee could accomplish was determination of the contract price, which would then be submitted to the FPC for its approval or rejection; the price would have to be so approved before there could be any basis for a money judgment (Pan American Petroleum Corporation v. Cities Service Gas Co., supra).
Nor can we say the parties used the term “proceeds” and “market value” as equivalents in the royalty clauses. They were not used interchangeably. The term “proceeds” was used only in context with the phrase “if sold at the well”, while the term “market value” was used in the alternative phrase “or, if marketed by lessee off the leased premises”. Proceeds ordinarily refer to the money obtained by an actual sale. This connotation is not without significance in the gas business. Where the sale is at the wellhead the lessor does not consent to the uncertainties, of what the market or fair value or price of the gas may be — he is willing to take what the lessee sells it for, relying on the lessee’s self-interest in obtaining the best price possible. Under the usual lease for every dollar the lessor receives the lessee receives seven. Where sale is off the leased premises market value at the well comes into play in determining royalty but other factors also may play a part in determining the parties’ intention, such as items of expense away from the wellhead, other sales and the like, in determining just what that market value is. In such situation there is no real sale at the wellhead from which proceeds are derived. Contrariwise, where gas is sold at the wellhead there are “proceeds” of that sale — the amount received by the seller from the purchaser.
Appellees make the further argument that if the intent of the parties is not clear that proceeds and market value or price mean the same thing, then under the rules of construction of ambiguous contracts the same result should be reached — appellant and its predecessors having prepared the lease it is to be construed most strongly against appellant and in favor of the lessor. The difficulty is, the intent of the parties seems clear from the language used in the contract and there is no room for construction as urged. Nor do we see anything extrinsic in the case negativing the parties’ clearly expressed intent. They agreed the royalty should be one-eighth of the proceeds if sold at the well. We cannot make a new contract. Appellees have been paid their share of those proceeds and the trial court erred in holding appellant liable for more.
We turn now to the other claim, appellant’s entitlement to be re paid for overpayments of royalty made to- its lessors during the period January 1, 1954, through December 22, 1957, pursuant to KCC’s 110 minimum price order, and its obligation to account to those lessors who have already made refunds to it.
On December 2, 1953, the KCC promulgated an order effective January 1, 1954, fixing a minimum price of not less than 110 per mcf at 14.65 psi to be paid for gas taken from the Kansas Hugoton field. Cities, which had been buying the gas in question at 8.40 at 16.4 psi (equivalent to 7.50360 at 14.65 psi) pursuant to its contract with appellant, considered the KCC order to be invalid and notified appellant judicial review of the order would be sought but payments would be made in compliance with the order subject to refund in event it was nullified. February 19, 1954, appellant notified its royalty owners of Cities’ position. The notice further stated acceptance of the royalty checks would constitute an agreement by lessors to refund any possible overpayments. From January 1, 1954, through December 22, 1957, the KCC 110 rate was the basis for computation of royalty payments.
June 7, 1954, the United States Supreme Court held the sale and transportation of natural gas into interstate commerce was subject to FPC regulation (Phillips Petroleum Co. v. Wisconsin, 347 U. S. 672, 98 L. Ed. 1035, 74 S. Ct. 794). Shortly thereafter appellant filed its 110 rate schedule with the FPC and received a certificate of public convenience and necessity. Meanwhile Cities took the KCC minimum price order through judicial channels and on January 20, 1958, secured its invalidation (Cities Service v. State Comm'n., 355 U. S. 391, 2 L. Ed. 2d 355, 78 S. Ct. 381). The order was held void ab initio (Cities Service Gas Co. v. State Corporation Commission, 184 Kan. 540, 337 P. 2d 640). February 20, 1958, appellant notified its royalty owners that Cities had demanded refund but that it had denied liability and its claim against the royalty owners for refund would be held in abeyance pending final determination of its liability to Cities. Cities instituted litigation to recover the overpayments while appellant filed in a different forum a declaratory judgment action for construction of the contract. Eventually, on November 20, 1962, this litigation culminated in a Delaware superior court judgment against appellant for nearly ten million dollars plus six percent interest. Appellant then settled this litigation in an agreement with Cities whereby Cities agreed to remit half the interest and appellant agreed not to contest the judgment further. February 15, 1963, appellant sent form letters to its lessors detailing the litigation and settlement. It requested cash refund of the overpayments or in the alternative that the lessor sign an authorization that 25% of the current royalty due each month be withheld until the overpayment was recovered. Some royalty owners paid the full amount of refund requested, others signed the requested authorization for deductions and some did nothing. As to some of these latter, appellant, without notice initially as to what it was doing, began making the deductions as though the royalty owners had signed the authorization. As to the remainder appellant made no claim for one reason or another — transfer of interest, death, final closure of estates, claims less than $25.00, etc. Appellant’s letters requesting refunds prompted a number of royalty owners to make inquiry of the Southwest Royalty Owners Association, a nonprofit organization, which led to formation of a group known as the Pan American Committee to investigate the legal position. Eventually the committee mailed to appellant’s lessors agreement forms to take part in this class action against appellant.
As to this claim for relief (Issue One) the trial court held generally that appellant had no legally enforceable claim to such demands; that in view of appellant’s duties to its lessors, it should have advised as to the legal basis of the demands and as to possible legal defenses thereto; there was no accord and satisfaction for the foregoing reasons and for lack of consideration; that in some manner appellant was estopped from making the demands; some lessors did not expressly agree to make the refunds; that the five year statute of limitations as to written contracts applied because more than five years elapsed between December 22, 1957, and appellant’s withholding of royalties starting December 9, 1963; the 110 payment was a voluntary payment; there was no consideration for cash repayment or agreement to refund, and appellant was estopped to deny the 110 payments were proper payments.
Appellees make no argument in support of the trial court’s ruling on the theory of estoppel and we do not see how the ruling can be upheld on that ground. Appellant fully advised its royalty owners of the situation respecting the claimed invalidity of the KCC order and the possibility refunds might have to be made. There was no misrepresentation or consequent detrimental change of position. The elements of estoppel were lacking (see Place v. Place, 207 Kan. 734, Syl. ¶ 4, 486 P. 2d 1354). Nor can the payments of the 110 price be said to be voluntary. Appellant was under compul sion of a business hazard in making them. The K'CC order compelled it to pay the 110 minimum price “as a condition precedent for withdrawal from the common source of supply”. If it failed to comply with the commission order it was subject to criminal penalty under K. S. A. 55-708 and civil penalty under 55-710. The point was considered in Cities Service Gas Co. v. United Producing Co., 212 F. Supp. 116 (ND, Okla., 1960) albeit in another context. It was held that payments made under the compulsion of the KCC minimum price order, accompanied by protest and request for refund if the order were invalidated, were involuntary.
