text
stringlengths 9
720k
| embeddings
listlengths 128
128
|
|---|---|
The opinion of the court was delivered by
Jackson, J.:
Appellant appeals from the order of the trial court sustaining demurrers of the appellees- to his ámended petition on the ground of misjoinder of actions.
Appellant filed the petition here involved as the administrator of the estate of Carrie Brial, deceased. The somewhat unusual question here propounded for decision is most easily illustrated by setting forth the principal parts of the petition. After alleging the administrator’s appointment, the pleading continued:
“That one Carrie Brial died intestate on October 19, 1955. At the time of her death she was the sole and absolute owner of a checking account in the Bucklin State Bank of Bucklin, Kansas, in the amount of $4,378.00.
“That on the 25th day of October the defendant Paul Brial by check of such' date, and signed by the said Paul Brial, fraudulently withdrew from the aforesaid account of Carrie Brial, the sum of $4,378.00 and converted the same to his use and to the use of Bertha Brial.
“That the Bucklin State Bank of October 25, 1955, fraudulently converted and allowed the said Paul Brial to withdraw such money and to further convert the same to his use and to the use of the defendant Bertha Brial.
“That the aforesaid -unlawful conversions of the aforesaid sum of $4,378.00 is unjust enrichment and constitutes a fraud upon the estate of the said Carrie Brial and upon her lawful heirs.
“That the aforesaid sum of $4,378.00 constitutes part of the assets of the Estate of Carrie Brial, and that such fraudulent appropriation and conversion was not discovered by plaintiff until after his appointment as such administrator on June 25,1956.”
The pleading concludes with an allegation of demand upon the defendants and refusal upon their part to repay the funds, and a prayer for judgment in the sum of $4,378.00 together with costs.
It will be seen that the above petition is drawn in the form of one cause of action, but appellees quite rightly suggest that if more than one cause of action be commingled in the pleading and likewise misjoined therein, the petition may be attacked on the ground of misjoinder of actions without first requiring the actions to be separately stated and numbered.
It may be noticed that there appears in the above petition a liberal use of the words “fraud” and “fraudulent.” It is a well-known rule that the use of such words adds nothing to the pleading unless facts to support such conclusions of evil-mindedness are specifically pleaded. (La Harpe Farmers Union v. United States F. & G. Co., 134 Kan. 826, Syl. ¶ 3, 8 P. 2d 354; Stice v. Beacon Newspaper Corporation, 185 Kan. 61, 340 P. 2d 396; Dassler’s Kansas Civil Code, Ch. 11, § 12; Clark Code Pleading 2d Ed., p. 311, § 48.) It will also be noted that the defendant bank is alleged to have “converted” the account belonging to the estate of Carrie Brial. It is clear that the relation between a bank and a depositor is one of debtor and creditor, and it would seem impossible for the debtor to convert the debt owed to his creditor. The pleader would seem to fail to state a cause of action in tort against the bank. But, liberally construed, the petition may be said to charge that the bank wrongfully paid out the money due in the account of the estate. Therefore, it is alleged that the estate has a cause of action against the bank sounding in contract for the amount of the bank account.
Turning now to the allegations referring to Paul and Bertha Brial, we find that it is alleged that they converted the money of the estate. But if the money was wrongfully paid to them, the money would constitute the property of the bank and not the property of the estate; hence it is difficult to find an actual conversion in the situation alleged. All that is actually alleged is a wrongful interference with the bank account. Such a cause of action would sound in tort.
Thus, plaintiff’s action against the defendant bank is in contract and the action against defendants Brial is in tort. Moreover, the contract action against the bank does not affect the Brials, while the tort action against the Brials does not affect the bank. When the petition is thus construed, it contains two causes of action improperly joined and the demurrers upon the ground of misjoinder of actions were correctly sustained. The present code of civil procedure provides in section 60-601, G. S. 1949 the following rule as to the joinder of actions:
“The plaintiff may unite several causes of action in the same petition, whether they be such as have been heretofore denominated legal or equitable, or both. But the causes of action so united must affect all the parties to the action, except in actions to enforce mortgages or other liens.”
Of course, the causes were misjoined because they did not affect all of the parties to the action and not because one of the causes of action sounded in contract and the other in tort. Attention may be directed to the discussion of the subject of misjoinder of actions under the Kansas code of civil procedure in 23 Journal Kansas Bar Association 103. Plaintiff may now proceed to file separate petitions setting forth his two causes of action under G. S. 1949, 60-709, if he so desires.
The orders of the trial court should be affirmed, and it is hereby so ordered. | [
-80,
-24,
-39,
-68,
24,
96,
40,
26,
113,
-127,
-27,
83,
-21,
-38,
0,
43,
-14,
57,
112,
106,
-9,
-77,
7,
-120,
-38,
-14,
-7,
-35,
-80,
92,
-28,
-9,
76,
48,
42,
-43,
102,
-126,
65,
-48,
14,
-128,
-103,
68,
89,
64,
48,
107,
20,
15,
113,
-98,
-13,
41,
57,
74,
104,
44,
123,
61,
80,
-80,
-117,
-123,
95,
19,
-77,
4,
-100,
-57,
-40,
46,
-120,
56,
0,
-24,
123,
-90,
-106,
116,
107,
105,
8,
102,
98,
32,
-123,
-17,
-68,
-120,
46,
-14,
-99,
-90,
-46,
89,
65,
45,
-106,
-99,
125,
16,
7,
-12,
-10,
-107,
29,
-20,
25,
-50,
-10,
-79,
-119,
116,
-102,
-117,
-17,
-27,
48,
113,
-114,
66,
92,
71,
58,
-109,
-122,
-76
]
|
The opinion of the court was delivered by
Jackson, J.:
The Board of Education filed suit in the district court to quiet title to real estate against the appellants as defendants. After filing a motion to strike and a motion to make the petition more definite and the overruling of said motions by the trial court, defendants filed a demurrer to plaintiff’s petition upon the grounds: 1. That several causes of action were improperly • joined in said petition. 2. That the petition did not state facts sufficient to constitute a cause of action.
The trial court overruled the demurrer and gave defendants time to answer. Instead, defendants appealed the order of the court overruling the demurrer to this court. It may be said that defendants do not argue in their brief the above motions or that there is any merit in the first ground specified in the above demurrer. The sole question now before the court is whether the petition stated a cause of action.
The Board of Education in its petition alleged that it was the owner of the described real estate in Dickinson county in fee simple and was in possession thereof; that it had been in open and adverse possession of the real estate for more than fifteen years under and by virtue of a deed dated December 11, 1905, from Bert L. Thompson and Edith M. Thompson, then husband and wife.
A copy of the deed was attached to the petition as an exhibit, and it is shown that the granting clause thereof reads in part as follows:
“All of Block Number Ten (10) in Thompson’s Addition to the City of Herington, to be occupied and used by said party of the second part its successors and assigns, for public schools as provided by the laws of the State of Kansas now in force or hereafter to be enacted, and for no other purpose.”
The petition of the Board of Education contains the following concluding paragraph preceding the prayer:
“The above named defendants, and each of them, claim some title, estate or interest in or lien upon the real estate above described, adverse to the plaintiff, the exact nature of which claim is unknown to the plaintiff, but none of the said defendants have any title, estate or interest in the said real estate, or lien thereon, and said claims are void and wholly inferior and junior to the title and right of possession of the plaintiff to said real estate and constitute a cloud upon plaintiff’s title.”
Among the opening paragraphs of the brief of the' appellants in this court, we find the following:
“The attention of the court is especially invited to the fact that the only parties to this suit are the grantee and the heirs of the grantor of the deed to be construed, and that the grantee seeks to quiet title for all purposes against its grantor.”
The very evident trouble with the above statement at the very outset is that these facts do not appear on the face of the petition. While these demurring defendants are named in the petition, neither their, identity nor any right or claim of title belonging to them is disclosed in the petition. Instead, the petition in effect asks that defendants answer and set up any claim of title which they may have to the real estate in question.
One of the oldest and best settled rules of pleading is that a demurrer will reach only facts which appear in the pleading demurred to. If certain facts are necessary for the court to consider in passing upon a question of law and are not contained in the petition, a defendant must answer and allege the pertinent and necessary facts. This rule was better understood perhaps, or at least was fraught with more danger to the party demurring before the enactment of the provisions of the civil code allowing defendant to plead over after the overruling of a demurrer to the petition. Yet, even in modern practice, ill-advised demurrers waste time of the parties and the courts, and increase the cost of litigation.
One of the first cases in which this court discussed the rule that a demurrer reached only the facts appearing on the face of the petition appears to have been Mayberry v. Kelley, 1 Kan. 116. The same principle has been reiterated many times since the Mayberry case. A few of the later cases may be mentioned: Winfield Town Co. v. Maris, 11 Kan. 128; Northrup v. Willis, 65 Kan. 769, 70 Pac. 879; Manufacturing Co. v. Keckley, 77 Kan. 797, 90 Pac. 781; Riverside v. Bailey, 82 Kan. 429, 108 Pac. 796; Runnels v. Montgomery Ward & Co., 165 Kan. 571, 195 P. 2d 571; Lee v. Beuttel, 170 Kan. 54, 223 P. 2d 692; Kendall v. Elliot, 177 Kan. 630, 281 P. 2d 1088; Anderson Cattle Co. v. Kansas Turnpike Authority, 180 Kan. 749, 308 P. 2d 172; Kleppe v. Prawl, 181 Kan. 590, 313 P. 2d 227; Snedeger v. Schrader, 183 Kan. 725,332 P. 2d 586.
From the outline of the petition in this case it would seem almost too obvious for argument that a cause of action to quiet title as to plaintiff’s interest in the real property is stated (Cessna v. Carroll, 178 Kan. 650, 654, 290 P. 2d 803; Seaton v. Escher, 86 Kan. 679, 121 Pac. 907). While the question is not really here, we might point out in passing that even if defendants were able to raise the question of plaintiff’s title under the granting clause of the deed, as set out supra, a demurrer would be the wrong method of raising the question. Defendants claim only that the language of the deed places some sort of a limitation upon plaintiff’s title. It is conceded that plaintiff is entitled to have its title quieted to the property as long as it is used for school purposes. In Coolbaugh, Trustee, v. Gage, 182 Kan. 145, 319 P. 2d 146 the opinion reads in part:
“In connection with all questions involved it is to be noted, and must be kept in mind, that under all our decisions the fact a petition seeks to recover more or different relief than that to which the plaintiff is entitled does not make it subject to demurrer if it otherwise states a cause of action (citing authorities).” (page 149.)
A demurrer is an efficient pleading tool, where a petition is fatally defective in stating any cause of action or where all the facts are stated in the petition, and the question of whether a cause of action is alleged depends upon a dispute of law. The case at bar is not within the above category, and it is evident that the trial court did not err in overruling the demurrer to the petition herein. The order of the district court should be affirmed.
It is so ordered. | [
-10,
-18,
-68,
46,
10,
-32,
106,
-114,
97,
-79,
37,
87,
109,
-37,
4,
125,
-14,
45,
-48,
120,
-10,
-77,
83,
-126,
-106,
-13,
-39,
-35,
-79,
94,
-12,
-9,
76,
48,
-62,
-43,
70,
-62,
-59,
92,
-114,
7,
9,
68,
-37,
64,
52,
121,
122,
10,
49,
107,
-13,
40,
24,
-61,
73,
45,
-53,
-79,
-31,
-79,
-86,
13,
121,
7,
-79,
53,
-98,
-125,
-56,
-24,
-112,
57,
2,
-24,
19,
-90,
2,
116,
1,
-119,
8,
-26,
102,
35,
-71,
-17,
-68,
-120,
14,
115,
61,
-90,
-109,
88,
99,
-88,
-98,
-99,
117,
80,
7,
118,
-26,
4,
30,
108,
12,
-53,
-12,
-111,
-113,
-80,
-102,
3,
-13,
34,
32,
112,
-55,
70,
92,
103,
18,
27,
-50,
-68
]
|
The opinion of the court was delivered by
Jackson, J.:
The appellants filed suit in the district court to obtain an injunction preventing appellees Southwestern Bell Telephone Company and its contractor Hungerford from constructing a garage and service facility for Bell’s service trucks and equipment as permitted by an order of the Board of Zoning Appeals granting permission for such construction. The other appellees were also made parties defendant. A temporary injunction was issued by the district court, but after a trial of the case, the court made findings of fact and conclusions of law including a general finding in favor of the defendants, dissolved the temporary injunction and entered its judgment and decree against the plaintiffs. At a later date, the court overruled plaintiffs’ objections to the trial court’s findings of fact and conclusions of law and overruled their motion for new trial.
The two appeals herein are due to the fact that counsel for appellants, out of an abundance of caution, filed an appeal from the final decree of the court, and then a short time later filed a second appeal from the orders overruling the objections to the court’s order overruling the motion attacking the findings, conclusions, and order relating to the motion for new trial. Of course, the appeals have been consolidated, and no further attention will be given to the separate appeals.
A preliminary matter may be summarily disposed of. Appellees shortly before the case was set for oral argument filed a motion to dismiss the appeal on the ground that it had become moot, in that the building sought to be enjoined had been completed. In view of this court’s understanding of the position of appellee Southwestern Bell Telephone Company at the time of a hearing on an application for a temporary injunction pending the appeal to this court, the motion is denied.
It might be observed at the start that a survey of the cases coming before the courts involving questions of zoning seem to contain a rather high degree of feeling and a possible financial loss to one side or the other. All the courts are able to do is to endeavor to apply the rules of law which have been developed in this comparatively new field, and sometimes those rules are somewhat nebulous.
Actually it would seem that there is very little, if any, dispute as to the pertinent facts in this appeal, and the only real question of law for decision may be stated to be whether the Board of Zoning Appeals was authorized and empowered to grant an exception or variance to the zoning resolution which permitted a non-conforming use in a zoning district. Perhaps, in view of the work load of this court, we would be justified in giving a short answer to the legal question. However, the case is one of importance and we shall attempt to adequately discuss the contentions of the parties .and the facts of the case. We shall refer to individuals by surnames and to groups and boards usually by abbreviated names.
This suit involves an area immediately adjacent to the present city limits of Wichita on the east. The appellants, plaintiffs below, are landowners in the area. They acquired their tracts in the early 1930s, and have invested very large amounts of money in improving them. Their properties now constitute beautiful and valuable suburban estates. A map or plat shown on page 262 will make the area clearer.
It will be seen that the map portrays four sections of land in township 27 S, Range R2E in Sedgwick County; that Bradley’s estate is in the north half of section 8; that Koch owns the southwest quarter of the same section; while Hartman’s property is the northeast quarter of section 18; that the Wichita Country Club is located in the northwest quarter of section 17, across Rock Road from Hartman. We are advised that the facilities and improvements of the country club cost more than one million dollars. Koch, Bradley and Hartman at their own expense paved Rock Road and also brought water to the area. Plaintiffs frankly state that it has been their intention to plat their land into an exclusive residence addition to the city. The city limits have now reached the west boundary of the Hartman property.
This lawsuit involves the use of the southeast quarter of section 7, across Rock Road to the west from the Koch property. It will be noted that this quarter section is bounded on the north by the tracks of the Frisco railroad, which bisects sections 7 and 8 from east to west. When the plaintiffs located in the area there was no zoning in force. In 1941, the KFH radio station and towers were located on twenty acres in the southeast quarter of section 7 as shown on the map. Koch and others of the plaintiffs objected to such location to no avail. In 1955, Dolese Brothers acquired the twenty acres to the north of KFH as shown on the map. Plaintiffs objected again without any real results as far as preventing the installation of the cement mixing business in this location. From the map, it will readily be seen that Wichita school board owns some one hundred acres of this southeast quarter section. Just when the school board acquired this property is not shown in the record. It would appear that in December, 1957, 140 acres out of the 160 acres in the quarter section in question were being put to some non-residential use. The balance of the acreage was apparently owned by a Mr. Calkins.
On December 10, 1957, the telephone company purchased and later received a deed for three acres of the Calkins land immediately south of the KFH property. This land is shown in black on the map. As found by the trial court upon undisputed evidence, the telephone company “purchased this property for the purpose of constructing a maintenance building wherein it would headquarter approximately thirty-five maintenance vehicles and transact such other business necessary to discharge its public utility obligations to its customers in the east portion of Wichita . . . and surrounding communities.” It was further shown that the company had installed such a facility.in the north, the west and the south parts of Wichita; that during the month of January, 1958, the company proceeded to work toward the construction of its building on the purchased property by having a survey made and preliminary drawings constructed.
On March 3, 1958, a county zoning resolution which applied to the area under consideration was adopted by the county commissioners under the provisions of certain amendments to the zoning statutes of the state, now found in G. S. 1957 Supp. 19-2927 to 19-2936. Acting under these statutes as supplemented by G. S. 1957 Supp. 12-716 et seq., the city of Wichita and the county commissioners created the Wichita-Sedgwick County Metropolitan Planning Commission.
It will be seen from the map that some five acres on each of the four corners of the intersection of Rock Road and East 13th street were zoned for light commercial use. The rest of the area pertinent to the present controversy was zoned “suburban residential.” It will be noted further that the zoning of the five acres of the Calkins land at the corner of Rock Road and East 13th left only fifteen acres in the entire southeast quarter of section 7, zoned for suburban residential use. This would include the three acres now owned by Bell.
On May 28, 1958, the telephone company made application for a building permit to the county commissioners. Plaintiffs seem to lay considerable stress upon the precise procedure followed by the company. In our view of the case, it is unimportant just what precise route was followed. But we believe the trial court set out the pertinent facts in its finding No. 11 which reads as follows:
“11. That on or about May 28th, 1958, the defendant, Southwestern Bell Telephone Company, made application for a building permit for the construction of the maintenance building on said property — after some proceedings had on this application, the same was on the 17th day of July, 1958, denied by the Wichita-Sedgwick County Metropolitan Area Planning Commission. On July 29th, 1958, the defendant, Southwestern Bell Telephone Company, appealed the refusal of the building permit and made application for an exception to or a variation from zoning regulations to the Board of Zoning Appeals of Sedgwick County, Kansas.”
However, there is no question, and the telephone company admits, that the metropolitan planning commission considered the application for a building permit as an application for a “special permit” under section 11F of the zoning resolution. Section 11F reads as follows:
“F. Public Buildings and Public Utilities
,The Commission may, by special permit and subject to such protective restrictions as it deems necessary, permit the location in any district, of any public building erected and used by any department of the City, County, State or Federal government, or any building or other structure erected and used by any public utility.”
In its findings the trial court omits an abortive hearing of the Board of Zoning Appeals under an appeal dated July 21, 1958. The original petition in this suit was filed July 26, 1958, and at a preliminary hearing, it was agreed by all parties to present a new appeal ‘to the Board. This was done and it is to this appeal the trial court refers in its finding.
The trial court found in finding No. 12 as follows:
“12. That a hearing before the Board of Zoning Appeals of Sedgwick County, Kansas, was' set for August 6, 1958, notice was given to all interested parties and a public hearing was had on said date at which hearing evidence was heard; that after said hearing and on August 11, 1958, the Board of Zoning Appeals of Sedgwick County, Kansas, reduced its decision to writing in accordance with tire regulations, which decision ordered the issuance of the building permit requested and granted an exception and/or variance to the applicant. Southwestern Bell Telephone Company, and pursuant to the resolution imposed certain protective conditions.”
The rest of the findings of the court were generally against the plaintiffs and in favor of the defendants.
The basis for the creation of the Board of Zoning Appeals is found in G. S. 1957 Supp., 19-2934. The provisions of the section pertinent to this discussion read:
“Any zoning order adopted under this act shall provide for the establishment of a board of zoning appeals. . . . Tire county commissioners may authorize such board of zoning appeals to administer the details of the application of the zoning order and regulations in accordance with the general rules set forth in the zoning order, including the power to hear and determine appeals from the refusal of building permits and to permit exceptions to, or variations from the zoning regulations in the classes of cases or situations and in accordance with the purposes, standards, conditions and procedure specified by the county commissioners.”
In accord with the above statute the zoning resolution of the county contained section 13, which reads as follows:
“Board of Zoning Appeals.
“The Board of Zoning Appeals, hereinafter called the Board, shall consist of members appointed by the Board of County Commissioners. The Board shall organize, adopt rules, hold meetings and keep records all as provided by law.
“1. Authority of the Board. The Board shall administer the details of the application of this Resolution in accordance with the general rules set forth therein. Where practical difficulties or unnecessary hardships might result from a strict and literal interpretation and enforcement of the provisions of this Resolution, tire Board, upon receipt of an application in prescribed form from the owner of the property affected (which aplication shall fully state the grounds of the appeal and the facts relied upon), shall have authority to hear and determine appeals from tire refusal of building permits, and to permit exceptions to and variations from the regulations in cases where it finds that the following conditions are present:
“a) The exception or variance desired arises from a condition not ordinarily found in the same zoning district;
“b) The granting of the exception or variance wiE not unduly and adversely affect the rights of adjacent property owners;
“c) The exception or variance desired is not against the pubhc interest.”
At the hearing of August 6, the Board of Zoning Appeals allowed a variance in favor of the telephone company and after making wnttefTTindings, ordered the issuance of a building permit for construction of the Bell facility. Plaintiffs immediately filed an amended petition in their injunction case, and a temporary injunction was issued until the matter could be tried upon its merits. At the trial as has already been indicated, the district court found the issues of fact in favor of the defendants and dissolved the temporary injunction. Plaintiffs immediately appealed to this court with adequate specifications of error to bring up for review any possible error in the proceedings of the district court.
The plaintiffs in this appeal first argue that section 11F of the zoning resolution set out above provides the exclusive procedure for the telephone company to obtain a permit for its building, and that the denial of the application by the planning commission cannot be reviewed. The defendants counter by asserting that if such paragraph of the resolution be so construed, it is unconstitutional. They point out the statutes do not specifically provide for such provision or procedure and cite Hudson Properties, Inc. v. City of Westwood, 181 Kan. 320, 310 P. 2d 936, which in effect held that an ordinance which gave the governing body of a city authority to grant or withhold a permit for the construction of a gasoline service station at will was unconstitutional.
Be that as it may, we think the statutes pertaining to zoning commissions are to be construed in a manner to uphold their validity and according to their plain meaning. Such commissions are given only two functions in the statutes. First they are to draw up plans for zoning, which become effective when the plans are approved by the county commissioners (G. S. 1949,19-2904, and G. S. 1957 Supp. 19-2905 to 19-2907). This may be referred to as a quasi-legislative function of the commissions. The other function of planning commissions is found in G. S. 1957 Supp. 19-2909, and may be referred to as a strictly administrative function. By the last section, such commissions may be authorized to issue building permits either by the commission or by “its duly authorized agent.”
To return to the procedure in this case, the application for a building permit by the telephone company came into the hands of the county zoning administrator, the “duly authorized agent” of the zoning board. The administrator with proper diligence forwarded it to the zoning board for consideration under section 11F of the zoning resolution. It must be apparent that section 11F is to be construed as a variance in the general zoning regulations for a public building or a building owned by a public utility. The zoning resolution would seem to recognize that because of the public interest in such buildings the general zoning regulations as to districts should not apply to such buildings in all force and rigor. But the denial of the building permit by the zoning board would not seem to make such denial any less appealable to the Board of Zoning Appeals as provided for in G. S. 1957 Supp. 19-2934 and in section 13 of the zoning resolution. Plaintiffs cite no authority for their contention as to section 11F, and it must really be evident upon mature reflection, that the only effect of the existence of section 11F is to cast doubt upon the validity of the denial of the permit in view of the fact that the section relaxes the zoning regulations as to such buildings.
The next contention of the plaintiffs is that due to a typographical error in the resolution creating the Board of Zoning Appeals in which the resolution of the county commissioners erroneously referred to a nonexistent section 17 of the zoning resolution instead of section 13, the board was never created. It is to be noted that the error was corrected • as soon as the commissioners noted the error. Plaintiffs’ own citation of Russell v. Cogswell, 151 Kan. 793, 101 P. 2d 361, contains language answering this objection. In the Russell case it is said:
“A liberal construction of statutes in order to effectuate their purpose is the established policy of this court. The function of liberal construction is called into use where there is ambiguity in the language of the statute or, in other words, where there are one or more interpretations which may fairly be made. Where clarification is required judicial interpretation is made that will give life to the statute rather than the one which will nullify it. Errors plainly clerical in character, mere inadvertences of terminology, and other similar inaccuracies or deficiences will be disregarded or corrected where the intention of tire legislature is plain and unmistakable.” (p. 795.)
The trial court was correct in disregarding this objection.
The plantiffs argue most strenuously that the authority of the Board of Zoning Appeals “is limited by the spirit, intent, and purpose of the zoning resolution.” In a sense, of course, this is a correct postulate. But plaintiffs would have us hold in effect that in granting an exception or variance, the board could not authorize the existence of a non-conforming use in any zoning district. The creation of boards of zoning appeals seems to be quite a general provision in the zoning statutes throughout the United States, though apparently this court has not been called upon to pass upon the powers of such boards. It is said that the boards will grant ex ceptions or variances based upon the equities of the particular situation, and that the existence of such boards will prevent “spot zoning.” Our research in the decisions of other states would indicate that non-conforming uses are often allowed as variances by such boards. The wording of section 19-2934 and of section 13 of the resolution in this case would indicate in our opinion that such a variance might be made in a proper case.
Plaintiffs actually cite only two cases to sustain their position in this matter, Lee v. Board of Adjustment, 226 N. C. 107, 37 S. E. 2d 128, 168 A. L. R. 1, and Real Properties, Inc. v. Board Appeal, 319 Mass. 180, 65 N. E. 2d 199, 168 A. L. R. 8. A reading of these cases, both contained in the same volume of A. L. R., would hardly in our opinion bear out the full contention of the plaintiffs. The courts did speak of the spirit, intent and purpose of the zoning ordinances, but they did not go to the length contended by plaintiffs. We must also disagree with plaintiffs after reading many of the cases cited in the lengthy annotation following the above cases in 168 A. L. R., beginning on page 13. The authorities would in our opinion show that the plaintiffs are mistaken in their contention. Some of these authorities will be cited later in this opinion.
In the general discussion of the power of such boards of zoning appeals, it is said in 101 C. J. S. 1041, § 276:
“Since the literal enforcement of zoning regulations in all cases might result in serious injustice to particular individuals in isolated cases, boards of appeal or adjustment or similar bodies usually are vested with power, within prescribed limits, to grant particular property owners a right, generally termed a variance or exception, to use property in non-conformity with the regulations, in certain cases where hardship or practical difficulties would otherwise result, or in certain other cases where the effect of the application of the zoning ordinance or regulation, if literally enforced, would be arbitrary.” (Italics supplied.)
The very definition of the terms “exception” and “variance” as they are used in statutes relating to such boards of zoning appeals is most pertinent. In 101 C. J. S. 1037, § 273, the terms are defined as follows:
“ ‘Exceptions’ or ‘special exceptions’ are distinguished from variance’ in that the latter permits the use of property in a manner forbidden by the zoning law while ‘exception’ relates to a use permitted by the law, and in that an exception ordinarily need not be based on a showing of hardship.”
See further Devereux Foundation, Inc., Zoning Case, 351 Pa. 478, 41 A. 2d 744, where a prohibited variance was denied; and St. Onge v. Concord, 95 N. H. 306, 63 A. 2d 221.
From the above authorities and others we deem it to be now established generally that the word “variance” as used in connection with these boards of zoning appeals involves the power to allow or deny a use which does not conform to the general zoning" of a particular zoning district in question.
We would at this point direct special attention to the case of Illinois Bell Telephone Co. v. Fox, 402 Ill. 617, 85 N. E. 2d 43, where the Supreme Court of Illinois held that a board of zoning appeals had abused its discretion in denying a building permit for a modern telephone exchange which was to be located in a residential zoning district.
It should now be pointed out that to reverse the decision of the district court in this case, it would not only be necessary to hold that the evidence before that court did not support the decision of the court, but to also hold that the Board of Zoning Appeals was unreasonable and abused its discretion (Konitz v. Board of County Commissioners, 180 Kan. 230, 303 P. 2d 180).
We have not lengthened this opinion by setting forth the written findings of the Board of Zoning Appeals, but as to the three conditions as set out in section 13 of the resolution and the statute, supra, necessary to support its findings, we would suggest the following: Bell purchased this property for a specific purpose before the zoning resolution was promulgated. Such a situation was held to sustain the granting of a variance in Bubis v. City of Nashville, 174 Term. 134, 124 S. W. 2d 238; E. Providence Mills, Inc. v. Zoning Board, 51 R. I. 428, 155 A. 531; and People v. Kerner, 211 N. Y. S. 470, 125 Misc. 526.
It may also be suggested that the board might have believed that the existence of the telephone company’s building, properly controlled by the Board of Zoning Appeals as to appearance, set back, and screening with evergreens, will not add much injury to the property values of the plaintiffs either in the present condition or in event of a future residential development. In this connection, the existence of the railway, of the radio station, of the high school property, and of the adjacent five acres zoned for light commercial uses must be taken into consideration.
It must also be considered that as stated in section 13, the public interest must be considered. The public is interested in adequate telephone service. We believe the existence of section 11F of the zoning resolution was included in recognition of the public interest in the types of buildings therein mentioned and to provide that they might be allowed in a zoning district as a legislative variance. In this connection we would again direct attention to the case of Illinois Bell Telephone Co. v. Fox, supra. In that case, a board of zoning appeals had denied the application of Bell for a permit to build a building for a modern telephone exchange within a residential zoning district on the specific ground that the ordinance forbad the granting of such a variance. The supreme court in reversing the board on certiorari held that the board had misconceived the regulation and found a section in the ordinance akin to section 11F herein, and in speaking of the public interest said in part:
“Finally, defendants contend plaintiff has not shown that a telephone exchange is necessary, at the proposed site, for public convenience. Because two witnesses for plaintiff testified that they investigated all properties within approximately half a mile of the wire center of the telephone district, defendants conclude that any site within the area described would be satisfactory and that it is not necessary to erect an exchange at the site finally selected. Defendants misinterpret the obvious import of the word ‘necessary’ appearing in the statute. A word of great flexibility, ‘necessary’ may mean ‘absolutely necessary’ or ‘indispensable,’ or, less restrictively, ‘expedient’ or ‘reasonably convenient.’ (citing cases) . . . There being conclusive proof that the erection of a telephone exchange was necessary, at the proposed site, for public convenience, and there being no evidence to the contrary, the board had no discretion to deny plaintiff’s application. Section 24 provides that the ‘. . . board of appeals shall approve any special use’ where the use is necessary for public convenience, and, upon the affirmative showing made by plaintiff, it became mandatory for the board to approve the application for a special use.” (pp. 630-631)
See also Dunham v. Westerly Zoning Board, 68 R. I. 88, 26 A. 2d 614.
All other contentions of counsel herein have been fully considered, but require no comment. From what has been said, it appears that the decision of the district court in this appeal must be affirmed. It is so ordered.
Wertz, J., not participating.
Robb, J., dissents. | [
-16,
120,
-12,
-50,
10,
96,
18,
-68,
123,
-96,
-25,
87,
47,
-13,
-100,
43,
-1,
61,
84,
-21,
-11,
-78,
6,
99,
-46,
-13,
83,
-35,
-111,
126,
-27,
94,
72,
32,
-62,
-41,
102,
64,
-59,
30,
78,
39,
-103,
109,
-7,
0,
52,
123,
114,
79,
21,
-51,
-13,
44,
24,
-62,
104,
40,
-53,
117,
-79,
-8,
-118,
-115,
93,
0,
51,
33,
-104,
-57,
-8,
30,
-112,
49,
-128,
-24,
115,
-74,
-122,
116,
77,
-5,
8,
-74,
98,
0,
77,
-17,
-4,
-72,
6,
125,
-107,
-90,
17,
8,
40,
0,
-74,
-99,
116,
22,
-121,
-2,
-17,
-124,
31,
108,
-113,
-117,
-106,
-77,
7,
-16,
-110,
-61,
-18,
-93,
48,
97,
-53,
-128,
94,
-26,
83,
63,
30,
-100
]
|
The opinion of the court was delivered by
Parker, C. J.:
This was an action instituted on behalf of a minor, Maura Rodriguez, by and on behalf of her mother and next friend, Anita Rodriguez, against the Cascade Laundry Company, a Missouri corporation, and Arthur Borden, a resident of Missouri, as defendants, to recover damages for personal injuries alleged to have been sustained as the result of the negligent operation of one of the corporation’s laundry trucks, while it was being driven by Bor den, as the corporation s agent, in the course of his employment, on one of the public streets of Kansas City, Kansas. The issues have been joined by the parties and the cause is now awaiting trial.
On March 18, 1959, plaintiff served defendants with a notice to take the deposition of the defendant Arthur Borden, a resident of Kansas City, Missouri. Subsequently defendants filed a motion for an order quashing the notice to take the deposition, stating that Borden was a party to the action and would be present to testify at the trial and that under the existing conditions, the statutes and decisions of Kansas prohibited the taking of a deposition from a party to the action. After a hearing the trial court sustained the foregoing motion and entered an order enjoining the plaintiff from taking the deposition.
Thereupon plaintiff perfected the instant appeal where the question involved is: Did the trial court err in sustaining the defendants’ motion to quash plaintiff’s notice to take the deposition of Arthur Borden, a party to this action and a resident of the State of Missouri, and enjoining plaintiff from taking such deposition?
Noting that appellant’s brief in support of the only issue presented by this appeal, i. e., whether she has the right to take the deposition of an adverse party who is without the jurisdiction of the trial court and cannot be reached by its process, is interlarded with arguments seeking to have us reach out and determine questions dependent upon facts and circumstances not here involved, we pause to point out, that under the universal rule so elementary as to require no citation of authorities supporting it, opinions of this court will not be extended to questions not arising on the facts before it. Thus, having disposed of such arguments at the outset, we turn directly to the question before us.
We believe such question must be determined in the light of the provisions of the Laws of 1909, Chapter 113, Sections 1 and 2, effective March 30, 1909, now G. S. 1949, 60-2821 and 60-2822, which, so far as here pertinent, read:
“In any action now pending or hereafter instituted in any court of competent jurisdiction in this state, any party shall have the right to take the deposition of the adverse party, . . . when such adverse party, . . . is without the jurisdiction of the court or cannot be reached by the process of the trial court; . . .” (60-2821.) (Emphasis supplied.)
“The provisions of this act shall be cumulative of all the laws of this state, and shall not be construed as repealing any other law relating to the taking of testimony or evidence, and shall be construed as providing an additional means of securing evidence.” (60-2822.)
In the face of the clear, unequivocal, definite and unambiguous provisions of 60-2821, supra, heretofore underlined for purposes of emphasis, we are constrained to conclude that from and after the effective date of the Laws of 1909, Chapter 113, Section 1, any party in an action acquired the right to take the deposition of the adverse party, provided such adverse party was without the jurisdiction of the court or was not amenable to process by the trial court. Moreover, contrary, to suggestions made by appellees and mindful that the term “cumulative” has been defined in Ballentine (Second Edition) Law Dictionary with Pronunciations, as “Adding to or added to something else; by way of increase,” we are equally convinced that the word “cumulative” as used in Laws of 1909, Chapter 113, Section 2 (60-2822), is to be construed as evidencing an intent on the part of the legislature to give any party to an action an absolute right he had not previously possessed under theretofore existing statutes and our decisions, i. e., the unqualified right to take depositions of the adverse party if such adverse party is without the jurisdiction of the trial court or cannot be reached by its process. Further evidence of this intent on the part of the legislature is to be found in the provisions of 60-2822, supra, wherein, in placing its own construction on the force and effect to be given the act, of which such section is a part, it expressly provided that such act shall be construed as providing additional means of securing evidence.
In an obvious attempt to avoid the consequences of the import heretofore given the provisions of the Laws of 1909, Chapter 113, appellees direct our attention to four decisions (Hanke v. Harlow, 83 Kan. 738, 112 Pac. 616; Long v. Prairie Oil & Gas Co., 135 Kan. 440, 10 P. 2d 894; Ross v. Kansas City Public Ser. Co., 151 Kan. 132, 98 P. 2d 153; Sampson v. Post, 154 Kan. 555, 119 P. 2d 495) which, it is to be noted, were all decided by this court after the effective date of that enactment. Specifically, the gist of their contention regarding these decisions is that they adhere to the rule announced in earlier decisions (In re Davis, Petitioner, 38 Kan. 408, 16 Pac. 790; In re Cubberly, Petitioner, 39 Kan. 291, 18 Pac. 173), decided by this court long prior to the effective date of such act, holding that the taking of the deposition of a party in a pending case, merely to ascertain in advance what his testimony will be, and not for the purpose of using the same as evidence, is an abuse of judicial authority and process; and a party committed for re fusing to give his deposition in such a case, will be released on habeas corpus. Based on their view of the force and effect to be given the four decisions, to which we have heretofore referred, appellees further contend that such decisions are to be regarded as controlling precedents requiring a conclusion that the provisions of 60-2821 and 60-2822, supra, do not give a party to an action the unqualified right to take the deposition of the adverse party even though — as in the case at bar — it is inferentially, if not expressly, conceded such party was without the jurisdiction of the court and could not be reached by the process of the trial court. Let us see.
In Sampson v. Post, supra, the only point urged on appeal pertained to an order denying plaintiff an application to take the deposition of an individual, not a party to the action, who lived in the county in which the action was pending. No question respecting'the right of the plaintiff to take the deposition of an adverse party was involved. It follows that decision cannot be regarded as a precedent supporting appellees’ position.
Hanke v. Harlow, supra; Long v. Prairie Oil & Gas Co., supra; and Ross v. Kansas City Public Ser. Co., supra, can be considered together in determining contentions made by appellees respecting their status as controlling precedents. Resort to the opinions in those cases, and further resort to the Ross case in the volumes of our reports on file in the State Library as required by this Court’s Rule No. 7, discloses that in each of such tihree cases a party was seeking to take the deposition of an adverse party and/or adverse parties who were within the jurisdiction of and could be reached by process of the respective trial courts in which the action was pending; that the issue presented in each case on appellate review was whether the trial court had erred in enjoining the party from taking the deposition of an adverse party and/or adverse parties who were within the jurisdiction of the court in question and amenable to its process; and that no issue was squarely involved, raised or presented in this court on appeal in either of siich cases with respect to the rights of a party, under the provisions of the Laws of 1909, Chapter 113 (now G. S. 1949, 60-2821 and 60-2822), to take the deposition of an adverse party who was without the jurisdiction of the court or could not be reached by its process.
It may be conceded there is some language in the three last mentioned decisions, particularly the Long case, warranting an inference they fix and determine the right of a party to take dep ositions of all adverse parties, including those — not here involved —to whom reference is made in 60-2821, supra. Even so, this concession does not warrant or permit a conclusion appellees’ position with respect to the force and effect to be given such decisions is to be upheld. Under the conditions and circumstances related in the preceding paragraph of this opinion we believe that, under well-established decisions of this court (See, e. g., Medford v. Board of Trustees of Park College, 162 Kan. 169, 173, 175 P. 2d 95; Down v. Austenfeld, 162 Kan. 562, 566, 178 P. 2d 201; State, ex rel., v. Stonehouse Drainage Dist., 152 Kan. 188, 191, 102 P. 2d 1017; Railway Co. v. City of Topeka, 103 Kan. 896, 897, 176 Pac. 642, and other cases listed in Hatcher’s Kansas Digest [Rev. Ed.], Courts, §33; West’s Kansas Digest, Courts, § 92), any language susceptible of a construction contrary to the construction we have heretofore given the clear, unequivocal, definite and unambiguous provisions of G. S. 1949, 60-2821 and 60-2822, must be considered as dictum, which in legal parlance is a statement of law in a court’s opinion unnecessary to a decision of the matter in controversy.
We find nothing in other contentions advanced by the parties, all of which have been considered, of sufficient merit to warrant discussion and what has been heretofore stated and held requires a reversal of the judgment with directions to set aside the injunction.
It is so ordered. | [
-16,
-22,
-16,
29,
10,
97,
48,
-112,
113,
-77,
-76,
83,
109,
-51,
12,
107,
123,
57,
81,
121,
-27,
-77,
1,
-117,
-46,
-9,
-78,
-43,
59,
91,
100,
118,
76,
48,
74,
-107,
102,
74,
-59,
30,
-114,
0,
-88,
-32,
-47,
-64,
48,
107,
112,
79,
113,
-100,
-29,
42,
26,
-62,
-88,
60,
-21,
-67,
-48,
-80,
-117,
5,
127,
18,
-93,
4,
-100,
37,
120,
57,
-40,
49,
1,
-24,
50,
-74,
-122,
-12,
99,
-101,
8,
102,
98,
35,
109,
-17,
-8,
-104,
46,
-5,
13,
-89,
16,
88,
9,
109,
-74,
-99,
105,
17,
35,
-6,
-18,
5,
31,
44,
1,
-117,
-12,
-79,
47,
-12,
30,
7,
-21,
-123,
32,
96,
-52,
32,
93,
83,
115,
-109,
-49,
-76
]
|
The opinion of the court was delivered by
Price, J.:
This is a workmen’s compensation case, and the employer and its insurance carrier appeal from the award.
The' only question involved,is whether the finding that the workman sustained a five per cent permanent partial disability is supported by any substantial evidence.
The facts surrounding the accidental injury and resulting dis ability need not be detailed. It is sufficient to say that on March 5, 1956, the workman, a truck driver, while assisting in loading oats with the use of a mechanical grain auger, fell astraddle the auger and it struck him between his legs and across his back when he fell against the side of the truck. He was hospitalized. Prior to the accident he weighed 175 pounds, but at the time of hearing on his claim for compensation weighed only 140 pounds. He continued to experience severe pains in his back, although such fact did not disable him from employment.
At the conclusion of the hearing the commissioner made an award for temporary total disability and for medical expenses, with which we are not concerned, and found that the workman had suffered a five per cent permanent partial disability and made an award accordingly.
On appeal, the district court, after reviewing the record, approved the commissioner’s findings and adopted them as its own.
From that judgment respondents have appealed.
Almost every month this court has occasion to repeat the familiar rule pertaining to appeals in workmen’s compensation cases to the effect that its jurisdiction is limited to the determination of questions of law, which, as applied to facts, means that this court reviews the record only to determine whether it contains substantial evidence to support the trial court’s findings, and that in so doing all of the evidence is reviewed and considered in the light most favorable to the prevailing party in the trial court. If substantial evidence appears, such findings are conclusive and will not be disturbed on appellate review. (Snedden v. Nichols, 181 Kan. 1052, 317 P. 2d 448; La Rue v. Sierra Petroleum Co., 183 Kan. 153, 325 P. 2d 59; Weimer v. Sauder Tank Co., 184 Kan. 422, 425, 337 P. 2d 672, and cases cited in those opinions.)
Specifically, then, the question here is whether there is any substantial evidence in the record to support the trial court’s finding that the workman sustained a five per cent permanent partial disability.
In answer to this question we merely state that the record has been read and considered, and that the question must be answered in the affirmative. Such being the case, the judgment is affirmed. | [
-44,
-8,
-43,
-97,
10,
98,
59,
90,
97,
-91,
39,
83,
-17,
-46,
29,
43,
-9,
93,
-43,
43,
-33,
-93,
19,
-37,
-14,
-73,
-5,
-58,
-71,
107,
38,
84,
77,
48,
2,
-59,
-26,
-56,
-59,
84,
-52,
14,
-88,
-19,
121,
0,
56,
46,
-12,
75,
49,
-106,
83,
46,
24,
-57,
45,
44,
75,
-86,
-48,
-15,
-126,
13,
111,
16,
-93,
6,
-100,
111,
-8,
30,
-104,
-71,
0,
-20,
50,
-90,
-126,
52,
43,
-71,
12,
98,
98,
33,
29,
-59,
108,
-72,
63,
-11,
31,
-90,
-102,
24,
-101,
43,
-106,
-67,
114,
4,
46,
-2,
-4,
93,
93,
108,
3,
-121,
-76,
-79,
-49,
96,
28,
-117,
-17,
-127,
-78,
113,
-52,
-94,
92,
68,
82,
-97,
-121,
-106
]
|
The opinion of the court was delivered by
Parker, C. J.:
This was an action on a fire insurance policy to recover for a loss, alleged to have been covered under terms of the policy providing that the defendant company insured the property covered against all direct loss caused by collapse of building(s) or any part thereof, subject to certain listed limitations and exceptions. Judgment was for the defendant and the plaintiff appeals.
The facts necessary to a proper understanding of the issues involved are as follows:
Plaintiff commenced this action by filing a verified petition on December 31, 1957. In substance she alleged that she was the acting trustee of the R. G. Balloun trust; that the defendant was an authorized insurance company insuring against fire and other natural hazards; that she was the recipient of an insurance policy insuring certain residential property under the Balloun trust against fire and other perils, a copy of which was attached as Exhibit “A”; that for an additional premium defendant agreed to insure plaintiff against “additional perils”; one peril being the collapse of a building or any part thereof, subject to certain enumerated exceptions and limitations.
The petition further alleged:
“(7) That during 1956 and the early part of 1957, and prior thereto, the earth and ground surrounding and adjacent to the basement walls and foundation of said house contracted, leaving an air space between said earth and ground and the basement walls and foundation. Plaintiff further alleges that said contraction was due to and caused by dryness and lack of moisture in said earth and ground. That during the spring months of 1957, and particularly during the months of May and June, 1957, above average rainfall fell in and around Russell, Kansas, and said rainfall caused the earth and ground adjacent to said basement walls and foundation to become saturated with water, and in particular, filled the air space between said earth and ground and the basement walls and foundation with water. As a result of this condition, the basement walls and foundation expanded inward, and began to bulge, crack, break and collapse, and in June, 1957, did expand, bulge, crack, break and collapse. This said collapse did not happen from any of the causes excepted in said policy.
"(8) That plaintiff duly performed all the conditions of said policy on her part, except that defendant within 60 days after the occurrence of said collapse notified plaintiff that it was not liable upon said policy for the reason that it did not consider such damage a ‘collapse’ as is contemplated in the policy, and thereby defendant waived the presentation of plaintiff’s proof of loss.”
The petition closed with a statement of the amount of loss and damages sustained as a result of the alleged collapse of the basement walls, request for reasonable attorney fees, and a prayer for judgment.
Exhibit “A” mentioned above was a standard fire insurance policy providing the insured with fire, lightning and extended coverage insurance on a residence property. In addition and attached thereto was a so-called “additional perils” coverage. This form, insofar as is deemed pertinent to the issues involved in this case, states as follows:
“Section IV. Perils Insured Against (The Italicized Letters Following Each Peril Refer to Applicable Paragraphs of Section V ‘Limitations and Exclusions’ )
“This policy insures against all direct loss to the property covered caused by:
“14. Collapse of building(s) or any part thereof. (A. C. 1)
“Section V. Limitations and Exclusions This Company Shall Not Be Liable:
“(A) . . .
“(C) As respects Perils 5, 12, 14 (here involved), 15, 16, 17 and 18: For loss caused directly or indirectly by earthquake, backing up of sewers or drains, or by flood, inundation, waves, tide, tidal wave, high water, overflow of streams or bodies of water, or spray therefrom, all whether driven by wind or not.
“(1) • • •”
On May 24, 1958, the defendant insurance company filed an answer the contents of which need not be set out except to note that defendant generally and specifically denied the allegations of plaintiff’s petition, including waiver of proof of loss. In particular the defendant denied that the basement walls collapsed during the period alleged but if they did it was due to some other cause in existence previous to the issuance of said policy; alleged that if the policy did cover the alleged damage, such damage was caused by conditions specifically excluded by the insurance policy; and further denied that the basement walls had collapsed as contemplated by such policy.
Plaintiff filed a reply in the form of a general denial and the cause proceeded to trial by a jury.
After the introduction of evidence each party moved the court to direct the jury to return a verdict in his favor. Roth motions were overruled. Thereupon plaintiff requested certain instructions which were refused by the court. In passing we note that plaintiff objected to the submission of any special questions.
Thereupon the court instructed the jury, submitting thirteen written instructions. Of these instructions, 7 to which the plaintiff objected, is important to a decision of the decisive issue involved and should be quoted. It reads:
“(7) You are instructed that the word ‘Collapse’ as used in the clause, ‘Collapse of building or any part thereof’ means a settling, falling, cracking or breaking of the building or any part thereof, which materially impairs the basic structure or substantial integrity of the building so as to render it unsuitable for use as a dwelling.”
• After the cause was submitted to the jury that body caused a communication to be delievered to the court wherein it stated it would like the words “so as to render it unsuitable for use as a dwelling” stricken from the court’s instruction 7. It was advised by the trial judge that he was not at liberty to change the instruction by striking out any part of it and directed to return to the jury room and continue its deliberations.
Some two hours after returning to the jury room the jury returned a general verdict in favor of the defendant and against the plaintiff along with its answer to one of three special questions submitted by the court. Such question arid answer read:
“(I) Do you find from a preponderance of evidence that a collapse, as that term is defined in the Court’s instructions, occurred to the insured building or any part thereof? Answer: No.”
For obvious reasons it failed to answer questions (2) and (3) which read: -
“(2) If your answer to Question (1) is ‘Yes,’ then state when said collapse occurred. Answer:
“(3) If your answer to Question' (1) is ‘Yes,’ do you find from a preponderance of evidence that within 60 days after the occurrence of said collapse that tire defendant was informed of the plaintiff’s claim for loss therefore, and notified plaintiff that defendant was not liable for such.loss? Answer:”
Following action as above indicated the court accepted the verdict and the answers to the special questions and ordered both be filed with the record in the case. It then discharged the jury ' and rendered judgment in favor of the defendant.
Thereafter plaintiff filed a motion for a new trial which, for all purposes here important, may be said to be founded on all grounds recognized by statute (G. S. 194, 60-3301). When this motion was overruled she perfected the instant appeal.
The theory on which this case was brought, defended, tried and determined in the court below has been previously related and all that now need be said on such subject is that the basic issue involved was whether appellant could recover for an alleged settling, cracking and breaking of the wall and/or walls (particularly the north wall) of the basement of a dwelling insured under the' provisions of a policy of insurance (see Section IV of the policy heretofore quoted) insuring her against all direct loss to the property caused by “collapse of building(s) or any part thereof.”
Moreover, in view of the disposition to be made of this appeal under the issues raised and presented, it is neither necessary nor required that we here detail the evidence adduced by the parties during the trial. With respect thereto it suffices to say that although no one contends the basement walls had fallen, there was evidence of a crack running lengthwise almost all the way around the basement walls and, with reference to the north wall, that «such wall had settled, cracked and bulged to the extent its condition created an unsafe and dangerous situation with a possibility of its caving or falling in. ■ ■
Before turning to the issues here involved it should be pointed out that, in both their briefs and on oral argument, the parties concede this is the first time this court has been called upon to pass upon any question involving the comparatively new collapse provision now used in fire insurance policies, hence this is a case of first impression in Kansas. Indeed counsel for appellant states in his brief that an exhaustive research has revealed only one case involving such clause, that case being Whaley v. Travelers Fire Insurance Company, U. S. Dist. Ct., D-Kan. No. W-1452 (decided November 21, 1958, and unreported) which we pause here to note has been affirmed, since this case was argued on appeal, by the United States Court of Appeals, Tenth Circuit (See Travelers Fire Insurance Company v. Whaley, 10 Cir., 272 F. 2d 288). Except for the November 21, 1958, decision in the Whaley case counsel for appellee cite no decisions involving the clause in question, hence we may assume they found no others.
It should also be noted that our extended review of the authorities discloses two additional decisions from other jurisdictions dealing with the force and effect to be given identical collapse provisions as used in other insurance policies. See Central Mutual Insurance Co. v. Royal, 269 Ala. 372, 113 So. 2d 680, and Nugent v. General Insurance Company of America, 8 Cir., 253 F. 2d 800.
The first question raised by appellant is that the trial court erred in its instructions to the jury. The all-decisive instruction, in fact the only one given by the court which is here complained of, is instruction 7, heretofore quoted, on “collapse.” Specifically, appellant’s position on this point is that it was improper for the trial court to add the last eleven words, “so as to render it unsuitable for use as a dwelling,” to instruction 7 and that the inclusion of those words was error prejudicing her substantial rights and therefore requires the granting of a motion for a new trial. Pointing out the general definitions appearing in well-recognized dictionaries and 2 cases (The Louisville Underwriters v. Durland et al., 123 Ind. 544, 24 N. E. 221, and Skelly Aplnt., v. Fidelity And Cos. Co., 313 Pa. 202, 169 Atl. 78), not involving the clause now under consideration, the essence of all contentions advanced by appellee respecting instruction 7 is that the word “collapse,” as used in the policy, is unambiguous %nd should be construed in its plain, ordinary and usual meaning, hence, since the instruction did not recognize or include in substance the definition of “collapse” as it appears in the dictionaries (see, e. g., Webster’s New International Dictionary, [Second Edition], Unabridged, p. 524) and in 14 C. J. S., pp. 1316 and 1317, the instruction was erroneous for that reason. Boiled down and stripped of all excess verbiage the gist of appellee’s position on this point is that there was no coverage under the collapse clause of the policy until the basement walls fell into a flattened, wrecked or distorted state.
In approaching a decision of the question to which we have heretofore referred and in disposing of contentions advanced by the parties with respect thereto we are not inclined to here labor the four decisions dealing with the import to be given the collapse clause of an insurance policy such as is here involved. They speak for themselves and can be found in the books as cited. Suffice it to say there is an equal division among the courts rendering those decisions on the subject. To illustrate in Central Mutual Insurance Co. v. Royal, supra, and Nugent v. General Insurance Company of America, supra, each court determined in effect that facts similar to those here involved did not,bring the plaintiff’s claims within the coverage of the collapse clause of the policies in question; whereas in the Whaley case, both in the U. S. Dist. Ct, D-Kan., and in the United States Court of Appeals, Tenth Circuit, it was held that under similar facts like claims were covered by such a clause in a policy. Moreover, it is interesting to note that in the Royal case the defendant’s contention the collapse clause of an insurance policy was unambiguous, was upheld and the judgment of the lower court in favor of the plaintiff reversed on the ground that, since there was no proof the house involved had fallen down or caved in, there was no collapse of the house or any part thereof within the meaning of the policy; whereas in the Whaley case, in affirming the decision of the U. S. Dist. Ct., D-Kan. the United States Court of Appeals Tenth Circuit, in effect rejected the narrow abstract construction of the word “collapse” and defined the collapse clause of the policy in the sense it concluded the parties intended when they executed the contract.
Upon careful analysis and consideration of the decisions to which we have referred in the preceding paragraph of this opinion, and others cited by counsel for the parties regarding their respective positions, we are disposed to place our own construction on the collapse clause of the involved policy.
In view of the conclusion just announced it can now be stated we reject appellee’s contention that such clause is unambiguous and hold that it is susceptible of more than one construction. In that situation the manner in which the clause is to be construed and the test to be applied in construing it is well-established. See Braly v. Commercial Casualty Ins. Co., 170 Kan. 531, 227 P. 2d 571, which holds:
“Where it is susceptible of more than one construction the language of a policy of insurance, like any other contract, must, if possible, be construed in such manner as to give effect to the intention of the parties at the time it was made as expressed therein.
“In determining intention of the parties under the rule announced in paragraph 5 of this syllabus the test is not what the insurer intended the words of the policy to mean but what a reasonable person in the position of the insured would have understood them to mean.” (Syl. ¶¶ 5, 6.)
When construed on the basis of intention, as required by the foregoing decision, and others therein cited, we believe the clause “collapse of building or any part thereof” as used in the involved insurance contract is to be interpreted as comprehending that, if brought about by unusual and extraordinary circumstances which the parties to that agreement could not normally expect or foresee on the date of its execution, the settling, falling, cracking, bulging or breaking of the insured building or any part thereof in such manner as to materially impair the basic structure or substantial integrity of the building is to be regarded as a “collapse” of the building within the meaning of that word as used in such clause of the policy. We further believe that questions relating to whether that condition came about under the previously related conditions and circumstances are questions of fact for the jury and the trial court.
Having reached the conclusion just announced we have no difficulty whatsoever in concluding that, whatever may be said respecting the propriety of instruction 7 as a whole, the trial court’s action, in adding to such instruction the words “so as to render it unsuitable for use as a dwelling,” was clearly erroneous. - Ry the inclusion of such words it added something more to the collapse clause of the policy than the clause itself required, i. <?., that the “collapse” contemplated by its terms be so serious in character as to cause the entire building to be unsuitable for use as a dwelling. Moreover, it is to be noted the policy itself insured against all direct loss to the property covered caused by collapse of building(s) or any part thereof. The emphasized portion of the policy itself precludes the giving of the portion of the instruction complained of by the appellant.
It is neither necessary nor required that we here labor contentions advanced by appellee that the error just mentioned does not require the granting of a new trial. Nor are we inclined to burden our reports with arguments made by appellant that having been granted a new trial she is now entitled to judgment on the undisputed facts. All that need be said is that we have carefully considered such contentions and find that, under the existing facts and circumstances, they lack merit and cannot be upheld.
In conclusion it should be stated we have disregarded, not overlooked divers other questions raised by the parties relating to requested instructions and other matters relating to rulings'the trial court may or may not be called upon to make in connection with a new trial. This, we may add, is in accord with the settled policy of this court. See Bailey v. Talbert (this day decided), 185 Kan. 610, 347 P. 2d 415, where it is held:
' “When a new trial is ordered by the supreme court, the case is left for trial upon issues framed by the pleadings as though no trial had been had and the parties are restored to the same condition they were in before the first trial was had or judgment rendered.” (Syl. ¶ 1.)
And in the opinion said:
. . When a new trial is ordered by an appellate court, the parties are restored to the same condition they were in before the former trial was had or judgment rendered. (Bank v. Edwards, 84 Kan. 495, 497, 115 Pac. 118.) When this court ordered a new trial in the court below, the case was left for trial upon issues framed by the pleadings as though no trial had been had. (Commander-Larabee Milling Co. v. McBride, 152 Kan. 709, 107 P. 2d 868, cited and followed in Nicholas v. Latham, 179 Kan. 348, 353, 295 P. 2d 631.)”
The judgment is reversed with directions to grant a new trial and proceed in accord with the views expressed in this opinion.
It is so ordered. | [
-12,
120,
-12,
12,
24,
96,
56,
18,
91,
-79,
-89,
81,
-71,
-64,
28,
111,
-42,
41,
-63,
98,
-105,
-93,
19,
10,
-42,
-69,
89,
-59,
-79,
92,
116,
-41,
72,
32,
-118,
-43,
-26,
-56,
-59,
92,
14,
15,
-102,
-28,
-39,
96,
48,
107,
48,
79,
81,
-99,
115,
40,
28,
-57,
73,
44,
91,
-71,
82,
-71,
-119,
5,
127,
21,
33,
5,
-106,
-57,
-8,
42,
-112,
49,
0,
-24,
115,
38,
-106,
100,
103,
-117,
0,
98,
99,
33,
37,
-81,
-20,
24,
38,
87,
-81,
-90,
-78,
8,
33,
45,
-67,
-99,
117,
21,
7,
124,
-12,
-123,
95,
108,
1,
-54,
-10,
-15,
-113,
104,
25,
7,
-17,
3,
-94,
117,
-49,
-96,
92,
71,
49,
-101,
30,
-8
]
|
The opinion of the court was delivered by
Schroeder, J.:
In this action the heirs of a testator challenge the validity of the trust provisions in the testator’s will.
The question presented is whether certain devises and bequests in the testator’s will establish charitable trusts or private trusts.
The decedent, Stanton E. Freshour, died testate on the 23rd day of April, 1953,' at Hays, Kansas, and was survived by his two children. He was a resident of Ellis County, Kansas, and at the time of his death owned considerable real estate in Ellis County. His last will and testament was dated' February 6, 1952, and was ad mitted to probate in the probate court of Ellis County on the 11th day of June, 1953. It was there established that the decedent was of legal age and sound mind and not under any restraint at the time he executed his last will and testament.
By the terms of the will the decedent devised to his daughter, Esther Gatewood, appellee, real estate which was appraised at $2,500. He also devised to his son, Lisle C. Freshour, appellee, real estate which was appraised at $8,000.
Omitting formal provisions of the will and the above devises to his children, the will provided:
“Fourth: Unto Bishop Frank A. Thill or his successor as Bishop of the Diocese of Salina, I give, bequeath and devise the following described real estate situate in Ellis County, Kansas, to be held, used, or disposed of for the benefit of the Parish of Saint Joseph’s Catholic Church, Hays, Kansas, to-wit:
“The South Half (S/2) of Section Twenty-one (21) in Township Fourteen (14) South, Range Twenty (20) West of the 6th P. M.
“Fifth: Unto the trustees of the First Methodist Church, Háys, Kansas, I give, bequeath and devise the following described real estate situate in Ellis County, Kansas, to be held, used, or disposed of for the benefit of the members of the First Methodist Church, Hays, Kansas, to-wit:
“The North Half (N/2) Section Thirty-five (35) in Township Fourteen (14), South, Range Twenty (20) West of the 6th P. M.
“Sixth: Unto Bishop Frank A. Thill or his successor as Bishop of the Diocese of Salina, I give, bequeath and devise the following described real estate situate in Ellis County, Kansas, to be held, used, or disposed of for the benefit of the Parish of Saint Joseph’s Catholic Church, Hays, Kansas, to-wit:
“The East Half of the Southeast Quarter (SE/4) of Section Twenty-six (26) in Township Fourteen (14) South, Range Twenty (20), West of the 6th P. M.
“Seventh: Unto the Trustees of the First Methodist Church,. Hays, Kansas, I give, bequeath and devise the following described real estate situate in Ellis County, Kansas, to be held, used, or disposed of for the benefit of the members of the First Methodist Church, Hays, Kansas, to-wit:
“The West Half of the South East Quarter (SE/4) of Section Twenty-six (26) in Township Fourteen (14) South, Range Twenty (20), West of the 6th P. M.
“Eighth: All the rest, residue and remainder of my estate, personal, real or mixed, wheresoever situate, I give, devise and bequeath as follows:
“(a) One Third part hereof to my children, Lisle C. Freshour and Ester Gatewood, share and share alike.
“(b) One third part thereof to Bishop Frank A. Thill or his successor as Bishop of the Diocese of Salina, to be held, used, or disposed of for the benefit of the Parish of Saint Joseph’s Catholic Church, Hays, Kansas.
(c) The remaining one third-part thereof to the Trustees of the First Methodist Church, Hays, Kansas, to be held, used, or disposed of for the benefit of the members of the First Methodist Church, Hays, Kansas.” (Emphasis added.)
The appraised value of the farm lands devised to the Trustees of the First Methodist Church totaled $36,800, and the farm lands devised to the Bishop of the Diocese of Salina for the Parish of Saint Joseph’s Catholic Church were appraised at $20,800.
The heirs of the testator, appellees herein, attacked the trust provisions of the above will in the probate court, contending they were void, by answering the executor’s petition for final settlement.
The probate court held valid charitable trusts were created by the provisions of the testator’s will and ordered distribution in accordance with the terms of the will. The district court on appeal held the trust provisions created private trusts and as such were against the rule of perpetuities, among other things, and by reason thereof void. It is from the order of the district court that the appellants have taken their appeal to this court.
The parties concede that the testator intended by the controversial provisions of the will heretofore quoted to create trusts. The issue is whether the trusts created were valid charitable trusts or private trusts.
It is not disputed that the Trustees of the First Methodist Church of Hays, Kansas, are the governing body of that church and hold title to all real estate owned by the church; further, that the Bishop of the Diocese of Salina is the proper official to hold real estate title for Saint Joseph’s Catholic Church of Hays, Kansas. Bishop Frank A. Thill, named in the testator’s will, died on May 21, 1957, after the death of the testator, and this action was revived in the name of his successor, Bishop Frederick William Freking.
For reasons hereafter stated we think the decision of the probate court was correct.
The trial court found the First Methodist Church of Hays, Kansas, to be a religious corporation, and the Saint Joseph’s Catholic Church of Hays, Kansas, to be an unincorporated religious body. We take judicial notice that religious corporations and unincorporated religious societies are designed and organized for religious and educational purposes.
The district court adopted the theory of the appellees, that the provisions of the will in question were ambiguous, and admitted extrinsic evidence as to the testator’s intention. The court found it was the intention of the testator that his property be devised to the individual members of the two churches designated in the will. With respect to each trust provision the district court concluded: “It is too indefinite because of lack of any controlling terminology in its objects; uncertainty' of beneficiaries; and it violates the rule against perpetuities.”
When a court is called upon to determine the force and effect to be given the terms of a will, the cardinal rule of construction to which all other rules are subordinate is that the intention of the testator as garnered from all parts of the will is to be given effect, and drat doubtful or inaccurate expressions in the will shall not override the obvious intention of the testator. In construing a will the court must put itself as nearly as possible in the situation of the testator when he made the will, and from a consideration of that situation and from the language used in every part of the will, determine as best it can the purpose of the testator and the intentions he endeavored to convey by the language used. (Beall v. Hardie, 177 Kan. 353, 279 P. 2d 276; Johnston v. Gibson, 184 Kan. 109, 334 P. 2d 348, and cases cited therein.)
In determining the force and effect to be given the terms of a will, the court’s first duty is to survey the instrument in its entirety and ascertain whether its language is so indefinite and uncertain as to require the employment of rules of judicial construction. Where, from an analysis of the entire instrument, no ambiguity or uncertainty is to be found in its language, the intention of the testator being clearly and unequivocally expressed, there is no occasion to employ rules of judicial construction and the will must be enforced in accordance with its terms and provisions. (In re Estate of Porter, 164 Kan. 92, 187 P. 2d 520; Johnston v. Gibson, supra; and cases cited in the foregoing authorities.)
The rules relating to the interpretation and construction of wills, insofar as applicable to the facts in the instant case, have been reviewed and stated by this court many times. To further elaborate upon them herein would serve no useful purpose. They may be found in In re Estate of Porter, supra; and Johnston v. Gibson, supra, to which reference is made.
There is no policy in this state to keep any class of property in a favored channel of inheritance as against a will, and when there is a will the presumption is against intestacy. (Kirkpatrick v. Kirkpatrick, 112 Kan. 314, 211 Pac. 146; and In re Estate of Sowder, 185 Kan. 74, 340 P. 2d 907.) The testator is presumed to have known the law of Kansas at the time he signed his will. (In re Estate of Sowder, supra.)
From an analysis of the entire instrument in question, we find no ambiguity or uncertainty in its language. Taking-into consideration the situation of the testator at the time he made his will and the language used in every part of the will, the purpose and intention of the testator can be determined without resort to extrinsic evidence. Application of well-founded principles of law to the interpretation of the testator’s will leads to the conclusion that it was the obvious intention of the testator to establish valid charitable trusts by the provisions here in controversy. Before proceeding to a review of the law on charitable trusts, it must be observed that our considerations are confined to the language used in the will. Extrinsic evidence admitted by the tidal court must be disregarded, it being immaterial.
A charitable trust is defined in Restatement of Law, Trusts, § 348, p. 1095, as follows:
“A charitable trust is a fiduciary relationship with respect to property arising as a result of a manifestation of an intention to create it, and subjecting the person by whom the property is held to equitable duties to deal with the property for a charitable purpose.”
Included among the purposes which are charitable are the advancement of education and the advancement of religion. (Restatement of Law, Trusts, § 368, p. 1140; Washburn College v. O’Hara, 75 Kan. 700, 90 Pac. 234; Nuns of St. Dominic v. Younkin, 118 Kan. 554, 235 Pac. 869; Barnhart v. Bowers, 143 Kan. 866, 57 P. 2d 60; In re Estate of Porter, supra; and Commercial National Bank v. Martin, 185 Kan. 116, 340 P. 2d 899.)
A trust may be valid as a trust for the advancement of religion although in the terms of the trust it is not stated in specific terms that the purpose is religious. Thus, the fact that a legatee or devisee is a religious organization or a person holding a religious office may indicate that it is to be applied for religious purposes, although by the terms of the trust its application is not specifically so limited. (Restatement of Law, Trusts, § 371c, p. 1150; and 4 Scott on Trusts [2nd Ed.], §371.3.) The foregoing principle of law was applied in Lehnherr v. Feldman, 110 Kan. 115, 121, 202 Pac. 624.
Any trust which comes within an approved definition of a charity and which is for the benefit of an indefinite class of persons sufficiently designated to indicate the intention of the donor, is a charitable trust. (14 C. J, S., Charities, § lc, p. 413.)
A charity is broadly defined as a gift for general public use. In the legal sense a charity may be more fully defined as a gift to be applied consistently with existing laws for the benefit of-an indefinite number of persons, either by bringing their minds or hearts under the influence of education or religion, by relieving their bodies from disease, suffering or constraint, by assisting them to éstablish themselves in life, or by erecting or maintaining public buildings, or works or otherwise lessening the burdens of government. (Nuns of St. Dominic v. Younkin, supra; Jackson v. Phillips & others, 96 Mass. 539, 555; and 14 C. J. S., Charities, § 1, p. 410.)
It is essential to a valid charitable gift that it'be for a purpose recognized in law as charitable. To constitute a charitable use or purpose, it must be a public as distinguished from a private one. It must be for the public use or benefit, and it must be for the benefit of an indefinite number of persons. However, this does not prevent the donor from selecting some particular class of the public and limiting his benefaction to that class, provided the class is composed of an indefinite number of persons rather than certain designated and named individuals. (14 C. J. S., Charities, § 12, p. 439; See Washburn College v. O’Hara, supra; Nuns of St. Dominic v. Younkin, supra; Clark v. Watkins, 130 Kan. 549, 287 Pac. 244; Hollenbeck v. Lyon, 142 Kan. 352, 47 P. 2d 63; Barnhart v. Bowers, supra; In re Estate of Porter, supra; see, also, 4 Scott on Trusts [2nd Ed.], §375.2.)
The most important differences between private trusts and charitable trusts relate to the validity of the trust. There cannot be a private trust unless there is a beneficiary who is definitely ascertained at the time of the creation of the trust or definitely ascertainable within the rule against perpetuities (See, Restatement of Law, Trusts, § 112, p. 288). On the other hand, a charitable trust can be created although there is no definite or definitely ascertainable beneficiary designated (See, Restatement of Law, Trusts, § 364, p. 1136), and a charitable trust is not invalid although by the terms of the trust it is to continue for an indefinite or unlimited period (See, Restatement of Law, Trusts, § 365, p. 1136). Trusts for public charitable purposes, being for objects of permanent interest and benefit to the public, and perhaps being perpetual in their duration, are upheld in certain circumstances under which private trusts would fail. (10 Am. Jur., Charities, § 6, p. 589.) Thus, it has been held a Kansas municipality has power to accept a trust and administer it in perpetuity if the purpose of the trust created by such bequest is for a public, charitable use. (Treadwell v. Beebe, 107 Kan. 31, 190 Pac. 768.) In Commercial National Bank v. Martin, supra, it was held a charitable trust for educational purposes could not be declared ineffective because the use might be in perpetuity, inasmuch as charitable trusts are not subject to the rule. (Citing, In re Estate of Woods, 181 Kan. 271, 311 P. 2d 359; 2 Bogert, The Law of Trusts and Trustees, § 352, pp. 518-520; 70 C. J. S., Perpetuities, § 30, pp. 613, 614.) As long as the property given in trust vests in the trustee immediately or within the period prescribed by the rule, trusts for charitable uses are not obnoxious to the rule although they may continue forever and beneficial interests may arise under them at a remote time.
The law must find in the trust, if it is to achieve the status of being “charitable,” some social advantages which more than offset the detriments which arise out of the special privileges accorded to that trust. (2A Bogert, The Law of Trusts and Trustees, §361, p. 3.) While the human beings who are to obtain advantages from charitable trusts may be referred to as beneficiaries, the real beneficiary is the public and the human beings involved are merely the instrumentalities from whom the benefits flow. Whether a gift is or may be operative for the public benefit is a question to be answered by the court.
When once a devise or grant is determined to constitute a charitable trust, courts look with liberality on the instrument creating it for the purpose of carrying out the intention of the donor. Technical rules of construction, which have often prevented conveyances or bequests from taking effect, are disregarded. (Lehnherr v. Feldman, supra; In re Estate of Porter, supra; and Commercial National Bank v. Martin, supra.) Moreover, when it is ascertained that the donor intended to create a public charity it will not be allowed to fail because the trustee is indefinite or uncertain or incapable of taking. (Lehnherr v. Feldman, supra; Restatement of Law, Trusts, § 397, p. 1190; 4 Scott on Trusts [2nd Ed.], §397, p. 2776; and see, Barnhart v. Bowers, supra.)
The contention by the appellees that the trust intended for the Methodist Church of Hays must fail because of the uncertainty of the trustees, none being individually named, overlooks the maxim that equity will never allow a trust to fail because of the want of a trustee. Furthermore, the term “Trustees of the First Methodist Church of Hays, Kansas” is a sufficient designation to determine who the trustees are even though the trustees may be composed of different individuals from time to time. (See Lehnherr v. Feldman, supra, at page 117.)
The foregoing principles of law relating to charitable trusts have either been stated or applied in the Kansas cases cited in this opinion, and while academic, assist in dispelling arguments advanced by the appellees in support of the trial court’s decision.
The crux of appellees’ argument lies in the isolation of the words “parish” and “members,” which they have dissected from the will, presented inversely from the chronological order' in which the testator used them, and, with the assistance of extrinsic evidence admitted by the trial court, molded into a theory that the testator intended the individual members of the respective churches in Hays, Kansas, to benefit from the trusts. It is argued the construction of the will which is proposed and asserted by the two churches requires the word “parish” and the word “members,” in the respective devises, to be excised and eliminated.
The word “parish” has been defined in Webster’s New International Dictionary; Second Edition, as:
“3. (a) an administrative district of various churches, especially a part of a diocese', under the charge of a priest of minister; (b) the members of the congregation of any church, without regard to the territory in which they live; congregation; (c) the territory in which the members of a congregation live.”
In Milford v. Godfrey, 18 Mass. 91, a precinct or parish was said to be a corporation established solely for the purpose of maintaining public worship and its powers were limited to that object. It must also be noted that parishioners are referred to as members of a parish.
The word “member” is defined in Webster’s New International Dictionary, Second Edition, as:
“3. a person belonging to some association, society, community, party, etc.”
Interpreting the will in accordance with the rules of construction heretofore stated, the gifts for the benefit of the “Parish” of Saint Joseph’s Catholic Church were clearly intended to make Saint Joseph’s Catholic Church the beneficiary of the trust.
Referring to the words used in the will concerning gifts to the Methodist Church, it must be noted the testator used the plural, “members.” Without any identification the term “members” signifies an organization.' The word “members” used without limitation in connection with the Methodist Church has' reference' to the whole of the church membership, the entire church body.
Who the members of a religious society are must, as a general rule, be determined by reference to the rules, constitution, or bylaws of the society, and by reference to the statutes governing such bodies. The essence of the relation of members in a religious society is held to be the agreement of - the parties, including financial support in some form where the statute requires it, and generally a profession of faith, adherence to the doctrines of the church, and a submission to its government are required. (76 C. J. S., Religious Societies, §11, p. 755.)
In our opinion, the testator’s use of the words “parish” and “members” in association with the organizations named in the will was intended to refer to the respective ecclesiastical societies, and we are confident he intended the word “members” to have the same connotation as the word “parish.” We think there can be no doubt that the testator intended his bequests and devises to go to the two organizations named, and that he intended the two organizations to be his beneficiaries.. (See, Atwater v. Russell, 49 Minn. 57, 51 N. W. 629.)
The words “parish” and “members” were simply used by the testator to limit the trustees in the use of the trust property to the respective congregations, rather than to permit the trustees to use it for the benefit of other localities. It was his intention to confine the trustees in activities of the two religious -organizations to the area which they served.
It remains to inquire whether the respective bequests and devises are void because the testator designated no uses to which the property should be applied. The appellees argue the phrase “for the benefit of” has plain meaning, but the trusts created are restricted to the two distinct class groups and no language, not even a single word, is supplied by the testator to indicate that religious trusts were intended.
The testator gave his property under the paragraphs in question to “Bishop , Frank A. Thill or his successor . . . for the benefit of the Parish of Saint Joseph’s Catholic Church, Hays, Kansas,” and to the “trustees of the First Methodist Church, Hays, Kansas . . . for the benefit of the members of the First Methodist Church, Hays, Kansas.”
A designation and limitation of the uses to which the property may be applied is found in the name and nature of the devisees and legatees. As the term “church” imports an organization for relig ious purposes, a gift to a church or a church society by name, without declaration or restriction as to the use to be made'of the subject matter of the gift, must be deemed to be a gift for the promotion of the purposes for which the church was organized. (Lehnherr v. Feldman, supra; and 14 C. J. S., Charities, §17, p. 449.) Courts look with favor upon Rusts for charitable purposes and construe language creaüng such Rusts most favorable to their validity. (Hollenbeck v. Lyon, supra; and Lehnherr v. Feldman, supra.)
It was explicitly stated in each of the devises and bequests to the respecüve Rustees of two churches the property was to be “held, used, or disposed of.” This gives the Rustees discreRonary powers to use or dispose of the properties and devote the proceeds to the objects of the trust. The income or other benefits derived from the Rust property can be used by the trustees only for religious purposes or for the promotion of the purposes for which the respecüve churches were organized. Nowhere in the will is language used which would indicate an intenüon of the testator that the individual members of the two churches could take possession of the property, or that the members of the respecüve churches could obtain a private gain or benefit or proprietary interest therein such as would pass to their heirs upon the death of the present members, or any other members, of the respective churches.
The will of the testator, found to have been duly admitted to probate, does not support the conclusion of the Rial court that the Rust provisions set forth therein are void, or the judgment that the property specified in such provisions should pass by intestacy to the appellees.
The judgment of the Rial court is reversed. | [
-12,
108,
-12,
12,
10,
96,
-70,
-102,
114,
-27,
39,
83,
-17,
-38,
85,
47,
118,
-83,
64,
123,
-9,
-77,
6,
49,
-46,
-13,
-15,
-35,
112,
93,
-90,
-9,
108,
32,
10,
-43,
-26,
-49,
-51,
16,
-116,
72,
8,
-41,
-37,
80,
54,
99,
86,
25,
-59,
-66,
-13,
11,
28,
-22,
108,
44,
-53,
-70,
92,
-72,
-82,
-123,
127,
23,
1,
0,
-108,
-125,
64,
-86,
-100,
125,
-126,
-20,
123,
-74,
-122,
-12,
1,
-55,
41,
118,
98,
48,
21,
-27,
-96,
-120,
14,
55,
37,
-25,
-73,
88,
-32,
13,
-74,
-98,
116,
80,
3,
-12,
-26,
20,
-104,
44,
5,
-113,
-42,
-95,
-103,
60,
-118,
11,
-29,
-19,
32,
113,
-53,
70,
92,
71,
80,
-109,
-106,
-79
]
|
The opinion of the court was delivered by
Pkige, J.:
This appeal is from an order sustaining a demurrer to a petition in an action for damage to an automobile.
Defendent Lawrence lives on Louisiana Street in Lawrence. Defendant Highman was engaged in removing a tree from Lawrence’s yard. It fell into the street just as plaintiff’s son drove by in plaintiff’s automobile. It struck the car causing damage. Plaintiff sued both Lawrence and Highman.
Recause of the question involved, the petition, omitting formal parts, is set out in full:
“Comes now the plaintiff and for his cause of action alleges:
“1. That he is a resident of Leavenworth County, Kansas and resides at Leavenworth, Kansas; that the defendant lames Highman is a resident of Douglas County, Kansas and resides at 1047K Delaware Street, Lawrence, Kansas; that the defendant George W. Lawrence is a resident of Douglas County, Kansas, and resides at 2101 Louisiana Street, Lawrence, Kansas.
“2. That at all the times hereinafter mentioned the plaintiff was the owner of a 1956 Mercury car.
“3. Plaintiff states that on May 8, 1957, the defendant Highman was engaged in removing trees from the front yard of the premises owned by the defendant Lawrence at 2101 Louisiana Street in Lawrence, Kansas. Plaintiff further states that about 2:45 P. M. on said day his son was driving plaintiff’s car west on Louisiana Street and that as he was driving past the Lawrence premises, the defendant Highman, his agents and employees felled a tree in the front yard of the Lawrence premises and said tree fell out into Louisiana and onto the passing car of the plaintiff, causing severe damage to plaintiff’s vehicle.
“4. Plaintiff states that the proximate cause of the accident and damage to plaintiff’s vehicle was due to the negligence of the defendant Highman in the following respects:
“(a) Failing to have men or road signs out on Louisiana Street so as to warn passing motorists and the plaintiff’s driver in particular, of the danger.
“(b) By causing said tree to fall into the street when he knew or should have known it would strike plaintiff’s passing vehicle.
“(c) Failing to use sufficient men and equipment so as to fall said tree away from the street instead of into it, when they knew or should have known it would strike plaintiff’s vehicle.
“5. That because of the intrinsically dangerous work, to wit: removing and falling large- trees right near the public streets the owner of the premises, the defendant Lawrence, was obligated to see that said work was carefully performed and because of the fact that said work was not carefully performed in a workmanlike manner, defendant Lawrence is also hable to this plaintiff for the negligence of the defendant Highman.
“6. That as a result of the negligence of the defendants, plaintiff’s vehicle was damaged in the amount of $269.39.
“Wherefore, the plaintiff prays for judgment against the defendant for $269.39 and costs.”
Defendant Lawrence demurred to the petition on the ground it failed to state a cause of action as to him.
This demurrer was sustained and plaintiff was given fifteen days in which to amend. Instead of amending he has appealed.
The record is silent as to any pleadings being filed by defendant Highman,. and he is not a party to this appeal.
Prior to filing the demurrer defendant Lawrence filed a motion to require plaintiff to make paragraph 5 of the petition more definite and certain in several respects. This motion was overruled without argument. Later, when ruling on the demurrer, the trial court filed a written memorandum which indicated that upon further consideration it was of the opinion the mentioned motion should have been sustained, and therefore paragraph 5 of the petition was to be strictly construed.
Notwithstanding, and irrespective of the contentions of the parties regarding application of the so-called “strict versus liberal construction” rule — which, we pause to note, seems to be greatly “overworked” in most cases — the real question is whether this petition states a cause of action against defendant Lawrence, the owner of the premises from which the tree was being removed by defendant Highman.
As noted by the trial court, and we think it will be conceded, Lawrence could be obligated, if at all, only in the event he had employed Highman in some capacity to remove the tree. For all the petition alleges, Highman may have been an employee of the city engaged in removing a diseased tree, or, for that matter, may have been a trespasser. The petition of course “assumes” some sort of employment relationship between Lawrence and Highman, but that is as far as it goes.
In his brief plaintiff concedes the petition does not allege the relationship of agent, servant or employee, but contends it does allege that of employer and independent contractor — that is, Lawrence was the contractee and Highman the contractor. We will, for purposes of discussion, assume that such is the fact.
The rule respecting liability to third parties for damage or injury resulting from negligence of the contractor is well settled.
In 57 C. J. S., Master and Servant, § 584, p. 353, it is said that the general rule is that a contractee is not liable for the torts or negligence of his contractor of his contractor s servants.
In 27 Am. Jur., Independent Contractors, § 27, p. 504, it is said that the general rule is that an employer is not liable for the torts of an independent contractor or the latter’s servants.
See also the annotation at 18 A. L. R. 801.
There are a number of exceptions to the rule — one of which is that an employer is liable for injuries caused by the failure of an independent contractor to exercise due care with respect to the performance of work which is “inherently or intrinsically dangerous.” (27 Am. Jur., Independent Contractors, § 39, p. 517; 57 C. J. S., Master and Servant, § 590, p. 359, and see the annotation at 23 A. L.R. 1084.) .
This court’s decisions are in accord with both the rule and mentioned exception.
■ In the leading case of Laffery v. Gypsum Co., 83 Kan. 349, 111 Pac. 498, 45 L. R. A. (NS) 930, Ann. Cas. 1912A 590, it was held:
“The general rule is that when a person -lets out work to another, the contractee reserving no control over the work or workmen, the relation of contractor and contractee exists, and not that of master and servant, and the contractee is not liable for the negligence or improper execution of the work by the contractor.” (syl. 1.)
“To the foregoing rule there are many exceptions and limitations, one of which is that an owner, or a contractee, is responsible for injuries to a third party, caused by work done by an independent contractor, where the contract directly requires the performance of work intrinsically dangerous, however skillfully done.” (syl. 2.)
The rule of the Laffery case has been recognized and adhered to in numerous later decisions. We mention but a few—Nelson v. Cement Co., 84 Kan. 797, 115 Pac. 578; Pottorff v. Mining Co., 86 Kan. 774, 122 Pac. 120; Laffery v. Gypsum Co., 92 Kan. 475, 141 Pac. 241 (second appearance of the case); Brownrigg v. Allvine Dairy Co., 137 Kan. 209, 19 P. 2d 474, and Smith v. Brown, 152 Kan. 758, 761, 107 P. 2d 718.
Starting, then, with the premise as contended for by plaintiff— that the relationship of contractee and contractor is pleaded — application of the rule means that Lawrence, the contractee, would not be liable to plaintiff for the negligence of Highman, the contractor, unless the employment related to work which was inherently and intrinsically dangerous.
On the question of what type of work is or is not considered to be inherently or intrinsically dangerous, courts have found no rule of universal application by which they may abstractly draw a line of classification in every case. Generally speaking, the proper test is whether danger “inheres” in performance of the work, and important factors to be understood and considered are the contemplated conditions under which the work is to be done and the known circumstances attending it. It is not enough that it may possibly produce injury. Stated another way, intrinsic danger in an undertaking is one which inheres in the performance of the contract and results directly from the work to be done — not from the collateral negligence of the contractor. (27 Am. Jur., Independent Contractors, § 39, p. 518; 57 C. J. S., Master and Servant, § 590, b. (1), p. 361, and the annotation at 23 A. L. R. 1084,1095.)
To the same effect is the Laffery case, above, where, in considering the test, it was held:
“The mere liability to injury from doing the work contracted for can not be the test, for injuries may happen in any undertaking, and many are attended with great danger if carelessly managed, although with proper care they are not specially hazardous.” (syl. 3.)
“The intrinsic danger of the undertaking upon which the exception is based is a danger which inheres in the performance of the contract, resulting directly from the work to be done and not from the collateral negligence of the contractor.” (syl. 4.)