The trial court also found no contractual obligation existed whereby any of the royalty owners were bound to refund the overpayment. Although we do not regard it, standing alone, as necessarily dispositive of the particular class of royalty owners involved we note that in Landon v. Northern Natural Gas Company, 338 F. 2d 17 (CA 10, 1964), a dispute between a producer and a purchaser of gas where letters were sent stating that increased payments by reason of the KCC minimum price order were made under protest subject to refund if the order were invalidated, and the checks sent referred to the letters, it was held that the letters together with acceptance and endorsement of the checks constituted a refund contract.
The real basis relied upon by appellant for its right to have the overpayments refunded, and we think properly so, is stated in 3 Williams, Oil and Gas Law, § 657, as follows:
“Lessee’s Remedy in Event of Overpayment of Royalty
“Where as a result of good faith mistake royalty has been paid to a person not entitled to receive same or where excessive payments have been made in good faith, it is generally held that the lessee (or purchaser) who has made such payments may recover from the payee the payments to which he was not entitled. However a voluntary overpayment not caused by mistake may not be recovered.” (p. 712.)
And in 3 Kuntz, Oil and Gas (A Revision of Thornton) §42.8, the following is found:
“Effect of mistake in payment of royalty.
(a) Right of lessee to refund of royalty erroneously paid.
“If the lessee or the purchaser of royalty oil or royalty gas should overpay a lessor or should make payment to a person not entitled to receive such payment, such lessee or purchaser may or may not be entitled to a refund of the amount erroneously paid, depending upon the circumstances of the payment.
“Ordinarily, if a person who has full knowledge of the facts makes a voluntary payment to another who claims a right to such payment, there is no en forceable right to a refund of the amount so paid even though there was no legal liability to make the payment in the first instance. Accordingly, in the absence of special circumstances, the lessee is not entitled to a refund if he or the purchaser of oil makes a voluntary overpayment of royalty to the lessor.
“The lessee may, however, recover from the lessor any overpayment of royalty which he made because of mistake of law or fact. A payment by mistake is not a ‘voluntary’ payment, and it may be recovered even though the payor was negligent in making the payment.
“It might also be observed that a payment is not ‘voluntary’ if it is made under duress. . . .” (pp. 405-407.)
The philosophy in the foregoing was the premise for the court’s ultimate ruling in Panhandle Eastern Pipe Line Company v. Brecheisen, 323 F. 2d 79 (CA 10, 1963). There a purchaser of gas produced in the Kansas Hugoton field sought to recover amounts it had paid to lessor pursuant to a KCC minimum price order greater than that in the gas purchase contract, which order was later invalidated in the federal supreme court. In determining which statute of limitations was applicable to the claim, the court said:
“Although a written contract was in existence between the lessor and the lessee and another between the lessee and the distributor of the gas, the amounts here claimed are not due under either contract. The sole basis for recovery must be found in a contract implied in law requiring a person who has been unjustly enriched at the expense of another to make restitution. The suit does not seek to enforce a provision of any contract and the price provisions of the contract are in evidence merely to demonstrate the proper difference between the price agreed upon and the price forced upon the buyers by the invalid order of the Kansas commission. . . .
“We hold that the trial court correctly determined that Panhandle’s claim was not based upon a writing and is thus limited to an action for unjust enrichment or other aspects of implied contract. . . .” (p. 82.)
We have already indicated the royalty payments to the lessors based upon 110 per mcf were not voluntary in that they were mandated by the KCC. The fact appellant benefited as well in its producer capacity does not alter the character of its payment to its lessors. The minimum price order was held to be a complete nullity and void ab initio. Such an order cannot alter a valid contract rate. Under the contract and all the circumstances here appellees had no right to retain any amount above the 8.40 rate.
A more serious question is presented with respect to the application of the statute of limitations to these claims, bearing in mind there are three classes of lessors: Those who made immediate cash refunds as requested, those who signed authorizations for deductions and who may or may not have made full restitution, and those who did nothing but who nonetheless had deductions made by appellant from current royalties. In its conclusion No. 27 the trial court stated that the statute of limitations, having been properly pled, applied to appellant’s claim for entitlement to refund. Our search of the record on appeal reveals no mention of the statute of limitations in any of appellees’ several pleadings but assuming it was brought into the case it is difficult to see the application made. Appellant was not in this action claiming a lump sum money judgment against any lessor by reason of the overpayment. Appellant sought to do that when on June 27, 1963, it filed suit in federal district court in Kansas against appellee Leland C. Waechter. Waechter’s answer, among other things, pled the statute of limitations (findings 26 and 27). On September 30, 1963, the decision in Panhandle Eastern Pipe Line Company v. Brechetsen, supra, was filed. It held that any cause of action for repayment of royalty made by virtue of the KCC minimum price order accrued January 20, 1958, the date of the federal supreme court’s decision voiding the order and further, as already pointed out, that the three year statute of limitation for unjust enrichment was applicable. Accordingly, such claims for refunds became outlawed January 20, 1961 (this may well have been the reason for appellant’s dismissal in April, 1964, of its federal court suit against Mr. Waechter).
Can the bar of the statute of limitations be the basis for a judgment against appellant by reason of money which has been in its hands either by cash refund, written authorization or the self-help method employed by it? As to the first two classes it seems clear appellees are seeking to use the statute of limitations affirmatively as a weapon rather than as a shield. It is elemental that this cannot be done (Greenley v. Lilly, 155 Kan. 653, 127 P. 2d 416). The rule is amplified in 51 Am. Jur. 2d, Limitation of Actions, § 20, thus:
“A statute of limitations does not confer a right of action, and ordinarily the bar of the statute will not afford a basis for affirmative relief in behalf of one in whose favor the statutory period has run. The sole effect of the statute, as a rule, is to bar the remedy by action, and it does not discharge or pay debts.” (p. 604.)
The statute of limitations is simply not available as a cause of action and its bar cannot be the basis of a claim for affirmative relief. As to the two classes mentioned the trial court erred in ruling that appellant was accountable for refunds received.