So much for the basic rule and mentioned exception — in cases where third parties are injured by the alleged negligence of an independent contractor.
The question here — assuming, for the sake of argument, the relationship of contractee and contractor is pleaded — is whether plaintiff has pleaded sufficient facts to bring himself within the exception relating to work inherently and intrinsically dangerous.
Paragraph 5 of the petition merely refers to “removing and falling large trees right near the public streets” as being “intrinsically dangerous work,” which, standing alone, amounts to nothing more than a conclusion. The mere statement that doing a certain thing is “intrinsically dangerous” does not constitute a factual statement which justifies the conclusion. As was said in the Laffery case and other authorities cited above, an undertaking cannot be termed inherently dangerous merely because it may possibly produce injury — rather, the intrinsic danger of the work upon which the exception is based is danger which inheres in its' performance resulting directly from the work to be done, and not from the negligence of the contractor.
Our code (G. S. 1949, 60-704) provides that a petition must contain a statement of the facts constituting the cause of action in ordinary and concise language. In Preston v. Shields, 159 Kan. 575, 156 P. 2d 543 (syl. 1), it was held that it is the duty of the pleader to state the premises in clear and concise language, and that it is the province of the court to declare the conclusions.
With respect to the point here involved, allegations of the petition are clearly insufficient to state a cause of action against defendant Lawrence and his demurrer was properly sustained.
The judgment is affirmed. | [
-16,
104,
-8,
13,
10,
104,
106,
122,
113,
-109,
101,
83,
-17,
-53,
13,
57,
-6,
-67,
-15,
123,
-11,
-77,
15,
-110,
-46,
-13,
121,
-35,
-79,
72,
116,
-10,
78,
48,
10,
-107,
-122,
72,
-59,
-36,
-114,
6,
9,
116,
-39,
-24,
-76,
88,
70,
11,
49,
-97,
-13,
42,
24,
-29,
-19,
44,
75,
-87,
-15,
-15,
-87,
21,
127,
22,
33,
4,
-100,
35,
88,
41,
-112,
-71,
32,
-24,
114,
-90,
-126,
-12,
9,
-103,
72,
-10,
102,
34,
61,
-81,
-20,
-120,
14,
-16,
15,
-90,
-74,
24,
67,
33,
-98,
-97,
125,
16,
3,
126,
-8,
5,
30,
120,
3,
-49,
-112,
-111,
-49,
52,
22,
9,
-21,
-115,
32,
97,
-35,
-30,
92,
6,
58,
27,
-113,
-12
]
|
Per Curiam:
The question presented by this appeal is whether a judgment creditor, who is barred by K. S. A. 1974 Supp. 60-2414 (o) from foreclosing certain real property belonging to a judgment debtor, can garnish proceeds obtained by the debtor as a result of a voluntary sale of the real property.
The facts are not in dispute. In October, 1969, appellee, John H. Ross, purchased a combine under a retail installment sales contract from Auld Chevrolet of Wakefield, Kansas. Subsequently appellant-garnishor, International Harvester Credit Corporation (I. H. C. C.), obtained the sales contract and its intrinsic security agreement by assignment. In March, 1971, Ross defaulted and refused to make further payments on the machine. I. H. C. C. initiated a replevin action in district court to recover the combine. The replevin action resulted in eventual forced sale of the combine and a deficiency judgment against Ross of approximately $2,000.00.
During the pendency of I. H. C. C.’s action the Federal Land Bank of Wichita brought suit to foreclose a mortgage on certain land which comprised Ross’ homestead. I. H. C. C. was joined as a party defendant by the bank in the foreclosure suit since it had acquired a possible interest in the real property by virtue of its pending replevin action against Ross. I. H. C. C. filed a disclaimer of interest in the foreclosure poceeding and was dismissed as a party.
In October, 1971, the trial court entered a judgment in rem in favor of the Federal Land Bank and foreclosed the mortgage it held against Ross’ land. In the journal entry the trial court ordered that upon expiration of the period of redemption fixed by the court all defendants to the action should be forever foreclosed from claiming any right, title, interest or lien in the subject real property. Ross was allowed eighteen months time to redeem the property. He exercised his right under K. S. A. 1974 Supp. 60-2414 (a) and redeemed the realty in May, 1973, and again became the fee owner. Some ten months later he voluntarily sold the realty in order to repay indebtedness he incurred when he borrowed money to redeem the land. Pursuant to the sale $3,000.00 due Ross was held in escrow by appellee-garnishee Elmer Anderson.
I. H. C. C. thereafter attempted to garnish the funds held by Anderson to satisfy the deficiency judgment it held as a result of the earlier replevin action. The garnishee filed his reply and a reply was filed by Ross requesting dismissal of the garnishment. The trial court concluded that I. H. C. C.’s order should be dismissed basing its decision on the following findings:
“(11) Since the above-described real estate has been sold on order of sale as a result of the Federal Land Bank mortgage foreclosure case and the plaintiff herein did not exercise its privilege of redeeming from the sale of the real estate which it was obligated to do to satisfy its judgment insofar as any lien or claim upon this real estate is concerned, then this proceeding which, in effect, imposes a lien upon the proceeds from the sale of the real estate, appears to be an attempt to make the same real estate liable for a judgment inferior to the Federal Land Bank mortgage under which the foreclosure sale was made. K. S. A. Supp., 60-2414 (o) provides that ‘real estate once sold on order of sale, special execution, or general execution, shall not again be liable for sale for any balance due upon the judgment or decree upon which the same is sold, or any judgment or lien inferior thereto, and under which the holder of such lien has a right to redeem within the six (6) months as herein provided.’
“(15) . . . The fact that defendant was able to redeem his land and later sell it, in satisfaction of the debt incurred to redeem the land, in order that he obtain some equity out of it would appear to be the result contemplated by the statute which was enacted to prevent the sale of land twice (K. S. A. 1973 Supp., 60-2414 [o].) As pointed out by defendant, it would appear that plaintiff is attempting by this garnishment proceeding to do indirectly what the law will not permit it to do directly.”
I. H. C. C. has appealed. Appellant concedes that it was barred by K. S. A. 1974 Supp. 60-2414 (o) from seeking a second foreclosure of the realty prior to its voluntary sale by Ross. However, appellant argues that the sole purpose of the foregoing statute is to prohibit successive executions by various creditors against one tract of realty, exposing it to liability in excess of its fair market value through numerous costly foreclosure sales. The appellant contends that 60-2414 (o) does not bar a judgment creditor’s attachment of proceeds, which are traceable to a debtor’s voluntary sale of realty, where the realty has been previously redeemed by the debtor following a foreclosure action, wherein the attaching creditor was a party.
We agree with appellant’s interpretation of Kansas’ statutory redemption provisions and therefore reverse the decision of the trial court.
Statutes providing for redemption from foreclosure sales were generally intended to effect a dual purpose. A mortgagor is given a period of time to refinance and save his property, but more importantly the statutes put pressure on mortgagees and lienors, who are usually the chief bidders at foreclosure sales, to bid for the property at its value. (See G. Osborne, Mortgages, 2d Ed. 1970, § 8, pp. 17, 18.)
Additional protection is afforded redeeming mortgagors and debtors through provisions included in redemption statutes which bar subsequent foreclosure sales of realty to satisfy inferior judgments or liens where such property has been once sold to extinguish a senior claim. It has been said that land should not be made a miraculous pitcher from which the total indebtedness of the owner should be paid. Attempts to do so will discourage redemption, encourage underbidding at foreclosure sales and thereby defeat the purpose of redemption statutes. (See Durfee and Doddridge, Redemption From Foreclosure Sale, 23 Mich. L. Rev. 825, 853 [1925].)
The Kansas legislature in 1893 recognized the need to protect land from being taken again and again from an owner who tried to save it by redemption following a foreclosure sale. As a part of the redemption provisions it was provided in pertinent part:
“Real estate once sold upon order of sale, special execution or general execution shall not again be liable for sale for any balance due upon the judgment or decree under which the same is sold, or any judgment or lien inferior thereto, and under which the holder had a right to redeem. . . .” (L. 1893, Ch. 109, §23.)
The foregoing statutory provision has been retained in K. S. A. 1974 Supp. 60-2414 (o) without change.
In McFall v. Ford, 133 Kan. 593, 1 P. 2d 273, cert. den. 285 U. S. 537, 76 L. Ed. 930, 52 S. Ct. 310, this court examined the operation and effect of the statute barring second foreclosure sales of land. In an opinion denying a petition for rehearing in the McFall case the court considered the intent of the statute and stated that its purpose is to obtain the maximum value of the land to apply against liens, and when that has been accomplished to protect the land from subsequent foreclosure sales following redemption by the owner. The statute is viewed by the court as an exemption law enacted in the interest of the public welfare. (McFall v. Ford, reh. den. 133 Kan. 678, 681, 3 P. 2d 463, 285 U. S. 537, 76 L. Ed. 930, 52 S. Ct. 310.)
Real property once sold upon an order of sale or special or general execution can be properly characterized as exempt property with respect to creditors holding judgments or liens inferior to the lien under which the property was foreclosed, where those junior lien-holders had the right to redeem as provided by K. S. A. 1974 Supp. 60-2414. The law in Kansas is clear that proceeds obtained by a debtor from a voluntary sale of exempt property do not retain an exempt status and are therefore subject to execution. (Smith v. Gore, 23 Kan. 488; Pefly v. Reynolds, Sheriff, 115 Kan. 105, 222 Pac. 121; Independence Savings & Loan Ass’n v. Sellars, 149 Kan. 652, 88 P. 2d 1059; and State Department of Social Welfare v. Carlson, 176 Kan. 299, 270 P. 2d 200.) Most other jurisdictions agree with the preceding rule. (See 35 C. J. S., Exemptions, § 59, pp. 114, 115; and 119 A. L. R. 467, Anno: Debtors Exemption — Proceeds of Sale.)
In support of the view, that proceeds obtained from the sale of exempt property are not exempt, it has been said that , a contrary rule would extend exemption statutes beyond the specific protection afforded by the statute. If the legislative intent had been to exempt proceeds of exempt property when the same was voluntarily sold by a debtor it would have been expressly declared. (Harrier v. Fassett, 56 Iowa 264, 9 N. W. 217 [1881].)
The preceding rationale is applicable in the present case. The protected status granted by 60-2414 (o) to property once sold at a foreclosure sale does not extend to proceeds obtained from the voluntary sale of the property. Affording such protection would extend the exemption beyond the statute’s purpose of protecting realty as an asset in the hands of a redeeming debtor from successive execution sales.
Two remaining issues indirectly raised in this appeal deserve attention. The appellee, Ross, intimates that appellant’s disclaimer of interest in the Federal Land Rank foreclosure action operates to estop it from seeking satisfaction of its judgment by executing against money traceable to the sale of property which was the subject of that action. Appellant was joined in the foreclosure action as a party defendant by the plaintiff bank in order to fully adjudicate all claims adverse to the bank. Under these circumstances a disclaimer of interest in the subject matter of a suit is merely a recognition of the superiority of the bank’s mortgage and an admission of its right to foreclose which permits the disclaimant to be discharged from the action. Such a disclaimer does not operate to estop the disclaim-ant from asserting an interest in the subject matter against one who was a co-defendant in a subsequent action. (See Hanlon v. McLain, 206 Okla. 227, 242 P. 2d 732 [1952].)
Furthermore in the present case appellant is not seeking to reach the realty it disclaimed in the foreclosure action, rather it is looking to an independent fund created by the sale of the property.
Finally it must be noted that apparently the proceeds garnished by appellant were derived from the sale of Ross’ homestead. No Kansas statute exempts money received as the result of a voluntary sale of the homestead from execution by creditors. However, this court has held that where a debtor intends to invest money received from the sale of his homestead in another homestead and he had such an intention at the time he sold his first homestead and has not abandoned that intention, the money is exempt from attachment and execution. (Smith v. Gore, supra; and First National Bank v. Dempsey, 135 Kan. 608, 11 P. 2d 735.)
In this case Ross has demonstrated no intention of investing the funds garnished by appellant in a new homestead. The proceeds are therefore not exempt from attachment by his creditors. (State Department of Social Welfare v. Carlson, supra.)
For the reasons set forth above the judgment of the district court is reversed.
Fromme, J., not participating. | [
-14,
-22,
-103,
-84,
-118,
-32,
56,
-102,
104,
-84,
55,
83,
-17,
74,
5,
107,
-42,
41,
100,
120,
5,
-78,
87,
-63,
82,
-13,
-47,
-35,
-68,
-49,
116,
-44,
12,
-80,
74,
-91,
-30,
-126,
-127,
30,
14,
-122,
-104,
-27,
-3,
64,
52,
-85,
20,
9,
81,
14,
-13,
46,
29,
105,
73,
40,
-81,
109,
-48,
-8,
-69,
-123,
127,
19,
19,
100,
-124,
103,
104,
-18,
-108,
29,
1,
-24,
114,
22,
-122,
116,
11,
-101,
40,
102,
98,
34,
85,
-19,
92,
-72,
-114,
-35,
15,
-125,
-107,
88,
2,
35,
-66,
-100,
92,
3,
5,
-4,
-18,
-123,
31,
108,
15,
-50,
-42,
-109,
15,
116,
-120,
-117,
-1,
-111,
-80,
113,
-51,
-94,
90,
19,
123,
27,
-114,
-35
]
|
The opinion of the court was delivered by
Prager, J.:
This is a direct appeal in a criminal action in which the defendant was convicted of aggravated juvenile delinquency under K. S. A. 1973 Supp. 21-3611 (1) (/). The facts are not in dispute and were stipulated at the trial before the district court sitting without a jury. Joseph Lee Sherk, the defendant-appellant, was bom in 1958. In 1973 at the age of 15 he was found to be a miscreant child by the juvenile court of Wyandotte county. He had previously been adjudicated a wayward child in 1971 and placed on probation without disposition. In 1972 he was again before the juvenile court and placed on one years probation subject to conditions that he attend school regularly, be in after the evening meal, and be in one-half hour after any evening event that he might attend. Following the adjudication of miscreancy in March of 1973 the defendant was sentenced to commitment to the Boys Industrial School, but sentence was suspended for 60 days at the end of which period the case was to be reviewed. In May of 1973 the defendant was found to be in violation of the court’s order while subject to the suspended sentence. At that time the juvenile court ordered the sentence executed and defendant was committed to the Boys Industrial School where he was admitted on June 12, 1973. On July 11, 1973, Sherk escaped from the Boys Industrial School and was returned on July 26, 1973. He escaped a second time on December 22, 1973. He was then charged with aggravated juvenile delinquency under K. S. A. 1973 Supp. 21-3611 (1) (†) which provides as follows:
“21-3611. Aggravated juvenile delinquency. “(1) Aggravated juvenile delinquency is any of the following acts committed by any person confined in the state industrial school for boys or in the state industrial school for girls or by any delinquent child or miscreant child, as such terms are defined by K. S. A. 1971 Supp. 38-802, who is confined in any training or rehabilitation facility under the jurisdiction and control of the state department of social welfare:
“(a) Willfully burning or attempting to bum any building of any of such institutions or facilities, or setting fire to any combustible material for the purpose of burning such buildings;
“(b) Willfully burning or otherwise destroying property of the value or more than one hundred dollars ($100) belonging to the state of Kansas;
“(c) Willfully and forcibly resisting the lawful authority of any officer of any of such institutions or facilities;
“(d) Committing an aggravated assault or aggravated battery upon any officer, attendant, employee or inmate of any of such institutions or facilities;
“(e) Exerting a dangerous and pernicious influence over other persons confined in any of such institutions or facilities by gross or habitual misconduct;
“(f) Running away or escaping from any of such institutions or facilities after having previously run away or escaped therefrom one or more times.
“(2) Aggravated juvenile delinquency is a class E felony.
“(3) The juvenile court shall not have jurisdiction to try persons charged with aggravated juvenile delinquency, as defined by this section, but such persons shall be prosecuted under the general criminal laws of the state.”
The defendant did not dispute the fact that he violated section (/) of 21-3611 (1) by running away or escaping from the Boys Industrial School. By way of defense he challenged the constitutionality of 21-3611 (1) (†) on a number of grounds. Counsel for defendant first raised the issue of the constitutionality of the statute in district court by a motion to dismiss. The trial court overruled the motion, holding the statute to be constitutional. At the trial of the case the district court found the defendant guilty as charged and sentenced defendant to the custody of the secretary of corrections for a term of not less than one nor more than five years for a Class E felony. The defendant has brought a timely appeal to this court.
In his statement of points the defendant claims that the statute is unconstitutional for six specific reasons. The first two reasons are somewhat overlapping. In point one the defendant declares that K. S. A. 21-3611 (1) (/) is vague and uncertain in interpretation and application. Point two states that K. S. A. 21-3611 (1) (f) is vague and uncertain in that it does not apprise defendant Sherk of the prohibited conduct with sufficient specificity. In State v. Conley, 216 Kan. 66, 531 P. 2d 36, we held that the test to determine whether a criminal statute is unconstitutionally void by reason of being vague and indefinite is whether its language conveys a sufficiently definite warning as to conduct proscribed when measured by common understanding and practice. If a statute conveys this warning it is not void for vagueness. Conversely, a statute which either requires or forbids the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application is violative of due process. When we apply this test to 21-3611 (1) (/) we have no hesitancy in holding that the statute is not unconstitutional by reason of being vague and indefinite. The statute in clear and express language provides in substance that running away or escaping more than once from the Boys Industrial School constitutes aggravated juvenile delinquency. Any person of common intelligence should know that the crime is committed on each occasion that an inmate of the Boys Industrial School runs away after the first time.
We further reject the defendant’s contention that the statute is invalid because the superintendent of the school or the county attorney may exercise his discretion in deciding whether or not to file a prosecution under the statute. We have held on a number of occasions that the exercise of reasonable discretion in the application of a law to those of the same class does not necessarily or generally render the law unconstitutional as depriving one of equal protection of the laws. (State v. Troy, 215 Kan. 369, 524 P. 2d 1121; Gladen v. State, 196 Kan. 586, 413 P. 2d 124; In re Skinner, 136 Kan. 879, 18 P. 2d 154.) In State v. Pruett, 213 Kan. 41, 515 P. 2d 1051, we discussed in some depth the broad discretion of a prosecutor in determining whether criminal charges should be filed.
As his third point counsel for the defendant maintains that 21-3611 (1) (/) has no counterpart for inmates of adult correctional institutions and therefore the equal protection clause of the constitution is violated. K. S. A. 21-3809 and 21-3810 make it a criminal offense for persons charged or committed under the criminal code to escape while in lawful custody. We find no denial of equal protection of the laws in this respect.
The defendant next complains that 21-3611 (1) (/) is utilized by the state of Kansas as “parental punishment” for conduct of children who are made “wards” of the state by the Kansas juvenile judges. He argues that the state cannot use criminal prosecution to enforce its parental duties toward such a ward. As we understand it, defendants position is in substance that the conviction of a 15-year-old boy for a felony violates the spirit of our juvenile laws and erodes the concept of parens patriae. The same argument was made and rejected in Le Vier v. State, 214 Kan. 287, 291, 520 P. 2d 1325.
The defendant’s fifth point raises again a claim that 21-3611 (1) (/) is unconstitutional as a denial of equal protection of the laws. This point is vigorously urged by the Third Judicial District Public Defender who filed an amicus curiae brief with the permission of the court. In support of its position the public defender combines a due process argument with an equal protection argument and reasons as follows: The law draws the line of criminal responsibility in the first instance at the age of 18. Young people under the age of 18 are classified as juveniles and ordinarily are not to be treated as criminals but rather as delinquents. The philosophy of the juvenile code is to protect and rehabilitate juveniles rather than to punish them criminally. Under K. S. A. 38-808 (b) juveniles who1 are 16 years of age or older at the time of the commission of the offense may be prosecuted as criminals provided the juvenile court waives its jurisdiction by finding on the basis of substantial evidence that the child would not be amenable to the care, treatment, and training program available through the facilities of the juvenile court, and that the child is not a fit and proper subject to be dealt with under the Kansas juvenile code. If such a finding is made the juvenile court shall direct the prosecuting attorney to prosecute the person under the applicable criminal statute or ordinance. Before the juvenile court can waive its jurisdiction, the juvenile must be afforded an amenability hearing which complies with the minimum requirements of due process of law. (Kent v. United States, 383 U. S. 541, 16 L. Ed. 2d 84, 86 S. Ct. 1045; In re Templeton, 202 Kan. 89, 447 P. 2d 158; State, ex rel, v. Owens, 197 Kan. 212, 416 P. 2d 259; In re Patterson, Payne and Dyer, 210 Kan. 245, 499 P. 2d 1131; and In re Stephenson and Hudson, 204 Kan. 80, 460 P. 2d 442.)
It is contended that K. S. A. 21-3611 violates the requirement of equal protection of the laws because it unlawfully places juveniles into two distinct and separate categories: Juveniles who are entitled as a matter of right to an amenability hearing as provided in 38-808 (b); and juveniles who have escaped from the Boys In dustrial School in violation of 21-3611 (1) (†) who are not afforded an amenability hearing. In substance the argument is that there is no rational basis for the classification and that this distinction made between different classes of juveniles constitutes an invidious discrimination. In further support of his position counsel for the defendant maintains that juveniles who violate 21-3611 (/) are not afforded a due process hearing to determine whether or not they are amenable to the programs available in the juvenile court and whether or not they are fit and proper persons to be dealt with under the Kansas juvenile code. It is argued that the right to be treated as a juvenile and to be entitled to “care, treatment, and training programs” of the juvenile court are valuable rights which cannot summarily be taken away without a due process hearing. The defendant does not question the power of the legislature to abolish the juvenile courts and treat all juveniles as adults when laws of our society have been violated by them. Nor does he question the power of the state to try a juvenile as an adult once it has been determined that the individual juvenile is not amenable to juvenile rehabilitation. Defendant, however, does challenge the power of the legislature, once it has given exclusive jurisdiction to the juvenile courts to protect the welfare of the child and provide measures of guidance and rehabilitation for the child to deprive him of those protections by way of a statutory irrebuttable presumption which has the effect of holding the child criminally responsible without the child being provided a due process hearing to determine his amenability to juvenile court supervision.
A determination of this issue requires us to examine the statutory classification to determine whether or not it has a rational basis. In Henry v. Bauder, 213 Kan. 751, 518 P. 2d 362, we declared that under the federal and Kansas equal protection constitutional provisions, a state statute may single out a class of persons for distinctive treatment only if the classification bears a rational relation to the purpose of the legislation. We further stated that 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. In this regard see also Pinkerton v. Schwiethale, 208 Kan. 596, 493 P. 2d 200. Our problem is essentially to determine the rationality of the classification which distinguishes between juveniles who are entitled to an amenability hearing before they can be charged with crime and juveniles who are escapees from the Boys Industrial School and other training and rehabilitation facilities under the jurisdiction and control of the state department of social welfare. In short, is the statutory classification reasonable or is it arbitrary and unreasonable? We have concluded that the classification created by 21-3611 (1) (/) has a rational basis and therefore must be upheld as a reasonable classification.
The basic issue raised here was also before the court in Burris v. Board of Administration, 156 Kan. 600, 134 P. 2d 649. There we held tihat the juvenile court act (G. S. 1935, 38-401 to 38-432) was not applicable to inmates of the Boys Industrial School and that inmates of that institution could be prosecuted under G. S. 1935, 21-2001 (the forerunner of K. S. A. 21-3611) and that upon conviction in district court could be committed to the state reformatory. The juvenile court act at that time did not provide for a waiver of juvenile court jurisdiction by an amenability hearing as is now provided by K. S. A. 38-808 (b). The issue raised, however, clearly involved the reasonableness of the classification contained in the statute which imposed criminal liability upon escapees from the Boys Industrial School. In Burris this court stated that the state of Kansas was among the leaders in a humanitarian approach to the problems of juvenile delinquents. We pointed out that the Boys Industrial School, which had formerly been called the State Reform School, is fundamentally parental and educational in character. Every characteristic of penal institutions is avoided as far as possible. There are no stout enclosures, no armed guards, no provisions for control by force. To set up those instrumentalities would destroy the very atmosphere and spirit with which the state seeks to surround the boys. The court observed that most of the boys prove amenable to its care and discipline but that some boys prove incorrigible. In regard to the petitioner Burris the court stated:
“Here then is a boy fourteen years old who stubbornly refuses to abandon his evil ways. However charitable and humanitarian an attitude the state may yet maintain toward him what can now lawfully be done with him? Counsel contends he may not lawfully be committed to the State Reformatory. What then? Shall he again be sent back to the Boys’ Industrial School? And if sent there and he continues to break the rules, to disrupt the discipline of the school and do harm to the morale of the other boys, and if he continues to escape and to commit serious offenses must such a course be tolerated until he reaches the age of sixteen? Or should walls be built, guards stationed, and the Boys’ School be turned into a prison in violation of the very spirit and purpose of the institution? Or, should this boy be turned loose, unrestrained, to his own detriment and to the injury of society?
“We think it was to meet this very sort of situation that section 21-2001 under which petitioner was committed, was enacted. . . . Nor, . . . can we say — at least as far as the Boys’ Industrial School is concerned — that the legislative classification established by section 38-402 ... is arbitrary, capricious and invalid. . . .
“Possibly some better legislative solution for meeting problems like the one here presented might be devised. This court is no happier than is counsel for this boy over the thought of a fourteen-year-old boy — no matter how perverse his tendencies — being placed in an institution where older boys and adults convicted of crimes are incarcerated. But counsel points out no other recourse, under existing law, for a boy who has persistently displayed such disregard of law and rebellion against all restraint.” (pp. 606, 607.)
The rationale of Burris is just as sound today as it was in 1943. K. S. A. 21-3611 (1) (f) or its forerunners providing for the prosecution and punishment of inmates running away or escaping from the Boys Industrial School has been a part of the criminal laws of this state since such legislation was initially enacted in 1901, (Laws of Kansas, 1901, chapter 172.) As pointed out by the Judicial Council in 1968, K. S. A. 21-3611 is helpful in dealing with exceptional cases not amenable to the processes and controls employed in the juvenile courts. Where an inmate escapes two or more times from the Boys Industrial School it seems to us a reasonable presumption that he is no longer amenable to juvenile rehabilitative supervision and treatment. At that point the legislature could reasonably conclude that such an escapee was at the end of the road as a juvenile and could properly be charged and tried in the criminal courts for aggravated juvenile delinquency. It does not follow as a matter of law that on conviction of aggravated juvenile delinquency the young defendant will be forthwith incarcerated in the Kansas State Industrial Reformatory. The district court has a broad discretion to place the defendant on probation or to utilize other rehabilititative facilities available in the adult criminal justice system.
Counsel for the defendant has expressed concern that following a conviction of aggravated juvenile delinquency the young defendant will forevermore be handicapped by a felony record which will deny to him the opportunities for success in this society. This is not necessarily so, for the legislature by K. S. A. 21-4616 has provided for the annulment of convictions to relieve youthful offenders from the social and economic stigma resulting from criminal convictions and to offer them an added incentive to conform to social norms and to participate in our society without the added burden of a criminal conviction. In State v. Miller, 214 Kan. 538, 520 P. 2d 1248, we held that annulment of conviction should be granted under 21-4616 unless the court finds some strong affirmative cause to deny it as where the evidence shows that the defendant has some marked propensity towards continuing criminal conduct or that he remains a clear and present danger to the public. We have concluded that K. S. A. 21-3611 providing for the crime of aggravated juvenile delinquency is a reasonable exercise of the legislative power and that juveniles who have been confined in the designated state juvenile institutions may be classified and treated differently than other juvenile offenders. As we stated in Le Vier t>. State, supra, it is not for this court to usurp the legislative function or to pass judgment on the wisdom of legislative acts.
Counsel for the amicus curiae has raised other points, claiming in substance that 21-3611 (1) (f) denies juveniles due process of law because it fails to provide an opportunity for hearing when liberty and property of the juveniles are denied; that the statute creates an impermissible, irrebuttable presumption that any juvenile who escapes more than once from a juvenile treatment facility is no longer amenable to juvenile rehabilitation; and finally that 21-3611 (1) (/) is an arbitrary exercise of the state police power in that the means applied are not rationally calculated to fulfill the legislative ends or purposes. We have considered these contentions and find them to be without merit. Where a person is charged with aggravated juvenile delinquency under K. S. A. 21-3611 he must be formally charged and tried in the criminal courts where he is entitled to all procedural due process required in any criminal prosecution. There his guilt or innocence is determined. Furthermore the waiver of juvenile court jurisdiction by providing an amenability hearing is not involved at all in these cases since the jurisdiction of the juvenile court is specifically excluded by section (3) of 21-3611.
Finally we note the contention of the defendant that K. S. A. 21-3611 (/) provides for cruel and unusual punishment in that there is no proportional relationship between the alleged “harm” done by running away and the felony punishment that is meted out for such actions. We cannot say that a sentence of one to five years in the Kansas State Industrial Reformatory constitutes cruel and unusual punishment as contemplated by the Eighth Amendment to the Constitution of the United States or Section IX of the Bill of Rights of the Kansas Constitution. The defendant has not cited any case authority in support of his position and we therefore reject the contention as being without merit.
For the reasons set forth above we have concluded that K. S. A. 21-3611 (1) (/) is not unconstitutional as depriving the defendant of equal protection of the laws or due process of law as required by the Fourteenth Amendment to the Constitution of the United States or Section I of the Bill of Rights of the Constitution of the State of Kansas. Furthermore we hold that the statute does not provide for cruel or unusual punishment as proscribed by the Eighth Amendment to the Constitution of the United States or Section IX of the Bill of Rights of the Constitution of the State of Kansas.
The judgment of the district court is affirmed.
Fbomme, J., not participating. | [
-48,
-22,
-35,
-100,
27,
-32,
123,
30,
19,
-9,
-27,
-45,
-23,
-58,
5,
121,
91,
109,
84,
121,
-111,
-77,
87,
67,
-74,
-5,
-71,
-35,
-69,
93,
-92,
-36,
10,
48,
-118,
117,
6,
8,
-59,
-60,
-114,
5,
-72,
-29,
88,
2,
62,
106,
56,
10,
49,
62,
-29,
42,
30,
-61,
-23,
36,
-53,
-83,
-45,
-5,
-6,
31,
-1,
22,
-93,
2,
-72,
5,
96,
46,
-40,
49,
1,
-24,
115,
-126,
-124,
-12,
45,
-55,
-116,
-26,
98,
51,
60,
-25,
-72,
-119,
78,
22,
-67,
-25,
-103,
89,
64,
-115,
-100,
-35,
103,
84,
15,
-6,
-25,
4,
67,
-20,
-125,
-50,
-68,
-111,
-115,
52,
2,
-87,
-29,
37,
33,
85,
-35,
-122,
84,
-48,
114,
-37,
-82,
-68
]
|
The opinion of the court was delivered by
Kaul, J.:
Defendant (Kenneth D. Sparks) appeals from a conviction by a jury of murder in the second degree. (K. S. A. 21-3402.) The victim was LaDonna King, the two-year-old stepdaughter of defendant. The state’s case against defendant rested largely upon circumstantial evidence and the sufficiency thereof is the paramount question on appeal.
Because of the nature of the questions raised we have called for and examined the original trial transcript in addition to the record on appeal. The evidence discloses that about 7 p. m. during the evening of March 18, 1971, defendant drove his automobile into a service station in Junction City. LaDonna and her mother, Linda Sparks, wife of defendant, were in the automobile. Defendant stopped at the station to telephone for an ambulance for LaDonna, who was having difficulty breathing. While defendant was telephoning, Linda screamed for help. Defendant left the telephone and carried LaDonna into the station. Two servicemen, Forrest Campbell and Sergeant Hall, stationed at nearby Fort Riley who had driven into the station for gasoline, responded to the screams by leaving their automobile and running into the service station where they administered mouth to mouth resuscitation to the little girl until the ambulance arrived. Campbell testified that LaDonna was gasping for breath and he observed bruise marks on her neck.
LaDonna was taken by ambulance to Irwin Army Hospital at Fort Riley. She was accompanied by defendant and Donald Sears, an ambulance attendant. The ambulance was driven by Roger Kramer who, as the evidence at trial disclosed, was also employed by the Junction City Police Department as a patrolman. Sears testified that while enroute to the hospital he asked defendant what had happened. Sears’s testimony appears in the trial transcript as follows:
“Q. On the way to the hospital in the ambulance, did you have a conversation with the defendant?
“A. Yes, I did; I asked him what had happened.
“Q. And what was the defendant’s reply?
“A. Well, he said that he was getting it on with the child.
“Q. Did he say anything else?
“A. Then he said that he hadn’t hit her. . . .”
Seat's also testified that he noticed a bruise about two inches in diameter on LaDonna’s right cheek.
On arrival at Irwin Hospital, LaDonna was taken to the emergency room where she was examined by Dr. Andrew J. Gaizuinas, a surgeon. Dr. Gaizuinas testified that he examined the entire body of the child and found multiple bruises over the forehead, chin, arms, trunk and lower extremities; that she was comatose; and that her pupils reacted to light very sluggishly. He defined the word “bruise” as blunt trauma or physical injury. After seeing the multiple distribution of bruise marks over LaDonna’s body, Dr. Gaizuinas had the opinion that the most probable and likely possibility was that she was a so-called “battered child syndrome.”
After examining the child Dr. Gaizuinas testified that he wanted to find out what happened' to her. He went into the lounge, adjacent to surgery, and asked defendant what had happened to cause all the bruises on the child’s body. The doctor testified:
“I asked him what happened to the child, whether he or somebody had beaten the child. He said he had not. He said that he had taken ahold of her and shaken her, and that she had fallen to the ground and stopped breathing, at which point he then related that he had tried to get an ambulance and then finally got an ambulance and brought her over.”
A few minutes later, defendant made a further statement to Dr. Gaizuinas. The nature of this statement and the circumstances under which it was made were described by the doctor as follows:
“At this time — again, at this time, no one was present within hearing distance. And actually, this was instigated more by Mr. Sparks, who told me that it’s unusual — or it’s funny how people can get emotionally involved and do crazy things. This was basically the end of my conversation with Mr. Sparks.”
After Dr. Gaizuinas saw the seriousness of the child’s condition he called for anesthesia and the assistance of Dr. Hoffman, a pediatrician. The doctors concluded that neurosurgical assistance was needed and Dr. Joseph C. Mirabile, a neurosurgeon, was called. Dr. Mirabile described LaDonna’s condition:
“The child was unconscious when we examined her. There were bruises on the left forehead, the left temporal area, which is this area here (indicating on self), the left side (of the chin, and some bruises on the right side of the face, bruises on the hands, the feet, and really just about up and down both lower extremities. . . .”
Dr. Mirabile went on to say that the main problem seemed to be neurological — a head injury and that the physical symptoms were those of a blood clot on the left side of the brain, and that surgery, which was immediately performed, revealed that the brain was contused, slightly swollen with areas of bruises on it; and that in his opinion these conditions were caused by some physical force applied to the brain.
After surgery to relieve the pressure of a blood clot, LaDonna’s condition was stabilized and she remained in Irwin Hospital until March 22 when she commenced convulsions and was sent to Stormont-Vail Hospital in Topeka, where she received further treatment until her death on March 28, 1971.
An autopsy was performed by Dr. Wike Scamman, a pathologist and deputy district coroner. He testified that based upon his examination and reasonable medical certainty, death was caused by swelling of the brain resulting from repeated trauma b> the head. It was his opinion that there had been a number of blows to the head, causing the brain to move back and forth inside the skull, and causing multiple small areas of disruption. He further stated that it would require a fairly severe blow to bruise the brain of a child of LaDonna’s age.
Defendant took the stand in his own behalf. He testified that he had reprimanded LaDonna for fussing with her mother and that:
“A. I grabbed aholt of her, grabbed aholt of her arms, and picked her up and shook her. And then I sat her down, and then she backed up and fell back, stumbled and fell back to the floor and hit her head on the floor.
“Q. What portion of her head did she hit?
“A. It was the back portion (indicating on self).
“Q. All right. And then what happened?
“A. As soon as I seen that she was hurt, I jumped up — before I could jump up, before she fell, she fell and hit her head. I picked her up and laid her on the couch and I knew she was having trouble breathing. So I laid her on the couch, and so I — I was going to give her artificial respiration, and so on the way to get her mouth open — her mouth was closed tight, so I took my finger and stuck it in her mouth and had my fingers like this (illustrating) .and pulled her mouth open so I could—
“Q. All right, and then did you commence—
“A. I commenced giving her artificial respiration.”
Defendant denied that he hit or struck LaDonna or that he intended to kill her. On cross-examination defendant’s testimony was uncertain as to whether LaDonna fell over from a sitting or standing position after he sat her down.
Defendant specifies numerous points on appeal. His arguments on points Nos. 1, 2, 3 and 5 all go to the proposition that the evidence was insufficient to support the verdict. Defendant first contends the trial court erred in overruling his motion for judgment of acquittal made at the close of the state’s evidence. The basic thrust of his argument is that the circumstantial evidence presented did not nor could it prove corpus delicti. Defendant implies that circumstantial evidence, standing alone, is insufficient to sustain a murder conviction. Such is not the case. It is a well-established rule in this jurisdiction that a conviction of even the gravest offense may be sustained by circumstantial evidence. (State v. Ritson, 215 Kan. 742, 529 P. 2d 90; and State v. Hale, 207 Kan. 446, 485 P. 2d 1338.) In the recent case of State v. Wilkins, 215 Kan. 145, 523 P. 2d 728, we held:
“The probative values of direct and circumstantial evidence are intrinsically similar and there is no logically sound reason for drawing a distinction as to the weight to be assigned to each.” (Syl. ¶ 4.)
In his brief defendant states the circumstantial evidence fails to positively show that: (1) Defendant committed the crime of second degree murder; (2) that he harmed LaDonna or caused her death; and (3) that LaDonna’s injuries were not self-inflicted or the result of an accident. The very nature of circumstantial evidence makes it incapable of positively proving these or any other facts. What is true in this case is that LaDonna had been grievously injured by multiple blows to her head and body which caused her death. Defendant by his own testimony admitted that he physically handled LaDonna, although he denied that he intentionally injured her or intended to kill her. Dr. Gaizuinas testified the multiple bruises to the head and body were recent and severe. Dr. Scamman testified that there had been a number of blows to the head causing the brain to be moved back and forth and that it would require a fairly severe blow to bruise the brain of a child such as LaDonna. The medical evidence is undisputed that La-Donna suffered multiple braises all around her head, a condition which is irreconcilable with a bruise which might have resulted from a fall such as that described by defendant. The undisputed evidence of LaDonna’s condition on her arrival at the hospital, coupled with the surrounding circumstances, is sufficient to serve as a basis for the drawing of the necessary inference by the jury.
We have repeatedly said that when considering an appeal challenging the sufficiency of circumstantial evidence to sustain a criminal conviction, the function of this court is limited to ascertaining whether there was a basis in the evidence for a reasonable inference of guilt. (State v. Ritson, supra; State v. Hale, supra; and State v. Gregory, 191 Kan. 687, 383 P. 2d 965.)
In all of his points concerning sufficiency of the evidence, defendant relies upon State v. Doyle, 201 Kan. 469, 441 P. 2d 846. Based on the decision in Doyle defendant argues the corpus delicti has not been proved since the evidence is susceptible to a construction which will prove innocence as well as guilt. Defendant’s interpretation of Doyle is correct, but the case is clearly distinguish able from that at bar. In Doyle the state was required to exclude, by evidence, death by accident or suicide since the circumstances there pointed no more strongly to criminal homicide than to death by accident or suicide. In Doyle the dead man was found slumped over the steering wheel of his own automobile with a bullet wound in his right temple. A pistol lay beside his right hand on the front seat of the automobile. There was, no evidence, circumstantial or otherwise, to indicate the accused was ever at the scene of the crime. In the instant case direct evidence placed defendant in physical contact with LaDonna, and established the cause of death as multiple bruises or traumas to the head. Obviously, LaDonna’s injuries did not result from self-inflicted blows or attempted suicide.
Defendant claims second degree murder should not have been submitted to the jury because evidence of the essential element of malice is absent. In his argument on this point defendant takes the evidence most favorable to him and weighs it in his favor. This an appellate court cannot do. (State v. Watson, 204 Kan. 681, 466 P. 2d 296; and State v. Trotter, 203 Kan. 31, 453 P. 2d 93.) It is reasonable to infer that a two-year-old did not beat herself to death or die as a result of injuries accidentally or unintentionally incurred while engaging in some rough contact sport or being reprimanded by a gentle shaking as defendant would suggest. From the evidence of the injuries to LaDonna’s head it may readily be inferred that they were caused by repeated blows, severe enough to cause the resulting brain damage. It is common knowledge that the fragile frame of a two-year-old child can withstand only a limited amount of pummeling without resulting in serious injury or death. Malice as it relates to murder means knowledge of such circumstances that according to common experience there is a plain and strong likelihood that death will follow the contemplated act. (1 Wharton’s Criminal Law and Procedure, § 62, pp. 137-138; see, also, State v. Donahue, 197 Kan. 317, 416 P. 2d 287; and State v. Watson, supra.) Circumstantial evidence is competent to establish the necessary elements in a criminal case, including the corpus delicti; indeed it may alone be available in proving elements such as malice and intent which exist only in the mind of the perpetrator of the deed. (29 Am. Jur. 2d, Evidence, § 266, pp. 315-316.)
Defendant’s contention that the jury’s verdict was contrary to the law and evidence has been effectively answered by what has heretofore been said.
In his fourth point defendant asserts error in the trial court’s failure to include definitions of the words “willfully” and “intentionally” in instruction No. 1. The instruction in question consists of PIK [Criminal] 56.03 [Murder in the second degree], and a definition of “maliciously.” It reads:
“The defendant is charged with the crime of murder in the second degree. The defendant pleads not guilty. To establish this charge, each of the following claims must be proved:
“(1) That the defendant killed LaDonna King;
“(2) That such killing was done maliciously; and
“(3) That this act was done on or about the 18th day of March, 1971, in Geary County, Kansas.
“ ‘Maliciously’ means the purposeful and intentional doing of a wrongful act without just cause or excuse.”
The word “wilfully” does not appear in the instruction and as the word “intentional” is used in the definition of “maliciously” its meaning is clearly made known. The court is not required to define every word or phrase in an instruction unless' from a fair reading of the instructions as a whole there is likelihood the jury will be misled or left to speculate without further explanation. (McGlothlin v. Wiles, 207 Kan. 718, 487 P. 2d 533.) We find no error in this regard.
In points Nos. 6 and 7 defendant charges error in admitting color photographs of LaDonna, and in advising the jury it was admitting them for the sole purpose of their viewing any bruises upon La-Donna’s body. The photographs were taken by Gregory Heinze, photographer at Fort Riley, the day after LaDonna was admitted to the Irwin Hospital. Defendant objected to the admission of the photographs and to the court’s refusal to further admonish the jury on the purposes for which the pictures could be viewed. Defendant contends the photographs did not show her condition at the time she was admitted. Defendant argues that the photographs showed bruises LaDonna had sustained as a result of surgery and other medical treatment; and that these pictures were of such an inflammatory nature as to arouse the passion and prejudice of the jury. Although they were not included with the record on appeal, we have received and examined the photographs in question. Since it was established that LaDonna died as a result of repeated blows to her head, photographs portraying the results of blows to her head and body were relevant to the elements of malice and intent. Also, the photographs were relevant and material in assisting the jury’s understanding of the testimony of the numerious medical witnesses. There was no evidence that LaDonna suffered any bruises while in the ambulance or as a result of any treatment in the hospital. The bruises revealed by the photographs match the description of those on LaDonna’s body upon her arrival at the hospital, as given by Dr. Gaizuinas in his testimony. In State v. Randol, 212 Kan. 461, 513 P. 2d 248, this statement appears:
“This court has repeatedly held that the admission of photographs of a decedent, including photographs taken during the autopsy, is not error where the photographs are relevant to matters in issue, such as the fact and manner of death or to assist in understanding a pathologist’s testimony. . . .” (p. 466.)
Much to the same effect we said in State v. Campbell, 210 Kan. 265, 500 P. 2d 21:
“Exhibits, be they pictures or otherwise, which are relevant and material to the matters in issue, are not rendered inadmissible merely because they may be shocking or gruesome. Where the defendant is charged with a crime of violence, colored slides are relevant and admissible if they tend to establish the violence which was alleged. . . .” (p. 275.)
Defendant next claims error in the admission of the testimony of Dr. Gaizuinas relating to the statements of defendant previously referred to. The record shows that Dr. Guizuinas, upon his own initiative and not upon the prompting of anyone else, approached defendant and asked him what had happened to the child. It was developed that Kramer, the ambulance driver, was in the room, although his presence was not noticed by the doctor. Kramer took no part in the conversation and the record does not show whether Kramer heard any of 'the conservation. Defendant now says that since Kramer was a policeman and present, it follows that the defendant had to be informed of his constitutional rights according to Miranda v. Arizona, 384 U. S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, 10 A. L. R. 3d 974. Defendant’s position is untenable. Miranda deals with the admissibility of statements obtained during a custodial police interrogation. The doctor was not a policeman nor was he acting as a police agent and defendant was not in custody. Defendant’s statements were freely given in response to the doctor’s inquiries concerning LaDonna’s physical condition and what had happened to her. In State v. Porter, 201 Kan. 778, 443 P. 2d 360, cert. den. 393 U. S. 1108, 21 L. Ed. 2d 805, 89 S. Ct. 919, we held:
“Incriminating statements or admissions which are made freely and voluntarily without threat of force or compulsion are not barred under the rules set forth in Miranda v. Arizona, 384 U. S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 [10 A. L. R. 3d 974], but are admissible in evidence.” (Syl. f 2.)
In his ninth point defendant reiterates the points previously discussed and seems to argue that the cumulative effect thereof requires reversal. Since we have found no reversible error, defendant’s argument is to no avail.
Finally, defendant says he did not receive a fair trial due to public opinion existing in the community as evidenced by the fact that the jury only deliberated for twenty minutes prior to reaching a verdict. Defendant presented no evidence of media created prejudice or even of media coverage, nor does he allege any misconduct on the jury’s part. Defendant’s argument is totally unsupported.
Finding no reversible error shown, the judgment is affirmed.
Fromme, J., not participating. | [
-16,
-22,
-31,
-83,
41,
-30,
42,
48,
113,
-109,
-15,
-13,
-85,
-55,
13,
105,
30,
55,
85,
105,
19,
-73,
23,
105,
-14,
-13,
56,
-43,
-77,
-56,
-10,
-3,
13,
96,
-118,
21,
98,
74,
-57,
84,
-50,
21,
-87,
-16,
18,
-126,
36,
58,
118,
7,
49,
30,
-29,
42,
28,
-46,
73,
44,
90,
-65,
-64,
49,
-56,
-123,
-49,
16,
-93,
-122,
-98,
-113,
-40,
62,
-103,
-79,
0,
108,
50,
-92,
-126,
-20,
99,
-119,
12,
100,
-30,
33,
93,
-23,
33,
-119,
47,
62,
-97,
-89,
-104,
97,
73,
45,
-105,
-99,
121,
116,
10,
-8,
-5,
70,
94,
100,
-89,
-49,
-76,
-79,
-51,
32,
16,
56,
-29,
-115,
54,
113,
-35,
-78,
92,
69,
90,
-69,
-113,
-106
]
|
The opinion of the court was delivered by
Foth, C.:
The ultimate question in this case is the balance due the general contractor from the owner for the construction in 1969 and 1970 of the high-rise Holiday Inn Plaza motel in Wichita. The answer depends in large part on whether the guaranteed-maximum-cost provision of the construction contract continued in effect, or whether the parties by their conduct had waived that provision and converted the contract into a straight cost-plus contract. The trial court enforced the guaranteed maximum, and in its judgment allowed the contractor to recover unpaid amounts in excess of that figure only to the extent that the additional amounts were found to have been the result of changes, modifications and additions ordered by the owner. The contractor has appealed.
The facts may be gleaned from the somewhat complex procedural picture presented by the record. There were initially three separate lawsuits below. The first was brought on February 12, 1971, by Earl W. Hamman, Inc., the painting subcontractor, for an unpaid balance of $89,402.00. The defendants in that action were the general contractor, Coonrod & Walz Construction Company, Inc. (“C. & W.”) and the surety on its.bond, The Western Casualty and Surety Company. Those defendants did not contest the amount of Hamman s claim, but asserted that the parties with true liability were the owner of the motel, Motel Enterprises, Inc. (“Motel”), and its agent Robert S. Lightner. This assertion was made both by answer and by third-party petition against Motel and Lightner.
In the meantime, on March 2, 1971, Motel filed the second suit, a declaratory judgment action against C. & W. asking that the contract between the parties be construed as imposing a guaranteed maximum cost of $3,250,000.00.
C. & W. responded two days later by filing its own suit (the third) to foreclose its mechanic’s lien for $506,962.99. It named as defendants: the owner, Motel Enterprises, Inc.; Garvey Center, Inc., which owned the ground on which the building was located; Robert S. and his brother Eugene W. Lightner, who were to have an interest in the operation of the motel; and Massachusetts Mutual Life Insurance Company (which denied any interest in the project and whose interest, if any, never did appear).
C. & W. also answered Motel’s declaratory judgment action, al leging among other things that it had completed the contract, that there had been numerous changes ordered by Motel which had the effect of modifying the contract, that it had billed Motel for the work and that Motel had accepted and approved all its work and bills, that this amounted to an accord and satisfaction, and that Motel owed it $506,962.99. C. & W. also asserted that the controversy was not of a sort suitable for resolution by declaratory judgment, and should be resolved in its mechanic’s lien foreclosure action.
In C. & W.’s lien foreclosure action, Garvey Center, Inc. answered separately, admitting that it owned the land but denying that it had any interest in the motel building or any contract with C. & W. The other defendants filed a joint answer denying the allegations of the petition except that they admitted the execution of the construction contract with its $3,250,000.00 guaranteed maximum and that the building had been completed. They admitted making fourteen monthly payments to C. & W., but alleged that the payments were made as a “draw” and did not represent full approval or an accord and satisfaction. (The fifteenth monthly bill was only partially paid, the sixteenth and seventeenth not at all. It was the inability of the parties to resolve their differences over the total costs which precipitated the litigation.)
With the issues thus joined the trial court first took up the claim of Hamman, the painter. It found that Hamman’s relationship to the other parties was that of a subcontractor of C. & W., so that its claim was recoverable from C. & W. and Western Casualty, the surety on C. & W.’s bond. (In due course Hamman recovered a judgment against C. & W. which was paid; Hamman and Western Casualty were thereafter no longer interested in this litigation.) C. & W.’s third-party petition against Motel and Robert S. Lightner was left pending.
At this point, on June 30, 1971, an order was entered consolidating the three suits for trial, that is, C. & W.’s lien foreclosure action, its unresolved third-party petition, and Motel’s declaratory judgment action.
On September 8, 1971, the court held a hearing on the declaratory judgment aspect of the consolidated actions. It had before it at that time three documents which together formed the written contract between Motel and C. & W. These were (1) an American Institute of Architects “standard form of agreement” dated February 28, 1969, (2) a “supplemental agreement” dated the same day, and (3) a second “supplemental agreement” dated May 15, 1969. Paragraph 6.1 of the standard form agreement called for the owner (Motel) to reimburse the contractor (C. & W.) for the “cost of the work” and to pay a “contractors fee” fixed elsewhere at $160,000. Paragraph 6.2 provided:
“The maximum cost to the Owner, including the Cost of the Work and the Contractor’s Fee, is guaranteed not to exceed the sum of Two Million Nine Hundred Thousand dollars ($2,900,000.00); such Guaranteed Maximum Cost shall be increased or decreased for Changes in the Work as provided in Article 8.”
(The form indicated that Paragraph 6.2 should be deleted “if there is no Guaranteed Maximum Cost.”)
The first (contemporaneous) supplemental agreement recited that the contract was on a cost-plus fixed fee basis because “the specific plans and specifications for the construction of this building have not been finalized, specified or determined to the extent that Contractor is able to make a firm bid.” It went on to say that while the owner hoped to complete the building for the $2,900,000 called for in the form agreement and the contractor would try to do so, “from the general plans and specifications and on present information as heretofore submitted, Contractor estimates that such total costs for the construction of this project will exceed said sum of $2,900,000.00, possibly to the extent of a total cost of $3,250,000.00.” The parties therefore agreed, among other things:
“1. That the maximum cost to Owner, including the total cost of the Work and the Contractor’s Fee, is guaranteed not to exceed the sum of $3,250,000.00, and Section 6.2 of said Standard Form of Agreement is hereby changed and modified to that extent.
“2. Contractor does agree that Contractor’s fixed fee of $160,000.00, as provided in said Standard Form of Agreement, shall not be increased or decreased and it is understood and agreed that Contractor is to receive and be paid the fixed fee of $160,000.00 in any event and even though such total costs should amount to less than $2,900,000.00.
“3. Owner is to have the right and privilege of modifying and changing any plans, specifications and requirements relative to the construction of this project, provided that Contractor is given timely and sufficient notice thereof and provided further that Owner pay any costs or losses, if any, caused to Contractor by reason of any such modifications or changes.
“4. Owner may, with the approval of Contractor, award separate contracts for portions of the work; provided, however, that any such separate contracts shall remain under the complete control of the Contractor, including applica tions for payment, changes and all items and shall be included in determining guaranteed maximum cost, the same as if it were a subcontract of the Contractor.”
Robert S. Lightner was designated as the “Architect” for the purposes of approving the work, and as the agent of the owner for the purpose of authorizing changes, additions or deletions from the original plans. Under the form agreement all change orders were to be in writing.
The second supplemental agreement, dated May 15, 1969, was substantially identical to the first, with some changes in tense to indicate the parties’ past as well as future operations. (By that time two change orders had been executed which had the effect of making direct contractors of those who had been subcontractors for electrical work, mechanical work, the slip forms, glazing and elevator installation. Under paragraph 4, however, their work was still to be considered “in determining guaranteed maximum cost.”) This second supplemental agreement contained the identical guaranteed maximum cost provision as paragraph 1 of the first, quoted above, but in paragraph 2 it provided that the fixed fee would be the same whether the cost was less “or more” than $2,900,000.00.
At the conclusion of the September 8, 1971, hearing the court rendered a declaratory judgment construing these three documents as follows:
“3. The contract between Motel Enterprises, Inc. and Coonrod & Walz Construction Company, Inc. provides for a cost of work plus fixed contractor’s fee not to exceed a guaranteed maximum cost of $3,250,000.00 for the construction and finishing of the Holiday Inn Highrise Motel, subject to increases or decreases for changes, additions, variations and modifications in the work.”
No further pretrial proceedings were had and no pretrial order was entered. Trial to the court was commenced on September 27, 1971, with C. & W. as plaintiff introducing its evidence. The primary defendants were Motel and Robert S. Lightner. On October 1, after four days of trial, and while plaintifFs case was still in progress, the court on its own motion called a conference with counsel in order to define and establish the issues to be decided. The result was an order which recited:
“Thereupon, the court, having heard and considered the statements and arguments of counsel, the documentary evidence and the oral testimony adduced thus far in the case, and having considered the rulings of the court made in the declaratory judgment action, Case No. C-21446, between these same parties, also one of the consolidated actions captioned above, finds that the following order should be entered:
“1. Plaintiff and defendants are each bound by the terms and provisions of the written contract and the contract documents as found and ordered by the court in the declaratory judgment action, Case No. C-21446.
“2. In view of the contract between the parties, plaintiff would be entitled to recover from defendants in excess of the guaranteed maximum cost for construction and finishing of the Holiday Inn Highrise Motel, as reflected by the contract documents, only to the extent of modifications, changes or additions to the work described and set forth in the contract documents.
“3. The precise issues to be determined in the matter presently in trial are as follows:
“(a) What modifications, changes or additions were made from the plans and specifications for the Holiday Inn Highrise Motel?
“(b) What were the costs of such modifications, changes or additions?
“(c) What credits, if any, are defendants entitled to by reason of such modifications, changes or additions?
“(d) What is the resulting net change in the guaranteed maximum cost?” (Emphasis added.)
With the issues thus defined the trial was recessed. It resumed on October 12, for four more days of testimony and, after a second recess, for yet another four days beginning November 8, 1971. (The transcript exceeded 1800 pages; in this court the record contains 470 pages of the judicial proceedings in Volume I, plus two volumes of exhibits, each of almost the same mass as Volume I.) At the conclusion of the trial the matter was taken under advisement and the parties submitted requested findings and conclusions.
On February 4, 1972, the trial court filed its findings and conclusions. After making passing reference to Motel’s early negotiations and its rejection of bids made by both C. & W. and a New Mexico contractor, in Finding No. 1 the court recited the documents constituting the present contract. No. 2 recited the court’s ruling that the contract was a cost plus fixed fee contract with a guaranteed maximum, which could be exceeded only by the amount of costs attributable to “changes, modifications or additions to the original planned construction.” No. 3 recited the guaranteed maximum of $3,250,000.00. No. 4 recited the completion of the building in December, 1970, at a cost which “substantially exceeded the guaranteed maximum cost of the contract.” The heart of the findings was in Nos. 5 through 9:
“No. 5
“After a protracted trial the exact amount in litigation remains somewhat elusive. Plaintiff in its petition prayed for $506,962.99. Plaintiff’s vice-president, H. Doyle Walz, who executed the contract on behalf of plaintiff, testified that the amount unpaid was $489,880.50. Plaintiff’s job coordinator on this project, Charles Sigler, testified that the actual unpaid excess amounted to $573,961.00, but that plaintiff was not actually seeking recovery of that amount. Plaintiff’s counsel in their briefs to the Court at the conclusion of the trial have argued that plaintiffs are entitled to the amount of $518,289.70. The defendant contends that while there was a net amount of $207,220.90 due plaintiff for changes, all but $41,607.38 has been paid. The confusion that exists is due in large part to the fact that literally hundreds of changes were made in the work as construction progressed, and that neither party hereto made or kept any record of most of them as they occurred. Furthermore, while architectural plans were complete prior to the execution of Exhibit No. 1, and are in evidence as Exhibit No. 9, the structural plans were not complete, and when completed in various stages during construction, sometimes raised the question as to whether they amounted to a change or an addition to the originally contemplated work.
“No. 6
“The contract provided that the defendant Robert S. Lightner was designated by the defendant Motel Enterprises as ‘Project Manager’ to represent said owner in conjunction with the construction, and further provided that said defendant Robert S. Lightner should be deemed to be the ‘Architect’ for all purposes under the General Conditions of the contract. The General Conditions of contract in Article 12 provided that all changes-in the work were to be authorized by change orders, and further provided that change orders were to be written orders to the contractor, signed by the owner and architect; or alternatively by the architect alone, provided he had written authority from the owner for such procedure (which authority was contained in Paragraphs 6 and 8 of the Supplemental Agreements which were a part of the contract.)
“No. 7
“The evidence discloses, and the Court finds, that the plaintiff-general contractor and the defendant-owner, along with its designated ‘Project Manager’ and ‘Architect’ paid scant heed to the above provisions in Article 12 of tlie General Conditions of the contract. The defendant Robert Lightner, as architect and owner’s representative, prepared no written change orders whatsoever throughout the entire construction. The plaintiff-general contractor prepared a total of eight change orders prior to October of 1970, but most of them were prepared subsequent to the changes having been made. At the request of the defendant Robert Lightner, plaintiff prepared a ninth change order in October of 1970, which admittedly amounted to an after-the-fact effort to allocate actual expenditures made, rather than any definitive specified changes and amounts incurred thereby. Defendant Robert Lightner testified that he did not prepare any written change orders because plaintiff’s vice-president Walz advised him that plaintiff had change order forms and would do it for him. Plaintiff Walz testified that he did prepare change orders No. 1 and No. 2 in April of 1969, one of which made a change in the slip form, and the other of which deleted the electrical, mechanical, slip form, glazing and elevator contracts from plaintiff’s contract and made those contractors prime contractors with the defendant-owner. He testified that he prepared change orders No. 3, 4, 5, 6, 7 and 8 at the request of the defendant after said changes had already been made, and that he caused proposed change order No. 9 (Exhibit G-7) to be prepared at defendant Lightner’s request in late summer of 1970, for something to justify actual construction costs. Plaintiff’s project coordinator, Sigler, testified that he made changes in the construction without written change orders because he felt that he was obligated to when such changes were directed or approved by the defendant Lightner. The net result of this procedure, or lack [of] procedure, was that hundreds of changes were made during the actual construction without benefit of any written change order or other contemporary record.
“No. 8
“Plaintiff originally commenced this law suit on the theory that Exhibit No. 1, the contract, was in effect a cost-plus fixed fee contract. After the Court’s previous interpretation of the contract, referred to in an earlier finding, both plaintiff and defendant were obliged to submit evidence to determine what changes and/or additions were made to the original work contemplated by the contract, and the net amount owing to plaintiff by defendant resulting therefrom — after allowing credit for deletions or omissions from the original work which resulted from some changes. Plaintiff offered evidence through the testimony and records of several of its subcontractors. In some instances the subcontractor did keep contemporary records of changes and additions. Plaintiff also prepared a 90 page book, admitted .as Exhibit 17, which purported to show differences between the amounts expended on various items, as compared to the amount originally contemplated, in what was referred to in Exhibit 17 as ‘base contract amount.’ The defendant followed a different approach. It prepared Exhibit No. T, a 218 page book prepared by defendant’s representatives going through the completed motel room-by-room, and itemizing changes in the finished construction from the original architectural plans and finish schedules, and allocating amounts for additions and deletions from the original contract price resulting from such known variations. The contents of both Exhibit 17 and Exhibit T were the subject of extensive testimony in the trial.
“No. 9
“After considering the testimony of all witnesses, and after studying the exhibits 17 and T, as well as other documentary evidence including the records of subcontractors, the Court finds that the best evidence of the changes and additions made to the original work and the net amounts owing therefrom by the defendant to plaintiff are as shown by Exhibit T, with three exceptions which will be dealt with in the succeeding findings.”
The three areas where the court did not accept defendant’s Exhibit T were in painting, dry wall and plastering, and structural steel. As to the first it found that the original contract called for painting in accordance with Hamman’s original bid of $65,146. Later changes ordered or approved by Lightner ran the painting bill to $127,418.24. Plaintiff C. & W., it held, was entitled to recover the full difference of $62,272.
On the dry wall and plastering it found the contract originally contemplated work covered by the subcontractor s bid of $97,353. When changes began to pile up the subcontractor demanded and received a new, cost-plus contract. The court found from circumstantial evidence that Lightner knew of and approved this modification. The total bill for this work was $289,393.86, and the court held that C. & W. would recover the full difference of $192,040.86.
As to the structural steel, and in particular the reinforcing steel known in the trade as “rebar,” the court in No. 12 made what it referred to as “subfindings.” Recause they illustrate the careful consideration given by the trial court to the mass of complex and often contradictory testimony before it, we quote them in full:
“(a) Both the Supplemental Agreement of February 28, 1969, and the Supplemental Agreement of May 15, 1969, recite that at the date of execution of the contract, Exhibit 1, specific plans and specifications had not been finalized or determined to the extent that the contractor was able to make a firm bid for the construction.
“(b) As has heretofore been found by the Court, the architectural plans were completed prior to execution of No. 1 and were used by the plaintiff in preparing his take-off and bid.
“(c) The structural plans, as opposed to the architectural plans, were not completed as of the date of the execution of No. 1, and were in fact not completed until after the date of the second Supplemental Contract, May 15, 1969, as shown by the testimony of William Keltner of Professional Engineering Consultants, the structural architect designated in No. 1, whose testimony in this regard was corroborated by that of George Christopher, the steel supplier.
“(d) At the time of the execution of No. 1 tire structural plans did not include the top three floors of the building, nor the roof and some other areas. At the time the existing plans indicated to Christopher and to one Dick Plartwell, an engineer at PEC who was working on the plans, a need for some one thousand tons of reinforcing steel.
“(e) Christopher signed a contract (Exhibit 2) with the defendant on November 25, 1968, to supply the steel for the construction of this hotel, but due to the incomplete structural plans Exhibit 2 amounted only to a unit price contract since the quantity involved could not be determined. Christopher did supply the steel on this project and had no further written contracts.
“(f) At the time of the execution of No. 1, and shortly prior thereto, both plaintiff’s Walz and defendant’s Lightner, and defendant Lightner himself, were advised by Christopher and by Keltner and Hartwell of PEC that there would be more steel needed in the construction than was shown on then existing plans. Keltner testified that he had made a ‘qualified’ and ‘not-detailed’ estimate that an average of 1300 tons would be required plus an additional amount that he didn’t have sufficient information to even estimate. Christopher estimated that 1350 tons would allow a 50 ton cushion, but would only bid on unit price with the quantities to be determined as the plans were completed.
“(g) At the time of the execution of No. 1, both plaintiff and defendant were well aware that completed structural plans would show the need for additional rebar steel. They were at that time attempting to reduce plaintiffs bid to an amount acceptable to defendant in order to commence construction, and in making his reduced bid plaintiff allowed for only the 1,007 tons of rebar then disclosed. As the structural plans were completed and the building was constructed it eventually required a total of 1607-and-one-fourth tons of rebar steel.
“(h) Notwithstanding defendant’s position that plaintiff could estimate steel requirements from the architectural plans, it was the testimony of both the steel supplier, Christopher, and the structural architects, PEC, and the Court finds it to be true, that it was not possible to accurately estimate reinforcing steel needs from architectural plans.
“(i) In view of the completed architectural plans, and the incomplete structural plans, if the reference in the supplemental agreements to incompleted plans and specifications are to be accorded any significance or meaning, they must be interpreted to make reference to the incomplete nature of the structural plans at the time of the execution of the contract.
“(j) The additional cost to plaintiff for reinforcing steel over and above the amount known at the time of the execution of the contract was $53,347.”
The court therefore permitted C. & W. to recover the extra $53,347.
The judgment rendered was for the three specific increases described above, less amounts previously paid, or a net of $142,045.86; interest (on the liquidated portion of the judgment) in the amount of $14,891.14; and for all other changes reflected in Exhibit T in the amount of $79,255.91. The total judgment in favor of C. & W. was for $236,192.91, which was promptly paid.
C. & W. filed a motion for a new trial and one to amend the findings, for additional findings, and to amend the judgment. In these motions it essentially urged once again that the trial court should find the dealings of the parties had converted the agreement into a simple cost-plus contract, with no guaranteed maximum. The court overruled both motions and plaintiff C. & W. appeals.
As its first and primary point on appeal C. & W. urges that when the project manager Lightner order countless changes without requiring written change ordered, and when Motel paid its first fourteen billings without question, C. & W. was justified in assuming that all costs would be paid without regard to the guaranteed maximum stipulated in the written contract. This conduct, it argues, constituted a waiver or tacit modification of the written contract, and estops Motel from asserting the writing as a defense.
In support of its position C. & W. relies on cases typified by Bailey v. Norton, 178 Kan. 104, 283 P. 2d 400. There a house was to be built for a maximum cost of $36,500.00, plus the contractor’s fee of 10% of the actual cost. The contract required that “major” changes be agreed upon in writing. The owner made oral changes, and agreed to pay for them, which added $11,779.96 to- the cost. It was held that the contractor could include the additional cost in computing his fee even though the changes were not in writing, the court quoting with approval from Hill v. Maxwell, 71 Kan. 72, 75, 79 Pac. 1088:
“ ‘It is well settled, that the terms of a written contract cannot be varied by any previously executed contract, written or parol, nor by any contemporaneous parol contract. It is equally well settled, that the terms of a written contract may be varied, modified, waived, annulled, or wholly set aside, by any subsequently executed contract, whether such subsequently executed contract be in writing or in parol.’ (Todd v. Allen, 18 Kan. 543, 545. See, also, 29 A. & E. Encycl. of L. 829.)”
That rule was followed recently in Steffek v. Wickers, 211 Kan. 342, 507 P. 2d 274, where we held that an owner who ignored the contract’s requirement of the architect’s approval of work during construction, and who moved into the building without securing the architect’s final inspection certificate, thereby waived the contractual provision making such a certificate a condition precedent to final payment of the contract price. Since the owner had consistently ignored the architect, the contractor could maintain a suit for the balance due on the contract despite the absence of a final inspection certificate.
Similar reasoning was employed in Owens v. City of Bartlett, 215 Kan. 840, 528 P. 2d 1235, where we held the city had waived the requirement (in a water line contract) that change orders be in writing by ordering extra rock excavation and authorizing the rental of special equipment to do the work. This conformed to the parties’ consistent conduct whereby they, “throughout the performance of the contract, entirely disregarded the stipulation [that changes be in writing].” (Id., p. 845.) The city was liable, we said, for the extra work it had ordered and promised to pay for.
These cases, however, do not help plaintiff hére. It may well be that Motel waived the requirement that changed orders be in writing. If so, it would be liable for any excess costs occasioned by any change it had ordered, despite the lack of a written change order. As we see it, that is exactly what the trial court held. Despite the lack of written change orders it held Motel liable for net increases over the guaranteed maximum cost in the amount of $386,915.77.
What the trial court repeatedly refused to find was an implied waiver of the guaranteed maximum cost. It first found that there was such a maximum when it considered the declaratory judgment action on September 8, 1971. Considering the documents alone that decision was clearly correct, and the parties were bound by the contract unless there was a subsequent waiver. The court reconsidered the question and reaffirmed its decision in its mid-trial substitute for a pretrial order on October 1. By then it had heard four days of plaintiff’s evidence, in which all of plaintiffs primary witnesses had testified and the dealings of the parties had been described at length. Plaintiff’s position and its evidence on waiver had become abundantly clear. In making the October 1 order the court recited that it had considered “the documentary evidence and the oral testimony adduced thus far in the case.” Later, at the conclusion of the trial, C. & W. specifically requested findings on waiver, and still later its waiver argument was made once more in its posttrial motions. Each time the trial court rejected the idea of waiver and found that the writing controlled.
On appeal we cannot reweigh the evidence, particularly in the face of the trial court’s negative finding that plaintiff did not sustain its burden of proof on this issue. Union National Bank & Trust Co. v. Acker, 213 Kan. 491, 516 P. 2d 999; Short v. Sunflower Plastic Pipe, Inc., 210 Kan. 68, 500 P. 2d 39. There was no undisputed evidence of waiver which the trial court ignored. Motel’s position throughout was that it was perfectly willing to pay any extra costs resulting from changes it ordered, but expected the basic job to be done within the guaranteed maximum.
C. & W. is a large corporation, operated by experienced and sophisticated businessmen. It was dealing in large sums of money and had twice guaranteed its maximum cost in writing. The trial court may well have reasoned that if C. & W. really thought there was to be a new cost-plus contract to- supersede the old one — one with no guaranteed maximum — it would at least have reached a clear and definite oral understanding to that effect. The plastering subcontractor, when its costs began to mount, had secured a new contract in writing. There is no testimony that C. & W.’s agents ever even discussed a new contract or a modification of the old one with anyone. There is certainly no evidence of a specific promise by Motel to pay all costs. We cannot say that on this record the trial court was bound to find a waiver.
We hold that the trial court did not err in finding that the written guaranteed maximum cost was binding, subject to adjustment for changes and additions ordered by the owner.
In its second point C. & W. argues that, assuming the trial court’s construction of the contract was correct, it nevertheless erred in computing the amount of the judgment for the three areas of painting, dry wall and plastering, and structural steel. It points to alleged discrepancies between various bits of testimony and the final amount reached by the court. It says the court did not consider, for example, such items as: indirect labor costs, based on a claimed industry standard of 15% of the actual cost; costs for rescheduling the elevator; increased performance bond premiums; waste disposal; fringe benefits to the union; and additional security.
As to all such matters we are bound by the principle that “It is not the function of appellate courts to make an independent accounting of formidable accounts in order to determine the precise correctness of particular findings.” (Smith v. Derby Oil Co., 147 Kan. 300, 76 P. 2d 846, Syl. ¶ 1. See also, Allen County Comm’rs v. Board of Education, 142 Kan. 770, 772, 51 P. 2d 973; City of Oswego v. Condon, 124 Kan. 823, 262 Pac. 542.) This court will disturb the trial court’s findings of fact on such an account only where “manifest or demonstrable error appears.” (Smith v. Derby Oil Co., supra.) Any errors in this accounting are at best debatable and cannot be said to be “manifest or demonstrable.”
In particular C. & W. complains that it was docked for steel not used when two of the four roof-top signs shown in the architectural drawings were not erected. Despite such drawings it says the original bids called for no signs at all, and it should have had an addition for the two it built rather than a deduction for the two not built. This issue, like the other matters raised under this point, was a factual matter to be determined by the trial court. It did so on conflicting evidence, and we cannot upset its findings on appeal.
C. & W.’s third point on appeal is that, again assuming the court correctly construed the contract, it erred in using defendant’s Exhibit T as a basis for its judgment. That exhibit, as noted in finding No. 8 quoted above, was a room-by-room comparison of the completed motel with the original architectural plans and finish schedules, allocating amounts for additions and deletions from the original contract price. On this issue plaintiff offered, instead, its own exhibit 17. The trial court found from all the evidence that, with the three exceptions described above, Exhibit T was “the best evidence of the changes and additions made to the original work and the net amounts owing therefrom by the defendant to plaintiff.” (Finding No. 9, supra.)
C. & W.’s first objection to Exhibit T is that it represents the opinion of Lightner, who, it contends, was not qualified to render one. Whether he was qualified or not was a matter for the trial court’s discretion. Barnes v. St. Francis Hospital & School of Nursing, 211 Kan. 315, 507 P. 2d 288; Avey v. St. Francis Hospital & School of Nursing, 201 Kan. 687, 442 P. 2d 1013. Although Lightner had never before been involved in a high-rise motel, he did have twenty-five years’ experience in the construction business. We cannot say there was an abuse of discretion in receiving his opinion by admitting Exhibit T into evidence.
The second and more substantial objection to Exhibit T goes to its accuracy. C. & W. challenges its sufficiency as “substantial competent evidence” on which to base a judgment. The difficulty with this argument is that in the absence of Exhibit T there would be no reliable evidence at all of the cost of changes except in the three special areas of painting, dry wall and plaster, and structural steel. Plaintiff started out relying on its ninth proposed change order which “admittedly amounted to an after-the-fact effort to allocate actual expenditures made, rather than any definitive specified changes and amounts incurred thereby.” (Finding No. 7, supra.) It was just “something to justify actual construction costs.” (Ibid.) When the October 1 order was entered it became apparent that the trial court felt that “both plaintiff and defendant were obliged to submit evidence to determine what changes and/or additions were made to the original work contemplated by the contract, and the net amount owing to plaintiff by defendant resulting therefrom.” (Finding No. 8, supra.) C. & W. then prepared its Exhibit 17. It soon developed, however, that Exhibit 17 was but a restatement of change order No. 9, i. e., it also was the result of taking the total costs incurred and working backward to spread them over work done. Like change order No. 9, it could in no sense be said to reflect any actual relationship between the various changes ordered and specific cost increases. There was, therefore, ample justification for the court’s finding that Exhibit T was the “best evidence” of the changes ordered and their effect on costs. Even then the court did not accept it at full face value; it relied on better evidence where it was available in the three areas discussed above. In the absence of anything better the trial court was justified in basing its determination of additional costs, at least in part, on Exhibit T.
The final point on appeal is that the court should have sustained C. & W.’s posttrial motions for the reasons previously urged. From what has been said it is apparent there was no error in this ruling.
The judgment is affirmed.
approved by the court.
Fromme and Prager, JJ., not participating. | [
80,
122,
-48,
-34,
74,
-64,
10,
-104,
123,
-92,
-73,
95,
-19,
-58,
4,
121,
-74,
127,
80,
97,
-89,
-77,
7,
104,
-46,
-13,
-13,
-59,
-15,
77,
116,
-44,
72,
33,
-126,
-107,
-26,
-64,
-41,
88,
78,
-124,
26,
-27,
-47,
1,
48,
91,
-124,
79,
49,
-115,
-5,
44,
24,
-53,
44,
42,
95,
41,
-15,
-15,
-54,
5,
127,
21,
17,
6,
-98,
7,
-8,
12,
-104,
-11,
40,
-88,
83,
-74,
-124,
100,
101,
-37,
45,
38,
98,
32,
81,
-17,
-24,
-68,
46,
-12,
-115,
-89,
-78,
120,
26,
1,
-66,
-99,
120,
16,
6,
-66,
-29,
21,
91,
104,
3,
-114,
-42,
-13,
15,
116,
-120,
-101,
-17,
-125,
33,
112,
-49,
-96,
94,
102,
123,
19,
23,
-74
]
|
The opinion of the court was delivered by
Schroeder, J.:
This is an original action in quo warranto brought pursuant to Art. 3, § 3, of the Kansas Constitution and K. S. A. 60-1201 et seq.
At immediate issue is a position on the Kansas adult authority claimed by the rival appointees of the immediate past governor, Robert Docking, and the present governor, Robert Bennett.
The legal issue is whether the provisions of K. S. A. 22-3707 providing for senatorial confirmation of gubernatorial appoint ments to the Kansas adult authority is constitutional. Involved in the determination of this issue is whether a vacancy existed on the Kansas adult authority to which Carolee Leek (plaintiff) could be appointed by Governor Bennett, and whether the Kansas Senate could lawfully non-confirm and reject the appointment of Franklin Riddle Theis (defendant) by Governor Docking. On May 9, 1975, this court also directed the parties to brief the question of whether the defendant, Franklin Riddle Theis, was deprived of any constitutional right by the failure of the Kansas Senate to afford him a hearing before acting upon his appointment to the Kansas adult authority.
The Kansas adult authority, hereafter referred to as the Authority, is a state agency created by legislative act appearing at K. S. A. 22-3707. (L. 1970, ch. 129, § 22-3707; L. 1972, ch. 317, § 80; and L. 1973, ch. 339, § 60.) The Authority is designed to supersede the state board of probation and parole. The Authority consists of five members who serve four year terms, and who are “to be appointed by the governor with the advice and consent of the senate.” The three members of the state board of probation and parole were to remain members of the newly created Authority. Provision was made for two new members to join the Authority with terms commencing July 1, 1974.
The facts are stipulated. On January 2, 1975, defendant, Franklin Riddle Theis, was appointed a member of the Authority by Robert Docking, then governor of the state of Kansas, for a term to expire on June 30, 1978. Since K. S. A. 22-3707 provides for the appointment of members of the Authority by the governor with the advice and consent of the Kansas Senate, on January 9, 1975, Governor Docking submitted to the senate a letter recommending the appointment of Mr. Theis. Although the letter was received by the president of the senate on January 10, 1975, the letter was not entered in the journal of the senate until March 25, 1975.
Prior to Governor Docking’s recommendation being entered in the journal of the senate, the newly elected governor, Robert Bennett, in a letter to the president of the senate dated March 24, 1975, advised the senate of his desire to change the composition of the Authority and other boards to be representative of the geographical, racial and sex mix of our Kansas population, and generally responsive to the philosophical thrust of his new administration “as it attempts to reorganize government, to reduce administrative costs, to increase the effectiveness of personnel and to carry forward those basic governmental programs that are so badly needed in this state.” (Journal of the Senate, March 25, 1975, p. 463.) In one March 24, 1975, letter to the senate, Governor Bennett supported senate confirmation of numerous appointees of former Governor Docking. But, in another March 24, 1975, letter to the senate, Governor Bennett recommended that the appointment of the defendant and seventeen other Docking appointees be not confirmed by the senate. (Journal of the Senate, March 25, 1975, pp. 463, 464.) Governor Bennett and several senators indicated this recommendation for non-confirmation should not be taken as a reflection either on the capability or integrity of the defendant and other Docking appointees. Indeed both claimants stipulate to the general qualifications of their adversary in these proceedings to fill a vacancy existing since July 1, 1974.
On March 25, 1975, the defendant’s appointment was set as a special order of business for the senate for the next day. By this action the matter of the appointment of the defendant was not referred to a senate committee for consideration, prior to the full senate’s action on his appointment.
On March 26, 1975, the defendant by letter dated and delivered to the president of the senate, prior to a vote on his appointment, requested a senate hearing on his appointment. However, no senate hearing was held concerning defendant’s appointment. Instead, the full senate by its action rejected the appointment of the defendant. The vote of the senate was on “bulk roll call.” Twenty-six republican senators voted to reject the defendant’s appointment, thirteen democratic senators voted to confirm the defendant’s appointment, and one democratic senator was recorded as absent or not voting.
Effective March 26, 1975, Governor Bennett then appointed the plaintiff to a position of membership on the Authority for a term to expire on June 30, 1978, the same position of membership claimed by the defendant under the appointment of Governor Docking. Plaintiff’s appointment was then submitted to the senate for confirmation on March 26, 1975. (By letter addressed to the president of the senate dated March 25, 1975, the executed appointment of plaintiff by Governor Bennett as a member of the Authority was submitted to the senate for its confirmation. The letter was entered in the journal of the senate for March 26, 1975. Governor Bennett, by letter dated April 9, 1975, to the president of the senate, advised that the date of his letter was incorrectly typed as March 25, 1975, and that his appointment of plaintiff was made on March 26, 1975, following the above mentioned senate rejection of defendants appointment. )
The plaintiff’s appointment was referred to the committee on federal and state affairs, and on April 8,1975, it recommended the plaintiff’s membership on the Authority be confirmed. On April 9, 1975, the senate consented to and confirmed the appointment of the plaintiff.
Since the action of the senate rejecting the defendant’s appointment, the appointment of plaintiff to the position formerly held by the defendant, and plaintiff’s confirmation by the senate, the defendant has attempted to occupy the office and exercise the duties of a member of the Authority. Hence an original action in quo warranto was brought before this court, pursuant to Art. 3, § 3, of the Kansas Constitution and K. S. A. 60-1201 et seq., to determine which party is entitled to the office in question.
On April 18, 1975, the attorney general for the State of Kansas, Curt T. Schneider, moved to intervene as a party defendant pursuant to K. S. A. 1974 Supp. 60-224 (c) (2). (The attorney general had previously filed attorney general opinion 75-151, concluding that senate review is unnecessary to validate or invalidate a lawfully executed gubernatorial appointment.) On April 21, 1975, the motion to intervene was granted. A motion to intervene by Arthur R. Diaz, a Docking appointee to the Kansas civil rights commission, who was also rejected and non-confirmed by the senate, was denied. However, he was given leave to file a brief amicus curiae pursuant to K. S. A. 1974 Supp. 60-2701, Rule No. 8 (h). Applications for leave to file a brief amicus curiae were also granted to both the Office of the Governor and the Kansas Senate, the Kansas House of Representatives and the Kansas Coordinating Council.
On this state of the record oral arguments were set and heard before the court on June 2, 1975. After duly considering the briefs and oral arguments of the respective parties, this court entered judgment for plaintiff in Leek v. Theis, 217 Kan. 277, _P. 2d _, (decided June 3, 1975), as follows:
“Upon due consideration by a unanimous court, we conclude the challenged act is not constitutionally infirm. Pursuant to K. S. A. 60-1204, judgment is rendered in favor of plaintiff ousting the defendant from membership on the Kansas adult authority, and the defendant is ordered to deliver to the plaintiff all the books and papers in his custody or within his power belonging to the Kansas adult authority. This brief opinion announcing our decision will be implemented by a formal opinion to be filed when it is prepared.”
At the threshold the court must determine whether there was a vacancy in the position of membership to which the plaintiff was appointed by Governor Bennett.
In Barrett v. Duff, 114 Kan. 220, 217 Pac. 918, three defendants, Duff, Crawford, and Greenleaf, were appointed and commissioned state oil inspector, judge of the court of industrial relations and a member of the public utilities commission, respectively, by Governor Allen at various times in 1921 and 1922. The court directed attention to the statutory provisions: (1) With respect to the state oil inspector the governor shall appoint some suitable person “whose term, when confirmed by the senate, shall be for four years” (L. 1913, ch. 200, § 2); (2) with respect to the court of industrial relations, the judges were to be appointed by the governor “by and with the advice and consent of the senate” (L. 1920, ch. 29 § 1); (3) with respect to appointments to the public utility commission, commissioners were to be “appointed by the governor, by and with the advice and consent of the senate.” (L. 1921, ch. 260, § 1.) Pursuant to the statutory authorization in January 1923, the legislature convened, adopted a motion to consider recess appointments, and referred the Allen appointees to committee. In February and March of 1923, newly elected Governor Davis submitted to the senate the names of the three plaintiffs, Barrett, Goodrich and Rice, for the positions occupied by the defendants. On March 7, 1923, the senate confirmed the appointments of Governor Allen, the defendants. Nevertheless Governor Davis issued commissions to plaintiffs, and a quo warranto action was brought. The court held there must first have existed vacancies in the respective offices. In the opinion the court said:
“. . . An office may not be filled by a new incumbent until it is vacant. An office is not vacant so long as it is supplied in the manner provided by the constitution or law with an incumbent who is legally qualified to exercise the power and perform the duties which pertain to it. It is vacant when it has- no incumbent authorized to perform its functions. . . .” (p. 232.)
The power of the governor to make a valid appointment to an office or position of membership then does not arise until there is a vacancy in fact. (63 Am. Jur. 2d, Public Officers and Employees, § 127 p. 707, 708.) An incumbent’s title, if valid, cannot be extinguished or affected by the governor’s erroneous judgment that the office is vacant. (Barrett v. Duff, supra, and Lynch v. Chase, 55 Kan. 367, 374, 40 Pac. 666.)
Here, if Governor Docking’s appointment of the defendant was valid without senate confirmation, the actions oí Governor Bennett in attempting to appoint the plaintiff were of no effect.
Three Kansas cases imply the senate’s rejection of the defendant created a vacancy. In Barrett v. Duff, supra, the court held where the appointment to an office is vested in the governor, with the advice and consent of the senate, and the governor appoints a person to the office which is vacant, the appointment vests in the appointee a right to hold for his full term, subject only to be defeated by nonconcurrence or rejection of the senate. (Syl. ¶ 2.) In the opinion it was noted that had the senate rejected the defendants’ appointments, their offices would thereupon have become vacant and the governor would have had the power to appoint other persons to fill those offices. (Barrett v. Duff, supra, p. 234.)