The question remains of appellant’s accountability for its self-help action in making refund deductions from later royalty pay- merits. These were all made more than five years after its cause of action accrued and they are within the bar of the statute. K. S. A. 1974 Supp. 60-213 (d) provides:
“Effect of death or limitations. When cross demands have existed between persons under such circumstances that, if one had brought an action against the other, a counterclaim or cross-claim could have been set up, neither can be deprived of the benefit thereof by the assignment or death of the other or by reason of the statute of limitations if arising out of the contract or transaction set forth in the petition as the foundation of plaintiff’s claim or connected with the subject of the action; but the two demands must be deemed compensated so far as they equal each other.”
The foregoing statute has been construed to disclose legislative intent to carry over the law as it developed under G. S. 1949, 60-715. Under the old statute it was held that a defendant could assert a counterclaim or setoff, even though barred by the statute of limitations, to the extent of the plaintiff’s claim, providing both claims coexisted at some time. (Rochester American Ins. Co. v. Cassell Truck Lines, 195 Kan. 51, 402 P. 2d 782.) In Tobin Construction Co. v. Holtzman, 207 Kan. 525, 485 P. 2d 1276, it was stated:
“The statute, 60-213 (d) . . . requires that before the cross-claim can be asserted the two demands, the plaintiff’s demand and the defendants’ demand, must have coexisted between persons under such circumstances that if one had brought an action against the other, a counterclaim could have been set up. In all cases this prerequisite requires that at some point in time there must be a coexistence of the two claims together. If the cross-claim asserted is barred prior to the existence of the claim asserted in the damage action . . ., then the statute does not allow the assertion of the cross-claim, since the two claims at no time coexisted in time.” (p. 534.)
In order to assert a cross-claim under the statutes the two claims must have coexisted at some point in time. Appellant’s claims were barred by the statute of limitations prior to the time it commenced withholding the overpayments from current royalties due appellees. Appellees’ claims are based on the amounts being withheld. Thus, it would appear appellees’ claims never arose until after the appellant’s claims were barred and the two claims never coexisted, which renders the statute inapplicable.
In an extensive note entitled “Developments in the Law — Statutes of Limitations”, 63 Harv. L. Rev. 1177, the writer says:
“Since the statute of limitations is considered as barring only the direct remedial right of action, and not the underlying claim, the claim may still be of considerable use to its possessor in a variety of situations. It may be asserted defensively, in an action by the debtor, and even offensively where certain possessory interests are endangered. Other rights collateral to the barred claim may still be asserted, and it may be that the remedy of self-help is not affected. But if the time limit is considered ‘substantive,’ it bars the underlying claim as well, and all remedial rights are extinguished.
“Defenses. — Although not independently actionable, a claim may be used to defeat an action brought by the person in whose favor the bar exists, even where the statute of limitations would seem- to prohibit the defense. Thus, if the basis of the claim will establish a denial that the plaintiff’s cause of action exists at all, the claim may be asserted despite the expiration of the limitations period. Even if the otherwise barred claim is not a defense sufficient to nullify the cause of action, it may be utilized by the defendant if the requirements of common law recoupment are satisfied. . . .” (pp. 1244-1245.)
In Rochester American Ins. Co. v. Cassell Truck Lines, supra, it was stated:
“Statutes of limitation are usually considered to be remedial rather than substantive, in that the remedy only and not the right or obligation is barred. . . . [p. 55]
“When considering the effect of the running of the statute of limitations this court is committed to the general doctrine, almost universally recognized by the courts and textwriters, that there is a substantial distinction between a claim asserted as a pure defense and one where affirmative relief is sought. Statutes of limitation are not intended to affect matters asserted strictly in the defense of an action.” (p. 56.)
In Christenson v. Akin, 183 Kan. 207, 326 P. 2d 313, a vendor sued vendee for the balance due on a written contract of sale of a business. The vendee counterclaimed alleging vendor violated an agreement not to compete. The vendee was held barred by the statute of limitations from obtaining affirmative relief by way of injunction against future competition. However, it was held the alleged violations of contract could be used as a pure defense. The court stated:
“The counterclaim here being considered grew out of the same contract and transaction which is the basis of plaintiffs’ cause of action in their petition. Although defendants may be barred from affirmative relief because of limitations, they would seem to have a right to use their counterclaim as a matter of pure defense to reduce any judgment received by plaintiffs herein.” (p. 213.)
The vendee was allowed to prove damages but could not recover an affirmative judgment over and above judgment for the vendor. For another example of the use of an outlawed claim as a “pirre defense”, see Powers v. Sturgeon, 190 Kan. 604, 376 P. 2d 904.
Closely akin to the “pure defense” use of an outlawed claim is that of the common law doctrine of recoupment. The subject is discussed in 20 Am. Jur. 2d, Counterclaim, Recoupment, etc., in the following terms:
“§ 1. Definitions — recoupment.
“Recoupment is the right of a defendant, in the same action, to cut down the plaintiff’s demand either because the plaintiff has not complied with some cross obligation of the contract on which he sues or because he has violated some duty which the law imposes on him in the- making or performance of that contract. It means a deduction from a money claim whereby cross demands arising out of the same transaction are allowed to compensate one another, the balance only to'be recovered. . . . [p. 228]
“§ 6. Nature and scope of remedy — recoupment.
“Recoupment is sometimes spoken of as a rule of strict justice. . . . The doctrine of recoupment does not allow one transaction to be offset against another, but only permits a transaction which is made the subject of suit by the plaintiff to be examined in all its aspects and a judgment to be rendered that does justice in view of the transaction as a whole. . . .
“Recoupment exists in equity as well as at common law, and has been said to be equitable in nature. It reduces the claim affirmatively urged SO' far as in reason and conscience it ought.
“In the absence of a statute to the contrary, recoupment is purely defensive, or in the nature of a common-law defense, and not a separate cause of action or a weapon of offense. It applies only by way of reduction, mitigation, or abatement of damages claimed by the plaintiff. . . . [pp. 231-232]
"§ 11. — Recoupment and setoff.
“Recoupment differs from setoff mainly in that the claim must grow out of the identical transaction that furnishes the plaintiff’s cause of action and, being in the nature of a claim of right to reduce the amount demanded, can be had only to an extent sufficient to satisfy the plaintiff’s claim. In other words, recoupment goes to the justice of the plaintiff’s claim, and no affirmative judgment can be had thereon. . . .” (pp. 235-236.)
The doctrine of recoupment has found its way into the annals of Kansas law. In Ruby v. Baker, 106 Kan. 855, 190 Pac. 6, 10 ALR 1247, Justice Mason quoted approvingly the following:
“ ‘A defense by way of recoupment denies the validity of the plaintiff’s cause of action to so large an amount as he claims. It is not an independent cross claim, like a separate and distinct debt or item of account due from the plaintiff, but is confined to matters arising out of or connected with the contract or transaction which forms the basis of the plaintiff’s action. It goes only in abatement or reduction of the plaintiff’s claim, and can be used as a substitute for a cross action only to the extent of the plaintiff’s demand. No judgment can be obtained by the defendant for any balance in his favor. . . .’” (p. 858.)