The second case is The State, ex rel., v. Matassarin, 114 Kan. 244, 217 Pac. 930. There the action was to determine both membership, and the office of secretary on the state board of health. This controversy arose at the same time as Barrett, after Governor Davis’ election. The relevant statute concerning membership on the board of health provided for appointment by the governor, by and with the advice and consent of die senate. (G. S. 1915, § 10119.) In determining board membership it was decided:
“. . . [T]hat the appointments of the members, although not acted on by the senate and which have never been rejected by that body, entitles them to hold their offices to the end of their terms or until the appointments are considered and rejected by the senate.” (Emphasis added.) (Syl. f 1.)
The Matassarin opinion also stated if the appointments had been submitted to the senate, and it had considered and rejected them, a vacancy would have been created and the governor would have had power to appoint their successors to' hold during the remainder of their terms.
Driscoll v. Hershberger, 172 Kan. 145, 238 P. 2d 493, was an original action in quo warranto to determine the right of opposing claimants to hold office as a member of the board of regents. At that time the board of regents was organized and existed by virtue of G. S. 1949, 74-3201, as follows:
“There is hereby created a state board to be known as the board of regents . . . the governor shall appoint, with the advice and consent of the senate, nine competent citizens of this state to be and act as the board of regents. . . . Whenever appointments to the board of regents are made when the senate of the state of Kansas is not in session such appointments shall hold until the senate has acted thereon. If the senate shall fail to approve such appointment, the governor shall make a new appointment to fill out the unexpired term of such member who has failed of confirmation. All vacancies in the board shall be filled by appointment by the governor for the unexpired term subject to confirmation by the senate at the next regular or special session of the legislature. . . .”
Briefly stated, Driscoll received a recess appointment as a board of regents member in 1949. His appointment was not approved by the senate at the next succeeding or 1951 senate session.
The specific wording of the statute was of considerable importance in holding that because the senate adjourned without approving plaintiff’s appointment, a vacancy in the office occurred.
In Driscoll the court noted that if the statute under which plaintiff received his 1949 recess appointment was of the same tenor and effect as the statutes involved in Barrett and Matassarin, the plaintiff would have been entitled to hold office “until his appointment was adversely acted upon by the senate or until it expired by lapse of time.” (Emphasis added.)
Although these cases involve offices previously established and occupied, and the instant case involves a newly created position, we deem the difference insignificant. These cases refer to senate confirmation in various manners. Various statutes have used the words “advice”, “consent”, "approval” and “confirmation” as though they were synonymous. (Driscoll v. Hershberger, supra, at 155.) For our purposes here no significant difference is attributable to these terms.
Taken collectively, the foregoing cases compel the conclusion that the senate’s non-confirmation and rejection of the defendant, if valid, did create the necessaiy vacancy in the position to which the plaintiff was appointed. But as defendant and amici argue, these cases did not involve a constitutional challenge to senatorial confirmation.
Here this court is squarely confronted, for the first time, with a constitutional challenge to the validity of a statute requiring senatorial approval or rejection of a! gubernatorial appointment. In other words, may the senate lawfully non-confirm and reject the appointment of the defendant by the governor?
Long-standing and well established mies of this court are that the constitutionality of a statute is presumed, that all doubts must be resolved in favor of its validity, and before the 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. (State, ex rel., v. Fadely, 180 Kan. 652, 658, 659, 308 P. 2d 537; Wall v. Harrison, 201 Kan. 600, 603, 443 P. 2d 266; Moore v. Shanahan, 207 Kan. 645, 651, 486 P. 2d 506; and 16 Am. Jur. 2d, Constitutional Law, § 175, pp. 399-401.)
The policy behind these rules is found in Syllabus ¶ 2 of Higgins v. Cardinal Manufacturing Co., 188 Kan. 11, 360 P. 2d 456, cert. denied, 368 U. S. 829, 7 L. Ed. 2d 32, 82 S. Ct. 51, (1961) as follows:
“A constitution must be interpreted liberally to carry into effect the principles of government which it embodies. It deals broadly with general subjects, and its language should not be interpreted in any narrow, refined or subtle sense, but should be held to mean what the words imply to the common understanding of men. In ascertaining the meaning of a constitutional provision courts consider the circumstances attending its adoption and what appears to have been the understanding of the people when they adopted it.”
Neither this policy nor the rules are challenged in the instant case, and the court applies these standards in evaluating the defendant’s position.
A controversy does arise over the weight to be given the longstanding and widely practiced custom of senate confirmation of gubernatorial appointments. Although not making an exhaustive survey on the point, we note the 1855 territorial legislature in creating a treasury department said in L. 1855, ch. 158, § 1:
"There shall be appointed at the present session of the legislative assembly, by the governor, and with the advice and consent of the legislative council, a territorial treasurer and a territorial auditor of public accounts. . . .”
This is significant because laws in force at the time the constitution was framed are relevant in determining the interpretation of the constitution according to the sense in which the people of the state are supposed to have understood its language. (Leavenworth County v. Miller, 7 Kan. 479, 509, 12 Am. R. 425.)
Mr. Justice Harvey’s concurring opinion in Barrett v. Duff, supra, quotes language used by former governors of Kansas who sought senate confirmation of their appointments. He mentions the legislature of 1863, by chapter 43, provided for a board of directors of the state penitentiary to be appointed by the governor with the advice and consent of the senate. In 1864 he noted the legislature provided for a board of regents for the state university to be appointed by and with the advice and consent of the senate. (L. 1864, ch. 105.) The foregoing indicates the longstanding prac tice by the legislature requiring senate confirmation of gubernatorial appointments.
A review of the legislative history concerning the Kansas adult authority and its predecessors, the state board of probation and parole and the state board of administration, reveal a consistent requirement of senatorial confirmation of gubernatorial appointments. (L. 1973, ch. 339, §60; L. 1972, ch. 317, §80; L. 1970, ch. 129, § 22-3707; L. 1961, ch. 280, § 2; L. 1957, ch. 331, § 3; L. 1939, ch. 285, § 1; and L. 1917, ch. 297, § 1.)
The long history, indicating continued legislative and executive approval of legislation requiring senatorial confirmation of gubernatorial appointments, augments the requirement that the unconstitutionality of K. S. A. 22-3707 must clearly appear. (Sartin v. Snell, 87 Kan. 485, 490, 125 Pac. 47.)
The number of appointments made by the governor which today require senate confirmation is large. An indication is given by the number of appointments submitted by Governor Docking to the Kansas Senate for the 23 boards, authorities and commissions listed in the Journal of the Senate for March 25, 1975. This listing is not exhaustive on the subject. It is said of the governor’s 323 appointments, fully 86 require senate confirmation. (Drury, The Government of Kansas, Rev. Ed. 1970, Univ. of Kansas Press, p. 100.)
As early as 1871 the Kansas Supreme Court in Leavenworth County v. Miller, supra, said:
“. . . [T]his court would hardly assume to declare, in the face of 25 or 26 legislatures that have enacted similar statutes, and 25 or 26 executives that have approved the same, and 25 or 26 supreme courts — state and federal —that have declared such statutes to be constitutional, that this act is clearly unconstitutional beyond all reasonable doubt, or even, that it is clearly unconstitutional.
“But with reference to this particular statute the strongest rule in favor of its constitutionality should be adopted. All presumptions are in favor of its validity. It was not passed through the hurry and bustle of hasty legislation; nor through inadvertance or oversight; nor through whim or capricious fancy; nor through the influences of party drill or party machinery; nor through chicanery, fraud or corruption; but it was passed after due deliberation and discussion. Besides, it is not an isolated statute, standing alone in questionable solitude upon the statute books of Kansas. . . .” (pp. 499, 500.)
While a history of executive and legislative approval of unchallenged statutes does not impart legality to a subsequently enacted statute with the same or similar infirmity, (Wyandotte County Comm'rs v. General Securities Corp., 157 Kan. 64, 79, 138 P. 2d 479), this court deems it probable that had the drafters of our constitution intended that the senate not have powers of confirmation over gubernatorial appointments, they would have prohibited the practice.
The Constitution of the State of Kansas limits rather than confers power, and where a statute is attacked as unconstitutional the question to be determined is not whether its provisions are authorized by the constitution, but whether they are prohibited by it. (Lemons v. Noiler, 144 Kan. 813, 63 P. 2d 177; State, ex rel., v. Ancient Order of United Workmen, 178 Kan. 69, 283 P. 2d 461; State, ex rel., v. Anderson, 180 Kan. 120, 299 P. 2d 1078; and Schumacher v. Rausch, 190 Kan. 239, 372 P. 2d 1005.)
The defendant and defendant-intervenor contend the Kansas Senate may not lawfully non-confirm and reject the appointment of the defendant by the governor. It is contended:
(1) The power to appoint officers in the executive department is inherently an executive function;
(2) The Kansas Constitution contains no express authorization for senatorial confirmation; and
(3) To grant the Kansas Senate powers of confirmation violates the constitutional doctrine of separation of powers.
A brief review of pertinent constitutional provisions will facilitate our examination of the power to appoint. If any provision in the Kansas Constitution supports the defendant’s argument, that the power to appoint officers in the executive department is inherently an executive function, it is Art. 1, § 3 which provides:
“The supreme executive power of the state shall be vested in a governor, who shall see that the laws are faithfully executed.”
The foregoing provision must be viewed in the light of other constitutional provisions, which, so far as applicable, read:
Art. 2, § 1.
“Legislative power. The legislative power of this state shall be vested in a house of representatives and senate.”
Art. 2, § 18. (1974 Supp.)
“Election or appointment of officers; filling vacancies. The legislature may provide for the election or appointment of all officers and the filling of all vacancies not otherwise provided for in this constitution.” (Adopted by vote of the people on November 5, 1974.)
Prior to November 5, 1974, the foregoing provision of the Kansas Constitution was a part of Art. 2, § 19, which read:
“Publication of acts; provision for officers; vacancies. The legislature shall prescribe the time when its acts shall be in force, and shall provide for the speedy publication of the same; and no law of a general nature, shall be in force until the same be published. It shall have the power to provide for the election or appointment of all officers, and the filling of all vacancies not otherwise provided for in this constitution.”
Art. 15, § 1.
“Selection of officers. All officers whose election or appointment is not otherwise provided for, shall be chosen or appointed as may be prescribed by law.”
A thorough review of the briefs of defendant, defendant-intervenor, and amici curiae, as well as an examination of the attorney general’s opinion 75-151, reveals no Kansas authority expressly holding the appointive power is inherently executive.
Justice Harvey in his concurring opinion in Barrett v. Duff, supra, says the majority opinion purported to find authority for filling a vacancy in the office of state oil inspector in Art. 1, § 3, the faithful execution of laws clause previously quoted. Justice Harvey writes:
“. . . But the authorities uniformly hold that such constitutional provision does not confer upon the governor the power to appoint officers, either for full terms or to fill vacancies. The only power the governor has to make official appointments is that conferred upon him by specific constitutional or statutory provisions, and that has been repeatedly recognized, both in our constitution and in our statutes. . . .” (p. 241.)
“A power of appointment is not an exclusive function of the executive, nor has it ever been so considered.” {State, ex rel., v. Kansas Turnpike Authority, 176 Kan. 683, 695, 273 P. 2d 198; and State, ex rel, v. Fadely, 180 Kan. 652, 692, 308 P. 2d 537.)
If there exists in the provisions of Art. 2, § 18 and Art. 15, § 1 of the Kansas Constitution an implied inhibition that the legislature could not appoint members to a board or commission of its own creation, then obviously it could not even appoint members to a board or commission created by its own enactment to perform strictly legislative functions or even its own staff personnel. (See, State, ex rel, v. Kansas Turnpike Authority, supra.)
In Marks v. Frantz, 179 Kan. 638, 298 P. 2d 316, the court rejected a constitutional challenge to a statute enacted by the legislature creating a board of examiners in optometry. There the act required the governor to appoint a board of examiners in optometry consisting of three members “to be selected from a list of four names for each appointment, submitted by the Kansas optometric association or its successor.” (G. S. 1949, 74-1501 [L. 1923, ch. 220, § 4].) After citing Art. 15, § 1 of our constitution the court stated:
“. . . There is no constitutional limitation on who may be appointed, nor any constitutional restriction on the legislature exercising its power as it shall see fit. As a matter of fact the legislature has provided a restricted power of appointment in many instances. . . .” (p. 649.)
A constitutional attack was made upon a legislative enactment creating the office of county auditor in certain counties and conferring upon the district judge the power of appointing a suitable person to such office in Sartin v. Snell, 87 Kan. 485, 125 Pac. 47, and it was held to be a valid exercise of legislative authority. The act was challenged as violating the separation of powers doctrine, and the court noting various means provided by statute for the selection of public officers, said:
“. • • The constitution contains no inhibition upon the power of the legislature to provide as it may deem best the method for the appointment of officers whose election or appointment is not otherwise provided for. On the other hand, the constitution expressly declares that ‘all ofificers whose election or appointment is not otherwise provided for, shall be chosen or appointed as may be prescribed by law.’ (Const, art. 15, § 1.) It will thus be seen that the constitution has placed in the legislature the power to regulate the mode of appointing officers not otherwise provided for. In view of the power thus expressly conferred upon the legislature it seems unnecessary to refer specially to cases from other states, though numerous decisions might be cited where, under constitutions similar to ours, the authority of the legislature to confer upon judges and courts the power to appoint inferior officers whose duties have no connection with the functions of courts is recognized. (The People, ex rel., v. Hoffman et al., 116 Ill. 587, 5 N. E. 596, 56 Am. Rep. 793; The People v. Board of Supervisors, 223 Ill. 187, 79 N. E. 123; The People v. Evans, 247 Ill. 547, 93 N. E. 388; City of Indianapolis v. State, ex rel., 172 Ind. 472, 88 N. E. 687; In re Appointment of Revisor, 141 Wis. 592, 124 N. W. 670.)
“Upon the question whether the power to appoint to office is a legislative, executive, or judicial function the late Mr. Freeman, in a monographic note to People v. Freeman, 80 Cal. 233, 22 Pac. 173, used the following language:
“ ‘The truth is, that the power of appointing or electing to office does not necessarily and ordinarily belong to either the legislative, the executive, or the judicial department. It is commonly exercised by the people, but the legislature may, as the law-making power, when not restrained by the constitution, provide for its exercise by either department of the government, or by any person or association of persons whom it may choose to designate for that purpose. It is an executive function when the law has committed it to the executive, a legislative function when the law has committed it to the legislature, and a judicial function, or at least a function of a judge, when the law has committed it to any member or members of the judiciary.’ (13 Am. St. Rep. 122, 130.)
“It is apparent, therefore, that it is a valid exercise of legislative authority to impose upon the judge of the district court the power of appointing a county auditor.” (pp. 494, 495.)
Defendant and defendant-intervenor direct our attention to a number of cases from foreign jurisdictions. Our Kansas Constitution was modeled after that of Ohio. (Perdue, The Sources of the Constitution of Kansas, in 7 Transactions of the Kansas State Historical Society 131 [G. Martin ed. 1902]; and State, ex rel., v. Fadely, supra, at 699.) Two Ohio cases cited to this court (The State, ex rel. Attorney General, v. Kennon et al., 7 Ohio St. Rep. 546 [1858]; and State, ex rel., v. DiSalle, 172 Ohio St. 363, 176 N. E. 2d 428 [1961]) where legislative enactments requiring that the names of appointees be submitted to the Ohio Senate for its advice and consent were declared unconstitutional, are not comparable to our situation. These decisions were based upon Art. II, § 27, of the Ohio Constitution which reads:
“The election and appointment of all officers, and the filling of all vacancies, not otherwise provided for by this constitution, or the constitution of the United States, shall be made in such manner as may be directed by law; but no appointing power shall be exercised by the general assembly, except as prescribed in the constitution. . . (Emphasis added.)
Article 4, § 18 of the Topeka Constitution of 1855, and Art. 4, § 17 of the Leavenworth Constitution of 1858 each contained a similar provision but the Wyandotte Convention did not adopt that provision.
As a result of the DiSalle decision in the 1961 Ohio general elections a new provision to the Ohio Constitution, Art. Ill, § 21, was adopted. It provides: “When required by law, appointments to state office shall be subject to the advice and consent of the Senate.” (Schroeder, Survey of Ohio Law — Constitutional Law, 13 W. Res. L. Rev., 425, 447 [1962].)
Three Indiana cases regarding the appointment power are urged upon this court by the defendant. (The State, ex rel. Hovey v. Noble et al., 118 Ind. 350, 21 N. E. 244 [1889] [an act creating the offices of commissioner of the supreme court and providing for the appointment of persons to fill them by the general assembly was held unconstitutional]; The State, ex rel. Holt et al., v. Denny, Mayor, et al., 118 Ind. 449, 21 N. E. 274 [1889] [an act permitting the Indiana General Assembly to appoint members of the Indianapolis police and fire department boards was held unconstitutional]; and The State, ex rel. Yancey, v. Hyde, 121 Ind. 20, 22 N. E. 644 [1889] [an enactment providing the Indiana General Assembly may elect the director of the department of geology and natural resources was held unconstitutional].)
These decisions, predicated in part on the Kennon case from Ohio, all involved direct appointments by the Indiana General Assembly to various offices. We are not here faced with that question. While the Indiana Constitution has a provision similar to Art. 15, § 1, of the Kansas Constitution, it also has Art. 3, § 1 which provides:
“The powers of the Government are divided into three separate departments; the Legislative, the Executive including the Administrative, and the Judicial; and no person, charged with official duties under one of these departments, shall exercise any of the functions of another, except as in this Constitution expressly provided.” (Emphasis added.)
A provision similar to Art. 3, § 1 of the Indiana Constitution was in Art. 3, § 1 of both the Topeka Constitution of 1855 and the Leavenworth Constitution of 1858, but was not included in the Wyandotte Constitution of 1859, which Kansas finally adopted. The rigid separation of powers moulded into the Indiana Constitution is not a part of the Kansas Constitution. Our constitution authorizes more flexibility.
Taylor v. The Commonwealth, 26 Ky. (3 J. J. Marshall) 401 (1830) is cited to this court for the language that “Appointment to office is intrinsically ‘EXECUTIVE’ ”, but there the court upheld an appointment made by a court exercising judicial powers. Although the Kentucky Constitution contains an express separation of powers clause, similar to Indiana, in Sinking Fund Commissioners, etc., v. George, etc., 104 Ky. 260, 47 S. W. 779 (1898) a legislative act creating a board of penitentiary commissioners to be elected by the Kentucky General Assembly was upheld. The Kentucky court held that the power to elect officers to fill offices created by statute does not necessarily belong to the executive department and may therefore be conferred by statute upon the legislature. The Kentucky court held:
“There is no express power conferred upon the executive department by the Constitution to appoint such officers or agents which the General Assembly may designate for the direction or control of the penitentiaries. Neither is such power implied from any provision of the Constitution. There is no provision of the Constitution which places any limitation on the power of the legislative department to name or select the officersi or agents necessary to properly manage the penal institutions. Neither is there any provision of the Constitution from which it can be fairly implied that the legislative department shall not elect or select those who may aid or control in the conduct of the affairs of the penal institutions. When the Constitution has imposed no limits upon the legislative power, it must be considered practically absolute. Plenary power in the Legislature for all purposes of civil govern ment is the rule. A prohibition to exercise a particular power is the exception. . . .” (pp. 263, 264.)
(See also the Kentucky opinion in, Sewell and Allington v. Bennett and Levi, 187 Ky. 626, 220 S. W. 517 [1920]; and Elrod v. Willis, Governor, 305 Ky. 225, 203 S. W. 2d 18 [1947].)
The Supreme Court of North Dakota in a landmark case, State v. Boucher, 3 N. D. 389, 56 N. W. 142 (1893), provides an excellent history and summary of the appointment power. Under the common law of England, the sovereign power belonged to the king, and the power to appoint was unquestionably a sovereign prerogative. In this country the sovereignty and the power to appoint have been transferred to the people. It is not exclusively an executive function. (See, Coleman v. Newby, 7 Kan. 82, opinion by Valentine.) The North Dakota court in Boucher said:
“. . . We do not think that all power to appoint to office resides with the governor of a state as an implied executive function in cases where the constitution is silent upon the question. . . .” (p. 395.)
In Kansas it is equally clear the appointment power is not expressly or inherently lodged in the executive. (Barrett v. Duff, supra; State, ex rel., v. Kansas Turnpike Authority, supra; and State, ex rel., v. Fadely, supra.)
Regarding the power of appointment the North Dakota court in Boucher said:
“. . . Unless, therefore, this power resides in the legislature, it is lodged in no part of the government. As to this it will suffice to say that all governmental sovereign power is vested in the legislature, except such as is granted to the other departments of the government, or expressly withheld from the legislature by constitutional restrictions.” (p. 396.)
In evaluating the constitutional philosophy that the residuary power of the people is vested in the legislature, a fundamental distinction must be made between the federal and state constitutions, and the authority of the United States Congress under the one and the state legislature under the other. The federal government is one of delegated, enumerated and limited powers. When an act of Congress is assailed as void, it is necessary to look to the federal constitution for a specific grant of power. 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. (Wentz v. Thomas, 159 Okla. 124, 15 P. 2d 65 [1932]; Ingard v. Barker, 27 Idaho 124, 147 Pac. 293 [1915]; and State v. Boucher, supra.)
The defendant and defendant-intervenor take serious issue with the proposition that the residuary power of the people is vested in the legislature by the Kansas Constitution. The logical conclusion to the defendant’s argument is that there exists a void in the delegation of sovereign power by the people to the various departments of our government. On this premise they seek to distinguish Boucher.
The basis for the defendant’s position has its origin in opinions of the Kansas court written a century ago. Mr. Justice Valentine in Leavenworth County v. Miller, 7 Kan. 479, said.:
“. . . [U]nless the constitution of the State authorizes them [the legislature] to enact such a law as the one now under consideration, they had no authority to do so. . . .” (p. 489.)
Syllabus ¶ 3 of the opinion reads:
“The legislature cannot exercise any power retained by the people, or not delegated by the people to the legislature.”
The foregoing tend to support the defendant’s argument, but other portions of the opinion (see, p. 499) are inconsistent with it. Similar language is found in, The State, ex rel., v. City of Topeka, 31 Kan. 452, 2 Pac. 593 (Valentine, J.); In re Sims, Petitioner, 54 Kan. 1, 37 Pac. 135; The State, ex rel., v. Knapp, 99 Kan. 852, 163 Pac. 181; and Parks v. Board of Comrs., 61 Fed. 436 (D. Kan. 1894).
Statements made in The State, ex rel., v. City of Topeka, supra, that the various branches or departments of the government are simply the instruments of sovereignty, and not the sovereignty itself, are explained in The State v. Durein, 70 Kan. 1, 78 Pac. 152, rehearing, 70 Kan. 13, 80 Pac. 978, aff'd 208 U. S. 613, 52 L. Ed. 645, 28 S. Ct. 567 (1908), where the court said:
“But the people have set the constitution over themselves as a limitation upon their own sovereignty, and it is their duty to obey it precisely the same as officials who are given authority under it. By that instrument a government has been established, and its powers defined and distributed. Among the powers granted are such as are designated legislative, executive, and judicial. These are sovereign powers, and the people, having delegated them to instruments of their own creation, cannot interfere with their exercise. They may meet in their organized political capacity and change the fundamental law, but so long as the constitution stands they cannot legislate, or execute laws, or adjudicate controversies. The recognition of any other doctrine would sound the death-knell of constitutional government.
“It is elementary law that grants of power by state constitutions to state legislatures include all legislative power that is not expressly withheld. . . .” (pp. 36, 37.)
Even if it be assumed a residuary power exists in the people which has not been delegated, Art. 15, § 1 calling for appointments as may be prescribed by law, is an express delegation of power to the legislature. In Coleman v. Newby, supra, Valentine, J., writes:
“ ‘. . . The laws of a State are more usually understood to mean the rules and enactments promulgated by the legislative authority thereof, or long established local customs having the force of laws. . . (p. 92.)
More recent decisions of the court have been consistent on the extent of power granted to the legislature by the Kansas Constitution. In Jansky v. Baldwin, 120 Kan. 332, 243 Pac. 302, (opinion denying rehearing, 120 Kan. 728, 244 Pac. 1036); quoted in Schumacher v. Rausch, 190 Kan. 239, 244, 372 P. 2d 1005, the court said:
“ ‘Under our form of government all governmental power is inherent in the people. Some governmental powers are delegated to congress, or to the federal government, by our federal constitution; those not so delegated are retained by the people. Hence, congress has no legislative power not granted to it by the federal constitution. This is not true of a state constitution. Since the people have all governmental power, and exercise it through the legislative branch of the government, the legislature is free to act except as it is restricted by the state constitution, and except, of course, the grant of authority to the federal government by the federal constitution.’ (p. 334.)”
Other cases in accord with the foregoing are: Wilson v. Clark, 63 Kan. 505, 65 Pac. 705; Sartin v. Snell, supra; Hicks v. Davis, 97 Kan. 312, 154 Pac. 1030, reh. denied, 97 Kan. 662, 156 Pac. 774; and Manning v. Davis, 166 Kan. 278, 201 P. 2d 113.
We conclude the general power of appointment to public office under the Kansas Constitution is not an exclusive function of the executive, and the exercise of the power of appointment is not inherently an executive function. Within constitutional limits the legislature, as representative of the people, can vest the power in its discretion.
We turn next to the defendant’s argument that the Kansas Constitution contains no express authorization for senatorial confirmation of members appointed to the Authority by the governor. Defendant and defendant-intervenor rely in large part on language from State, ex rel., v. State Office Building Commission, 185 Kan. 563, 345 P. 2d 674, where the court said:
“. . . Under the state constitution, the only power granted by the people to the legislature in Article 2 is legislative power.” (p. 568.)
The foregoing statement asserted in isolation is misleading. This court has frequently said that a statement of law in a given case must be tempered by the facts which give rise to its pronouncement. In the State Office Building case the statute under constitutional attack required the governor to appoint a seven member commission for the performance of executive duties entirely from members of the legislature. This was clearly a case confined to the separation of powers, where one department ( the legislative) sought to enact a statute which would usurp the whole power of another (the executive ) by requiring the appointment of legislative members to the commission. In the words of James Madison, “that where the whole power of one department is exercised by the same hands which possess the whole power of another department, the fundamental principles of a free constitution are subverted.” (Federalist No. 47, quoted more fully in Van Sickle v. Shanahan, 212 Kan. 426, 446, 511 P. 2d 223.) Confined to the facts in the State Office Building case the quoted statement was proper, but on the facts here the statement is submerged in the body of constitutional law interpreted by our many decisions some of which are discussed herein.
One of the rules is that where the constitutionality of a state statute is involved, the question presented is not whether the act is expressly or impliedly authorized by the constitution, but whether it is expressly or impliedly prohibited by the constitution. Hunt v. Eddy, 150 Kan. 1, 4, 5, 90 P. 2d 747; State, ex rel., v. Anderson, supra at 125; State, ex rel., v. Fadely, supra, at 692; Schumacher v. Rausch, supra, at 244; and Wall v. Harrison, supra, at 603.
The question concerning the power of the legislature to provide as it may deem best the method for the appointment of officers whose election or appointment is not otherwise provided for was thoroughly discussed in Sartin v. Snell, supra, heretofore quoted at length.
The Kansas Constitution makes no express grant to the governor of appointive power except in specific and limited cases and in express terms. The governor was granted executive power by the provisions of Art. 1, but such grant did not include exclusive, general appointing power. Nothing in the executive article expressly grants the governor appointive power. On the contrary, in the legislative article express provisions are made in Art. 2, § 19 (now Art. 2, § 18), and in Art. 15, § 1 (Miscellaneous) express provisions are made, which generally provide that elections and appointments to offices not otherwise expressly provided for in the constitution are to be
prescribed by law enacted by the legislature. Specific provision is made in Art. 6, § 3 (b) concerning the state board of regents. It provides that the “members shall be appointed by the governor, subject to confirmation by the senate.” Until the constitutional revision of 1972, Art. 7, § 1, similarly provided that trustees of the state benevolent institutions “shall be appointed by the governor, by and with the advice and consent of the senate.” This provision is now deleted from the Kansas Constitution.
The executive article of the Kansas Constitution was before the voters in 1972, and the legislative article was before the voters in 1974. The practice of the legislature providing for the manner of selection and appointment of executive officers and providing for confirmation thereof by the Kansas Senate had over a century of history in Kansas, and the question of confirmation and rejection of gubernatorial appointees had been before the Kansas Supreme Court several times during this period. If the people of Kansas had supposed their constitution to provide for a situation any different than what had been the practice for over 100 years, and had any disagreement with the manner in which this court had applied the various statutes on the subject, they would have addressed themselves to this issue in specific terms within the past three years.
Absent express constitutional prohibition which restricts or limits senate confirmation, the question is whether there is a restriction or limitation implied from the inherent provisions of the constitution which provide for three distinct and separate departments of government — legislative, executive and judicial. Defendant and defendant-intervenor forcefully argue that granting the senate confirmation powers violates the constitutional doctrine of separation of powers.
Like the Constitution of the United States, the Constitution of Kansas contains no express provision requiring the separation of powers, but all decisions of this court have taken for granted the constitutional doctrine of separation of powers between the three departments of the state government. State, ex rel., v. Kansas Turnpike Authority, supra; and State, ex rel., v. Fadely, supra, contain numerous citations. (Coleman v. Newby, supra; In re Sims, Petitioner, supra; In re Davis, 58 Kan. 368, 49 Pac. 160; In re Huron, 58 Kan. 152, 48 Pac. 574; The State v. Johnson, 61 Kan. 803, 60 Pac. 1068; The State v. Railway Co., 76 Kan. 467, 92 Pac. 606, aff'd, 216 U. S. 262, 54 L. Ed. 472, 30 S. Ct. 330 [1910]; Hicks v. Davis, supra; Ruland v. City of Augusta, 120 Kan. 42, 242 Pac. 456; Verdigris Conservancy District v. Objectors, 131 Kan. 214, 289 Pac. 966; and State, ex rel., v. Ancient Order of United Workmen, 178 Kan. 69, 283 P. 2d 461.)
The separation of powers doctrine is designed to avoid a dangerous concentration of power, and to allow the respective powers to be assigned to the department best fitted to exercise them. {Van Sickle v. Shanahan, supra.) In further considering federal constitutional history, the Federalist Papers deal with the separation of powers in the proposed federal government and in the states as well. Federalist Papers Nos. 47 to 51, inclusive, deal with this proposition. The first two of the series were written by James Madison and the last three by Alexander Hamilton. Both Madison and Hamilton were in complete agreement that the constitution, which they had been most influential in framing, provided for the separation of the powers of government between the three departments with a few exceptions. {State, ex rel., v. State Office Building Commission, supra, at 570.)
Beyond the Federalist Papers the separation of powers theory can be traced to the influential writings of Montesquieu who concluded that the separation of powers was the cornerstone of a free government. In Van Sickle v. Shanahan, supra, Chief Justice Fatzer set forth an excellent history on the separation of powers doctrine which does not need further elaboration.
Despite the excellent theoretical framework which various cases have constructed, this court has held the separation of powers of government has never existed in pure form except in political theory. (The State v. Railway Co., supra, at 474; State, ex rel., v. City of Topeka, 176 Kan. 240, 245, 270 P. 2d 270.) This court cannot be overcome by the repetition of theory piled higher and higher in matters concerning the separation of powers before the facts and practical aspects of the problem have been thoroughly exploited by judicial thought. (State, ex rel., v. Fadely, supra, at 693.) We must search for a usurpation by one department of the powers of another department on the specific facts and circumstances presented. (State, ex rel., v. Fadely, supra, at 697; and see, Van Sickle v. Shanahan, supra, at 446.)
Theoretically then it is important to rigidly separate the legislative, judicial and executive functions and prevent officers of one department from exercising another’s functions. However, practically, the absolute independence of the departments and complete separation is both impractical and unintended. (In re Sims, Petitioner, supra, at 11 [Johnson, J., concurring].)
There is no quarrel that our constitution creates three distinct and separate departments. In this respect our state constitution is the same as our federal constitution. (State, ex rel., v. Fadely, supra, at page 696.) In O’Donoghue v. United States, 289 U. S. 516, 77 L. Ed. 1356, 53 S. Ct. 740 (1933) Justice Sutherland aptly said:
“The Constitution, in distributing the powers of government, creates three distinct and separate departments — the legislative, the executive, and the judicial. This separation is not merely a matter of convenience or of governmental mechanism. Its object is basic and vital . . . namely, to preclude a commingling of these essentially different powers of government in the same hands. . . .
"If it be important thus to separate the several departments of government and restrict them to the exercise of their appointed powers, it follows, as a logical corollary, equally important, that each department should be kept completely independent of the others — independent not in the sense that they shall not cooperate to the common end of carrying into effect the purposes of the Constitution, but in the sense that the acts of each shall never be controlled by, or subjected, directly or indirectly, to, the coercive influence of either of the other departments. . . .” (Emphasis added.) (p. 530.)
The defendant forcefully argues the power of advice and consent given to the senate, directly or indirectly, subjects the executive to coercive legislative influences. This question must be evaluated with reference to the specific facts and circumstances involved as our past cases have done in dealing with the separation of powers.
In the Turnpike case, a unanimous court held the appointment of two legislative chairmen, as ex-officio members of a seven member Kansas Turnpike Authority, was not an unauthorized attempt to confer executive powers upon the legislature. (State, ex rel., v. Kansas Turnpike Authority, supra, at 695.) The legislature did not exercise a coercive influence or control by having only two of seven members.
Similarly in the finance council case the court held the appointment of four legislators as ex-officio members of a seven member state finance council, which by unanimous vote of all its members was authorized to expend funds in emergencies and extraordinary circumstances, was constitutional. (State, ex rel., v. Fadely, supra, at 654, 657, 667.) As the concurring opinion of three justices explains, the finance council members, with its representative legislative and executive constituency, had to cooperate in order to function. Without cooperation there could have been no viable state finance council because every member had a veto power. (State, ex rel., v. Fadely, supra, at 694, 695 [Schroeder, J., concurring].) There the legislature could not be said to exercise a coercive influence because cooperation was necessary to act.
In the State Office Building case a statute directing the governor to appoint a seven member commission for the performance of executive duties entirely from legislative members was implied to be a coercive influence in violation of the separation of powers doctrine. (State, ex rel., v. State Office Building Commission, supra, at 574.) There the executive department had no role whatsoever, but was simply given a fait accompli.
Many Kansas cases indicate the legislature may constitutionally restrict, by way of statute, the gubernatorial choice of an appointee by imposing explicit qualifications such as limiting the choice to persons with certain educations, (Jansky v. Baldwin, supra); to residents of a particular town, (The State, ex rel., v. Hunter, 38 Kan. 578, 17 Pac. 177); to members of a certain occupation, (Marks v. Frantz, supra; and The State, ex rel., v. Matassarin, 114 Kan. 244, 217 Pac. 930); to persons of a particular political party, (Goodrich v. Mitchell, 68 Kan. 765, 773, 75 Pac. 1034); or to legislators, (State, ex rel., v. Fadely, supra). How can it then be said that approving the appointee is inherently coercive?
The defendant, in attempting to persuade this court the power of advice and consent of the senate inherently encroaches upon the performance of the executive department of government, and sacrosanct doctrine of separation of powers, must first come to grips with the United States Constitution and the Kansas Constitution which expressly require the advice and consent of the senate in certain instances. If such advice and consent requirement is inherently and always coercive, would it have been expressly included in these documents? We think not. Can the failure to expressly include the advice and consent provisions in the Kansas Constitution for other offices be construed to imply that it is inherently and always coercive? Again we think not.
It is suggested that giving advice and consent powers to the senate transcends the “cooperation” referred to in the Fadely case. Admittedly the recent political relationship between the governor and the senate does not suggest a cooperative effort, but within the inherent nature of the gubernatorial appointment, with the advice and consent of the senate, is a requirement of cooperation and a working of the system of checks and balances. Until legislative re jection and non-confirmation, the gubernatorial appointee holds his office. (Barrett v. Duff, supra.) The senate has only a negative veto. It is no more coercive than the gubernatorial veto of legislation. Indeed, here the decision of the legislature to subject the membership on the Authority to “advice and consent” powers of the senate was subject to gubernatorial veto on the three occasions, when the act creating the Authority and its predecessors was before the governor. (See, No. 2 G. Haynes, The Senate of the United States, 753 [I960].)
The creation of various offices and departments of government not otherwise provided for in the Kansas Constitution is a legislative function. It is also a legislative function to determine the qualifications of the officers and by whom they shall be appointed and in what manner they shall be appointed. The Kansas Constitution contains no limitation on who may be appointed, and there is no constitutional restriction on the legislature exercising its power as it shall see fit. (Marks v. Frantz, supra, at 649; Goodrich v. Mitchell, supra, at 768; and People v. Freeman, 80 Cal. 233, 22 Pac. 173, 13 Am. St. R. 122 [1889].)
It should also be remembered that the confirmation of an appointment of a public officer to a public office is to be distinguished from the appointment itself, for the senate in confirming the appointment does not in any sense choose the appointee. In Attorney General v. Oakman, 126 Mich. 717, 86 N. W. 151, (1901), it was held the act of confirming an appointee to an office was not the exercise of an executive function but was a legislative function under the senate’s procedure.
Assuming the power of appointment to public office is an executive function, such power was exercised and exhausted when the appointment of the defendant was made. The senate in rejecting the appointment was not exercising a power of appointment. (Barrett v. Duff, supra; Marhury v. Madison, 5 U. S. [1 Cranch 49] 137, 2 L. Ed. 60, [1803]; and State Police Bd. of Ind. v. Moore, 244 Ind. 388, 193 N. E. 2d 131 [1963].)
In State v. Boucher, supra, the North Dakota court said:
“. . . The legislative department, as such, has not sought to exercise or to participate in exercising the appointing power. It has simply designated certain existing officers, to wit, the senators, who should thus participate. . . (p. 403.)
In No. 66 of the Federalist, Alexander Hamilton wrote, “there will, of course, be no exertion of choice on the part of the Senate. They may defeat one choice of the Executive and oblige him to make another; but they cannot themselves choose — they can only ratify or reject the choice.” (The Federalist No. 66, at 405, [New American Library ed. 1961].)
If for the purposes of argument it is conceded the appointing act is an executive function, then this executive function may be and is exercised by each of the three departments of government. This is witnessed by the fact that courts appoint clerks, referees and other officers to handle ministerial duties to assist the courts, and the legislature appoints various officers and staff members who are not members of the legislature to provide ancillary services to the legislature. To contend that the appointing act was exclusively an executive power belonging only in the executive department to be exercised only by the governor, would certainly not be consistent with a strict application of the doctrine of separation of powers wherein each department of government must and does perform some executive functions. Thus, what is meant by referring to an appointing act as an executive function is to merely delineate it as something different than a judicial act — interpreting the law, or a legislative act — enacting a bill or a law. A typical example of how the courts have actually applied the use of the phrases “executive function” and “legislative function”, which has been on occasion misapplied to the doctrine of separation of powers, is to be found in the case of State v. Sims, 141 W. Va. 302, 90 S. E. 2d 288 (1955). There the court construed a constitutional provision that when in an extraordinary or special session the legislature shall enter upon no business, except that business stated in the proclamation by which the special session was convened, and held that the phrase “no business” refers only to legislative business, and did not restrict the right of the senate at any such special session to conduct any of its administrative or executive functions, including the consideration of any recess appointments which might have been made by the governor.
If, as is contended, the doctrine of separation of powers prevents any invasion of the functions of one department by any other department, then many activities which are commonplace in government could not be performed, particularly with reference to filling vacancies in the office of judge. There is no interference with judicial power when the governor appoints a judge. When the governor appoints a judge, the appointment is not the exercise of a judicial but of an executive function, but this occurs within the judicial department. If such contentions are correct, we would be driven to the conclusion that a vacancy in the office of a judge must be filled by some judicial body as an incident to the functioning of the judicial system. By the same token neither could the governor make an appointment to fill a vacancy in the legislative department, because again we would be driven to the conclusion that a vacancy in a seat in the legislature must be filled by some appropriate action of the legislature, without the exercise of any executive function of appointment by the governor. But as has been pointed out in Van Sickle v. Shanahan, supra, and State, ex rel., v. Fadely, supra, and the authority cited in those cases, we find many examples of the overlapping of functions primarily the exclusive responsibility of one department being exercised in part by another department.
Granting that the senate, in this case, may lawfully non-confirm and reject the appointment of the defendant by the governor, the next issue is did the senate lawfully non-confirm and reject the appointment of the defendant by the governor? The precise question which the parties were directed to brief is whether the defendant, Franklin Riddle Theis, was deprived of any constitutional right by the failure of the Kansas Senate to afford him a hearing.
A matter of concern is whether the due process provisions of the Fourteenth Amendment, which provide “nor shall any State deprive any person of life, liberty, or property, without due process of law”, have been violated by the failure to provide a senate hearing. The due process ramifications are an evolving concept with much litigation. (Perry v. Sindermann, 408 U. S. 593, 33 L. Ed. 2d 570, 92 S. Ct. 2694 [1972]; Board of Regents v. Roth, 408 U.S. 564, 33 L. Ed. 2d 548, 92 S. Ct. 2701 [1972]; and Arnett v. Kennedy, 416 U. S. 134, 40 L. Ed. 2d 15, 94 S. Ct. 1633 [1974], reh. denied, 417 U. S. 977, 41 L. Ed. 2d 1148, 94 S. Ct. 3187 [1974].)
This court is compelled to the conclusion no due process violation is present because no property interest is involved, and any possible due process violation is a nonjusticiable political question.
Due process considerations mandate that when an interest involving life, liberty and property rights protected by the Fourteenth Amendment are implicated, the right to some kind of a prior hearing is paramount. (Board of Regents v. Roth, supra, at 569, 570; also, Goldberg v. Kelly, 397 U. S. 254, 25 L. Ed. 2d 287, 90 S. Ct. 1011 [1970].) But the range of interest protected by procedural due process is not infinite. This court must look to the nature of the interest at stake. (Morrissey v. Brewer, 408 U. S. 471, 481, 33 L. Ed. 2d 484, 92 S. Ct. 2593 [1972].)
Here the nature of the interest is the right to hold a public office. Can this be said to be encompassed within the terms ‘liberty” or “property”? We think not.
It is clear the concept of property is not and was not intended to remain static. (Board of Regents v. Roth, supra, at 571, [Procedural due process has extended well beyond actual ownership of real estate, chattels, or money]; Bell v. Burson, 402 U. S. 535, 29 L. Ed. 2d 90, 91 S. Ct. 1586 [1971], [Drivers license]; Goldberg v. Kelly, supra, [Welfare benefits]; Connell v. Higginbotham, 403 U. S. 207, 29 L. Ed. 2d 418, 91 S. Ct. 1772 [1971], [Public employment]; and Stanford v. Gas Service Company, 346 F. Supp. 717, 729 [D. Kan. 1972], [Utility services].) A general guide was furnished by the Roth court which characterized the type of property interest encompassed within the due process clause as follows:
“. . . To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it. It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined. . . .” (p. 577.)
Clearly, it is only a vested right which cannot be taken away except by due process of law. (16 Am. Jur. 2d § 365, p. 694.)
Kansas law clearly establishes the incumbent to a public office enjoys no property or vested interest in public office. In Lynch v. Chase, 55 Kan. 367, 40 Pac. 666, a quo warranto action was brought to determine who was entitled to the office of state penitentiary warden. The court held:
“The office of warden of the state penitentiary is created for the public convenience, and the incumbent of the office is the mere agent of the public, who, by virtue of his appointment, acquires the right to exercise the functions of the office and receive the prescribed compensation until the end of his term, or until such time as there may be a resignation or forfeiture of and removal from the office in the manner provided by law; but he had no property or vested right in such office.” (Emphasis added.) (Syl. ¶ 1.)
In the opinion the court said:
“ ‘Officers are created for the administration of public affairs. When a person is inducted into an office he thereby becomes empowered to exercise its powers and to perform its duties, not for his, but for the public, benefit. It would be a misnomer and a perversion of terms to say that an incumbent owned an office or had any title to it.’ . . .” (p. 372.)
Goodrich v. Mitchell, 68 Kan. 765, 75 Pac. 1034, involved the validity of the veterans’ preference law between rival claimants for the office of superintendent of the Topeka electric-light plant. There the court in upholding the law said:
"The general doctrine is that, in the absence of constitutional limitations, the legislature may prescribe how and by whom offices shall be filled. There is no contract right or property interest in an office, and hence some of the constitutional principles invoked have no application. An office is a public agency, and an officer is a mere agent of the public, entitled to exercise the functions and perform the duties of the office for the public benefit and not for his own. The main consideration in the selection of officers and agents is the public welfare, and the state, like any other principal, may select its agents; may determine for itself who can best accomplish its purpose and whose appointment will best subserve the public good. . . (Emphasis added.) (p.768.)
'‘Office-holding is a political privilege, and the matter of appointment to office is not affected, by the fourteenth amendment or other provision of the federal constitution, and, as has been said, the power of the legislature is supreme in respect to appointments, save as the constitution has limited it. . . .” (Emphasis added.) (p. 772.)
Any contention that the defendant’s position is within a protected property interest is without merit because the defendant holds office subject to senate rejection. (Barrett v. Duff, supra.) His status is more of a de facto officer and until confirmation the defendant has no possible property interest. Federal cases have recognized the distinction between probation and non-probation employees, (Arnett v. Kennedy, supra; and Sampson v. Murray, 415 U. S. 61, 39 L. Ed. 2d 166, 94 S. Ct. 937 [1974]); and between tenured and non-tenured school teachers, (Board of Regents v. Roth, supra). The defendant’s interest is more of an expectancy of employment than any property interest.
The nature of the defendant’s interest cannot be characterized as “liberty”. Admittedly the concept of “liberty” must be broad. (Bolling v. Sharpe, 347 U. S. 497, 499, 500, 98 L. Ed. 884, 74 S. Ct. 693 [1954].) But to be deprived of “liberty” without due process involves damaging the defendant’s standing and association in his community; damaging his good name, reputation, honor or integrity; or imposing on him a stigma or other disability that forecloses his freedom to take another job. (Board of Regents v. Roth, supra, at 573.) Here there is a stipulation that both parties are qualified. The governor and several senators indicated their rejection of defendant was not a reflection on his ability or integrity. We conclude there has been no deprivation of “liberty” here.
The defendant further contends this court can hear and decide the question whether he should have had a senate hearing before his rejection. He urges that senatorial consent, if required, presupposes an investigation. Defendant cities, Barrett v. Duff, supra, which states:
“. . . The fact that the senate is called upon to consent to' or confirm appointments presupposes an investigation upon which to base its judgment as to whether or not it should confirm or reject the named appointee. It is a matter of common knowledge that the senate of Kansas, likewise the senate of the United States, may, and frequently does, investigate the character, fitness and ability of the appointee submitted for its consideration. . . .” (p. 235.)
It is further urged that the defendant’s removal without hearing suggests a lack of fitness. (Wisconsin v. Constantineau, 400 U. S. 433, 27 L. Ed. 2d 515, 91 S. Ct. 507 [1971].) The defendant argues an anomalous situation is created when the governor cannot remove except for cause, but the legislature can remove without a hearing. Despite the defendant’s arguments this court is without authority to decide all of them.
Here the defendant’s claim attacking the failure of the senate to conduct a hearing in rejecting his appointment presents a nonjusticiable political question. In Baker v. Carr, 369 U. S. 186, 7 L. Ed. 2d 663, 82 S. Ct. 691 (1962), the political question doctrine was extensively considered and explored. The opinion noted that the political question doctrine is based upon the doctrine of separation of powers and the relationship between the judiciary and the other branches or departments of government. The court identified and set forth six characteristics or elements one or more of which must exist to give rise to a political question. It said:
“. . . Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.” (p. 217.)
Under the general grant of legislative power to the legislature and the two provisions of the constitution heretofore discussed (Art. 2, § 18 and Art. 15, § 1), the legislature has the power to provide by law the manner of selection of all officers which might not otherwise be provided for in the constitution. (Sartin v. Snell, supra.) Under these provisions there has been a “textually demonstrable constitutional commitment of the issue to a coordinate political department” of the Authority to provide for the manner of selection of all officers, and the manner of filling any vacancies for those positions which might not be otherwise provided in the constitution.
Article 2, § 8 of the Kansas Constitution in part provides:
“. . . Each house shall elect its presiding officer and determine the rules of its proceedings. . . .”
Again there has been a constitutional commitment to the Kansas Legislature for each house of the legislature to be the sole judge of its procedure. For the court to involve itself in determining the advisability and wisdom of the senate’s procedure would result in the court “expressing lack of the respect due coordinate branches, of government.”
The case of International Harvester Company v. Kansas City, 308 F. 2d 35 (10th Cir. 1962), was a sequel to the Kansas case of State, ex rel., v. City of Kansas City, 186 Kan. 190, 350 P. 2d 37, wherein this court had upheld the attorney general superseding a county attorney and then dismissing the action. The appellants contend they had no private remedy under Kansas law to contest the constitutionality of the annexation ordinances which were involved, and that this constituted a violation of due process under the Fourteenth Amendment of the United States Constitution. The federal court held that neither the due process clause nor the concept of equal protection is available to persons seeking to obstruct the ordinary and necessary exercise of the state’s political functions. In the opinion the court said:
“ ‘We have nothing to do with the policy, wisdom, justice or fairness of the act under consideration; those questions are for the consideration of those to whom the State has entrusted its legislative power, and their determination of them is not subject to review or criticism by this court. . . .
“ ‘. . . The power is in the state and those who legislate for the State are alone responsible for any unjust or oppressive exercise of it.’ Hunter v. Pittsburgh, 207 U. S. 161, 178, 28 S. Ct. 40, 45, 52 L. Ed. 151.” (pp. 38, 39.)
The refusal of courts to interfere with legislative process is further demonstrated by Sweitzer v. Territory of Oklahoma, 5 Okla. 297, 47 Pac. 1094 (1897), where the court said:
“. . . The failure of the legislature to properly weigh and consider an act, its passage through the legislature in a hasty manner, might be reason for the governor withholding his signature thereto, but this alone, even though it is shown to be a violation of a rule which the legislature had made to govern its own proceedings, could be no reason for the courts refusing its enforcement after it was actually passed by a majority of each branch of the legislature, and duly signed by the governor.
“The courts cannot declare an act of the legislature void on account of non-compliance with rules of procedure made by itself to govern its deliberations. . . .” (pp. 299, 300.)
It has been held gubernatorial appointments may be summarily rejected. (McChesney v. Sampson, Governor, 232 Ky. 395, 23 S. W. 2d 584, 586 [1930].) A summary removal if authorized by statute, has also been accepted. Gray v. McLendon, 134 Ga. 224, 67 S. E. 859 (1910) involved the removal of a railroad commissioner under a law requiring legislative advice and consent in removal. The Georgia Supreme Court said:
“The office of railroad commissioner is not a constitutional office. It is one created by the General Assembly. The General Assembly in creating this office reserved the right to remove or restore any one filling it and suspended by the Governor . . . It is not required that they [the General Assembly] shall make any kind of investigation or inquiry, or shall have specified reasons for such restoration or removal; but in creating the office the right is reserved to declare the officer restored or removed by a majority of the House and Senate; and this may be done for any reason satisfactory to them. If the General Assembly, without any investigation, special findings, notice, or hearing, were to declare the suspended commissioner restored, would it be illegal? Certainly no investigation, special findings, notice, or hearing would be necessary before the General Assembly could restore a suspended commissioner. If such things are not necessary to restore, they are not necessary to remove. A majority of the members of the House and Senate can either restore or remove a suspended commissioner with or without notice to any one, or any investigation whatever, and without assigning any reason therefor.” (pp. 239-240.)
The court concluded it was powerless to review the action of the governor in suspending, or the General Assembly in removing, McLendon.
We have indicated the various conditions, political party, sex, or occupation, the legislature may impose. Absent arbitrary classification it is not for this court to say they are unconstitutional. This court simply does not inquire into the motives of the legislature. (Schumacher v. Rausch, supra.)
Absent constitutional infringements our court does not examine the wisdom, justice or expediency of legislative actions. City of Wichita v. White, 205 Kan. 408, 469 P. 2d 287; Republic Natural Gas Co. v. Axe, 197 Kan. 91, 415 P. 2d 406 and Tri-State Hotel Co. v. Londerholm, 195 Kan. 748, 408 P. 2d 877.
In conclusion we hold there is no mandatory requirement for senate hearings because no property interest is involved, and inquiring into what type of senate hearing was or should have been given is a nonjusticiable political question.
Finally it is urged that statutes providing for senatorial consent to appointments made by the executive are unconstitutional because they deny the appointees the equal protection of the laws, when other appointments made by the executive do not require such senatorial consent for their validity. This court’s recent decision in Henry v. Bander, 213 Kan. 751, 518 P. 2d 362, and other cases do not support this position. Where the law operates equally upon all officers holding offices of a particular description, it is in no sense discriminatory in character. On the contrary, it is uniform in effect throughout the state and upon all persons of a given classification, here the Kansas adult authority. (Gray v. McLendon, supra at 243; and People v. Barry, 53 Mich. App. 670, 220 N. W. 2d 39 [1974].) As heretofore indicated the wisdom of those classifications is for the legislature.
Judgment is for the plaintiff as heretofore entered by this court on June 3,1975.
Fromme, J., not participating.
Pursuant to Article 3, section 6 (/) of the Constitution of the State of Kansas, the Honorable Frank R. Gray, judge of the district court of the 7th Judicial District was assigned by the Chief Justice to participate in this court’s decision in the foregoing case, vice Fromme, J. | [
52,
-18,
-35,
28,
10,
98,
-102,
18,
123,
-13,
37,
83,
-87,
-38,
21,
123,
-49,
45,
-108,
107,
-93,
-9,
119,
-23,
54,
-13,
-37,
-51,
-77,
95,
-2,
-65,
72,
-80,
66,
85,
70,
-53,
1,
28,
-114,
1,
24,
-15,
-40,
-116,
48,
109,
18,
-114,
17,
30,
115,
40,
25,
-13,
-56,
44,
-39,
-83,
26,
-79,
-117,
-105,
90,
86,
51,
6,
-68,
7,
80,
38,
-40,
48,
0,
-8,
67,
-90,
-122,
-12,
15,
25,
8,
98,
98,
32,
60,
-19,
-92,
-119,
30,
51,
-67,
-90,
-101,
89,
98,
8,
-106,
-100,
84,
86,
11,
-4,
-25,
-124,
87,
-84,
-124,
-117,
-88,
-111,
77,
61,
-118,
59,
-21,
-64,
96,
49,
-56,
-28,
77,
87,
50,
17,
-66,
-76
]
|
The opinion of the court was delivered by
Smith, J.:
This action was to recover money which plaintiff alleged had been wrongfully obtained from him by defendant. Judgment was for defendant. Plaintiff appeals.
Appellee is a dentist practicing at Sedan. The petition alleged that appellant contracted with appellee for a set of a false teeth. The petition further alleged that a set was made by appellee, which did not fit, but that appellant had paid appellee the full price for the teeth before he learned that they would not fit. The petition alleged that appellee then measured appellant for a second set of teeth and sent these to Washington, D. C., and that they did not fit. The petition also contained the following allegation:
“Plaintiff alleges that defendant did not himself construct either the first or second set of dental plates, and that the defendant did not employ his own professional skill or ability therein, but sent the measurements and forms away to parties unknown to plaintiff, who did furnish the material and construct the dental plates in their defective and inefficient condition.
“Plaintiff alleges that had he known when he contracted with defendant to construct the said dental plates of the pinkish-colored material and according to specifically given specifications, that the defendant would not construct the plates of the material and in the manner specified, but instead would send them away for unknown parties to construct without any knowledge of their capacity to build the dental plates according'to specifications given, he would not have engaged the defendant to construct the dental plates.”
. Appellee asked that the above allegations be stricken from the petition. This motion was sustained, and that is one of the matters of which appellant complains. That question will be discussed later.
The answer of appellee alleged that he had constructed the plates contracted for, and stated that if for any reason the plates did not conform with the plates contracted for that he was ready, able and willing to construct them so that they would conform.
The court instructed the jury, among other things, as follows:
“Evidence has been offered to the effect that in the making of a set of plates it is sometimes necessary that the plates be altered or ground down and adjustments made so that they will fit the mouth and be serviceable, and also there is evidence that it is sometimes necessary to make more than one set of plates in order to get a proper fit and to get a set that is reasonably usable as such.
“In this connection you are instructed that if you find from the evidence that among dentists possessed of the usual and ordinary skill it is sometimes necessary that fittings and adjustments be made or that more than one set of plates be made, then it became the duty of the plaintiff to permit the defendant to have a reasonable opportunity to construct a set of plates for the plaintiff. There is nothing in the law that affixes the number of times that a patient must call at the office of his dentist for adjustments or alterations or ■the making off new plates. What constitutes a reasonable opportunity to fit a patient must depend upon the facts and circumstances in each case. There would be a limit each way. Under some circumstances it would be unreasonable for the patient to expect his dentist-to do such work that no fittings or adjustments or new plates would be required. Under some circumstances it would be unreasonable for a patient to refuse to permit the dentist to do these things. Also, under some circumstances it would be unreasonable for the dentist to require the patient to return many times for fittings or adjustments or that he might be given further opportunities to make new plates or to correct his work. As to what is a reasonable opportunity for the dentist to do the work and furnish the things that he may have agreed to furnish is a question of fact to be determined by the jury.
“Under the admitted facts in this case the chief question for you to determine is whether or not the plaintiff has given the defendant a reasonable opportunity to make a good and workmanlike set of plates. If the plaintiff has given the defendant such reasonable opportunity, then the plaintiff is entitled to recover back the $100 that was paid by him.
“On the other hand, if the defendant is ready, able and willing to continue his efforts to make in a good and workmanlike manner a set of plates for the plaintiff, and if the defendant has not been given reasonable time or opportunity to make said plates, then your verdict would be for the defendant.
“In the event that you find for the defendant on the theory that the defendant has not had a reasonable opportunity to make a set of plates for the plaintiff, then you will use the form of verdict wherein you find for the defendant and that there is nothing due the plaintiff at this time for the reason that the defendant has not had a reasonable opportunity to furnish the plaintiff a set of plates.”
The jury returned a verdict as follows:
“We, the jury impaneled and sworn in the above-entitled case, do upon our oath find there is nothing due the plaintiff at this time for the reason that the defendant has not had a reasonable opportunity to furnish the plaintiff with a set of plates.”
After the motion for a new trial was denied judgment was rendered in favor of appellee for costs.
The evidence at the trial was not included in the abstract that was brought to this court.
The first specification of error is that of striking out the portion of the amended petition that has already been referred to. The argument of appellant is that he had a right to assume that when he made a contract with appellee for the construction of a set of teeth that appellee himself would do all the work involved, in his own office. An attempt is made to bring the case under the rules announced a number of times where it has been held that contracts that involved special skill or had a personal element in them could not be assigned. We have concluded that the construction of a set of teeth does not come under this rule. It will be noted that the 1 petition does not allege that appellee induced appellant to believe that he himself would do all the work involved in the construction of the teeth nor does the petition allege that it is due to the work performed by others than appellee that the teeth did not fit. Appellant urges that there was an implied warranty that appellee would do the work himself in the very nature of things. He attempts to draw an analogy between this case and that of a highly trained and skilled surgeon whom one would engage to perform an operation, relying on his special skill and training. It would be a more nearly correct analogy, however, to compare this case with that of a skilled optometrist, who fits a pair of glasses to a patient’s eyes and. then sends a prescription to an optical company, which is equipped with the machinery to grind the lenses according to the prescription. It is such a common practice in the profession of dentistry for dentists to take the impression of the patient’s jaw and do all things that have to do with the fitting of the teeth in the mouth and then send them to what is known as a mechanical dentist for the work of vulcanizing and polishing, that this court will take judicial notice of it. The petition alleges that this is what appellee was doing in this case. We conclude that in doing this appellee was following the recognized practice in his profession, and the fact that he did that constituted no reason why he should not be paid for his services. The language referred to in the petition was properly stricken out.
Appellant also complains of the instructions that were given by the court. It will be seen that the theory upon which the case was tried was that the dentist should have a reasonable opportunity to correct any defects in the second set of teeth of which complaint is made. The petition states that after appellant returned from Washington he “allowed defendant to adjust said plates in his mouth in order to observe their defects, and that they had not been constructed as contracted for, and were so defective that they would not be of any use or service to plaintiff.” It will be noted that there is no allegation that appellee was given an opportunity to correct the defects. There is only the allegation that he was shown what they were. Sometimes a defect in the way a set of teeth fits may be corrected by a little filing away of a place where the plates rub the gums. Sometimes the teeth can be filed and be made to fit. Sometimes the plates can be built up a little in some place so that they will fit. Any of these things might be done in a few minutes. It would be a harsh rule, indeed, that would deprive a dentist of pay for his services on account of defects which could be remedied by a few moments’ work. For all we are able to ascertain from this record, such is the case. The evidence was not brought here, so our review is limited to what appears on the face of the record. (See Everett v. Everett, 110 Kan. 442, 204 Pae. 723; Typewriter Co. v. Andreson, 85 Kan. 867, 118 Pac. 879; Darst v. Swazee, ante, p. 458.)
Appellant urges as error the form of the vei’dict that was submitted. This verdict has been heretofore set out in this opinion. The trouble with this contention is that the attention of the trial court was no.t called to it. If appellant was not satisfied with the form of the verdict, objection should have been made to it when it was submitted, a motion to correct it should have been filed immediately upon its being returned, or it could have been included in the grounds for a new trial. Not one of these things was done, and matter that was not called to the attention of the trial court cannot be urged as an error on appeal.
The judgment of the trial court is affirmed.
Burch, Harvey and Sloan, JJ., dissenting. | [
-48,
108,
-28,
-20,
27,
96,
48,
-101,
84,
3,
39,
19,
-19,
70,
20,
107,
-21,
127,
84,
122,
87,
51,
7,
1,
-46,
-77,
-5,
85,
-7,
107,
-28,
-100,
76,
52,
-30,
-43,
98,
-118,
-28,
-48,
-52,
-106,
9,
-23,
-15,
66,
32,
-2,
82,
71,
117,
-98,
-13,
46,
24,
-49,
72,
44,
-21,
61,
-63,
-48,
-73,
13,
93,
21,
-79,
38,
26,
69,
90,
12,
-120,
49,
16,
-23,
114,
-74,
66,
116,
75,
-71,
8,
118,
98,
32,
25,
-27,
-40,
-104,
47,
126,
29,
39,
-109,
73,
-54,
37,
-74,
-99,
116,
18,
-113,
126,
-28,
77,
-97,
108,
3,
-86,
-46,
-77,
-33,
116,
-100,
-117,
-17,
-110,
17,
97,
-50,
112,
92,
71,
59,
-101,
-98,
-89
]
|
The opinion of the court was delivered by
Burch, J.:
The appeal is from an order of the district court denying a motion to dismiss an appeal from an order of the probate court.
Wallace Was guardian of Clothier, a person of feeble mind. The ward was restored to competency, and the guardian tendered to the probate court a report by way of final settlement. Exceptions were taken to the report. The probate court disposed of the case, and the ward appealed to the district court. In the district court the guardian moved to dismiss on the ground the ward had accepted benefits of the probate court settlement. As indicated, the motion was denied.
The order denying the motion to dismiss was not an appealable order. (R. S. 60-3303; Weigand v. Wilson, 107 Kan. 445, 193 Pac. 1065, and cases cited in the opinion.)
The appeal to this court is dismissed. | [
-111,
-20,
-36,
13,
26,
96,
-110,
-70,
64,
-69,
39,
115,
-27,
-78,
17,
43,
123,
25,
81,
107,
-45,
-77,
83,
-127,
122,
-14,
-101,
-49,
-73,
127,
-12,
58,
76,
48,
2,
-107,
102,
-128,
79,
88,
-114,
7,
9,
-19,
-7,
66,
60,
-93,
22,
11,
85,
-98,
-13,
43,
24,
-61,
8,
40,
-39,
41,
-48,
-72,
-117,
5,
111,
28,
19,
100,
-100,
-25,
80,
46,
20,
49,
0,
-22,
113,
-74,
-122,
84,
107,
-39,
44,
118,
98,
1,
-79,
-17,
-104,
-72,
46,
30,
-115,
103,
-5,
25,
104,
33,
-106,
-71,
125,
50,
7,
-4,
-18,
-116,
15,
108,
-114,
-113,
-106,
-75,
-117,
56,
52,
-117,
-22,
-127,
50,
113,
-113,
-94,
92,
99,
113,
-101,
-114,
-104
]
|
The opinion of the court was delivered by
Harvey, J.:
This is an action for damages for personal injuries in an automobile casualty. The jury answered special questions and returned a general verdict for plaintiff. Defendant has appealed.
Briefly the facts are: Plaintiff, a boy about fifteen years of age, and his sister were riding horses home from high school about 5:30 o’clock the afternoon of October 17,1930. They were traveling west on a state highway which has a paved slab eighteen feet wide with dirt shoulders on each side. Plaintiff was riding his horse along the dirt shoulder on the south side of the pavement and his sister’s horse was along the dirt shoulder on the north side of the pavement. Plaintiff was riding in a slow gallop. He heard the roar of a car behind him and looked back and saw defendant’s car approaching, perhaps a quarter of a mile away. Defendant and his companion were driving west on the pavement in a Hudson coupé. A witness estimated their speed at sixty miles per hour. Plaintiff, on hearing the car coming, slowed his horse to a walk. The horse was a three-year-old, not afraid of cars or nervous about them, but it seems he preferred to travel on the pavement, and on being slowed down stepped to the right onto the pavement. Just at that time defendant had veered his car to the left of the center of the pavement and it struck plaintiff and his horse. The car carried the horse about forty feet and plaintiff about seventy feet and stopped about five hundred feet from the place of collision. Plaintiff was seriously injured.
Appellant contends plaintiff was guilty of contributory negligence as a matter of law. Under the circumstances shown by the record we think that was a jury question.
Appellant next argues that the negligence, if any, of the defendant, was not the proximate cause of the injury. This argument is predicated on the last part of R. S. 8-123, which reads:
“Whenever any person traveling with any vehicle or conveyance on any road in this state shall overtake another vehicle or conveyance traveling in the same direction and shall by sound or call indicate to the driver thereof his or her desire to pass, it-shall be the duty of the driver of the vehicle or conveyance in front, if the nature of the ground or condition of his load will permit it, to promptly turn to the right of the center of the road and the driver of the vehicle or conveyance behind shall then turn to the left of the center of the road and pass by without interfering or interrupting, . . .”
It is argued that under this statute when defendant approached plaintiff and his sister riding horses, one on the dirt shoulder to the right and the other on the dirt shoulder to the left, it became hi's duty to turn his car to the left of the center of the road and that it became the duty of plaintiff to go over to the right side of the road and permit him to pass. Obviously this statute was not drawn with the view of applying to the situation here presented. It is not easy to see that the legislature had in mind horses with their riders when it used the term “vehicle or conveyance.” But, passing that thought, both horses were entirely off the slab as defendant approached. His natural driveway on the right side of the slab was not interfered with or obstructed 'by either of the horses. As long as the horses were off the paved portion of the highway it was immaterial to defendant where they were. (Zinn v. Updegraff, 113 Kan. 25, 213 Pac. 816.) We do not regard this statute as having any bearing upon the case. The question of proximate cause was for the jury.
Appellant complains because the court did not submit certain requested special questions. One which illustrates the others was as follows:
“Did the plaintiff turn his horse on which he was riding to the north and into or in front of the automobile the defendant was driving, thereby causing the collision?”
In the colloquy between court and counsel over the form of this question it was pointed put that the last four words presented an additional question. The court offered to permit defendant to submit the inquiry in two questions, but that was declined. There was no error in the court’s ruling. The question whether plaintiff turned his horse onto the pavement is distinct from whether his doing so caused the collision. Other elements enter into the latter. Appellant cites cases in which complex questions similar to this have been asked, but in those cases either the question here presented was not raised, or the facts were such as not to make them' objectionable.
It is argued that the verdict is excessive, but in view of plaintiff’s injuries, as shown by the evidence, there is no reasonable basis for such argument.
Appellant complains of the court sending the jury back to answer special questions, and of the remarks and instructions of the court given to the jury with respect thereto. Among others, the court had given the following instruction:
“14. In general terms negligence is a failure to do that which ought to be done under the circumstances. It is the omission of a duty required at the hands of a party sought to be charged, as toward another. Where there is no breach of duty there can be no culpable negligence. And it is only for negligence that is of a culpable character that a person can be held responsible under the law. Culpable negligence is the omission of a duty, the omission of which is worthy of blame and deserving of censure.”
The following special questions had been submitted to the jury:
“1. Where, relative to the center of the highway, did the collision take place?
“2. If you find that the defendant was intoxicated, then state in what manner, if any, such intoxication contributed to the collision,
“3. Do you find that the defendant was guilty of culpable negligence toward the plaintiff?
“4. If you answer question No. 3 in the affirmative, then state fully the act, or acts, of culpable negligence of which you find the defendant guilty.
“5. If your verdict herein is in favor of the plaintiff and against the defendant, then state:
“(a) How much do you allow plaintiff for permanent injuries?
“(6) How much do you allow plaintiff for pain and suffering?
“(c) How much do you allow plaintiff for punitive or exemplary damages?”
The jury returned its general verdict for $2,500 and returned answers to the special questions as follows: To the 1st, “Six feet south of center of pavement.” 2d, “Not intoxicated.” 3d, “No.” 4th,-. 5th, “(a) $1,500; (b) $1,000; (c) None.” After the jury had returned the verdict and the answers to the special questions the court, and perhaps counsel for plaintiff, observed that there was a general verdict for plaintiff and that special question .No. 3 had been answered in the negative and No.. 4. had not been answered. We are told there was some colloquy between the court and counsel not shown by the record, but the following is shown:
“The Court: I don’t know whether the jury understood my instructions or not. Instruction No. 14. In general terms negligence is a failure to do that which ought to be done under the circumstances. It is the omission of a duty required at the hands of a party sought to be charged, as toward another. Where there is no breach of duty there can be no culpable negligence; and it is only for negligence that is of a culpable character that a person can be held responsible under the law. Culpable negligence is the omission of a duty, the omission of which is worthy of blame and deserving of censure.
“Attorney for Plaintiff: In the light of the verdict, after your honor has reread them that instruction, if they return and consider question No. 3—
“The Court: Well, they have answered it.
“Attorney for Plaintiff : Maybe after having the court’s rereading of that instruction the jury might want to consider the answer to question No. 3, because it is not consistent with the finding. We ask that the court permit the jury to retire and reconsider special question No. 3.
“The Court: Is there any objection?
“Attorney for Defendant: We certainly have.
“Attorney for Plaintiff: I think if your honor is in doubt about it, you could — we ask that the jury should be polled and asked if they understood this special question.
“The Court: Ladies and gentlemen of the jury, are these your answers to the special questions, so say you all?
“Jurors: We misunderstood that one question.
“The Court: Well, if you say that is not your answer, of course, if all of you say that is your answer to that question that ends it, but if you did not understand the question, if that is not your answer, why it is not ended.
“Attorney foe Plaintiff: One juror indicated that they didn’t understand it.
“The Court: How many of you understand that question? [Ho response from jury.]
“The Court: Do you find that the defendant was guilty of culpable negligence towards the plaintiff. Under the instructions given you by the court was the defendant guilty of negligence of a culpable character that a person should be held responsible for under the law. If the defendant was guilty of no culpable negligence for which he should be held responsible, if he owed no duty to the plaintiff, which he neglected, then your verdict should be for the defendant, or in other words, you can’t find for the plaintiff and against the defendant, and at the same time say that the defendant was not to blame. In other words, you can’t say that the defendant was not to blame and find a verdict for the plaintiff.
“A Juror: We didn’t understand that.
“The Court: Are these your answers to the special questions, or do you wish further consideration of that question?
“Jurors: Yes.
“The Court: All right, I will permit you to take the verdict. I will not receive the verdict or answers to the special questions at this time.
“Attorney for Defendant: At this time the defendant objects to the further referring of this case to the jury for the reason that the jury has performed its duty.
“The Court: I have not accepted the verdict.
“Attorney for Defendant : I understand that your honor has not accepted it, but the jury has performed its duty.
“The Court: No, it has not, because the jury has not told me these are their answers to the special questions. I want twelve of them to agree that these are their answers and this is their verdict, and until they do that I will not accept either. You may return, and you may change all of your answers to the special questions, or you may change your verdict as you desire, under the instructions as the court has given you and the evidence.
“Attorney for Defendant: The defendant renews his-objection to the return of the instructions and the return of the special questions and the verdict to the jury, and objects to the statements made by the court to the jury that they may now, after they have fully considered the case, and returned their answers to the special questions, can take the case and again take the answers to the special questions and make any changes therein.
“The Court: Well, they have not returned their answers; that is, they have not been accepted by the court.
“The Court: All jurors that are not satisfied with each and all of your answers to the special questions, hold up your right hands? ■
. “[Whereupon all twelve jurors held up their hands.]
“The Court: The twelve of you having so indicated, you will be permitted to so deliberate until you are satisfied.”
After retiring for further deliberation the jury returned to the court the same general verdict and their same answers to special questions, except they changed the answer to question No. 3 from “No” to “Yes,” and answered No. 4: “Excessive speeding, not having car under control.” Answers to the special questions and the general verdict were received over defendant’s objection.
It is the duty of the jury to answer special questions as they find the facts to be from the evidence, without regard to how their answers may affect the general verdict. Any instruction or statement by the court to the effect that the answers to special questions should be made with the view that they harmonize with the general verdict is erroneous. (Lynch v. Payne, Agent, 117 Kan. 5, 10, 230 Pac. 85; Railroad Co. v. Burrows, 62 Kan. 89, 61 Pac. 439; Brick Co. v. Zimmerman, 61 Kan. 750, 60 Pac. 1064; Dry-Goods Co. v. Kahn, 53 Kan. 274, 36 Pac. 327; Usher v. Hiatt, 18 Kan. 195; Railway Co. v. Kennedy, 8 Kan. App. 490.)
Some of the language used by the court is open to that interpretation, if indeed it does not compel it, hence the judgment appealed from must be reversed. The practice cannot be permitted of having the jurors’ attention called to the fact that their answers to special questions do not accord with the general verdict, and after doing so and rereading instructions and giving explanations, having the jury again retire to consider their answers to special questions.
It is quite possible the jury was confused by the word “culpable” in connection with “negligence,” used both in instruction No. 14 and in the special questions. While in a strictly legal sense the word was correctly used, to the lay mind it implies something more than negligence. It serves no useful purpose in instructions or special questions in negligence cases, and should not have been used.
Since the action must be tried again, questions of evidence should be discussed. Several witnesses who were with defendant soon after the casualty were asked if they smelled liquor on his breath and some of them answered in the affirmative. Appellant complains of that. It is an offense for one under the influence of intoxicating liquor to operate an automobile on the highway. (R. S. 21-2160.) To commit the offense it is not necessary that he be “drunk” or “intoxicated,” as those terms are ordinarily used. (State v. Hayden, 126 Kan. 799, 271 Pac. 291.) There was no error in the court’s ruling in this respect. After plaintiff’s injury his mother and several others congregated. Statements were made by various persons as to how the casualty happened, or might have happened. Some one present made notations of some of these remarks. The persons present were witnessés at the trial. Defendant offered a copy of these notations in evidence. The court excluded it, and complaint is made of that ruling. There is no error in it. It was far short of a transcript of all that was said. It was used by defendant in the examination and cross-examination of witnesses, which was about the only use which could be made of it.
The judgment of the court below is reversed, with directions to grant a new trial. | [
-16,
126,
-48,
-83,
105,
96,
42,
90,
69,
-105,
-73,
-109,
-85,
-61,
4,
49,
-2,
-67,
85,
43,
-42,
-94,
87,
-78,
-110,
-13,
115,
77,
23,
-56,
110,
103,
77,
48,
-54,
85,
100,
74,
69,
92,
-122,
30,
-69,
-20,
9,
-72,
-76,
122,
22,
75,
33,
-113,
-61,
38,
28,
-45,
41,
40,
43,
-83,
-63,
113,
-53,
5,
127,
2,
-77,
36,
-66,
3,
-40,
8,
-111,
49,
0,
-8,
115,
-90,
-110,
-44,
105,
-101,
8,
-90,
103,
33,
93,
-115,
108,
-103,
38,
126,
15,
-89,
18,
24,
11,
1,
-105,
-99,
122,
48,
15,
126,
-5,
92,
93,
120,
3,
-49,
-106,
-79,
-17,
54,
-106,
5,
-61,
-83,
18,
117,
-50,
-14,
93,
69,
86,
-101,
7,
-66
]
|
The opinion of the court was delivered by
Sloan, J.:
This is an original proceeding in which the plaintiff asks for a writ of mandamus directing the defendants to levy a tax against certain property described in the petition sufficient to pay its proportionate share of certain bonded indebtedness.
A statement of the- facts will disclose the legal questions involved. Some time prior to August, 1930, rural high-school districts numbered nine and ten were organized in Pottawatomie county. Rural high-school district number nine was immediately to the west of district number ten. District number ten contained the village of Belvue and was known as the Belvue district. This district was subsequently enlarged so as to include the city of St. Marys and the surrounding territory. This took the control of the district from the village of Belvue to the city of St. Marys. On September 3,1930, a petition was filed with the county superintendent, signed by seventy-three inhabitants of district number ten, asking that certain territory described in the petition be transferred from district number ten to district number nine, which contained the city of Wamego,. and assigned as their reason for the request that better high-school facilities would be available to the children of the territory described in the petition. The county superintendent, on the filing of the-petition and on September 10, 1930, issued a notice, and caused it to be published as provided by law, that the petition would be heard on October 4, 1930. On October 4, 1930, the parties in the territory appeared by an attorney, and those opposing the petition appeared by an attorney: The county superintendent took the matter under advisement and on October 9 denied the application for the transfer of the territory. On October 11, 1930, notice of appeal to the board of county commissioners was duly served. The county commissioners were in session and on October 16 the matter came on for hearing. The parties appeared by their attorneys and an extended hearing appears to have been had in which evidence was adduced on the part of the appellants. The board of county commissioners sustained the appeal and directed the county superintendent to make the transfer of the territory in accordance with and as provided by law. On December 12, 1930, the county superintendent complied with the order of the county commissioners. On October 17, 1930, a bond election was held in rural high-school district number ten for the purpose of voting $60,000 in bonds to build a schoolhouse. The bonds carried. The inhabitants of the disputed' territory did not participate in the election. The bonds were dated November 1, 1930. They were afterwards duly registered with the county and state, sold, and the money received by the district about January 5, 1931. On January 7, 1931, rural high-school district number ten brought an action in mandamus against the board of county commissioners in the district court asking that the commis sioners be directed to hear and determine the appeal from the county-superintendent. The case was tried March 6, 1931, and the court on the hearing found that the action of the board of county commissioners on October 16, 1930, was invalid for the reason that no sufficient notice of the hearing had been given as required by law. It ordered that the commissioners fix a time for the hearing of the appeal, and cause a notice to be published for two consecutive weeks, stating the time and place where said appeal would be heard. Thereafter, on April 7, 1931, in obedience to the order of the court, the county commissioners in regular session heard and sustained the appeal and ordered the county superintendent to take the necessary steps to transfer the territory described in the petition to district number nine. On May 1, 1931, the county superintendent caused a notice to be published changing the boundaries of the districts. .
The question for our consideration is whether the bonds are a lien on the territory transferred from district number ten to district number nine, and whether the county commissioners are bound to make a levy on such territory to pay its proportionate share of the bond issue.
R. S. 10-119 provides as follows:
“Whenever a part of the territory of any municipality has been detached and attached to some other municipality, . . . such territory shall be liable for the payment of all bonds issued or other indebtedness incurred by such municipality before such detachment . . . and the proper taxing officers of the municipality to which such territory is attached shall levy such taxes upon such attached territory as are necessary to pay its proper proportion of the interest and principal of such bonds or other indebtedness as aforesaid, and such officers may be compelled by mandamus at the instance of the holders of such bonds or other indebtedness to levy such tax.”
It is made the duty of the board of county commissioners in each county to levy an annual tax upon all taxable property in each district sufficient to pay the interest and bonds issued by such district at their maturity. (R. S. 72-2004; Missouri, K. & T. Rld. Co. v. Hays, 119 Kan. 249, 237 Pac. 1029.) It is clearly the duty of the board of county commissioners to levy taxes for the payment of bonded indebtedness in each taxing district, including territory which has been detached from such taxing district subsequent to the incurrence of the bonded indebtedness. This is apparently conceded by the defendants, but they contend that the proceedings to transfer the territory in question from district number ten were commenced and pending at the time the bonds were issued, and that by reason thereof the lien cannot attach to the territory which was subsequently detached from the district. The application asking for the transfer of the territory was filed September 3, 1930. The county superintendent denied the application on October 9, 1930. An appeal was perfected within the time prescribed by law. The bond election was held October 17, 1930. The appeal was heard and determined by the board of county commissioners on April 8, 1931. The county superintendent did not comply with the order of the county commissioners until May 1, 1931, when the notices were posted defining the district boundaries.
Does the doctrine of lis pendens apply to this situation? We think not. The statute precludes its application. The lien created by the bond issue attaches, unless the territory has actually been detached from the district. (R. S. 10-119.) It must be held that the bond issue was at least completed when the proceeds of the sale of such bonds came into the hands of the school district, which, according to the record, was about January 5, 1931. At that time an appeal was pending from the order of the county superintendent denying the application. The territory was a part of district number ten and no valid order was made by the county commissioners until April 8, 1931. Whether the territory was transferred on the making of the order or on the posting of the notice by the county superintendent is not decided. It is sufficient for thé purpose of this case to hold that the territory was not transferred when the bond issue became a lien on school district number ten. Under these circumstances it was the duty of the board of county commissioners to levy a tax on the territory in question sufficient to pay its proper proportion of the interest and principal of the bonds.
The writ is allowed. | [
-11,
-52,
-80,
44,
10,
-28,
74,
-70,
75,
-95,
-92,
119,
109,
90,
1,
105,
-122,
61,
64,
105,
-61,
-77,
19,
-126,
-112,
-13,
-3,
-35,
-77,
-51,
-10,
-41,
72,
49,
-118,
21,
-58,
-62,
-19,
-36,
-114,
-126,
-85,
-58,
-47,
34,
56,
107,
50,
14,
53,
78,
-77,
44,
24,
67,
-56,
46,
89,
-85,
0,
-15,
-66,
5,
125,
70,
-95,
64,
-104,
-127,
-24,
12,
-104,
49,
-128,
-24,
127,
-90,
-122,
117,
5,
-103,
-120,
-96,
102,
3,
-19,
-17,
-80,
-56,
14,
-37,
57,
-26,
-106,
89,
98,
-128,
-67,
31,
125,
84,
5,
126,
-89,
5,
95,
108,
-121,
-50,
-12,
-79,
-113,
-68,
-118,
23,
-29,
11,
48,
81,
-51,
-106,
126,
67,
58,
27,
-121,
-71
]
|
The opinion of the court was delivered by
Burch, J.:
The proceeding was one for compensation for loss of an eye. The commissioner denied compensation. On appeal to the district court, the court awarded compensation, and made the statutory allowance for medical and hospital care. The employer appeals.
The workman testified to the facts concerning the accident. While he was grinding tools on an emery wheel operated by electricity and revolving rapidly, he got something in his eye. It felt like something was sticking in his eye, and he tried to get it out by using a rag. The commissioner held “the circumstances did not lend themselves” to the accident, otherwise weighed the evidence, rejected the workman’s account of the cause of the accident, and found the workman did not suffer accidental injury. The district court made findings of fact. The findings disclose consistency between the circumstances and the workman’s account of the cause of the accident, and disclose medical and other testimony corroborating the workman. So the district court accepted the workman’s account of the accident, and found he did suffer accidental injury as he claimed. One of the court’s findings follows:
“Claimant had had noninflammatory glaucoma for some time before January 16, 1931. The irritation caused by this object in claimant’s eye, or its having penetrated the eye, or the rubbing in an effort to remove it, directly resulted in producing a condition or disease known as inflammatory glaucoma, and as a direct and proximate result of getting this object in his eye the claimant sustained the complete loss of the right eye and of the sight thereof.”
Counsel for the employer make the flat statement that there was no substantial evidence to support the court’s findings. The counsel all reside outside the state, but they understand the law and practice in this state in compensation cases. They commence their argument with explicit recognition of the fact that this court has no authority to determine questions of fact, and that its function is limited to ascertaining whether the district court’s findings are sustained by substantial evidence. Counsel define the term “substantial evidence.” Then they apply the definition in a sophistical way which finally excludes from consideration the positive testimony of the one person who knew there was an accidental injury and knew when and how it occurred.
The commissioner made a finding that the employer had no notice of the accidental injury, which the commissioner found did not occur, and that the employer was prejudiced by lack of notice. The district court held otherwise, and counsel for the employer say the workman failed to give notice and the employer was prejudiced.
The district court found the facts relating to notice of injury. Findings pertinent to the subject follow:
“For over four years prior to January 16, 1931, the claimant had been working for the respondent at its refinery shop in El Dorado, repairing tools and machinery. . . . One of his duties was to grind tools on a fast-revolving emery wheel which filled the air with small particles of emery and steel. The emery wheels had a shield, and goggles were furnished by respondent which had glass in front, but.at the sides there was a fine-mesh wire screen. Workmen frequently got particles of emery or steel in their eyes even when wearing the goggles. On Friday morning, January 16, 1931, the claimant ground tools on this emery wheel, and while doing so used the goggles. At or about the time of doing this grinding he got a small particle of something in his right eye. He rubbed his eye and tried to remove the particle, but was unable to do so. The pain grew more severe during the day. He complained to his foreman of having a headache, but continued to work until quitting time that evening. . . . During the evening of January 16 his eye and head gave him a great deal of pain. He did not sleep that night, and during the night the pain became so great he became irrational, and remained in substantially an irrational condition until sometime Monday morning. ... On the morning of January 17 [Saturday] claimant’s wife telephoned the foreman that he had gotten something in his eye while at work at the refinery the day before; that he would not be able to go to work; that he had not slept; that he had a headache or a pain over one of his eyes, and that they were going to take him to the hospital. The foreman went to the hospital to see claimant that evening, but claimant was unable to talk to him.”
The statute reads as follows:
“Proceedings for compensation under this act shall not be maintainable unless notice of the accident, stating the time .and place and particulars thereof, and the name and address of the person injured, shall have been given to the employer within ten (10) days after the accident: Provided, That actual knowledge of the accident by the employer or his duly authorized agent shall render the giving of such notice unnecessary: Provided further, That want of notice or any defect therein shall not be a bar unless the employer prove that he has been prejudiced thereby.” (R. S. 1030 Supp. 44-520.)
The statute does not require that the notice be given by the workman, personally, and it is sufficient if the giving of the notice is naturally prompted by consideration of the injury and the relationship between the workman and his employer. A reference to the injury in casual conversation would not be notice, but the notice need not be in writing, and need not have the definiteness and certainty of detail of a common-law indictment for crime. The notice is not to be confused with claim for compensation, which is separately provided for by the statute. Whether an injury may prove to be compensable may not be presently known, and what the statute contemplates is notice of injury, so that the employer may have fair opportunity to investigate the cause and observe the consequences.
In this instance the notice which was given identified the workman so the foreman understood who he was and where he could be found; stated the time of injury — the day before; stated the place of injury — at the refinery; and stated the following particulars: Something in the eye while the workman was at work, which had incapacitated him. Reading the statute just as we find it, and considering the purpose to be subserved, the notice given the employer was not defective in any material respect. Besides that, the notice was acted on by the employer precisely as if it had been received as given under the compensation act.
Counsel for the employer demonstrate to their own satisfaction that the testimony of the workman’s wife was not “substantial.”
The workman testified he was afraid of losing his job, and when he became able to talk to the foreman at the hospital, and subsequently, he told the foreman he did not get anything in his eye, and it was not a company case. The foreman denied that the workman’s wife told him the workman got something in his eye. The dispute is settled by the court’s finding, quoted above, just as other conflicts in the evidence are settled by the findings. As indicated, the foreman acted on the information given by the workman’s wife, and the district court stated the following conclusion:
“The respondent is not shown to have been prejudiced by the failure of the claimant to give any other notice of the accident than that found to have been given, and such statements as the claimant may have made to the effect that he did not get anything in his eye while at work or that it was not a company matter, are not shown to have prejudiced the rights of the respondent.”
The court does not propose to debate the evidence on this subject. The evidence disclosed and the court found the foreman notified the employer’s superintendent and first-aid man that the workman was in the hospital on account of eye trouble. The first-aid man gave information to Doctor Hall, the workman’s physician, relating to the condition of the eye when the workman was employed. The first-aid man kept in touch with the case before the eye was removed, by telephone conversations with Doctor Hall. There was no testimony that, relying on what the workman said rather than on what his wife said, the employer did or omitted to do anything to its prejudice, and the statute is plain that the employer must prove prejudice.
The court made the statutory allowance to the workman for hospital and medical care, and the employer contests that allowance. The allowance was made pursuant to the following finding:
“The claimant did not call the respondent’s regular physician, and after the respondent learned that the claimant was having trouble with his eye and was being treated by Doctor Hall, the respondent did not request the claimant to obtain the services of the regular physician for the respondent, and it did not ask the claimant to permit its regular physician to examine or treat the claimant.”
The judgment of the district court is affirmed. | [
-80,
-18,
-36,
-83,
24,
96,
58,
122,
73,
-125,
37,
115,
-11,
-41,
25,
37,
-30,
29,
-44,
43,
-34,
-77,
18,
-117,
-46,
-73,
107,
-59,
-71,
106,
-10,
94,
79,
48,
74,
-43,
-26,
72,
-63,
80,
-54,
12,
-86,
-19,
121,
80,
56,
62,
-14,
95,
17,
-98,
-25,
42,
28,
-57,
45,
44,
91,
-83,
-16,
-15,
-120,
13,
109,
16,
-93,
34,
-100,
39,
-40,
12,
-104,
-79,
-127,
-24,
82,
-74,
-62,
52,
35,
-71,
12,
98,
98,
1,
29,
-91,
104,
-104,
6,
-2,
-99,
-92,
-102,
56,
-53,
11,
-98,
-67,
122,
54,
46,
124,
-25,
85,
15,
100,
3,
-113,
-76,
-15,
-49,
36,
-100,
107,
-21,
-117,
22,
97,
-50,
-70,
92,
101,
123,
31,
-97,
-114
]
|
The opinion of the court was delivered by
Smith, J.:
This was an action to recover money for machinery furnished and for the appointment of a receiver. The immediate question is whether certain parties were guilty of contempt of the district court of Sedgwick county. Judgment was entered adjudging certain respondents guilty of contempt and ordering them to turn over to a receiver of that court an oil and gas lease and certain drilling machinery located thereon.
The case in which these proceedings were had was brought by the Bridgeport Machine Company against Arthur A. Beard, Inc. The petition alleged that the company was insolvent and asked for the appointment of a receiver. This action was filed and the receiver appointed about 11:45 in the morning of September 8, 1931. The corporation appeared at the time of the filing of the petition and consented to the appointment of a receiver, and one was appointed.
In the meantime things had been happening in McPherson county. In that county the respondents, the Goerings and Perry, owned an oil and gas lease. They had employed C. E. Beard to drill a well on this lease. They agreed to pay him a certain amount of cash, which has been paid, and to give him an interest in the well if it should turn out to be a producer. Beard assigned his interest in the well to Arthur A. Beard, Inc. He is president of this company. After drilling for a while the company became insolvent and stopped drilling. After the well had been shut down for about two weeks some laborers to whom the company owed wages filed an action in the district court of McPherson county and attached the lease, rig and tools. While the sheriff was holding the property under’ this attachment Perry and the Goerings brought suit in the McPherson district court to have all liens against the property adjudicated. In this suit they asked that a receiver be appointed. The Beard corporation was made a party to this suit, as was the Bridgeport Machine Company, and certain other lien claimants. It was filed before 9 o’clock on the morning of September 8, 1931. After filing the petition Perry and the Goerings gave notice to the Beard company that they would present their application for the appointment of a receiver at 2 o’clock that day. After the receipt of that notice the suit in Sedgwick county, which has been spoken of heretofore, was filed. Pursuant to this notice respondent Anderson was appointed receiver in the McPherson county action. He immediately took possession of the lease, started drilling the well and has been in possession ever since. Sometime after Anderson had taken possession of the lease the receiver that had been appointed in the Sedgwick county action filed a verified statement in that action that respondents were about'to disturb him in his possession of the lease. Whereupon, without notice to respondents and without making them parties to the Sedgwick county action, the court on September 10, 1931, entered an order directing all the respondents to not go upon the léase and to not interfere with the possession of the receiver of that court. This order further provided that a further hearing thereon would be held September 17, but the record does not disclose that any such hearing was held.
On November 9, 1931, á statement was filed by the receiver appointed by the Sedgwick county court charging respondents with violating the order of September 10. A citation was issued on this statement and was served upon the respondents. A hearing was had and the court found that all the respondents had violated the order of the district court of Sedgwick county, and that respondent Anderson was guilty of contempt of court in that he had taken possession of the tools, and the oil and gas lease, in violation of that court’s receiver’s right to possession.
The judgment of the court was that A. T. Perry, A. A. Goering, Herbert A. Goering, Clarence J. Goering and William Anderson were guilty of contempt. They were fined $10 each and ordered to deliver into the possession of the receiver appointed by the district court of Sedgwick county the oil and gas lease and all the property of any kind received by them in connection with' the management of the lease.
From that judgment this appeal is taken.
It will be seen that the McPherson county action was filed before the one in Sedgwick county and that the appointment of a receiver was prayed for in it. The Sedgwick county action was filed after the McPherson county action, but its receiver was appointed before the receiver in the McPherson county action. A number of reasons are advanced by appellant why the judgment was wrong. The one that we will discuss in deciding the case is that the receiver of the McPherson county court was entitled to the possession and control of the lease, the tools and equipment, because the action in which he was appointed was commenced before the Sedgwick county action. If the district court of McPherson county acquired jurisdiction of the res when the action was filed in that court praying for the appointment of a receiver, then the district court of Sedgwick county was without jurisdiction to appoint a receiver, and by the same token was without jurisdiction to issue its order of September 10, which respondents are charged with violating. There must be a time when the jurisdiction of one court is exclusive of that of any other court in cases where it is proper for the court to take possession of property by means of the appointment of a receiver. If this were no! true there would be endless confusion. No one would care to deal with a receiver and instead of the appointment of a receiver simplifying matters and bringing to a speedy culmination the affairs of sorely tried litigants the courts would be crowded with vexatious suits and neighboring courts would be participants in unseemly rivalry.
First, there can be no doubt but that the appointment of a receiver was proper in both of these suits. In the Sedgwick county case the plaintiff was a creditor of the defendant and the insolvency of defendant was alleged and admitted.
In the McPherson county case the plaintiffs had a contract with the defendant company to drill a well. The well was partly drilled. It was essential to the preservation of the value of the lease that this well should not long be allowed to stand idle only half drilled. Furthermore, some workmen had filed liens against the property for labor; claims were made that the defendant company had a contract by which it had a certain interest in the lease if the well should turn out to be a producer.
R. S. 60-1201 provides as follows:
“A receiver may be appointed by . . . the district court ... on the application of the plaintiff or of any party whose right to or interest in the property or fund or the proceeds thereof is probable, and where it is shown that the property or fund is in danger of being lost, removed or materially injured.”
Certainly, under the facts as they existed, the McPherson county case came within the terms of that statute.
The books are full of cases which hold that the court first acquiring jurisdiction of the res holds it to the exclusion of all other courts. We cannot express the rule better than in the language of Judge Sanborn in the case of Sullivan v. Algrem, 160 Fed. 366. There it was said:
“The legal custody of specific property by one court of competent jurisdiction withdraws it, so far as necessary to accomplish the purpose of that custody, until that purpose is completely accomplished from the jurisdiction of every other court. The court which first acquires jurisdiction of specific property by the lawful seizure thereof, or by the due commencement of a suit in that court, from which it appears that it is, or will become, necessary to a complete determination of the controversy involved, or to the enforcement of the judgment or decree therein, to seize, charge with a lien, sell, or exercise other like dominion over it, thereby withdraws that property from the jurisdiction of every other court, and entitles the former to retain the control of it requisite to effectuate its judgment or decree in the suit free from the interference of every other tribunal. When a court has by lawful proceedings taken possession of specific property, it has during that possession and as incident thereto jurisdiction to hear and determine all questions respecting the title, possession, and control thereof, and courts of coordinate jurisdiction are powerless to render any judgment or decree that will invade or disturb the possession of the property while it is in the custody of the court which has thus first acquired it.” (p. 369.)
The language was quoted with approval by the supreme court of Pennsylvania in Tenth Nat. Bank v. Construction Co., 227 Pa. St. 354. The case of Empire Trust Co. v. Brooks, 232 Fed. 641, contains an able discussion of this question. In that case there had been an application for a receiver filed in the state court, and later in the same day a suit to foreclose a mortgage on the same land for which a receiver had been asked in the state court was filed in the federal court. The appointment of a receiver was asked in federal court and one was appointed. Subsequently a receiver was appointed by the state court and he made an application to the federal court to have the receiver appointed by that court deliver the property to him. The question was whether the filing of the suit where the appointment of a receiver was asked in the state court deprived the federal court of jurisdiction to appoint a receiver and have him take possession where the state court had not yet acted on the application. There the court said:
“Where the issues in the two suits are the same, and their subject matter substantially identical, comity and the orderly administration of justice, and the desire to avoid a conflict of jurisdiction, require of the court that last acquires jurisdiction, though it be the first to acquire possession of the property involved in the litigation, that it surrender such possession, on application, to the court of concurrent jurisdiction which first acquired jurisdiction of the controversy.” (p. 645.)
This case narrows somewhat the application of, but does not overrule, the case of McKinney v. Landon, 209 Fed. 300, where the court said:
“The action in the state court was begun first, but the federal court first appointed receivers. Did the subsequent appointment of receivers by the state court relate back so that it may be said that it was in constructive possession of the property from the time the action was commenced? . . . The most difficulty arises in determining when possession of property has been taken, when jurisdiction has attached to the exclusion or postponement of that of other courts. It is settled, however, that actual seizure or possession is not essential, but that jurisdiction may be acquired by acts which, according to established procedure, stand for dominion and in effect subject the property to judicial control. It may be by the mere commencement of an action the objects, or one of the objects, of which is to control, affect, or direct its disposition. (See Mound Co. v. Castleman, 110 C. C. A. 55-187 Fed. 921, and the cases cited.) The principle often applies ‘where suits are brought to enforce liens against specific property to marshal assets, administer trusts, or liquidate insolvent estates, and in suits of a similar nature where, in the progress of the litigation, the court may be compelled to assume the possession and control of the property to be affected.’ . . . But where the declared purpose of an action in whole or in part is directed to specific property, and the full accomplishment thereof may require judicial dominion and control, jurisdiction of the property attaches at the beginning of the action. And it is so if dominion and control are essential to the action, though not yet exercised.” (pp. 305, 306.)
To the same effect is La Rue Holding Co. v. Essex, 45 S. W. 2d 319.
In the present case there can be little doubt that the action filed in Sedgwick county was an attempt to exercise jurisdiction over parties, subject matter and res over which the district court of McPherson county had already taken jurisdiction. The plaintiff in the Sedgwick county action was a party defendant in the McPherson action. Both actions were brought for the purpose of preserving the assets and determining the priority of liens. The defendant in the Sedgwick county case had notice before that action was filed of the pendency of the McPherson county case. The record shows that while the plaintiff in the Sedgwick county action had not had any formal notice of the filing of the McPherson county case, still it knew about it and knew that there was an application for the appointment of a receiver pending to be heard that afternoon. Knowing this and with the notice that has been spoken of, the action praying for "the appointment of a receiver was filed and at the same time a consent to the appointment was filed by the defendant. The case has all the earmarks of one where for some reason or another litigants have made a strenuous effort to confer jurisdiction on a court of their own choosing when the proper court for the settlement of their business had already started to function.
We conclude that the judgment punishing respondents for contempt of court and directing them to deliver possession of the property cannot stand for the reason that the district court of Sedgwick county was without jurisdiction to appoint a receiver, and hence it was not contempt on the part of respondents to refuse to obey the order of that court to turn the property over to him.
The judgment of the district court is reversed. | [
-12,
-30,
-24,
12,
14,
-32,
42,
-98,
89,
-95,
-89,
87,
-23,
94,
5,
111,
99,
77,
80,
104,
-62,
-78,
5,
112,
-102,
-13,
-5,
-35,
-68,
79,
-12,
-35,
73,
48,
74,
-107,
-58,
-128,
69,
28,
-50,
-124,
-87,
-20,
-47,
8,
52,
107,
50,
11,
81,
46,
-13,
40,
29,
-61,
13,
46,
-5,
40,
-47,
-7,
-70,
-108,
93,
22,
33,
-124,
-104,
67,
-56,
62,
-104,
-79,
-64,
-24,
114,
-90,
-58,
116,
15,
25,
40,
126,
98,
33,
-107,
-17,
104,
-8,
31,
-66,
-99,
-26,
-76,
88,
-86,
75,
-66,
-99,
115,
20,
6,
124,
-21,
-123,
93,
108,
-125,
-118,
-42,
-93,
15,
45,
-104,
27,
-21,
-126,
48,
97,
-51,
-78,
93,
71,
118,
31,
-121,
-72
]
|
The opinion of the court was delivered by
Dawson, C. J.:
Plaintiffs invoke our original jurisdiction in mandamus to require the defendant, a judge of the city court of Kansas City, to certify to the district court certain proceedings in forcible detainer pending in his court on the ground that they had progressed to a point where it was clear that the title to real property was in dispute.
The pertinent facts, in brief, are these:. On October 20, 1939, one Samuel Bobrecker filed in division No. 2 of the city court of Kansas City, presided over by the defendant, Joseph H. McDowell, a complaint in forcible detainer against James McCabe to recover the possession of a house and parcel of ground. Bobrecker averred that prior to the filing of such complaint he had made timely service of notice on McCabe to quit and vacate the premises within three days, that McCabe did not vacate, that plaintiff was entitled to possession, and prayed for restitution of the premises. This complaint was verified, and summons was duly issued and served thereon.
Before answering Bobrecker’s complaint, McCabe and one Caro line Stevens commenced an action in the district court against Bobrecker, alleging in their verified petition that in August, 1923, Caroline Stevens had made a written contract with Brobecker for the purchase of the property involved in the forcible detainer proceedings ; that the contract price was $2,500, that she made a down payment of $300, and agreed to pay $25 per month out of which monthly sums the earned interest on the unpaid purchase price should be deducted and the net remainder applied toward the extinction of the purchase price; that Caroline Stevens paid a total of $1,426 on this contract prior to May 15, 1935; and that Bobrecker then agreed to reduce the monthly payments to $15 per month if James McCabe, son of Caroline, would execute a contract for the purchase of the property in lieu of the one between Caroline and Bobrecker made in August, 1923. Caroline further alleged that such proposed contract was made on June 11, 1935, and pursuant thereto Caroline and Mc-Cabe had made numerous payments whereby the balance due on the original purchase price had been reduced to approximately $900, and that they had a substantial equity in the real property involved, but that Bobrecker had instituted an action in forcible detainer in the city court seeking to oust them from possession; that they had demanded of Bobrecker a statement of the exact balance he claimed to be due on the contract of purchase. Their petition concluded with a prayer that the exact amount due on the contract of purchase be ascertained, that Bobrecker be declared to hold merely an equitable mortgage on the property, that he be restrained from prosecuting the action in detainer in the city court, and for other equitable relief.
On November 3, 1939, Caroline Stevens on her own motion was made a defendant in the detainer proceedings in the city court, and on November 5 she and McCabe filed an answer therein, pleading substantially the same facts as alleged in their verified petition in the district court, and alleging the pendency of the action in the latter court and reciting its substance, and the relief prayed for therein, and alleging that under the facts alleged in their answer the title to the real estate was in dispute, and that under the provisions of G. S'. 1935, 61-107, the city court should so find and certify the action to the district court for determination. This answer was verified.
On November 10, 1939, the proceedings in detainer came on before the city court for consideration and were disposed of according to the record as follows:
“11-10-39. Trial by court. Court orders Caroline Stevens made a party defendant. Court finds that the title to the real property involved herein is ■in dispute, a case in the district court of Wyandotte county is pending wherein said title is being litigated No. 58,891-A; but the court further finds that this court has jurisdiction herein under section 67-250-1, G. S. 1935. Complaint, is hereby found true and defendants’ application to certify case to district court is overruled. Judgment in favor of plaintiff vs. defendants Caroline Stevens and James McCabe for restitution of premises and costs.
Joseph H. McDowell, Judge.
On the facts narrated above this proceeding in mandamus has been amicably submitted to us by the litigants herein. No material facts are in dispute. Contemporaneously with the application for the writ, the judges of the city court of Kansas City sent a communication to this court, which, in part, reads:
“In re: Bobrecker vs. Stevens and McCabe, City Court of Kansas City, Kansas.
“. . . Bor some time there has existed a confusion in this county, among the members of the bar and in the various divisions of the district court of this county on the following proposition:
“Real estate operators in this county have' popularized the use of an instrument termed ‘option agreement, form 319 and 319A.’ About half of the peaceful entry and forcible detainer cases filed in our city courts deal with these instruments.
“Under section 61-107, G. S. 1935, city courts (justice courts) do not have jurisdiction of cases involving the title of real estate. Under section 67-250, 67-251, city courts are given specific jurisdiction in cases involving the ‘option agreements.’
“[Counsel] for the defendants in the above case intends to apply for a writ of mandamus and determine this question. It would be a great help to the city courts if the supreme court will take jurisdiction in this case and render a decision that would be a guide to us in future litigation.
“(Signed) Clark E. Tucker, Judge Div. 1,
“(Signed) Joseph H. McDowell, Judge Div. 2.”
Defendants answer to the alternative writ, in part, reads:
IV
“Defendant admits that he made a finding in said cause that the title to the real estate described in the complaint in said action was in dispute. . . .
VI
“Defendant admits that he refused to certify said city court action to the district court for determination under the provisions of section 61-107 General Statutes of Kansas of 1935.
VII
“Defendant states that the said city court is expressly given jurisdiction of actions of the character of said city court action and authority to render the judgment he did in said action under the provisions of sections 67-250, 67-251. Defendant denies that the said statute is in violation of the constitution of the state of Kansas, as alleged by the plaintiffs herein.
XII
“That the plaintiff in said city court action disputed the conclusions in said answer to the effect that the defendants therein had reduced the amount of $1,426 necessary to be paid to purchase said real estate under the terms and provisions of said second option to $900, and the plaintiff therein contended that said amount had only been reduced to $1,199.94”
The bench and bar of this state have long been familiar with a form of real-estate contract between two parties, whom for convenience we will name as the owner-vendor and the tenant-vendee, in which the former names a price at which he will sell the property and names a specified amount to be paid monthly, and in which he agrees to let the latter into possession upon condition that if the monthly payments are made until their aggregate sum amounts to the specified purchase price the property shall be conveyed to the latter; but if the tenant-vendee fails in his monthly payments then whatever amounts he shall have paid are to be considered merely as rent for the premises, and he shall have no interest in the property and may be removed therefrom as'in forcible detainer. There are many clever, even devious, contracts to this effect, and the sum of judicial dealing with them in this and other, courts may be stated to this effect: If the down payment by the tenant-vendee has been negligible, and his monthly payments have been but few or have only been paid irregularly, to the manifest loss of the owner-vendor, the contract will ordinarily be enforced according to its terms. (Roberts v. Yaw, 62 Kan. 43, 49, 61 Pac. 409; Drollinger v. Carson, 97 Kan. 502, 155 Pac. 923; Heard v. Gephart, 118 Kan. 82, 233 Pac. 1044; Rieke v. Smith, 144 Kan. 643, 62 P. 2d 889.)
But if the monthly payments -have been made .with reasonable promptness and have been made for such a length of time that their aggregate amount constitutes the equivalent of a substantial payment on the purchase price, or where substantial improvements have been made by the tenant-vendee, then equity may not permit the interest of the tenant-véndee to be summarily extinguished in forcible detainer, but will deal with the situation according to equitable principles, and may require proceedings as in equitable foreclosure before the interest of the latter can be extinguished. Cases illustrating various aspects of this doctrine run through all our reports. (Courtney v. Woodworth, 9 Kan. 443; Holcomb v. Dowell, 15 Kan. 378; National Land Co. v. Perry, 23 Kan. 140; Usher v. Hollister, 58 Kan. 431, 49 Pac. 525; McCullough v. Finley, 69 Kan. 705, 707, 77 Pac. 696; Geffert v. Geffert, 98 Kan. 57, 157 Pac. 348; Yost v. Guinn, 106 Kan. 465, 188 Pac. 427; Holman v. Joslin, 110 Kan. 674, 205 Pac. 629; Marquez v. Cave, 134 Kan. 374, 5 P. 2d 1081; Ditzen v. Given, 139 Kan. 506, 32 P. 2d 448; Home Owners’ Loan Corp. v. Jaremko, 146 Kan. 328, 69 P. 2d 1096.)
See, also, 6 Kan. Bar Journal, 328-330.
The logical deduction from the doctrine stated above is that where the periodical payments by the tenant-vendee in their aggregate amount to a substantial part of the purchase price he thereby acquires such an equitable interest in the property that his rights therein (as well as those of the owner-vendor) can only be adjudicated and protected in a court of general jurisdiction. Here the interest of plaintiffs (defendants in the detainer proceedings) is obvious — only the exact balance due being in issue as shown in paragraph XII of the answer quoted above. The title to the property was brought squarely into the dispute under the issues formed by the pleadings, and the statute directs that in such case the action shall be stayed before the justice of the peace (or the city court), and shall be certified to the district court for further proceedings. (G. S. 1935, 61-107.)
In the instant case the answer specifically admits that in the forcible detainer case the city court made an express finding that the title to the property was in dispute, but that it did not certify the proceedings before it to the district court because of chapter 134 of the Laws of 1927 (G. S. 1935, 67-250, 67-251 and 67-251a).
Let us take notice of that statute. Its title reads:
“An act in regard to option agreements with respect to real property upon which there has been constructed a dwelling house in cities of the first class now having or hereafter acquiring a population of more than one hundred .thousand (100,000).”
By its terms the owner of residential property in any city having over 100,000 population may enter into an option agreement with any person for the right to purchase such property for an agreed amount, with the right to renew the option agreement from time to time by payment of a stated amount, and the owner will give him credit on the purchase price for all sums so paid, and the person so paying (and complying with other details needless to be stated here) shall thereby acquire the right to purchase the property, but shall not acquire any interest therein. The statute further provides that upon failure of the optionee to comply with the terms of the contract, the owner may bring a suit in equity to forfeit the option agreement and all rights of the optionee thereunder. The statute prescribes a special procedure for such cases, gives the optionee a reasonable time, not exceeding six months, in which to pay in full, in which case the owner shall execute to him a deed conveying the property to the optionee. The statute, section 2, in part, continues, thus:
“. . . . But nothing herein shall be construed to prevent the party granting said option or his successors or grantees, where there is a provision embodied in said option agreement, giving the party to whom said option is given the-right to occupy the premises in question, to recover possession by an action in forcible detainer when the conditions of said agreement, for occupancy, have been broken, . . .”
Section 3 provides:
“All acts or parts of "acts that may in any way conflict with this act shall not apply to or be held to in any way modify or control option agreements provided for in this act.”
But for this statute, which is only applicable in cities of 100,000 population or more, the very substantial interests of Caroline Stevens and James McCabe in the property they have labored so long to pay for would be protected by the general principles of equity we have stated above. But unfortunately for them the humane public policy for dealing with the interests of debtors which had its inception at the foundation of this state and has been consistently adhered to throughout its history, as evidenced by its homestead law, its generous exemption laws, the well-known attitude of its courts to frown on forfeitures and their aversion to the enforcement of hard bargains — such considerations are not to be applied for the relief of debtors in cities of 100,000 population or more, at least not to the extent they prevail elsewhere in Kansas. If this house and lot in controversy were situated anywhere except in a city of 100,000 population, when the facts developed in the forcible detainer case were made to appear, the case would be stayed in the city court and the cause certified to a .court of general jurisdiction, vested with the full judicial power of the state both at law and in equity, and adequately equipped to deal with it. (Linder v. Warnock, 91 Kan. 272, 137 Pac. 962; Bramwell v. Trower, 92 Kan. 144, 139 Pac. 1098.) So certified, while we cannot say in advance how the district court would deal with it, that court would have the power to decree that the status of Brobecker was that of an equitable mortgagee, that plaintiffs’ status was that of owners of the equitable interest, the exact balance due would be determined; Brobecker would be given judgment therefor and foreclosure would be decreed, the property sold, a redemption period of eighteen months prescribed, and meanwhile plaintiffs could not be disturbed in their possession. We do not say that such would be the judgment of the district court. We merely repeat that under the familiar precedents cited above, such a judgment might be decreed. And why not in Kansas City? Why are debtors or tenant-vendees in a city of 100,000 population not to enjoy the leniency and humanity of Kansas law to which all other Kansans are entitled?
The constitution declares that all laws of a general nature shall have a uniform operation throughout the state. (Art. 2, § 17.) A law which curtails the property rights of persons living in cities of 100,000 population in respect to their equitable interests in real estate, and denies them such rights accorded by law to all other persons violates this constitutional principle. In State, ex rel., v. Deming, 98 Kan. 420, 425, 158 Pac. 34, where the procedural provisions of an act creating a special court in Hutchinson were denounced, we said:
“Why should the -salutary provisions of law to prevent oppression of debtors operative throughout the state (Laws 1913, eh. 232) not apply to debtors in any counties of 55,000 population or less, having one or more cities of 16,000 population or more? And if justifiable where the county does not constitute a separate judicial district,- then why not in a county which does constitute a separate judicial district? Are debtors more or less needy in such a county as this act is designed to cover? And if this act serves any useful purpose in a county, in its cities of more than 16,000 population and in its rural districts, why not also in its cities of less than 16,000 population? Is there anything peculiar in such a county that warrants a departure from the ordinary procedure for the administration of justice?”
The same section of the constitution declares that in all cases where a general law can be made applicable, no special law shall be enacted. What is the peculiar difficulty about drafting and enacting a general law to govern contracts for the purchase of residential real estate in Kansas City which does not exist in respect to contracts for the purchase of residential property in Hiawatha, Lindsborg or Dodge City? The answer is that there is no such difficulty. Not only so, but the rights of the parties to such contracts in Kansas City were governed by the uniform law which prevails throughout the state until this ill-advised and manifestly unjust and oppressive statute of 1927 was enacted.
The same section of the constitution under which the statute of 1927 must be scrutinized provides that the question whether a special enactment is repugnant to the constitutional provision requiring uniformity is a responsibility imposed on the courts for determination. Since this judicial responsibility was vested in the judiciary, this court has given a somewhat tolerant countenance to much legislation where legislative draftsmanship encountered difficulties in providing legislation to meet local conditions; but we have always looked with a critical eye at special statutes designed to tamper with the procedure prescribed by law for the uniform administration of justice throughout the state. In State, ex rel., v. Deming, supra it was held:
“Chapter 196 of the Laws of 1915, which prescribes a different rule from that of the general law for the administration of justice as to service of process, procedure, the law of garnishment, the giving of bonds in garnishment and on appeal violates the uniformity clause of the state constitution. (Const., Art. 2, §17).”
See, also, State v. Hutchings, 79 Kan. 191, 98 Pac. 797; Howard v. McIntosh, 118 Kan. 591, 235 Pac. 1034.
It seems clear that the statute of 1927 (G. S. 1935, 67-250 et seq.) violates the uniformity requirement of the state constitution (art. 2, § 17) and is therefore void. Our conclusion is that plaintiffs are entitled to judgment, but under the rule announced in Bishop v. Fischer, 94 Kan. 105, 115, 145 Pac. 890, and followed in Estey v. Holdren, 126 Kan. 385, 389, 267 Pac. 1098, no formal writ will issue and no costs will be imposed. It is so ordered. | [
-80,
-24,
-8,
110,
58,
-31,
104,
-102,
106,
-109,
-92,
115,
-87,
79,
1,
101,
114,
93,
81,
105,
-62,
-78,
70,
-126,
-10,
-13,
-103,
85,
-69,
93,
-11,
-43,
76,
32,
-62,
81,
-94,
-30,
-43,
28,
-50,
-128,
-72,
-60,
-41,
64,
48,
121,
16,
10,
117,
-97,
-13,
42,
25,
-45,
-24,
45,
-117,
60,
-48,
-8,
-65,
5,
-33,
22,
-127,
36,
-112,
5,
120,
110,
-104,
49,
1,
-24,
113,
-106,
-122,
116,
71,
11,
40,
38,
98,
35,
-123,
-17,
-8,
-72,
14,
-70,
-123,
-90,
-80,
88,
67,
105,
-74,
-99,
125,
80,
75,
-12,
-12,
4,
89,
-20,
15,
-117,
-108,
-77,
15,
124,
-98,
27,
-17,
33,
96,
112,
-51,
-16,
93,
87,
123,
-101,
-97,
-15
]
|
The opinion of the court was delivered by
Allen, J.:
This is a divorce case brought by the husband against the wife. The defendant filed a cross petition which was dismissed. A divorce was granted to the plaintiff. Under the decree the parties were awarded the property, real and personal, owned by them, respectively, at the time of the marriage. It was further adjudged and decreed that the defendant “is awarded as permanent alimony and attorneys’ fees the sum of $210, and the same shall constitute a lien on all of the property of the plaintiff until paid.” The sole question presented is whether the trial court abused its discretion in allowing to the defendant only $210 as a full property settlement under the statute, and for alimony and attorney fees.
The parties were married November 26, 1938, and lived together until the final separation on March 27, 1939. At the trial the plaintiff was 62 years of age, and the defendant 45. Both parties had been married before. The plaintiff owned an undivided three-fourths interest in 155 acres of land. He lived on the farm, and had personal property consisting of household furniture, farm implements, horses, cows, hogs, etc. In 1938 the farm was assessed for taxation at $3,600, and the personal property at $1,225. Several neighbors testified the farm was worth $10 to $12 per acre. There was evidence that the assessment was too high. The value of plaintiff’s interest in the real and personal property is estimated in defendant’s brief at $3,500. The estimate of counsel for plaintiff is from $1,710 to $1,992.50. From a study of the record we think $2,500 would be a fair estimate of the value of plaintiff’s property.
The defendant owned a small farm and some personal property. The value of her property as estimated in the respective briefs runs from a low figure of $650 to $1,992.50. From the record before us we think a fair estimate of the value of the property of defendant would be near $1,200.
Under our statute G. S. 1935, 60-1511, if the divorce shall be granted by reason of the fault of the wife, it is the duty of the trial court not only to order restoration to her of the property she owned at the time of the marriage, but also such share of the husband’s real and personal property, or both, as to the court may appear just and reasonable.
Under the command of this statute as construed by this court (Holder v. Holder, 143 Kan. 79, 53 P. 2d 806; Savage v. Savage, 141 Kan. 851, 44 P. 2d 272; Metcalf v. Metcalf, 132 Kan. 535, 296 Pac. 353; Davison v. Davison, 125 Kan. 807, 266 Pac. 650) we think the meager allowance awarded the defendant does not amount to a substantial provision out of the husband’s property that should be made to her under the circumstances disclosed by the record. (Savage v. Savage, supra.)
The cause will be remanded with instructions to the trial court to set aside the award of $210, and to enter the award to defendant in the sum of $500, the judgment as so modified to stand. It is so ordered. | [
-15,
108,
-75,
109,
-118,
34,
42,
-56,
112,
-95,
-89,
87,
-17,
82,
16,
105,
50,
9,
65,
106,
-57,
-73,
86,
67,
-14,
-13,
-71,
-36,
-71,
-35,
-25,
-41,
76,
52,
-126,
-43,
102,
74,
-59,
84,
-50,
-122,
-117,
77,
-55,
102,
52,
43,
98,
9,
49,
-113,
-77,
45,
53,
66,
104,
44,
15,
57,
-48,
-88,
-114,
12,
79,
2,
-79,
38,
-100,
68,
88,
46,
-100,
49,
0,
-24,
58,
-90,
22,
116,
75,
-69,
9,
112,
98,
17,
69,
-17,
-8,
-120,
14,
117,
-113,
-90,
24,
80,
-38,
96,
-66,
-100,
109,
84,
35,
126,
-3,
29,
31,
100,
3,
-113,
-106,
-77,
-113,
126,
-100,
10,
-21,
-89,
17,
97,
-51,
-94,
92,
70,
122,
-101,
-113,
-122
]
|
The opinion of the court was delivered by
Harvey, J.:
This was an action for damages for the alleged breach of an implied warranty of variety and fitness for spring planting of barley seed sold plaintiff by defendant. The trial court made findings of fact and rendered judgment for plaintiff. Defendant has appealed.
Most of the facts were stipulated. The court found that on March 23, 1938, plaintiff purchased from defendant seed barley with which to plant sixty-five acres of cultivated ground; that defendant knew plaintiff intended to plant the seed as spring seed barley at the time he purchased the barley; that the barley was in fact winter seed barley; that plaintiff knew the barley had not been tested for seed purposes, as required by statute (G. S. 1935, 2-1416), at the time he purchased it. Plaintiff planted this barley seed in parts of two separate fields, the other part-s of each field being planted with spring barley seed. The winter barley seed germinated and the plants grew until about six inches high and then began to vine over, but did not mature and produce seed. From the parts of the field sowed with spring barley seed the court computed the net value to plaintiff of the crop which would have been produced on that part of the field sowed with winter barley seed and found that to be $187.92. The court found, as its conclusions of law, that there was an implied warranty that the barley seed sold to plaintiff was spring barley at the time of the sale; that our statute (G. S. 1935, 2-1416) was passed for the protection of the purchaser, and, since the statute assessed no penalty against the purchaser for violation of it, the parties were not in pan delicto; that the law was not violated by'the purchaser and therefore the fact that the plaintiff knew the barley seed had not been tested would not bar his recovery, and further concluded that plaintiff was entitled to recover his damages, found to be $187.92, and rendered judgment accordingly. Defendant filed a motion to set aside the conclusions of law, and that it have judgment, and also filed its motion for a new trial. Both motions were overruled.
Appellant argues that the law will not imply a warranty of quality or fitness of grain purchased for seed when the purchaser of the grain has knowledge that such grain was not tested and labeled, as required by the statute, and the sale of such grain for seed is prohibited by law. The general rule is that where one sells grain for seed, knowing the purchaser desires to use it for that purpose, there is an implied warranty that it is suitable for that purpose. {Shaw v. Smith, 45 Kan. 334, 25 Pac. 886; Kaull v. Blacker, 107 Kan. 578, 583, 193 Pac. 182; Challis v. Hartloff, 136 Kan. 823, 828, 18 P. 2d 199.) In the annotation in 16 A. L. R. 859, at pages 867 and 869, and again in 117 A. L. R. at 470, a number of cases to the same effect are collected. Appellant in its brief concedes that prior to the enactment of our statute (G. S. 1935, 2.-1415 et seq.) there was such an implied warranty, at least under some circumstances, but argues this statute makes it an offense for one to .sell seed for planting that has not been tested and has not been labeled as provided in the statute. The court found that plaintiff knew the barley had not been tested for seed purposes, as required by the statute, when he purchased it. Appellant argues that plaintiff assisted defendant in violating this statute; that this is a penal statute (G. S. 1935, 2-1422), hence that plaintiff assisted defendant in committing an offense under the laws of our state; and that he stands in pari delicto with defendant and cannot recover for that reason. In the annotation on this question, in 120 A. L. R. 1461, it is said:
“The general rule that neither party to an illegal transaction may take any proceeding against the other for the restoration of property or for the repayment of money transferred or paid in the course of the transaction is subject to an exception in favor of persons for whose protection the law made the transaction illegal.”
Many cases are cited, including some of our own. (See Mason v. McLeod, 57 Kan. 105, 45 Pac. 76; Latham v. Harrod, 71 Kan. 565, 569, 81 Pac. 214; Marshall v. Beeler, 104 Kan. 32, 38, 178 Pac. 245; Fitzpatrick v. Bean, 128 Kan. 347, 350, 278 Pac. 6.) Our statute requiring the seller of grain for seed or seeding purposes to test and label the same, or incur penalties, is a statute obviously designed for the benefit or protection of buyers. The statute attaches no penalty against the purchaser of seed under such circumstances, and to do so would in fact destroy the purposes of the act.
Appellant complains that the court took as its measure of plaintiff’s damages the net value to him of the crop which he would have raised had the seed been what he thought it was at the time he purchased it. Under different sets of facts the courts have used or approved the use of different measures of damages, the theory in each instance being to use the measure of damages which will enable plaintiff to be recompensed for the loss he has sustained. The measure of damages used in this case has met the approval of courts in many cases. See the cases collected in 16 A. L. R. 887 et seq.; also 117 A. L. R. 480. We think there was nothing seriously wrong with the measure of damages used by the court in this case. Appellant cites and relies strongly on Horn v. Elgin Warehouse Co., 96' Ore. 403, 190 Pac. 151. There, in a somewhat similar case, the jury had returned a verdict for defendant. The supreme court found several reasons why the judgment should be affirmed. There was in force in that state a statute which required grain sold for seed to be inspected. Plaintiff testified that he knew when he was purchasing the grain that the seller was not selling it for seed. Upon that evidence the court held there was no express warranty of its quality or variety. The case is not in point. Here, defendant knew plaintiff was buying the seed to sow as spring barley.
Appellee has a cross-appeal on the amount of recovery. One item sought to be recovered by plaintiff was the value of the threshed straw which he would have had if the grain purchased as seed had been spring barley. He testified, however, that the straw had no market value, but stated that it had a value to him of a certain figure. The court did not allow the full amount of the figure named by plaintiff for the value of the straw. We think there is no error in this respect of which appellee can complain.
The judgment of the court below is affirmed. | [
-95,
108,
-3,
-115,
10,
96,
42,
-38,
65,
-86,
-89,
83,
-7,
86,
20,
105,
47,
109,
64,
42,
-43,
-89,
67,
-62,
-42,
-5,
-95,
-63,
49,
-49,
-25,
76,
13,
-76,
66,
85,
-29,
-62,
-55,
-100,
-90,
5,
-67,
125,
-37,
66,
52,
57,
116,
75,
37,
-98,
-77,
38,
29,
71,
43,
44,
-21,
57,
65,
-40,
-88,
13,
111,
6,
50,
38,
-108,
-59,
-38,
46,
-112,
113,
0,
-24,
122,
-90,
-122,
-12,
15,
57,
8,
114,
103,
16,
13,
-17,
88,
-72,
39,
-1,
47,
-92,
-128,
72,
59,
35,
-66,
-99,
54,
16,
-90,
124,
120,
-35,
31,
104,
3,
-122,
-108,
-109,
-93,
-32,
-98,
1,
-49,
-93,
-80,
81,
-49,
-86,
92,
71,
118,
25,
-114,
-66
]
|
The opinion of the court was delivered by
Allen, J.:
Emery Moseman, a boy twelve years of age, was struck and killed by a truck operated by one Lindeman. It was alleged in the petition that Lindeman was the servant of the defendant company and that the death of the boy was caused by the negligent operation of the truck by the driver, Lindeman. This action is by the parents of the deceased boy for damages sustained by*reason of his death... Plaintiffs recovered judgment. Defendant appeals.
The petition alleged that defendant conducted a general funeral and undertalcing business in Topeka; that the service they render in the conduct of a funeral includes the removal of flowers from the place where the funeral service is held and transporting them to the grave at the cemetery, and that such service is an integral part of the service rendered in the conduct of a funeral.
The petition further alleged that on the 20th day of October, 1937, at about 3:20 p. m., Emery Moseman was pushing his bicycle along the south curb line on East Eighth street about four feet north from the curbing in an easterly direction and at a point approximately thirty-five feet east of the east curb line of the intersection of East Eighth street and Chandler street; that upon the same date Emery Moseman was struck by a truck operated by one William F. Lindeman, who was at the time in the service and under the control and direction of the defendant, its agents and employees; that William F. Lindeman in the pursuit of his employment and under the oral direction and order of the defendant, was transporting flowers from the funeral services of Owen J. Wood, deceased, from the Masonic Temple to the Topeka cemetery; that the truck was proceeding on East Eighth street in an easterly direction at a speed, to wit, in excess of sixty miles per hour, and that as the truck proceeded eastward on East Eighth street, and when it had reached a point midway between Branner and Chandler streets, the brakes were applied, sliding the wheels on the right-hand side of the truck; that the truck was approximately in the middle of the street, and as the truck proceeded eastward with the brakes on the right side of the truck locked, the truck veered slightly to the south; that after the truck had traveled a distance of 115 feet in the manner described, and at the point aforementioned it struck Emery Moseman and knocked or dragged him a distance of 50 feet eastward; that the blow struck Emery Moseman by the truck caused instant death; that the striking of Emery Moseman by the truck, at the time in the service of the defendant, was the proximate cause of the death of the boy, and was due solely to the negligence and carelessness of the driver of the truck, who at the time was the agent, servant and under the control and direction of the defendant, its agents and employees, and that the carelessness and negligence of the driver of the truck consisted of the following:
“1. In driving the truck at a rate of speed greater than was reasonable and proper, having regard for the traffic and use of the road and the condition of the road, and at a rate of speed such as to endanger the life and limb of other persons using the streets and highways in violation of the statutes of the state of Kansas, and particularly section 8-122 of the 1935 Revised Statutes of Kansas.
“2. In operating the said truck at a rate of speed in excess of twenty-five (25) miles per hour, to wit, in excess of sixty (60) miles per hour in violation of the ordinances of the city of Topeka, which provides as follows:
“ ‘19-147. Restrictions as to speed, (a) Basic rule. No person shall drive a vehicle upon a highway at a speed greater than is reasonable and prudent, having due regard to the traffic, surface and width of the highway and the hazard at intersections and any other conditions then existing.’
“3. In failing to keep a proper lookout and to observe others using the street.
“4. In operating said truck with improper brakes.
“5. In failing to reduce the speed of said truck at sufficient distance from the intersection of Chandler and Eighth streets in accordance with the speed of said truck.
“6. In failing to turn the truck to the left to avoid striking said Emery Moseman as lie was at the point on the south side of said street near the curbing where he was struck as aforesaid.
“7. In failing to reduce the speed of the truck, turn the truck and avoid striking the said Emery Moseman when he was in a position of peril on the street from which he could not, with due care, have extricated himself.”
The answer of defendant, after a general denial and certain admissions, specifically denied that Lindeman was on the date mentioned or at any other time the servant, agent or employee of the defendant; that the truck was owned by one Forrest Harrell and that Lindeman was an employee and servant of Harrell. The answer alleged that the death of Emery Moseman was caused by his own negligence — that shortly before the accident Emery was riding his bicycle in a westerly direction on the north side of Eighth street; that before reaching Chandler street he saw or by exercise of reasonable diligence could have seen the truck driven by Lindeman coming from the west and going in an easterly direction on the south side of Eighth street, yet, notwithstanding such fact, Emery made a “U” turn between intersections and without giving any signal, and in violation of the city ordinance, turned his bicycle from a westerly course in front of the truck driven by Lindeman. The answer set out in detail other alleged acts of negligence on the part of Emery Moseman.
The jury gave a verdict in favor of plaintiffs and returned answers to special questions. The special questions and answers are as follows:
“1. Who was the master of Lindeman, the driver of tire truck in question at the time of the collision? A. L. M. Penwell Undertaking Co.
“2. Was Lindeman, the driver of the truck at the time of the collision, guilty of negligence which was the proximate cause of the death of Emery Moseman? A. Yes.
“3. If you answer the foregoing question in the affirmative, then state of what act or acts such negligence consisted. A. Excessive and unlawful speed.
“4. Was the deceased guilty of negligence which contributed to his death? A. No.
“5. If you answer the last- foregoing question in the affirmative, then state of what act or acts such negligence consisted'.
“6. What was the distance between the truck and the deceased (a) at the time that the driver of the truck first saw the deceased in the street; and (b) at the time that the deceased first saw the truck approaching? (a) Approximately one block, (b) 953% feet. ,
“7. After the hat of the deceased blew off, state (a) what course he followed in crossing the street; (b) what direction he was proceeding immediately before he was struck by the truck; and (c) where he was with reference to the south curb of Eighth street at the time he was struck. A', (a) He made a semi circle turn to the left in the intersection of Chandler street and East Eighth street and went in a southeast direction toward the south curb of East Eighth street east of the intersection of East Eighth street and Chandler street, (b) East by south on the south side of East Eighth street, (c) About four feet north of the south curb of East Eighth street.
“8. At what rate of speed was the truck moving (a) at the time the brakes were first applied; and (b) at what location on East Eighth street was the deceased at that time? A. (a) At least 55 miles per hour, (b) On the south side of East Eighth street approximately in front of the house at 1103 East Eighth street.
“9. State what the condition of the brakes of the truck were immediately prior to the collision. A. Good.
“10. Was the deceased in the exercise of due care and caution for his own safety at and immediately prior to the time of the collision? A. Yes.
“11. Did Emery Moseman, at the time he alighted from his bicycle, know that the truck was approaching from the west at a rapid rate of speed? A. Yes.
“12. Could Emery Moseman, by the exercise of ordinary diligence, have kept out of the path of said truck and have avoided being struck? A. No.
“13. If you answer the last foregoing question in the affirmative, then state whether such failure on his part to exercise ordinary care and diligence, contributed to his death. A.
“14. Was there (a) a custom existing in this community on October 20, 1937, with reference to the transportation of flowers from the place of the funeral to the cemetery, and (b) if so, state what the custom was; and (c) did the funeral services rendered by the undertaker for which he received compensation, include the transportation of flowers from the place of the funeral to the cemetery? A. (a) Yes. (b) The custom was that the undertaker transported the flowers, or had them transported, from the scene of the funeral services to the cemetery, (c) Yes.”
On this appeal defendant contends that the driver of the truck, Lindeman, was not the servant of the defendant at the time Emery Moseman was killed by the impact of the truck.
Forrest H. Harrell testified that he was a florist, doing 'business under the name of “Rosemary Gardens”; he was the owner of the truck in question; Lindeman had worked for him about a year and a half; the truck was used for the purpose of delivering flowers to customers and to funerals. When flowers were ordered for a funeral they were delivered at the place of the funeral; the undertaker in charge of the funeral ordinarily transports- the flowers from the funeral to the cemetery.
Harrell testified that on the day of the funeral, Reilly, manager of the defendant company, called and said they had a lot more flowers at the Wood funeral than they could handle, and wanted to know if they could use Harrell’s truck, to which Harrell consented; that Reilly said: “You have your truck report to the Masonic Temple and park your truck under the fire escape and report to the Pen-well company.” Harrell testified that he sent Lindeman with the empty truck and directed him to follow the instructions of defendant; that he did not see the truck or the driver from that time until after the accident. When asked the question, “You considered the car out of your service from the time it left your place until it got back?” Harrell answered, “Absolutely.”
Harrell further testified that about 5 or 5:30 o’clock on the afternoon of the accident Mr. Reilly, manager of defendant company, came to his place of business and said he was sorry about the accident, and stated, “There is nothing to worry about, as your truck and driver was in our service.” That Reilly then stated that it was “no more than fair that Penwell & Company should offer the family free burial expenses, and everything.”
The conversation between Harrell and Reilly was in the presence of Mrs. Harrell and Maxine Olson. Each of these parties testified that Reilly told Harrell that the truck and driver were in Penwell’s service at the time of the accident.
Mr. Reilly, manager of the defendant company, testified: “The flowers at the grave are- the same flowers used at the funeral. The undertaker assumes the responsibility of getting the flowers to the grave. We make one charge for the whole service. It is a part of the whole service. It is a part of the funeral.” That the defendant company owned a small truck which was used for transporting flowers. At small funerals the flowers were all taken in that truck. At funerals where the small truck owned by defendant could not handle the flowers, the defendant would call florists to do the work.
The first question presented is whether Lindeman was the servant of defendant at the time of the fatal accident.
That a servant may be loaned or hired by his master to another for some special purpose and become the servant of such other person in pei'forming such services is well settled.
Thus in 39 C. J., p. 1274, it is stated:
“A servant may be loaned or hired by his master for some special purpose so as to become, as to that service, the servant of the party to whom he is loaned or hired, and to impose on the latter the usual liabilities of a master. The test of liability for the acts of the servant is whether in the particular service which the servant is engaged or requested to perform he continues liable to the direction and control of his original master or becomes subject to that of the person to whom he is lent or hired, or who requests his services. It is not so much the actual exercise of control which is regarded as the right to exercise such control.”
In Phillips v. Armour & Co., 108 Kan. 596, 598, 196 Pac. 245, a transfer company furnished a motor vehicle and a driver to transfer employees of defendant to and from their homes. In holding the driver was the servant of defendant, the court said:
“Having taken upon itself the responsibilities of the transportation the defendant owed its employees the duty to inspect the instrumentalities used in it and to see that the traffic was as carefully conducted as if the vehicles had been owned by it or been driven by its foreman or other employees. The relation of master and servant existed and the defendant could not rid itself of responsibility for the safety of employees because the vehicles in which they wez-e cai’ried wei’e owned by another.”
In Baker v. Petroleum Co., 111 Kan. 555, 560, 207 Pac. 789, it was said:
“It is well settled that the servant of A may for a particular purpose, or on a particular occasion, be the servant of B, though he continues to be the general servant of A and is paid by him for his work.”
See, also, Dobson v. Baxter Chat Co., 148 Kan. 750, 85 P. 2d 1; Mendel v. Fort Scott Hydraulic Cement Co., 147 Kan. 719, 78 P. 2d 868.
In determining who is the master in these cases, the most satisfactory test is to ask, “Whose business was the servant performing, and under whose control?” (Mechem, Outlines of Agency, sec. 504.) A servant is a person employed by a master to perform service in his affairs whose physical conduct in the performance of the service is controlled or is subject to the right to control by the master. (Hurla v. Capper Publications, Inc., 149 Kan. 369, 87 P. 2d 552.)
The defendant had contracted to furnish the Wood family a complete funeral. This service included the transportation of the flowers from the place of the funeral to the cemetery. The defendant company requested Harrell to send a truck and driver to the place of the funeral to help transport the flowers to the cemetery. Clearly Lindeman in transporting the flowers was performing the business of the defendant — not of his general master, Harrell. He was subject to the control of defendant in the performance of that service. Under the evidence of the plaintiff it could not be said as a matter of law that in the performance of this service Lindeman was the servant of Harrell. As different inferences might be drawn from the testimony the matter was for the jury to determine. (Baker v. Petroleum, Co., supra; Nelson v. Cement Co., 84 Kan. 797, 115 Pac. 578; Railway Co. v. Loosley, 76 Kan. 103, 90 Pac. 990.)
Défendant asserts that our former rulings compel a determination that Lindeman was in the service of his general employer, Harrell. We think, however, careful analysis will disclose distinguishing factors in those cases. Thus, in Laffery v. Gypsum Co., 83 Kan. 349, 111 Pac. 498, the laborer who was killed was in the service of an independent contractor. The defendant in that case neither controlled nor had the right of control over his physical conduct in the performance of his duties at the time of the fatal injury. In Redfield, v. Chelsea Coal Co., 136 Kan. 588, 16 P. 2d 475, one Land was driving a truck owned by Garland at the time of the collision in which plaintiff was injured. There was no evidence that Land was in the service or under the control of the defendant coal company. “The trouble with that theory here is that there is no evidence that Land was the agent of the coal company.” In the later case growing out of the same accident (Redfield v. Chelsea Coal Co., 143 Kan. 480, 54 P. 2d 975) the evidence “was little different” from the evidence in the former case. In Dohner v. Grocery Co., 116 Kan. 237, 226 Pac. 767, while the salesman was the agent of defendant for the purpose of taking orders and making collections, it was held that he was not a servant subject to the direction of the defendant company in the operation of the company automobile on the highways. Hurla v. Capper Publications, Inc., supra, came up on a demurrer to the evidence, and it was held that the evidence was insufficient to show that the relation of master and servant existed.
In the case before us Harrell loaned his servant to the defendant. He stated the truck was out of his service from the time it left until it got back. The manager of the defendant company stated, as shown by the testimony of Harrell and two other witnesses, that the “truck and driver was in our service.” It was the duty of the defendant to transport the flowers from the place of the funeral to the cemetery. In assisting in this service Lindeman was not furthering the business of his general employer, Harrell, but of his temporary master, the defendant.
The jury found that Lindeman was the servant of the defendant at the time of the collision, and the evidence was sufficient to support the finding.
Was Emery Moseman guilty of contributory negligence? This question is argued at length by counsel for defendant. The jury in answer to question four found the deceased boy was not guilty of contributory negligence, and in answer to questions six and seven made findings as to the facts immediately preceding and at the time of the fatal event. At the time the deceased first saw the truck, the truck was at a point 953% feet east; after the boy’s hat blew off he made a semicircle turn to the left in the intersection of Chandler and East Eighth streets and went in a southeast direction toward the south curb of Eighth street, east of Chandler street. These findings were supported by the evidence. _ We cannot say as a matter of law that a boy twelve years of age riding a bicycle, who sees a car approaching, 950 feet away, is guilty of contributory negligence in turning to the left and crossing the street. The evidence showed the boy had crossed the street in safety and was within a few feet of the south curb going east when the truck was a block west. He had turned east and had traveled east a distance of about 50 feet before the impact. We find no merit in this contention.
The court permitted the witness Morton to testify as to a statement made by Lindeman shortly after the collision. “He said they was not the Rosemary flowers — he was hauling them for Penwells.” Defendant contends that agency cannot be proved by the declarations of the agent. This is a familiar rule of law. (Richards v. Newstifter, 70 Kan. 350, 78 Pac. 824; Allison v. Borer, 131 Kan. 699, 293 Pac. 769.)
But the rule also appears to be well settled that where the agency has been established by independent evidence, the declarations of the agent are competent to show that he acted as agent and not on his individual account, and to show the nature and extent of his authority. (2 C. J. 939; Fritchen v. Jacobs, 138 Kan. 322, 26 P. 2d 448.) As the relationship of master and servant was shown by the testimony hereinbefore outlined, we find no error in the admission of this testimony.
Several photographs of the deceased boy taken with other members of the family were introduced in evidence. It is urged that the effect of the photographs “was to inflame the minds of the jury and cause extreme passion and prejudice on the part of the jury in their deliberations in the jury room.’’ Plaintiffs in their petition prayed for damages in the sum of $10,000. The jury returned a verdict for $5,000. It is not claimed the verdict is excessive. If passion and prejudice was generated by the photographs, the result was not reflected in the verdict. It is also suggested that the photographs caused the jury to return untrue answers to special questions. We have examined the record and find the answers to such questions are supported by the testimony. There was no reversible error in the admission of the photographs.
The next complaint is that the court erred in refusing to give instructions requested by defendant. Five- of these requested instructions pertain to the relationship of master and servant. This subject was covered by the instructions given by the court. Requested instruction No. 13 merely quoted section 47, chapter 283, Laws of 1937, which provides that no person shall turn a vehicle from a direct course on the highway unless such movement can be made with reasonable safety, etc. It had no application to the facts shown by the record and was properly refused.
Complaint is made of instructions 11, 14 and 23 given by the court. No. 11 set forth the duty of a person using a public street either as a pedestrian or as the driver of a truck or other vehicle, and the duty to use ordinary care under the circumstances of the situation; No. 14 stated the duty of a person driving a motor vehicle on a public street or highway to keep his car under control so that he could stop the car within the distance in which he can see ahead of him or to turn aside to avoid a collision. The objection to these instructions seems to be that they are not applicable to the facts. The objection is predicated on the assumption that the facts found by the jury, especially in answer to special questions 6 and 7, were not true. We think the facts found by the jury are supported by the evidence, and the objection to these instructions is without merit.
Instruction 23 stated the last-clear-chance doctrine in case the jury found the deceased boy was guilty of negligence. The jury, however, in answer to the special questions, found the deceased boy was not guilty of negligence. As the verdict was not based on the theory that deceased had negligently subjected himself to a risk of harm from the subsequent negligence of defendant’s servant, the instruction became immaterial.
At the conclusion of the trial counsel for defendant requested the court to submit to the jury thirty-one special questions. Some of these questions were refused, others were modified and included in the fourteen questions submitted by the court. In Snyder v. Eriksen, 109 Kan. 314, 320, 198 Pac. 1080, it was said: “It is the function and duty of the court to shape and supervise the questions, eliminating those that may be immaterial and submitting only inquiries as to ultimate facts on controverted issues.” After a careful study of the requested questions, and those given by the court which covered in substance most of the questions requested, we cannot say the court, under the statute G. S. 1935, 60-2918, erred in refusing to submit questions requested.
We must therefore sustain the action of the trial court in overruling the demurrer to plaintiff’s evidence and in refusing to direct a verdict for defendant. Finding no error in the record, the judgment must be affirmed. It is so ordered.
Harvey, J., not sitting. | [
-16,
104,
-36,
-116,
26,
98,
106,
24,
81,
-79,
-91,
83,
-23,
-53,
21,
107,
-5,
61,
-47,
42,
-12,
-77,
66,
-86,
-110,
-13,
113,
-44,
-78,
-55,
38,
-3,
76,
96,
74,
-43,
102,
72,
-59,
-42,
-50,
8,
41,
-15,
-39,
3,
-76,
58,
118,
14,
-111,
-97,
-69,
42,
25,
-25,
105,
108,
121,
-87,
-48,
-16,
-118,
5,
127,
22,
-94,
32,
-98,
-95,
88,
25,
-128,
49,
32,
-24,
48,
-90,
-124,
-12,
99,
-39,
8,
98,
103,
35,
13,
77,
-20,
-104,
14,
-78,
31,
-89,
30,
57,
27,
-91,
-74,
31,
113,
17,
14,
122,
-2,
85,
28,
40,
1,
-113,
-74,
-127,
-49,
-80,
-100,
11,
-21,
-121,
50,
113,
-100,
-74,
93,
68,
118,
-109,
-121,
-104
]
|
The opinion of the court was delivered by
Allen, J.:
This action was to recover damages for negligence. Judgment was rendered in favor of defendants. One-half of the costs was taxed to the plaintiffs and one-half to the defendant, the A. A. Doerr Mercantile Company. This appeal is from the order and judgment taxing to defendant a part of the costs, and from the order and judgment overruling the motion of defendant to retax the costs in the action.
In the petition it was alleged that the plaintiffs purchased from the defendant, the A. A. Doerr Mercantile Company, a Delco light electric plant for the purpose of furnishing electric light and power for plaintiffs’ home; that the plant was installed by the defendant mercantile company; that the actual labor of the installation was performed by defendant Cobb, agent and employee of the defendant mercantile company, and that by reason of the negligent and improper installation, an explosion was caused resulting in a fire which destroyed plaintiffs’ home and all the personal property therein contained. Plaintiffs prayed for judgment in the sum of $6,275.10.
When the case came on for trial it was agreed by counsel in open court that the evidence to be adduced would be too voluminous for consideration by a jury. It seems the property alleged to have been destroyed was unusual' — in addition to the usual household furniture, bedding, linens, wearing apparel, etc., the house contained an amazing collection of curios, antiques, heirlooms, paintings, old books, etc., and to establish the value of such articles, item by item, would require the use of expert witnesses. It was agreed that a referee be appointed and that all the issues in the case should be tried and determined by the referee. Accordingly a referee was appointed by the court.
Thereafter, the referee made and filed his findings of fact and conclusions of law. While the findings were in favor of the defendant, the referee recommended that one-half of the costs be assessed against the defendant. Judgment was entered in accordance with the recommendation of the referee, taxing to the defendant company one-half of the referee’s fee of $750, and one-half of the reporter’s fee of $348, for the transcript of the evidence. The defendant company filed a motion to retax the costs, which was overruled. This appeal followed.
Our statute, G. S. 1935, 60-2928, provides that a referee shall be allowed such compensation for his services as the court may deem-just and proper “which shall be taxed as part of the costs-in the case.”
G. S. 1935, 60-3303, specifies that no appeal shall be taken to the supreme court in any civil action for the recovery of money unless the amount or value in controversy, exclusive of costs, shall exceed one hundred dollars, except in certain cases.
In Vrooman Co. v. Summer, 110 Kan. 662, 205 Pac. 609, while the plaintiff recovered judgment for part of the amount sued for, the court awarded costs in favor of defendants. In dismissing the appeal for want of jurisdiction, the court said: “. .. . The only matter in controversy is the decision as to the recovery of costs. In plaintiff’s notice of appeal it expressly stated that this question is the only part of the judgment brought up for review. Limitations have been placed upon appeals, and under the code no appeal lies from a decision where only costs are involved.” (p. 663.)
In the case at bar the only question for review is the judgment for costs rendered against defendant. Under the statute, as construed in the Vrooman case, this court is without jurisdiction-to entertain the appeal. Furthermore, the defendant company cannot claim that the items in question should have been taxed as costs against the defeated party by the trial court, and now assert on appeal that such items are not to be considered as costs within the meaning of the statute.
For the reasons stated the appeal must be dismissed. It is so ordered. | [
-16,
106,
-36,
-84,
74,
96,
42,
-38,
70,
33,
-73,
95,
-3,
-61,
-107,
111,
115,
125,
117,
107,
-42,
-93,
19,
99,
-102,
-69,
-77,
-43,
-71,
-50,
-26,
-42,
76,
36,
-54,
-107,
102,
-126,
-59,
84,
-58,
13,
-87,
-52,
-3,
64,
52,
56,
52,
11,
17,
-98,
-13,
44,
28,
-37,
79,
44,
-7,
-87,
-47,
-71,
-126,
13,
127,
23,
-79,
117,
-98,
-121,
-40,
62,
-112,
21,
2,
-24,
115,
-74,
-121,
-12,
67,
-71,
9,
96,
103,
0,
5,
-17,
-24,
-120,
55,
-76,
-115,
-91,
50,
88,
-38,
41,
-65,
-99,
120,
48,
7,
126,
-10,
-35,
-33,
110,
7,
-113,
-106,
-77,
-81,
96,
-100,
75,
-54,
-93,
50,
113,
-51,
32,
95,
70,
51,
-101,
-114,
-52
]
|
The opinion of the court was delivered by
Wedell, J.;
This was a quiet-title suit. Plaintiff prevailed, and the defendants appealed.
Plaintiff’s petition, in substance, alleged: He is the owner and in the possession of certain lands in Pratt county; certain defendants, including appellants, to wit, F. E. Hastings, J. W. Beck, Dwight H. Thompson, Herbert Atkins, Frederick J. Helmke and Howard H. Helmke, claim some right, title or interest in the land or some part thereof, which claims cloud plaintiff’s title; their claims are without merit; plaintiff is entitled to have his title quieted and to have all claims and interests of the defendants forever barred.
The defendant, Hastings, filed a separate answer which, in substance, alleged: He did claim some right, title and interest in land; on May 21, 1932, James T. Hardesty and Dora Hardesty, his wife, being the then owners of the land, executed to him an oil and gas mining royalty conveyance, together with a contract, in writing, all of which were placed in escrow; on May 22, 1933, defendant had fully complied with the terms and provisions of the contract; the royalty conveyance in compliance with such performance was delivered to him by the escrow holder; he acquired thereunder an equal undivided one-fourth interest in the oil and gas and other minerals in and under the land or that might be produced therefrom, for a period of fifteen years; the Hardestys, at the time they executed and delivered the mineral deed, were the owners in fee of the land, subject only to a mortgage thereon, 'given by the Hardestys to The Wheeler-Kelly-Hagny Trust Company of Wichita, Kan., on March 8, 1920, in the sum of $12,000; the deed provided the Hardestys, their heirs and assigns, would forever defend .the title to the royalty rights conveyed; defendant was entitled to be decreed to be the equitable and legal owner of an undivided one-quarter .interest in and to all of the oil and gas and other minerals that may be produced from the land, save and except as to such fractional portions of his interest as may be shown by the public records of Pratt county to have been conveyed to others.
The remaining appellants filed their joint answer, in which they adopted the answer of the defendant, Hastings, and, in substance, further alleged: Assignments had been made by Hastings to them of various fractional portions of his interest after the royalty conveyance to Hastings had been placed on record; plaintiff was es-topped from claiming the title asserted in his petition.
Plaintiff’s reply to these answers consisted of a general denial of all matters which controverted the averments of his petition. The reply, however, contained an admission of the execution and delivery of the contract and alleged royalty conveyance referred to in the answer of the defendant, Hastings.
The action was tried upon an agreed statement of facts, which reads:
“agreed statement op pacts
“1. That on and prior to the 21st day of May, 1932, James P. Hardesty and J. E. Hardesty were the owners, as tenants in common, of the east half of section 28; the east half of the west half of section 28; the northeast quarter of section 33; the east half of the west half of section 33, all in township 27 south, of range 11 west of the 6th P. M., in Pratt county, Kansas, containing 800 acres, more or less.
“2. That on the 21st day of May, 1932, James P. Hardesty and Dora Hardesty, his wife, and J. E. Hardesty and Alma L. Hardesty, his wife, entered into an agreement in writing of that day, with one F. E. Hastings. A copy of said agreement is hereto attached, marked ‘Exhibit A,’ and made a part of this agreed statement of facts.
“3. That of even date therewith, James P. Hardesty and Dora Hardesty, his wife, and J. E. Hardesty and Alma L. Hardesty, his wife, in compliance with the terms of said escrow agreement, made and executed their royalty conveyance in writing of that day, to F. E. Hastings. A copy of said royalty conveyance, with all endorsements thereon, is hereto attached, marked ‘Exhibit B,’ and made a part of this agreed statement of facts.
“4. That on and prior to the 21st day of May, 1932, the above-described . real property, together with 480 acres of land lying adjacent thereto, was covered by a mortgage executed by the said James P. Hardesty and Dora Hardesty, his wife, to The Wheeler-Kelly-Hagny Trust Company, as the date of March 8, 1928, in the principal sum of $12,000, which mortgage was recorded in the office of the register of deeds of Pratt county, Kansas, on the 29th day of March, 1928, in Book 70 at page 286 of the mortgage records of said office. Said record is made a part of this agreed statement of facts as if written herein in full.
“5. That on the 22d day of May, 1933, the above-described royalty conveyance and assignment was delivered by the Peoples Bank, Pratt, Kan., in compliance with said escrow agreement, to F. E. Hastings, and on that date he became the owner and holder thereof.
“6. That thereafter the said F. E. Hastings conveyed away, and by subsequent assignment the defendants hereinafter named became the holders of, an undivided interest in and to the oil and gas rights in the above-described real property as fixed and determined by the royalty agreement hereto attached, marked ‘Exhibit B’; the exact interest therein is not determined by this agreed statement of facts; J. W. Beck, Ed & Fred H. Helmke, D. H. Thompson, Farmer Bros., H. Atkins, Margaret Gay, F. E. Hastings, Lee Harris. That all the defendants 'herein, or their prior assignors, were parties defendant in the case referred to in paragraph No. 7 following.
“7. That on the 3d day of July, 1933, case No. 5768, wherein National Fire Insurance Company of Hartford, Conn., was plaintiff, and James P. Hardesty et al. were defendants, was filed in the district court of Pratt county, Kansas. The petition and the files in said action are hereby referred to and made a part of this agreed statement of facts to the same extent as if all of said instruments were incorporated herein in full.
"8. That on the 18th day of December, 1936, J. E. Hardesty and Alma L. Hardesty, his wife, and James P. Hardesty and Dora Hardesty, his wife, executed and delivered their deed in writing of that day, conveying the above-described real property, together with 480 acres lying adjacent thereto, to Briant Hardesty, which deed was recorded in the office of the register of deeds of Pratt county, Kansas, on the 30th day of December, 1936, in vol. 66, at page 238 of the deed records of said office. Said record is made a part of this agreed statement of facts to the same extent as if written herein in full.
“9. That on the 13th day of January, 1937, redemption from the foreclosure sale had in connection with case No. 5768 above referred to, was made of the above-described real property by Briant Hardesty.
“10. That on the 7th day of January, 1937, the said Briant Hardesty made, executed and delivered to Business Men’s Assurance Company of America, Kansas City, Mo., his mortgage deed in writing, in the principal sum of $12,800, covering the above-described real property, together with 480 acres of land lying adjacent thereto. Said mortgage was made a matter of record in the office of the register of deeds of Pratt county, Kansas, on the 9th day of January, 1937, in vol. 79, at page 463 of the mortgage records of said office, and said record is made a part hereof to the same extent as if written herein in full.
“11. That the money so received from said mortgage was used by the said Briant Hardesty, in part, for the redemption of the above-described lands and other lands.
“12. That on the 30th day of December, 1936, the said Briant Hardesty made, executed and delivered his deed in writing of that day, whereby the above-described lands, together with 480 acres of other lands, were conveyed and set over to the plaintiff, E. M. Fairchilds. Said deed was recorded in the office of the register of deeds of Pratt county, Kansas, in vol. 66 at page 424 of the deed records of said office, which record is referred to and made a part of this agreed statement of facts.”
The agreement between the Hardestys and the appellant, Hastings, referred to as “Exhibit A” in paragraph 2 of the agreed statement of facts, provided that Hastings was to receive from the escrow holder the oil and gas royalty conveyance, marked “Exhibit B,” when Hastings or his assignees had performed the drilling services on that portion of the oil and gas lease held by the Ninnescah Oil and Gas Company. Exhibit B was the royalty conveyance from the Hardestys to Hastings. That conveyance recited there was, on the date of the execution of the royalty conveyance, a recorded oil and gas lease on the land and a prior mortgage on the land in the sum of $12,000. Exhibit B further disclosed that the Hardestys, under the terms of the oil and gas lease, had reserved unto themselves and were to receive from the lessee one-eighth of all oil produced and saved from the land and one-eighth of the proceeds from all gas from the land used off the premises. Exhibit B also contained a further provision which expressly defined the particular interest which the grantors of the oil and gas lease, the Hardestys, had reserved unto themselves under the lease. That was the one-eighth interest in the oil and gas produced. That interest is what the Hardestys and Hastings agreed should constitute “royalty” within the meaning of exhibit B. The provision is clear and unambiguous. It reads:
“It is expressly agreed and understood in this conveyance, that all oil and gas reserved, or any money received for oil or gas by said grantor, heirs or assigns, under said present lease, or under any other lease or leases on said land, shall be called royalty.”
Other portions of exhibit B further clearly provided that Hastings was to receive one-fourth of “said royalty rights reserved to the said grantor under the lease,” or under any other lease or leases which might thereafter be granted by the Hardestys, their heirs or assigns. Exhibit B also provided:
“Provided, however, That upon the expiration or forfeiture of the present existing lease, the said grantor, heirs or assigns, shall have the right to lease said land for oil or gas and receive all the bonus and rentals paid by lessee, and if no oil or gas well be drilled on said land under the present lease, said grantor, heirs or assigns, agree to make a second lease, insuring development of said land for oil and gas within one year after the expiration or forfeiture of said present lease, and if grantor, heirs or assigns, are unable to make such a lease with a responsible company within six months after the expiration or forfeiture of said present lease, said grantee, heirs or' assigns, shall have the right to secure such a lease on said land.
“If no oil or gas is found or produced on said land, this agreement shall remain in force for a term of fifteen years from the date first above written. But if oil and gas or either of them is found or produced on said land, this agreement shall continue and the royalty rights of grantee shall continue so long and whenever oil or gas is produced from said land.”
In exhibit B the Hardestys covenanted and agreed they were the owners in fee of the land and royalty rights conveyed to Hastings and that the same were free, clear and unencumbered except as to the $12,000 mortgage on the land previously exeouted in the year 1920.
The journal entry of mortgage foreclosure discloses the court found James P. Hardesty and Dora Hardesty, his wife, were, at the time the note and mortgage were executed and delivered and on the date of the foreclosure judgment, September 11, 1933, the owners of the land. The judgment expressly provided that appellants, and anyone claiming under them, were barred, restrained and 'enjoined from having or asserting any right, title, estate or claim, in or to, or lien upon the property, subject only to the right of redemption as provided by law.
In the instant quiet-title action the trial court concluded plaintiff was in the actual possession of and the owner of the fee-simple title, free from any and all claims of the appellants.
Appellants contend the judgment quieting appellee’s title to the land is erroneous; first, because the judgment in the mortgage-foreclosure action did not determine the Hardesty’s ownership of the land; second, appellants were cotenants in the ownership of the land and the oil and gas that might be produced; and third, appellants were not required to contribute to the. cost of redemption.
Touching the first contention, appellants insist the finding in the journal entry of foreclosure that the Hardestys were the owners of the land on the date the mortgage was executed and on the date of the foreclosure judgment was contained only in the fact-finding portion of the journal entry of judgment, and hence does not bar appellants from asserting their claim or title in the instant action. The contention cannot be sustained. It is true that ordinarily a mere finding of fact not included in or confirmed by a judgment does not constitute an adjudication of the finding. (McCullough v. McCullough, 109 Kan. 497, 500, 200 Pac. 298; Johnston v. Wear, 110 Kan. 237, 204 Pac. 141.) Where, however, findings are necessarily included in and become a part of the judgment, they are deemed adjudicated. (Auld v. Smith, 23 Kan. 65; Johnston v. Wear, supra, p. 243.) In the foreclosure judgment, the court did not make merely a finding that the Hardestys were the owners of the fee title when they executed the mortgage and that they were the owners at the time of the foreclosure judgment, but the trial court specifically rendered a judgment against each and all of these appellants which forever barred them from asserting any further claim in or to the land or any part thereof, subject only to the right to redeem as provided by law. That judgment was rendered September 11, 1933. No appeal was taken therefrom and it has become a finality; It is a common practice in mortgage-foreclosure actions for courts to first find whether the mortgage in question was in fact executed and whether the mortgagor was and is the owner of the land and whether the mortgagee was and is the holder of the mortgage. Those findings are essential to and form the basis of the foreclosure judgment. Furthermore, the appellant, Hastings, is in no position to deny the title of his grantors. If the grantors, the Hardestys, were not the owners of the land, then Hastings and the other appellants received no title or interest of any kind or nature whatsoever. They-also expressly took their conveyances subject to the existing mortgage on the land of the Hardestys. The foreclosure judgment wiped out not only the oil and gas lease itself, but every semblance of appellants’ rights or claims save and except their right, if any, to redeem. Appellants stoutly contend they had the right to redeem under authority of Rutland Savings Bank v. Norman, 125 Kan. 797, 266 Pac. 98. It will be well-to bear in mind that while the opinion in that case does not clearly indicate the nature of the oil and gas conveyance, the abstract here on file clearly discloses the conveyance in that case constituted an outright mineral deed to all of the oil and gas in place. No such grant was contained in the instant conveyance to Hastings. The express agreement and understanding as disclosed by exhibit B disposes of appellants’ second contention, at least insofar as cotenancy in and to minerals in place is concerned.
In view of what has been said, it follows appellants were not and did not become cotenants with the Hardestys insofar as an interest in the land was concerned. We are not required in the instant case to determine, as a matter of law, whether appellants might have become cotenants as to the oil and gas which “may be produced.” Assuming, without deciding, that such a cotenancy might exist and that as such cotenants appellants would be entitled to redeem, it would be necessary that they redeem, or offer to contribute toward redemption, within a reasonable time. (Hayden v. Hughes, 147 Kan. 511, 77 P. 2d 938; Malone v. Young, 148 Kan. 250, 81 P. 2d 23.) Such offer to redeem was quite, promptly made in the Rutland Savings Bank case, supra. In the instant case redemption was made by the grantee of the Hardestys on January 13, 1937. The new mortgage which was placed on the land in order to make redemption possible was in the sum of $12,800. That was $800 more than the principal amount of the old mortgage. Appellants did not offer to redeem or to contribute to the cost of redemption prior to redemption. Nor have they offered to do equity at any time since redemption was made. The instant action by appellee to quiet his title was not commenced until February 23, 1939. The answers of the respective appellants assert only their alleged rights which had their source in the royalty conveyance to Hastings. Those rights were subject to the prior existing real-estate mortgage. Appellants, under the royalty conveyance, had the right to redeem the property from the mortgage debt. They failed to contribute in any manner to avoid the foreclosure of their interests, and they have completely failed to contribute to the payment of costs and expenses incident to redemption. They are now in the' position of seeking for themselves all the benefits of redemption without having shared, or offering to share, in any of its burdens. The position is untenable.
We have not overlooked appellee’s motion to dismiss the appeal. The motion is too technical. The trial court did not err in quieting the title of appellee, and the judgment is affirmed. | [
-12,
-23,
-12,
29,
10,
96,
40,
-102,
73,
-95,
101,
83,
-17,
-38,
5,
57,
-30,
29,
-44,
106,
34,
-89,
2,
-16,
82,
51,
89,
-51,
-8,
95,
-92,
-43,
12,
0,
74,
85,
-26,
-128,
69,
28,
-114,
4,
9,
-28,
-39,
0,
50,
107,
114,
75,
113,
-82,
115,
41,
28,
67,
13,
46,
-17,
44,
81,
112,
-86,
-121,
-3,
18,
17,
0,
-104,
-27,
-56,
90,
-112,
56,
8,
-24,
83,
-90,
22,
-12,
11,
-103,
41,
62,
99,
99,
-99,
-17,
104,
-104,
15,
-2,
-115,
-25,
-30,
72,
34,
97,
-98,
-99,
122,
-128,
-58,
118,
-17,
-124,
93,
108,
1,
-113,
-42,
-125,
15,
-8,
-111,
91,
-61,
-121,
-76,
117,
-61,
-94,
93,
71,
112,
31,
15,
-80
]
|
The opinion of the court was delivered by
Allen, J.:
This is an action on an oral contract brought against the administrator of the estate of William M. Else,.deceased. The judgment in the trial court was in favor of the defendant. Plaintiff appeals. ■ ,.
The litigation had its origin in the financial difficulties of the Hollenberg State Bank. The bank had a capital stock of $10,000, divided into one hundred shares of $100 each. At the time of the alleged contract, hereinafter mentioned, the plaintiff and her husband owned fifty shares and William M. Else, now deceased, owned five shares.
In 1924 the bank, in satisfaction of debts, had acquired title to 520 acres of land. The statute, G. S. 1935, 9-151, required that the land be sold, or charged off out of the earnings or surplus of the bank. To remove this real estate from the assets of the bank three stockholders, about 1929, contributed the sum of $20,000. Of this sum R. A. Hyland advanced $10,000, George Patterson $3,000 and William M. Else $7,000. The bank gave Else a promissory note for $7,000 to repay the money he advanced. In addition a mortgage of $4,000 was assigned to him. The title to the land remained in the bank and in 1931 Else demanded the money he had paid into the fund. R. A. Hyland advanced $5,000 and George Patterson $2,000 to pay Else. At the same time the following agreement, signed by Hyland, Patterson, Else and other stockholders, was entered into:
“Whereas, The Hollenberg State Bank, of Hollenberg, Kan., is the owner of the following-described real estate, to wit: (Description of land.)
“And Whereas, A part of said land is mortgaged to Trevett, Mattis & Baker for $4,000, and R. A. Hyland has advanced the sum of $15,000, and George Patterson has also advanced the sum of $5,000, in charging said lands out of the assets of said bank. It is hereby agreed by and between the undersigned stockholders of said bank that said land shall be sold during the year. 1931, at a price to be agreed upon by a majority of the undersigned stockholders. If the amount received from the sale of said land shall be insufficient to pay the amount so advanced by R. A. Hyland and George Patterson, with six percent interest, then in that event each of the undersigned stockholders agree to contribute to the payment of such deficit such proportion thereof as the shares owned by him or her bears to the 100 shares of the capital stock of said bank: Provided, however, This guaranty is not a continuing security and shall not extend or apply after December 31, 1931.”
In 1931, just prior to the expiration of the foregoing contract, Hyland prepared another contract to be signed by the stockholders in reference to the land. Else refused to sign the proposed agreement.
The land was sold in May, 1933; at the price sold, the bank sustained a severe loss.
On March 3, 1935, William M. Else died testate. At the date of his death he was a resident of Jefferson county, Nebraska, and his will was probated in that county. On March 16, 1936, an authenticated copy of his will was admitted to record in Washington county, Kansas, and letters of administration were issued to the defendant Loyal D. Else.
R. A. Hyland and George Patterson assigned to the plaintiff their claim against Else for the amount Else owed the assignors under the facts above outlined. No assessment was ever made on the stockholders on account of the loss resulting from the sale of the land.
On April 20, 1936, plaintiff filed a claim against the estate of Else in the probate court. This claim was in two counts; the first was on the written contract of March 11, 1931, and the second was on an implied contract. The claim was disallowed, and plaintiff appealed to the district court. In that forum plaintiff’s statement of her cause of action was compelled to run the gauntlet of divers and sundry motions. As a result plaintiff filed first, second and third amended petitions. Counsel for defendant asserts that the original petition and the several amended petitions are identical with the allegations in the petition and amended petitions (except as to names of parties, amounts involved, etc.) before this court in Hyland v. Dewey, 146 Kan. 797, 73 P. 2d 1038. The fourth amended petition in this case was filed March 6,1938, subsequent to the date on which the opinion in Hyland v. Dewey, supra, was handed down.
The fourth amended petition upon which the case was tried alleged that the bank had acquired certain land as above set forth; that to comply with the banking laws it was necessary to charge off and out of the assets of the bank the land described; that for the purpose of doing so, and to avoid a levy on the stock of the bank; and to avoid a sale of the land at a sacrifice “there was a mutual, agreement and understanding among and between the stockholders of the bank, including the said Else, that certain stockholders of said bank advance the funds necessary to charge off said real estate,” etc. It was further alleged that it was mutually agreed that if the land was sold at a loss “then that each of said stockholders should be held bound and obligated to the said parties so advancing the said funds, for the proper proportion of such deficit.”
.‘Plaintiff alleges that under the written contract of March 11, 1931, above set out, the' deceased Else agreed and promised in writing to repay and refund Hyland and Patterson his proportion of the amounts advanced by them.
The petition alleges the sale of the land, the loss sustained, and the amount claimed to be due from the estate of Else, for which judgment is prayed.
A jury being waived, the case was submitted to the court. The court made findings of fact, returned conclusions of law and entered judgment for defendants. This appeal is from the order of the court in overruling plaintiff’s motion for a new trial.
The questions presented on this appeal are thus stated in the brief of appellant:
“1. Whether all of the acts and conduct of the parties prior to the contract of March 11, 1931, are sufficient when not contradicted, to prove an implied contract.
' “2. Whether the act of one or more in paying off a common burden or more than their share of such burden, and the acceptance by those not so paying their share, raises an implied or quasi contract for contribution.
“3. Whether the part of the written contract of March 11,. 1931, relating to'the sale of the land, was based or founded upon sufficient.consideration to release parties from the duty of paying their share of a common burden under a prior or implied contract or quasi contract for contribution, or whether that part of the contract was void for want of consideration and of mutuality and could not be enforced.”
The case of Hyland v. Dewey, supra, was an action against a stockholder in the same bank, brought by the same plaintiff as in the present action. In that case.the first cause of action was .on the written agreement dated March 11, 1931, above set out. It was held the plaintiff could not recover on the written agreement because the liability of the defendant in that case was limited by the express terms of the contract. The second cause of action was for contribution, under an obligation implied in law. As it was not shown that Hyland and Patterson were under any duty to advance the $20,000 to take the land out of the assets of the bank, and the advancement was a voluntary act on their part, it was held plaintiff was not entitled to contribution from the defendant in that case.
In the case now before us the fourth amended petition alleges there was a mutual understanding and agreement between the stockholders of the bank, including the defendant Else, that if certain of the stockholders advanced the money for the purpose stated, that each of the stockholders would be bound for his proper proportion of any deficit. .It thus, appears that plaintiff in the case before us predicates her cause of action upon an express oral contract (17 C. J. S., p. 315) and not on an implied contract. (17 C. J. S. 317.)