Appellees’ claims here are for the amount withheld by appellant from later royalty payments. They are based on the lease contracts. Appellant’s claims for the overpayments grow out of the selfsame leases. Thus it would appear either under the “pure defense” or the recoupment theory appellant is entitled to offset its outlawed claims against those of appellees so that the parties are left as they were. Does appellant’s extra-judicial action make any difference? We think not. Appellant rightfully came into the possession of the entire proceeds of the sale of the gas, including that portion to which the landowners would have been entitled. It cannot be said appellant acquired appellees’ money by force, collusion or unfair means, which would present an entirely different picture. The situation is analogous to some of those mentioned in 6 Williston on Contracts, rev. ed., § 2002, wherein it is stated:
“Another consequence of the doctrine that the remedy is barred rather than the obligation discharged is that the creditor remains entitled after the statute has run to use any other means of collecting his debt than a direct right of action. Therefore, any security by way of lien or mortgage may be utilized to collect the claim. Thus, a vendor’s lien for the price of land may be enforced, or a mortgage may be foreclosed, or a policy of insurance on the debtor’s life, or a pledge of stock, or of any instrument representing an intangible right enforced, though the debt is barred. So the bar of a statute against a principal debtor will not release a surety. And a payment made generally may be appropriated to the payment of a barred debt. An executor may retain from a legacy the amount of a barred debt owing by a legatee to the testator; and generally where the law has not been changed by the construction put upon local statutes, the executor may retain from the estate a barred debt owed to him by the testator, and may pay other barred debts of the testator. The fact that the remedy only is barred, is also thought to be involved in the well-recognized principles concerning the revival of barred debts by subsequent promises.” (pp. 5630-5633.)
Appellees’ indebtedness was not extinguished by the lapse of time. Appellant has not retained any money to which it was not morally entitled under all the circumstances. The trial court erred in ruling that appellant was accountable for the royalties retained by it.
The judgment is reversed.
approved by the court.
Fatzer, C. J., not participating. | [
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|
The opinion of the court was delivered by
Parker, C. J.:
This is an appeal from a judgment of the district court of Leavenworth County denying petitioner’s application for a writ of habeas corpus releasing him from the State Penitentiary where he is now serving an unexpired sentence of imprisonment imposed by the district court of Pratt County on the verdict of a jury finding him guilty of the crime of murder in the second degree.
In a preliminary way it may be said the record discloses the involved conviction and sentence followed a full and complete trial, during which petitioner, charged by information with murder in the first degree, was at all times represented by capable counsel of his choosing who did not see fit to file a motion for a new trial, although given permission to do so, or appeal from the judgment.
On June 3, 1958, more than four years after rendition of the judgment and sentence, petitioner filed a petition in the district court of Leavenworth County wherein the sole groufid relied on by him as requiring the issuance of a writ and his release from custody was that prior to his arraignment in the district court of Pratt County he was held incommunicado for a period of one hundred twenty hours, during which time two statements were procured from him by state and local law enforcement officials which were introduced in evidence during the trial.
Respondent’s answer denied all allegations of the petition and alleged the petitioner was held in his custody under a valid judgment and unexpired sentence of the district court of Pratt County.
With issues joined as related the cause came on for hearing in the district court of Leavenworth County where the only evidence adduced consisted of petitioner’s uncorroborated statements in support of his petition and the respondent’s records which supported the allegations of his answer. Thereupon the trial court found the petition for writ of habeas corpus should be denied and the petitioner remanded to the custody of the respondent. Judgment was entered accordingly and this appeal followed.
At the outset it should be stated the record presented, which we pause here to note was prepared pro se and before the employment of his present counsel, is wholly insufficient to review the judgment complained of in that no attempt is made to comply with the rules of this court pertaining to a record on appellate review. And added that, under such circumstances, we might, with entire propriety, either dismiss the appeal for that reason (Garrison v. Amrine, 155 Kan. 509, 510, 126 P. 2d 228) or affirm the judgment for failure to establish any prejudicial error warranting its reversal. (Hayes v. Hudspeth,, 169 Kan. 248, 249, 217 P. 2d 904.) Even so, it is neither necessary nor required that we dispose of the appeal on that basis and we are not inclined to do so.
The established rule of this jurisdiction is 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 and all of our decisions so hold. See, e. g., Thomas v. Hand, 184 Kan. 485, 486, 337 P. 2d 651; Stebens v. Hand, 182 Kan. 304, 309, 320 P. 2d 790; Ferguson v. Hoffman, 180 Kan. 139, 141, 299 P. 2d 596; Cunningham v. Hoffman, 179 Kan. 609, 611, 296 P. 2d 1081; Hartman v. Edmondson, 178 Kan. 164, 166, 283 P. 2d 397; Dionne v. Hudspeth, 166 Kan. 72, 73, 199 P. 2d 176; Kendall v. Hudspeth, 162 Kan. 307, 308, 176 P. 2d 254.
In passing it is to be noted that, in the face of the record presented, the judgment in this case would have to be affirmed even though the evidence relating to the sole ground relied on by appellant, in his petition as grounds for the issuance of a writ, was conflicting. Under our decisions, absent a motion for a new trial in a habeas corpus proceeding, there can be no re-examination of issues of fact (Johnson v. Best, 156 Kan. 668, 135 P. 2d 896).
In conclusion it should be pointed out we have disregarded, not overlooked, belated attempts by counsel to inject into this case an issue which, with commendable candor, they concede was not involved or passed upon by the court below. The rule, so well-established that it requires no .citation of the authorities supporting it, is that issues not presented or involved on the trial of a case in district court will not be considered on appellate review and afford no sound basis for disturbing the judgment.
The judgment is affirmed. | [
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|
The opinion of the court was delivered by
Fatzer, J.:
The proceeding out of which this appeal rises was commenced by the Board of County Commissioners of Osage County, Kansas, on July 15, 1953, as a tax foreclosure action pursuant to G. S. 1949, 79-2801 et seq. The principal question presented is . the force and effect of the trial court’s order of January 12, 1959, in that same proceedings, whereby it was decreed that the Journal Entry of Judgment rendered on December 29, 1953, be corrected to speak the truth by expunging therefrom all reference to causé of action No. 9, adjudging a tax lien against Lot 7 and the South Half of Lot 8, in Block 41 in the City of Lyndon, and for foreclosure of said taxes, and for the sale of that property at sheriff’s sale to satisfy such tax lien; and further, vacating and setting aside the judgment and decree of confirmation entered on February 26,1954, confirming the sheriff’s sale of that property to the respondents (appellants), Charles O. Anderson and Thelma C. Anderson, his wife, on February 15, 1954.
The petition filed by the Board of County Commissioners contained 135 separate causes of action for foreclosure of delinquent tax liens, each describing a separate tract, or parcel of real estate in Osage County, Kansas. Included as cause of action No. 9 was the property in question and described as:
Lot 7 and the South & of Lot 8 in Block 41, in the City of Lyndon.
The petition alleged for cause of action No. 9, that the real estate described was duly assessed for taxation, and taxes were legally levied thereon for the years 1948 to 1952, inclusive; that the taxes were unpaid and were delinquent; that the property was duly sold and bid in by Osage County at the delinquent tax sale on September 6, 1949; that the same remained unredeemed and the certificate of sale untransferred for the period of more than four years after such sale; that the amount of taxes, costs, penalties and interest thereon to July 15, 1953, chargeable to such real estate for the years 1948 to 1952, inclusive, was $33.27, and an abstract fee of $10; that the owner of the property was the Atchison, Topeka and Santa Fe Railway Company, and that one Danhauer, and the City Council of Lyndon, Kansas, claim some interest therein, the exact nature and extent of which being unknown to the plaintiff. The prayer was that the court determine the owner or parties having an interest in the real estate described; the amount of taxes, interest, penalties and costs chargeable to each tract of real estate, and decree said sum and all taxes and interest subsequently accruing to be a first and prior lien thereon; that the real estate be sold by order of the court at public sale to satisfy such lien and costs; that the sale be confirmed and that following confirmation, all defendants be foreclosed and barred from all claim and title to each tract of real estate.
On September 10, 1953, the defendant Atchison, Topeka and Santa Fe Railway Company filed its answer and disclaimed any interest in the real estate described in cause of action No. 9 and prayed judgment for its costs.
On September. 19, 1953, the defendant City of Lyndon filed its answer and cross-petition consisting of a general denial and made affirmative allegations that it had acquired rights to the property as a street by reason of adverse claims, that it was exempt from taxation as provided in the constitution and laws of the State of Kansas, and prayed that plaintiff take nothing against it by reason of its petition; that the real estate be adjudged a street and public way of travel, and that plaintiff and all other parties named in cause of action No. 9 be barred and enjoined from asserting any title or claim to the property adverse to the title of the City of Lyndon.
The Journal Entry of Judgment recites that on December 29, 1953, the action was heard and the court found, among other things, that the relief prayed for in the answer and cross-petition of the City of Lyndon was valid and that the property described in cause of action No. 9 should be adjudged and decreed to be a public street and that the plaintiff and all other parties named in the cause of action should be barred from asserting any interest against the real estate adverse to the right and title of the City of Lyndon.
In the following paragraph of the journal entry the court found from evidence offered by the plaintiff in support of its causes of action alleged in the petition that the allegations contained in said causes of action were true except as thereinafter stated; that the tracts of real estate described in the causes of action were duly assessed for taxation, and taxes were legally levied on said real estate for the years preceding the dates of sales described in the various causes of action; that all of said taxes, interests, penalties, fees and other charges alleged in the petition and the 1953 taxes and interest thereon constituted a valid first and prior lien in favor of Osage County, Kansas, and against the respective tracts of real estate therein described; that the equitable portion of the costs of the action chargeable against the real estate described in each cause of action was $24.44 which was made a first and prior lien in favor of the plaintiff and against the property, and that the respective tracts of real estate are owned by the person or persons named and that none of the other defendants had any right, title or interest to the real estate, to-wit:
“Cause of Action No. 9
Lot 7 and the South K of Lot 8 in Block 41, in the City of Lyndon,
Owner: The Atchison, Topeka, and Santa Fe Railway Company
Tax Lien: $37.94 Costs: $24.44”
The journal entry thereafter recites that the property described in the cause of action No. 9 is a public street and that the plaintiff and all other parties were barred from asserting any interest therein adverse to the right and title of the City of Lyndon. Following immediately thereafter, the journal entry recites:
“. . . That the plaintiff has a valid and prior tax lien against the real property described in each of said causes of action, in the amount stated after said descriptions, together with all taxes and interest subsequently accruing thereon according to law, and
“It Is Ordered and Adjudged that said lien be, and the same is hereby foreclosed. . . .”
In accordance with that finding it was ordered that if the lien and costs be not paid within five days, the clerk of the court issue an order of sale to the sheriff directing the sale of the real estate described in each of the causes of action at public auction, and that from and after the sale and confirmation the defendants, and each of them, be foreclosed and barred from any and all estate, claim or title thereto, and the sheriff issue deeds to the respective purchasers and place the holders thereof in possession of the real estate.
On January 6, 1954, an order of sale was issued to the sheriff of Osage County and on February 15,1954, the real property described in cause of action No. 9 was sold by the sheriff at public auction. On February 20,1954, the sheriff filed with the clerk of the court his return of the order of sale which recited that according to its commands, he advertised and sold the several properties including;
“Cause of Action No. 9
Lot 7 and the South % of Lot 8 in Block 41, in the City of Lyndon,
Owner: The Atchison, Topeka, and Santa Fe Railway Company
Tax Lien: $87.94 Costs: $24.44
Purchaser: Charles O. Anderson and Thelma C. Anderson Amount: $25.00”
Thereafter, and on February 26, 1954, the court confirmed the sheriff’s sale, including the sale of the property described in cause of action No. 9. On that same day, the sheriff of Osage County executed and delivered to the Andersons a sheriff’s deed conveying the real estate described in cause of action No. 9 and on March 11, 1954, the deed was filed in the office of the register of deeds. Since that time the Andersons have been in possession of the property and have paid taxes levied thereon.
On August 10, 1956, approximately 30 months after the court confirmed the sale of the property in question, the City of Lyndon filed a pleading which it entitled “Motion to Set Aside Judgment,” and prayed for an order vacating and setting aside the judgment and the decree of confirmation entered on February 26,1954, insofar as it affected the real estate described in cause of action No. 9. Notice of the motion was given the Andersons and they filed an answer to the city’s motion alleging, among other things, that the relief sought by the city was barred by the provisions of G. S. 1949, 79-2804b.