An answer was filed by the defendant, and a reply thereto was filed by the plaintiff. Upon the issues thus joined- the case was tried by the court below, and judgment was entered for defendant. As the judgment was supported by the evidence, it must stand unless error appears in the record. Instead of directing our attention to any trial errors which would call for a reversal of the jfidgment, the elaborate brief of plaintiff is devoted to a review of the evidence. The weight of the evidence was for the trial court. It is the misfortune of the plaintiff that she was unable to convince the trial court that under the pleadings and the evidence she was entitled to a judgment. The questions argued by counsel as to implied contract are not germane to the issues in the case. The plaintiff’s action is based upon an express contract. Her right of recovery is measured by the contract pleaded. As the judgment is supported by the evidence, and no error is shown in the record, the judgment must be affirmed. It is so ordered. | [
-10,
104,
-72,
-67,
-102,
100,
42,
-102,
81,
-95,
-91,
83,
-23,
-53,
21,
109,
-25,
77,
81,
104,
-57,
-77,
54,
34,
82,
-77,
-15,
-51,
-79,
93,
-12,
-41,
12,
32,
-54,
29,
-26,
-62,
-59,
20,
-50,
36,
10,
64,
-39,
64,
52,
111,
118,
79,
81,
-114,
-13,
40,
85,
99,
105,
46,
95,
-71,
-47,
-16,
-117,
-116,
127,
19,
19,
0,
-104,
3,
-56,
10,
-112,
117,
-127,
-24,
82,
54,
-58,
-12,
71,
-103,
8,
-10,
102,
51,
96,
-17,
-64,
-120,
6,
-4,
-115,
-89,
-110,
72,
-30,
104,
-66,
-101,
116,
80,
3,
118,
-2,
13,
28,
-20,
1,
-53,
-10,
-127,
-81,
-4,
30,
3,
-5,
11,
53,
112,
-119,
-64,
93,
87,
56,
-101,
-113,
-79
]
|
The opinion of the court was delivered by
Hoch, J.;
This case has to do with a property settlement made in a divorce proceeding. A divorce was granted to the husband on the grounds of gross neglect of duty and extreme cruelty. The wife appeals only from the allowance made to her by the trial court.
Henry Wittig, the plaintiff, and Mary Wittig, the defendant, were married in July, 1934. He had twelve children and she had seven children by prior marriages. All of her children but one were then married, and all were married when this action was brought. All of his children were over sixteen years of age except one boy, who was twelve. Several of plaintiff’s children were living at home with their father when defendant came to make her home there. Everything seems to have gone along fairly well for a couple of years, but friction between the defendant and some of the plaintiff’s children increased and finally the defendant gathered up all her personal belongings and left. The divorce action was filed in August, 1938. Plaintiff alleged that by the joint efforts of himself and his former wife he had accumulated, at the time of the marriage, some personal property and a half section of land in Barton county and a quarter section in Rush county subject to a mortgage of $4,000; that the defendant had no title or interest in any of this property and that she had in her possession all the property which she owned at the time of the marriage or had accumulated subsequent to the marriage. Immediately prior to the marriage the parties had entered into a prenuptial property agreement and this had been modified by a supplemental agreement made in October, 1936. As these agreements were conditioned upon death and not upon divorce, they are not here at issue and their terms need not be recited. The defendant filed an answer, denying generally the charges of the plaintiff and alleging that at the time of the marriage she had about twelve hundred dollars in money and certain other personal property, the value of which was not stated, and that plaintiff took charge of this property and used it for his own purposes, and with the exception of about three hundred dollars, had not accounted for it; that the land in Rush county had been acquired during the marriage and as a result of their joint efforts; that subsequent to the marriage the Barton county land had increased in value as a result of oil development; and that other personal property, not enumerated, had been accumulated, of a value of about $3,500; and that the total value of plaintiff’s property was about $22,500. She asked that divorce be denied and that plaintiff be required to account to her for her separate property, real and personal, and for attorney’s fees. The plaintiff filed a reply and an answer to the cross petition, admitting that the defendant had twelve hundred dollars at the time of the marriage, denying that he had used any of her money or property for his own expenses or to meet any of his personal obligations; alleging that the balance of the twelve hundred dollars as set out in the cross petition had been loaned by her to her son-in-law — who was the son of the plaintiff — to build a house and that she held a note and mortgage fully covering the debt; that all the property matters had been discussed and agreement made prior to the marriage; that his property had not appreciably increased in value subsequent to the marriage and that there had been no accumulation of property as a result of their joint efforts. Defendant filed a reply to the answer to the cross petition, but its allegations add nothing to the issue here presented.
The findings of fact by the trial court which bear upon the property division are:
“And the court, having heard further arguments from counsel and being fully advised, finds that the plaintiff had made full and complete account to the defendant of all of her property and that he has used none of her .property for bis personal obligations; that there has been no accumulation of property as the result of the joint efforts of plaintiff and defendant, but that the defendant has contracted additional obligations and now has debts of approximately six thousand dollars ($6,000).
“That the plaintiff has twelve children, two of whom are minors and one a crippled daughter, who are entirely dependent upon the plaintiff for their support; that the defendant is the mother of seven children and has had restored to her the personal property which she brought to plaintiff at the time of their marriage; that none of her children are dependent upon her.
“That a fair and equitable distribution of the property as between the parties hereto, under all of the circumstances, would be that plaintiff pay to the defendant the sum of twelve hundred dollars ($1,200), which would be in full and complete settlement of all property rights between the parties hereto and the cancellation of the obligations of the plaintiff insofar as the antenuptial contract between the said parties is concerned.”
In addition to the allowance to the defendant of $1,200 the court also allowed her $200 attorneys’ fee.
We are confronted at the outset with the rule of law many times declared by this court that a property division or award of alimony made by the trial court in a divorce proceeding will not be set aside unless it is clearly shown that there was abuse of discretion. (Miller v. Miller, 97 Kan. 704, 156 Pac. 695; Hay v. Hay, 130 Kan. 81, 285 Pac. 520; Hendricks v. Hendricks, 136 Kan. 69, 12 P. 2d 804; Walker v. Walker, 137 Kan. 614, 21 P. 2d 375; Falk v. Falk, 139 Kan. 51, 30 P. 2d 124; Savage v. Savage, 141 Kan. 851, 44 P. 2d 272.)
Appellant concedes that this is the rule. The only issue, therefore, is whether the court abused its discretion.
•Determination of the issue must be made in the light of the provisions of our statute, G. S. 1935, 60-1511, which apply to property allowance to the wife where divorce is granted to the husband for the fault of the wife. ■ The statute provides, in substance that the court should order restoration to the wife of the property owned by her before or by her separately acquired after the marriage and not previously disposed of; also such share of the husband’s property as may appear just and reasonable, and should also make just and reasonable division of such property as may have been jointly acquired by the parties during their marriage.
• The record is not entirely clear as to -the property- which the wife brought to the marriage. It was agreed that she had $1,500, but our examination of the record leaves some uncertainty as to whether part of 'this was used in paying debts which she had prior to the marriage'. We shall assume, however, that she had $1,500 after the debts were paid. The court found that the plaintiff had made full and complete account of all her property and that he had used none of it for his personal obligations. There is evidence to support that finding. It appears that at least $900 of her money is accounted for by a debt owing to her by her son-in-law — son of the plaintiff — to whom she had loaned something over $1,100 for building a house. There is evidence that the property is well worth the debt. The answer of the defendant had alleged that property of the value of about $3,500 had been accumulated during the marriage, but no evidence whatever was submitted in support of the allegation. It was denied by the plaintiff, and the court found that there had been no accumulation as a result of their joint efforts. We cannot say that this finding was wrong. The court found that the plaintiff had debts of $6,000 and that is amply supported by the record. It was admitted that oil production had been secured from plaintiff’s land and plaintiff testified that he was then receiving about $60 or $65 a month royalty from this production, but he stated that the wells were then making about seventy percent water, and this statement was not disputed. The court commented upon this fact as indicating that continuance of this income was very uncertain. Assuming' — • as the court found — that all of her property had been accounted for to her and that there had been no substantial joint accumulation, the allowance of $1,200 was entirely out of the property held by the husband at the time of the marriage. If, however, there was any part of her $1,500 — and there was no evidence that the husband' had used any of it for his own purposes — which is not accounted for by the payment of her debts or by the $1,000 loan to her son-in-law, or otherwise, the $1,200 allowance would not, to that extent, be entirely from the husband’s property. The trial court also took into consideration the fact that two of the plaintiff’s twelve children were minors and one a crippled daughter entirely dependent upon him for support, and that none of defendant’s children was dependent upon her.
"Appellant urges that although the granting of the divorce is not at issue, the record discloses very little fault on the part of the wife and that this fact should be taken into consideration here in connection with the property division. We agree that upon the record before us the faults of the wife do not appear very grievous, but the. trial court, with the parties and the witnesses before it and opportunity to know the whole situation, granted a divorce to the plaintiff and no appeal was taken. We are unable to say on the record before us that the division made did not fulfill the requirements of the statute or that there was abuse of discretion by the trial court.
Motion to dismiss the appeal was filed by appellee, but it was not urged in the oral argument, and our understanding was that it was virtually abandoned. In any event, the conclusion heretofore stated makes it unnecessary to consider the motion.
The judgment is affirmed. | [
-16,
106,
-47,
109,
10,
-32,
10,
-104,
106,
-91,
55,
83,
-31,
-34,
0,
121,
34,
13,
65,
106,
-9,
-77,
19,
16,
-46,
-77,
-71,
-51,
-71,
-51,
-76,
87,
76,
33,
-118,
-43,
102,
-62,
-57,
84,
-58,
4,
11,
101,
-40,
70,
52,
123,
114,
11,
117,
-113,
-93,
46,
53,
-61,
45,
46,
95,
56,
-64,
120,
-118,
4,
95,
14,
-111,
32,
-116,
-59,
-56,
78,
-104,
49,
8,
-88,
115,
-90,
-122,
116,
77,
-71,
9,
32,
102,
19,
69,
-18,
-31,
-104,
15,
-11,
-115,
-90,
18,
88,
2,
65,
-66,
-100,
100,
86,
3,
122,
-17,
13,
29,
96,
12,
-113,
-42,
-95,
5,
40,
-120,
3,
-13,
37,
33,
113,
-53,
-94,
93,
70,
123,
-101,
7,
-68
]
|
The opinion of the court was delivered «by
Wedell, J.:
In this action plaintiff, an insurance carrier, who had executed and delivered a standard workmen’s compensation liability policy to employers for valuable consideration, attempted, by filing an independent action in the district court, to obtain a judgment which would relieve it from paying compensation to an employee who previously had been injured and in whose favor an award previously had been made by the commissioner of workmen’s compensation, upon due hearing, against the employer and the plaintiff insurance carrier. All three parties participated in the hearing before the commissioner of compensation. The instant action by the plaintiff insurance carrier was instituted against the employee, a minor, his father as natural guardian, the employer Hollis Brothers, a copartnership engaged in the business of contracting for and drilling oil wells, and the state commissioner of workmen’s compensation.
The petition undertook to plead three causes of action. In the first, plaintiff sought to have the insurance policy canceled on the ground of the alleged fraud of one of the copartners in procuring the policy. In the second cause of action it sought to have the policy reformed to conform to the facts, on the theory of mutual mistake of fact, in the event it should be decreed plaintiff was not entitled to the relief sought in its first cause of action. ' In the third cause of action plaintiff sought injunctive relief. It asked the defendants be restrained from proceeding further with the review of the compensation appeal then pending in the same district court and further that no collection be attempted on the award until determination of the present action. The insurance policy and the award were attached to and made a part of the petition.
The petition, after identifying the parties to the action, in substance alleged: At about nine o’clock a. m. of October 22, 1937, Ernest Matlock, suffered an accidental injury arising out of and in the course of his employment with Hollis Brothers, the injury being compensable under the compensation act. At that time Hollis Brothers had no compensation insurance coverage with plaintiff or with any other insurance carrier. Thereafter and at approximately two o’clock p. m. of the same day, Otto Hollis, one of the copartners, doing business under the firm name and style of Hollis Brothers, came to plaintiff’s office in the city of Wichita, and sought to obtain a compensation insurance policy. In response to questions asked him by plaintiff’s representative, Otto Hollis, on behalf of Hollis Brothers, represented: “(a) that they had carried compensation insurance for five years and had never had any policy canceled, and (6) that they had had only two minor accidents to their employees, and (c) that there were no actions and no claims pending against them at that time.” Each of the foregoing answers was false and untrue. Certain other compensation insurance policies carried by Hollis Brothers had been canceled within a few days prior to October 22,1937, the date of the accident. Hollis Brothers, in the operation of their business, had suffered losses in the past, due to numerous severe injuries to employees, including at least one death loss. The statements and representations made by Otto Hollis were false and fraudulent. Plaintiff would not have issued the policy had the true facts been made known to it. Based upon the statements of Otto Hollis, plaintiff’s representative took the application for insurance and received from Hollis a check in the approximate sum of $112. The application of Hollis Brothers was forwarded to the home office of the plaintiff, and relying upon the misrepresentations of Hollis, plaintiff issued a policy of compensation insurance which it dated back to 12:01 a. m., October 22, 1937. Subsequent to the issuance of the policy, so antedated, Ernest Matlock filed his compensation claim against Hollis Brothers and against plaintiff as the insurance carrier. On June 13,1939, the employee was awarded compensation in the sum of $1,360.80. An award was also made against plaintiff for $226, medical and surgical bills, and for $46.70 fees. At the hearing before the commissioner of compensation plaintiff offered to introduce evidence to show it was not properly the insurance carrier at the time of the accident and that the policy should not have been binding and in force as of the time of the accident. The introduction of that testimony was made unnecessary by a stipulation of facts thereon. The commissioner of compensation refused to reform the policy, stating in the award as follows:
“While the evidence discloses that the accident occurred before the policy was issued, the examiner is of the opinion that the commissioner of workmen’s compensation cannot reform the policy, but that such a question is an equity question for the courts.”
As heretofore stated the foregoing constitute substantially the facts as pleaded by- the plaintiff.
The instant action was filed in the district court on July 23, 1938. The following demurrer lodged against the petition was sustained:
“The defendant Ernest Matlock, a minor, by Homer V. Gooing, his guardian ad litem, demurs to the plaintiff’s petition herein on the grounds that
“1. The court has no jurisdiction in this suit of the subject of the action;
“2. There is another action pending in this court between the same parties for the same cause;
“3. The petition does not state facts sufficient to constitute a cause of action in favor of the plaintiff and against this defendant.”
The first ground of the demurrer presents the fundamental issue in this lawsuit. Unless the district court, under the circumstances, had jurisdiction over the subject matter of this action, namely, the compensation insurance policy, we need not consider the second ground of the demurrer and indeed cannot reach the third ground in the instant appeal.
We are, therefore, squarely confronted at the outset with the question of the jurisdiction of the district court to entertain this action while plaintiff’s appeal from the award is pending in the district court and before plaintiff’s remedy under the compensation law has been fully exhausted. The answer must'' depend upon the legislative intent and purpose as expressed or fairly implied in the workmen’s compensation law of this state. A few inquiries may be helpful. Was it the intent and purpose of the compensation law to cover every phase of the injured employee’s right to compensation and the intent to cover completely the procedure for obtaining that compensation? Was it intended to invest in one tribunal, subject to the right of appeal, the right to hear and the power to dispose of every phase and branch of a controversy involving a claim for injuries sustained by a workman in the course of compensable employment? We may state the question in another way. Was it intended the procedure outlined in the compensation act should be substantial, complete and exclusive, or was it intended that parties subject to the act, namely, the workman, employer or insurance carrier might institute separate and independent actions in common-law courts in order to have adjudicated various branches or issues of liability before exhausting the remedy provided by the compen sation law? We may also inquire what was the intent and purpose of the insurance carrier in these respects, as disclosed by its contract of insurance which was made for the direct and primary benefit of the workman and which policy must be made in conformity with the insurance compensation law?
Under the provisions of G. S. 1935, 44-548, full jurisdiction and power is conferred upon the workmen’s compensation commission for the supervision of the administration of the compensation act. Under G. S. 1935, 44-532, every employer, subject to the act, is required to secure compensation to his employees by adequate insurance. G. S. 1935, 44-559, provides:
“Every policy of insurance against liability under this act shall be in accordance imth the provisions of this act and shall be in a form approved by the commissioner of insurance. Such policy shall contain an agreement that the insurer accepts all of the provisions of this act, that the same may be enforced by any person entitled to any rights under this act as well as by the employer, that the insurer shall be a party to all agreements or proceedings under this act, and his appearance may be entered therein and jurisdiction over his person may be obtained as in this act provided, and such covenants shall be enforceable notwithstanding any default of the employer.” (Italics ours.)
The instant policy provides:
“One. (a) To pay promptly to any person entitled thereto under the ■workmen’s compensation law and in the manner therein provided, the entire amount of any sum due, and all installments thereof as they become due.
“D. The obligations of paragraph one (a) foregoing are hereby declared to be the direct obligations and promises of the corporation to any injured employee covered hereby, or, in the event of his death, to his dependents; and to each such employee or such dependent the corporation is hereby made directly and primarily liable under said obligations and promises. This contract is made for the benefit of such employees or such dependents and is enforceable against the corporation, by any such employee, or such dependent in his name or on his behalf, at any time and in any manner permitted by law, whether claims or proceedings are brought against the corporation alone or jointly with this employer.” (Italics ours.)
G. S. 1935, 40-1109 (m), provides “jurisdiction of the insured shall be jurisdiction of the insurer and the insurer shall be bound by every agreement, adjustment, award or judgment rendered against the insured.” G. S. 1935, 44-523, contains an express mandate that the commissioner shall not be bound by technical rules of procedure, and G. S. 1935, 44-522, directs the commissioner to hear and determine the matters presented, and to make findings or an award such as he shall determine fair and equitable under the provisions of the act. In view of the foregoing statutory provisions it cannot seriously be doubted that compensation insurance is an integral and indispensable part of our statutory system of compensation. Nor can it be doubted that the various provisions of the compensation law form as definite a part of the insurance policy as though the various statutory provisions were expressly incorporated in the insurance contract. Nor can it be doubted that insurance carriers have been made subject to the jurisdiction of the compensation commission. In Norman v. Consolidated Cement Co., 127 Kan. 643, 274 Pac. 233, this court said:
“In a comprehensive statute the legislature manifestly undertook to cover every phase of the right to compensation and of the procedure for obtaining it. It provided an administrative method in order to avoid the delay resulting from prolonged litigation and the uncertainty and expense attending it. Another feature is that when both parties unite in this plan to adjust compensation it tends to prevent friction and hostility between employers and employees that frequently arise in actions based on negligence of the parties. The substituted remedy being complete with a procedure of its own, it must be regarded as exclusive. It being substitutional and complete and exclusive, we must look to the procedure of > the act for the methods of administration. We are not warranted in borrowing rules and methods- from the civil code not included in the act itself, methods prescribed for ordinary civil actions which the legislature for obvious reasons was seeking to avoid, and for which it provided a substitute.” (p. 649.) (Italics ours.)
This court has repeatedly asserted the well-established principle that the workmen’s compensation act establishes a procedure of its own, and that the procedure furnishes a remedy which is substantial, complete and exclusive in compensation cases. (Echord v. Rush, 122 Kan. 260, 251 Pac. 1112; 124 Kan. 521, 261 Pac. 820; Fougnie v. Wilbert & Schreeb Coal Co., 130 Kan. 410, 286 Pac. 396; Murphy v. Continental Casualty Co., 134 Kan. 455, 7 P. 2d 84; Willis v. Skelly Oil Co., 135 Kan. 543, 11 P. 2d 980; Austin v. Phillips Petroleum Co., 138 Kan. 258, 25 P. 2d 581; Ketchell v. Wilson & Co., 140 Kan. 163, 165, 32 P. 2d 865.)
In the Willis case, supra, it was stated:
“The procedure adopted by the trial court was in accord with the civil procedure, but the legislature has seen fit to disregard the rules and methods of civil procedure and to substitute a system of its own, which is undoubtedly intended to be complete in itself.” (p. 545.)
In Ketchell v. Wilson & Co., 140 Kan. 163, 165, 32 P. 2d 865, it was again emphasized that the entire procedure under the compen sation act from beginning to final judgment was completely covered by the act. In Austin v. Phillips Petroleum Co., 138 Kan. 258, 259, 25 P. 2d 581, it was definitely stressed that the procedure established by the act was distinctly its own and that the remedy established thereby was exclusive. Many other distinct pronouncements to the same effect might be cited, but we do not deem that necessary.
It is also well settled the commission is compelled to hear all evidence in relation to a claim for compensation (G. S. 1935, 44-534), and this court has repeatedly held the commission must hear all evidence bearing on all points and on all branches of the case in order that the district court may exercise its right and duty on appeal and that until this has been done and a ruling made, the case is only partly heard, it remains unfinished, the parties are left in the midst of an unfinished hearing, and the appeal to the district court is ineffectual. (Willis v. Skelly Oil Co., supra, p. 546; Brown v. Shellabarger Mill & Elev. Co., 142 Kan. 476, 486, 50 P. 2d 919.)
Under the compensation law the district court has no authority to remand a case to the commission for further proceedings. (Fougnie v. Wilbert & Schreeb Coal Co., supra, p. 413.) The province of the district court is to review the case upon the transcript from the commission and to grant or refuse compensation or to increase or diminish the award. (Fougnie v. Wilbert & Schreeb Coal Co., supra; Willis v. Skelly Oil Co., supra.) The jurisdiction of the supreme court is restricted to questions of law. (G. S. 1935, 44-556.) The commissioner is not required to be a lawyer and the statute (G. S. 1935, 44-523), appropriately provides the commission shall not be bound by technical rules of procedure. In order to insure reception by the commission or examiner of all evidence germane to every issue involved, this court has definitely held the examiner or commissioner must receive all evidence pertaining to any question in issue even though he may entertain doubt concerning i'ts competency. (Walz v. Missouri Pac. Rld Co., 142 Kan. 164, 166, 45 Pac. 861; Brown v. Shellabarger Mill & Elev. Co., supra; Parker v. Farmers Union Mut. Ins. Co., 146 Kan. 832, 837-840, 73 P. 2d 1032.) In case the examiner excludes testimony considered vital on any issue the aggrieved party is not without recourse, provided he acts timely. In Fougnie v. Wilbert & Schreeb Coal Co., 130 Kan. 410, 286 Pac. 396, it was stated:
“Considering these points together, it is of course both the statutory and moral duty of the commissioner to give the claimant and his adversary a fair opportunity to present their evidence; and the court sees no reason why tendered evidence excluded by the examiner could not be put in the form of affidavits or depositions and made part of the transcript which goes to the district court for its independent decision on the law and the facts.” (p. 413.) (Italics ours.)
In the latter connection see, also, Eagle-Picher M. & S. Co. v. Workmen’s Compensation Comm., 147 Kan. 456, 458, 76 Pac. 808.
In the instant case plaintiff assumes, and we think erroneously, that the compensation commissioner has no power or authority to receive evidence concerning, and to consider the effect of, fraud or mutual mistake in the procurement of a policy, notwithstanding the fact the issues of fraud and mutual mistake expressly have been raised to defeat its liability on the policy. Its contention is based on the theory that fraud or mutual mistake, if established, warrant respectively cancellation or reformation of the policy and that the commissioner possesses no equity jurisdiction. Before we further discuss that particular contention we desire to state that we are not concerned for the moment with the question whether fraud on the part of an employer or mutual mistake in the procurement of a policy, will deprive a workman of his right to recover on the policy where his injury occurs before the policy is canceled. We shall meet that question when we reach it. In this appeal we are concerned first with the question of the jurisdiction of the district court to entertain the present action in any event. If the action cannot now be entertained by the district court, the instant action and appeal are ended. We are, however, presently concerned with the right and duty of the commissioner to receive and consider evidence of fraud or mutual mistake where such evidence pertains to some branch or issue of a compensation claim. On that subject we think plaintiff is wrong. A careful consideration of the question compels us to conclude the lawmakers intended the commissioner should have not only the right, but that it is his duty to receive evidence and rule upon every issue and branch of the case which pertains to a determination of liability and that the beneficent intent and purpose of the lawmakers cannot be thwarted or dissipated by the application of technical rules of procedure applicable only in courts of the common law. Nor are we lacking in some local precedent on the question involved. In Walker v. Kansas Gasoline Co., 130 Kan. 576, 287 Pac. 235, an “agreement modifying an award,” as expressly authorized by G. S. 1935, 44-527, was entered into by the parties and the workman upon payment also executed a “final receipt and release,” as authorized by the same statute. The receipt and release were approved by the commissioner. A'few days later the workman filed an application with the commission to set aside the release and receipt on the ground they were obtained by fraud and mutual mistake. Defendants, the employer and insurance carrier, contended the commission had no jurisdiction to set aside the receipt and release. The contention was denied and it was held:
“The commission empowered to administer the workmen’s compensation act of 1927 has jurisdiction to hear and determine an application to set aside an agreement, release and final receipt, upon grounds of mutual mistake, fraud or misrepresentation, and to award such compensation as is equitable and just.” (Syl.) (Italics ours.)
In the course of the opinion it was said:
“There are other provisions in the act pointing to the purpose that the commission was to determine all questions arising on reviews, awards, agreements and releases theretofore conferred on the district court. It was competent for the legislature to place this power on the commission or other tribunal or officer. In a case where it was contended that an arbitrator did not have the power to consider and determine the validity of a release, it was said:
“‘It is competent for the legislature to confer judicial power upon any tribunal or court inferior to the supreme court, and even if an arbitrator is regarded as an independent court, no reason is seen why he may not be vested with jurisdiction to hear and determine any question pertaining to the right of a workman to compensation which has been expressly referred to him in the order of appointment.’ (Crown v. Packing Co., 111 Kan. 573, 577.)
“There it was determined that an agreement and release given under a mutual mistake of the parties as to the nature and extent of the injury of the workman might be set aside.
“We conclude there was authority in the commission to set aside the agreement and release and to make such an award as it determined was fair and equitable.” (p. 582.) (Italics ours.)
Moreover, the lawmakers clearly intended the commissioner should be empowered to modify or cancel even “any award” or “the modification of an award” agreed upon by the parties “at any time before final payment.” As to such power it made only one reservation, which was that an award or the modification of an award agreed upon by the parties could not be disturbed by the commissioner “after final payment.” (G. S. 1935, 44-528; Farr v. Mid-Continent Lead & Zinc Co., 150 Kan. 292, 92 P. 2d 124, and see opinion in same case [this day reaffirmed] on rehearing, ante, p. 51, 98 P. 2d 437.)
In McGhay v. Eaton, 146 Kan. 686, 73 P. 2d 15, the decision turned upon the question whether the insurance was effective at the exact time of the workmen’s death. The commissioner and district court held it was and ruled against both the employer and insurance carrier. The latter alone appealed and this court affirmed the judgment. It is, however, true that the question of the jurisdiction of the commissioner to determine whether the policy was effective was not raised or specifically determined in that action.
In view of our own statutes and former decisions interpreting them, it really is unnecessary to consider decisions from other jurisdictions. On the other hand, in view of the sincerity of the contentions advanced by the respective parties, the serious and painstaking consideration given the questions involved by the trial court, we shall refer to a few decisions from foreign jurisdictions in which the conclusion accords with our own and in which the reasoning is exceptionally clear and convincing. See Matter of Skoczlois v. Vinocour, 221 N. Y. 276; Royal Indemnity Co. v. Heller, 256 N. Y. 322; Continental Cas. Co. v. Gleasner C. Air S. & E. Co., 267 N. Y. S. 706; General Acc., etc., Corp. v. Indus. Acc. Com., 196 Cal. 179; Employers’ L. A. Corp. v. Indus. Acc. Com., 177 Cal. 771; Bankers Indem. Ins. Co. v. Indus. Acc. Com., 4 Cal. 2d 89.
In the Skoczlois case, supra, the court, after reviewing the New York statutes, concluded:
“It would seem necessarily to follow that if the insurance company may be made a party to the original application to the commission for compensation, all its rights may be there litigated and determined precisely the same as those of the employer. The latter can raise the question, and have it determined as to whether the relation of employer and employee existed at the time the accident occurred, and for the same reason I think the insurance company can raise and have the question determined as to whether there were then a valid outstanding policy issued by it. If such questions be raised, then the determination of them lies with the commission.” (p. 282)
“In order to give full effect to the provisions of the statute referred to it seems to me necessarily to follow that the legislature intended the commission should have power in the first instance to determine whether a policy of insurance covering the liability of the employer were in force when the accident occurred, and if so, the liability of the insurance company under it. (Matter of Kelley, 116 N. E. Rep. 308.) Unless this be the correct view of the statute, the scheme contemplated by it fails, to a large extent at least, of its purpose.” (p. 283.)
In the Continental Cas. Company case, supra, it was held:
■ “Jurisdiction to hear and determine equitable defenses is incidental to general jurisdiction of industrial board to enforce policies under compensation law.” (Headnote HI.)
In the opinion of that case, it was aptly said:
“On this record we think the whole matter was submitted to the board, which had full power to act, and that fact was pleaded in bar in the answer in the instant action. Even if there should be thought to be doubt as to whether the matter was actually submitted by the plaintiff to the board, still that proceeding is open, and the plaintiff is not as yet precluded from tendering the issue with complete formality.” (p. 709.)
In the Royal Indemnity Company case, supra, the pertinent principles involved are so clearly presented and the reasoning so logical, that we take the liberty of quoting from it at some length, as follows:
“Where and how has the jurisdiction to consider equitable defenses been withheld from the board? It is difficult to put one’s finger on any constitutional or statutory provision or judicial decision which thus limits its jurisdiction. The difference, once regarded as basic, between the method of trying legal defenses and equitable defenses, no longer exists. Independent suits are no longer necessary to establish equitable rights. The question was elaborately discussed by Cardozo, J., in Susquehanna S. S. Co. v. Anderson & Co. (239 N. Y. 285), and the conclusion was reached that equitable defenses are triable in the same way as defenses that are legal. The jurisdiction to hear and determine equitable defenses is incidental to the general jurisdiction of the board to enforce policies under the workmen’s compensation law. Without such jurisdiction the old rule is reviewed without reason.
“The defense was tendered by the insurance carrier and the evidence was heard. As a practical proposition, the carrier should be bound by the determination of the industrial board, subject to judicial review, as provided in sections 20, 23 of the law. The award will be examined on the appeal in the appellate division. The decision of the board is based on an erroneous theory, so far as it denies itself jurisdiction and holds itself bound by the letter of the policy, but the evidence will be before the court for review to determine whether the plaintiff herein has made out a case of nonliability under the policy. (Matter of Jaabeck v. Crane’s Sons Co., 238 N. Y. 314, 317, 318.) The attorney general, on behalf of the industrial board, now argues that the judgment before us should be affirmed on the ground that the jurisdiction of the board was exclusive and its award binding.
“If the term of the coverage was mutually agreed on and there was a scrivener’s mistake as to the term of the policy, due to mutual inadvertence, such as the failure to read the policy and note the error after the minds of the parties had met, the equitable defense may be interposed by the insurance company. If no term was mutually agreed on and the insurance company made a unilateral mistake, it should have canceled its policy, as provided in section 54, when it discovered that fact. Otherwise, in the absence of fraud, the contract as written and delivered must be deemed to be the contract of the parties. (Metzger v. Aetna Ins. Co., 227 N. Y. 411; Lewitt & Co., Inc., v. Jewelers’ Safety F. Soc., 249 N. Y. 217, 223.) These are questions within the wide scope of the powers intrusted to the industrial board for its determination.
“Such matters should be disposed of summarily before one tribunal so that prompt adjustment of liability for industrial accidents may be obtained without unnecessary litigation and expense. Here we have an accident which happened more than three years ago with the question of liability still unsettled. Such delays are inconsistent with the purpose of the remedies provided by the compensation law.” (pp. 326, 327, 328.)
While the California act may, in some respects and at first sight, appear to be somewhat broader than our own, it corresponds quite accurately in its intended effect with the obvious intent disclosed by our own statute. In the General Acc., etc., Corp., case, supra, the California court said:
“There can be no doubt but that the commisson is vested by constitutional and legislative power to hear and determine every issue raised by the parties to this controversy, including the validity of the policy and the question of fraud alleged in its procurement and that the parties are not required to invoke either a court of law or equity in the determination of said questions. (Art. XX, sec. 21, Const.; Workmen’s Compensation, Insurance and Safety Act, secs. 1, 55 and 63 (Stats. 1913, pp. 279, 307, 308); Employers’ L. A. Corp. v. Industrial Acc. Com., 177 Cal. 771 [171 Pac. 935].)” (pp. 190, 191.)
It is also well to note that in conformity with the well-established rule in this state that the remedy under the compensation act is substantial, complete and exclusive, this court' has, on various occasions denied the right of an employee to bring an independent action in the district court against the insurance carrier on the policy. (Murphy v. Continental Cas. Co., 134 Kan. 455, 7 P. 2d 84; McGuire v. United States F. & G. Co., 134 Kan. 779, 8 P. 2d 389; Dollar v. General Accident, Fire & Life Corp., 136 Kan. 368, 15 P. 2d 449.) In the Murphy case, we held:
“Our workmen’s compensation statute requires that the insurance policy of the employer contain a provision that the same may be enforced by any person entitled to any rights under the act as well as by the employer. Construing this statute, it is held that proceedings by the workman against the insurance earner for injuries compensable under the act must be before the compensation commissioner and in harmony with the procedure outlined by the compensation act.” (Syl. f 1.) (Italics ours.)
Touching plaintiff’s contention in that case concerning his right to ignore the procedure outlined in the compensation act and to bring an independent action in the district court, it was said:
“Such a holding would destroy the workmen’s compensation act, or at least its administration, for it would leave the workmen’s compensation commissioner nothing which he necessarily had to do. We cannot accept such an interpretation. The cases relied upon by appellant do not require or authorize such a conclusion.” (p. 458.)
In the McGuire case, after reviewing the statutes and former decisions, we again stated:
“We conclude, where the employment and the injury are within the workmen’s compensation act, that the remedy and procedure provided therein are exclusive, and the district court is without jurisdiction to entertain an action at the instance of the employee against the insurance earner until the remedies provided in the act have been exhausted.” (p. 781.) (Italics ours.)
In the Dollar case the court concluded its treatment of this precise question, as follows:
“A petition which does not plead resort to proceedings under the workmen’s compensation act does not state a cause of action.” (p. 372.)
In the instant cáse plaintiff has pleaded only partial resort to proceedings under the compensation act. The petition affirmatively discloses proceedings under the act have not been exhausted and that the appeal from the decision of the commissioner is pending in the district court. The parties stipulated as to the facts touching the alleged fraud or mutual mistake. The commissioner was in error in ruling that he could not pass on each and every branch and issue of the case pertaining to liability. Irrespective, however, of such erroneous view, the commissioner did make an award. The transcript, according to the petition, contain^ the stipulation and the district court has an opportunity to, and it is required to, make its independent decision on the law and facts on the basis of the transcript. (Fougnie v. Wilbert & Schreeb Coal Co., supra, p. 412.) The insurance carrier is, therefore, deprived of no substantial right to assert its defense to liability under the policy in the manner contemplated by the compensation act.
One other subject might be noted. It is the contractual relation • of the insurance carrier. It is well to remember that an insurance carrier is in no sense compelled to subject itself to the rules and procedure of the compensation act. That is, no insurance carrier is required to write compensation insurance. Its act is voluntary. Its relation to the employer and employee are contractual. It agreed in its policy to subject itself to the jurisdiction of the commission and to the provisions of the workmen’s compensation law, so long as the policy remained in force. Its obligations, according to the policy contract, are direct obligations and promises to the employee. The insurance carrier, by its contract, agreed to make itself directly and primarily' liable to such employee. Moreover, and of transcending importance, is the fact that in its own policy it agreed the policy was enforceable against it by the workman “in any manner permitted by law.” In addition to that agreement it expressly agreed the policy was enforceable against it in any manner permitted by law “where claims or proceedings” are brought against the corporation alone or jointly with this employer. (See, Policy paragraph one (a) and D.) It cannot now repudiate its contract. The workman had a right to rely upon the contract and cannot now be compelled to litigate some incidental feature of his claim to compensation in some other tribunal. Moreover, that tribunal, the district court, has no jurisdiction to entertain this action.
In arriving at our conclusion relative to the jurisdiction of the compensation commission we have not been unmindful of the following cases cited by the insurance carrier, in some of which, at least, a contrary view is taken. (Continental Cas. Co. v. Ind. Com., 61 Utah 16, 210 Pac. 127; Empey et al. v. Industrial Commission of Utah et al., 91 Utah 234, 63 P. 2d 630; Burke et al. v. Ind. Com. of Utah et al., 75 Utah 441, 286 Pac. 623; Kelley v. Tomahawk Motor Co., 206 Wis. 568; Federal Surety Co. v. State Industrial Com., 149 Okla. 144; Kelly v. Howard et al., 123 S. W. 2d [Mo.] 584.) Upon careful consideration we have concluded that the views we have expressed herein are in conformity with the manifest intent and purpose of our compensation act. Among the reasons which 'impel our conclusion is the view well expressed in Employers’ L. A. Corp. v. Indus. Acc. Com., supra. The California court there said:
“If the commission may, in any case, make an award against one who has agreed to stand in the employer’s place and protect him against claims by his employees, it must have the power to determine all questions of law and fact upon which the liability of the alleged insurance carrier depends. To hold that the mere denial of the binding force of a policy deprives the commission of jurisdiction would introduce endless and unnecessary complications and .difficulties into the administration of the law.” (p. 775.)
The Utah and Wisconsin cases cited by appellee are reviewed in Bankers Indem. Ins. Co. v. Indus. Acc. Com., supra. We need not repeat that discussion here. The Allied Mutuals L. Ins. Co. v. Interstate C. Co., 235 N. Y. S. 541, is not a decision from the New York court of last resort and appears to be out of harmony with the ■previous decisions herein cited from that state. In the Oklahoma ■case the specific question of the jurisdiction of the commission does :not appear to have been raised or determined. The Missouri case, «ited by appellee, appears to follow the Utah decisions.
We are convinced the judgment of the trial court was sound and should be affirmed. It is so ordered.
Allen, J., dissents. | [
-80,
124,
-76,
-115,
10,
98,
106,
-102,
93,
96,
39,
83,
-39,
-41,
29,
101,
-5,
61,
-47,
107,
86,
-13,
7,
-30,
-45,
-45,
-13,
-60,
-79,
-1,
-26,
-34,
77,
48,
-118,
-107,
-26,
-62,
-59,
20,
-56,
4,
-87,
-20,
-39,
64,
48,
91,
54,
67,
113,
-114,
-5,
32,
28,
-61,
45,
41,
90,
-87,
-16,
-79,
-114,
-123,
117,
18,
-77,
2,
-104,
39,
-48,
14,
-112,
49,
-103,
-20,
90,
-90,
-57,
-76,
105,
-103,
13,
38,
103,
49,
-115,
-89,
120,
-104,
54,
-10,
-113,
-89,
49,
56,
10,
1,
-106,
-99,
112,
16,
7,
94,
-6,
29,
29,
36,
3,
-117,
-74,
-79,
-49,
116,
31,
59,
-17,
-124,
34,
116,
-50,
-80,
92,
69,
127,
31,
23,
-102
]
|
The opinion of the court was delivered by
Allen, J.:
This is a workmen’s compensation case. The commissioner of workmen’s compensation found that the deceased workman did not meet with personal injury by accident arising out of or in the course of his employment. On appeal to the district court, judgment was rendered affirming the findings of the commissioner. The appeal is from that judgment.
The claim filed under the compensation act sets forth that Oscar B. DeVaul was a mechanic in the employ of defendants; that he suffered an accident on January 13, 1938; that the cause of the accident was “injury and infection to lungs caused from inhalation of poisonous gas and asphyxiation by carbon monoxide gas resulting in pneumonia;” that the workman died on February 22, 1938.
The findings and award of the commissioner on March 11, 1939, were as follows:
“It is found, in addition to the admissions of the parties, that Oscar B. DeVaul, deceased workman, did not meet with personal injury by accident arising out of and in the course of his employment on or about January 13, 1938, resulting in his death on February 22, 1938. Therefore, award of compensation should be denied.”
On appeal to the district court, the award of the commissioner was approved.
In Coe v. Koontz, 129 Kan. 581, 582, 283 Pac. 487, it was said:
“The first question presented by appellants for the determination of this court is, Did the injuries which Thomas B. Coe received on October 29, 1928, cause or contribute to his death? Really we are not 'concerned with that question. It is a question of fact which was determined by the trial court. The appeal to this court allowed in compensation cases is on questions of law only. (Laws 1929, ch. 206.) If it were contended by appellants that there was no substantial evidence to sustain the findings and judgment of the trial court on that question perhaps we could examine the evidence enough to see whether that contention was well taken; but appellants do not make that contention. They state that the evidence on that point was in conflict and argue that the findings of the trial court were against the weight of the evidence. We are not concerned here with the weight of the evidence. We have looked into the evidence enough to see that there is an abundance of substantial evidence to support the findings of the trial court.” (p. 582.)
We have examined the record and find there was substantial evidence to support the findings and judgment of the trial court. The elaborate brief of the appellant is largely devoted to a discussion of the evidence in the case. Under our statute G. S. 1935, 44-556, the jurisdiction of this court on appeal is restricted to questions of law. There being substantial competent evidence to support the judgment of the trial court, we have no power to declare such judgment is against the weight of the evidence. (Corpora v. Kansas City Public Service Co., 129 Kan. 690, 284 Pac. 818; Employers’ Liability Assurance Corp. v. Matlock, 151 Kan. 293, 98 P. 2d 456.)
As the determination of this point compels affirmance of the judgment, it is unnecessary to discuss other questions raised.
The judgment is affirmed. | [
-12,
106,
-43,
-116,
26,
-32,
42,
90,
101,
-27,
39,
115,
-19,
-33,
80,
53,
-14,
13,
-48,
43,
-42,
-77,
19,
-37,
-46,
-105,
123,
-59,
-79,
79,
-76,
125,
79,
32,
-54,
-43,
-26,
104,
-59,
86,
-50,
-124,
-85,
-23,
25,
80,
48,
47,
-2,
91,
21,
-98,
-22,
42,
28,
-57,
45,
46,
122,
-94,
-48,
-15,
-126,
13,
-17,
20,
35,
38,
-100,
47,
-40,
29,
-112,
49,
2,
-4,
50,
-90,
-122,
-68,
97,
-119,
12,
98,
103,
52,
29,
-23,
-72,
-104,
7,
-90,
15,
-91,
62,
80,
90,
37,
-108,
-103,
123,
118,
46,
120,
-10,
93,
79,
108,
7,
-113,
-74,
-79,
-17,
36,
-98,
-85,
-53,
-115,
50,
113,
-36,
-30,
93,
69,
91,
-101,
-105,
-108
]
|
The opinion of the court was delivered by
Harvey, J.:
Paul F. Criger was charged with murder in the first degree of his wife at their home in Morrill, Kan., on the morning of March 13, 1939. He was tried and found guilty of murder in the second degree and sentenced to imprisonment for fifteen years. He has appealed and contends that the verdict is not sustained by the evidence; that the trial court erred in several important rulings on the admission of evidence; in overruling his motion to be discharged upon the admissions and statements of counsel for the state made in his opening statement; in overruling his motion to be discharged, made at the conclusion of the state’s evidence; and in overruling his motion for a new trial.
We shall consider first whether the evidence was sufficient to sustain the verdict. The facts, not controverted, or which the jury and trial court were entitled to believe, may be summarized as follows : At the time of the tragedy defendant was twenty-two years of age. He had lived at Morrill about seven years. Prior to that time he had lived at Maryville, Pickering and Trenton, Mo. On December 22, 1937, he was married to Ida May Lufler, about his own age, who had been reared in the vicinity of Morrill. For the first ten months of their married life the couple made their home with defendant’s mother, Mrs. Green, who lived in Morrill. Then they bought a small house situated in the same block with the home of his mother, on which he had made a down payment and was making periodical payments. The block in which these residences are situated is near the edge of the town, and while there is quite a little space between the houses, there is no other building in the space. Defendant was a WPA worker. The house purchased by defendant, and in which he and his wife were living at the time of the tragedy, had two rooms on the first floor and a bedroom upstairs. Its outside dimensions were 14 by 24 feet, and on the interior it was divided into two rooms, the west front room being a little larger than the east room, used as a kitchen and dining room. The front room was carpeted; it faas furnished with a davenport near the north side of the room, a table near the south side, a stove near the east side, and chairs. Near the south side of the partition between the two rooms a door from the front room opened into the stairway, two and one-half feet wide. Directly north of this stairway was the door, two and one-half feet wide, between the front room and the kitchen; otherwise there was no opening in the partition. In the kitchen east of the stairway was a pantry, the width of the stairway, two and one-half feet north and south and about five or six feet long, extending to the east wall of the room. There was a door on the south into the pantry, hung on the east wall of the room, which opened to the north. In this pantry was a .22 rifle and a sawed-off 12-gauge shotgun. This is spoken of as being eighteen inches long. There were also pans and various articles usually kept in such a pantry. The furniture of the kitchen consisted of a dining table, placed against the east wall, with a chair to the north and another to the south of it, a refrigerator near the center of the room but against the north wall, a chair directly west of it, a washstand near the northwest corner of the room, an oil cookstove near the west wall, the south end of which was about six inches from the north edge of the door between the two rooms, a kitchen cabinet on the south side of the room against the wall which formed the partition between the kitchen and the stairway and pantry, and a chair directly west of the cabinet. This was a white enameled kitchen cabinet about 42 inches long and 26 inches wide, to the height of 32 inches, where it divided into two parts, consisting of a table, about 15 inches wide, the length of the cabinet, and the cabinet part, about 11 inches wide, extending 35 inches higher.
Shortly after five o’clock the morning of the tragedy defendant went to the door of his mother’s residence, pounded vigorously, and called to her and told her that Ida May had been accidentally shot, and asked her to come at once. She hurriedly threw on a robe and she and defendant started to his home. At sometime he made a remark to the effect that if she died he would kill himself. They spoke of the need to get a doctor. Mrs. Green went on to defendant’s house and there found his wife lying on her back on the floor in the front room, her head near the front door, which was open. She was dead. Mrs. Green took a blanket off the davenport and covered her feet and legs and her body up to her waist, and ran to the nearby home of Alfred Miller for help, and Mr. and Mrs. Miller went to defendant’s home. She or Mr. Miller also" called the night watchman, George Hollens, and perhaps others, and Mrs. Green went back to defendant’s house. In the meantime defendant had jumped into his car and driven a few blocks to the home of Doctor Stapp, knocked on his door and called to him and said his wife was shot, and asked the doctor to come. The doctor went to the door and told him he would go in his own car as soon as he was dressed. He did so and arrived at the house about 5:35 o’clock. He found defendant’s wife lying on the floor on her back, with her head near the front door. She was dead. The doctor could not tell positively how long she had been dead; the body still was warm. He had her placed on the davenport, examined her and found the cause of death was a gunshot wound about the center of the abdomen, about two inches below the umbilicus. The size of the wound was about an inch and a quarter in diameter; the edges of the wound were ragged. 'The doctor called the coroner, who together with the sheriff and ■county attorney went to defendant’s home, reaching there about ■seven o’clock in the morning.
When Doctor Stapp got there that morning defendant’s mother, Mrs-. Green, Mr. Hollens, Mr. Miller and his wife, were in the front loom. Other persons were in the kitchen. Defendant was there, perhaps a part of the time outdoors. At Mrs. Green’s request Mr. Hollens took charge of the shotgun, which he found lying on the kitchen floor five or six inches northeast of the northeast corner of the kitchen cabinet. There was a hot coffeepot over a burner of the oil stove. Someone — perhaps Mrs. Green — turned the burner ■out. There was a bowl heaped full of potatoes, peeled, and ready to be cooked, sitting on the table of the kitchen cabinet. Various witnesses estimated this to be of the height of five to seven inches.
After the coroner arrived the undertaker was called and the body of defendant’s wife was taken to the mortuary and prepared for burial. An examination of the wound was made at the mortuary. No powder burns were observed about it. An autopsy disclosed that a charge from a shotgun had entered the body at the wound previously described; that there had been no scattering of the shot before they entered the body, but they appeared to scatter after entering the body. None of the shot had passed through the body. Six to nine of the shot, size No. 4, were found in the body. No effort was made to find all of them. From the location of those found it would appear that the force of the charge was inclined upward as it entered the body. The only other mark on her body was a bruise on the back of her left hand near the thumb. This appeared to have been made, not by a knife or sharp instrument, but by a blow, as with a board or stick.
When the county attorney, sheriff and coroner reached defendant’s home shortly after seven o’clock the morning of the tragedy the coroner took charge of the body of the deceased and had it taken to the mortuary. The sheriff and county attorney took the names of several persons who were present and talked with them briefly and made some examination of the premises. George Hollens was there and gave the sawed-off shotgun to the sheriff. The county attorney had a brief talk with the defendant. Later they went to the mortuary and returned to defendant’s home in Morrill about 1:30 o’clock that day. At that time the county attorney’s stenographer was with them. The coroner took her there because he was planning to hold an inquest the next day. At that time they had a talk with the defendant, at which the county attorney asked him a number of questions, which he answered, and which questions and answers were taken by the stenographer. Answering questions as to what took place that morning and the day and evening before, defendant said they were starting to get breakfast that morning, his wife had put the coffeepot on, they heard some geese going over the house and his wife said, “There is some geese and we just as well have one,” and he went to the kitchen and grabbed up the shotgun; that he reached in the pantry, which he spoke of as the closet; that the gun was in the northeast corner; that as he reached in there for it and picked it up, it went off while it was in his hand; that at the time his wife was standing in the door between the front room and kitchen, right by the gas stove; that the gun went off just as he picked it up; that he saw his wife was falling and ran and grabbed her and dragged her to the front door, which he opened, and ran to call his mother, and then jumped in the car and went for the doctor; that on the day before he had gone to Sabetha with Art Roush, driving his car; he had had a couple of drinks in the afternoon, but outside of that he had no other drink; that he got back home from Sabetha about nine or ten o’clock and was home the rest of the night; that he and his wife went to bed about 10:00 or 10:30 o’clock. On being asked about trouble between him and his wife he said they got along better the last three months than they ever had; that they had got to know each other; that they never had any family arguments or quarrels, although sometimes they would get “mad”; that they had had no trouble the night before and went to bed friendly. Ordinarily he did not have the gun loaded when it was put away in the closet; he didn’t know how it happened to be at that time. He estimated that he was six feet from his wife when the gun went off.
On the next day, November 14, an inquest was held. The coroner’s jury made a return that defendant’s wife came to her death by felonious intent from a gunshot wound at the hands of the defendant. Thereafter the county attorney had a warrant for his arrest issued, which was served on the 15th.
After defendant’s arrest, and on March 16, the county attorney had him brought to his office and in the presence of the sheriff and one or two other persons questioned him further about his movements the afternoon and night previous to the tragedy, and of what took place that morning. His stenographer took this interview in the form of questions and answers. At this time defendant said that he and Art Roush did not go directly to- Morrill from Sabetha, but that they went to St. Joseph, Mo., where they got some more whisky, ate their supper and put in some time, and drove back to Morrill through White Cloud; that he did not know what time he reached home, but somewhere from 10:00 o’clock in the evening to 2:00 o’clock in the morning; that his wife had not gone to bed, but was up waiting for him; that she greeted him affectionately, they visited a few minutes, then went to bed upstairs, and got up about five o’clock in the morning.
At the trial it developed from the testimony of Art Roush and others that in his talk with the officers defendant was far short of making a complete disclosure of his activities the afternoon and night prior to the tragedy. His escapade seems to have been financed by Roush; he had $14 when they left Morrill about noon and $1.50 when they finally reached home. They went from Morrill to Sabetha, where they “fooled” around and drank whisky for two or three hours and then drove to St. Joseph, Mo., about sixty miles from Sabetha, reaching there about sundown. It was Sunday and the saloons were closed, but they hunted up a man on the street from whom they bought whisky. They ate their supper and then went down to the redlight district, where they spent the time with “the girls” until about 1:30 o’clock in the morning, when they started home. They drove off the road at a detour and got on the north river road and drove into White Cloud. There defendant saw a night watchman, told him they were lost and that they wanted to get to Morrill, and asked him what road to take and offered him a drink of whisky or gin. The night watchman declined the offer, but directed them to their road, and they drove out of town. The night watchman was careful to note the time of this incident and it was 2:25 o’clock in the morning. They were then forty miles or more from Morrill. They drove to Morrill through Falls City, Neb., which was several miles farther out of the way. Roush, a single man, was rooming at the home of Mrs. Cleland, two miles south of Morrill. She heard him come in and knew it was late in the morning. By her clock it was twenty-five minutes to four o’clock, but she testified her clock did not keep good time. “It wouldn’t vary over an hour anyway.” Defendant went from the Cleland place to his home in Morrill. Mr. Hollens, the night watchman at Morrill, who was on the street or about town all night, saw a car drive in from the south and toward defendant’s home at 4:25 o’clock in the morning, hence the jury and trial court would be justified jin believing that defendant had been at home not more than an hour when the tragedy occurred. Also, it seems reasonably clear that defendant’s wife was up waiting for him when he came; that she had not retired to her bed upstairs, but probably had been sleeping on the davenport a part of the time, and that neither of them went to bed upstairs that night. Defendant’s wife was anxious about him in the afternoon and evening before. About 2.30 o’clock in the afternoon, and again about 9:00 o’clock in the evening, she inquired of defendant’s mother if she knew where he was, and who he was with, and appeared to be anxious about him. She also had inquired of one or two other persons whom she thought might know.
It is clear the sawed-off shotgun, previously mentioned, is the gun from which the shot -yvas fired which caused the death of Mrs. Criger. Defendant admitted that in his early talk'with the officers, and it never has been questioned. While examining the premises soon after the tragedy the officers had found two shotgun shells in a drawer of the kitchen cabinet. These were loaded with No. 4 shot and a heavy charge of powder. Before the trial, and at one time while the trial was in progress, persons who had had considerable experience in the use of firearms made experiments by firing the gun at targets of blotting paper, using shells with the same load as those found in defendant’s home. The purpose of the tests was to see over how large an area the shot would scatter when the gun was fired at varying distances from one to nine feet from the target. These tests tended to demonstrate that when the gun was nine feet from the target the pattern or spread of the shot was about five inches in diameter; when fired at six feet it was three and one-half inches; at three feet it was two and one-half inches, and when the gun was only one foot from the target the pattern was one and one-half inches. This tended to demonstrate that when the shot was fired which caused the death of defendant’s wife the muzzle of the gun was approximately one foot from her body. We think there is ample evidence to sustain the verdict.
The jury would have been justified in discounting defendant’s story that he got the gun out of the pantry for the purpose of shooting geese. The night watchman-, who was still on duty at that time, heard no geese flying over that morning, but he did hear some one or two mornings previous to that. Under defendant’s testimony the gun was good for shooting at game as close as twenty-five or thirty feet. The idea that he could get anything like that close to wild geese flying over is fantastic. No testimony of his, or on his behalf, disclosed that previous to that time he ever had hunted geese with this gun, or any other.
The evidence discloses defendant was quite a drinking man. On one occasion he had been sentenced to jail for sixty days for being drunk and disorderly. On another occasion, about two years before the tragedy, he had pleaded guilty at Falls City, Neb., to a charge of automobile theft and had been paroled for two years. There was testimony that on the fourth of July preceding the tragedy he and his wife went with another couple to Falls City, Neb., to see the fireworks. When they were ready to come home he was drinking and quarrelsome, and did not want to come. They finally got him in the back seat with his wife, and the driver drove rapidly so he could not jump out. He quarreled with his wife, struck her, both with his open hand and with his fist, as many as half a dozen times. She had a black eye for several days as a result. He finally broke a glass in the window of the car, climbed out on the running board, raised the hood of the car, and cut off the gas so the car would stop.
Appellant correctly argues that evidence of bad character alone is not sufficient to convict of murder. He also correctly argues that doubt as to defendant’s credibility is not alone sufficient to convict of murder, and that the improbability of the shooting occurring accidentally in the precise manner suggested by defendant is not sufficient. It is contended that the evidence is fatally defective for the lack of evidence tending to- show that the shooting was intentional and could not have occurred accidentally. We think the evidence ample to meet this test.
The same point is argued by appellant in support of his contention that the court erred in denying his motion to discharge the defendant on the opening statement of the county attorney, and the same argument is made in support of appellant’s contention that the court erred in denying his motion to discharge at the close of the state’s evidence. We think both the opening statement and the evidence on the part of the state contained facts from which the jury might justly conclude that the shooting was intentional rather than accidental.
We turn now to the questions argued on behalf of appellant respecting the admission of evidence. It is argued that the testimony of witnesses respecting their conversations with defendant had with him after his arrest was incompetent by reason of the fact that defendant was not specifically .told of his constitutional right and was not at the time represented by counsel. Apparently this refers to the transaction of March 16. The trial court ruled that the test as to the admissibility of the evidence was whether the statements were voluntarily made by the defendant. There is no contention they were not so made. We think the ruling correct. In State v. Inman, 70 Kan. 894, 79 Pac. 162, in a per curiam opinion, it was said:
“The contention that the admission in evidence of statements made out of court by a party on trial are incompetent, on the theory that they tend to make him a witness against himself, is without substance. Voluntary statements of an accused person have always been received in evidence against him. Section 10 of the bill of rights is not violated by the admission of such testimony.” (p. 894.)
See, also, 16 C. J. 626, 628; 30 C. J. 299; State v. Sorter, 52 Kan. 531, 539, 34 Pac. 1036; State v. Castigno, 71 Kan. 851, 80 Pac. 630; State v. Jackett, 85 Kan. 427, 116 Pac. 509; State v. Dilgar, 111 Kan. 794, 208 Pac. 620; State v. Messmer, 123 Kan. 201, 254 Pac. 378; State v. Harding, 142 Kan. 347, 46 P. 2d 617.
It next is argued that the testimony of various witnesses for the state as to the movements of defendant in the afternoon and night of March 12 and the morning of March 13, not directly connected with the shooting of deceased, was error. We think this testimony is competent. (See, State v. King, 111 Kan. 140, 144, 206 Pac. 883; State v. Netherton, 133 Kan. 685, 3 P. 2d 495, and State v. O’Neal, 150 Kan. 76, 91 P. 2d 12.)
Next it is argued that the testimony of various witnesses concerning remote altercations between defendant and his wife, not connected directly with the shooting of deceased, and where the trouble between them was not shown to have continued to that time, or had any direct relation thereto, was incompetent and erroneous. The testimony respecting the transaction on July 4 preceding the tragedy was offered in rebuttal and after defendant had testified that he and his wife had never had any serious trouble. There was no error of the court in the admission of this evidence.
It is argued that the testimony of various witnesses as to the' results of experiments conducted by them in shooting the sawed-off shotgun at various distances, not made under the supervision of the court or in the presence of defendant, and not shown -to have been made under conditions substantially similar to those under which the gun was fired at the time of the tragedy, was incompetent and erroneously received. Experiments of this character frequently are made in homicide cases, and uniformly received in evidence. The purpose of the experiments in this case was to determine the spread or pattern of the shot when the gun was fired at various distances from the target. There is no reason to think that the spread or pattern of the shot would be different when the gun was fired at the time of the tragedy than when the experiments were being made. We think there was no error in the admission of this testimony. In this connection it also was argued that it was error for the court to admit in evidence the targets used in these experiments, which showed the spread or pattern of the shot when the gun was fired at various distances from the target. If the testimony respecting these experiments was competent there was no reason to exclude the targets.
Defendant had stated before the trial of the case to various witnesses just how he picked up the shotgun out of the pantry, how he turned where he was standing when the gun went off, and where his wife was then standing. Several witnesses who testified for the state had gone to the home of the defendant and had experimented by going through the movements as defendant had described what he did. The defense in this case was that the gun was accidentally discharged as defendant took it out of the pantry, and one of the theories advanced was that as defendant took the gun out of the pantry, having stooped over to do so, as he straightened up and turned to the right that the hammer of the gun struck against the higher portion of the kitchen cabinet in such a way as to cause the gun to be discharged. Briefly stated, the testimony of those who conducted the experiments was that if the hammer of the gun had struck the kitchen cabinet the barrel of the gun would have been in such a position that necessarily the shot would have gone to the north of the place where defendant’s wife wás said to have been standing in the door and would have missed her entirely; or, in any event, would have had to be higher than the bowl of potatoes sitting on the table part of the kitchen cabinet, and that this was several inches higher than the wound on the body of the deceased, and in which event the shot would have ranged downward instead of upward ; that had defendant stepped back to the north as he took the gun out of the pantry and before he turned to the right, so that the kitchen cabinet would not have been in the range between him and the door where he said his wife was standing, then the hammer could not have caught on the cabinet. We think this evidence was competent to be received under the rule respecting the admission of evidence of experiments. Its weight or probative value was, of course, for the jury.
We take note of the fact that no objection was made to the instructions of the court. They are not even included in the abstract. We must assume, therefore, that the trial court correctly instructed the jury as to their duty in weighing and considering the various classes or types of evidence permitted to be received.
Appellant contends the court erred in overruling his motion for a new trial. In addition to the matters hereinbefore discussed, presented to the court at that time, defendant called the sheriff as a witness, who testified that when inspecting the premises soon after the tragedy he observed a certain mark on the east end of the higher portion of the kitchen cabinet; that he had examined this with a magnifying glass, which enabled him to see it better than he could with his naked eye; that this mark was about ten and three-fourths inches above the table of the cabinet, about an inch in width at the top, extending diagonally downward to the corner of the cabinet, where there was a small piece chipped off the cabinet; that the mark looked as if it had been made with something rough, which had scratched down that corner of the cabinet. This particular mark had been testified to by several witnesses in the trial of the case in chief. This witness had testified to the examinations he made, although he had not testified to having examined this mark with a magnifying glass. In fact, the witnesses testified to two or three marks or scratches on that end of the cabinet. Under directions of the court the jury had examined the premises, and very likely they had examined the marks on the cabinet testified to by the witnesses. The trial court was of the opinion that there was nothing particularly new in this evidence, that there was no reason to believe that it would produce a different result, and that it was not sufficient to justify the granting of a new trial. We agree with the trial court in these views.
We find no material error in the record. The judgment of the court below is affirmed. | [
-15,
-22,
-11,
-1,
8,
98,
42,
-40,
115,
-78,
-93,
115,
-23,
-37,
5,
105,
26,
61,
84,
105,
-44,
-105,
23,
107,
-106,
-77,
-71,
-43,
-77,
88,
-12,
-35,
77,
32,
74,
85,
-90,
74,
69,
84,
-114,
-124,
-23,
-16,
88,
18,
52,
105,
116,
14,
53,
-114,
-13,
42,
28,
-61,
9,
44,
74,
61,
64,
-80,
-118,
-113,
-49,
18,
-93,
38,
-98,
5,
120,
60,
-104,
53,
0,
-20,
115,
-74,
-122,
116,
103,
41,
12,
98,
98,
0,
29,
-21,
-24,
-103,
15,
127,
-115,
-89,
24,
88,
81,
101,
-65,
-99,
125,
112,
30,
114,
-25,
69,
125,
100,
11,
-113,
-76,
-79,
13,
120,
-110,
-118,
-21,
-91,
96,
112,
-51,
-30,
93,
7,
90,
-103,
-114,
-79
]
|
The opinion of the court was delivered by
Wedell, J.:
This' was a workmen’s compensation case. The claimant, a dependent minor, prevailed, and the City Gas Service Company, respondent and self-insurer, has appealed.
The father of the dependent was an employee of appellant in the capacity of a ditch digger along a highway. The accidental death occurred on May 14, 1931, an unusually hot day for that season of the year. Other workmen also complained of the heat. While working in the ditch, and while very sweaty and hot, the workman paused to get a drink of cold water from a water can, or cooler, during the afternoon. There was testimony that immediately after taking the drink he exclaimed, “Oh, my belly,” and fell over dead. He left surviving Elvira Williams, his widow, and four minor dependents of the following respective ages: nineteen, eighteen, sixteen and seven years.
In the course of the hearing before the compensation commissioner, 'the claims of all dependents except that of Ahlene Williams, the youngest dependent, were withdrawn. To be exact, the age of Ahlene at the date of her father’s death was seven years, eight months and six days. No guardian for Ahlene was appointed until November 15, 1938. Her mother was then appointed. The only claim or demand for compensation was that made by her guardian on January 9, 1939. At the hearing before the commissioner, various matters were settled by stipulation. The-issues now to be determined are these: first, did the workman meet with personal injury by accident arising out of and in the course of his employment, resulting in his death on May 14, 1931; second, was the claim for compensation made in time and, third, is the minor dependent entitled to recover the funeral expenses of her father?
Did the workman meet his death by accident arising out of and in the course of his employment? The trial court answered that question by an affirmative finding. It will serve no useful purpose to narrate the lengthy testimony of lay and expert witnesses on that subject. On appeal this court is concerned only with testimony which supports or tends to support the finding of the trial court, and not with contrary testimony. (Smith v. Cudahy Packing Co., 145 Kan. 36, 40, 64 P. 2d 582.) The evidence was ample from which it reasonably could be concluded the workman’s death was ■caused by heart failure and that heart failure probably resulted from the condition of his heart, which condition was aggravated, accelerated or intensified by the work he was performing and the ■cold water he drank. That evidence was sufficient. It was not necessary the workman should have been in perfect health. Our ■compensation law prescribes no standard of health for workmen. Injuries are compensable where the accident only serves to aggravate or accelerate an existing disease (Hardwell v. St. Louis S. & R. Co., 146 Kan. 870, 875, 73 P. 2d 1120), or intensifies the affliction or ■contributes to death (Hill v. Etchen Motor Co., 143 Kan. 655, 659, 56 P. 2d 103). Cause of death may be established by circumstantial •evidence, and the strict rule concerning circumstantial evidence as applied to other cases does not prevail in compensation cases. It is not necessary the circumstantial evidence should rise to such a degree of certainty as to exclude every reasonable conclusion other than that found by the trial court. (Supica v. Armour & Co., 131 Kan. 756, 293 Pac. 483; Hardwell v. St. Louis S. & R. Co., supra.) The finding of the trial court cannot be disturbed.
Was the instant claim for compensation made in time? Appellant insists it was not. The answer requires, first, a consideration of the pertinent provisions of our own compensation act which were in effect at the time of the particular accident. G. S. 1935, 44-520a, provides:
“No proceedings for compensation shall be maintainable hereunder unless a written claim for compensation shall be served upon the employer by delivering such written claim to him or to his duly authorized agent, or by delivering such written claim to him by registered mail within ninety (90) days after the accident, or in cases where compensation payments have been suspended within ninety (90) days after the date of the last payment of compensation; or within six (6) months after the death of the injured employee if death result from the injury within three (3) years after the date of the accident: Provided, That where the claimant or claimants have been under a disability such as described in section 9 (44-509) of this act, then' the limitations herein expressed shall not begin to run until the removal of such disability.” (Italics ours.)
G. S. 1935, 44-509, provides:
“(a) In case an injured workman is mentally incompetent, or when death results from an injury in case any of his dependents, as herein defined, is mentally incompetent at the time when any right, privilege, or election accrues to him under this act, his guardian may, on his behalf, claim and exercise such right, privilege, or election, and no limitation of time, in this act provided for, shall run, so long as such incompetent has no guardian.” (Italics ours.)
It should be noted no privilege is granted to “minors,” as such, to delay the filing of a claim until a guardian is appointed. Such privilege did exist under Laws 1911, ch. 218, § 10. In the general revision of the compensation act of 1927 the lawmakers removed the word minor from the statute. (Laws 1927, ch. 232, § 9.) In 1939 they again included a minor in the statute. (Laws 1939, ch. 213, § 1.) In view of this legislative history we are compelled to conclude the legislature did not intend by the 1927 act, here involved, to toll the running of the limitation on the ground of minority. That act tolls the running of the limitation only as to persons mentally incompetent. On three occasions this court has interpreted the 1927 act and has held the limitation is tolled as to minors, but only during the period of their mental incompetency. (Baxter v. Chicago, R. I. & P. Rly. Co., 139 Kan. 443, 32 P. 2d 451.; Suttle v. Marble Produce Co., 140 Kan. 13, 34 P. 2d 116; Brenn v. City of St. John, 149 Kan. 416, 87 P. 2d 546.)
One of appellee’s contentions is G. S. 1935, 44-509, should be con- • strued as tolling the running of the limitation until a guardian is appointed. The contention is not in harmony with the above decisions. Nor do we now think the lawmakers intended the statute should be so construed. That statute must be read and construed in conjunction with G. S. 1935, 44-520a. The latter statute specifically refers to the disability described in G. S'. 1935, 44-509. The disability described in that statute is mental incompetency. G. S. 1935, 44-520a, further expressly provides, “the limitations herein expressed shall not begin to run until the removal of such disability.” We think the lawmakers, in referring to disability of a workman or dependent, referred to the disability of mental incompetency, and not to the absence of a guardian. If appellee’s contention is sound, an injured workman who became temporarily mentally incompetent at the time of and by reason of injury might be completely restored to mental competency within a few hours, a few days, or within some other brief period, and the limitation would never run so long as a guardian had not been appointed. Also, under the same contention, the limitation would be tolled until a guardian was appointed for an adult dependent who was mentally incompetent at the time of the workman’s death and whose mental competency had become completely and permanently restored within a short period after the accident. We do not think the language employed permits the construction that the legislature intended the limitation should be thus indefinitely tolled.
In the Baxter case, supra, the dependent infant was only twenty months old when the father died as the result of an injury. Claim for compensation was made by guardian about twenty days after the father’s death. The time for making a claim was therefore not involved in that case. The issues were, whether the claim was sufficient in character, and whether an infant was included within the term “mentally incompetent.” The opinion clearly recognized that mental incompetency on the part of infants of a very tender age did not mean insanity, but that mental competency of an infant was a matter of development. The court said:
“A baby of such tender years, as all know, has not developed into competency and need not be insane to come within the excepted class.” (p. 449.) (Italics ours.)
In the Suttle case, supra, claim was made on behalf of the widow of a deceased workman and for a minor son, fifteen years of age, by the widow as his next friend. The claim was made about two years after the accident. At the time of the accident, the minor was thirteen, and at the time of the hearing he was fifteen years of age. The commissioner found the minor was by law incompetent. The district court, with the evidence before it, reversed that finding and disallowed the claim. The judgment of the district court was affirmed by this court. Appellant contended mentally incompetent persons included minors, and that minors were therefore exempt from making claim as a condition precedent to recovery. This court denied the contention, and held:
“R. S. 1933 Supp. 44-509, being an amendment in 1927 of a former statute by the omission of minors therefrom and exempting only mentally incompetent from the prerequisite requirements of the compensation law, cannot be construed as still including minors as mentally incompetent unless they are infants of such tender age as to be unquestionably so regarded as a matter of law, or, if older, are shown by competent evidence to be mentally incompetent as a matter of fact.” (Syl. fl 3.)
In the course of that opinion, after quoting from various decisions of this and other courts, this court said:
“And without committing ourselves as to the exact extent of infancy where mental incompetency as a matter of law exists, as was held to be five years in the text above quoted, we conclude that beyond a period of unquestionable infancy, as in the Baxter case, supra, and perhaps older than there existed as a matter of law, mental incompetency should be established as á matter of fact as to older minors before they are entitled to the exemption of the compensation statute requiring written claim for compensation to be served within certain prescribed times.” (p. 19.) [Italics ours.]
In the Brenn case, supra, (1939) the claim for compensation was made by the widow of a deceased husband as guardian for and on behalf of five minor children. At the death of the workman, the children were of the following respective ages: seventeen, fifteen, fourteen, twelve and five years. The workman had been electrocuted on March 18, 1937. The guardian was appointed November 19, 1937, eight months and one day after the workman’s death. A few days thereafter, the guardian filed a claim, but only on behalf of her wards. The district court disallowed compensation to all minor dependents except the five-year-old child. This court affirmed the entire judgment. After again reviewing the authorities we stated:
“At the hearing before the commissioner there seems to have been no evidence as to the mental competency of any of the minors, but the commissioner in effect found that the minors, being under the age of eighteen, having-no knowledge of their legal right, and because of their tender years, were mentally incompetent under the statute. If that were the intention of the legislature, much more appropriate language would have been used in the statute, and this is especially true when the provisions of the former workmen’s compensation act are considered. (See R. S. 1923, 44-509.) In the absence of any showing to the contrary, we think the district court properly held the four children twelve or more years old were not mentally incompetent under the statute. Insofar as the child of five years is concerned, we are of opinion the district court also ruled correctly.” (p. 421.) [Italics ours.]
In the instant case the youngest daughter, Ahlene, in whose behalf the present claim is asserted, was born September 8, 1923. She was therefore seven years, eight months and six days of age at the date of her father’s death on May 14, 1931. No guardian was appointed until November 15, 1938, or during a period of seven and one-half years. On January 9, 1939, the date on which claim for compensation was made by the guardian, Ahlene’s age, to be exact, was fifteen years, four months and one day. The commissioner found the daughter had not been mentally incompetent for more than six months prior to the appointment of a guardian and prior to making claim for compensation. The district court found claimant was mentally incompetent until the date of filing the claim.
In workmen’s compensation cases, jurisdiction of this court is limited to questions of law. (G. S. 1935, 44-556.) Whether a finding is supported by evidence presents a question of law, as distinguished from a question of fact. (Fair v. Golden Rule Refining Co., 134 Kan. 623, 7 P. 2d 70; Gallagher v. Menges & Mange Const. Co., 146 Kan. 506, 72 P. 2d 79; Gardner v. Ark Warehouse Co.; 148 Kan. 190, 193, 80 P. 2d 1066.) At the time of the hearing before the commissioner, Ahlene was a sophomore in high school. A careful review of the record fails to disclose evidence of any kind or character that claimant was mentally incompetent to make a claim for compensation after she reached the age of fourteen. In view of our previous decisions, the absence of such testimony was fatal to her recovery. It is therefore unnecessary to consider objections of appellant to certain testimony touching the subject of claimant’s inability to make a claim prior to the time she became fourteen years of age.
The district court’ wrote a memorandum opinion in which it stressed various statutes, outside the compensation act, touching acts which a minor may not do or perform solely on his own initiative or without a guardian. Appellee has here stressed the same statutes and perhaps some additional ones of a similar character. The district court was, and appellee is, of the opinion those statutes should be considered in determining the mental incompetency of a minor. We have endeavored to make it clear the compensation law here involved does not embrace minors, as such. A consideration of statutory provisions respecting minors generally, if properly considered at all, would not permit us to dispense with testimony touching the mental incompetency of the particular claimant in a compensation case. If the effect of such other statutes pertaining to minors could be substituted for evidence of mental incompetency in a compensation case, then the legislative intent, disclosed by entirely eliminating from the compensation statute the word “minor,” would be rendered nugatory. It is not our province to determine what the law should or should not be. It is our 'duty to declare the legislative intent. In doing so, we are not permitted to ignore provisions of the compensation act which disclose or tend to reflect the legislative will. (Lehman v. Grace Oil Co., ante, pp. 145, 155, 98 P. 2d 430.) If it had been the intent that all minors were to be considered as mentally incompetent to make claims for compensation during their minority, the legislature would have used much more appropriate language in the statute to express such intent. (Brenn v. City of St. John, supra.) Moreover, the workmen’s compensation law is a comprehensive act and covers every phase of a workman’s right to compensation and the procedure for obtaining it. The remedy under that act is complete, with a procedure distinctly its own, and that procedure was intended to be and is substantial, complete and exclusive. (Employers’ Liability Assurance Corp. v. Matlock, ante, p. 293, 98 P. 2d 456.)
In view of the complete absence of facts touching mental incompetency of claimant after reaching the age of fourteen, it appears the trial court did not only consider statutory provisions, outside the compensation act pertaining to minors, but based its decision on such other provisions. We think the decision, so reached, fails to conform to the legislative intent and it is not in harmony with our own previous decisions.
Since the claim for compensation was not made in time; there could, of course, be no recovery for funeral expenses of the workman, even by a person otherwise entitled to recover them. Furthermore, this minor had not paid the funeral expenses, nor was she legally obligated to pay them, and is not entitled to recover for such expenses. (Brenn v. City of St. John, supra.)
Appellee reminds us of a provision in G. S. 1935, 44-513, which was not considered in the Brenn case. That statute provides the method or manner in which an employer may deposit compensation when the apportionment thereof is not agreed to among the dependents. The portion of the statute to which reference is made reads:
“Where there are no dependents, medical and funeral expenses may be paid and distributed in like manner.”
It is true that statute was not considered in the Brenn case, for the reason it was not there involved. Nor is it involved in the instant case. There were five dependents here. We assume appellee refers to the provision on the theory funeral expenses would be paid, even though there was no dependent to receive them. That issue is not before us. The question here is, whether this claimant can recover for those expenses. The provision obviously does not mean recovery for medical or funeral expenses may be had where not claimed in time or by one not entitled to recover them.
We have not overlooked decisions from other jurisdictions cited by appellee. Decisions based upon statutes which expressly include minors are not in point, and our own decisions in interpreting the 1927 law, which does not embrace minors, are controlling.
The judgment is reversed with directions to enter judgment for the defendant. | [
-12,
104,
-44,
-99,
10,
-32,
10,
26,
87,
-91,
-27,
83,
-53,
-63,
92,
109,
-37,
29,
81,
43,
-45,
-89,
23,
91,
-46,
-77,
113,
-124,
-80,
89,
54,
-33,
77,
48,
10,
-35,
-26,
74,
-59,
-46,
-52,
0,
-21,
-19,
89,
18,
48,
122,
-10,
79,
-107,
-98,
-13,
42,
24,
-49,
41,
46,
95,
-86,
80,
112,
-118,
5,
-33,
16,
51,
4,
-98,
-81,
88,
26,
-104,
-79,
40,
-20,
114,
-92,
-122,
-76,
43,
-119,
12,
-30,
99,
33,
5,
-17,
-20,
-104,
30,
-66,
-99,
-89,
-66,
56,
11,
9,
-105,
25,
122,
84,
-90,
120,
-2,
85,
77,
108,
3,
-114,
-74,
-16,
-115,
-24,
-68,
-101,
-29,
-125,
34,
117,
-33,
-94,
92,
69,
115,
-103,
-121,
-102
]
|
The opinion of the court was delivered by
Dawson, C. J.:
This was an action for damages for personal injuries sustained by plaintiff at the hands of one H. L. Thoele, the share-cropping tenant of a small tract of land owned by the defendant, Anna Murphy.
It appears' that in the crop season of 1937 the defendant Thoele occupied a forty-acre farm of Miss Murphy’s in Wyandotte county, on fourteen acres of which he had grown a crop of watermelons. On the evening of August 11, 1937, the plaintiff, Mrs. Leota Koch, of Kansas City, borrowed a small truck and drove it into the country, accompanied by her four children. She came to defendant Thoele’s watermelon field, stopped the truck, and'walked out into the field “for the purpose,” as she testified, “of selecting a melon or melons.” While so engaged, the defendant shot her with a twelve-gauge shotgun from a distance of seventy-five feet or more. She received painful injuries. Some of the shot entered her knee and injured it permanently.
This lawsuit for damages followed. Plaintiff sued both landlord and tenant for the wrongdoing.
The contract between Miss Murphy and her tenant was the not unusual one where the owner furnishes the land and the seed and pays a portion of the expenses, and receives an agreed share of the crop or of its proceeds when marketed. To extend liability to Miss Murphy, there was evidence tending to show that she was accustomed to go to the farm almost every day while the melons were ripening and being marketed. At that season of the year watermelon growers are frequently annoyed by thieves. Thoele testified: “I told Miss Murphy, and she said, 'We will have to guard the patch.’ ” There was testimony that on various occasions she was seen in company with Thoele when he was carrying a shotgun. After plaintiff was shot and she was trying to quiet her crying children, defendant Thoele approached and said, “I was put here to guard these melons, and that is what I am going to do.”
At the close of plaintiff’s evidence a motion for a directed verdict in behalf of Miss Murphy was overruled, and the cause was sub■mitted to the jury. A verdict of $400 was returned against both defendants, and judgment was rendered accordingly.
Defendants appeal.
Touching so much of it as relates to the judgment against Thoele, there can be no debate that his shooting the plaintiff was an actionable civil wrong and a grievous crime also. No matter how exasperating to a watermelon grower petty thieves of his melons may be, he must not take the law into his own hands and pepper them with rabbit shot. This- defendant is to be congratulated that his inexcusable violence was not followed with the tragic consequences recorded in State v. Merriweather, 136 Kan. 337, 15 P. 2d 425, where one guarding a crop of watermelons used his Winchester shotgun “to scare” some boys who were raiding his melon patch with the result that two of them were killed, the third wounded, and the gunman went to the penitentiary for the homicide.
Defendant Thoele apparently had a curious notion of the extent and limitations of his rights in guarding his melons — that to shoot the plaintiff was quite a proper thing to do, but that his right did not extend to arresting her for trespassing in his watermelon field, or for stealing his melons, if that was what she was about, which she denied. Thoele’s cross-examination, in part,, reads:
“Q. Did you have any intention of arresting the trespasser there? A. I had no authority to arrest them.”
The right of a private person to make an arrest on view of the commission of a misdemeanor is not involved in this appeal, but on that subject see People v. Reisner, 295 N. Y. S. 813; Henderson v. United States Fidelity & Guaranty Co., (Tex.) 298 S. W. 404, 408; Id. 10 S. W. 2d 534; 1 Bishop on Criminal Procedure (3d ed.) 91, § 169; 1 Bishop on Criminal Law, § 843 et seq.; 6 C. J. S. 605-608; 2 R. C. L. 451.
Coming now to that phase of the appeal which is concerned with the judgment against Miss Murphy, counsel for appellee would sustain it on some theory of partnership existing between Miss Murphy and her tenant or alternatively on a theory that their relationship was that of principal and agent. Ordinarily neither the one theory nor the other can be said to define the relationship of landlord and tenant in respect to the use and occupancy of farming land although the landlord is to be compensated therefor by a share of the crop or of its proceeds. (Mull v. Boyle, 102 Kan. 579, 171 Pac. 652; Wyandt v. Merrill, 107 Kan. 661, 193 Pac. 336; Cooper v. Cyr, 141 Kan. 236, 40 P. 2d 375.)
See, also, Larkin v. Taylor, 5 Kan. 433; Holderman v. Smith, 3 Kan. App. 423, 43 Pac. 272; Foltz v. Feld, 126 Kan. 534, 536, 537, 268 Pac. 854.
Counsel for appellee cite Schmoker v. Miller, 89 Kan. 594, 132 Pac. 158; Bank v. Schuetz, 103 Kan. 229, 173 Pac. 278; State Bank v. Girardy, 117 Kan. 585, 232 Pac. 1076. In the Miller and Schuetz cases, the relationship of landlord and tenant was concededly that of partners and not in issue. In the Girardy case, in addition to the ordinary relationship of a crop-sharing tenant and his landlord there was an additional contract relating to the buying and feeding of cattle where the parties were to “share the profits and losses,” which is the familiar test of the existence of a partnership. This court holds that no liability can be fastened on the landlord, Anna Murphy, for the wrongdoing of her tenant on the suggested theory of a partnership.
Quite as clearly, we think, is it untenable to fasten liability on Miss Murphy on the claimed ground that she was the principal in the matter of growing, guarding, and marketing the crop of watermelons, and that Thoele was her agent. Of course, she manifested the not unusual interest of a landlord in the concerns of her tenant. That did not make her the principal or the tenant her agent. She did not encourage and she did not sanction the act of her tenant in shooting the plaintiff; and on no discernible or suggested ground can the judgment against her be upheld.
It follows that the cause must be remanded to the district court with instructions to set aside so much of it as subjects Anna Murphy to liability, but in other respects the judgment should stand. It is so ordered. | [
-16,
108,
-87,
13,
12,
-22,
40,
-6,
83,
-94,
-76,
83,
-23,
77,
20,
105,
106,
109,
80,
105,
-10,
-78,
23,
-62,
-110,
-5,
-104,
-43,
-69,
73,
124,
-41,
79,
112,
10,
-43,
-26,
-96,
1,
92,
-34,
28,
-117,
-16,
91,
82,
48,
59,
18,
70,
116,
30,
-13,
42,
17,
-53,
40,
44,
-21,
-67,
33,
-8,
-86,
77,
-1,
23,
-126,
38,
-98,
-89,
-40,
14,
-48,
49,
1,
-88,
123,
-78,
-106,
116,
77,
-119,
12,
34,
98,
18,
12,
-49,
104,
-120,
47,
-1,
-115,
-89,
12,
72,
2,
4,
-66,
-99,
124,
84,
38,
-16,
-3,
13,
77,
-88,
7,
-117,
-108,
-79,
-117,
56,
-104,
-117,
-21,
39,
48,
101,
-51,
-94,
93,
65,
118,
-109,
-121,
-43
]
|
The opinion of the court was delivered by
Hoch, J.:
This case originated as an action to construe a will, and particularly provisions creating a charitable trust. ■ It is here on five separate appeals, none of which, however, presents a question of construction. The principal substantive questions which the appeals seek to raise relate to the power of a district court, (a) to assume jurisdiction of a testamentary trust while administration of the decedent’s estate is still pending in the probate court; (6) to assume jurisdiction of the appointment and confirmation of the trustees of such a trust; (c) to refuse to confirm as a trustee one conditionally designated as such by the testator; (d) to remove a trustee designated by the testator and previously confirmed by the court; (e) having assumed jurisdiction of the testamentary trust, to take over also from the probate court all other administration of the estate consisting of matters incident to approval of the final report and account, and to the discharge of the executor. Also presented is a motion to dismiss all appeals on the principal grounds that appellants are without capacity to appeal or had consented to orders complained of or that the questions they seek to raise have become moot.
Jacob Achenbach, for many years a resident of Hardtner, Barber county, Kansas, died testate November 29, 1937, at the age of ninety-one years. He left an estate valued at approximately $750,-000. On December 6, 1937, his will, executed on July 29, 1937, was filed for probate in the probate court of Barber county. The principal beneficiaries named were his two sons, August and Adolph Achenbach, and various relatives. A trust was created for the benefit of designated residuary devisees or legatees, and the will also provided for creation of a fund of $100,000 for the erection of “a public hospital building in the city of Hardtner, Kansas,” or in an adjoining section, of to be expended for “some similar charitable purpose.” Louis A. Baker, for many years a business associate of the testator, was named as executor in the will. Trustees were provided to administer the residuary estate and to carry out the provisions of the charitable trust.