On June 17, 1958, the Andersons filed a motion for judgment on the pleadings in which they again alleged that the city’s motion to set aside judgment was barred by G. S. 1949, 79-2804b.
On June 18, 1958, the matter was heard by the court on the respondents’ answer and motion for judgment on the pleadings. At that hearing the city orally moved the court to correct the judgment of December 29, 1953, to speak the truth.
On January 12, 1959, the court filed a written memorandum opinion in which it ordered the judgment rendered on December 29, 1953, be corrected to speak the truth by expunging therefrom all reference to cause of action No. 9 adjudging a tax lien against Lot 7 and the South Half of Lot 8 in Block 41, in the City of Lyndon, and for foreclosure of said taxes, and for the sale of said property at sheriff’s sale. It was further adjudged that the motion of the city to set aside the decree confirming the sale of the real estate described in cause of action No. 9 be sustained, and that portion of the judgment and decree of confirmation entered on February 26, 1954, confirming the sale of that property was vacated arid set aside. The Andersons’ motion to vacate and set aside findings and judgment and for a new trial was overruled, and they perfected this 'appeal.
For reasons hereafter stated we are of the opinion the trial court erred in entering its order of January 12, 1959.
Neither party here contends that any of the proceedings had in the tax foreclosure were defective, irregular or void, except as noted, and no dispute exists as to the legality of any of such proceedings. Unless those proceedings and the judgment rendered thereunder may be collaterally attacked by the city, or corrected by the trial court to make judgment speak the truth, the city cannot prevail, and the court erred in entering its order of January 1, 1959. One question is presented: Did the court have jurisdiction to enter its order of January 12, 1959?
It is beyond dispute that the two essentials to rendering a valid judgment on December 29, 1953, were present on that date; that is, the trial court had jurisdiction of the subject matter and of the persons whose rights were sought to be adjudicated (McFadden v. McFadden, 174 Kan. 533, 538, 257 P. 2d 146; Moore v. Graham, 151 Kan. 193, 197, 198, 98 P. 2d 111; Phillips Petroleum Co. v. Moore, 179 Kan. 482, 494, 297 P. 2d 183).
Despite the inconsistent findings recited and the judgment of the court, which in reality amounted to two judgments, and the city’s contention that it is entitled to have the sale vacated upon the theory that the property belonged to it and was not subject to taxation, the fact remains the court found taxes were legally assessed for the years alleged in the petition, and, upon due consideration, rendered judgment for the plaintiff foreclosing its tax lien upon the property in question. Thereafter, tire property was sold, the sale confirmed and a deed was issued to the purchaser. Under such circumstances, the city, or any other person or party asserting ownership to, or an interest in, real property sold at a tax foreclosure sale pursuant to G. S. 1949, 79-2801 et seq. has two courses for relief: The first is to appeal to the supreme court from the judgment of foreclosure, or the decree confirming a sale of the property. In the instant case, no appeal was taken by any party whose rights were adjudicated and cut off by the tax foreclosure judgment, or by the decree of confirmation on February 26, 1954, and that judgment and decree have long since become final. Hence, the first course of relief is not available to the city.
The second course available is G. S. 1949, 79-2804b. Under that statute an owner or any person claiming an interest in property sold at a tax foreclosure sale may commence an action or proceeding to open, vacate, modify or set aside any judgment rendered for taxes, or any order of sale thereunder, or any sale made pursuant thereto, but such- action or proceeding must be commenced within twelve months after the date of the confirmation of the sale. Here again, the city’s motion to vacate' and set aside the judgment and decree confirming the sale of the real estate on February 26, 1954, and its oral motion to correct the judgment of December 29, 1953, to speak the truth, were filed and made long after the time permitted by G. S. 1949, 79-2804b.
In Phillips Petroleum Co. v. Moore, supra, this court considered the application of our tax foreclosure statute (G. S. .1949, 79-2801 et seq.) and reviewed our previous decisions dealing with it. In reaching a decision in that case, the court overruled the second Magnolia case (Magnolia Petroleum Co. v. Moyle, 162 Kan. 133, 175 P. 2d 133); the third Magnolia case (Magnolia Petroleum Co. v. Moyle, 163 Kan. 368, 182 P. 2d 127; the first Shell case (Shell Oil Co. v. Board of County Comm'rs, 165 Kan. 642, 197 P. 2d 925) and the Allen case (Board of County Comm'rs v. Allen, 175 Kan. 460, 264 P. 2d 916), insofar as they are in conflict with tire views expressed in the opinion in the Phillips case, supra; and reaffirmed its previous decisions in the second Shell case (Shell Oil Co. v. Board of County Comm'rs, 171 Kan. 159, 231 P. 2d 220), and in the third Shell case (Shell Oil Co. v. Board of County Comm'rs, 171 Kan. 595, 237 P. 2d 257). In the opinion in the second Shell case, supra, it was said:
“Under G. S. 1941 Supp. 79-2804b, every action, either legal or equitable, to open, vacate, modify or set aside any judgment rendered for taxes, or any order of sale made thereunder, including those actions brought on the grounds and in the manner prescribed by the code of civil procedure, must be commenced within six months after the date of confirmation of sale, and the provisions of this section apply to all judgments, orders of sale and sales, whether the purchaser be the county or an individual. We think the clear intention of the statute is to supersede any and all other provisions of the code insofar as they may relate to actions to vacate, modify or set aside judgments, orders of sale and sales in tax foreclosure proceedings. The statute fixes a definite time within which such an action may be brought. The legislature had authority to make such a limitation and there was a good purpose in its doing so, namely, that purchasers at tax foreclosure sales would know a limitation of time within which the proceedings might be attacked. To hold otherwise would merely introduce confusion and unsettle every title growing out of a tax foreclosure action. Every title examiner would pause when confronted with a title derived from tax foreclosure proceedings, notwithstanding the statute (G. S. 1941 Supp. 79-2804) states the deed shall convey a fee simple title. Purchasers at tax foreclosure sales could never be certain whether they were purchasing fee simple titles or prospective lawsuits. We think the legislature clearly intended to remove, after the passage of the time prescribed by the statute, the uncertainty which has been conceded by everyone to exist with reference to tax titles.
“In passing, we note that the statute under consideration as it now appears (G. S. 1949, 79-2804b) has been amended in that it now provides that such actions to vacate, modify or set aside, must be commenced within twelve months after the date of confirmation of sale, and that other language in the section, as amended, is even a stronger indication of the legislative intent to place a stamp of finality on tax foreclosure proceedings after the expiration of the time prescribed.” (1. c. 167, 168.)
See, also, the third Shell case, supra, p. 596.