The language of the will, designating trustees, reads as follows:
“I give, bequeath, and devise unto August Achenbach, Louis A. Baker, and Leonard Achenbach, and their successors in trust, to have and to hold the same in trust, upon the terms and conditions, for the uses and purposes and with the powers and duties following,” etc.
On October 26,1937, a codicil was executed increasing the charitable trust to $125,000, and making the following provision as to trustees:
“Knowing that the interests of August Achenbach and Leonard Achenbach as beneficiaries of the trust in paragraph twenty-third and paragraph twenty-sixth of my said will would in some instances conflict with their interest as trustees of said trust, I hereby appoint and constitute Gus Hadwiger and Robert L. Hadwiger or either or both of them as trustees in lieu of August Achenbach and Leonard Achenbach.”
After the executor had qualified and assumed his duties, various proceedings were had in the probate court, which need not be narrated. They included the filing of inventories, appraisals and accounts; approval of certain agreements of the parties and of the sale of personal properties, etc. The probate proceedings had thus been pending something over eight months when the instant action was commenced.
On August 16, 1938, Grace Achenbach, wife of Adolph Achenbach, a son of the testator, brought an action in the district court of Barber county for a construction of the will — particularly a construction of the purpose and intent of that portion relating to the charitable trust. The petition recited that the action was brought by her as “a resident, citizen, and taxpayer in the city of Hardtner,” and in behalf of herself and all other residents, citizens and tax payers of Hardtner for the use and benefit of the city of Hardtner. Named as defendants were Gus Hadwiger and Robert L. Hadwiger, Oklahoma attorneys who, it is alleged, had drafted the will and who were named therein in connection with the trust, Baker, the executor and trustee designate, August and Adolph Achenbach, and other beneficiaries named in the will. Separate answers, replies and cross petitions were.filed.
On December 15, 1938, the executor filed his report and accounts for final settlement in the-probate court. Statutory notice of the hearing thereon was given, but on January 10, the date set for the hearing, the matter was indefinitely continued pending determination of the amount of estate and inheritance taxes to be paid.
On February 13, 1939, August Achenbach and the Hadwigers filed in the district court a motion to strike certain portions from the petition to construe the will, which motion was sustained in part and overruled in part.
On April 24, 1939, the attorney general of Kansas intervened in the- action in the district court after consent by the court to do so. His intervening petition was based on the allegation of a public interest growing out of a controversy relating to the “public charitable trust” created by the will. The prayer of his petition was as follows:
"Wherefore, your intervening petitioner prays the court for an order, judgment, and decree, construing and interpreting said paragraphs (relating to the charitable trust) according to their true purpose, intent, and meaning, as hereinbefore set forth; that this court take jurisdiction of said trust, require that the same be carried out according to the true construction and interpretation of said will creating said trust; approve the appointment of trustees as provided therefor in said will, or appoint others, in the event those named are disqualified, unable to serve, resign, or for any reason are unable to carry out said trust, or perform the duties therein required, and for costs, and all other equitable relief.”
On April 25, 1939, August Achenbach, the Hadwigers and the executor filed a reply to the intervening petition admitting that the attorney general was a proper and necessary party in the action as to the public charitable trust created by the will, but alleging that the terms of the will and codicil were plain, clear and concise, that there was no necessity for a judicial construction of the will, that they had not requested the filing of a petition for construction of the will, but had simply informed the attorney general of the pendency of the action and had “left it to the sound discretion of the attorney general of the state of Kansas of what action, if any, he should take for the protection of the public interest in said charitable bequest.” The reply also alleged that all of the property of the decedent’s estate, including the entire trust fund, was under the exclusive jurisdiction of the probate court, that the estate was being regularly and properly administered in such court, and that under such circumstances the district court had no jurisdiction over the estate, of which the trust fund was a part. They asked that the intervening petition of the attorney general be dismissed.
On May 19, 1939, the attorney general filed another petition asking the district court to assume jurisdiction of the entire trust and of the appointment of the trustees who were to manage and control both the charitable trust fund and the residuary estate, and asking further that an order be issued directing the probate court not to deliver the assets of the estate to anyone until such trustees had been named by the district court. Such an order to the probate court was forthwith issued, and the attorney general’s petition for appointment of trustees set for hearing on June 2, 1939.
On May 19, 1939, a hearing was held in the district court on issues presented by the various pleadings in the main action, all parties being represented. Attorneys for the respective parties made statements concerning the issues, and certain evidence, bearing largely on the question of the hospital, was received. The abstract before us reveals little, if any, disagreement as to the purpose to build a hospital at Hardtner. Before conclusion of the hearing the court announced that it felt that the will had “one or more uncertainties” and that it had jurisdiction to construe it. The court further announced that it would take jurisdiction of the testamentary trust.
On June 2, 1939, the hearing on the application to appoint trustees was held and many witnesses were heard as to the fitness of Robert Hadwiger to serve as a trustee. The extensive testimony, which was conflicting, need not be reviewed.
At the close of the hearing the court announced that it would take jurisdiction of the trust estate, and made a finding that Baker and Gus Hadwiger would be approved as trustees, but that “it would be to the best interest of the trust estate that approval of Robert L. Hadwiger, as trustee, be denied.” August Aehenbach subsequently announced acceptance of the orders of the district court theretofore made, and of his appointment as trustee. Thereafter various parties in interest, and the attorney general, filed petitions for construction of the will, and on June 8, 1939, the court, after a hearing, announced its construction of the provisions of the will relative to the charitable trust — that it was the intent of the testator that a public charitable hospital be built in or near Hardtner. Construction of several other parts of the will was also’ announced. On the same day, June 8, 1939, the court allowed claims for fees by attorneys representing various beneficiaries under the will, the executor, the Hadwigers, and the special assistant to the attorney general. These fees were to be paid out of the residuary estate, but not to diminish the funds for the hospital. Some fees were for services in connection with the action to construe the will, and others for services in the probate court proceedings. They did not include fees to the attorney whom the court had just appointed for the trustees. The fees allowed to the executor and his two attorneys in the probate court aggregated $45,000, and to the seven other firms or individual attorneys, $53,755.55. It was announced that these allowances were made “by agreement of all parties in interest” and the court further observed: “So it is not of any concern to the public generally . . . well, that being the case, the only interested parties are the beneficiaries who have all agreed to it. Then it is no business of the court when they have all agreed upon their fees, they will be allowed as agreed upon.” Reference will be made later to appellant’s contention concerning this matter.
On July 10, 1939, on its own motion, the district court took over the administration of all proceedings then pending in the probate court, and directed the executor to complete all administration of the estate in the district court.
On September 7, 1939, the executor filed his final report in the district court and asked for his discharge. The court tentatively approved the report and account and gave interested parties fifteen days within which to file written objections. The Hadwigers filed objections to the jurisdiction, which were overruled. No other objections were filed, and on September 28,1939, the executor’s reports and accounts were approved and the executor discharged.
On October 7, 1939, Robert Hadwiger filed a motion to correct certain journal entries, his principal contentions being that the journals erroneously stated that the assumption of jurisdiction of the trust estate and the allowance of attorney’s fees were by agreement and consent of all parties; that he had at all times objected to the district court taking over the trust estate from the probate court and that he “at no time agreed to the payments of the vast sums to litigant’s attorneys.” However, when Hadwiger’s motion to correct the various journal entries came on for hearing on October 23, 1939, he withdrew all of his motion except that part referring to the taking over of the trust estate. This was tantamount to admission that the journals correctly stated that all parties had consented to the allowances for attorney’s fees.
On October 23, 1939, August Aehenbach, one of the trustees, filed a motion to discharge Gus Hadwiger as trustee on the ground that he was being continuously domináted by his son, Robert Hadwiger, and was refusing to cooperate with the other two trustees. After a hearing on October 28,1939, Gus Hadwiger was removed.
Later'hefein, in connection with the instant appeal by the probate judge of Barber county, reference will be made to certain proceedings in the probate court, beginning on October 5, 1939, after the district court had taken jurisdiction on July 10 of all administration of the estate, and had approved the final report and discharged the executor on September 28. Suffice it to say, that the probate court ignored the final settlement and the discharge of the executor in the district court and sought to proceed with closing of the estate in contravention of the orders directed to it by the district court.
Various motions and maneuvers have been omitted from this recital as being immaterial here.
The lengthy record, involved and somewhat confused, has been painstakingly examined and every contention made by the parties given careful consideration. We shall comment, however, only on the matters deemed pertinent for clarification and determination of the issues presented by the appeals.
We are confronted at the outset with a motion to dismiss the appeals. The substantive questions which the parties seek to raise will be treated to the extent necessary in disposing of the motion.
The five appeals presented may be briefly listed as follows:
1. An appeal filed July 3, 1939, by Robert L. Hadwiger, individually and as trustee, from the judgment of May 19, 1939, in which the district court took jurisdiction of the trust estate; from the orders of May 19 and May 22, directing the probate court and the executor to turn over no assets to the trustees or anyone until further order of the district court; from the disapproval on June 3 of Robert L. Hadwiger as trustee; from the order of June 8, 1939, appointing an attorney for the trust' estate; from the allowance of certain attorney fees; and from certain other orders and judgments not necessary to recite.
2. An appeal filed August 23, 1939, by Robert L. Hadwiger and Gus Hadwiger, as individuals and as trustees, appealing from the order of July 10, 1939, taking over all administration of the estate from the probate court.
3. An appeal filed October 28, 1939, by Gus Hadwiger and Robert L. Hadwiger from-the orders of September 8 and September 28 approving the final report and. discharging the executor, and “from any orders attempting to administer the estate in the district court.”
4. An appeal filed November 4, 1939, by Gus Hadwiger, and by Adolph Ac.henbach as a legatee and heir, from the orders oKOctober 28 ousting Gus Hadwiger as a trustee and overruling objections to the proceedings relating thereto.
5. An appeal filed November 4,1939, by John C. Hilkey, probate judge, and by Robert L. Hadwiger, from the order of October 28, 1939, prohibiting the probate court from proceeding with the administration of the estate and restraining’ Robert L. Hadwiger from proceeding in the probate court in matters relating to the estate.
We shall consider the appeals in the order named.
1. Robert L. Hadwiger was the junior member of the firm of Hadwiger & Hadwiger, whom the district court refused to confirm as trustee. This appeal attacks principally the action of the district court in assuming jurisdiction of the trust estate and excluding the probate court from such jurisdiction; its action in assuming jurisdiction to appoint trustees; its allowance of certain attorney’s fees and its refusal to appoint him as a trustee.
Counsel for both appellants and appellee devote considerable attention to the question of jurisdiction to supervise the instant trust. The trust is to continue during the life of the testator’s two sons, but in any event for fifteen years after the testator’s death. The estate consists of both real and personal property. While probate courts in some states are not clothed with such jurisdiction, they do have in this state certain jurisdiction to supervise testamentary trusts, under the provision of our constitution (art. 3, § 8) and various statutes as interpreted by'decisions of this court. This matter is discussed at some length in Citizens B. & L. Assn. v. Knox, 146 Kan. 734, 74 P. 2d 161. Such jurisdiction of 'the probate court, however, is not exclusive. The broad and general jurisdiction, both in law and equity, of the district courts in this state is too well established to require discussion. This is notably true as to trust estates, the administration of which calls for the exercise of equity powers. Perhaps the leading case in point is Knox v. Knox, 87 Kan. 381, 124 P. 409. The exercise of such jurisdiction by our district courts is in line with the general equity powers commonly held by courts of general jurisdiction. (65 C. J. 1011; 26 R. C. L. 1283.) The appellant argues, however, that even though the district court has such jurisdiction it is only a concurrent one and that it cannot, in any event, lawfully take the administration of the trust estate away from the probate court except for cause which, it is alleged, is not shown by the instant record. The familiar rule of law is invoked that where two or more courts have concurrent jurisdiction, the one which first secures jurisdiction will ordinarily retain it to the exclusion of the others. The instant case, however, does not require consideration of these general principles. After a careful examination of the record we agree with appellee’s contention that all the parties consented to assumption of jurisdiction of the trust estate by the district court. It is not necessary to narrate the evidence showing such consent by the Hadwigers. The expressions of consent by Gus Hadwiger, senior member of the firm, and by the attorney representing the Hadwigers at the hearing on the petition of the attorney general, are particularly in point. Under such circumstances the district court had authority to assume jurisdiction of the trust estate.
Having lawfully taken jurisdiction of the trust estate, the district court had power to take any incidental and necessary steps in connection therewith. Such jurisdiction included the power — in maintenance of its jurisdiction — to direct the probate court and the executor to turn over no assets of the estate to trustees or to anyone until further order of the court, and of necessity included the right of confirmation of trustees.
In the matter of attorney’s fees, this appeal of Robert Hadwiger is of interest as much for what it omits as for what it includes. It denies the jurisdiction of the district court in allowing fees to other attorneys, but is silent about the fees allowed to appellant, to his father and partner, and to the executor, in the same order. The •fees allowed to the Hadwigers in the order complained of amounted to $18,000, which was in addition to $7,000 previoqsly allowed by the probate court. The fees allowed to the other attorneys were for services in the district court action, while the allowance to the Hadwigers was for services in the probate court proceedings, which had not yet been taken over by the district court. It was not until a month later that the district court assumed full jurisdiction of the probate proceedings. If the district court was without jurisdiction to allow the other attorney’s fees, as appellant contends, it certainly had none to allow the Hadwiger fees for services in the probate court. Moreover, appellant and his father, Gus Hadwiger, accepted the fees allowed them and cannot now complain of the order under which they received them.
The district court based its allowance of fees upon the announced consent to the allowances by the beneficiaries, parties to the action. Although appellant now contends that consent of all parties was not given, the record supports the finding of the court that such consent had been given. None of the beneficiaries from whose share in the estate the fees were to be paid objected to the allowances or is here complaining. Eor reasons which evidently seemed sufficient to them they agreed to the allowances. Any beneficiary, entitled to appeal from the order, might have brought here for review the question of whether there had been abuse of discretion by the trial court. It is the duty of a court in determining fees to be allowed, to. give due regard to their reasonableness under all the facts of the situation, including the interests directly affected and the nature and extent of the services rendered. This is a duty owed to counsel, to those who pay the fees, and to the maintenance of public esteem and confidence in the courts. Obviously consent of the interested parties is exceedingly persuasive; but such consent is only one factor, albeit a most important one, and does not encompass the full responsibility of a court in such a matter.
There remains among the important questions in this first appeal, the question of Robert Hadwiger’s right to prosecute it. The briefs give considerable attention to the question of the right of a court to disregard a testator’s designation of trustees. Appellant supports with citation of very considerable authority the contention that the court must follow the clearly expressed wishes of the testator. Some of these authorities so hold even though facts clearly indicating unfitness are presented to the court, provided it appears that the testator had full knowledge of these facts when he made the designation in his will. Many other authorities are to the contrary. We pass the question for the moment. A hearing was held by the district court, over objection, on the question of the fitness of Robert L. Hadwiger, and the record discloses much conflicting testimony. Assuming that the court had power to pass upon his fitness, we could not say in the face of the conflicting testimony, not necessary here to recite, that there was not ample evidence to support the finding of the court that Robert L. Hadwiger was not a fit person to serve as a trustee. The specific provisions of the codicil, however, under which he claims the right of appointment, make it unnecessary to determine the questions just stated. Those provisions were as follows:
“Fourth: Knowing that the interests of August Achenbach and Leonard Achenbach as beneficiaries of the trust in paragraph twenty-third and paragraph twenty-sixth of my said will would in some instances conflict with their interest as trustees of said trust, I hereby appoint and constitute Gus Hadwiger and Robert L. Hadwiger or either or both of them as trustees in lieu of August Achenbach and Leonard Achenbach
The testator did not definitely designate both Gus Hadwiger and Robert L. Hadwiger to serve as trustees. He only provided for the appointment of “either or both of them as trustees in lieu of August Achenbach and Leonard Achenback.” Nor was there any definite requirement that there be three trustees. The court did confirm the appointment of Gus Hadwiger, and such appointment complied with the terms of the codicil.- It is true that for reasons made to appear later and which will be hereinafter considered, Gus Hadwiger was removed as trustee, but such removal was entirely independent- of the refusal to confirm Robert L. Hadwiger.
The judgment of the court refusing to approve Robert L. Hadwiger as trustee will be affirmed, and as he retains no other interest in the estate, his appeal as to other matters will be dismissed.
2. This appeal is by Robert Hadwiger' and Gus Hadwiger. As to the former, it will be dismissed for reasons heretofore stated.
The appeal is from the order of July 10, 1939, in which the district court, upon its own motion, took from the probate court jurisdiction of the executor and all administration of the estate. If brought by one entitled to do so, this appeal -would present a very serious question. Persuasive citations of authority are presented in support of the proposition that while district courts have a jurisdiction concurrent with that of probate courts in some matters', their jurisdiction does'not extend to the distribution of the estates of a decedent, except upon appeal. (Keith v. Guthrie, 59 Kan. 200; Staker v. Gillen, 143 Kan. 212, 53 P. 821, and cases therein cited.) Having assumed jurisdiction of the testamentary trust, the district court undoubtedly had power to take any necessary and reasonable action to protect its jurisdiction and to bring about the effective and expeditious administration of the trust. Appellee argues that in doing so it had power to take over the probate proceedings for the purpose of preventing unnecessary and vexatious delaj^s by an unfriendly probate court. The contention is not without support. However, the conclusion we have reached as to Gus Hadwiger’s right to prosecute this appeal makes it unnecessary to determine the question here.
The appeal' of Gus Hadwiger can only be maintained if the order removing him as trustee was invalid. Power to supervise and direct the administration of a trust must necessarily include effectual control of the trustees, in order to carry out the directions of the trustor and protect the interests of beneficiaries. Incidental to the court’s paramount duty to see that trusts are properly executed is its power to remove trustees for cause. (65 C. J. 615; Restatement, Trusts, § 107; May v. May, 167 U. S. 310.) This power, commonly accorded to courts of equity, is fortified by the provisions of our own statutes. (G. S. 1935, 67-412.) _
The record discloses that a hearing was held upon a motion filed on October 23, 1939, by August Achenbach, one of the trustees, and various beneficiaries of the trust, asking removal of Gus Hadwiger as trustee. It was alleged that Gus Hadwiger, appointed by the court as trustee on June 3,1939, had failed and refused to cooperate with the other trustees; that he had refused to recognize the validity of the appointment of August Achenbach as trustee; that he was being dominated by his son, Robert Hadwiger, and that by his actions he was preventing the proper administration of the trust estate. At the opening of the hearing counsel for Gus Hadwiger interposed objection to the proceedings on the ground that the court was without jurisdiction in the matter. The objection being overruled, the hearing proceeded. Numerous witnesses, including Gus Hadwiger, were heard. Having carefully perused the testimony, we cannot say that the court abused its discretion in ordering removal. We find ample evidence to support the court’s finding that Gus Hadwiger had failed to cooperate with his co-trustees; that he had failed to abide by orders of the court; and that it would not be for the best interest of the beneficiaries for him to remain as trustee. The order of removal will therefore be affirmed.
Having no right to appeal as trustee and having no beneficial interest in the estate, Gus Hadwiger is not entitled to prosecute this appeal as to the other matters, and as to such matters the appeal will be dismissed.
3. This appeal is also by Gus Hadwiger and Robert L. Hadwiger, and for reasons heretofore stated, will likewise be dismissed.
4. This appeal by Gus Hadwiger and by Adolph Aehenbach must also be dismissed as to Gus Hadwiger for reasons heretofore stated. Adolph Aehenbach appeals as a legatee and heir, and the appeal is from the order of October 28, 1939, ousting Gus Hadwiger as a trustee, and from orders “overruling the objections to the said proceedings for the reason that the court did- not have jurisdiction.” The first ground has already been disposed of. The second is that the district court did not have jurisdiction of the proceedings. But on that issue the appeal by Adolph Aehenbach comes too late. The order assuming jurisdiction of the trust estate was entered on June 8, 1939, and the order taking over jurisdiction of the probate proceedings was entered on July 10, 1939. This appeal was not filed until November 4, 1939.
5. This appeal was filed November 4, 1939, by John C. Hilkey, probate judge of Barber county, and by Robert L. Hadwiger. For reasons which need not be restated, it will be dismissed as to Robert L. Hadwiger. The appeal is from the order of October 28, 1939, prohibiting the probate court from proceeding with the administration of the estate and restraining Robert L. Hadwiger from proceeding in the probate court in matters relative to the estate. We may state briefly the situation out of which the order of October 28,1939, arose. The executor filed his final report in the probate court in December, 1938, together with his application for discharge. The matter was regularly set for hearing in January, 1939, and the statutory notice given. On the date set, the matter was indefinitely continued pending final determination of the amount of the estate and the inheritance taxes. While the final settlement was thus being held in abeyance in the probate court, the district court on July 10,1939, made a finding that “it is to the best interest of said estate and the due administration thereof that the administration of said estate and all proceedings therein should be transferred to this court, and that the court should assume the full and complete administration of the estate of Jacob Aehenbach, deceased, and that the administration thereof should be taken over by this court,” and an order was issued transferring such administration from the probate court and directing that a certified copy of the order be delivered forthwith to the probate court. Very little remained to be done in the probate proceedings. The estate and inheritance taxes had then been paid.
Although contention is now made that much remained to be done in the probate court, the record is to the contrary. Indeed, Robert Hadwiger’s own petition, filed in the probate court October 5, 1939, specifically alleged that nothing remained to be done but the final settlement and the discharge of the executor. On September 7,1939, the executor filed in the district court his final report and application for discharge. Certain proceedings not necessary here to narrate, were had, and on September 28, 1939, after hearing regularly held, the final report was duly approved and order entered discharging the executor and releasing his bondsmen upon the filing of proper receipts showing assignment and transfer to the trustees of the property theretofore enumerated in the order. -The order’ contained the usual recitals as to notice, etc. From this order the executor and the Hadwigers filed an appeal, but no appeal was taken by any beneficiaries of the estate. About a week later, on October 5, 1939, Robert L. Hadwiger filed the petition heretofore referred to in the probate court reciting the proceedings theretofore had in that court, asking that the executor be directed to proceed with final settlement, and in the event that he failed to do so, that some other person be appointed as a special administrator to perform such duties. On the same day, October 5, 1939, the probate court entered an order reciting that the allegations of the petition had been found to be true and setting a hearing thereon for October 17, 1939, and directing that notice be given to the executor. On October 12, 1939, the executor filed in the probate court an application to set aside this order of .October. 5, narrating the proceedings theretofore had- in the district court with reference to the discharge of .the • executor. There then followed a succession of opposing orders by the'judge and a, judge pro tern of the probate court — maneuvers which need not be narrated. Whereupon the executor filed in the district court an application for a writ of prohibition, and an alternative writ :was forthwith issued, directed to John C. Hilkey, judge of' the probate court, and to Robert K Hadwiger, restraining them from prpceeding further in the matter until further- order of the district Court, ,and directing them to appear on a day set and-show'cause why .a permar nent writ should not be issued. Thereafter, motion t.o quash and demurrers having been overruled, an order was issued restraining Robert L. Hadwiger from further activity in the matter in the probate court, and prohibiting that court from any further proceeding in connection with the estate. From that order, entered on October 29, 1939, this appeal is taken.
It may be noted, in the first place, that the writ of prohibition of which the probate court complains, came about as a result of proceedings for final settlement initiated therein upon a petition filed by Robert Hadwiger. For reasons heretofore noted, the petitioner was without standing to proceed in the matter. However, it will be here assumed that the probate court, unless barred from doing so by the action theretofore taken in the district court, had power, upon its own motion, to direct the executor to proceed with final settlement. The question is thus presented as to the right of a probate court to prosecute an appeal from orders of the district court, which it believes constitute an invasion of its jurisdiction.
Assuming for present purposes the validity of the action of the district court in assuming jurisdiction over the probate proceedings, the use of a writ of prohibition constituted a proper remedy. (Beeler v. Beezley, 126 Kan. 268, 267 Pac. 1112; Foley v. Ham, 102 Kan. 66, 169 Pac. 183.)
Moreover, it is generally held that an order granting a writ of prohibition is appealable (50 C. J. 713, § 149; High, Extraordinary Legal Remedies, 3d ed., 748, § 794; Smith v. Whitney, 116 U. S. 167; in the Foley v. Ham and Beeler v. Beezley cases, supra, appeals were allowed without question.) Some jurisdictions, however, do not recognize the right of appeal from an order refusing to grant a writ of prohibition.
We have made no thorough examination of the question of whether the court itself, independent of the interested parties, may prosecute an appeal from an order granting the writ. It is suggested in People, ex rel., v. Justices of Marine Court, 81 N. Y. 500, 507, that the purpose of and right of appeal is to protect the rights of the litigants and not to protect the jurisdiction of the court itself. However that may be, the record discloses that all claims against the estate had been allowed or were barred. The final report and accounts had been approved, the assets delivered to the trustees and the executor discharged. From the order of final discharge no appeal was perfected. No beneficiary here complains of the final settlement. The issue, therefore, of the right of the district court to close the estate, and the consequent question of the right to issue the writ, have become moot. For that reason, if for no other, the appeal of the probate court must be dismissed. (4 C. J. S. 1967-1969; 3 Am. Jur. 308; City of Topeka v. Ritchie et al., 102 Kan. 384, 170 Pac. 1003; Cromb v. Cole, 114 Kan. 171, 216 Pac. 1098; and many other cases cited in § 6, Appeal and Error, Hatcher’s Kansas Digest.) A situation almost identical with that of the instant case was presented in People, ex rel. Stafford, v. Washburn, 227 N. Y. 585, 124 N. E. 723. Petition for writ of prohibition, involving judicial settlement of accounts of testamentary trustees, was there denied on the grounds that the proceedings had been concluded and the issue had become moot.
Having reached the conclusions heretofore stated, we find that:
1. The order and judgment of June 3, 1939, refusing to appoint and confirm Robert L. Hadwiger as a trustee should be affirmed.
2. The order and judgment of October 28, 1939, removing Gus Hadwiger as trustee should be affirmed.
3. All appeals herein as to other orders and judgments complained of should be dismissed. It is so ordered. | [
-44,
108,
-39,
124,
10,
-32,
58,
-102,
96,
-31,
39,
83,
-23,
-38,
5,
109,
-78,
61,
-63,
107,
-9,
-77,
3,
-128,
-46,
-13,
-99,
-35,
-16,
-51,
-10,
-34,
76,
97,
10,
-43,
-26,
-62,
-49,
28,
-116,
68,
10,
111,
-39,
64,
52,
-1,
22,
91,
113,
58,
-77,
42,
60,
-26,
108,
44,
91,
-67,
24,
-8,
-86,
-123,
95,
23,
33,
32,
-40,
67,
64,
42,
-104,
85,
-128,
-24,
81,
-90,
2,
-12,
3,
-87,
40,
118,
102,
17,
44,
-27,
-80,
-118,
15,
-89,
-67,
-25,
19,
89,
-94,
13,
-68,
-100,
117,
116,
14,
-4,
-26,
4,
94,
-20,
0,
-114,
-42,
-79,
-105,
124,
-112,
3,
-21,
-95,
32,
113,
-104,
-42,
95,
-57,
125,
27,
-105,
-80
]
|
The opinion of the.court was delivered by
Wedell, J.:
This was a prosecution under the prohibitory liquor law. Defendant was charged and convicted for unlawful possession of intoxicating liquor. He was sentenced as a persistent violator.
Defendant’s first complaint concerns the exclusion of the evidence of one of his witnesses. In order to understand the contention, it is necessary to state a few preliminary facts. The information charged defendant with the unlawful possession of intoxicating liquor on July 29, 1939. The theory of the state was that defendant and one Bernard Fahlsing were partners in the unlawful possession of the liquor. Fahlsing and the defendant operated a garage, or salvage shop, as partners in the town of Kinsley, Edwards county, and at that time also maintained a residence together and divided the expense of maintaining the residence. Liquor was found in both the shop and residence as a result of raids made by the officers on that date. In the residence the liquor was found in a good-sized cabinet or cooler which the parties have referred to as a “crusher.” It was called a crusher by reason of the fact that there was constructed in the cabinet, and above the place where the bottles were located, a heavy weight which could be released from outside of the cabinet. When the weight was released it would crush the bottles into small pieces and permit the crushed glass and the liquor to flow into a funnel and from the funnel into the sewer. The wife of Fahlsing testified for the state in the case against the defendant, Schuman. Her testimony was to the effect that Fahlsing and the defendant operated the residence as partners, dividing the expense of its maintenance. When the officers raided the shop, defendant attempted to get to the liquor ahead of the officers, but the officers thwarted the attempt. The officers next raided the residence. They took defendant with them. Defendant attempted to get to the crusher ahead of the officers, but was resisted by the officers. They found whisky and alcohol in the crusher and wine under a table in the kitchen.
Appellant does not contend the evidence was insufficient to sustain a conviction on the charge of possession. We need, therefore, not further discuss the sufficiency of the evidence. Appellant’s complaint pertains to the exclusion of evidence offered by a defense witness to the effect that in the year 1937 whisky was found in the same house when it was occupied by Bernard Fahlsing, prior to the time defendant was living in that property. His theory as to the competency of that evidence was that this was a circumstantial evidence case and that any evidence which showed or tended to show liquor had been kept in the residence by Bernard Fahlsing prior to defendant’s occupancy of the building with Fahlsing should have been admitted for the purpose of determining whether some other person than the defendant might have had possession of the liquor found in the same house on July 29, 1939. The court excluded the evidence on the ground there was a gap in the occupancy of the residence by the Fahlsings between 1937 and 1939 and that the evidence was too remote. A ruling on the competency of evidence, based upon remoteness, ordinarily rests in the discretion of the trial court and will not be reversed unless it clearly appears the ruling constituted an abuse of sound judicial discretion. (State v. Wimer, 97 Kan. 353, 155 Pac. 7; Bank v. Abbott, 104 Kan. 344, 179 Pac. 326; State v. Barr, 84 Vt. 38, 77 Atl. 914; 16 C. J. 561, Criminal Law, § 1087; 20 Am. Jur. 243, Evidence, § 249.)
The evidence on the question of whether Bernard Fahlsing occupied the residence in 1937 was conflicting. Fahlsing’s wife had testified Bernard Fahlsing was not living there in 1937. Assuming Fahlsing did occupy the residence in 1937, the issue was not whether Fahlsing was guilty of the unlawful possession of liquor in 1937, but whether the defendant, Schuman, was in the unlawful possession of intoxicating liquor on July 29, 1939. Mere proof that there was liquor in the residence building in 1937, even if then occupied by Fahlsing, did- not constitute proof that Fahlsing and the defendant did not have joint possession of other liquor found in the residence which was under their joint control in July, 1939. No attempt was made by defendant to show that the liquor found in the residence in 1939 was the same liquor as that seen in the residence in 1937. In fact, the evidence definitely disclosed it was not the same. In 1937, according to the excluded testimony, a small quantity of alcohol and wine was seen in the residence. There was no testimony that whisky was ever seen in the residence building in 1937. On July 29, 1939, whisky was found at both the salvage shop and residence, in addition to wine and alcohol. The mere evidence that there was some wine and alcohol in the residence building in 1937, without further proof of its ownership or possession, did not afford a reasonable presumption or inference that the whisky found in a crusher located in the residence in 1939 belonged to Fahlsing alone, and that defendant had no interest in or control thereof at a time when the building was in the joint control of the defendant and Fahlsing. Since the excluded evidence afforded no reasonable presumption or inference that any of the liquor, and especially the whisky, found in 1939 belonged to Fahlsing alone, it was properly excluded. (20 Am. Jur. 242, Evidence, § 248.) On the other hand, if it could be said the excluded evidence was relevant at all for the purpose offered, its relevancy was too slight and inconsequential for this court to reverse the judgment on the ground the trial court abused its discretion in excluding it. That is especially true in view of the fact the excluded evidence pertained only to the liquor found in the residence building in 1937. In the instant case, whisky and other liquor was also found in the salvage shop. That evidence alone, under the circumstances narrated, was sufficient to sustain the charge of possession. Under all these circumstances, we cannot say the exclusion of the evidence concerning liquor in the residence in 1937 affected the substantial rights of the defendant. It follows that even if technically it could be said the excluded evidence should have been admitted, this court cannot reverse the judgment. (G. S. 1935, 62-1718.) In passing, we may also note that the state’s case was not confined solely to circumstantial evidence.
The only other complaint concerns the overruling of defendant’s motion for a new trial. The complaint pertains to the alleged misconduct of the juror, Alvin Ploger. On the motion for a new trial, defendant produced two witnesses who testified concerning alleged conversations with the juror prior to the trial. One of those witnesses was Lester Hartwig, an employee in the salvage shop. That witness previously had been convicted of violating the prohibitory liquor law. His testimony was to the effect that the juror, shortly after defendants had been arrested, had told him, Hartwig, that he was certain in his own mind the boys were guilty and that he thought they would be found guilty. That witness’was present during a part of the trial and knew Ploger had been selected as a juror. He didn’t know why he had not advised the defendant or his attorney concerning Ploger’s statement until after the trial had been completed.
The other witness was Carl Livengood. That witness was also an employee in the salvage shop, or garage. He had testified as a defense witness in the trial. He knew Ploger was a juror. He had not notified the defendant or his attorney concerning the juror’s alleged statement to him until after the trial. He testified he had. given the juror’s statement no consideration until a day or two after the trial. His testimony was to the effect that Ploger had told him, in- the'presence of Hartwig, that he, Ploger, thought that if the boys were nofiguilty they would not be in court and that he thought they would be convicted. After these witnesses had testified in support of the motion for a new trial, the state was unable to locate the juror. After'waiting for some period of time to locate the juror, the court overruled the motion for a new trial. Thereafter the juror was located. Upon being advised concerning the testimony of the two' witnesses, it appears the juror insisted upon filing an affidavit to refute the testimony of those witnesses. He filed such an affidavit, but'we need not consider it. '
- Defendant insists there was no conflict in the evidence on his motion for a new trial and, as the record stands, the juror was clearly guilty of misconduct and the trial court was required to grant a new trial. It is, of course, true that evidence cannot be disregarded. It must be considered." It is, however, equally true that a court or jury is not required to believe or accept as conclusive the testimony of a witness or witnesses merely because there is no direct evidence to contradict the testimony. {Smith v. Lockridge, 145 Kan. 395, 65 P. 2d 345; Kallail v. Solomon, 146 Kan. 599, 72 P. 2d 966; State v. Stephens, 146 Kan. 660, 72 P. 2d 975; Johnson v. Johnson, 148 Kan. 682, 685, 84 P. 2d 888.) The only logical interpretation we can place upon the order overruling the motion for a new trial is that the trial court did not believe defendant’s witnesses. It was the province of the trial court to believe or to disbelieve them. It was not only the right, but the positive duty of the trial court to consider the source, character and plausibility of the testimony of those witnesses, in view of all the circumstances. It was also its duty to consider the character and reputation of the witness or witnesses, as disclosed by the record. If the trial court did not believe their testimony, it was its duty to sustain the verdict. The fact these witnesses were employees in a shop operated by Fahlsing and the defendant, the fact they knew Ploger was a member of the jury, and made no complaint to anyone concerning his alleged statements until after the trial was completed and the defendant was convicted, certainly must have impressed the trial court as being highly unusual and that their testimony was probably the result of an afterthought. Their demeanor, conduct and appearance when testifying may have convinced the trial court beyond all doubt that they were not speaking the truth concerning the juror.
Defendant is also in error in his contention that the testimony of these witnesses was uncontradicted. The testimony of defendant’s witnesses was contradicted. The testimony of defendant’s witnesses in support of the motion for a new trial does not constitute the entire record in this case. It is admitted by stipulation that the juror, on his voir dire, was asked whether he had formed or expressed any opinion concerning the guilt or innocence of the defendant, and that the juror stated he had not formed or expressed any opinion on the subject. The trial court had a right to believe the juror’s statement on his voir dire which was in direct conflict with the testimony of defendant’s witnesses on the motion for a new trial. It appears the trial court was entirely satisfied with the juror and the verdict. Under such circumstances we would not be justified in disturbing the verdict.
We think this defendant had a fair trial, and the judgment is affirmed. | [
-15,
-18,
-4,
-99,
42,
112,
42,
-72,
66,
-27,
-73,
115,
-23,
-48,
1,
99,
-82,
121,
84,
121,
-63,
-74,
83,
65,
-94,
-13,
-48,
-59,
-79,
79,
-12,
85,
5,
-76,
-125,
-43,
-30,
-64,
-63,
94,
-114,
4,
-71,
-62,
81,
16,
52,
57,
102,
15,
-15,
14,
-89,
47,
20,
-55,
9,
40,
75,
61,
64,
-16,
-98,
-99,
-51,
22,
-125,
50,
-100,
-123,
-24,
62,
24,
49,
1,
-8,
115,
-76,
-124,
116,
15,
-119,
-115,
102,
98,
-91,
13,
-17,
108,
-104,
63,
110,
-99,
39,
24,
64,
97,
0,
-68,
-97,
116,
82,
14,
-4,
-18,
85,
91,
108,
-121,
-121,
-68,
-127,
73,
48,
-110,
6,
-53,
-93,
99,
113,
-51,
54,
92,
20,
113,
-101,
-121,
-43
]
|
The opinion of the court was delivered by
Hoch, J.:
Defendant appeals from a money judgment in the district court, on the ground that that court did not have jurisdiction of the cause because the plaintiff bad sworn falsely as to his property in a poverty affidavit filed in the county court in lieu of bond to secure costs of appeal to the district court.
Plaintiff’s judgment in the county court was for $17.05, with assessment of $7.30 in.costs against him and of $31.75 against the defendant. Being dissatisfied with the judgment he appealed to the district court, and on May 6,1939, filed a poverty affidavit under the provisions of G. S. 1935, 61-1002. The affidavit was accepted by the county court, without objection being made, and the appeal was perfected. The case was tried before a jury in district court in December, 1938, and the plaintiff given a judgment for $160. During cross-examination the plaintiff testified as follows:
“Q. What farming equipment do you have that is your own? A. I have got everything but the horses.
“Q. What does that mean? What does that include? A. That includes a disk, binder, lister, cultivator, mowing machine, go-devil, rake, harness, wagon.
“Q. You don’t have any horses now? A. No, sir.
“Q. You haven’t had any horses since your horses died over on the Stansbury place? A. No, sir.
“Q. Do you have an automobile now? A. I have.
"Q. The same one you had at the Stansbury’s? A. Yes, sir,
“Q. What kind of car is it? A. It’s a Model T now.
“Q. Model T Ford? A. Yes, sir.
“Q. Sedan? A. Yes, sir.
“Q. What year? A. 1932.
“Q. Did you have all this property at the time you filed your appeal up here? A. I did.
“Q. You filed a poverty affidavit so you wouldn’t have to put up a bond on appeal, didn’t you? A. Yes, sir.
“Q. You signed an affidavit you didn’t have any security to put up for costs? A. No, sir.
“Q. You didn’t sign it? A. No, sir; not that I know of.
“Q. You did own all of that property at the time you signed that affidavit that was filed in court? A. I did.”
Whereupon, the defendant demurred to the evidence on the ground that no cause of action had been established and that the court was without jurisdiction because the plaintiff had filed a false poverty-affidavit in lieu of an appeal bond. From the order overruling the demurrer the defendant appeals.
We can give no consideration to the first ground of the demurrer, since no record of the plaintiff’s evidence on the main controversy has been submitted for our examination.
As heretofore noted, no objection was made in the county court to the poverty affidavit which was filed on May 6, 1938. It was accepted by the county court and the appeal perfected. The case did not come to trial in the district court until about seven months later. No motion challenging the jurisdiction of the district court on the ground of the falsity of the affidavit was filed, nor was the regularity of the appeal in any way questioned until after a jury had been selected, the plaintiff had testified and the answers heretofore recited had been given on cross-examination. Under such circumstances we find no necessity of examining the question of whether the property listed by the plaintiff would have been sufficient to enable him to give bond to secure payment of costs if the issue had been earlier raised, and with opportunity, upon notice, to meet it. Nor do we need to consider appellee’s contention that the property listed is all exempt from attachment and therefore not to be in- eluded in determining whether the plaintiff was entitled to appeal on a poverty affidavit. The affidavit, accepted by the county court, was regular upon its face, the district court had acquired jurisdiction, and we find no error in refusing to dismiss the action when the issue was first raised on demurrer to plaintiff’s evidence.
In Mining Co. v. Robinson, 67 Kan. 510, 73 Pac. 102, it was held that refusal of the trial court to require plaintiff to give security for costs in lieu of a poverty affidavit filed with the petition — “even if the ruling be erroneous” — did not justify reversal where a judgment had been rendered for the plaintiff, which the court found should be affirmed on its merits. (See, also, Farmer v. Warner, 64 Kan. 878, 68 Pac. 1127; Glover v. State Highway Comm., 147 Kan. 279, 288, 77 P. 2d 189.)
Appellant cites Hanson v. Kramer, 131 Kan. 491, 292 Pac. 788. But in that case the plaintiff, when he filed his original action, filed a poverty affidavit in lieu of bond for costs or cash deposit, and the defendant filed a motion asking that the action be dismissed on the grounds that the affidavit was untrue, and upon hearing directly on the issue the court found that the affidavit was untrue; that the plaintiff had a very substantial amount of cash immediately available and dismissed the action. This court said that in such a situation the dismissal was not error.
The case of Stevens v. Sheriff, 76 Kan. 124, 90 Pac. 799, is cited by appellant in support of the contention that where a poverty affidavit is given in lieu of costs a motion for additional security would have been unavailing, and that therefore he was entitled to await development of facts during the trial in the district court. We find nothing in that case to support such a view. In that case the trial court ordered the plaintiff, or someone in his behalf, to give additional security for costs, without any finding that he was financially able to do so or of any fact indicating that he was not entitled to proceed, under his poverty affidavit. This court held that the trial court had abused its discretion in dismissing the action.
The plaintiff prevailed in the instant case, and no direct attack is made upon the judgment. Aside from the contention that the district court was without jurisdiction to hear the cause, by virtue of the statements made by the plaintiff on cross-examination concerning his property, no prejudicial error is assigned. We find that the trial court had acquired jurisdiction, and that no abuse of discretion or other prejudicial error is shown by the record.
The judgment is affirmed. | [
-14,
-20,
121,
126,
-118,
-32,
42,
-104,
-46,
33,
-73,
23,
-31,
82,
4,
45,
-14,
61,
85,
107,
95,
-77,
23,
-125,
-14,
-14,
-117,
-43,
-67,
77,
-26,
85,
77,
48,
-30,
-97,
-26,
-128,
-125,
112,
-114,
6,
-85,
-50,
-23,
72,
52,
-5,
18,
11,
113,
-97,
-81,
46,
52,
107,
40,
44,
-37,
-71,
-48,
-15,
-66,
-115,
77,
7,
-79,
6,
-114,
39,
122,
44,
-104,
49,
2,
-16,
-14,
-74,
-122,
84,
73,
-101,
40,
118,
102,
17,
29,
-17,
-24,
-55,
47,
-4,
-113,
-89,
-102,
24,
11,
37,
-98,
-99,
125,
80,
6,
126,
-18,
21,
31,
104,
7,
-49,
-106,
-77,
-81,
44,
-104,
10,
-49,
-93,
17,
113,
-51,
-46,
92,
7,
123,
-101,
-121,
-110
]
|
The opinion of the court was delivered by
Abbott, J.:
This is a direct appeal by the defendant, Darryl G. Bowman, from his convictions of aggravated robbery and conspiracy to commit aggravated robbery.
Bowman raises two issues on appeal. He argues the trial court erred in admitting evidence that a defense witness, Glenda Bess, with whom defendant was living, had been convicted of obstruction of legal process for attempting to smuggle bullets to Bowman while he was in jail. He also claims the trial court erred in failing to instruct the jury on felony theft, claiming it to be a lesser included offense of aggravated robbery.
The relevant facts are: Christopher Carson was working the graveyard shift at the Amoco station on West Crawford in Salina, Kansas, on June 15, 1991. His testimony is as follows. At approximately 6:00 a.m., he saw a two-door red car with a hatchback drive into the parking lot. Shortly thereafter, a man wearing a grayish-white shirt, black shorts, white socks, black shoes, and a black Raiders baseball cap walked inside the store. Pulling out a small caliber handgun, the man said, “This is a robbery.” He told Carson he would shoot if Carson looked around or attempted to use the telephone. Carson opened the cash register and handed over the $5, $10, and $20 bills. A subsequent audit determined $451 had been taken.
Carson said that after taking the money, the robber hurriedly left the store and entered the red car on the passenger side. Carson watched the car drive away, but could not see the driver. He then called 911 to report the robbery. Later that morning, the police showed Carson a six photograph line-up. Carson selected two photographs that looked like the robber. One of those photographs was of Bowman. At trial, Carson identified the defendant as the robber.
Bowman’s version of what transpired differs significantly. He testified that he had met Carson about a month before the robbery at Benton’s Cafe and that Carson had purchased cocaine from him on several occasions. Carson, on the other hand, testified he had never seen Bowman prior to the robbery, had never been to Benton’s Cafe, and had never purchased cocaine from Bowman.
According to Bowman, on the evening before the robbery, he saw Carson at Benton’s Cafe and Carson once again purchased some cocaine. Bowman claims Carson returned a short time later, asking if Carson could have additional cocaine on credit and Bowman could stop by Carson’s place of business during his shift to pick up the money. The defendant agreed. According to the defendant, this occurred between 9:00 and 11:00 p.m. Bowman said that when he arrived at the Amoco station several hours later and asked Carson for the money, Carson opened the cash register and gave him approximately $200. The defendant acknowledged Carson had overpaid him by $75, but said it was with the understanding they would meet later at Benton’s Cafe. Bowman said he did not have a weapon and did not threaten Carson.
The defendant testified that Luella Garrett had given him a ride to the Amoco station. Garrett owned a red two-door 1986 Chevy Sprint. After leaving the Amoco station, they drove to the residence of Garrett’s brother, who wanted to buy some cocaine. Bowman sold Garrett and her brother some cocaine, but when they asked for additional cocaine on credit, he refused and left. He said he “fronted” Carson drugs, but not Garrett’s brother, because Carson had a job.
Bowman was arrested the next day, June 16, 1991, and charged with aggravated robbery and conspiracy to commit aggravated robbery. After being advised of his Miranda rights, he informed the police that he had no knowledge of the armed robbery and that he would not talk with the police unless an attorney was present. According to the police, the defendant subsequently initiated a conversation and confessed that he and Garrett had-committed the armed robbery. At trial, Bowman denied making the confession..
A jury convicted Bowman of aggravated robbery and conspiracy to commit aggravated robbery. The defendant was sentenced to 15 years to life for the aggravated robbery and to 1 to 5 years for conspiracy, the sentences to run consecutively. Garrett was convicted of attempted robbery and received a 2- to 7-year sentence. Bowman timely appeals his convictions.
EVIDENCE OF A PRIOR CONVICTION
Bowman argues the trial court erred in admitting evidence of Glenda Bess’ prior conviction of obstructing legal process, which the defendant claims the State introduced to attack Bess’ credibility. Bess, with whom Bowman lived, testified for the defense. The police officers’ testimony of what they said Bess told them prior to Bowman’s arrest varied significantly from her trial testimony concerning what she told the police.
Detective Shaft testified Bess told him that the last time she saw Bowman before the robbery he was wearing black shorts, a black and gray shirt, black shoes, white socks, and a Raiders baseball cap (nearly the same description Carson had given); that he left her place with Luella Garrett in Garrett’s car around 3:30 a.m. on June 15; that he returned about 6:00 p.m. wearing different clothes; and that he told her the other clothes were being washed. According to Officer Plank, during the execution of the search warrant of her residence, Bess volunteered the information that Bowman’s black shorts and black shirt were being washed, but that the hat was in the bedroom.
At trial, Bess’ testimony was that Bowman left her residence around 3:00 a.m. on June 15, 1991. She was not sure if he left with Garrett. Bess testified she told the police that Bowman was wearing a blue tank top and blue shorts with red trim when she last saw him prior to the robbery. She did not know when he returned, but said he was there when she came back from her mother’s at approximately 7:30 a.m. She also testified that, if there were discrepancies between her testimony and that of the police officers, the officers were fabricating their testimony.
The State then asked Bess if Bowman appeared to be under the influence of drugs or alcohol when she saw him on June 15. Bess’ response was that she did not “know what people are like when they’re on drugs.” The State approached the bench and asked the court’s permission to inquire about the 133 grams of cocaine found in Bess’ house and about Bess “wanting to protect her boyfriend so much that she would take his shoes with the bullets in them to the sheriff’s department.”
The trial court determined that questioning Bess about the cocaine found at her house was relevant to her credibility and admissible under K.S.A. 60-421. Defense counsel then argued the bullets-in-shoes incident was not relevant because it occurred after the robbery. The trial court rejected the argument, reasoning:
“Well; she’s allegedly giving a statement different than she gave at the time and the evidence of her relationship and the extent of that relationship and the ends that she’d go to protect that relationship certainly are relevant and bearing upon her credibility and would open the question, I think, of at least a reasonable inference that she has a motivation to change her story from what she gave the first time. It’s an explanation of the apparent conflict in the story and I think it’s certainly admissible and relevant under [K.S.A. 60-]420.”
The following exchange subsequently occurred between the State and Bess:
“Q. [I]sn’t it also true that you have pled to a charge of obstructing the legal process?
“A. Yes, I have.
“Q. And that involved your taking some shoes to your boyfriend, the defendant, at the Saline County Jail.
“A. Yes.
“Q. And isn’t it true that those — when those shoes were searched, that the officers of the Saline County Sheriff’s Department found some bullets inside those shoes?
“A. Yes, they did. But I did not — I pled guilty due to the fact I didn’t want to go to trial and my lawyer informed me that they would drop it down to a misdemeanor instead of a felony, so I went ahead and pleaded guilty to the charges.”
Bowman contends the trial court’s ruling was in error because the evidence was irrelevant, because obstructing legal process is not a crime of dishonesty or false statement, and because the evidence substantially prejudiced his defense by destroying the credibility of his key witness. Before considering the merits of Bowman’s arguments, we will address the State’s claim that the defendant failed to preserve the issue for appeal.
“[A] timely objection must be made to the introduction of evidence, specifying the ground for the objection, in order to argue on appeal that the ground for admission of the evidence was erroneous. [Citation omitted.] . .. . [T]he defendant cannot object to the introduction of evidence on one ground at trial and then assert a different objection on appeal. [Citation omitted.]” State v. Skelton, 247 Kan. 34, 44, 795 P.2d 349 (1990).
See K.S.A. 60-404 (contemporaneous objection rule.)
The State maintains the conversation between the trial court and defense counsel after the State presented its proffer did not constitute an objection. We have reviewed the record on appeal and are satisfied defense counsel’s statements to the trial court sufficiently lodged his opposition to the introduction of this evidence even though he did not use the words “I object.”
The State argues it did hot secure the testimony to prove Bess’ dishonesty or her predisposition to commit crimes. Rather, according to the State, its questioning of Bess “was elicited to illustrate her social relationship with the defendant which would in turn, indicate bias.” The State contends a witness’ bias always may be exposed in order that the jury may put the witness’ testimony in proper perspective.
If the police officers’ testimony is believed, Bess’ testimony changed radically. Bess initially said Bowman left her home with Luella Garrett in Garrett’s red car, which was identified by Bowman and others as being at the crime scene, and that Bowman was wearing the color and type of clothing described by the. robbery victim. Bess' subsequently testified she was unable to identify the person with whom or the car in which Bowman left her home. She described the clothing Bowman wore when he left her home in a manner that made it unlikely anyone could-mistake what Bowman was wearing with the clothing .the victim described the robber as wearing. Moreover, Bess denied Bowman owned clothing similar to what the victim described the robber as wearing. She also testified that Bowman knew Carson and had met him at Benton’s Cafe prior to the robbery. She was the only witness who corroborated Bowman’s claim that Carson stole the money and gave it to Bowman to pay for drugs. Carson took the stand on rebuttal and denied her testimony.
We are satisfied the testimony was admissible.
“Bias, interest or improper motives of a witness may always be shown in order to place his testimony in proper perspective.” State v. Montanez, 215 Kan. 67, 72, 523 P.2d 410 (1974).
In State v. Loveland, 8 Kan. App. 2d 196, 198-200, 653 P.2d 472 (1982), rev. denied 232 Kan. 876 (1983), a witness testified on cross-examination that he had “done drugs” with the defendant. Defendant’s counsel requested a mistrial on the grounds the State had introduced evidence of prior crimes. The defendant was charged with and convicted of the sale of phencyclidine. The Court of Appeals affirmed the conviction, holding:
“We find that the trial court did not err in permitting the testimony. The reference to defendant’s drug-related activities with the witness was not elicited for the purpose of proving the witness’s tendencies towards dishonesty, nor the defendant’s predisposition to commit crimes. We find that the testimony was elicited to illustrate the witness’s social relationship with defendant which would, in. turn, indicate bias or prejudice. In State v. Murrell, 224 Kan. 689, Syl. ¶ 4, 585 P.2d 1017 (1978), the court held:
‘Bias, interest or improper motives of a witness may always be shown in order to place his testimony in proper perspective.’ ” 8 Kan. App. 2d at 200.
In State v. Maxwell, 10 Kan. App. 2d 62, 691 P.2d 1316 (1984), rev. denied 236 Kan. 876 (1985), Maxwell was convicted of selling marijuana. A witness was allowed to testify he had purchased marijuana from defendant on 8 or 10 prior occasions. The Court of Appeals held the evidence was admissible independent of K.S.A. 60-455 despite the fact the evidence related to prior crimes. The Court of Appeals reasoned: “Evidence which has a direct bearing on, and a relation to, the commission of an offense is admissible without a limiting instruction; and is not rendered inadmissible because it may disclose other or independent offenses.” 10 Kan. App. 2d at 67. See State v. Solem, 220 Kan. 471, 476, 552 P.2d 951 (1976) (evidence of prior drug offenses is admissible independent of 60-455 if it has a direct bearing on and a relation to the offense charged).
In State v. Mogenson, 10 Kan. App. 2d 470, 701 P.2d 1339, rev. denied 238 Kan. 878 (1985), the Court of Appeals held evidence is admissible independent of K.S.A. 60-455 to show the relationship of the parties and the existence of a continuing course of conduct.
We are not unmindful that this court has held K.S.A. 60-455 does not apply to witnesses in criminal cases other than the accused, State v. Bryant, 228 Kan. 239, 613 P.2d 1348 (1980), and that the defendant’s argument is focused on K.S.A. 60-421, which reads:
“Evidence of the conviction of a witness for a crime not involving dishonesty or false statement shall be inadmissible for the purpose of impairing his or her credibility. If the witness be the accused in a criminal proceeding, no evidence of his or her conviction of a crime shall be admissible for the sole purpose of impairing his or her credibility unless the witness has first introduced evidence admissible solely for the purpose of supporting his or her credibility.”
Evidence that a person committed a crime or civil wrong that is admissible independent of K.S.A. 60-455 also should be admissible independent of K.S.A. 60-421. It does not make sense to hold similar evidence admissible independent of K.S.A. 60-455 if there is no conviction and inadmissible under 60-421 if there is a conviction.
This court frequently has allowed evidence of prior criminal activity under a res gestae theory and has permitted an extremely liberal length of time between the prior criminal activity and the crime charged. See, for example, State v. Dunn, 249 Kan. 488, 493-94, 820 P.2d 412 (1991); State v. Redford, 242 Kan. 658, 665, 750 P.2d 1013 (1988). In Dunn, evidence of a prior conviction as well as drug dealings was admitted. The evidence was admitted to show relationship as part of the res gestae. Dunn argued the drug activity occurred after the incident leading to the criminal charge for which she was tried, and we held: “Dunn argues the drug activity referred to only concerned incidents occurring after the smoke bombing. The law, however, allows the admission of evidence as part of the res gestae for acts made before, during, or after the principal event. [Citation omitted.] Dunn’s argument is without merit.” 249 Kan. at 494.
Here, the evidence of how far Bess would go to help her boyfriend is relevant, and the evidence is admissible to show relationship and bias.
There is yet another reason the evidence is admissible.
The crime of obstructing legal process or official duty contrary to K.S.A. 21-3808 is quite broad. It encompasses many activities and includes giving a false statement. See State v. Latimer, 9 Kan. App. 2d 728, 733, 687 P.2d 648 (1984) (giving a false identification). Thus, a violation of K.S.A. 21-3808 could involve dishonesty or a false statement, depending upon the facts of each case. Based on the record before us, there is no showing of dishonesty or a false statement.
Here the acts involved revolved around smuggling contraband into a jail and/or aiding and abetting an attempted aggravated escape from custody. We have held the offense of obstructing legal process is broad enough to cover cases in which a person escapes from lawful custody prior to the filing of a formal written complaint, information, or indictment. State v. Pruett, 213 Kan. 41, Syl. ¶ 7, 515 P.2d 1051 (1973). The record before us is insufficient to disclose whether the defendant was being held under a written complaint, information, or indictment when Bess attempted to smuggle the bullets to him.
This court has held evidence of flight or attempted flight is admissible to establish the defendant’s consciousness of guilt.
“The general rule is that flight after the commission of a crime is admissible regardless of the time or stage in the proceedings when the flight occurs. It is not necessary that the flight occur immediately after the perpetration of the crime. It may occur before filing formal charges, before arrest, after indictment, or after arrest.” State v. Walker, 226 Kan. 20, 22, 595 P.2d 1098 (1979).
Thus, the evidence concerning an attempted escape from custody also appears admissible under Walker. See, e.g., State v. Cathey, 241 Kan. 715, 730, 741 P.2d 738 (1987); State v. Anderson, 230 Kan. 681, 640 P.2d 1232 (1982); State v. Lee, 201 Kan. 177, 440 P.2d 562 (1968); State v. Moffitt, 199 Kan. 514, 431 P.2d 879 (1967).
II. LESSER OFFENSE
Bowman also argues the trial court erred in failing to instruct the jury on theft because theft is a lesser included offense of aggravated robbery and because the evidence supported giving the instruction.
Included offenses are codified at K.S.A. 21-3107, which provides, in pertinent 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;
(b) an attempt to commit the crime charged;
(c) an attempt to commit a lesser degree of the crime charged; or
(d) a crime necessarily proved if the crime charged were proved.
“(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. If the defendant objects to the giving of the instructions, the defendant shall be considered to have waived objection to any error in the failure to give them, and the failure shall not be a basis for reversal of the case on appeal.”
“It is a familiar rule, as codified in the statute, that a trial court has an affirmative duty to instruct the jury on lesser included offenses, including lesser degrees of the same crime; however, this duty does not arise unless there is evidence supporting the lesser offense.” State v. Patterson, 243 Kan. 262, 267, 755 P.2d 551 (1988). The trial court has an affirmative duty to instruct the jury on an appropriate lesser included offense even if, as here, the defendant did not request the instruction. See State v. Evans, 251 Kan. 132, 138, 834 P.2d 335 (1992).
In support of his argument that theft is an included crime of aggravated robbery, the defendant cites State v. Long, 234 Kan. 580, 675 P.2d 832 (1984), overruled on other grounds State v. Keeler, 238 Kan. 356, 365, 710 P.2d 1279 (1985). In Long, this court held:
“For purposes of K.S.A. 21-3107(2)(a) the crime of theft is an included crime of robbery as a ’lesser degree of the same crime,’ and therefore the trial court is required to instruct the jury on the crime of theft in a prosecution for robbery where there is evidence to support a conviction of theft.” 234 Kan. 580, Syl. ¶ 4.
See State v. Getz, 250 Kan. 560, 565, 830 P.2d 5 (1992); State v. Sutherland, 248 Kan. 96, 103, 804 P.2d 970 (1991); Patterson, 243 Kan. at 266.
The State argues Long should be restricted to its facts. In Long, the type of theft discussed was pursuant to K.S.A. 21-3701(a), “[ojbtaining or exerting unauthorized control over property.” Here, Bowman is arguing a theft instruction should have been given pursuant to subsection (d) of 21-3701, “[obtaining control over stolen property knowing the property to have been stolen by another.”
The State also contends theft by obtaining control over stolen property knowing the property to be stolen by another, K.S.A. 21-3701(d), cannot be an included offense of aggravated robbery because subsection (d) theft has elements not found in aggravated robbery. Subsection (a) does not require that the included offense have the identical elements found in the greater offense. In fact, the Long court acknowledged “robbery and theft contain separate and distinct elements.” 234 Kan. at 588.
Here, the only evidence to support Bowman’s version of what occurred in the service station came from Bowman. He testified as follows:
“Q. What happened when you went out there?
A. Mr. Carson — when I went in the door Mr. Carson was behind the counter. I asked him if it was all right if I got a pop. He said, ‘Sure.’ I got a pop. I came back up. I said, ‘You got my money?’ Mr. Carson proceeded to open the cash register and he gave me about $200. I told him that the cocaine didn’t cost nothing but 125 so he gave me $200 and said he’d be by later on up at Benton’s so get in contact with me again. Also—
Q. So he gave you more than what—
A. Yes, yeah.
Q. What it was worth.
A. Because that’s all — I really didn’t have no more cocaine on me at that time.”
From that, the appellate defender argues the trial court should have given an instruction that the defendant received stolen money knowing the money to have been stolen by another with the intent to deprive the owner permanently of the possession, use, or benefit of the owner’s money.
The record contains no proof the money Bowman claimed the service station attendant gave him was stolen or that Bowman knew it was stolen.
Inference can be drawn from circumstantial evidence, and Bowman suggests the fact that, according to his version, the attendant voluntarily took funds out of a cash register is sufficient. We do not agree. There is no showing that it was not the service station attendant’s money or that he was not authorized to take money from the cash register and use it for his own use (i.emake advances to himself). Nor did Bowman testify he knew the money was stolen. Thus, the trial court did not err in not considering an instruction on obtaining control over stolen property knowing the same to be stolen because it is only necessary to give an instruction on a lesser degree of the same crime if there is evidence to support a conviction for the claimed offense.
Having so held, it is not necessary for us to consider whether K.S.A. 21-3701(d) is a lesser degree of robbery.
Affirmed. | [
112,
-24,
-7,
61,
59,
-32,
58,
-70,
96,
-93,
55,
83,
-87,
-64,
5,
123,
-16,
95,
84,
97,
-4,
-73,
71,
97,
-14,
-13,
57,
5,
50,
74,
-26,
84,
12,
112,
-58,
85,
102,
72,
71,
84,
-114,
-123,
-80,
98,
-8,
8,
32,
58,
54,
15,
49,
-100,
-13,
34,
18,
-50,
105,
44,
75,
-83,
80,
-5,
-53,
13,
-49,
18,
-93,
6,
-65,
7,
-8,
62,
-100,
49,
0,
120,
-13,
-90,
-128,
116,
73,
-117,
4,
100,
98,
32,
92,
-55,
44,
-119,
62,
-17,
-97,
-89,
-100,
81,
73,
37,
-105,
-97,
106,
60,
-114,
-4,
-7,
28,
81,
-20,
37,
-34,
-72,
-111,
-19,
116,
84,
-6,
-53,
37,
-96,
113,
-49,
-26,
92,
85,
114,
-97,
-81,
-43
]
|
The opinion of the court was delivered by
Six, J.:
This is a medical malpractice case. The jury verdict was for the defendant physician. The two issues are: (1) Did the trial court err in allowing a non-party treating physician to testify as an expert witness for the defense when, prior to trial, that physician had been contacted, ex parte, by defense counsel; and (2) did the trial court commit prejudicial error in excluding an admitted exhibit (a demonstrative chart) from the jury room during deliberations?
Plaintiff Gary Morgan alleged in his claim against Dr. Eustaquio O. Abay II, M.D., that the care extended by Dr. Abay, in connection with pituitary tumor surgery, was negligent. Our jurisdiction is under K.S.A. 20-3018(c) (a transfer from the Court of Appeals upon our own motion).
We reason that the first issue relating to the testimony of a non-party treating physician has not been preserved for appeal and, consequently, is not a proper question for resolution in the case at bar. The trial court’s refusal to permit the demonstrative chart which had been admitted as an exhibit to go to the jury room was error; however, the error was not prejudicial.
Facts
Gary Morgan began experiencing difficulties with his vision. He ultimately was referred to a neurologist who sent him to Dr. Abay, a board certified neurosurgeon. Several tests were conducted by Dr. Abay in an attempt to isolate the cause of Morgan’s problems. Dr. Abay diagnosed Morgan as having a pituitary adenoma or tumor, which encased Morgan’s right carotid artery and right optic nerve. Dr. Abay told Morgan that without treatment he could die. Morgan was advised to have surgery to remove the growth. The two discussed the risks of surgery. Morgan elected surgery and was admitted to a hospital in Wichita. Dr. Abay explained the possible surgical approaches (pituitary tumor surgery presents a neurosurgeon with essentially two surgical approaches providing access to the pituitary gland area and the tumor site).
Another neurological surgeon, Dr. Paul Stein, M.D., assisted Dr. Abay during the surgery. Portions of the surgery were videotaped. During the process of removing adhesions surrounding Morgan’s optic nerve, Dr. Abay nicked Morgan’s right internal carotid artery, which caused bleeding in the brain. Dr. Abay performed a cauterization procedure. Morgan’s internal carotid artery was reduced to one-third its normal size as a result of the cauterization.
Dr. Abay treated Morgan during his post-surgical recovery. Morgan developed a variety of complications following the surgery, including paralysis of the left side of his body. He suffered a stroke which caused permanent brain damage. The stroke damaged Morgan’s vision and created weakness in his left leg. As a result, Morgan needs a brace on his left foot and ankle in order to walk without twisting his ankle or falling. Since the stroke, Morgan has been incapable of driving a car and is unable to work.
Morgan filed a medical negligence claim against Dr. Abay in which he alleged three theories: (1) negligence in choosing the surgical approach to the tumor; (2) negligence in using the improper method to repair the nicked artery; and (3) negligence in surgical after-care which led to Morgan’s stroke.
Before trial, counsel for Dr. Abay contacted Dr. Stein and provided him with Morgan’s medical records, CT scans, x-rays, and the videotape of the surgical procedure. Dr. Stein served as a “second pair of hands” for Dr. Abay during the surgery. Dr. Stein had no other involvement with Morgan. Dr. Abay’s counsel provided Morgan’s counsel with a copy of a letter from Dr. Stein expressing Dr. Stein’s opinion that Dr. Abay had not deviated from applicable medical standards. Dr. Abay’s counsel stated that Dr. Stein would be called as an expert. Morgan’s counsel deposed Dr. Stein. At the deposition, Dr. Stein related the facts surrounding his contact with Dr. Abay’s lawyers. Prior to trial, Morgan filed a motion in limine, with a supporting memorandum, to exclude the expert testimony of Dr. Stein. During discovery, counsel for Dr. Abay had contacted Dr. Stein ex parte without the consent of or notice to Morgan, and without a subpoena or other discovery order. (Counsel had secured an order for inspection and reproduction of medical records addressed to all hospitals and physicians.) The trial court denied the motion in limine. Dr. Stein testified at trial, without objection, regarding Dr. Abay’s adherence to the standard of care.
Dr. Donald Austin, M.D., who was an expert called by Morgan, used a visual aid when he testified. The aid (plaintiff’s Exhibit 13) was a detailed colored diagram, in the form of a demonstrative chart, showing the location of the tumor, various methods of entry, the area of damage to the internal carotid artery, and the area where the stroke occurred. The exhibit was identified in the pretrial order and was shown to Dr. Abay’s counsel prior to trial. The trial court did not allow Exhibit 13 to go to the jury room.
The Motion in Limine
Initially, we must determine if the first of the two issues presented has been preserved for appeal.
On September 6, 1991, four days prior to the trial, Morgan filed a motion in limine which sought to exclude the expert testimony of Dr. Stein. The motion specifically stated that Morgan “moves the Court to exclude from the defense case the proposed expert testimony of Dr. Paul Stein, one of plaintiff’s treating physicians, on the issues of standard of care, breach of that standard, and causation.” The trial court denied the motion on September 17, 1991. Dr. Stein testified the next day, September 18, 1991. No contemporaneous objection was made to Dr. Stein’s testimony at trial. The record does not reflect any discussion regarding the exclusion or admission of Dr. Stein’s testimony at any time during the course of the trial.
Dr. Stein’s testimony is subject to the contemporaneous objection rule. K.S.A. 60-404. When a motion in limine is denied,, the moving party must object to the evidence at trial to preserve the issue on appeal. Douglas v. Lombardino, 236 Kan. 471, Syl. ¶ 2, 693 P.2d 1138 (1985). Lombardino also was a medical malpractice case. Dr. Pham, a pathologist, performed an autopsy on a woman who died following childbirth. Plaintiffs, the husband and son, filed a motion in limine to exclude the opinion evidence of Dr. Pham and the opinion portion of his report. The motion in limine on the report was denied. At trial another doctor was called and was asked to comment on Dr. Pham’s conclusion in the report. Plaintiffs’ counsel did not object. We held that the failure to object to the reading of Dr. Pham’s conclusion in the report constituted a waiver of any objection to the trial court’s denial of the motion in limine. 236 Kan. at 481-82.
The failure to object to Dr. Stein’s testimony at trial constitutes a waiver of any objection to the trial court’s denial of the motion in limine. Consequently, the issue of whether a new trial is justified due to the inclusion of Dr. Stein’s testimony is not properly before us in the case at bar.
The Demonstrative Chart
Morgan indicates that when his experts testified they repeatedly used a detailed colored anatomical chart to aid the jury in understanding the complex medical issues involved in the lawsuit. He explains that the diagram, marked plaintiff’s Exhibit 13, was identified in the pretrial order and was properly offered and admitted into evidence. Morgan suggests that because his objections to certain defense exhibits were sustained on the basis that those exhibits had not been properly identified, the trial court refused to allow Exhibit 13 to go to the jury during deliberations. He reasons that, due to the complexity of the medical information involved, Exhibit 13 was critical to the jury’s understanding of his theory of liability and causation. Morgan contends that Exhibit 13 was definitely relevant in that it assisted in providing proof that Dr. Abay departed from the standard of care and was, therefore, admissible under K.S.A. 60-407(f) because “all relevant evidence is admissible.”
Morgan emphasizes that the trial court abused its discretion in prohibiting the exhibit from being viewed by the jury during deliberations. He asserts that once Exhibit 13 was admitted into evidence and utilized by Morgan in his case in chief, the trial court was not justified in keeping it from the jury’s consideration. In the conclusion of his brief he states that “[t]his Court must reverse the trial court’s ruling in this matter.” We assume he seeks a new trial.
Dr. Abay counters by observing that Exhibit 13 was displayed to the jury during the course of the trial. He reasons that whether items are allowed in the jury room during deliberations is a matter within the sound discretion of the trial court. See Mackey v. Board of County Commissioners, 185 Kan. 139, 152-53, 341 P.2d 1050 (1959). According to Dr. Abay, after allowing Morgan’s counsel full use of Exhibit 13 as a demonstrative aid, the fact that it was not allowed in the jury room is hardly an abuse of the trial judge’s discretion warranting a new trial. Dr. Abay emphasizes that Morgan has failed to explain how he was prejudiced or how the jury was misled or confused.
Exhibit 13 was initially mentioned and used during the testimony of Morgan’s expert, Dr. Austin. Immediately thereafter, a discussion regarding the exhibit occurred off the record. Testimony then continued and was interrupted by Dr. Abay’s counsel:
“MR. AUSTERMAN: Pardon me, Your Honor, sorry to interrupt, but for the record I would lodge our objection at this time to the drawing as being anatomically inaccurate and inappropriate to depict the structures and/ or glands that are displayed there.
“THE COURT: Well, Court’s previously gone over with counsel matters with respect to this exhibit, and Court will overrule the objection and exhibit will be received for what it is worth.”
Exhibit 13 is neither listed in the appeal record volume index nor included in the record on appeal. Consequently, we are not able to evaluate it. During oral argument, counsel for both parties stated it was admitted at trial. The exhibit was displayed during Morgan’s oral argument before this court; however, it was neither left with the Clerk of the Appellate Courts nor added to the record. We have had no opportunity to examine Exhibit 13.
Exhibit 13 was again spoken of near the end of the trial when the attorneys were cleaning up their exhibit admissions. No objection was made when the trial judge explained that he was not going to let several exhibits (apparently including Exhibit 13) go to the jury room.
In State v. Fenton, 228 Kan. 658, 667, 620 P.2d 813 (1980), Fenton contended that the trial court erred in allowing the jury to view exhibits a second time prior to its deliberations with only the bailiff in charge to supervise the viewing. We found that once a case is submitted to the jury, the jury is ordinarily given the exhibits to take into the jury room where the jurors can examine the exhibits as many times as they desire. The manner in which exhibits are handled at trial is within the trial court’s discretion, and the exercise of that discretion will not be disturbed on appeal except in cases of abuse. Fenton had not demonstrated prejudice as a result of a second viewing. 228 Kan. at 667.
In State v. Poulos & Perez, 230 Kan. 512, 639 P.2d 477 (1982), we found no abuse of discretion in the trial court permitting the jury to listen, in the jury room, to an audio tape recording that had been admitted into evidence. 230 Kan. at 514.
The record does not provide us with the reasons the exhibit was excluded from deliberations. The jury had an opportunity to view the exhibit and formulate opinions during the course of Dr. Austin’s testimony. Exhibit 13 was admitted, at trial and, in our view, should have gone to the jury room. However, Morgan has not demonstrated how its exclusion from the jury room resulted in prejudice. We conclude the exclusion was error, but absent a showing of prejudice, the error was harmless. Under the facts of the case at bar, we find no abuse of discretion.
Affirmed. | [
17,
-24,
-19,
-66,
24,
98,
10,
10,
101,
35,
55,
83,
-83,
-53,
-108,
47,
-93,
111,
64,
-29,
-42,
-93,
3,
96,
-46,
-5,
114,
-61,
-79,
-50,
-12,
-99,
77,
40,
-126,
-107,
-26,
75,
-83,
84,
-50,
-126,
-71,
101,
81,
-96,
112,
54,
-34,
71,
81,
30,
-63,
-84,
63,
-49,
-23,
32,
107,
61,
-48,
-112,
-128,
13,
-19,
16,
-78,
38,
-101,
7,
-38,
60,
-46,
-71,
0,
-84,
115,
-74,
-62,
52,
44,
-67,
4,
98,
98,
32,
29,
-115,
105,
-72,
15,
-65,
29,
-91,
-101,
77,
-55,
-119,
-73,
-23,
127,
24,
-116,
120,
-11,
85,
30,
108,
11,
-97,
-110,
-77,
-33,
53,
-100,
-53,
-5,
79,
16,
81,
-49,
-16,
84,
7,
123,
27,
-66,
-108
]
|
The opinion of the court was delivered by
Davis, J.:
The State of Kansas appeals the dismissal of a charge of aiding a felon. The trial court determined that because the defendant had aided a juvenile whose felonious act did not fit the definition of a felony under K.S.A. 21-3105(1), the information failed to state an offense. The State contends that the defendant, Thomas R. Busse, aided a juvenile who committed a felonious act and that the information was sufficient to state an offense. We reverse and remand for trial.
The issue is whether the State may charge an adult with aiding a felon under K.S.A. 21-3812(a) based on allegations that the adult aided a juvenile who committed an act that would be a felony if committed by an adult.
The State charged Thomas R. Busse with aiding a felon in violation of K.S.A. 21-3812(a), which provides:
“Aiding a felon is knowingly harboring, concealing or aiding any person who has committed a felony under the laws of this state or another state or the United States with intent that such person shall avoid or escape from arrest, trial, conviction or punishment for such felony.” (Emphasis supplied.)
The crime charged is best understood in terms of the common-law crime of accessory after the fact. Originally, one who was charged as an accessory after the fact was punished as a principal. Today, by statute, most jurisdictions define the crime of accessory after the fact as a separate, distinct crime carrying a lesser punishment. As noted by this court in State v. Rider, Edens & Lemons, 229 Kan. 394, 401-02, 625 P.2d 425 (1981):
“Three conditions were required to render one guilty as an accessory after the fact, and the same conditions are required to render one guilty of aiding a felon under 21-3812(a). The felony must be complete, the accused must have knowledge that the principal committed the felony, and the accused must act with the intent to enable the principal to avoid or escape from arrest, trial, conviction or punishment for the felony. See State v. Johnson, 142 Kan. 621, 623, 50 P.2d 975 (1935); State v. Marr, 136 Kan. 602, 16 P.2d 469 (1932); 22 C.J.S., Criminal Law § 95-99, p. 273-79; Perkins on Criminal Law, p. 667 (2d ed. 1969); and PIK Crim. 60.13.”
The allegations charging the defendant fulfill the above three conditions:
(1) The information alleges that the felony was complete in that the juvenile “committed an act which would constitute a felony, to-wit: Aggravated Battery, as defined by K.S.A. 21-3414, if charged under the adult criminal code”;
(2) the information alleges that the defendant knew the principal committed the felony in that the defendant did “unlawfully, willfully, knowingly and feloniously harbor, conceal or aid a person, to-wit: M.W.A., who committed an act which would constitute a felony”; and
(3) the information alleges that the accused did the above “with the intent . . . that M.W.A., avoid or escape from arrest, trial, adjudication as a Juvenile Offender, or punishment for said felony, in violation of K.S.A. 21-3812, a class E felony.”
Thus, the information alleges all conditions required for the separate crime of aiding a felon. If an adult had committed the aggravated battery, there would be no basis for challenging the information.
K.S.A. 21-3105(1) defines a felony as a crime “punishable by death or by imprisonment in any state penal institution.” K.S.A. 1992 Supp. 38-1602 defines “juvenile offender” as a “person who does an act while a juvenile which if done by an adult would constitute the commission of a felony ... as defined by K.S.A. 21-3105 and amendments thereto.”
The sole basis for dismissal was the “juvenile offender” status of the person who was aided. The information alleges that the defendant aided a person who committed aggravated battery. Because the one who committed the aggravated battery was a juvenile whose offense did not fit the definition of felony under K.S.A. 21-3105(1), the defendant claims that he did not aid a felon, but rather aided a “juvenile offender.” Because K.S.A. 21-3812 does not expressly prohibit aiding a juvenile offender, defendant claims the charge fails to state a crime.
The question raised is novel and involves an interpretation of K.S.A. 21-3812(a). We acknowledge that a strict and literal reading of K.S.A. 21-3812(a) does not expressly reach the situation involved in this case in that it prohibits aiding a person “who has committed a felony.” The definition of felony in K.S.A. 21-3105(1) does not encompass juvenile offenses; it defines felony as a crime punishable by death or imprisonment in a penal institution. Yet, we cannot ignore that the juvenile committed a felonious act of aggravated battery as that conduct is defined in K.S.A. 21-3414.
We do not believe that the legislature intended to exclude adults aiding juveniles who commit felonious acts from the provisions of K.S.A. 21-3812(a). The very language in K.S.A. 21-3812(a) supports this result. The statute prohibits aiding any person who has committed a felony. The felonious conduct of the one aided, not the status of the one aided, triggers the applicability of K.S.A. 21-3812(a).
We acknowledge that the definition of “felony” in K.S.A. 21-3105 does not expressly include juvenile offenses. The defendant relies on this definition to support his claim that if the legislature had intended K.S.A. 21-3812(a) to prohibit aiding one who has committed a juvenile offense, it could have expressly so provided. We agree that the legislature could have been more explicit, but we disagree that in the absence of that specificity, the statute does not proscribe the defendant’s aid to the juvenile.
It is the juvenile offenders code that brings into question the applicability of K.S.A. 21-3812(a) to the defendant’s conduct. It is the juvenile offenders code that provides that proceedings thereunder shall not be “deemed ... to import a criminal act on the part of any juvenile.” K.S.A. 38-1601. It is the juvenile offenders code that defines juveniles who engage in felonious acts as “juvenile offenders” rather than felons and that authorizes certain disposition of juvenile offenders. K.S.A. 1992 Supp. 38-1602(b); K.S.A. 1992 Supp. 38-1663. The juvenile offenders code, however, was enacted for the benefit of the juvenile. This case charges a separate crime committed by an adult. It would serve no useful purpose to allow the status granted to a juvenile to inure to the benefit of an adult who aided a juvenile who committed a felonious act.
“[T]he fundamental rule of statutory construction, to which all others are subordinate, is that the purpose and intent of the legislature governs when that intent can be ascertained from the statute, even though words, phrases, or clauses at some place in the statute must be omitted or inserted.” State v. Micheaux, 242 Kan. 192, 199, 747 P.2d 784 (1987).
K.S.A. 21-3812(a) makes it unlawful to aid one who has committed a felonious act with intent that the person aided should avoid detection. The juvenile status of the one committing the felonious act is immaterial to accomplishing the object of the legislation. To allow an adult who aids a juvenile offender to avoid prosecution undermines “the purpose to be accomplished [by K.S.A. 21-3812(a)] and the . . . effect of the statute.” See State v. Keeley, 236 Kan. 555, Syl. ¶ 2, 694 P.2d 422 (1985). The juvenile in this case engaged in conduct that the legislature has seen fit to classify as a class C felony. K.S.A. 21-3414. The purpose of K.S.A. 21-3812(a) is to make it unlawful to aid someone who has engaged in felonious conduct with the intent to help such person avoid detection. To excuse an adult who aids a juvenile who has engaged in such conduct defeats the purpose of K.S.A. 21-3812(a). We hasten to add that interpreting K.S.A. 21-3812(a) to include aiding juvenile offenders in no way undermines the benefits and protection that the juvenile offenders code extends to the young offender.
We also may consider the effect of the statute under the various suggested constructions. See, e.g., State v. Thompson, 237 Kan. 562, 563, 701 P.2d 694 (1985). Following defendant’s interpretation to its logical conclusion, one might conclude that hiring a juvenile rather than an adult to commit a felony would prevent the State from charging the adult with liability for crimes of another, solicitation, or conspiracy because the juvenile could not be considered to have committed a crime or a felony. See K.S.A. 1992 Supp. 21-3205; K.S.A. 21-3303; K.S.A. 21-3302.
We acknowledge and adhere to the principle that criminal statutes should be strictly construed in order that people be put on notice of what conduct is proscribed by the law. See State v. Bishop, 215 Kan. 481, 483, 524 P.2d 712 (1974). We note that defendant’s proffered construction may not afford adequate notice. Under the construction defendant urges, an adult who aided a juvenile could not initially be charged under K.S.A. 21-3812(a), but if that same juvenile later was certified to stand trial as an adult, then the adult who aided him could be charged. The court’s certification of the juvenile, after the act, could allow the charge to be filed against the adult who rendered aid. This analysis emphasizes the importance of focusing on the felonious conduct rather than the status of the one who engaged in the felonious conduct.
All parties to this action acknowledge that the defendant was charged with an offense under K.S.A. 21-3812(a). The three required criteria are set forth in the charging document. The defendant seeks a strict, literal interpretation of the statute that ignores the object of the statute. A reasonable and sensible construction of 21-3812(a) is called for in this case. We do not depart from the basic rule that penal statutes are to be strictly construed in favor of the accused. “This rule of strict construction, however, is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent.” State v. Tyler, 251 Kan. 616, 641-42, 840 P.2d 413 (1992); accord State v. Carmichael, 240 Kan. 149, 159, 727 P.2d 918 (1986). The legislative design and intent of K.S.A. 21-3812(a) is to make it unlawful to aid one who has engaged in felonious conduct. In this case, the State alleged that the defendant aided a juvenile who had engaged in felonious conduct, that is, he committed aggravated battery as defined by K.S.A. 21-3414. We hold that the information in this case alleges an offense under K.S.A. 21-3812(a).
Reversed and remanded for trial. | [
-112,
-24,
-3,
60,
10,
96,
42,
56,
-127,
-13,
103,
83,
-23,
-56,
1,
121,
-35,
109,
85,
123,
-29,
-73,
55,
-47,
118,
-77,
-48,
-41,
-73,
-51,
126,
-105,
13,
-16,
-118,
-11,
38,
75,
37,
-110,
-118,
5,
40,
83,
-47,
-117,
36,
103,
54,
10,
49,
30,
-77,
42,
54,
66,
41,
40,
76,
-75,
-56,
-112,
-117,
-107,
-5,
80,
-93,
4,
-100,
5,
80,
36,
-104,
121,
1,
-23,
-5,
-106,
2,
-12,
75,
-103,
-24,
98,
98,
35,
61,
-83,
-72,
-55,
46,
55,
-99,
-89,
-39,
72,
71,
-84,
-105,
-35,
119,
116,
34,
-8,
-31,
4,
19,
-20,
11,
-114,
-4,
-109,
-115,
52,
74,
-69,
-5,
1,
49,
117,
-50,
-26,
84,
117,
120,
-109,
-114,
-107
]
|
The opinion of the court was delivered by
Herd, J.:
This is a direct appeal by Roy E. Humphrey from his convictions of one count of first-degree murder, K.S.A. 1991 Supp. 21-3401; one count of aggravated assault, K.S.A. 21-3410; two counts of attempted first-degree murder, K.S.A. 1991 Supp. 21-3301 and K.S.A. 1991 Supp. 21-3401; and one count of unlawful possession of a firearm, K.S.A. 1991 Supp. 21-4204.
FACTS
The day before Thanksgiving, November 1987, Tony Gray and his wife, Tina Gray, arrived in Garden City from San Francisco. They intended to assist Roy E. Humphrey in the manufacture of methamphetamine. Humphrey had paid the Grays’ bus fare to Kansas and allowed them to stay at his house. About two weeks later, Tina’s stepbrother, Gary McFadden, arrived to assist in the illegal drug operation.
Sandra Bell and her three children lived in a trailer behind Humphrey’s house. Bell worked for Humphrey selling cocaine. Humphrey had traded cocaine for a nine millimeter semi-automatic handgun for which Bell had signed the receipt. Humphrey was on parole at the time and, therefore, was not allowed to own a gun. After getting the gun, he carried it with him almost continuously.
Humphrey did not like McFadden and threatened him on a daily basis during December 1987. For example, Humphrey criticized one of Bell’s children while the children were decorating a Christmas tree, and McFadden told Humphrey to let the children enjoy decorating the tree. This made Humphrey angry and he pulled out his gun and threatened McFadden. On another occasion, Humphrey was loading the clip for his gun and noticed one bullet was a different brand than the others. He accused McFadden of sabotaging his gun and announced the unique bullet was for McFadden.