In Phillips Petroleum Co. v. Moore, supra, it was said:
“We are in accord with the view that property should not be sold for taxes if taxes 'have been paid. The statute makes provision for the protection of the owner of real estate in such a case, in addition to conferring the right to appeal. The statute (79-2804b) fixes a definite time, six months (now twelve months) within which any proceeding may be brought to set aside a judgment. The legislature had authority to make such a limitation; its purpose was twofold: First, to permit the owner of real estate to make application in the tax foreclosure action or by the institution of an independent legal or equitable action, to open, vacate, modify or set aside the judgment or sale to show, if he could, among other things, that the real estate was not subject to taxation or that the taxes had been paid; and second, that purchasers at tax foreclosure sales should know the limitation of time within which the judgment of the court upon which the sale was predicated, might be attacked.” (1. c. 494.)
In view of the foregoing, the city’s motion to vacate and set aside, and its oral motion to correct the judgment to speak the truth, was not -filed or made within twelve months after February 26, 1954, the date of confirmation of sale of the property in question; hence, the trial court had .no jurisdiction of such motions or proceedings, and its order of January 12, 1959, was void and of no effect (G. S. 1949, 79-2804b).
It follows therefore that this appeal is reversed with directions to the trial court to set aside its order of January 12, 1959, and enter judgment in favor of the respondents.
It is so ordered. | [
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The opinion of the court was delivered by
Price, J.:
Defendant, Rex Hamilton, was convicted of burglary in the second degree and larceny in connection therewith, and has appealed. Specifically, he and two other defendants were charged with breaking and entering in the nighttime a certain building in Erie and stealing 3,100 pounds of pecans stored therein, in violation of G. S. 1949, 21-520 and 21-524. Apparently they were granted separate trials for we are told that the trial of one resulted in a hung jury, and that the other defendant has not been tried.
Defendant, Rex Hamilton, appellant here, having twice previously been convicted of a felony, was, under the provisions of the habitual criminal statute (G. S. 1949, 21-107a), sentenced to a term of not less than fifteen years for the burglary offense and to a like term for the larceny, the sentences to run concurrently.
Following the verdict of guilty defendant filed a motion for a new trial containing five grounds. The motion was overruled, whereupon he perfected this appeal. The notice of appeal states that he appeals from the order overruling his motion for a new trial. His only specifications of error, however, are:
“I. The Court admitted testimony to be introduced on behalf of the State over the objection of tire defendant, which testimony was not proper and was prejudicial to the defendant.
“II. The verdict is not sustained by sufficient evidence.”
At the time of oral argument counsel for defendant, for the first .time,' requested permission to amend and enlarge the specifications of error so as to include the order overruling the motion for a new trial. We have considered the request but have concluded that in .the interest of orderly procedure on appellate review it came too late and is therefore denied. (Dupont v. Lotus Oil Co., 168 Kan. 544, 545, 213 P. 2d 975.)
, In view of the record before us and the specifications ef error, there is serious doubt whether there actually is anything before this court for review. The two errors specified are statutory grounds ■'for a new trial in a criminal prosecution (G. S. 1949, 62-1603). It has been held repeatedly that in order to obtain a review of ¡-alleged trial errors it is required that an appellant appeal from the order overruling his motion for a new trial and, in addition, that !such order be specified as error.
In State v. Shehi, 125 Kan. 110, 263 Pac. 787, it was held:
“Rule followed that claims of trial error not brought to the attention of the district court by motion for new trial, and not brought to the attention of this court by assigning as error denial of the motion for new trial, may not be '■■considered on appeal.” (Syl; 2.)
In State v. Pore, 143 Kan. 344, 55 P. 2d 348, it was held:
“Error in the admission of evidence of debatable competency cannot be 'considered on appeal when the matter complained of was not urged in the ■ court below in a motion for a new trial, and where no error is assigned on the ¡overruling of the motion for a new trial.” ([4] Syl.)
In State v. Brown, 145 Kan. 247, 65 P. 2d 333, it was said:
“As the record in this case fails to show a specification of errors, and as ‘the’overruling of the motion for a new trial is not assigned as error, there is !a grave question whether .there is anything before this court for review.” '■(p. 249.)
f To the same effect see State v. Owen, 161 Kan. 361, 168 P. 2d 917.
In State v. Turner, 183 Kan. 496, 328 P. 2d 733, it was held:
' “Matters specified as error, in order to be reviewable, must be within the • purview of those matters contained in the notice of appeal, and, when an ¡•■appellant seeks to have this court review alleged trial errors, he must appeal from the order overruling his motion for a new trial, and, in addition, must specify such ruling as error.” (Syl. 1.)
The Turner case was appealed to the Supreme Court of the United States, and on March 30, 1959, that court, in a per curiam opinion, dismissed the appeal for • want of a substantial federal question. (359 U. S. 206, 3 L. ed. 2d 759, 79 S. Ct. 739.)
It is quite true that under G. S. 1949, 62-1701, an appeal to this court may be taken by a defendant as a matter of right from any judgment against him. The statute, however, does not mean that a defendant is entitled to a review of every matter involved in his trial and sentence without compliance with well-established rules of procedure relating to appellate review. In other words, while in this case defendant did appeal from the order overruling his motion for a new trial, his failure to specify that order as error precludes a review of alleged irregularities and errors occurring during the trial.
Defendant has failed to establish that his rights have been in any way prejudicially affected, and upon the record before us this court is compelled to affirm the judgment of the trial court.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Wertz, J.:
Eldon Ehrsam, plaintiff (appellant), brought this action against Charles Borgen, defendant (appellee), to recover damages for personal injuries sustained in a collision while riding in defendant’s automobile.
The petition, insofar as is pertinent to the issue involved herein, alleged that defendant was the owner and operator of the automobile in which plaintiff was riding on the day in question; that both plaintiff and defendant, residents of Lawrence, were employees of the DuPont Construction Company located between Lawrence and Topeka, and that plaintiff was riding as a passenger pursuant to an arrangement with defendant whereby they exchanged rides every other day in going to and from work. Plaintiff then alleged that due to enumerated acts of negligence on the part of defendant his automobile collided with another vehicle and plaintiff sustained serious injuries for which he sought damages.
The defendant, by way of answer, alleged that he was a minor twenty years of age at the time of the accident and if there was any share-the-ride arrangement between him and plaintiff he disaffirmed any and all such arrangement, contract or agreement; that at the time of the collision plaintiff was riding as a guest without payment in defendant’s automobile.
The issues were joined and a pre-trial conference was had pursuant to G. S. 1949, 60-2704 and 60-2902, at which time the trial court was requested to determine the legal effect of defendant’s disaffirmance of the exchange of ride agreement and the degree of proof required of plaintiff in establishing his right to recover damages.
The learned trial judge found:
“I think it is clear that but for the alleged exchange of ride agreement, plaintiff would have been riding in defendant’s automobile as a gratuitous guest at the time of the collision in question. This of course means that if plaintiff is to recover from defendant on proof of ordinary negligence only, as distinguished from the degree of proof required under the Guest Statute (G. S. 1949, 8-122b), he must in effect do so by enforcing defendant’s liability on the alleged exchange of ride agreement. Since defendant has disaffirmed whatever exchange of ride or share the ride arrangement or agreement that plaintiff alleges was in effect at the time of the collision, plaintiff is left in the same position relative to defendant’s alleged tort as would have been the case had no such arrangement ever been entered into, unless defendant may not under the circumstances be permitted to disaffirm.”
The trial court concluded that in view of defendant’s disaffirmance plaintiff was bound by the degree of proof required by the guest statute. To support his conclusion, the trial judge in his opinion chiefly relied on Brown v. Wood, 293 Mich. 148, 291 N. W. 255, 127 A. L. R. 1436. It is from this order that plaintiff appeals.
Brown v. Wood, supra, seems to hold that if the tort with which an infant is charged is so connected with his voidable contract that commission of the tort constitutes a breach of the contract or if the tort is predicated on a transaction with the infant so that to hold the infant liable in tort would in effect enforce his liability arising out of such contract, then the infant cannot be held liable for his tort, since he cannot be held liable under his contract.
Our statute with reference to contracts of infants (G. S. 1949, 38-102) was passed in 1868. It provides that a minor is bound not only by contracts for necessaries but also by his other contracts, unless he disaffirms them within a reasonable time after he attains his majority and restores to the other party all money or property received by him by virtue of the contract and remaining within his control at any time after his attaining his majority. It is apparent that under the statute a minor’s contract is never void, unless it is void for some other reason than minority. It can never be more than voidable for minority alone, and, even then, it is valid unless disaffirmed within a reasonable time after majority is attained. If the contract is for necessaries, it may not be disaffirmed. (State v. Weatherwax, 12 Kan. 358, 359.)
At the time plaintiff and defendant entered into the share-the-ride agreement, defendant was over twenty years of age, he was an employee of the DuPont Construction Company, he was performing a man’s job and was apparently supporting himself, and he owned his own automobile. We will take judicial notice of the fact that the distance from Lawrence to Topeka is approximately twenty-five miles and the distance from Lawrence to the DuPont Construction Company, the place of employment of both parties, is approximately twenty miles; that in order for defendant to hold his job and earn a livelihood, he had to get to and from work and, under such conditions, the arrangément made between the parties was necessary insofar as defendant was concerned. As early as the year 1680, in the case of Barber v. Vincent, Freeman’s King Rench Reports, p. 530, it was held that a horse was a necessity to a minor for carrying out his necessary affairs.
It might be said that earlier in the history of our country, when industry was centralized in cities or industrial communities where housing was adequate and public transportation, by way of the streetcar, the bus or the community train, was available to all, private transportation was not necessary for one getting to and from his work. However, since World War II there has been a tremendous growth in our country’s population, and in this highly industrial age, where industry has the tendency to decentralize and move to less populated or rural communities within which there is a shortage of housing and very little, if any, public transportation available, the worker is, as a result required to commute long distances to and from his place of employment. We are, therefore, of the opinion that private transportation for the worker is now a necessity and an agreement made by a minor for such transportation is binding arid not subject to disaffirmance for the reason of minority alone.
Our guest statute, G. S. 1949, 8-122b, provides that no person who is transported by the owner or operator of a motor vehicle as his guest without payment for such transportation shall have a cause of action for damages against such owner or operator for injury, unless such injury or damage shall have resulted from the gross and wanton negligence of the operator of such vehicle.
There can be no question but what our guest statute was passed in order to cure certain well-known evils that existed prior to its passage, and that it was passed for the purpose of protecting the owner or operator of an automobile. By the same token, the guest statute should not be extended beyond correction of the evils which it may be assumed were the motivating reasons for its enactment, and, certainly, it was never intended to create a greater evil than that which it attempted to correct. It may be noted that the statute applies to any owner or operator of a motor vehicle and makes no exception as to minors. The statute is plain and clearly reveals that if such owner or operator, whether adult or minor, transports his guest without payment, then such owner or operator shall not be liable in damages for injury to the guest, unless the owner or operator is guilty of gross and wanton negligence. However, if such owner or operator accepts payment or benefits from the passenger, then the act has no application (Sparks v. Getz, 170 Kan. 287, 225 P. 2d 106), and this is true whether the owner or operator is an adult or a minor.
In order to take a person riding in an automobile out of the guest status, it is not necessary that the compensation for the ride be a strict contractual consideration or that an enforceable contract relation relative to the ride should exist between the parties. Where the trip is not purely social, any substantial benefit to the owner or operator of the automobile is sufficient to take the case out of the statute. (Sparks v. Getz, supra.) The legislature, when using the word “guest,” did not intend to include persons who are being transported for the mutual benefit of both the passenger and the owner or operator of the car. The person transported is not a guest within the meaning of the statute if the transportation is for the mutual benefit of both parties, and in determining whether it was for their mutual benefit, the relationship between the parties to which it was an incident may be considered.
The guest statute, which was passed in 1931, is applicable to the specific circumstances to which it relates. We have held that a statute relating to a specific thing takes precedence over a general statute which might be construed to relate to it. (Dreyer v. Siler, 180 Kan. 765, 308 P. 2d 127.)
In the instant case, defendant, by the share-the-ride agreement, accepted payment from plaintiff by way of benefits received and plaintiff thereby became a passenger for payment in defendant’s vehicle, with the result that the guest statute was no longer available to defendant as a defense It is clear that in passing the guest statute the state legislature established the policy of protecting the owner or operator of an automobile, whether adult or minor, from liability for damages under certain specified conditions. It is not the purpose of the act to furnish to the owner or operator of an automobile an escape route for his common-law negligence in carrying passengers for payment. In using a trite expression, we may say that our guest statute was passed to serve as a shield, and not as a sword, for the owner or operator of an automobile.
In view of what has been said, the case of Brown v. Wood, supra, relied on by the trial court, has no application to the facts in this case and it follows that the judgment of the trial court is reversed.
It is so ordered. | [
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