In order to begin the manufacturing of methamphetamine, Tina, using the name Renee Grecco, ordered the necessary chemicals and glassware from Texas. The day the glassware arrived, Tina and Humphrey had been on a run for three days — meaning they had taken drugs in amounts large enough that they had not slept for three days. That afternoon Bell and another woman, Pat Mendivil, were in and out of Humphrey’s house. In the evening, Jamie Jones arrived with her five-year-old daughter, Euniece, whose father is Humphrey. Throughout the afternoon and evening, all the adults present were injecting cocaine, drinking liquor, and smoking marijuana. All evening, Humphrey argued with Jones; he slapped her, kicked her, and pointed the gun at her. Jones appeared terrified.
At about 3:00 a.m. on December 22, 1987, Humphrey decided it was time to make the methamphetamine even though they did not have all the necessary chemicals and equipment. Humphrey ordered Tony and Tina at gunpoint to take all the chemicals and glassware out of the bedroom and put them in the kitchen. While this was going on, McFadden entered the house. Tony warned him to stay away from Humphrey. McFadden then went into the living room and sat down. Soon afterward Humphrey pointed his gun at Jones’ head and said, “I’m not going to kill — I’m not going to do nothing but beat you, but I’m going to kill them.” He then turned and fired once at McFadden, who was a few feet away. The bullet hit McFadden in the head, killing him. At trial, Jones testified she was not scared when Humphrey was holding the gun near her head because she did not believe he would use it.
Humphrey turned the gun toward Tony, who lunged at Humphrey and tried to pin him down. Jones took her daughter and left. Tony released Humphrey, who asked Tina if she wanted him to “kill McFadden again.” Humphrey then announced he would have to kill the Grays because they were witnesses. Humphrey made them go outside and walk toward a field behind the house. Tina asked if she could overdose on drugs rather than be shot and Humphrey agreed. While Humphrey was retrieving cocaine from a pouch he was carrying, Tony was able to get the gun.
Humphrey returned to the house where he fell asleep on the couch, across the room from McFadden’s body. The Grays went to Bell’s trailer to get her and her children away from the area. Before leaving town, Tina called her sister in Texas to notify her of McFadden’s death, and Tina’s sister reported the crime to the Garden City Police Department.
Later on that same day, Humphrey wrapped McFadden’s body in a curtain and loaded it into a pickup truck parked at his house. Early the following morning, Humphrey moved the body to the back of a borrowed van. With his friend, Jesse James Jones, Humphrey took the body to some sand pits about a half mile from his house and buried it in a shallow grave.
In January 1988, Humphrey was taken into custody on a warrant issued in June 1987 for the sale of cocaine. When Mendivil went to see him in jail on January 17, 1988, Humphrey asked her to kill Jamie Jones with a drug overdose and to take Euniece to the Mexico border and abandon her. Humphrey also told her where to find McFadden’s body, directed her on how to draw a map of its location, and asked her to go to Sylvester Guebara and tell him to move the body out of the state. Guebara, however, refused to help, and Mendivil took the map to Michael Utz, a Garden City Police Department investigator. With the information from Mendivil, the police department was able to find McFadden’s body.
On May 25, 1988, Humphrey was found not guilty on the sale of cocaine charges. Earlier that month, a preliminary hearing was held on the charges against him arising out of the death of McFadden, in case number 88-CR-66. He was arraigned the following month on a six-count information. That case, however, was dismissed, and the instant case, case number 89-CR-166, was filed February 10, 1989. That information contains the following 10 counts: felony murder while committing aggravated assault, or in the alternative premeditated first-degree murder, K.S.A. 21-3401, a class A felony; aggravated assault against Jamie Jones, K.S.A. 21-3410, a class D felony; aggravated assault against Tina Gray or in the alternative attempted premeditated murder of Tina Gray; attempted premeditated murder of Tony Gray, or in the alternative aggravated assault of Tony Gray; kidnapping of Tina Gray, K.S.A. 21-3420, a class B felony; kidnapping of Tony Gray; and the unlawful possession of a firearm, K.S.A. 21-4204, a class D felony.
Humphrey’s trial began June 19, 1989. Humphrey’s attorney argued Humphrey did not intend to shoot McFadden; instead he claimed the killing was accidental. Jamie Jones supported the defendant’s claim by testifying she was not aware McFadden was sitting in the chair at the time Humphrey turned and fired the gun. The jury found Humphrey guilty of first-degree murder, one count of aggravated assault, two counts of attempted first-degree murder, and one count of unlawful possession of a firearm.
Other facts will be developed as needed in discussing the issues.
I
First, Humphrey argues the State did not properly charge him because the underlying felony of aggravated assault merged into the charge of felony murder.
Recently, we discussed the felony-murder doctrine and made the following observations:
“The puipose of the felony-murder doctrine is to deter those engaged in felonies from killing negligently or accidentally, and the doctrine should not be extended beyond its rational function which it was designed to serve.
“In order to apply the felony-murder doctrine: (1) the underlying felony must be one which is inherently dangerous to human life; and (2) the elements of the underlying felony must be so distinct from the homicide so as not to be an ingredient of the homicide.
“In determining whether an underlying felony is inherently dangerous to human life so as to justify a charge of felony murder, the elements of the underlying felony should be viewed in the abstract, and the circumstances of the commission of the felony should not be considered in making the determination.
“Time, distance, and the causal relationship between the underlying felony and the killing are factors to be considered in determining whether the killing is a part of the felony, and, therefore, subject to the felony-murder rule.” State v. Prouse, 244 Kan. 292, Syl. ¶¶ 3-6, 767 P.2d 1308 (1989).
Thus, if a homicide occurs during the commission of an independent, life-threatening felony, the felony-murder statute applies. The merger doctrine, however, prevents the prosecution from charging felony murder and a collateral felony if the only felonious conduct is the cause of the victim’s death. For example, if a defendant commits an aggravated battery which results in the death of the victim, the defendant cannot be charged with felony murder and aggravated battery. 244 Kan. at 296-97.
For support, Humphrey cites State v. Leonard, 248 Kan. 427, 807 P.2d 81 (1991). In Leonard, the defendant drove through a parking lot with a semi-truck and killed a man. The State charged the defendant with first-degree murder committed while perpetrating the felony of aggravated assault against numerous individuals other than the ultimate victim. The trial court dismissed the felony-murder charge on the grounds that the underlying felony of aggravated assault merged with the felony murder. We affirmed the trial court and stated: “Leonard’s one act of driving the semi-truck through the crowd is the basis for both charges. This one act is not separated in time and distance. The one act caused the killing. Because there was only one act, the elements of aggravated assault are not distinct from the homicide. The aggravated assault charges merged with the felony-murder charge.” 248 Kan. at 431.
The State contends the shooting did not occur at the same time Humphrey was making his general threat to everyone in the house. Humphrey was specifically threatening Jamie Jones by pointing a loaded gun at her head. He then turned and fired the single shot that hit McFadden. Therefore, the State argues, two acts separated in time and distance were involved — the aggravated assault of Jamie Jones and the homicide of McFadden. Because there were two acts, the elements of aggravated assault are distinct from McFadden’s homicide.
We agree and hold the aggravated assault of Jamie Jones did not merge with the killing of McFadden. Thus, this issue is without merit.
II
Next, Humphrey claims the trial court violated his Sixth and Fourteenth Amendment rights when it refused to allow him to call an expert witness because he had invoked his Fifth Amendment right not to testify on his own behalf.
In September 1988, Humphrey was interviewed by Dr. Herbert C. Modlin, a psychiatrist at the Menninger Clinic. At that time, 88-CR-66 was pending against Humphrey, and his competency to stand trial as well as his sanity on the date of the alleged crimes had been brought into issue. Dr. Modlin prepared a report which stated in part:
“Mental and emotional changes from sleep [deprivation] of 100 hours or more are usually dramatic and incapacitating. They include fatigue, irritability, feelings of persecution, poor concentration, misperceptions (hallucinations), and disorientation. . . .
“The data support Mr. H’s contention that the shooting was accidental. His paranoid suspicions did not include anyone in the house including Gary [McFadden], There is suggestive evidence that the gun could have gone off accidentally because of Mr. H’s poor motor coordination. Just before 12/ 22 he started drinking whiskey in the hope that it would control his jitteriness, but it probably made things worse.”
After Dr. Modlin completed this report, he was provided with transcripts of the preliminary hearings as well as the deposition of Tony Gray and a statement made by Tina Gray.
At trial, Humphrey attempted to call Dr. Modlin as a witness in his case in chief. In a hearing outside the presence of the jury, Humphrey’s attorney stated Humphrey would be willing to take the stand, but his testimony on direct examination would be limited to a few questions that could be answered with yes or no. Thus, Humphrey would be available for cross-examination but only as to the limited areas opened on direct. The trial court acknowledged Humphrey’s right to refuse to testify; however, the judge stated the questions on direct would not limit cross-examination into other areas. Ultimately, the trial court ruled that if Dr. Modlin was called as a witness and testified to the contents of his September 1988 report, Humphrey would have to be available for cross-examination on whatever Humphrey told Dr. Modlin which assisted Modlin in arriving at his expert opinion.
Humphrey contends the exclusion of Dr. Modlin’s testimony violated his right under the Sixth and Fourteenth Amendments to present a defense. See California v. Trombetta, 467 U.S. 479, 485, 81 L. Ed. 2d 413, 104 S. Ct. 2528 (1984); Washington v. Texas, 388 U.S. 14, 18-19, 18 L. Ed. 2d 1019, 87 S. Ct. 1920 (1967).
The State counters Humphrey’s argument by first pointing out the admission of evidence lies within the sound discretion of the trial court, subject to exclusionary rules. State v. Carmichael, 240 Kan. 149, 157, 727 P.2d 918 (1986). “The admissibility of expert testimony lies within the sound discretion of the trial court and its determination will not be reversed on appeal absent a showing of an abuse of discretion.” State v. Stuckey, 242 Kan. 204, Syl. ¶ 1, 747 P.2d 137 (1987). Second, K.S.A. 60-456 governs the admissibility of expert opinion evidence. That statute states in pertinent part:
“(b) If the witness is testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to such opinions as the judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience or training possessed by the witness.
“(d) Testimony in the form of opinions or inferences otherwise admissible under this article is not objectionable because it embraces the ultimate issue or issues to be decided by the trier of fact.”
In State v. Irons, 250 Kan. 302, Syl. ¶ 2, 827 P.2d 722 (1992), we stated it is fundamental to a fair trial that the accused be afforded the opportunity to present his or her theory of defense to the charge so the jury may properly weigh the evidence and reach its verdict. Here, Humphrey wished to present expert testimony. The trial court, however, would not allow Dr. Modlin’s testimony because it concluded Dr. Modlin’s testimony or opinion was based upon hearsay. We do not agree.
“Evidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated, is hearsay evidence.” K.S.A. 1991 Supp. 60-460. Hearsay evidence is inadmissible except under statutory exceptions. If Dr. Modlin had been allowed to testify, he would have been called upon to repeat the statements Humphrey made to him during his examination of Humphrey. Modlin’s testimony as to Humphrey’s statements during trial would not be offered to prove the truth of the matter stated. Instead, Humphrey’s statements would be offered to establish the basis of Modlin’s expert opinion. Dr. Modlin, as a trained psychiatrist, could use Humphrey’s statements with other facts and his own expertise to arrive at an opinion of Humphrey’s mental state at the time the shooting occurred. Thus, Modlin’s testimony would not have been hearsay. Humphrey’s statements are part of the data perceived by or made known to Dr. Modlin and meet the requirements of K.S.A. 60-456(b).
Our decision is supported by United States v. Baird, 414 F.2d 700 (2d Cir. 1969), cert, denied 396 U.S. 1005 (1970), in which the court stated:
“ ‘It is obvious, even to the layman, that in all probability a psychiatrist would require more than a mere physical examination of a defendant in order to reach a conclusion of his sanity or insanity. The very nature of the psychiatric study would seem to call for utterances, or answers through conversation with the alleged incompetent. The psychiatric interview is the basic diagnostic tool.’
“ “There seems to be a tendency elsewhere in insanity cases to allow the defense psychiatrist to recount the full history obtained from the defendant regardless of its hearsay or self-serving quality, so long as the doctor regards it as essential to the formulation of his expert opinion. If he so regards the history, the test of admissibility is satisfied. The thesis is that such conversations with and statements by the defendant, whether or not they relate to the crime itself, are verbal acts; circumstantial evidence for or against the claim of insanity. They do not come in as evidence of the truth of the facts asserted but rather, and only, as part of the means employed by the doctor in testing the accused’s rationality, mental organization and coherence. They are object-like factors used to ascertain mental abnormality or the reverse.’ [Citation omitted.]
“The statements which the defendant makes to the psychiatrist may be as vital for diagnosis as an x-ray or a blood test may be to a physician in another context; this was the theory of admissibility upon which appellant relied in having his expert witnesses recount otherwise inadmissible self-serving, hearsay statements; and, even though they are verbal, they may be considered as ‘real or physical evidence’ rather than as ‘communications’ or ‘testimony’ within the meaning of Schmerber v. California, 384 U.S. 757, 763-64, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966) . . . .” 414 F.2d at 708-09 (quoting State v. Whitlow, 45 N.J. 3, 210 A.2d 763 [1965]).
The State argues State v. Hobson, 234 Kan. 133, 161, 671 P.2d 1365 (1983), supports the district court's ruling in this case. In Hobson, we held expert testimony was properly excluded because it embraced the ultimate issue to be determined by the jury. Here, the expert testimony of Dr. Modlin was proffered for the limited purpose of explaining to the jury that use of drugs, alcohol, and loss of sleep could have so diminished Humphrey’s capacity he could not have had the specific intent to commit premeditated murder. Thus, this issue is distinguishable from and not controlled by Hobson.
We hold it was error for the trial court to refuse to allow Humphrey to call Dr. Modlin because Humphrey had asserted his Fifth Amendment right to refuse to testify in his own behalf. The trial court denied Humphrey his right to present his theory of defense; therefore, this case must be reversed and remanded for a new trial. On retrial, if Dr. Modlin is called to testify, he is subject to cross-examination on any information upon which he based his opinion. See State v. Pyle, 216 Kan. 423, 442, 532 P.2d 1309 (1975).
Ill
Humphrey argues the trial court denied him his Sixth Amendment right to effective assistance of counsel. First, Humphrey contends the trial court denied his right to effective assistance of counsel when it restricted his attorney’s ability to elicit testimony from Dr. Modlin.
In light of our holding on issue II this contention needs no further discussion.
Humphrey also claims his right to effective assistance of counsel was violated by the trial court when it restricted his attorney’s ability to cross-examine Pat Mendivil. At trial, Humphrey attempted to cross-examine Mendivil as to whether she had received immunity from the State in exchange for her testimony. On direct examination by the State the following exchange took place:
“Q: Now, at this time, ma’am, were you working for the police?
“A: No.
“Q: Okay. Did the police send you up there to get that map?
“A: No.
“Q: Prior to this were you working for the police?
“A: No.
“Q: Okay. You been granted immunity or any type of deal for your testimony in this case?
“A: No.”
The following exchange took place on cross-examination:
“Q: Pat, you stated on direct that you’ve not been granted any immunity— “A: Immunity, no.
“Q: —for you to testify today. Were you aware that possession of coke—
“MR. HOUGH: Objection; this is irrelevant.
“THE COURT: Objection sustained.
"Q: Are you — are you presently working for the police?
“MR. HOUGH: Objection; this is irrelevant, it’s immaterial.
“THE COURT: Objection sustained.
“MR. LEVY: Your honor, I have this witness under subpoena. I have no cross — no further cross.”
The Confrontation Clause of the Sixth Amendment affords an accused the right to cross-examination. The United States Supreme Court has “recognized that the exposure of a witness’ motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.” Davis v. Alaska, 415 U.S. 308, 316-17, 39 L. Ed. 2d 347, 94 S. Ct. 1105 (1974). “[T]he right to the effective assistance of counsel is recognized not for its own sake, but because of the effect it has on the ability of the accused to receive a fair trial. Absent some effect of challenged conduct on the reliability of the trial process, the Sixth Amendment guarantee is generally not implicated.” United States v. Cronic, 466 U.S. 648, 658, 80 L. Ed. 2d 657, 104 S. Ct. 2039 (1984). In certain circumstances, however, the denial of effective cross-examination amounts to constitutional error of such magnitude that no showing of prejudice is required for reversal. Davis, 415 U.S. at 318.
Humphrey argues Mendivil’s testimony was critical. She testified that Humphrey acknowledged the killing, wanted Jamie Jones killed, and asked Mendivil to assist in getting the body moved. Humphrey’s attorney asked Mendivil if she had been granted immunity and she answered, “No.” On cross-examination, the trial court did not allow Mendivil to answer the question of whether she was presently working for the police.
Humphrey should have been afforded the opportunity to vigorously test Mendivil’s credibility by cross-examining her about her relationship with the police. This might have led to a disclosure of an implied threat made by Utz. Rather than this error being ineffective assistance of counsel, we find it is trial court error which rendered trial counsel ineffective through no fault of counsel.
IV
Humphrey next argues the trial court committed judicial misconduct and violated his rights when it heard statements from one of the State’s witnesses in camera. Humphrey raises three arguments. First, the trial court violated his right pursuant to the Sixth Amendment and K.S.A. 22-3405 to be present at a critical stage of the trial. Second, Humphrey contends the trial court violated his Sixth Amendment right to effectively confront and cross-examine witnesses at trial. Third, the trial court erred in denying Humphrey’s motions for mistrial.
Each of these arguments will be addressed after a recitation of the pertinent facts.
At trial, the State called Pat Mendivil in its case in chief. During cross-examination, Mendivil testified that the police had not threatened her in any way to give them information. Humphrey’s attorney then attempted to question her about threats by the police to take her baby away, but the court sustained a series of objections by the State. Humphrey’s attorney also asked Mendivil if she was presently working for the police. The State objected on the grounds the question was irrelevant and immaterial. The trial court sustained the State’s objection.
After the close of the State’s case, a private attorney, Charles E. Owen, II, appeared in chambers with Mendivil. Neither the State, Humphrey’s attorney, nor Humphrey were present at this conference. Mendivil waived any attorney-client privilege regarding any statements she made to Owen, and Owen informed the trial judge that Mendivil might have perjured herself when responding to at least two questions. Specifically, Mendivil had testified that no threats had been made to secure her testimony, when in fact Detective Utz had implied that bad check charges could be brought against her if she did not testify. In addition, the State’s attorney specifically told Mendivil not to testify that Humphrey had been on drugs for two or three days prior to the shooting.
The trial court appointed counsel for Mendivil so she could consult with an attorney about whether to approach Humphrey’s attorney or the State before she was called in Humphrey’s case in chief. The trial court reserved any ruling on whether the information should be disclosed to Humphrey or the State. The court, however, stated, “It will ultimately be disclosed because I have to disclose. It’s just a question of what stage of the proceedings I disclose what happened in here.”
The following day, Humphrey proceeded with his case but did not call Mendivil as a witness. After Humphrey had rested his case and the State had called its rebuttal witnesses, the trial court held a hearing, outside the presence of the jury, with the State’s attorney, Humphrey, Humphrey’s attorney, Mendivil, and Mendivil’s attorney. The trial judge explained what had occurred during the in camera hearing. At this hearing, Mendivil stated that the State’s attorney had not specifically told her to testify that Humphrey had not been taking drugs. Instead, he had made her feel that was the testimony he wanted. The trial judge then explained that he had reviewed Mendivil’s trial testimony with his court reporter. The court stated:
“And even though [Humphrey’s attorney] may have asked his ultimate question, were you threatened, no, in relation to all the other of your testimony that I received at the trial of this matter it doesn’t reflect or show me that it would have any bearing or any change upon your testimony, because the thrust of your testimony if you’ll recall had to do with the map and you went to see Mr. Utz. He didn’t call you. You went to see him.”
Following a discussion of Mendivil’s testimony, Humphrey’s attorney moved for a mistrial. The court took the motion under advisement. The next day, Humphrey again moved for a mistrial. The trial judge stated he felt he was correct in not revealing the in camera conference with Mendivil
“because in my opinion she had not yet perjured herself to the point of any disadvantage would result to Mr. Humphrey. She was under subpoena and it was only then that she had in fact been called by [Humphrey’s attorney], and if I was under the impression that she may have perjured herself I would have made a disclosure and subjected her to further examination upon questions asked in cross-examination.
“Just because she made a statement had she been threatened, said no, does not preclude defense , counsel from asking about any behavior of Tony Gray, Tina Gray, Roy Humphrey, Gary McFadden, Sandra Bell or any other individuals who might have been in and about those premises on December 21 and 22, 1987; and for the Court to presume that this precluded the defendant the right to ask those questions would be in my opinion error.”
The trial court continued to reserve any ruling on the motion for mistrial.
Humphrey claims the ex parte, in camera hearing with Mendivil and the trial court’s failure to disclose her possible misconduct violated his right to due process pursuant to the Fifth and Fourteenth Amendments and his right to be present at a critical stage of trial as guaranteed by the Sixth Amendment and stated in K.S.A. 22-3405. According to K.S.A. 22-3405(1) “[t]he defendant in a felony case shall be present at the arraignment, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by law.” Closely related to this argument is Humphrey’s contention that his Sixth Amendment right of confrontation was also violated.
Although ex parte communications between a trial judge and a witness in a criminal trial are not per se violations of a defendant’s due process rights, they create the appearance of partiality in a judicial proceeding and should be avoided. Grieco v. Meachum, 533 F.2d 713, 719 (1st Cir.), cert. denied 429 U.S. 858 (1976). The . importance of the defendant’s presence is also reflected in Canon 3A (4) of the Code of Judicial Conduct, which provides in part:
“A judge should accord to every person who is legally interested in a proceeding, or his lawyer, full right to be heard according to law, and, except as authorized by law, neither initiate nor consider ex parte or other communications concerning a pending or impending proceeding.” 1992 Kan. Ct. R. Annot. 348.
We, however, have stated:
“In general a defendant’s statutory and constitutional rights to be present are violated only if the defendant is absent when the jury is hearing the case or when he is prevented from attending such other proceedings where his presence is essential to a fair and just determination of a substantial issue.” State v. Turbeville, 235 Kan. 993, 1002, 686 P.2d 138 (1984).
The State has an affirmative duty to disclose to the court and opposing counsel irregularities at trial which prejudice the rights of the defendant. State v. Cady, 248 Kan. 743, 759, 811 P.2d 1130 (1991). The prosecution has a duty to disclose evidence that the defense could use to impeach the State’s witnesses by showing bias or interest. United States v. Bagley, 473 U.S. 667, 676, 87 L. Ed. 2d 481, 105 S. Ct. 3375 (1985). Although these cases involve the prosecution withholding evidence favorable to an ac cused, the trial court must follow the same rules. In fact, the trial court is held to an even higher standard because of its duty to remain impartial. See Canon 3 of the Code of Judicial Conduct (1992 Kan. Ct. R. Annot. 348).
The Confrontation Clause of the Sixth Amendment provides, “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” This right of confrontation has been applied to the States through the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 403, 13 L. Ed. 923, 85 S. Ct. 1065 (1965). The primary purpose of the Confrontation Clause is to give the accused the opportunity for cross-examination to attack the credibility of the State’s witnesses. State v. Johnson, 240 Kan. 326, 329, 729 P.2d 1169 (1986), cert. denied 481 U.S. 1071 (1987) (citing Delaware v. Van Arsdall, 475 U.S. 673, 89 L. Ed. 2d 674, 683, 106 S. Ct. 1431 [1986]); Davis v. Alaska, 415 U.S. 308, 315, 39 L. Ed. 2d 347, 94 S. Ct. 1105 [1974]). “By allowing criminal defendants to cross-examine witnesses and by allowing the trier of fact to evaluate the credibility of those witnesses, the right of confrontation promotes both the reliability of criminal trials and the perception of fairness in our criminal justice system.” Myatt v. Hannigan, 910 F.2d 680, 682 (10th Cir. 1990) (citing Lee v. Illinois, 476 U.S. 530, 540, 90 L. Ed. 2d 514, 106 S. Ct. 2056 [1986]).
In the case before us, upon being informed of the ex parte, in camera hearing, Humphrey’s attorney explained he had made a decision not to call Mendivil as a defense witness because she had testified Detective Utz had never threatened her. Had he been fully informed of the evidence Mendivil revealed in the ex parte hearing, Humphrey’s attorney could have called her to testify in Humphrey’s case in chief. Thus, the trial court’s decision not to disclose this information until after the defense had rested could have affected Humphrey’s trial strategy.
We hold the trial court violated Humphrey’s Sixth Amendment right to confrontation by withholding impeachment evidence and thereby interfered with Humphrey’s ability to effectively cross-examine Mendivil. Furthermore, the trial court should not have heard Mendivil’s statements in camera without having both the State and Humphrey present.
Finally, Humphrey contends the trial court erred when it denied his motions for mistrial. A trial court may order a mistrial if “[prejudicial conduct, in or outside the courtroom, makes it impossible to proceed with the trial without injustice to either the defendant or the prosecution.” K.S.A. 22-3423(l)(c). In light of our decision regarding the trial court’s violation of Humphrey’s Sixth Amendment rights, we agree that the court erred in denying Humphrey’s motion for a mistrial.
V
Humphrey claims the trial court erred when it failed to instruct the jury on the lesser included offense of involuntary manslaughter. Involuntary manslaughter is defined as “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.” K.S.A. 21-3404(a).
At trial, Humphrey argued for an instruction on involuntary manslaughter based upon his claim that the killing was unintentional and occurred during the commission of a lawful act in a wanton manner; that lawful act being Humphrey removing the gun from Jamie Jones’ face. The court, however, responded:
“The mere fact that one puts down a gun does not constitute a lawful act. You have to look at all the circumstances surrounding everything leading up to that particular point and to say that one is putting a gun down constitutes a lawful act in my opinion completely abrogates the intent of the statute and the intent of the law as mandated by our legislature.”
A trial court has a duty to instruct the jury on all lesser included offenses where there is evidence upon which the accused might reasonably be convicted of the lesser offense. K.S.A. 21-3107(3). In State v. Seelke, 221 Kan. 672, 561 P.2d 869 (1977), we thoroughly discussed murder cases in which the issue of whether an instruction on the lesser included offense of involuntary manslaughter had been raised. We pointed out that “[i]n some cases the homicide occurred under factual circumstances where there was no evidence of provocation or explanation or excuse and the evidence established that the defendant was either guilty of murder or nothing at all.” 221 Kan. at 677.
This case has a variable based upon the court’s ruling prohibiting the testimony of Dr. Modlin. At trial, Humphrey claimed the killing was accidental. On appeal, there is a dispute over whether he raised the defense of voluntary intoxication at trial. Clearly Humphrey intended to raise the issue of intoxication, drugs, and sleep loss at trial through the testimony of Dr. Modlin, which was improperly ruled inadmissible. The defense of voluntary intoxication requires proof that the intoxication was to such an extent that the defendant is utterly devoid of consciousness or awareness of what he is doing. State v. Falke, 237 Kan. 668, 683-84, 703 P.2d 1362 (1985). If Humphrey’s intoxication did not affect his ability to reason, to plan, to recall, or to exercise his motor skills, he has not met the standard for the voluntary intoxication defense. On retrial, Humphrey is entitled to an instruction on involuntary manslaughter if Dr. Modlin’s testimony lays the appropriate foundation.
VI
Humphrey claims the trial court erred when it admitted into evidence a statement he made, without first holding a hearing on the voluntariness of the statement pursuant to Jackson v. Denno, 378 U.S. 368, 12 L. Ed. 2d 908, 84 S. Ct. 1774 (1964).
On February 8, 1988, Humphrey was taken from the jail to the law enforcement center courtroom where a bond hearing was held in connection with the charges in this case. The magistrate set Humphrey’s bond at $1 million. As Humphrey was leaving the courtroom, a deputy sheriff overheard Humphrey state, “A million dollars for one. I suppose if I’d killed three I could get out on bond.” When the State attempted to bring in this testimony through the deputy sheriff, Humphrey objected because there had been no Jackson v. Denno hearing. The State proffered that Humphrey was not in custody or in any way being interrogated and that the statement was unsolicited. The trial court overruled Humphrey’s objection and allowed the deputy sheriff to testify. The deputy sheriff assumed Humphrey was referring to a Wichita homicide case in which the defendant was charged with killing three people. In Jackson, the United States Supreme Court stated:
“It is now axiomatic that a defendant in a criminal case is deprived of due process of law if his conviction is founded, in whole or in part, upon an involuntary confession, without regard for the truth or falsity of the confession, [citation omitted], and even though there is ample evidence aside from the confession to support the conviction. [Citations omitted.]” 378 U.S. at 376.
We find the statement made by Humphrey was not a confession and, therefore, does not fall under the Jackson v. Denno rule. Humphrey has never claimed he did not kill McFadden; instead, he has claimed the killing was accidental. Thus, the issue in this case has been whether Humphrey was legally culpable for the death of McFadden and not whether Humphrey killed McFadden.
We hold the trial court did not err in admitting Humphrey’s statement through the testimony of the deputy sheriff.
VII
Humphrey argues the trial court erred in ruling his trial attorney was effective even though the attorney did riot request an instruction on voluntary intoxication.
Humphrey docketed his appeal in March 1990. On November 13, 1990, Humphrey filed a motion requesting the case be temporarily remanded to the district court in order to consider his claim of ineffective assistance of counsel. This motion was granted, and the district court conducted a hearing on Humphrey’s claim of ineffective assistance of counsel on October 14, 1991. The district court did not order Humphrey to be transported in order to attend this hearing and, therefore, heard Humphrey’s arguments through his court-appointed counsel. The attorneys based their arguments upon preliminary hearing and trial transcripts, and no new evidence was presented. At that hearing, the district court stated:
“First and foremost, the defense was not voluntary intoxication. I sat through this trial. Sure there was use of cocaine. Sure there was use of alcohol. Sure there was use of marijuana. Sure there was deprivation of sleep. But the defense was not voluntary intoxication. The defense was I could not form the requisite intent to commit the crime of first-degree murder. ... I could not form the requisite intent to commit the crime of attempted first-degree murder. That was not the defense. The defense was straight out that I did not intend to kill Gary McFadden. Gary McFadden died as a result of an accident, period.”
Ultimately, the trial court denied Humphrey’s motion for a new trial.
The standard for determining ineffective assistance of counsel was established by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). In Strickland, the Court stated:
“First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” 466 U.S. at 687.
In Chamberlain v. State, 236 Kan. 650, 656-57, 694 P.2d 468 (1985), we adopted the Strickland two-prong test. Before we consider a defendant’s argument of ineffective assistance of counsel, the trial court must consider the argument and rule upon it. The appellate court places much deference upon the findings of the trial judge who saw all the proceedings first-hand as they happened. Chamberlain, 236 Kan. at 659-60. In the case before us, the trial court found Humphrey’s trial attorney did not fall below an objective standard of reasonableness. The trial court further found Humphrey’s trial attorney’s tactics and techniques had not so prejudiced Humphrey that he did not get a fair and impartial trial.
We agree. Thus, we hold the trial court did not err in ruling Humphrey’s trial attorney was not ineffective. The failure to request an instruction on voluntary intoxication was not the fault of trial counsel. That failure resulted from Dr. Modlin’s testimony being barred.
VIII
Humphrey argues the trial court denied him his right to due process when it refused to transport him to the hearing on his ineffective assistance of counsel claim. At the beginning of that hearing, the trial judge stated he could find no reason or basis for Humphrey to be present and pointed out the motion claiming ineffective assistance of counsel did not require a “full-blown evidentiary hearing as to any newly discovered matters.” Hum phrey’s attorney objected to this ruling. He argued Humphrey was familiar with his case and his presence could have been beneficial, especially because Humphrey had a different attorney at the hearing than he had had at trial.
A defendant’s right to be present does not extend to proceedings before the court involving matters of law. State v. Garcia, 233 Kan. 589, 595, 664 P.2d 1343 (1983). It is the majority view throughout this country that the presence of a convicted defendant is not required at a hearing on a postverdict motion for a new trial. “The rationale of the majority rule is that the trial ends when a verdict has been rendered, that any right which an accused may have to be present at proceedings following indictment continues only during the pendency of the trial, and that a defendant, once convicted, cannot expect to be present at postconviction motions.” State v. Bryant, 227 Kan. 385, 391, 607 P.2d 66 (1980).
We find the trial court did not abuse its discretion when it refused to transport Humphrey to the hearing on his ineffective assistance of counsel claim.
IX
Humphrey contends the trial court erred when it failed to preserve for review the closing arguments at his trial. Humphrey argues that by the court’s not preserving the closing arguments, he was denied his due process right to effective assistance of counsel on appeal and meaningful review of his claims, as guaranteed by the due process clause of the Fourteenth Amendment.
Following the instructions conference between the trial court and counsel, the following exchange occurred.
“THE COURT: Okay. May we enter into the usual stipulation that closing arguments will not be on the record unless there is a statement made by counsel and an objection? The Court will then dictate into the record the statement made by the attorney, the objection and the Court’s ruling.
“MR. HOUGH: Sufficient with the State, Your Honor.
“MR. LEVY: Be fine, Your Honor.”
Thus, closing statements were not recorded and are not available for review on appeal.
For support, Humphrey cites Supreme Court Rule 3.03 (1991 Kan. Ct. R. Annot. 14-15), which stated in pertinent part:
“When an appeal is taken in a case in which any evidentiary hearing was held, it shall be the duty of the appellant to order a transcript of such hearing within ten (10) days of the filing of the notice of appeal. ... In a criminal case, the transcript shall include the trial, the instructions conference, closing arguments of counsel, and any hearing on a motion for a new trial.” (Emphasis added.)
Rule 3.03, however, was amended effective August 30, 1990. At the time of the trial herein, the rule did not contain the requirement that a criminal case’s record on appeal include a transcript of closing arguments. See 1989 Kan. Ct. R. Annot. 15-16.
In view of the fact the State and Humphrey agreed not to make a record of the closing arguments and that the applicable version of Rule 3.03 did not require a transcript of closing arguments to be included in the record on appeal, we find the trial court did not err when it failed to preserve the closing arguments of Humphrey’s trial.
Our decision here is based upon Supreme Court Rule 3.03 in effect at the time of Humphrey’s trial and does not contradict our statements in State v. Lumbrera, 252 Kan. 54, 845 P.2d 609 (1992). In Lumbrera we discuss the most recent amendment to Supreme Court Rule 3.03, effective October 9, 1992. There, we acknowledge the importance of closing arguments, particularly in criminal cases, and state they should be of record.
X
In addition to the brief filed by the appellate defender’s office on behalf of Humphrey, Humphrey filed his own pro se brief in which he argues that the trial court lacked jurisdiction over him. First, Humphrey argues the trial court lacked jurisdiction over him because the State violated the speedy trial act, K.S.A. 22-3402. This argument is based upon Humphrey’s allegation that he was held in custody, awaiting trial, more than 90 days when the time chargeable to the State in the original case, 88-CR-66, is added to the time chargeable to the State in the current case, 89-CR-166.
We cannot consider this argument because the Finney County District Court file for case number 88-CR-66 has not been made a part of the record on appeal. Thus, Humphrey has failed to meet his burden of providing a sufficient record to show the trial court committed prejudicial error. See State v. Blackmore, 249 Kan. 668, 670, 822 P.2d 49 (1991). We hold this issue is without merit.
Humphrey also claims the trial court lacked jurisdiction because he was improperly charged. Humphrey bases this argument upon two theories. The first theory is that the charges of attempted premeditated murder of Tony and Tina Gray, counts four and seven, and in the alternative, aggravated assault against Tina and Tony Gray, counts five and eight, are duplicitous or multiplicitous. Humphrey’s second theory is that the information charging attempted premeditated murder is fatally defective and void. The information in pertinent part states: “[Humphrey] unlawfully, feloniously and willfully [committed] an overt act towards the perpetration of the crime of Premeditated Murder of Tina [Gray] on 12-22-87 as defined by Section 21-3401 K.S.A. with the intent to commit said crime, but failed in the perpetration thereof.” Humphrey asserts “[t]his information does not state what the overt act was nor does the information state why or how there was a failure in the perpetration thereof.”
We find Humphrey’s claims of duplicity or multiplicity and that the information is fatally defective and void are without merit.
XI
Humphrey argues the trial court erred in not giving a limiting jury instruction in response to the introduction of K.S.A. 60-455 evidence. Specifically, Humphrey claims the testimony of De Ann Rowland, a Federal Express employee, and Bruce Mellor, a KBI agent, introduced evidence of specific criminal conduct and, therefore, a limiting instruction should have been given. Rowland testified that she observed Humphrey and Tina Gray attempt to send cash via Federal Express, which is against Federal Express policy. Mellor testified he was contacted by Rowland because she was suspicious about Humphrey and Tina Gray attempting to send cash. When the shipment of glassware arrived at the Federal Express office, Rowland again contacted Mellor. Mellor then went to the Federal Express office and took photographs of the two sealed packages which had arrived.
We find Rowland and Mellor’s testimony does not fall under K.S.A. 60-455. They did not testify that Humphrey had “com mitted a crime or civil wrong on a specified occasion.” Instead.; they testified that he and Tina Gray had attempted to send cash via Federal Express, which is not against the law, but merely against Federal Express policy.
We find no error.
XII
Humphrey’s final issue is that the trial court erred in denying his motion for a mistrial based upon prosecutorial misconduct. Humphrey makes three arguments to support his claim. First, he contends the State’s attorney committed prosecutorial misconduct when he indicated to Mendivil that she should testify that Humphrey had not been drinking or doing drugs prior to. the shooting. Next, Humphrey claims Tony Gray’s testimony that' Humphrey had made the statement, “This bullet is for Gary,” was false and the State’s attorney had to have known it was false. Finally, Humphrey argues he was denied his right to effectively cross-examine Tony and Tina Gray, and this denial is a product of prosecutorial misconduct. The alleged misconduct is that the prosecutor gaye Tony and Tina Gray copies of their prior testimony from the May 1988 preliminary hearing, thereby allowing the Grays “to read and keep” their prior sworn testimony.
Mendivil testified the State’s attorney had not told her to lie but had made her feel he wanted certain testimony. There is no evidence in the record on appeal that Tony Gray’s statement regarding the bullet for Gary is false or that the State’s attorney knew it was false. Additionally, it is not improper for a prosecutor or any other attorney to allow witnesses to refresh memory by reading their prior sworn testimony.
We hold the trial court did not err in denying Humphrey’s motion for a mistrial based upon prosecutorial misconduct.
The judgment of the trial court is reversed, and this case is remanded for a new trial. | [
-16,
-24,
-8,
62,
58,
-31,
42,
-70,
98,
-29,
-25,
87,
-23,
-21,
13,
105,
-23,
109,
84,
105,
-31,
-73,
7,
9,
-112,
-13,
56,
-43,
51,
75,
126,
-43,
9,
80,
6,
85,
-26,
-126,
103,
30,
-114,
-124,
-85,
-14,
-55,
2,
36,
107,
52,
15,
-31,
-114,
-78,
46,
16,
-50,
73,
41,
123,
44,
-40,
-71,
-85,
-123,
-119,
16,
-109,
114,
-104,
37,
-8,
31,
-40,
48,
8,
40,
123,
-122,
-128,
116,
77,
-99,
108,
102,
98,
-128,
-35,
-51,
-88,
-120,
-113,
111,
-99,
-89,
60,
105,
101,
-28,
-98,
-99,
106,
20,
-98,
-16,
-21,
5,
71,
108,
12,
-49,
-108,
-125,
13,
48,
-52,
-102,
-23,
37,
32,
113,
-49,
-94,
92,
100,
114,
31,
31,
-46
]
|
The opinion of the court was delivered by
McFarland, J.:
James Walker appeals his jury trial convictions of first-degree premeditated murder (K.S.A. 1991 Supp. 21-3401); aggravated robbery (K.S.A. 21-3427); aggravated assault (K.S.A. 21-3410); attempted aggravated criminal sodomy (K.S.A. 1991 Supp. 21-3301; K.S.A. 21-3506); aggravated criminal sodomy (K.S.A. 21-3506[c]); battery (K.S.A. 21-3412); aggravated battery (K.S.A. 21-3414); two counts of theft (K.S.A. 21-3701[a]); two counts of rape (K.S.A. 21-3502); three counts of aggravated burglary (K.S.A. 21-3716); and four counts of aggravated kidnapping (K.S.A. 21-3421). Appeal is also taken from the imposition of the “hard 40” sentence on the first-degree murder conviction pursuant to K.S.A. 1991 Supp. 21-4624 et séq.
The convictions arise from four incidents occurring in Sedgwick County. They may be characterized as occurring in or commencing in the; (1) Darin Adams residence on North Vassar Street (June 25, 1990); (2) Kenneth Lowe residence on Old Manor Street (July 20, 1990); (3) Jerome Alcorn residence on Indianapolis Street (July 21, 1990); and (4) Sylvester Johnson residence on East Zimmerly Street (July 21, 1990). Inasmuch as the facts relative to the numerous offenses are lengthy and have little or no bearing on most of the issues raised, our recitation of facts will be limited to those needed for resolution of particular issues. Three companion cases to the appeal before us are State v. Bailey, 251 Kan. 156, 834 P.2d 342 (1992); State v. Hooks, 251 Kan. 755, 840 P.2d 483 (1992); and State v. Walker, 252 Kan. 117, 834 P.2d 203 (1992). The facts relative to each of the various offenses are set forth in one or more of said cases.
JURY SELECTION PROCESS
For his first issue, defendant contends Sedgwick County’s system of selecting prospective jurors from voter registration lists violated his right to a fair and impartial jury selected from a fair cross section of the community, a right guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. Similar challenges were made in two of the companion cases, State v. Bailey, 251 Kan. 156, and State v. Walker, 252 Kan. 117, wherein we held: “The use of voter registration lists as the sole source for the selection of jury panels is examined and held not to have been shown to be statutorily or constitutionally impermissible.”
No additional showing has been made herein to remove this case from the application of the rule stated in Bailey and Walker.
CONFESSION
For his second issue, defendant contends the district court erred in refusing to suppress his confession.
A Jackson v. Denno hearing was held herein. In State v. Price, 247 Kan. 100, Syl. ¶ 1, 795 P.2d 57 (1990), we held:
“The purpose of a Jackson v. Denno hearing is to allow the trial court to determine the voluntariness of a statement or confession. Factors bearing on the voluntariness of a statement by an accused include the duration and manner of the interrogation; the ability of the accused on request to communicate with the outside world; the accused’s age, intellect, and background; and the fairness of the officers in conducting the interrogation. The essential inquiry in determining the voluntariness of a statement is whether the statement was the product of the free and independent will of the accused. Following State v. Prince, 227 Kan. 137, Syl. ¶ 4, 605 P.2d 563 (1980).”
In State v. William, 248 Kan. 389, Syl. ¶ 11, 807 P.2d 1292, cert. denied 116 L. Ed. 2d 89 (1991), we stated: “In determining whether a confession is voluntary, a court is to look at the totality of the circumstances.”
In State v. Norris, 244 Kan. 326, 333, 768 P.2d 296 (1989), we set forth the standard of review for a trial court’s determination that a confession was voluntary:
“ ‘When a trial court conducts a full pretrial hearing on the admissibility of an extrajudicial statement by an accused, determines the statement was freely, voluntarily and knowingly given and admits the statement into evidence at the trial, the appellate court should accept that determination if it is supported by substantial competent evidence. [Citations omitted.]’ ” (quoting State v. Brown, 235 Kan. 688, 691, 681 P.2d 1071 [1984]).
See State v. William, 248 Kan. 389, Syl. ¶ 13.
Defendant contends his confession was coerced and involuntary. He argues: (1) the police intentionally deprived him of sleep; (2) the police used physical force against him; (3) he is of limited intellect; and (4) he was intoxicated.
Defendant was observed driving Rose Ann Johnson’s automobile, who was known to have been kidnapped (one of the charges ultimately brought herein), and who was missing. Defendant was apprehended and contends he was physically abused by an officer in the process. He arrived at the police station at approximately 3:22 a.m. The transporting officer testified he had no trouble understanding the defendant although he appeared moderately intoxicated. While en route to the station, defendant asked if he could sleep. Permission was granted.
Upon his arrival at the station, defendant gave a lucid personal history. At 4:46 a.m., defendant was given his Miranda rights. The officer reading the rights to him testified defendant appeared to be mildly intoxicated or to have just awakened. The officer testified he had no difficulty communicating with the defendant. No interview was attempted at this time as it was decided this should be left to a homicide detective.
The interview commenced at 11:30 a.m. Defendant, who had been previously handcuffed to a table, was freed and was again read his Miranda rights. The detective did not interview him earlier as he had been interviewing codefendants in the crimes herein. The detective did not observe any sign of intoxication in the defendant and testified defendant was responsive. Defendant denied any involvement in the murder of Rose Ann Johnson, and the detective prepared to leave. Defendant called the detective back and stated that he and his associates had killed Rose Ann Johnson and put her under a tree. He was again given his Miranda rights, and his confession was tape-recorded. In his confession, defendant was coherent and gave addresses and details of the events involved leading up to the killing of Ms. Johnson.
The circumstances relative to the time period defendant was held at the police station, the conditions under which he was held there, and the delay in commencing the interview are comparable to those set forth in State v. Hooks, 251 Kan. 755, wherein we held the trial court’s admission of the confession was not improper.
We find no merit in defendant’s claim that his motion to suppress his confession was improperly denied.
EVIDENCE OF GANG MEMBERSHIP
For his third issue, defendant contends the trial court improperly admitted evidence of defendant’s membership in a street gang.
This issue was also raised in State v. Hooks, 251 Kan. 755, and State v. Walker, 252 Kan. 117. As in these other cases arising out of the incidents herein, there was testimony from victims about conversations and observations made during the commission of the crimes relative to the perpetrators’ memberships in the Insane Crips gang. As in these companion cases, defendant argues herein the purpose of the admission of such testimony was to inflame the jury.
As we held in the companion cases, such evidence was part of the res gestae of the offenses and was relevant to the aiding and abetting aspects of the case. We find no abuse of discretion in the admission of such evidence.
RAPE SHIELD STATUTE
Defendant sought the introduction of evidence that he had had a prior sexual relationship with D.G., the victim in the attempted aggravated criminal sodomy conviction and one of the rape convictions. Defendant contends evidence that he had prior sexual relations with D.G. was relevant to his defense that D.G. con sented to any sexual acts between herself and the defendant, and it “tended to discredit D.G.’s and Alcorn’s claims that they were terrorized and held hostage in their own apartment.”
K.S.A. 21-3525(2) provides the general rule concerning the admissibility of evidence of prior sexual contact of a sexually abused victim as follows:
“(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 defendant shall make a written motion to the court to admit evidence or testimony concerning the previous sexual conduct of the complaining witness. The motion must be made at least seven days before the commencement of the trial unless that requirement is waived by the court. The motion shall state the nature of such evidence or testimony and its relevancy and shall be accompanied by an affidavit in which an offer of proof of the previous sexual conduct of the complaining witness is stated. The court shall conduct a hearing on the motion in camera. At the conclusion of the hearing, if the court finds that evidence proposed to be offered by the defendant regarding the previous sexual conduct of the complaining witness is relevant and is not otherwise inadmissible as evidence, the court may make an order stating what evidence may be introduced by the defendant and the nature of the questions to be permitted. The defendant may then offer evidence and question witnesses in accordance with the order of the court.” (Emphasis supplied.)
In State v. Stellwagen, 232 Kan. 744, 747, 659 P.2d 167 (1983), we said (of a predecessor statute [K.S.A. 60-447a (Weeks)] to K.S.A. 21-3525):
“In the rape shield act the legislature sent a clear message to the courts that a rape victim’s prior sexual activity is generally inadmissible since prior sexual activity, even with the accused, does not of itself imply consent to the act complained of. In saying this the legislature was attempting to further the strong state interest in protecting the rape victim.”
The appellate standard of review of a trial court’s rulings on motions to exclude evidence is abuse of discretion. Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only when no reasonable person would take the view adopted by the trial court. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. State v. Martin, 237 Kan. 285, Syl. ¶ 2, 699 P.2d 486 (1985).
There was no claim of consensual sexual relations between D.G. and defendant on the night in question. The testimony was that defendant beat and choked D.G., demanding that she perform oral sodomy on two of his associates who were present. They also, struck D.G. Defendant then attempted to sodomize D.G. and choked her into submission to the rape. Whether or not defendant and D.G. did or did not consensually engage in sexual relations on some prior occasion has no relevance to the events of the night in question and was properly excluded under the rape shield statute.
We find no abuse of discretion in the trial court’s refusal to admit evidence of the alleged prior sexual relationship between D.G. and defendant.
PHOTOGRAPHIC EXHIBITS
Defendant contends the photographs and transparencies depicting murder victim Rose Ann Johnson had no probative value, were cumulative and gruesome, and served only to inflame the jury.
In State v. Hobson, 234 Kan. 133, 152-53, 671 P.2d 1365 (1983), we said:
“The rules pertaining to the admission of photographs in a criminal prosecution are well established and often repeated by this court. Recently in State v. Garcia, 233 Kan. 589, 592-93, 664 P.2d 1343 (1983), we summarized the rules as follows:
" Tn 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. See, e.g., State v. Green, 232 Kan. 116, 118, 652 P.2d 697 (1982), and cases cited therein. Even where the defendant concedes the cause of death, the prosecution has the burden to prove all the elements of the crime charged; and photographs to prove the elements of the crime, including the fact and manner of death and the violent nature of the crime, are relevant and admissible. State v. Campbell, 210 Kan. 265, 276, 500 P.2d 21 (1972); State v. Dargatz, 228 Kan. 322, 329, 614 P.2d 430 (1980); State v. Henson, 221 Kan. 635, 647, 562 P.2d 51 (1977). Photographs depicting the extent, nature and number of wounds inflicted are generally relevant in a first-degree murder case. State v. McCorgary, 224 Kan. 677, 681, 585 P.2d 1024 (1978). Photographs are erroneously admitted when they are unduly repetitious, gruesome, and add nothing to the State’s case. State v. Dargatz, 228 Kan. at 329; State v. Henson, 221 Kan. at 647; State v. Clark, 218 Kan. 18, 24, 542 P.2d 291 (1975).’ ”
The admission of photographs as evidence in a homicide case rests within the trial court’s discretion, and that court’s ruling will not be disturbed on appeal absent a showing of abuse of discretion. Photographs which are unduly repetitious, gruesome, and without probative value should not be admitted into evidence. Demonstrative photographs are not inadmissible merely because they are gruesome and shocking where they are true reproductions of relevant physical facts and material conditions at issue. State v. Mayberry, 248 Kan. 369, Syl. ¶ 12, 807 P.2d 86 (1991).
Eleven transparencies and eight photographs depicting the victim and the area where her body was found were admitted. One transparency and one photograph showed the hyoid bone which had been removed during the autopsy. One transparency showed the victim alive and well. All other photographic material depicting the deceased showed various injuries received by her during the brutal and sustained attack upon her. No invasive autopsy procedures are depicted. The photographs showed what the victim’s killers did to her. The victim was stomped to death with resultant massive injuries, especially to the head and neck areas. The studio photograph taken in life shows how the victim appeared before the attack rendered her virtually unrecognizable.
We find no abuse of discretion in the admission of the photographic material herein.
Also included within this issue is a complaint relative to the size of the image projected from the transparencies. By virtue of their being transparencies, they were projected “larger than life.” Defendant contends this was improper. No authority is cited in support of this proposition. All jurors could presumably see the image depicted simultaneously and follow the pathologist’s testimony in regard to the injuries inflicted. We find no merit in this point.
Finally, defendant argues the prosecutor projected the transparency of the victim in life for too long a period — thus inflaming the jurors’ passions and prejudicing them toward defendant. Defendant states in his brief that this transparency was displayed for 10 to 15 minutes during trial and, additionally, during the State’s closing argument. No authority is cited for the proposition that some sort of time restriction formula exists for the display of photographic exhibits. Although, presumably, display of such material at times during the trial when the display has no bearing on what is being presented could reach an impermissible level, we find no error or abuse of discretion on this point under the circumstances alleged herein.
PROSECUTORIAL MISCONDUCT
For his next issue, defendant complains that prosecutorial misconduct deprived him of a fair trial. Three areas of specific complaint are made. The first is alleged provocative conduct during the prosecution’s opening statement. As the prosecutor was relating that the evidence would show the victim was pleading for her life while she was being kicked and beaten, he struck his counsel table two or three times for emphasis. It is difficult to consider this as a claim of misconduct as opposed to a matter of style of presentation. We find no merit in this claim. Defense counsel also objected and counsel for the appellate defender’s office continues to object to the prosecutor, on one occasion during the opening statement, “shaking his finger about a foot and a half from my client’s face.” Defendant contends this was part of a strategy to anger the defendant and make him react unfavorably in the jury’s presence. Although the alleged finger pointing at close range appears to be rather excessive, we can hardly conclude that this single event deprived defendant of a fair trial.
For his second point, defendant complains about a statement made by the prosecutor during closing arguments. That remark is as follows:
“At some point you are going to be relieved from the admonition the Court gave and go back to your family and friends in the neighborhood and talk about what happened, what happened that week or two when you were down at the courthouse. You can tell them. What did the evidence show? The evidence showed that he kidnapped this woman, raped her.”
Defendant characterizes this as a warning to jurors that they would be held accountable to their friends and family if they acquitted the defendant. We do not agree with this interpretation. Although not stated too artfully, the prosecutor is .apparently saying to the jurors that although they had been told by the court not to discuss the case, that admonition was not permanent and, if the jurors then talked about their jury service, they could say the evidence showed the victim was kidnapped and raped by the defendant. The statement on its face is rather innocuous, and there is no foothold for reversible error therein.
For his third and final point on this issue, defendant contends the prosecutor’s display of victim Rose Ann Johnson’s studio portrait transparency during his closing argument constituted prosecutorial misconduct. Apparently, defense counsel turned the projector off at least once and the prosecutor turned it back on. The prosecutor then stated:
“You might have noticed there has been a battle of the overhead, when the State may turn it on and Mr. Ney turns it off. True, in a criminal proceeding the focus is always on the Defendant, whether his rights are protected, whether or not the evidence proves guilt beyond a reasonable doubt. We don’t want to lose focus of why we are here, also. This is the woman this man robbed of the merriment of life and we don’t want you to forget that.”
The display of the photograph has been held not to be improper in the preceding issue. As for the comment about the turning of the projector off and on, we find no reversible error therein.
We find no merit to the claim of prosecutorial misconduct herein.
JUDICIAL MISCONDUCT
Defendant contends that judicial misconduct during the trial warrants reversal of the convictions and the granting of a new trial.
Defendant contends that he was denied due process of law because of judicial misconduct as follows: (1) manner of conduct and facial expressions; (2) treatment of defense counsel in front of the jury; and (3) disciplining defense counsel off the record.
The trial judge is not merely a moderator, but is the governor of the trial. The judge must strive to have the trial conducted in an atmosphere of impartiality and should refrain from remarks or conduct that may injure a litigant. State v. Hamilton, 240 Kan. 539, Syl. ¶ 3, 731 P.2d 863 (1987).
The trial judge should be the exemplar of dignity and impartiality. He should exercise restraint over his conduct and utterances. He should suppress his personal predilections, and control his temper and emotions. He should not permit any person in the courtroom to embroil him in conflict, and he should otherwise avoid conduct on his part which tends to demean the proceedings or to undermine his authority in the courtroom. When it becomes necessary during the trial for him to comment upon the conduct of witnesses, spectators, counsel, or others, or upon the testimony, he should do so in a firm, dignified, and restrained manner, avoiding repartee, limiting his comments and rulings to what is reasonably required for the orderly progress of the trial, and refraining from unnecessary disparagement of persons or issues. State v. Hamilton, 240 Kan. 539, Syl. ¶ 4.
The trial court has broad discretion in controlling the proceedings at trial. Allegations of judicial misconduct must be decided on the particular facts and circumstances of each case. Reversal is required only when the appellant has shown the conduct prejudiced his substantial rights. State v. Chism, 243 Kan. 484, Syl. ¶ 9, 759 P.2d 105 (1988).
In State v. Grissom, 251 Kan. 851, Syl. ¶ 36, 840 P.2d 1142 (1992), we amplified the above rules as follows:
“Allegations of judicial misconduct must be decided on the particular facts and circumstances surrounding such alleged misconduct. In order to warrant or require the granting of a new trial, it affirmatively must appear the conduct was of such a nature that it prejudiced the substantial rights of the complaining party. A mere possibility of prejudice from a remark of the judge is not sufficient to overturn a verdict or judgment. If a proper and reasonable construction will render the remark unobjectionable, the remark is not prejudicial.”
Specific allegations of misconduct are made as follows. During defense counsel’s cross-examination of victim Jerome Alcorn, the following exchange occurred between defense counsel and the court:
“Q. Is that yes or no that you are in shock today?
“THE COURT: No, he has answered you very completely.
“MR. NEY [defendant’s counsel]: I would object to the Court’s characterization, once again.
“THE COURT: Mr. Ney, I rule that he has answered completely. That is my ruling.
“MR. NEY: I note for the record the Court’s stem nature, pointing at me and looking at me in a stem manner in front of the jury.
“THE COURT: If a lawyer in this court makes an objection, it’s in the record. That is all that is required. The colloquy is out of place and I will ask you not to repeat the colloquy again. Let’s proceed with the trial.”
Defendant contends that the judicial finger-pointing referred to constitutes misconduct.
Defendant also objects to the trial judge removing his glasses when addressing defense counsel during the following colloquy:
“MR. NEY: I would object to the Court’s question about anything in the witness’ mind.
“THE COURT: Counselor, let’s get it straight. There was an objection about hearsay. What is going through someone’s mind is not hearsay. It’s a fact. Therefore, I have ruled. I have instructed the witness and the witness may answer.
“MR. NEY: I have a right to object to that the first time that question had been proposed, when the Court proposed or counsel proposed it, I have a right to make my objection for the record. I note for the record the Court is taking his glasses off.
“THE COURT: Stop the argument.
“MR. NEY: The Court is yelling to me and ordering me to sit down in a loud voice in front of the jury.
“THE COURT: Mr. Ney, we are not going to have this trial changed into some kind of a continuing argument. I will tell you once more, the mies are the rules of the Court. State your objection. If I need argument, I will ask counsel for argument. If I do not ask for argument, it’s not necessary, nor allowed to make an argument, because the law is that the objection is preserved in the record.”
Defendant objects to the trial judge’s bench “pounding” in the following colloquy:
“Q. [By defendant’s counsel:] So Mr. Alcorn appears apparently the same after a terrorizing incident as he does months later; would that be right?
“A. His behavior today was approximately the same as it was the morning I talked to him.
“MR. NEY: All right, thank you.
“MR. WHITE [State’s attorney]: I have no re-re-recross.
“THE COURT: The last few exchanges are purely argument by counsel. You may step down. Thank you.
“MR. NEY: I would note my objection of that characterization.
“THE COURT: It’s not a characterization. It’s a statement.
“MR. NEY: I would note the Court pounded the bench with a pen when he made that observation.
“THE COURT: We will reconvene at five minutes after four. The jury will be excused to the jury room for a recess.”
Defendant also objects to certain rulings made by the trial court in applying the rape shield statute and to other evidentiary rulings. These rulings were against defense counsel’s position, but we find nothing therein supporting a claim of judicial misconduct.
It is clear from the record that defense counsel was vigorously and, at times, abrasively representing his client in the trial herein. The following comments of the prosecutor, made in an in-chambers hearing, are significant:
“I note on the record, and I would at this point in time like to place on the record I have been present during the entire course of the trial. I have noted the conduct of Mr. Ney which at some time in my opinion approached reprehensible conduct. He uses a very loud voice. I have been sitting next to him at counsel table, almost breaks my eardrums, addresses the Court in a very loud manner, makes objections, the Court rules, he continues to argue. The Court cuts off his argument and he continues to argue in front of the jury with the Judge, giving no respect to the bench.”
The purpose of this in-chambers proceeding was to allow defense counsel to put on the record a complaint about an off-the-record proceeding wherein the trial court had, apparently, chastised defense counsel for his trial conduct. The following occurred:
“MR. NEY: Our problem is we don’t have a record of that hearing. The fact the Judge refused a record is an indication of what went on. I know every time I tried to make an objection or state my legal grounds to the Court, I have been interrupted by the Court and at numerous times in court the Judge has made disparaging looks to the jury, looked at the ceiling, pounded the table, and I have put on the record when yelled at.
“THE COURT: You missed that one. The table hadn’t been pounded.
“MR. NEY: Pounded the bench.
“Judge Sanborn is now here and wants to give his version.
“THE COURT: I don’t have to give my version. I have been taught, if you believe the lawyer is out of line, you call them back and discuss it. That’s the standard of conduct in this state. It’s not supposed to be on the record. The only reason we are doing this is because you wanted to make statements. It isn’t any right you have. It’s just a matter that’s being afforded to you.
“You frequently say, during the trial, when I have already ruled, T want to make a record on that.’ You should know it’s surplusage. You made an objection, the objection was dealt with, the ruling is in the court reporter’s notes. There is no requirement that you otherwise save it or note an exception. The law of Kansas is very clear. You do have to state your grounds, because the rule is if there is a general objection and it’s overruled without a specific objection being called to the Court’s attention, you then might lose that as a ground for impeachment, but I don’t intend to be tried in this case. I don’t intend to have my authority disparaged in front of the jury and I intend to have this trial go forward with the lawyers acting in a lawyer-like fashion and that is what is going to have to occur and that is what will occur.
“This business of always have to have the last word, unfortunately, just prolongs the record.
“MR. NEY: I did not get any words in the record when I needed them in the record. It’s my statement, what you call the proper procedure, taking counsel back and woodshedding them without a record and berating counsel without a record present—
“THE COURT: (Interrupting) You are supposed to have it in private. That’s lawyer-like. I don’t know if you understand what that means.
“MR. NEY: For the record, the Court is yelling and glaring at me and pointing a finger.
“THE COURT: Will you be quiet and show courtesy?
“MR. NEY: When I see some, I will show some.
“THE COURT: You do not seem to understand it’s a standard of conduct in this state that [if] the Judge feels things are getting out of hand, he is supposed to take the lawyers back in his chambers without a record. That’s what he is supposed to do and that’s what I did.
“MR. NEY: He is supposed to yell at them and threaten them with contempt? Which is what he did.
“THE COURT: If the lawyer, instead of understanding what the Court’s expectations of the lawyer are, instead attacks the issues, then the Court has to be firm and put them on notice.
“MR. NEY: I didn’t attack the issue. There is no record on the issue of that hearing.”
If a trial court concludes that one or more trial counsel is or are behaving improperly in the courtroom, any discussion of the matter should certainly be taken up out of the presence of the jury. However, it does not follow that an off-the-record proceeding is an appropriate method for resolution of the problem. This case well illustrates the point. This is a criminal case involving multiple major felonies. A conviction would almost certainly result, in an appeal. The very conduct of counsel which was the reason for the trial judge having held the off-the-record proceeding was the result of perceived courtroom clashes between court and counsél and would, in all likelihood, be an issue in any appeal by the defendant. Yet there is no record. Had the attorney been subsequently held in contempt, no record would have existed as to exactly what had been said in the hearing and what warning issued.
While we disapprove of the holding of the complained-of proceeding off the record, we find no basis for defendant’s assertion that judicial misconduct deprived him of a fair trial.
INSTRUCTIONS
For his next issue, defendant makes three separate complaints relative to the instructions herein. For his first point, defendant objects to an addition made to each of the elements instructions. The emphasized portion of the first paragraph of the elements instruction for the aggravated kidnapping of Rose Ann Johnson illustrates the complained-of addition:
“Defendant is charged with the crime of Aggravated Kidnapping. Defendant pleads not guilty. To establish this charge, each of the following claims must be proved. Defendant, or someone acting in concert with him, unlawfully, willfully, did
1. take or confine Rose Ann Johnson,
2. by force,
3. with intent to hold Rose Ann Johnson,
4. to facilitate the commission of the crime of Aggravated Robbery and Rape,
5. and did inflict bodily harm upon Rose Ann Johnson,
6. this happened in Sedgwick County, Kansas, and on or about July 21, 1990.
Rape is bodily harm.” (Emphasis supplied.)
The following separate aiding and abetting instruction was given:
“Liability for crimes of another: (1) a person is criminally responsible for a crime committed by another if such person intentionally aids, abets, advises, hires, counsels or procures the other to commit the crime; (2) a person liable under subsection (1) hereof is also liable for any other crime committed in pursuance of the intended crime if reasonably foreseeable by such person as a probable consequence of committing, or attempting to commit, the crime intended; (3) a person liable under this section may be charged with, and convicted of, the crime although the person alleged to have directly committed the act constituting the crime lacked criminal capacity or has not been convicted, or has been acquitted, or has been convicted of some other degree of the crime, or of some other crime based on the same act.
“Mere presence at the scene where a crime is committed, does not, in and of itself, make a person guilty of having committed the crime.”
Defendant objects on the basis that the phrase “someone acting in concert with him” contained in each of the elements instructions does not correlate to the aiding and abetting instruction, as such language is not continued therein. This was picked up by the jury as, during deliberations, the jury requested a definition of “acting in concert.” To the request, the court responded as follows:
“ ‘Acting in Concert.’-Action in which 2 or more persons participate, combined action, accord, together, joint, to contrive or arrange by agreement, to plan or act together.
“And see ‘Liability for Crimes of Another’ instruction.”
Jury instructions are to be considered together and read as a whole without isolating any one instruction. If the instructions properly and fairly state the law as applied to the facts in the case, and if the jury could not reasonably have been misled by them, then the instructions do not constitute reversible error although they may be in some small way erroneous. State v. Jones, 233 Kan. 112, 115, 660 P.2d 948 (1983).
Applying this rule to the matter before us, we find no reversible error. The response tied the instructions together, did not lessen the State’s burden of proof, and adequately stated the applicable law.
For his second point in this issue, defendant contends the trial court’s instruction on voluntary intoxication was improperly stated and this error removed voluntary intoxication from meaningful jury consideration.
PIK Crim. 2d 54.11 (1988 Supp.) provides:
“Intoxication involuntarily produced is a defense if it renders the accused substantially incapable of knowing or understanding the wrongfulness of his conduct and of conforming his conduct to the requirements of law.”
PIK Crim. 2d 54.12 (1988 Supp.) provides:
“Voluntary intoxication is not a defense to a charge of (set out general intent crime).
“Voluntary intoxication however, may be a defense where the evidence indicates that a defendant acted only as an aider or abettor, and may be considered in determining whether such defendant was capable of forming the required intent to aid or abet the commission of (general intent crime charged).”
Neither instruction was given. Rather, a total of four instrucT tions were given on the subject. They are as follows:
No. 31
“An act committed while in a state of voluntary intoxication is not less criminal by reason thereof, but when a particular intent or other state of mind is a necessary element to constitute a particular crime, the fact of intoxication may be taken into consideration in determining whether or not such intent or state of mind existed.”
No. 32
“Defendant has claimed as a defense voluntary intoxication. Voluntary intoxication is not a defense to crime; however, in the case of certain crimes called specific intent crimes, if the jury believes from all the facts and circumstances that defendant was intoxicated, and that the intoxication was to such a degree that defendant’s mental faculties were impaired, and that such impairment was to such an extent that the defendant was incapable of forming the specific intent which is an element of the crime, that is, if the defendant ‘was utterly devoid of consciousness or awareness’ of what he was doing then the jury may take that fact into consideration in determining whether or not such intent or state of mind existed. Likewise, in considering whether defendant bears responsibility for crimes of others as an aider or abettor you will use the same test in determining whether or not the defendant had the specific intent to have willingly and knowingly associated himself with the criminal acts of another or others and to have willingly participated in them.
“If the defense asserted, causes you to have a reasonable doubt as to whether or not the defendant was so intoxicated as to be incapable of forming the necessary specific intent, you should find the defendant not guilty.” (Emphasis supplied.)
No. 33
“Voluntary intoxication is not a defense to a charge of aggravated assault, aggravated arson, aggravated criminal sodomy, rape, criminal damage to property or aggravated robbery.
“Voluntary intoxication however, may be a defense where the evidence indicates that a defendant acted only as an aider or abettor, and may be considered in determining whether such defendant was capable of forming the required intent to aid or abet the commission of aggravated assault, aggravated arson, aggravated criminal sodomy, rape, criminal damage to property or aggravated robbery.”
No. 34
This instruction was a laundry list of the various specific intent crimes charged and what the specific intent to be proven was.
Defendant’s argument centers on the emphasized portion of instruction No. 32: “was utterly devoid of consciousness or awareness.” Defendant contends this makes voluntary intoxication avail able only if the defendant is comatose and, since being both comatose and capable of doing any act is impossible, the defense is nullified. The complained-of language appears in State v. Falke, 237 Kan. 668, 683, 703 P.2d 1362 (1985), and State v. Masqua, 210 Kan. 419, 425, 502 P.2d 728 (1972), cert. denied 411 U.S. 951 (1973). We hereby disapprove of the inclusion of that phrase. However, in reviewing the totality of the instructions on voluntary intoxication, which constitute virtually an anthology of every case law statement on the subject without regard to recent modifications made in the defense, we conclude that no reversible error has been shown.
Finally, defendant contends the trial court erred in not instructing the jury on second-degree murder and voluntary manslaughter. The defendant was charged alternatively with first-degree premeditated murder and first-degree felony murder. The defendant was convicted of first-degree premeditated murder. It is unclear from the record, or the defendant’s brief, whether the lesser offense instructions were requested only as to the alternative felony-murder charge or on the premeditated murder charge as well.
We shall first consider the issue as it relates to felony murder. When murder is committed during the commission of a felony, the rule requiring instructions on lesser included offenses ordinarily does not apply. The felonious conduct is held tantamount to the elements of deliberation and premeditation which are otherwise required for first-degree murder. It is only when the evidence that the underlying felony was committed is weak, inconclusive, or conflicting that instructions on lesser included offenses may be required. State v. Bailey, 247 Kan. 330, Syl. ¶ 2, 799 P.2d 977 (1990), cert. denied 114 L. Ed. 2d 108 (1991).
Defendant’s claim that the evidence of the underlying felonies was weak or inconclusive rests solely on his claim that voluntary intoxication prevented him from having the specific intent required for the commission of some of the underlying felonies. The underlying felonies were instructed as being aggravated burglary, aggravated robbery, rape, aggravated sodomy, and aggravated kidnapping. Defendant was convicted of each of these charges, and no challenge has been made to the sufficiency of the evidence supporting said convictions. We note that rape and sodomy are not specific intent crimes, so voluntary intoxication was a factor only on the aiding and abetting aspect of each. The jury was presented with the voluntary intoxication defense and rejected it in convicting defendant of the underlying felonies. Felony murder, itself, is not a specific intent crime. Additionally, defendant was found guilty of premeditated murder, not felony murder. Under these circumstances, it is difficult to see how the failure to give such instructions could have affected the outcome of the trial.
As for failure to instruct on the lesser degrees on premeditated murder, there was abundant evidence of premeditation. Sylvester Johnson and Rose Ann Johnson were kidnapped from Sylvester’s apartment. While at the apartment, Sylvester was repeatedly stabbed and told he was going to die “tonight.” In the automobile in which the Johnsons were transported, Sylvester testified one of the perpetrators (Harabia Johnson) asked if they had anything with which to kill both victims. Defendant herein responded, “Yeah, we got something to kill them with.” After Sylvester escaped, Rose Ann was taken to the park, raped, and stomped to death. As we said in State v. Bailey, 251 Kan. 156, 834 P.2d 342 (1992), “The manner of Rose Ann’s death and the fact blood was found in more than one location indicates her death was the result of a lengthy and intentional series of acts. No evidence was introduced to indicate Rose Ann’s death was not premeditated first-degree murder.” 251 Kan. at 165.
PEREMPTORY CHALLENGE
Defendant’s next issue complains of the State’s exercise of a peremptory challenge to remove the only black male, Randy Harper, from the jury panel.
In Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), the United States Supreme Court held: (1) The equal protection clause forbids a prosecutor to peremptorily challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable to impartially consider the prosecution’s case against a black defendant; (2) a criminal defendant may establish a prima facie case of purposeful racial discrimination in the selection of the jury based solely on evidence concerning the prosecutor’s exercise of per emptory challenges at the defendant’s trial, without showing repeated instances of such discriminatory conduct over a number of cases; and (3) once a defendant makes such a prima facie showing, the burden shifts to the prosecution to come forward with a neutral explanation for challenging the jurors which relates to the particular case to be tried. 476 U.S. at 89, 95, 97.
The Batson rule has since been reiterated. See Hernandez v. New York, 500 U.S. 352, 358-59, 114 L. Ed. 2d 395, 111 S. Ct. 1859 (1991); Powers v. Ohio, 499 U.S. 400, 409, 113 L. Ed. 2d 411, 111 S. Ct. 1364 (1991).
In Hernandez, the Court further expanded on the three-step Batson rule as follows:
1st step: “Once a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant had made a prima facie showing becomes moot.” 352 U.S. at 359.
2nd step: “A neutral explanation in the context of our analysis here means an explanation based on something other than the race of the juror. At this step of the inquiry, the issue is the facial validity of the prosecutor’s explanation. Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.” 352 U.S. at 360.
3rd step: A trial court’s finding on the issue of discriminatory intent should not be set aside unless clearly erroneous. 352 U.S. at 369.
In State v. Walker, 252 Kan. 117, Syl. ¶ 2, 834 P.2d 203 (1992), we held:
“Appellate review of a trial court’s determination of whether the prima facie showing required by Batson v. Kentucky, 476 U.S. 79, 96, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), has been made is plenary as it involves a question of legal sufficiency. In contrast, 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. Following State v. Sledd, 250 Kan. 15, Syl. ¶ 2, 825 P.2d 114, cert. denied 121 L. Ed. 2d 98 (1992).”
When defense counsel objected to the removal of Harper, the State advised it had taken the action based upon Harper’s voir dire answers that: (1) He knew a number of the police officers; (2) he knew the case detective (to be called as a trial witness); and (3) he knew one of the prosecutors. The trial court questioned the prosecutor about possible racially motivated reasons for such removal and then held the reasons for Harper s removal were race-neutral.
Defendant contends that once the reasons are expressed, inquiry must be made to see if any white juror left on the panel has characteristics similar to those asserted by the State as reasons for the black juror s removal. Presumably, this would entail reopening voir dire for fishing-type inquiries. We know of no such requirement. Specifically, defendant argues a white female juror was left on who indicated similar characteristics. This juror had stated only that one of her best friends was a police officer. There was no indication she knew any officer connected with the case or any of the prosecutors involved herein.
We find no error or abuse of discretion in the trial court’s handling of the matter or its holding that the State had exercised its peremptory challenge of Haiper for race-neutral reasons.
CONSTITUTIONALITY OF “HARD 40”
For his next issue, the defendant contends that the only aggravating sentencing factor found by the jury herein is impermissibly vague and, accordingly, is violative of the Eighth Amendment to the United States Constitution’s prohibition against cruel and unusual punishment. The aggravating sentencing factor at issue is that “[t]he defendant committed the crime in an especially heinous, atrocious or cruel manner.” K.S.A. 1991 Supp. 21-4625(6).
A similar challenge to this aggravating sentencing factor was made in State v. Bailey, 251 Kan. 156. In Bailey, we discussed the enactment of the hard 40 legislation and, further, noted that case law involving claims of cruel and unusual punishment in death penalty situations is of limited assistance in other situations. We then concluded:
“In support of his position, defendant cites Maynard v. Cartwright, 486 U.S. 356, 100 L. Ed. 2d 372, 108 S. Ct. 1853 (1988), wherein the same language in a death penalty statute was held to be unconstitutionally vague. However, a later decision by the Court of Criminal Appeals of Oklahoma in Foster v. State, 779 P.2d 591 (Okla. Crim. 1989), noted the unconstitutional vagueness problem in Maynard v. Cartwright and held that the vagueness problem was satisfied with the inclusion of an additional instruc tioii to the jury that the ‘term “heinous” means extremely wicked or shockingly evil; “atrocious” means outrageously wicked and vile; “cruel” means pitiless or designed to inflict a high degree of pain, utter indifference to, or enjoyment of the sufferings of others.’ 779 P. 2d at 592. The Foster definitions of heinous, atrocious, and cruel were included verbatim in the trial court’s instructions to the jury herein.
“We find 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. It would be impossible to devise a laundry list of particular forms of killing that would encompass the intended subject. Thus, the statute has to rely on adjectives. As applied to the facts herein, there is no problem either. The forensic evidence established major trauma to virtually all parts of Rose Ann’s body. There was no estimate of how many times she was stomped upon. Blood found in multiple locations also established a lengthy period of assault and a slow death. The adjectives heinous, atrocious, and cruel are extremely apropos herein. This is certainly no borderline case for the application of this factor.” 251 Kan. at 174.
In the case before us the jury was instructed:
“DEFINITIONS: ‘Heinous’ — extremely wicked or shockingly evil.
‘Atrocious’ — outrageously wicked and vile.
‘Cruel’ — pitiless or designed to inflict high degree of pain, utter indifference to or enjoyment of sufferings of others as where death of victim was preceded by torture or serious physical abuse.”
We conclude Bailey is controlling on this issue.
HARD 40 NOTICE REQUIREMENT
For his next issue, defendant contends the notice requirement set forth in K.S.A. 1991 Supp. 21-4624(1) was not complied with and the hard 40 sentence is thereby invalid. The statute 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 supplied.)
The record reflects that on July 23, 1990, defendant was charged in 90-CR-1324 and served with the notice. On August 17, 1990, defendant was bound over and arraigned. No notice was served. On August 22, 1990, case No. 90-CR-1324 was dismissed by the State and, on the same day, case No. 90-CR-1516 was filed. The charges included the murder of Rose Ann Johnson. Notice was given at that time. Notice was also served at the time of arraignment on the new case. Defendant contends that the failure of the State to serve the notice at the arraignment in case No. 90-CR-1324 is a fatal flaw to the sentencing herein. We do not agree.
A virtually identical issue was raised in State v. Bailey, 251 Kan. 156, wherein we said:
“In his brief, defendant states he was arraigned in that case on July 23, 1990. This cannot be correct as the murder occurred July 21, 1990. Even with the implementation of court delay reduction procedures, the process could not have moved that rapidly. A more likely date for arraignment is August 17, 1990, which is the date mentioned in the hearing on the motion to dismiss the notice held October 12, 1990. One of the problems with using that date is that the defense counsel asserting it is not defendant’s counsel, but rather Richard Ney, attorney for James Walker. There is nothing in the record before us establishing that defendant herein and Walker were arraigned at the same time. Defense counsel for Bailey, our defendant herein, joined in Ney’s motion to dismiss, so we will assume August 17, 1990, is the date of arraignment in 90 CR 1324. It would further appear from the transcript of that hearing that a 21-4624(1) notice was attached to the complaint/information filed in 90 CR 1324. The State argued therein, and defense counsel did not dispute, that the defense was aware of said notice prior to the preliminary hearing. The argument made by defense counsel was not surprise or prejudice, rather that the statute was not technically complied with inasmuch as a copy of the notice was not served upon defendants at the arraignment.
“In the record before us is a journal entry of dismissal which dismissed 90 CR 1324 without prejudice on August 22, 1990. On the same day 90 CR 1516, which contains the same murder charge, was filed. The purpose of this, the State says, was to add some new charges relative to a different incident and to avoid any problems on the 21-4624(1) notice. Arraignment on the new case was had on September 13, 1990. A 21-4624(1) notice was served at that arraignment.
“Defendant argues that the State, by statute, has one chance to file a notice invoking the so-called “hard 40” and by not doing so by serving a copy of same at the arraignment in 90 CR 1324, the opportunity is forever gone. Further, the State cannot correct, its error by dismissing and refiling.
“. . . K.S.A. 1991 Supp. 21-4624 et seq. sets forth a lengthy and complex statutory scheme covering all aspects of the hard 40 procedure. The possibly severe consequences to a defendant were not intended to be a last-minute surprise or a matter of conjecture. If faced with a hard 40 prospect, a defendant should be aware of it and be able to plan his or her strategy accordingly. Notice at the time of arraignment serves this purpose. Under the facts before us, no prejudice has been shown to defendant in any respect and no legislative purpose is shown to have been defeated or impaired.” 251 Kan. at 167-69.
Bailey is controlling on this issue.
ERRORS IN HARD 40 PROCEEDING
For his final argument, defendant contends he was denied due process of law because: (1) He was not allowed to present evidence crucial to his theory of mitigation; (2) the trial court erred in refusing to instruct on his specific theories of mitigation; and (3) the trial court’s instructions failed to “instruct the jury in a manner which would adequately implement the new sentencing statute.” Each is considered in turn.
Defendant contends that the district court’s exclusion of the testimony of Dr. Sayed Jehan and medical records of the defendant’s mother were a breach of judicial discretion. We do not agree.
At the sentencing proceeding, Stephen Gray, a child custody investigator, testified defendant’s mother had a history of treatment for nervous conditions. Defendant then attempted to introduce, through Dr. Jehan, evidence of Ms. Walker’s mental condition and treatment. Ms. Walker was present and asserted her claim of physician-patient privilege. The State challenged whether or not the witness had relevant testimony to offer and was permitted a preliminary examination of the witness. The following occurred as a part thereof:
“[State’s attorney]: Have you ever had the occasion to do a psychological or psychiatric analysis on any individual by the name of James Walker?
“A. No. I haven’t.
“[State’s attorney]: Do you know what bearing, if any, your analysis or findings have to do with a Mr. James Walker?
“A. I don’t know at this time.”
The trial court upheld the claim of privilege and, further, held the witness had no relevant testimony to offer relative to James Walker.
We need not consider the claim of privilege. The record reflects the following exchange took place among defense counsel, the court, and Dr. Jehan:
“THE COURT: . . . And, further, Dr. Jehan has stated that he doesn’t have any opinion about James Walker. The fact is that it is no defense for James Walker, not a matter in mitigation that his mother suffered a lot of heartache and depression as a result of things that have happened in her life.
“MR. NEY: Well—
“THE COURT: He is the one responsible for his conduct, and if he wants to testify about his turbulent life, he’s perfectly free to do so. But this is not an appropriate way to go about it, and my ruling stands.
“MR. NEY: Well, Your Honor, we contend that this is appropriate evidence relating to his life. If his mother was hospitalized, as we said, 13 separate times during this time for mental illness—
‘THE COURT: Well, you’re just repeating what’s privileged to her without the authority to repeat it. Now, you’ve got a proffer of those medical records, and you have a proffer that, if permitted to do so, Dr. Jehan would say that couldn’t help but affect other members of the family. But I don’t think you can say in what way, can you?
“THE WITNESS: No, sir.
“THE COURT: I didn’t think so. So that’s my ruling.”
K.S.A. 1991 Supp. 21-4624(3) provides in part:
“In the sentencing proceeding, evidence may be presented concerning any matter that the court deems relevant to the question of sentence .... Any such evidence which the court deems to have probative value may be received . . . .”
Relevant evidence is statutorily defined as “evidence having any tendency in reason to prove any material fact.” K.S.A. 60-401(b). “Relevancy is more a matter of logic than of law. Evidence is relevant if it renders the desired inference more probable than it would be without the evidence or has any tendency in reason to prove a material fact.” State v. Faulkner, 220 Kan. 153, Syl. ¶ 6, 551 P.2d 1247 (1976). The admission of evidence rests within the sound discretion of the trial court subject to the exclusionary rules. State v. Carmichael, 240 Kan. 149, 157, 727 P.2d 918 (1986).
K.S.A. 1991 Supp. 21-4626 provides:
“Mitigating circumstances shall include, but are not limited to, the following:
“(1) The defendant has no significant history of prior criminal activity.
“(2) The crime was committed while the defendant was under the influence of extreme mental or emotional disturbances.
"(3) The victim was a participant in or consented to the defendant’s conduct.
“(4) The defendant was an accomplice in the crime committed by another person, and the defendant’s participation was relatively minor.
“(5) The defendant acted under extreme distress or under the substantial domination of another person.
“(6) The capacity of the defendant to appreciate the criminality of the defendant’s conduct or to conform the defendant’s conduct to the requirements of law was substantially impaired.
“(7) The age of the defendant at the time of the crime.
“(8) At the time of the crime, the defendant was suffering from post-traumatic stress syndrome caused by violence or abuse by the victim.”
Clearly, none of the statutorily set forth mitigating factors encompass the defendant’s mother’s medical history. The fact, standing alone, that the defendant’s mother may not have been a stable, warm, and nurturing parent is hardly a factor mitigating defendant’s role in the stomping of Rose Ann Johnson to death.
For whatever weight the jury wished to afford it, the jury, through the testimony of Stephen Gray, did hear testimony that Ms. Walker had a history of treatment for a nervous condition, conditions at the Walker home deteriorated after the defendant’s father died, and the Walker family never really recovered from the death of the defendant’s father.
The record is clear that Dr. Jehan had no relevant evidence to offer relative to defendant. He did not even have an opinion as to how the mother’s medical history might have affected defendant’s action on the day in question. Without expert testimony tying Ms. Walker’s medical records to some relevant issue, their admission would serve no valid purpose. We find no abuse of discretion in the claimed particulars.
Next, defendant contends the trial court erred in refusing to instruct the jury specifically that the defendant’s cooperation with the police after his arrest and his undesirable childhood situation could be considered as mitigating factors.
The court’s instruction set forth the statutory mitigating factors claimed to be applicable and that mitigating circumstances were not limited to those factors. Defense counsel was free to argue additional mitigating circumstances and tell the jury it could consider those circumstances in accordance with the court’s instruction.
It is difficult to see how cooperation with the police after arrest for the commission of a crime is mitigation for having committed the crime. As discussed in the preceding point, the fact defendant’s mother may not have been a good stable parent is difficult to consider as a mitigating factor in the vicious killing of an individual who played no role in the defendant’s upbringing.
In any event, we find no error in the trial court’s refusal to give an instruction specifically stating these two claimed mitigating factors could be considered by the jury.
For his final point, defendant argues that the trial court erred in refusing to give a number of proposed instructions in the sentencing proceeding relative to burden of proof, reasonable doubt, and presumption of innocence of aggravating factors.
The jury was instructed, in part:
“SUPPLEMENTAL INSTRUCTION CONCERNING PENALTY
“Ladies and Gentlemen of the jury, defendant has been convicted of Premeditated Murder in the First Degree. Now it is for you, to determine the appropriate penalty.
“In making this determination you may consider all the evidence, both that admitted in the trial in which guilt was determined and in this hearing in which additional evidence has been presented.
“If, by unanimous vote, you find beyond a reasonable doubt, one or more aggravating circumstances to exist, and find further the existing circumstance or circumstances not to be out-weighed by any mitigating circumstance or circumstances you may find to exist; then, the defendant shall be sentenced to imprisonment for Life and shall not be eligible for parole before serving forty (40) years imprisonment, which shall not be reduced by the application of good time credits.
“Aggravating circumstances you may consider shall be limited to the following:
[Five statutory aggravating factors were listed, followed by previously stated definitions of heinous, atrocious, and cruel.]
“Mitigating circumstances you may consider shall include but not be limited to the following:
“1. The crime was committed while the defendant was under the influence of extreme mental or emotional disturbances.
“2. The defendant was an accomplice in the crime committed by another person, and the defendant’s participation was relatively minor.
“3. The defendant acted under extreme distress or under the substantial domination of another person.
“4. The capacity of the defendant to appreciate the criminality of the defendant’s conduct or to conform the defendant’s conduct to the requirements of law was substantially impaired.
“5. The age of the defendant at the time of the crime.
“If you find one (1) or more aggravating circumstances exist, and do not find any mitigating circumstances or, do find mitigating circumstances but find mitigating circumstances to not out-weigh aggravating circumstances; then, your verdict shall recommend a mandatory forty (40) year minimum sentence.
“If this is the sentence imposed, the sentence will be for Life without eligibility for parole before serving forty (40) years without deduction for good time credit.
“If you find no aggravating circumstances, or find one (I) aggravating circumstance (or more) but find circumstances in mitigation out-weigh aggravating circumstances, then the sentence will be (imposed by the Judge) Life imprisonment with eligibility for parole after fifteen (15) years with no deduction for good time credit.
“Your verdict must not be imposed under the influence of passion, prejudice or any other arbitrary factor.
“It is your duty to deliberate, reason together, and listen to the arguments of each other with an open mind.”
Clearly, the jury was instructed that for an aggravating factor or factors to be found, the jury must do so unanimously and beyond a reasonable doubt. No such requirement is set forth as to mitigating factors. Defendant contends the absence of such requirement as to mitigating factors should have been spelled out in a specific instruction. We do not agree. We believe that the instructions as given adequately state the law in this regard.
Defendant further claims a presumption of innocence instruction should have been given relative to aggravating factors. We do not agree. The jury was properly instructed that the burden of proof as to aggravating factors was beyond a reasonable doubt. This was sufficient.
Little would be gained from listing each of the numerous instructions proposed by defense counsel. Each has been carefully considered. Many are repetitious and, if given in their totality, would be confusing to a jury. We are satisfied that the instructions given adequately stated the law under the circumstances herein. In so doing, we are not approving these instructions as a model to be used in other cases. Attention is directed to the hard 40 instructions set forth in PIK Crim. 2d 56.01 A-G (1992 Supp.).
The judgment is affirmed. | [
-16,
-22,
-7,
62,
11,
96,
43,
124,
66,
-9,
-76,
83,
41,
-50,
69,
121,
18,
-83,
84,
105,
-127,
-77,
103,
-63,
-74,
-69,
-37,
-34,
-77,
77,
-12,
-12,
8,
112,
10,
53,
-122,
-54,
-59,
22,
-118,
5,
-88,
-44,
-62,
10,
-86,
107,
114,
2,
-15,
46,
-69,
40,
24,
-61,
105,
44,
-53,
-84,
-111,
-79,
-55,
21,
-4,
22,
-125,
-90,
-100,
1,
-48,
37,
-104,
56,
32,
-24,
122,
-122,
-122,
-12,
77,
-119,
-52,
102,
98,
33,
24,
-17,
105,
-103,
46,
86,
-99,
-89,
-104,
16,
97,
13,
-98,
-99,
103,
21,
7,
-4,
-25,
15,
25,
-4,
-125,
-34,
-76,
-111,
-115,
48,
2,
-8,
-21,
5,
48,
113,
-57,
98,
76,
84,
82,
-101,
-114,
-75
]
|
Per Curiam:
This is a contested attorney disciplinary proceeding involving Mary Catherine Jackson, an attorney licensed to practice law in Kansas.
The hearing panel found respondent violated Supreme Court Rule 207 (1992 Kan. Ct. R. Annot. 160) by failing to cooperate with the investigation of four disciplinary complaints against her and that the failure to cooperate violated MRPC 8.4(g) (1992 Kan. Ct. R. Annot. 328) (engaging in conduct adversely reflecting on fitness to practice law) and may have violated MRPC 8.4(d) (engaging in conduct prejudicial to the administration of justice). The panel recommended respondent be suspended from the practice of law for one year.
The Disciplinary Administrator’s Office received complaints against the respondent on September 25, 1990; November 28, 1990; December 12, 1990; and January 16, 1991. Respondent was sent notification as each complaint was docketed. In each of the four letters notifying her that a complaint against her was being investigated, she was informed she should review Supreme Court Rule 207 (1992 Kan. Ct. R. Annot. 160), which imposes a duty on the attorney to cooperate and respond to inquiries by the state disciplinary authorities, and State v. Savaiano, 234 Kan. 268, 670 P.2d 1359 (1983), which states the level of cooperation required. Timothy Alvarez, a member of the Wyandotte County Bar Association Ethics Committee, was appointed to investigate each complaint against the respondent. After each appointment, Alvarez sent a letter to the respondent informing her that he had been assigned to investigate that complaint and requested a prompt response to the complaint. The respondent failed to respond to any of the letters or to cooperate in any of the four investigations, in violation of Supreme Court Rule 207.
At the panel hearing on November 26, 1991, Alvarez testified how Jackson’s failure to respond affected the investigations. He indicated that he wanted to review the respondent’s files to determine the status of the cases. He asserted it would have helped the investigations if Jackson would have explained her side of the story.
Also during the hearing, respondent acknowledged (1) she made no reply to the various letters received from Alvarez or the letters and notices received from the Office of the Disciplinary Administrator; (2) she had been disciplined by public censure, reported in In re Jackson, 249 Kan. 172, 814 P.2d 958 (1991), for violating Supreme Court Rule 207; and (3) she had been suspended on November 21, 1991, for her failure to comply with mandatory legal education requirements. Jackson summarized the various family and personal problems which interfered with her ability to practice law since February 1989 and then rested.
The panel determined that despite the prompt and thorough efforts of Alvarez to investigate the complaints, he was unable to make a determination on the issue of probable cause in any of the four matters. The panel found by clear and convincing evidence that the efforts of the investigating attorney were hindered by respondent’s lack of cooperation in each matter.
The panel took note of our Order of Public Censure in 249 Kan. 172, dated July 12, 1991. It observed that respondent, in that matter as in the present hearing, claimed personal and family circumstances prevented her from cooperating with the investigator. It pointed out that the respondent’s silence and inaction in the pending matters mirrors her response to the attempted investigation and formal complaint in the previous matter. The panel observed that each of the pending complaints was filed subsequent to the previous disciplinary hearing.
The panel concluded that respondent violated Supreme Court Rule 207 in each of the four pending cases by failing to cooperate with the investigative attorney or the Office of the Disciplinary Administrator. It further concluded that, under MRPC 8.4(g), respondent’s inaction constituted misconduct which adversely reflects on respondent’s fitness to practice law. The panel also observed that respondent may have engaged in conduct that is prejudicial to the administration of justice in violation of Rule 8.4(d). It concluded that the silence of respondent contributed to the inability of the investigating attorney to assess the merits of the underlying complaints and to determine the presence of probable cause in each matter. The panel recommended that respondent be suspended from the practice of law for a term of one year.
The respondent now asserts: (1) the hearing panel’s findings of fact are inaccurate and are not sufficient to support the panel’s conclusions and recommendations, and (2) the panel’s conclusions of law and the recommendations have no legal or factual basis. Respondent states there is sufficient substantial evidence for the complaints to have been resolved without a response from her. She claims that because there was no determination of probable cause in any of the four complaints, those allegations were obviously groundless and frivolous. Respondent argues little, if any, additional information could have come from her that was not already available to the investigator; therefore, her failure to cooperate caused little harm, if any.
Respondent contends a review of the circumstances existing at the time determines whether discipline was to be imposed. She argues circumstances existed which mitigate her failure to cooperate. During the panel hearing, Jackson mentioned medical problems of her son, the death of her paralegal, an auto accident in which she was involved, and psychiatric problems of her oldest son.
Respondent asserts Rule 207 does not specify the scope of the cooperation which an attorney must provide, nor does it requird such attorney to duplicate what is already available. Respondent neither identifies how her cooperation would have duplicated what information was already available nor indicates that she cooperated in the investigation.
Supreme Court Rule 207(b) imposes a duty on every lawyer subject to the jurisdiction of the Kansas Supreme Court to cooperate with and respond to the inquiries by the state disciplinary authorities at all stages of the proceedings, even when that lawyer is the subject of a disciplinary investigation. The language of Rule 207(b) is simple, straightforward, and unambiguous. It imposes the duty of cooperation on every lawyer under this court’s jurisdiction with one exception. That one exception, the right against self-incrimination, is contained in Supreme Court Rule 223 (1992 Kan. Ct. R. Annot. 186).
We agree with the panel that respondent’s failure to cooperate with the investigation of the complaint herein is a more serious matter than the rather sketchy facts before us relative to the underlying complaints would indicate. Like the panel, we acknowledge the respondent did have some major personal problems during at least some of the time period involved, but agree that respondent should have cooperated with the investigation. Cooperation with the investigation of a complaint is a necessary component of the attorney discipline system. Frequently, misunderstandings between an attorney and his or her client can be resolved informally where cooperation occurs. Without cooperation, the attorney’s side of the dispute is never presented to the board or Disciplinary Administrator until formal proceedings are instituted by which time a considerable amount of effort has been expended by the investigators and the hearing panel. See In re Hilton, 242 Kan. 770, 750 P.2d 417 (1988), and State v. Caenen, 235 Kan. 451, 459, 681 P.2d 639 (1984).
We find that respondent failed to cooperate in the investigation of the four underlying disciplinary complaints in violation of Rule 207(b). As noted earlier, this is not the first instance in which the respondent has refused to cooperate with the Disciplinary Administrator in an investigation of a complaint brought against her. Each of the complaints in this matter was filed subsequent to the previous disciplinary hearing and prior to our findings in 249 Kan. 172. Under these circumstances a majority of the court finds that the respondent should be disciplined by public censure.
It Is Therefore by the Court Ordered that Mary Catherine Jackson is hereby disciplined by this court by public censure, and she is hereby ordered to pay the cost of this proceeding forthwith.
It Is Further Ordered that this Order of Public Censure be published in the official Kansas Reports.
Abbott, J., not participating. | [
-80,
-8,
-51,
-19,
10,
34,
60,
14,
89,
-37,
119,
-45,
-19,
-50,
8,
127,
-8,
61,
17,
107,
-59,
-74,
127,
-64,
38,
-13,
-80,
86,
-70,
111,
-3,
-67,
72,
-72,
-118,
-59,
70,
-54,
-101,
30,
-114,
31,
-104,
-28,
83,
-64,
48,
123,
18,
15,
117,
79,
-93,
44,
25,
75,
-24,
40,
63,
109,
-24,
-47,
-117,
-107,
127,
16,
-110,
53,
-98,
-121,
-44,
126,
72,
56,
40,
-19,
97,
-74,
18,
116,
79,
-55,
-56,
102,
98,
33,
-55,
-90,
-88,
-120,
111,
60,
-100,
-94,
-103,
73,
73,
-115,
-106,
-75,
97,
84,
39,
-4,
-27,
5,
29,
108,
14,
-54,
-16,
-95,
31,
85,
-50,
27,
-17,
-90,
20,
113,
-116,
-25,
-50,
-62,
50,
27,
-49,
-80
]
|
On June 11, 1992, this court temporarily suspended respondent from the practice of law in the State of Kansas. The temporary suspension was a result of respondent’s convictions of two counts of felony theft in violation of K.S.A. 21-3701, and-one count of forgery in violation of K.S.A. 21-3710. This court held that respondent’s convictions adversely reflected on his fitness and ability to practice law.
Four disciplinary matters are presently pending against respondent. The allegations in these four cases are as follows:
1. The first case arises out of respondent’s three felony convictions. A hearing has been held and a panel report has yet to be filed. It was alleged in the formal complaint filed in this matter that all these convictions involved the misappropriation of funds.
2. The second case involves an allegation that respondent was dilatory in handling a legal matter for a client and also failed to properly account for money which he had received from a client.
3. The third case involves an allegation that respondent agreed to represent two individuals who were codefendants in a criminal case when apparent conflicts of interest were evident. It is also alleged that respondent failed to return the unearned portion of a retainer to one of the two clients.
4. The fourth case involves an allegation that respondent accepted a $5,000 retainer to pursue an appeal in a criminal case and failed to do so. It is also alleged that respondent failed to refund the unearned fee.
The Disciplinary Administrator’s Office is presently conducting investigations into two other complaints filed against respondent. The allegations in these complaints are as follows:
1. The first complaint involves an allegation that respondent converted funds from a personal injury case.
Dated this 19th day of November, 1992.
2. The second complaint involves an allegation that respondent failed to properly give notice to his client that he was withdrawing from the client’s case. In addition, it is alleged that respondent failed to account to his client for $300 paid by the client to respondent to obtain some transcripts.
On October 26, 1992, pursuant to Supreme Court Rule 217 (1991 Kan. Ct. R. Annot. 162), respondent voluntarily surrendered his license to practice law in the State of Kansas, effective October 27, 1992.
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 Zygmunt J. Jarczyk 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 Zygmunt J. Jarczyk 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. | [
-112,
-24,
-103,
-33,
10,
96,
-78,
46,
81,
-109,
119,
82,
-23,
-42,
68,
105,
-48,
93,
81,
107,
71,
-74,
127,
1,
98,
-69,
-8,
85,
-70,
95,
-28,
-75,
75,
48,
-126,
85,
6,
-54,
-9,
-36,
-114,
1,
8,
-64,
-37,
-120,
38,
77,
19,
3,
113,
-82,
-69,
107,
24,
74,
72,
108,
-81,
-84,
-63,
-107,
-101,
5,
126,
85,
-77,
5,
-100,
2,
-48,
47,
-120,
58,
0,
104,
51,
-78,
-126,
-12,
79,
-119,
-95,
102,
98,
34,
25,
-89,
-84,
-120,
47,
56,
-99,
-90,
-111,
64,
107,
12,
-106,
-99,
118,
6,
39,
-4,
-4,
13,
29,
124,
15,
-50,
-44,
-109,
-116,
118,
-50,
-101,
-17,
-90,
17,
81,
-124,
-26,
76,
87,
112,
27,
-81,
-11
]
|
The opinion of the court was delivered by
McFarland, J.:
Diana Lumbrera appeals her jury trial conviction of first-degree murder (K.S.A. 21-3401).
The facts are summarized as follows. Defendant was the mother of a four-year-old boy named Jose. On April 30, 1990, the child’s babysitter called defendant at work to advise the boy was vomiting and appeared to have a fever. Defendant left work to pick up the child. Later that day, defendant took the child to the emergency room of St. Catherine’s Hospital in Garden City. Abdominal pain and vomiting were the presenting symptoms. Amoxicillin was prescribed. No life threatening condition was diagnosed and the child was sent home with his mother.
The following evening á telephone call was received by the hospital from a woman who did not identify herself, stating that her son’s lips were blue and that he was not moving. Shortly thereafter, defendant carried the lifeless body of Jose into the hospital emergency room. Three observations were made at the time: (1) the child had petechiae (small purple spots on his face and eyelids); (2) no obstruction was present in the child’s airway; and (3) food was present in his stomach. The presence of petechiae is an indication of asphyxia. The cause of death was initially determined to be asphyxia by smothering as opposed to being the result of natural circumstances. It was also noted at the time that the medical records indicated that defendant’s five other children had died young in Texas and that their deaths were unattended. Results of the subsequent autopsy were consistent with the preliminary finding of death by smothering.
Defendant was questioned by police officers. She stated she had been the woman who had called the emergency room earlier. When asked whether she had smothered the child with a pillow, she replied it “wasn’t with a pillow.” Defendant was charged with and convicted of the first-degree murder of Jose. Other facts will be stated as necessary for the discussion of particular issues.
The bizarre circumstances involved in this case created a situation wherein extraordinarily careful judicial control was necessary to ensure a fair trial was had. There is merit in a number of the claims of trial error and abuse of judicial discretion. Even if no single error or abuse of discretion is sufficient to constitute reversible error, however, when viewed cumulatively in the to tality of the circumstances herein, we are convinced that defendant did not receive a fair trial. As we stated in Taylor v. State, 251 Kan. 272, Syl. ¶ 6, 834 P.2d 1325 (1992):
“Cumulative trial errors, when considered collectively, may be so great as to require reversal of the defendant’s conviction. The test is whether the totality of circumstances substantially prejudiced the defendant and denied him a fair trial. No prejudicial error may be found upon this cumulative effect rule, however, if the evidence is overwhelming against the defendant.”
The evidence of guilt against the defendant herein cannot be said to be overwhelming. Hence, we must reverse the conviction and remand the case for a new trial. We turn now to a discussion of the issues presented. 1
VENUE AND JURY SELECTION
Not surprisingly, there was a great deal of pretrial publicity concerning this case. This issue involves three separate points: (1) denial of change of venue; (2) denial of the request to sequester prospective jurors; and (3) denial of individual voir dire. Each of these points concerns the pretrial publicity herein. We shall first consider the change of venue point.
K.S.A. 22-2616(1) provides:
“In any prosecution, the court upon motion of the defendant shall order that the case be transferred as to him to another county or district if the court is satisfied that there exists in the county where the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial in that county.”
In State v. Ruebke, 240 Kan. 493, 731 P.2d 842, cert. denied 483 U.S. 1024 (1987), we discussed the issue of a change of venue based upon extensive pretrial news media coverage. Ruebke had been convicted of the murders of a babysitter and the two children for whom she was sitting. He argued that the pretrial publicity dictated a change in venue. We held:
“The determination of whether to change venue lies within the sound discretion of the trial court and will not be disturbed on appeal absent a showing of prejudice to the substantial rights of the defendant, with the burden upon the defendant to show prejudice in the community, not as a matter of speculation, but as a demonstrable reality. State v. Haislip, 237 Kan. 461, 701 P.2d 909 (1985). The defendant must show that such prejudice exists in the community that it was reasonably certain he could not have obtained a fair trial. There must be more than speculation that the defendant did not receive a fair trial. The State is not required to produce evidence refuting that of the defendant. State v. Sanders, 223 Kan. 273, 280, 574 P.2d 559 (1977).
“Indicative of whether the atmosphere is such that a defendant’s right to a fair and impartial trial would be jeopardized, courts have looked at such factors as the particular degree to which the publicity circulated throughout the community; the degree to which the publicity or that of a like nature circulated in other areas to which venue could be changed; the length of time which elapsed from the dissemination of the publicity to the date of trial; the care exercised and the ease encountered in the selection of the jury; the familiarity with the publicity complained of and its resultant effect, if any, upon the prospective jurors or the trial jurors; the challenges exercised by the defendant in the selection of a jury, both those peremptory and those for cause; the connection of government officials with the release of the publicity; the severity of the offense charged; and the particular size of the area from which the venire is drawn. Annot., 33 A.L.R.3d 17, § 2(a).
“Media publicity alone has never established prejudice per se. The trial court had no difficulty in finding from the jury panel jurors who stated that they could render a fair and impartial verdict. The small number of jurors dismissed by the court for cause and the effort of the judge to press no one into jury service who showed the slightest hint of prejudice established that there was no abuse of discretion in denying a change of venue. Unless we are to assume that (1) the jurors selected to try the defendant violated their oath when they swore that they could give the defendant a fair trial or (2) an individual can commit a crime so heinous that news coverage generated by that act will not allow the perpetrator to be brought to trial, the defendant has not established substantial prejudice. There was no abuse of discretion on the part of the court in denying the defendant’s motion for change of venue.” 240 Kan. at 498-501.
See State v. Goss, 245 Kan. 189, 193-95, 777 P.2d 781 (1989).
In this case, 129 veniremen were called. After the voir dire of 113 persons, 45 were passed for cause. The number of those excused on the basis of having formed opinions as a result of pretrial publicity was 41. The trial court ruled on the venue motion after completion of the voir dire and determined that the 45 remaining constituted a fair and impartial panel from which to select the jury. We have carefully reviewed the record and are satisfied that no abuse of judicial discretion has been shown in the trial court’s denial of the defendant’s motion to change venue. The defendant has not met her burden of proof to establish that defendant could not have received a fair trial in Finney County by virtue of the pretrial publicity afforded the case.
The other two points in this issue concern possible contamination of prospective jurors in the voir dire process. First, defendant contends it was improper to deny her request for individual voir dire of prospective jurors and, second, jurors who had been through the voir dire procedure should have been sequestered from those who had not.
The purpose of the voir dire examination is to enable the parties to select competent jurors without bias, prejudice, or partiality. The nature and scope of the voir dire examination is within the sound discretion of the trial court. State v. Zamora, 247 Kan. 684, 803 P.2d 568 (1990). Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only when no reasonable person would take the view adopted by the trial court. If reasonable persons could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion. State v. Wagner, 248 Kan. 240, 242, 807 P.2d 139 (1991). In determining whether the trial court has taken sufficient measures to assure that the accused is tried by an impartial jury free from outside influences, appellate tribunals have the duty to make an independent evaluation of the circumstances. Sheppard v. Maxwell, 384 U.S. 333, 362, 16 L. Ed. 2d 600, 86 S. Ct. 1507 (1966).
In order to place these points into perspective, it is necessary to first state the procedure followed. The prospective jurors were subject to voir dire in groups of 12. Prospective jurors not included in the particular panel of 12 were not sequestered during the questioning of the various panels. Defendant contends that prejudicial opinions on defendant’s guilt expressed by various prospective jurors thus spread like a virus through all prospective veniremen.
The record reflects that the danger of contamination was particularly great herein as the key aspect of pretrial publicity concerned the deaths of the other children. Far more details of their deaths were disseminated in the media than were introduced at trial. Pretrial publicity included the following “facts,” the truth or falsity of which is unknown.
1. Defendant’s five other children died in Texas; their names, ages, and dates of death were listed as:
a. Joanna — 3 months — November 30, 1976;
b. Jose Lionel — 172 months — February 13, 1978;
c. Melissa — 37a years — October 2, 1978;
d. Melinda — 27a years — August 17, 1982;
e. Christopher — 572 months — March 23, 1984.
2. Cause of death of some of the children was listed as asphyxia.
3. Ericka Aleman, a 272-month-old daughter of a cousin of defendant’s, died while in defendant’s care on October 2, 1980.
4. Texas officials had reopened their investigations in the deaths of all of these children as a result of the Finney County murder charge.
A number of prospective jurors discussed the facts disseminated as to the other children and expressed the opinion there were just too many deaths to be a matter of coincidence and felt they could not be impartial. Interestingly, the following'exchange occurred during voir dire:
“MR. QUINT [defense counsel]: Have any of you formed an opinion about this case? Go ahead, Mr. Sprague.
“JUROR: (Sprague) Maybe it doesn’t make any sense. I’ve heard more opinions here today than I had before I came in and it bothers me.
“MR. QUINT: To be honest, it bothers me as well.
■ “JUROR: Bothers me in the selection of the jury, because I think there’s an awful lot of prejudice that’s being dumped on us in this process.
“MR. QUINT: Do you feel that that has — that you’ve been affected by that?
“JUROR: Probably no, it has not. In terms of being a juror it’s not been, but it’s disturbed me about the process.
“MR. QUINT: Okay. You’ve heard things here during this questioning that you were unaware of or didn’t know was even being discussed. Am I — I don’t want to put words in your mouth.
“JUROR: No, I think it’s more in terms of the — I didn’t realize the depth of the prejudice, the prejudging of it. In some cases I think the people have been excused just — they found a way to be excused and that’s bothering me. I appreciate you hearing me.”
The trial court knew that little evidence relative to the deaths of the other children would be introduced because of its own prior ruling on the motion in limine filed herein. Discussions by prospective jurors of these “facts” and their opinions thereon was rendered all the more prejudicial in such circumstances.
We find no abuse of discretion in the trial court’s decision to commence voir dire in the manner it did, but conclude that it should have modified the procedure when the risk of contamination through juror comments became a reality rather than just a possibility proposed by defense counsel. Examination of the milieu in which the voir dire was conducted convinces us that defendant’s right to be tried by an impartial jury was jeopardized by the voir dire procedure utilized herein.
ALLEGED STIPULATION AS TO QUALIFICATIONS OF AN EXPERT WITNESS
For her next issue, defendant contends that the trial court erred in holding that defense counsel had accepted the State’s offer to stipulate to the qualifications of the defense’s expert witness, Dr. William G. Eckert. The defendant called Dr. Eckert to the wit-, ness stand and started questioning him on his professional background. The following then occurred:
“MR. PIERCE [county attorney]: Your Honor, at this time the State of Kansas would stipulate that the witness is an expert in the field, of forensic pathology, has written many articles and would stipulate to his expert qualifications.
“THE COURT: And would further stipulate upon proper foundation being laid this witness would be permitted to give his opinion?
“MR. PIERCE: Yes, Your Honor.
“THE COURT: Mr. Quint, you may proceed.
“MR. QUINT: Thank you, Your Honor.”
When defense counsel proceeded to question Dr. Eckert on his qualifications, the State objected on the ground a stipulation had been entered into in that regard. The objection was sustained. Defendant contends the State’s offer to stipulate was riot accepted by the defendant but was nonetheless enforced by thé court, and that she was prejudiced by her inability to place Dr. Eckert’s nationally recognized qualifications before the jury. Dr. Eckert, a pathologist, performed a second autopsy on Jose and concluded the child had died from a natural cause — a viral infection.
As we held in State v. Colwell, 246 Kan. 382, Syl. ¶ 4, 790 P.2d 430 (1990): “An offer by the State to stipulate to,the qualifications of an expert witness called by the defendant is merely an offer unless accepted by the defendant. Absent such acceptance, the defendant has the right to present the witness’ qualifications to the jury.”
Looking at the record in its entirety, the bulk of the qualifications of Dr. Eckert which defendant wished to introduce and which were admissible in nature did get before the jury. While not a substantial error, it was error for the trial court to have excluded the testimony based upon a nonexistent stipulation.
DENIAL OF ADDITIONAL FUNDS FOR EXPERT AND INVESTIGATIVE SERVICES AND OF CONTINUANCE
Defendant next contends the trial court’s denial of funds for an additional expert witness and for investigative services denied her the ability to prepare an adequate defense. Complaint is also made relative to the trial court’s denial of a 60-day continuance from the trial setting.
K.S.A. 22-4508 provides, in pertinent part:
“An attorney other than a public defender who acts as counsel for a defendant who is financially unable to obtain investigative, expert or other services necessary to an adequate defense in the defendant’s case may request them in an ex parte application addressed to the district court where the action is pending. Upon finding, after appropriate inquiry in the ex parte proceeding, that the services are necessary and that the defendant is financially unable to obtain them, the district court shall authorize counsel to obtain the services on behalf of the defendant.”
In State v. Mayberry, 248 Kan. 369, Syl. ¶ 7, 807 P.2d 86 (1991), we held:
“The authorization of funds for expert services necessary for an adequate defense in a criminal defendant’s case lies within the sound discretion of the trial court. Appellate courts will not disturb the trial court’s ruling unless the defendant shows prejudice to his or her substantial rights resulting from abuse in the exercise of the court’s discretion.”
Funds were provided to the defense to hire Dr. William Eckert, a pathologist. The defendant later requested additional funds to hire Dr. Thomas Noguchi, a nationally known pathologist, to review Dr. Eckert’s findings.
In denying this request, the trial court stated:
“So, your request to go out and get Thomas T. Noguchi, M.D., Los Angeles, California, for the tune of 11 or $12,000 is denied; but that’s not saying that, you know, if you can find a pathologist in consultation with Dr. Eckert that can at least view Dr. Eckert’s findings as well as Dr. Vachal’s [State pathologist performing the initial autopsy] findings, not for corroborative purposes, but only for surrebuttal, I will certainly look at it and consider it.”
A request had also been made to hire an expert on viral infections. In denying that request, the court stated:
“However, there has been some evidence of the possibility of viral infection versus bacterial infection, and if you can give me the name of the expert that you are attempting to contact and whether or not those slides are available for his review, and that they can be made and the expenses involved, I would certainly give that serious consideration.”
In ruling on post-trial motions, the trial court indicated it would have approved the hiring of a virologist if one had been requested.
On appeal, defendant claims error in the trial court’s refusal of funds to hire an additional pathologist to review Dr. Eckert’s findings. No claim is made that Dr. Noguchi was the only expert who could provide the needed expertise. The trial court’s comments indicate it would have considered providing funds for hiring a pathologist at a lesser expense. Apparently, no further request was made.
Under these circumstances, was the denial of funds to hire Dr. Noguchi an abuse of judicial discretion? We believe not.
On appeal, defendant argues that the lack of “up front” money precluded trial counsel from locating a suitable substitute expert for Dr. Noguchi. There is no showing, however, that the trial court was ever made aware of any such difficulty or was requested to provide “up front” money. The record does not reflect that such a request would have been futile as the trial court’s comments indicate a willingness to consider providing funds for the hiring of an additional expert.
The expert testimony from the pathologist was particularly crucial in this case, as cause of death was a prime issue. The State called a pathologist (Dr. Eva Vachal) in its case in chief as well as an ophthalmologist, both of whom testified that the petechiae could not be the result of bacterial or viral disease. Defendant called Dr. Eckert who attributed death to viral disease. In rebuttal, the State called three pathologists who testified there was no evidence of a life-threatening viral infection. Dr. Eckert then was the sole proponent of death from viral disease, and the weight afforded his testimony may have been reduced by the stipulation ruling relative to his qualifications and by a problem in his tes timony wherein he referred to having examined certain organs that were apparently not available for examination.
Defendant also complains of the trial court’s refusal to provide funds for the hiring of an investigator to interview witnesses. The State listed 70 persons as witnesses herein, some of whom resided in Texas. In denying the motion, the trial court stated:
“Now, as to your motion that you have pending on the request for investigative services at this particular time there has been absolutely nothing that I have heard at this time which would warrant the expenditure of hiring Williams Investigation for the purposes of going down and interviewing anybody in Texas. You have the telephone available to you. There’s nothing which shows me of any form of surprise or anything that may show exculpatory evidence in this instance. To me there’s no — nothing that shows that those persons down there are bound to provide or secrete or hide anything. Kansas interviews and evidence and preservation and trial assistance, as far as I’m concerned, I know Williams Investigation. That’s absolutely outside his area of expertise as far as trial preparation and preservation of evidence. There’s a way that that can be done.
“Kansas interviews, Mr. Quint [defense counsel], at this particular time there’s nothing that’s been shown to me in any of the statements to date or any of the evidence that I’ve heard which shows that there needs to go out and start beating the bushes for witnesses. If you can show me that your client can’t locate certain witnesses which you feel are going to preserve the. integrity of your case or help you present some affirmative defenses and they cannot be located then I’ll reconsider. But just to go out and talk to the State’s witnesses, there’s nothing in my opinion that says that necessarily investigative services should be expended. You use the telephone firSt and then we’ll see where we go from there.”
Clearly, the trial court believed investigative services could only properly be funded for the purpose of locating missing or unknown. witnesses as opposed to interviewing witnesses whose names and addresses were known. The statute (K.S.A. 22-4508) is not só restrictive.
The timé frame involved herein is also important. Defendant was arraigned on July 6, 1990, with jury selection set to commence September 16, 1990. On August 15, 1990, a pretrial conference was held. Included in the matters taken up was defendant’s request for a 60-day continuance in order to prepare its defense, file motions, and interview the numerous State witnesses. Granting the continuance would have created no speedy trial problems as such delay would be charged to the defendant. The trial-court denied the request, stating it believed that defense counsel had enough tíme to prepare for trial and that a 60-day continuance would put the trial date into bad weather conditions unfavorable to a trial. We believe the refusal to provide funds for investigative services when coupled with the refusal to grant the requested continuance constituted an abuse of judicial discretion. If defense counsel was to be required, personally, to interview all witnesses, then more time to accomplish the same should have been afforded. Under the circumstances herein, the aggregate effect of the two rulings seriously hindered defense counsel’s ability to prepare adequately for trial.
MUNCHAUSEN SYNDROME BY PROXY
Defendant’s next two issues concern the propriety of the State’s reference to and testimony concerning the psychiatric term, Munchausen Syndrome by Proxy.
Some background information must be stated before proceeding to a discussion of these issues. The State asserted two possible motives for defendant having smothered her son, Jose. The first was to collect the insurance proceeds. The second was that defendant enjoyed being the object of attention and sympathy such as is afforded the parent of a critically ill, injured, or dead child.
The pertinent part of the State’s opening statement is as follows:
“But secondly, the second motive that the State’s going to show is a different type of motive. A motive that people are not necessarily accustomed to hearing about. Diana Lumbrera had a need to obtain sympathy, a need to obtain people feeling sorry for her and her problems that she had. I believe that that syndrome is called Munchausen Syndrome, and we’ll have evidence to that effect, and it’s specifically called Munchausen Syndrome by Proxy; and the way she could get sympathy the evidence is going to show is by showing that her child had terrible sickness, terrible illnesses, life-threatening and debilitating problems that occurred all the time, and she was just a person who had to carry this cross. She had a cross to bear and that people would feel sorry for her.
“And, the evidence that we’re going to show is never more clear than the evidence you’re going to hear from the Golden Plains Credit Union three employees. Those employees are Pam McBride, a loan officer; Pearl Wilson, who is one of the cashiers; and Tammy Klaus, the custodian for the loan records. And what the evidence is going to show from these individuals is simply this; number one, from the cashier Pearl Wilson that she had a savings account that never really fluctuated. It always stayed very, very low; but number two, Pam McBride who was her loan officer there would get these stories. To approve loans you have to give a reason for the loan. And so, the loan officer would ask, why do you need this loan, what’s going on? And the evidence is going to show that Diana Lumbrera said my child had leukemia. He’s sick, he’s terminal, or something to this effect.
“The evidence is going to show that because of those statements of poor health on the part of the child a loan was granted to Diana Lumbrera; and then ten days before the death of the child another loan, which says he’s going to Mexico for treatment for his leukemia and for his problems, and on that trip to Mexico he got involved in a car accident and that car accident killed my father — that would be Diana Lumbrera — and it injured severely my son, Jose Lumbrera. However, the evidence is going to also show when you remember what I said earlier that the autopsy, no broken bones, no problems, no nothing, no leukemia, nothing. The reason for making those statements was two-fold; number one, to obtain money which was part of the motive; but number two, to obtain sympathy, to obtain attention to get sort of a feeling from other people that you’ve had a hard time; a sympathy junkie so to speak.
“Now, that evidence will also be brought to bear by the testimony of her direct supervisor at work, a woman by the name of Cyndi Brown, and Cyndi is going to come and testify that about a year earlier from the date of death she was told by Diana Lumbrera that her child had leukemia. Again, the evidence has already shown or will show that this child did not have leukemia, cancer or any sort of maladies such as that.”
During the trial, the above referred to evidence concerning defendant’s actions and statements relative to Jose was forthcoming.
As a part of the testimony of Dr. Lauren Welch, a surgeon present in the hospital emergency room when the body of Jose was brought in, the State introduced its exhibit No. 6, which was an article from the British Medical Journal entitled “Suffocation.” Defense counsel obj’ected thereto on the grounds the article did not qualify as a learned treatise and was both irrelevant and hearsay. The exhibit was admitted.
Dr. Eva Vachal, the pathologist performing the official autopsy herein, testified that, in conjunction with this case, she had been reading and researching on the psychiatric terms Munchausen Syndrome and Munchausen Syndrome by Proxy. Defense counsel objected to any testimony on the subject by the witness as the subject was outside the witness’ area of expertise. The objection was overruled. The witness then testified as follows:
“Q. [By State’s attorney] What is Munchausen Syndrome, a broad definition?
“A. A broad definition would be when an individual self inflicts or fakes an illness for the puipose of gaining sympathy or become the center of attention.
“Q. Now, what is Munchausen Syndrome by Proxy?
“A. That would be when a child — a parent would inflict on a child an illness or fake symptoms of an illness in order for the parent to be the center of attention or gain sympathy, and they gain that through the child; and the child is the one with the fake illness or the fake symptoms.
“Q. Okay. Now, does the parent create these fake symptoms for the child in Munchausen by Proxy?
“A. Yes.”
There was no expert testimony attempting to prove defendant suffered from either syndrome. At the conclusion of the State’s case in chief, on motion of the defendant, all testimony relative to either Munchausen Syndrome was ordered stricken and the portion of State’s exhibit No. 6 referring thereto was deleted. The jury was then admonished as follows:
“When we had recessed on Thursday the State had concluded it’s case in chief. Since that time Mr. Quint on behalf of his client has asked that I reconsider some of the rulings that I made last week, and after having reviewed the basis for those rulings and permitting certain evidence to come in I have sustained Mr. Quint’s objections. As you’ll recall when — right before we recessed last Thursday the State had recalled Dr. Vachal and asked Dr. Vachal to define the term Munchausen Syndrome and Munchausen Syndrome by Proxy.
“At this time there is no foundation having been laid by the State for the purpose of that, and you are to completely disregard Dr. Vachal’s testimony as it has to do with that term, and you are to remove that term from any of your deliberations and strike that from your deliberations and considerations.”
Defendant contends the error in admitting this evidence was not overcome by the striking of same and the trial court’s admonition to the jury. We do not agree.
One of the State’s two theories relative to the motive for the homicide was that defendant was, in the State’s term, a “sympathy junkie” who derived gratification from being the object of sympathy arising from other peoples’ reaction to illness, injury, or death of her child. The State had a right to present its theories. The whole Munchausen testimony was just to establish there was a recognized scientific name afforded to such a condition. There was no expert evidence offered that defendant suffered from such a condition. Such testimony in the overall picture was of a rather minor significance not to be equated with, say, admitting a confession and then attempting to strike it from the minds of a jury with an admonition. Here, the jury was properly admonished. We must assume the jury complied with the trial court’s admonition. See State v. Pink, 236 Kan. 715, 696 P.2d 358 (1985), overruled in part on other grounds State v. VanCleave, 239 Kan. 117, 119, 716 P.2d 580 (1986).
As a second related issue, defendant contends it was error for the State to refer to the Munchausen Syndrome in its opening statement. A similar issue was raised in State v. Pink, 236 Kan. at 724, where we held:
“Absent substantial prejudice to the rights of the defendant, there must be a showing of bad faith on the part of the prosecutor before relief may be granted as a result of a prosecutor’s reference in his opening statement to matters not provable or which he does not attempt to prove during the trial. State v. Woods, 218 Kan. 163, 542 P.2d 319 (1975); State v. Campbell, 210 Kan. 265, Syl. ¶ 9, 500 P.2d 21 (1972). See also 1 ABA Standards for Criminal Justice, Prosecution Function, Standard 3-5.5. We find the prosecutor made a good faith effort to present all evidence alluded to in his opening remarks. The defendants have failed to meet their burden of showing bad faith.”
Here, the State presented a theory that the obtaining of sympathy was a motive for the crime. The State introduced evidence showing defendant had previously fabricated stories of others’ catastrophic illness and injury to obtain money and for no apparent reason other than sympathy. This is what it said it would do in its opening statement. It attempted to show such a desire for sympathy is termed the Munchausen Syndrome by Proxy. The jury was instructed that statements, arguments, and remarks of counsel are not evidence and that if any statements are made that are not supported by the evidence, they should be disregarded. As previously noted, all evidence relative to either Munchausen Syndrome was stricken and the jury properly admonished in regard to same. There is no showing of substantial prejudice to the defendant from the brief reference to the syndrome in the opening statement or bad faith on the part of the prosecutor. Error there was, but standing alone the issue raised relative to the Munchausen Syndromes does not rise to the status of reversible error.
DEATHS OF DEFENDANT’S OTHER CHILDREN
For her next issue, defendant contends it was error to allow the prosecutor to refer in its opening statements to the deaths of defendant’s five other children and to permit evidence thereof to be admitted at trial.
At the pretrial conference herein, the State indicated it intended to introduce evidence of the other children’s deaths to show plan under authority of K.S.A. 60-455. The trial court ruled that: “[T]he prejudice outweighs the probative value and the State’s request to use [K.S.A.] 60-455 as to preparation is denied.” The trial court had before it at the time a chart which apparently gave some details' of the other deaths, presumably names, ages, dates, places, etc. After making the preceding ruling as to K.S.A. 60-455, the following exchange occurred between the court and counsel:
“Now then, Mr. Quint [defense counsel], if in your case in chief you should raise anything which puts plan, motive, intent or preparation in dispute the State may at that time in proper rebuttal raise these issues. What I’m saying is, Mr. Pierce [prosecutor], if you call Dr. Vachal in your case in chief she can make no reference as to these specific cases. If there is evidence which was provided to her by statements given by Mrs. Lumbrera or upon other evidence to doctors or other evidence to law enforcement that there had been 6 previous unattended, unexplained deaths and she used that, that’s fine; but getting into the particulars, no. If, Mr. Quint, in your case in chief you should raise any of this type of information or should in any way whatsoever open the door for any rebuttal testimony to come in in any medical testimony that you present it may open the door. I would look at it very carefully. By I, I’m talking about you yourself, Mr. Pierce and the Court.
“MR. QUINT: Court is speaking of any information that the chart refers to and was referred to in the testimony regarding the chart?
“THE COURT: Absolutely.”
The defendant characterizes the court’s rulings as excluding the subject of the other deaths in toto unless the subject was opened up in the defendant’s case in chief, and, accordingly, the reference to the deaths in the State’s opening statement and the evidence admitted of samé in the State’s case in chief were in violation of the court’s rulings and thus erroneous. The State contends the trial court only excluded specific references to who died, when, where, etc., and did not exclude a general reference. The rulings are unclear but it appears that the court anticipated that some evidence could well come in through Dr. Vachal in the State’s case in chief.
Before proceeding further, let us examine just what was before the jury on this subject. The reference in the State’s opening statement is as follows:
“The evidence is going to show that Dr. Michael Shull went out after pronouncing the child dead and talked with Diana Lumbrera, and that she fainted and that he was concerned about her health. The evidence is going to show that he opened up the medical history file [of] Diana Lumbrera and tried to determine if she had any medical problems that he needed to worry about and found that she had a history of having 5 children and all 5 of those children had died.
“MR. QUINT: Your Honor, objection. I think we dealt with an issue in our motion—
“THE COURT: Objection is overruled.
“MR. PIERCE: Now, the evidence is going to show that Dr. Michael Shull with this history became suspicious and decided to call law enforcement, and Melissa Peterson of the Garden City Police Department responded after members of the Garden City Police Department dispatch team, the 911 number if you will, received calls from the hospital and basically Melissa Peterson, our first witness, was assigned to do the initial investigation; and she talks to Dr. Michael Shull and gets his opinion.”
Officer Peterson was called and testified, inter alia, that as the first officer on the scene she was told by Dr. Shull that police were called because he was suspicious of Jose’s death as á result of learning of the other five deaths. This testimony was objected to and struck because Dr. Shull was the person who should testify to his own actions. Dr. Shull then testified along the lines outlined in the opening statement. The defendant objected, but the trial court held its pretrial ruling did not extend to this testimony. Then, Detective Kendall Elliott testified defendant told him she had had five other children who had died and had been vague as to names and dates. This testimony was very brief and gave no specifics.
The trial court’s ruling is rather unclear about just what limitations were being placed on evidence relative to the other deaths. By virtue of the trial court’s rulings on the various objections, it is clear that it did not believe the State had exceeded the limitations imposed, either in its opening statement or in the limited evidence introduced on the subject. Under such circum stances, we conclude the bad faith requirement relating to remarks in opening statements has not been met. Defense counsel’s objections all go to the evidence and to statements exceeding the judicially imposed limitations, rather than to the statements themselves being in any way improper. Additionally, one unobjected to reference to the deaths was contained in the autopsy report which was before the jury.
Regardless, however, of whether or not such evidence should have been admitted, there is another difficulty. No limiting instruction was given defining the purpose for which the jury could consider the evidence. Without such an instruction, such evidence was a loose cannon in the case. The jury was free to conjecture and speculate as to the other deaths and factor in these conjectures and speculations in determining defendant’s guilt or innocence in the death of Jose. As will be recalled, no specific details of the other deaths were introduced in accordance with the court’s rulings. Only the general statements that the five previous deaths had occurred was before the jury. The jury, thus, had few facts relative to the deaths before it but unlimited opportunity to speculate on what may or may not have occurred. Given the bizarre facts herein, at the very least, a limiting instruction should have been given.
REFUSAL TO INSTRUCT ON INVOLUNTARY MANSLAUGHTER
Next, defendant contends it was error not to instruct on involuntary manslaughter as a lesser included offense.
A trial court has an affirmative duty to instruct the jury on all lesser included offenses established by the evidence. An instruction on a lesser included offense must be given even though the evidence supporting the lesser offense may not be strong or extensive. However, the instruction need not be given if there is no evidence by which a rational factfinder might find the defendant guilty beyond a reasonable doubt of the lesser included offense. State v. Stallings, 246 Kan. 642, Syl. ¶ 3, 792 P.2d 1013 (1990).
Here, no instruction on involuntary manslaughter was given, nor was such an instruction requested or an objection to the omission lodged. In fact, defense counsel agreed that such an instruction would be inappropriate.
The crime of 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. Involuntary manslaughter is a lesser degree of the crime of murder. State v. Burnison, 247 Kan. 19, 27-28, 795 P.2d 32 (1990).
The State’s theory of the case was that defendant intentionally and with premeditation smothered the child. The defense theory was that the child died from a natural cause — a viral infection. On appeal, defendant argues that an involuntary manslaughter instruction should have been given. The argument goes like this; On April 30, Amoxicillin, an antibiotic, was prescribed for Jose. None of the drug was found in Jose’s blood at the autopsy. Hence, the defendant’s failure to give the drug may have caused Jose’s death, which would constitute the crime of involuntary manslaughter. Critically lacking from such argument is any evidence admitted to the effect that failure to give Amoxicillin, prescribed for a bacteriological infection, could have any adverse effect on a viral infection. Thus, there was no evidence from which the jury could have concluded that the failure to give the child the drug caused his death. We find no merit in this issue.
CLOSING ARGUMENTS
The trial court asked counsel if there was any need to make a record of closing arguments. Defense counsel stated that he believed there was a Supreme Court rule requiring the same to be on the record. The trial court responded “No. Absolutely not.” Both counsel then agreed that the closing arguments need not be on the record.
The version of Supreme Court Rule 3.03 (1991 Kan. Ct. R. Annot. 14) in effect at the time of the trial herein provided, in pertinent part: “In a criminal case, the transcript shall include the trial, the instructions conference, closing arguments of counsel, and any hearing on a motion for a new trial.”
Effective October 9, 1992, Supreme Court Rule 3.03 (1992 Kan. Ct. R. Annot. 15) was amended to provide, in pertinent part:
“(a) REQUESTING TRANSCRIPTS; DUTY OF APPELLANT; STIPULATION. When an appeal is taken in a case in which the appellant considers a transcript of any hearing necessary to properly present the appeal, it shall be the duty of the appellant to request a transcript of such hearing within twenty-one days (21) days of the filing of the notice of appeal in the district court. Unless all affected parties stipulate as to specific portions which are not required for the purposes of the appeal, the request shall be for a complete transcript of any such hearing, except for the jury voir dire, opening statements and closing arguments of counsel, which shall not be transcribed unless specifically requested.”
Rule 3.03 applies to transcripts of the record on appeal. There is apparently no rule specifically requiring closing statements to be on the record. However, a transcript obviously cannot be made of matters not on the record. Supreme Court Rule 3.04 (1992 Kan. Ct. R. Annot. 16) concerns the procedure to be followed in the absence of an official transcript, but such reconstruction is particularly difficult in the area of closing arguments.
In a high percentage of criminal appeals, the defendant’s appellate counsel is a different person than his or her trial counsel. This is due in part to the existence of the Kansas Appellate Defender Office. Defendant’s appellate counsel herein, of that office, contends that the absence of a record herein from which a transcript could be made prevents her from adequately representing her client.
Closing arguments, in criminal cases particularly, should be of record. We conclude it was error not to have the closing arguments of record herein. We need not determine the extent of prejudice resulting therefrom as we are reversing on the basis of cumulative error.
DENIAL OF PROBATION
Defendant concedes that, absent a specific statute, the decision of whether or not to grant probation is a matter of judicial discretion and ordinarily not appealable. As we held in State v. VanReed, 245 Kan. 213, Syl. ¶ 1, 777 P.2d 794 (1989): “A decision whether or not to grant probation is exclusively a function of the trial court pursuant to K.S.A. 21-4603, and as a general rule a decision denying probation is not subject to appellate review.”
Here, however, defendant contends the matter is appealable as the trial court did not exercise its discretion in denying pro bation. Support for this position is found in the rationale expressed by the trial court in denying, the request for probation. The trial court stated:
“At this time I’m quite familiar with the provisions of K.S.A. 21-4601 which are the parameters that the Court must consider in imposing sentences and the tests that the Court must employ and look at, and also the public policy of this State as mandated by our legislature. I’m also quite familiar with K.S.A. 21-4603 as it has to do with authorized dispositions on sentences for felonies; but I’m also very familiar with K.S.A. 22-3717 which says parole eligible release hearings, et cetera, and it states under subparagraph [b] thereof an inmate sentenced for a class A felony including an inmate sentenced pursuant to K.S.A. 21-4618 — counsel, as you are aware that’s the mandatory firearms statute — shall be eligible for parole after serving 15 years of confinement without deduction of any good time credits. I am of the opinion since the legislature has heen so clear in its statement as to eligibility for parole for a class A felony that that makes it very clear to me that the public policy of this state states anybody convicted of a class A felony should not be considered for probation. On that basis and my recitation of the law that I feel that the application for probation should be denied. ” (Emphasis added.)
We conclude that the trial court’s analysis was erroneous. Parole eligibility requirements set forth in K.S.A. 1991 Supp. 22-3717, by their very nature, apply only to persons serving sentences of imprisonment. The statute has no application to determination of whether or not probation should be granted. The trial court stated it did not consider probation herein because of 22-3717. Hence, judicial discretion was not involved in the denial of probation. Inasmuch as we are reversing the conviction and remanding the case for a new trial, there is no need to remand for resentencing.
CONCLUSION
As previously stated, we have concluded the conviction herein must be reversed on the basis of our consideration of cumulative trial errors. By virtue of the extensive media coverage herein, both as to pretrial proceedings and the trial itself, we believe that the right to a fair trial before an impartial jury can only be assured by a change of venue for trial on remand. The trial court and counsel are directed to contact the departmental justice, who will then determine where the trial should be held and assign a judge to conduct said trial.
The judgment of the district court is reversed and the case is remanded for a new trial in accordance with the directions set forth in the opinion. | [
-16,
-20,
-91,
-116,
58,
97,
40,
24,
87,
-93,
-27,
115,
-81,
-45,
-107,
107,
59,
55,
-43,
97,
-14,
-73,
23,
97,
-38,
-37,
112,
-43,
-13,
110,
-10,
-2,
77,
32,
-126,
-43,
-30,
75,
-45,
82,
-126,
-121,
-87,
-16,
11,
-110,
36,
50,
-2,
7,
53,
14,
-29,
42,
62,
-54,
40,
42,
122,
61,
-36,
-15,
10,
-123,
-49,
16,
-93,
-92,
-98,
-115,
-40,
52,
-39,
49,
0,
-20,
50,
-74,
-118,
116,
111,
-87,
28,
-28,
71,
-91,
93,
-27,
104,
-39,
47,
78,
52,
-89,
31,
89,
74,
12,
-105,
-3,
124,
116,
14,
120,
-17,
81,
95,
-28,
72,
-49,
-108,
-103,
-49,
48,
30,
48,
-29,
39,
50,
101,
-51,
48,
84,
-62,
91,
-103,
-98,
-78
]
|
The opinion of the court was delivered by
Lockett, J.:
Earl Eugene Green was found guilty of second-degree murder, K.S.A. 21-3402, a class B felony. Green appeals, claiming: (1) his right to a speedy trial was violated; (2) he did not receive a fair trial because of the late endorsement of a witness for the State; and (3) there was insufficient evidence to convict him of second-degree murder.
On September 13, 1990, Daniel Evans was strangled to death and then bludgeoned. Because Mr. Evans was dead before he was beaten, there was relatively little blood at the scene of the murder. However, there was sufficient blood at the scene to search for blood on the clothing of the killer to obtain a DNA comparison.
During the initial investigation, law enforcement officers obtained information from four of the deceased’s neighbors that the defendant had been seen in the area of the deceased’s house twice on the night the victim was killed. The witnesses informed the officers that Green was carrying a white “Black Bart” T-shirt in his hip pocket.
The Leavenworth Police Department gathered sufficient information to obtain a search warrant for Green’s residence. The affidavit for the search warrant stated that the Black Bart T-shirt could be found at the defendant’s residence. During the search of the Green home, several items, including a Black Bart T-shirt, were seized. The Black Bart T-shirt, when tested through DNA analysis, was found to have the blood of the victim on it.
DEFENDANT’S RIGHT TO A SPEEDY TRIAL
Under the Sixth Amendment to the Constitution of the United States and § 10 of the Bill of Rights of the Kansas Constitution, the accused- in a criminal prosecution is guaranteed the right to a speedy trial. In addition to the applicable provisions of the state and federal constitutions, the Kansas Legislature has implemented a statutory limitation, K.S.A. 22-3402, which specifies the time within which an accused must be brought to trial. State v. Clements, 244 Kan. 411, 413, 770 P.2d 447 (1989).
K.S.A. 22-3402(1) provides:
“If any person charged with a crime and held in jail solely by reason thereof shall not be brought to trial within ninety (90) days after such person’s arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (3).”
The purpose of K.S.A. 22-3402 is to implement the accused’s constitutional right to a speedy trial. It is the State’s obligation to insure that an accused is provided a speedy trial. Delays which are the result of the application or fault of the accused are not counted in computing the statutory speedy trial period.
Green was arraigned on December 14, 1990. N.inety days from December 14, 1990, would be March 14, 1991. Green was brought to trial on June 17, 1991, 185 days after arraignment. Defendant, who was held in custody prior to his trial, contends his right to a speedy trial as established by K.S.A. 22-3402(1) was violated. He provides no argument in support of his contention except to point out that more than 180 days elapsed from his arraignment until trial. Green claims that all but 14 days of the delay is attributable to the State.
K.S.A. 22-3402(3) provides that the 90-day limitation imposed by subsection (1) of K.S.A. 22-3402 may be extended if:
“(c) [t]here is material evidence which is unavailable; . . . reasonable efforts have been made to procure such evidence; and . . . there are reasonable grounds to believe that such evidence can be obtained and trial commenced within the next succeeding ninety (90) days. Not more than one continuance may be granted the state on this ground, unless for good cause shown, where the original continuance was for less than ninety (90) days, and the trial is commenced within one hundred twenty (120) days from the original trial date.”
Trial was originally set for February 25, 1991. On that date the trial was continued to March 18, 1991. On February 28, 1991, the State filed a motion to extend the time to bring the defendant to trial by 30 days because the DNA test results from Life Codes, Inc., would not be available until March 11, 1991. The State’s motion for a 30-day continuance for good cause was granted.
On March 27, 1991, the State filed a second motion to extend the time required to bring the defendant to trial because material evidence was not available, this time requesting an extension of 90 days. In its motion, the prosecution stated that the DNA test results from Cellmark Diagnostics would not be available prior to April 8, 1991, and, in addition, one of the State’s witnesses, Dr. James Bridgens, a forensic pathologist, was out of the United States until April 23, 1991. The State’s motion for a second continuance was also granted by the court. Green’s trial commenced on June 17, 1991, 112 days after the original February 25, 1991, trial setting.
Continuances may be granted to the accused in the discretion of the trial court. However, the State’s right to a continuance is limited. See K.S.A. 22-3402(3)(c) and (d). Where material evidence is unavailable and reasonable efforts have been made to procure the evidence, a second continuance ordered by the court is reasonable and proper where the first continuance was for less than 90 days and the trial commenced within 120 days from the trial date on which the first continuance was granted. See State v. Welch, 212 Kan. 180, 509 P.2d 1125 (1973). Defendant’s, trial commenced within the 120-day period allowed by K.S.A. 22-3402(3) when material evidence is unavailable to the State. Green’s claim that his statutory right to a speedy trial was violated has no merit.
Green also claims that his constitutional right to a speedy trial was violated. The constitutional right to a speedy trial is analyzed in Barker v. Wingo, 407 U.S. 514, 530, 33 L. Ed. 2d 101, 92 S.Ct. 2182 (1972). Barker adopted a four-part balancing test to be applied on a case-by-case basis: (1) length of delay; (2) the reason for the delay; (3) the defendant’s assertion of his or her right; and (4) prejudice to the defendant. The length of the delay is to some extent a triggering mechanism. Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance. We have adopted the Barker rationale. State v. Smith, 247 Kan. 455, 459, 799 P.2d 497 (1990); State v. Rosine, 233 Kan. 663, 667, 664 P.2d 852 (1983).
Green fails to state why the delay in his trial is presumptively prejudicial or to show any prejudice resulting from the delay. Green was not denied his statutory or constitutional right to a speedy trial.
STATE’S LATE ENDORSEMENT OF A WITNESS
The Black Bart T-shirt seized by officers executing the search warrant was found through DNA testing to have blood on it which matched the victim’s blood. During the three-day trial, the State called three witnesses who had previously informed the police that on the night Evans was murdered Green was carrying a white Black Bart T-shirt in the rear pocket of his pants. These witnesses, testifying at trial as witnesses for the State, disavowed any knowledge of the type of shirt the defendant was carrying the night Evans was killed.
On the third day of the trial, the State moved to endorse Denise Moore as a witness. Moore had not previously been endorsed as a witness in the information. The State asserted that Moore had not been endorsed because the first part of her one-paragraph written statement was prejudicial to defendant in that it referred to defendant’s father as being in jail and the second part, which dealt with the identification of the Black Bart T-shirt, was cumulative to the expected testimony of three other witnesses. The State asserted that because those witnesses recanted their statements as to the Black Bart T-shirt, it was necessary to call Moore as a witness.
Defense counsel objected, arguing the State had ample opportunity to endorse the witness on the information and he did not have a copy of Moore’s statement. The State indicated it had previously sent a copy of the statement to defense counsel. The court noted the State’s file had been open to the defendant and that it was a matter of inadvertence, not design, that Moore’s statement was not provided to defense counsel. The court found the State’s failure to endorse Moore as a witness was innocent and not designed to prejudice the defendant. After the court allowed the endorsement of Moore as a State witness, defense counsel was given an opportunity to review the statement and interview Moore.
After discussing her testimony with the State and being interviewed by defense counsel, Moore was called by the State to testify. Denise Moore stated that the shirt in question was not the shirt she had seen the defendant with the night of the murder. She originally thought it was the shirt, but unlike the shirt the State was attempting to introduce into evidence, the one she had seen defendant with that night had only one Black Bart on it.
Green contends he was severely prejudiced by the State’s late endorsement of Denise Moore. His argument is that Moore’s testimony was prejudicial because it was the only evidence linking him to the T-shirt with the victim’s blood. Defendant contends Moore’s evidence was known by the State prior to his arrest and the State failed to inform him of the witness even though the court had ordered that the names of all previously unidentified witnesses, as they became known, were to be given to the defendant. Defendant asserts that because the witnesses the State listed and their statements did not link him to the item of clothing with the deceased’s blood on it, the earlier evidence of DNA testing had not been critically attacked by his counsel. Green alleges that prior to Moore’s testimony, his defense was there was no direct connection between him (Green) and the victim or the manner in which the victim was killed. Green claims- that under these circumstances the State’s failure to comply with the order to inform the defendant of all witnesses should not be rewarded by allowing the endorsement of the witness.
K.S.A. 22-3201(6) has been construed to confer broad discretionary power on the trial court in allowing a late endorsement. This court will not condone surprise caused by the intentional withholding of the name of a witness as a part of the prosecution’s trial strategy. State v. Stafford, 213 Kan. 152, 164, 515 P.2d 769 (1973), modified 213 Kan. 585, 518 P.2d 136 (1974). The purpose of the endorsement requirement is to prevent surprise to the defendant and to give the defendant an opportunity to interview and examine the witnesses for the prosecution in advance of trial. State v. Stafford, 213 Kan. at 164. The trial court commits reversible error in allowing a late endorsement when such endorsement results in surprise or material prejudice to defendant, preventing “a fair preparation of his defense.” State v. Wilson & Wentworth, 221 Kan. 359, 364-65, 559 P.2d 374 (1977). A trial court’s order permitting a late endorsement of a witness is not to be overturned absent an abuse of discretion. The test is whether the defendant’s rights have been prejudiced. State v. White & Stewart, 225 Kan. 87, 91, 587 P.2d 1259 (1978).
Like the State’s other three witnesses, Moore also failed to identify the shirt seized at the Green residence as the shirt the defendant was carrying that night. Her testimony was cumulative. Defendant has failed to show actual prejudice in the ability to defend his case. The trial judge did not abuse his discretion in allowing the late endorsement of the witness.
SUFFICIENT EVIDENCE TO CONVICT THE DEFENDANT
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. State v. Evans, 251 Kan. 132, Syl. ¶ 1, 834 P.2d 335 (1992).
Defendant argues that the case against him is largely circumstantial. The only evidence connecting him to the crime was a T-shirt, which none of the witnesses could identify, and which, when tested, had blood of the victim on it. He contends that except for this evidence, which should not have been admitted, there is little evidence on which to base his conviction. Defendant argues it is not proper to uphold a conviction based on evidence which should have been excluded.
Although defendant does not clearly say so, he apparently argues that Moore’s statement or testimony at trial or both were the only evidence linking defendant to the T-shirt. W'e disagree. The police officer testified that the four neighbors had stated that they had seen the defendant with the T-shirt. Green fails to note that the T-shirt was described in the search warrant issued for defendant’s residence. The T-shirt was found in the defendant’s bedroom, which he shared with his brother. There was also evidence that Green suddenly came into possession of some money. The credibility of the witnesses who disavowed knowledge of the Black Bart T-shirt after their prior statements to the police officer was a matter for the jury to determine.
A conviction of even the gravest offense may be sustained by circumstantial evidence. State v. Bailey, 251 Kan. 156, 164, 834 P.2d 342 (1992). The evidence, when viewed in the light most favorable to the prosecution, indicates a rational factfinder could have found Green guilty of the crime charged beyond a reasonable doubt.
Affirmed. | [
-80,
-22,
-7,
31,
57,
98,
43,
24,
82,
-109,
96,
115,
41,
-53,
5,
123,
-38,
-3,
85,
105,
116,
-73,
55,
-23,
-78,
-13,
-5,
-43,
-9,
91,
-90,
-3,
8,
112,
74,
-107,
-26,
72,
81,
-38,
-114,
3,
-103,
-16,
82,
66,
50,
122,
82,
2,
-95,
30,
-77,
106,
20,
-61,
105,
56,
91,
-83,
64,
57,
-71,
-105,
-4,
22,
-77,
-121,
-76,
-121,
-8,
63,
-104,
-71,
0,
-24,
115,
-122,
-106,
-12,
111,
-103,
44,
98,
99,
33,
28,
-51,
40,
-127,
15,
119,
-97,
-89,
26,
104,
105,
45,
-108,
-97,
118,
54,
38,
120,
-13,
85,
95,
-20,
1,
-113,
-80,
-109,
-49,
36,
-110,
90,
-37,
37,
0,
113,
-51,
-30,
94,
69,
80,
-5,
-98,
-76
]
|
The opinion of the court was delivered by
Lockett, J.:
Keen A. Umbehr appealed the dismissal of his petition for declaratory judgment and injunctive relief which contested the Board of Wabaunsée County Commissioners’ (Board) increase of county landfill user rates. The district court held that, although the Board’s legislative action increasing the rates was unreasonable, Umbehr failed to timely perfect his appeal and dismissed his action. The Court of Appeals found that the time limitations of K.S.A. 19-223 did not apply and reversed and remanded for further hearing. We granted the Board’s petition for review.
Keen A. Umbehr, a trash hauler, provides residential trash pickup service for six towns and hauls solid waste for a number of commercial customers in Wabaunsee County. Umbehr hauls approximately 90% of the commercial trash to the Wabaunsee County landfill. Since 1986 Umbehr’s contract with the Board has allowed him to dump trash at the prevailing rate for 600 yards regardless of the amount actually dumped.
On March 29, 1990, because of environmental requirements, the Board voted to increase the rates for pickups with sideboards and two-wheel trailers with sideboards from $3 to $4. The rate for dump trucks and compactor trucks was increased from $2 per yard to $4 per yard. The rate for cars, pickups, and pickups with two-wheel trailers was not increased. Twenty-five percent of the fees from the dump trucks and compactor trucks were to be used to pay for expenses previously paid from the general fund and for future expenses.
Under the new schedule, Umbehr’s cost would increase from $1,200 per month to $2,400 per month. It would take Umbehr 60 to 120 days to obtain an approval for an increase in residential rates from each of the towns he serves. The new rates were to be effective June 1, 1990.
Umbehr appealed the Board’s decision on May 16, 1990. On June 1, 1990, 63 days after the Board’s decision, Umbehr filed a petition for declaratory judgment and an application for a restraining order. On August 8, 1990, the district judge in a memorandum decision held the Board’s actions were legislative in nature. The judge found that the reasonableness of the Board’s action in adopting the new rate could be challenged in a declaratory judgment action and granted a temporary injunction until the court determined the reasonableness of the Board’s rate increase.
Later, in a supplemental memorandum decision, the district judge found that the Board’s decision to increase the rates was unreasonable and arbitrary. Subsequently, the district judge dismissed Umbehr’s action because Umbehr had failed to timely file an appeal of the Board’s action within 30 days as required by K.S.A. 19-223. That statute states:
“Any person who shall be aggrieved by any decision of the board of commissioners may appeal from the decision of such board to the district court of the same county, by causing a written notice of such appeal to be served on the clerk of such board within thirty days after the making of such decision.”
Umbehr appealed the dismissal of his action.
All parties and the district court agreed that the actions of the Board were legislative. On appeal, Umbehr argued that the provisions of K.S.A. 19-223 apply only to appeals from judicial or quasi-judicial actions of a board, not legislative actions such as an increase in landfill user rates. The Court of Appeals agreed the limitations of K.S.A. 19-223 did not apply, citing Dutoit v. Board of Johnson County Comm’rs, 233 Kan. 995, 998-99, 667 P.2d 879 (1983).
While reviewing the statutes and cases cited by the parties, the Court of Appeals observed that because there was no statutory provision authorizing review of the Board action, both parties relied upon Brinson v. School District, 223 Kan. 465, 576 P.2d 602 (1978). The Court of Appeals noted that Brinson states that in the absence of a statutory provision for appellate review of an administrative decision, no appeal is available, but relief from illegal, arbitrary, and unreasonable acts of public officials and boards can be obtained by using such equitable remedies as quo warranto, mandamus, or injunction. 223 Kan. at 467. The Court of Appeals concluded that because no statutory provision existed for an appeal from a legislative action by the Board, the district court had equitable jurisdiction to consider whether the Board’s legislative action increasing the landfill user rate was unlawful, arbitrary, and unreasonable. The Court of Appeals reversed the district court’s finding that the 30-day limitation of K.S.A. 19-223 did not apply, holding that the plaintiff’s action was not time barred, and remanded the action for further hearing.
The Board argues to this court that even if the district court had jurisdiction to review its legislative act, its jurisdiction was limited to determining whether the Board had authority to raise the landfill user rates and it could not consider the reasonableness of the rates set by the Board. The Board relies on Cedar Creek Properties, Inc. v. Board of Johnson County Comm’rs, 249 Kan. 149, 815 P.2d 492 (1991), and State, ex rel., v. Unified School District, 218 Kan. 47, 542 P.2d 664 (1975).
Some actions taken by public agencies and boards are legislative or administrative while others are judicial or quasi-judicial. Legislative power is the power to make, alter, or repeal laws or rules for the future. An action by an agency or board that looks to the future and changes existing conditions by making a new rule to be applied thereafter is legislative or administrative. An action by an agency or board that declares and enforces liabilities as they stand on present or past facts and under existing law is either judicial or quasi-judicial. See Stephens v. Unified School District, 218 Kan. 220, 546 P.2d 197 (1975). The power or function which pertains more to administrative than to judicial, yet partakes of the judicial, is referred to as “quasi-judicial”. See Golden v. City of Overland Park, 224 Kan. 591, 597, 584 P.2d. 130 (1978).
Power to create municipal corporations, the annexation of land by a city, the assessment of property for improvements, and the setting of rates for use of a landfill are examples of legislative acts. The scope of judicial review of these legislative acts is usually dependent upon a statute authorizing an appeal.
In Nash v. Glen Elder, 74 Kan. 756, 88 Pac. 62 (1906), we recognized courts have the statutory power to review judicial acts of a county board. In Nash, G.S. 1901, § 1172 authorized the Board of County Commissioners to enlarge the boundaries of a city of the third class at the request of the city council, if satisfied that it was in the city’s interest and would not cause manifest injury to individuals. G.S. 1901, § 1175 allowed any person aggrieved by the order of the board to appeal to the district court.
Aggrieved property owners then brought an action in the district court. The district court observed that a determination that the boundaries of a city should be enlarged was a legislative function and could not be reviewed by the court. The Nash court determined that the board in the exercise of its original jurisdiction has at least two questions to determine when a proper petition is presented: (1) whether the proposed change can be made without manifest injury to the persons owning real estate in the territory sought to be added; and (2) if so, whether the annexation shall be ordered. The first determination is judicial, the second legislative. The court held that under the statutes, the first determination may be made reviewable by a court, although the second cannot. 74 Kan. at 761.
In City of Wichita v. Board of Sedgwick County Comm’rs, 232 Kan. 149, 652 P.2d 717 (1982), the Board of County Commissioners (Board) ordered incorporation of a third class city known as the City of Bel Aire. The incorporation was opposed by the City of Wichita and others. On appeal to the district court, the order of the Board was reversed.
On appeal to the Supreme Court, this court first noted that the scope of judicial review is dependent upon the statutes authorizing the appeal, and the consideration of the legislative function of the Board in granting or denying incorporation of a city is extremely narrow. Among the statutes authorizing incorporation is K.S.A. 15-126, which allowed any person having an interest in and aggrieved by the decision of the board of county commissioners under the provisions of K.S.A. 15-115 et seq. to appeal to the district court as provided for by K.S.A. 19-223. The district court had jurisdiction to affirm or, if the court found that the decision of the board was “arbitrary, unlawful, or capricious,” to reverse the decision or direct the county commissioners to take proper action. 232 Kan. at 150.
In City of Wichita, we observed that K.S.A. 15-123 directs that incorporation shall be denied if certain conditions are found to exist, but lacking such a determination, the advisability of incorporation is left to the legislative wisdom of the Board. Finally, we noted the fact that the City of Wichita submitted evidence which the trial court felt was substantial, convincing, and compelling in favor of annexation by Wichita is not the test. The board, in an incorporation proceeding, is not bound by the weight of the evidence and, in fact, may grant or deny incorporation even though the evidence favors a contrary result. We concluded it is presumed that public officials act faithfully and properly in the discharge of their functions and reversed the district court.
In Dutoit v. Board of Johnson County Comm’rs, 233 Kan. 995, landowners filed a petition to set aside assessments to the land for the cost of a sewer district. Defendants made various allegations, including that: (1) plaintiffs did not have sufficient standing to challenge the action; (2) plaintiffs’ claims were barred by the statute of limitations and laches; and (3) plaintiffs had failed to properly perfect their appeal.
The Dutoit court pointed out that the extent to which property has received a sufficient benefit from a public improvement is a question of fact, legislative or administrative in nature, citing Becker v. City of Wichita, 231 Kan. 322, Syl. ¶ 2, 644 P.2d 436 (1982). We noted the 30 days a party has to challenge a special assessment under K.S.A. 19-2705 (Ensley 1981) had expired and observed that even if the 30-day limitation of 19-2705 did not apply, the doctrine of laches was applicable because the plaintiffs had failed to assert a prompt claim. The Dutoit court recognized that property rights as well as personal rights are protected by 42 U.S.C. § 1983 (Supp. V 1981), which provides a forum for redress for wrongful deprivation of property by persons acting under color of state law. See Lynch v. Household Finance Corp., 405 U.S. 538, 552, 31 L. Ed. 2d 424, 92 S. Ct. 1113, reh. denied 406 U.S. 911 (1972). The Dutoit court concluded that even though the State action was time barred, the federal action was timely.
In each of the cases discussed there was a specific statute which allowed the legislative act of a board to be challenged. Here, as in Brinson, there was no such statute. Was the Court of Appeals’ reliance on Brinson correct?
In Brinson, 223 Kan. 465, a teacher employed in a school system was terminated by the school board. She filed a grievance. The board, after holding a grievance hearing, refused to reinstate the teacher, determining her contract had been terminated by mutual assent of the teacher and the board. Pursuant to K.S.A. 60-2101(a) (now K.S.A. 1991 Supp. 60-2101[d]), the teacher appealed to the district court which heard the matter de novo. The district court refused' to reinstate the teacher but held she had been improperly terminated and ordered the district to pay her a year s salary. On appeal, the Court of Appeals reversed the judgment of the district court, holding the district court, exceeded the scope of review authorized by the statute when it heard the matter de novo. We accepted the petition for review.
In affirming the Court of Appeals, the Brinson court reviewed the right to an appeal in this state. The court noted that it was reviewing a judicial act of the board in determining whether to retain the teacher. The Brinson court noted that in the absence of a statutory provision for appellate review of an administrative decision, no appeal is available. It pointed out that even if no statutory right to an appeal exists, relief from illegal, arbitrary, and unreasonable acts of public officials and boards can be obtained by using such equitable remedies as quo warranto, mandamus, or injunction, citing State, ex rel., v. Unified School District, 218 Kan. at 50. See Brinson, 223 Kan. at 467. That statement is incorrect. The correct statement is:
“ ‘However, the courts are always open to hear meritorious complaints against illegal or oppressive acts of non-judicial public boards and officials, either at the instance of the state or of a private citizen especially aggrieved thereby; but not by appeal where no statute confers a right of appeal. In the absence of a statutory right of appeal, judicial redress for illegal, fraudulent or oppressive official conduct must be invoked through some appropriate extraordinary legal remedy recognized in our practice — injunction, mandamus or quo warranto. (In re Chicago, R.I. & P. Rly Co., [140 Kan. 465, 468, 37 P.2d 7]; State, ex rel. v. Davis, 144 Kan. 708, 710, 62 P.2d 893.)’ ” (Emphasis added.) State, ex rel., v. Unified School District, 218 Kan. at 50 (quoting City of Kansas City v. Jones & Laughlin Steel Corp., 187 Kan. 701, 703, 360 P.2d 29 [1961]).
There is a vast difference between “illegal, arbitrary, and unreasonable” and “illegal, fraudulent, or oppressive.”
It is generally held that a finding of illegality with regard to administrative proceedings relates to the procedural aspects of the proceedings and the determination of whether the action taken was within the authority of the agency or board. City of Wichita v. Board of Sedgwick County Comm’rs, 232 Kan. at 151. A fraudulent act in general is comprised of anything calculated to deceive, including all acts, omissions, and concealments involving a breach of legal or equitable duty, trust, or confidence justly reposed, resulting in damage to another. Newell v. Krause, 239 Kan. 550, Syl. ¶ 3, 722 P.2d 530 (1986). A board or agency’s act is oppressive when it subjects a person to cruel or unusual hardship through misuse or abuse of authority or power or when it deprives a person of any rights, privileges, or immunities secured by our Constitution or laws. The inaccurate statement by the Brinson court improperly enlarged the court’s power to review legislative acts of agencies and boards by allowing courts, without statutory authority, to determine whether the administrative body acted reasonably when performing a legislative act.
When a case is decided by the Supreme Court, the justice delivering the opinion is required at the time the decision is made to file with the Clerk of the Appellate Courts a brief statement in writing of the points decided in the case. These points constitute the syllabus in the published report of the case. K.S.A. 20-111. Syllabus paragraphs usually fall into two categories — they are either a general statement of the law or a brief statement of a point decided in the case. If a syllabus paragraph is a statement of a point decided in the case, each time the syllabus paragraph is subsequently applied, there must be careful scrutiny to ensure the facts and the circumstances have not changed so that the statement has become an unsound statement of the law.
The right to an appeal in this state is neither a vested nor constitutional right, but is strictly statutory in nature. It may be limited by the legislature to any class or classes of cases, or in any manner, or it may be withdrawn completely. It lies within the legislative domain to determine from what orders or judgments an appeal may be taken. No agency or board is the final arbiter; if the board acts beyond its authority, hence “illegally,” it is subject to challenge through a proper action. State, ex rel., v. Unified School District, 218 Kan. at 50. Where no statute confers a right of appeal, courts can hear meritorious complaints against illegal or oppressive acts of nonjudicial public boards and officials, either at the instance of the State or of a private citizen especially aggrieved thereby.
Appellate review of the legislative action of an agency or board brings the judicial process into conflict with the administrative process. Courts have no appellate jurisdiction over the official acts of administrative officials or boards except when the legislature has made some statutory provision for judicial review. In this case, where there is no statutory right to appeal the legislative act of the Board, judicial redress is limited to actions challenging illegal, fraudulent, or oppressive official conduct. Because there is no claim here of illegal, fraudulent, or oppressive official conduct, the extraordinary equitable remedies of injunction, mandamus, or quo warranto could not be used to judicially review the Board’s decision to raise the rate for use of the landfill.
Syllabus ¶ 3 of Brinson and the corresponding portion of that opinion are hereby disapproved.
The decision of the Court of Appeals is reversed. The judgment of the district court, although based on an erroneous reason, is nevertheless correct and is affirmed for a different reason. | [
-12,
-24,
92,
-50,
26,
96,
58,
-88,
73,
-75,
-73,
83,
-81,
-54,
5,
57,
-69,
29,
100,
107,
-57,
-78,
115,
-62,
-105,
-77,
-77,
-36,
-8,
94,
-12,
-50,
72,
17,
66,
21,
6,
-56,
93,
92,
-126,
7,
-87,
-55,
-7,
66,
62,
75,
114,
74,
17,
15,
-5,
44,
24,
67,
43,
60,
-39,
45,
66,
-16,
-94,
7,
89,
30,
-127,
0,
-100,
7,
-56,
122,
-112,
49,
-118,
-24,
83,
-74,
-122,
-108,
67,
-103,
-88,
34,
103,
1,
37,
-17,
-4,
8,
10,
-34,
-99,
-92,
-67,
56,
34,
-95,
-76,
-98,
84,
22,
20,
-2,
-18,
-123,
95,
108,
-126,
-122,
-80,
-79,
-113,
113,
-118,
-109,
-49,
-93,
55,
117,
-113,
-16,
94,
-57,
83,
27,
-106,
-72
]
|
On July 12, 1991, this court placed respondent on one-year conditional probation with specific conditions of supervision. In re Heaven, 249 Kan. 224, 813 P.2d 928 (1991).
On November 4, 1992, the Disciplinary Administrator filed his report and recommendation to this court, in which he recommended that respondent, due to noncompliance with this court’s order of July 12, 1991, be suspended from the practice of law subject to readmission under Supreme Court Rule 219 (1992 Kan. Ct. R. Annot. 180). The Disciplinary Administrator further recommended that the three-year eligibility requirement of Rule 219 be waived so that respondent may apply for readmission any time she desires to so proceed.
On November 19, 1992, respondent filed her reply to the Disciplinary Administrator’s report, in which she stated that she was in full compliance with the court’s order of July 12, 1991, and asked the court to release her from probation.
The court finds that respondent was placed on probation for one year “during which time she is not to engage in the private practice of law except when supervised by a person admitted to the practice of law in Kansas . . . .” 249 Kan. at 225.
The court further finds that respondent has not practiced law subsequent to being placed on probation and, therefore, is in compliance with this court’s order of July 12, 1991.
Therefore, this court, having reviewed the files and recommendations of the Office of the Disciplinary Administrator, finds that respondent JoElaine Heaven should be discharged from probation.
Dated this 29th day of December, 1992.
It Is Therefore Ordered that respondent is discharged from probation and from any further obligation in this matter and that this proceeding is closed.
It Is Further Ordered that this order shall be published in the Kansas Reports and that the costs herein be assessed to the respondent. | [
-80,
-21,
-43,
127,
10,
99,
58,
-108,
83,
-45,
103,
86,
-19,
-112,
68,
105,
16,
45,
81,
105,
-43,
-74,
119,
-120,
98,
-37,
-40,
-43,
-69,
127,
-28,
61,
78,
56,
-118,
21,
-58,
-55,
-47,
92,
-114,
7,
-119,
-43,
88,
-125,
-74,
127,
18,
15,
53,
79,
-69,
108,
90,
-18,
-23,
76,
-23,
109,
-8,
-111,
-103,
5,
-21,
69,
-109,
5,
-68,
-121,
-16,
-9,
-102,
24,
9,
-20,
51,
54,
-110,
116,
79,
-55,
-95,
70,
98,
-95,
21,
-28,
-72,
-120,
62,
116,
-115,
-26,
-104,
88,
73,
73,
-100,
-68,
84,
52,
35,
-4,
100,
69,
29,
40,
14,
-54,
-76,
-79,
-35,
49,
-118,
-114,
-17,
35,
49,
85,
-114,
-10,
92,
-10,
115,
-101,
-6,
-34
]
|
The opinion of the court was delivered by
Abbott, J.:
The parties to this appeal were divorced in 1974. The appellant, Carl Lyle Dozier, sued his ex-wife, Helen Dozier, seeking damages for false arrest and imprisonment and for abuse of process. The trial court granted summary judgment in favor of Helen Dozier. This appeal followed.
As part of the divorce in 1974, Carl and Helen entered into a written agreement that provided for, among other things, alimony and child support. The alimony was payable to Helen until her death or remarriage. Upon finding the agreement fair and equitable, the trial court incorporated the agreement into the divorce decree.
In the years following the divorce, the parties initiated numerous citations, garnishments, and hearings. Carl concedes a majority of these actions were Helen’s attempts to collect money from him. Only those actions pertinent to this appeal will be discussed.
In the spring of 1990, Helen filed a motion to determine delinquency of the entire judgment. A citation in contempt also was issued for Carl to show cause why he should not be punished for failure to pay, among other things, alimony. The trial court found that, as of March 1, 1990, Carl owed Helen $47,350 in unpaid alimony plus $24,072.71 in accrued judgment interest. The court did not find Carl in indirect contempt and stated that as long as Carl paid $200 monthly he would not be found in contempt for failure to pay the entire judgment. The court noted that Helen could use “any lawful means to collect any portion of the outstanding judgments.”
On April 10, 1990, after a hearing held in conjunction with various motions filed by the parties, the trial court found that Carl secretly had withdrawn funds from the 401K contribution plan established by his employer, had withheld this information from the court at two previous hearings, and with this money had paid some overdue bills and had given a friend $3,000 to hold for him. The court ordered Carl to apply the $3,000 to the delinquent alimony judgment. On May 8, 1990, Helen filed an accusation in contempt, asserting that Carl had failed to apply the $3,000 to the delinquent alimony judgment as ordered by the trial court. On that same day, the trial court issued a citation in contempt, directing Carl to appear before the court on May 24, 1990, to show cause why he should not be punished for noncompliance. Carl, however, was not served with the May 8 citation and order because the process server was unable to locate him.
On June 19, 1990, based upon a verified accusation in contempt and motion for show cause order, the trial court issued a bench warrant for Carl’s arrest, pursuant to K.S.A. 20-1204a(c). The court accepted Helen’s allegation that Carl was secreting himself, to avoid process. Carl filed a pro se response on June 22, 1990. He denied that he had breached the trial court’s April 10 order or that he was secreting himself to avoid process.
Although not raised as an issue in this case, it is interesting that when Helen’s attorney filed the second accusation in contempt (June 19, 1990), he personally verified the accusation and requested a bench warrant because Carl allegedly was secreting himself. Helen’s attorney mailed a copy of the June 19 accusation in contempt to Carl at an address that appears in the record before us for the first time in the certificate of service on the June 19 accusation.
It seems obvious that Carl received the accusation that was mailed to the new address, because three days later Carl filed a response and listed the new address as his “temporary” address. Unfortunately, Carl failed to serve a copy of his response on anyone. The response was filed in the official court file and languished there for months; it was not noticed by any of the parties or the trial judge until after Carl’s arrest on the bench warrant.
The arrest warrant issued does not show an address for the defendant, and it languished at the Johnson County Sheriff’s office until October 4, 1990, when Helen and her lawyer observed Carl in Miami County. He immediately was arrested on the outstanding warrant. After being transported to Johnson County, he posted bond and was released.
On the basis of this arrest and detention, in September 1991, Carl filed suit against Helen seeking damages for causing his false arrest and imprisonment and for abuse of process. Helen filed a motion to dismiss. The trial court granted Helen s motion, which the court treated as a motion for summary judgment. Carl appealed the trial court’s decision to the Court of Appeals. The case was transferred to this court, pursuant to K.S.A. 20-3018(c).
On appeal, Carl’s main argument is that Helen had him imprisoned to collect a debt arising out of a contract made in a divorce case, contrary to § 16 of the Kansas Constitution Bill of Rights, which provides that “[n]o person shall be imprisoned for debt, except in cases of fraud.”
Carl readily concedes, and rightly so, that this court has held court-ordered alimony can be enforced by an attachment for contempt and imprisonment for willful disobedience of a court order to pay alimony and that such a proceeding cannot be regarded as violating the constitutional provision prohibiting imprisonment for debt. In re Peters, 124 Kan. 455, 457, 260 Pac. 975 (1927). See Brayfield v. Brayfield, 175 Kan. 337, 264 P.2d 1064 (1953); Kemmerle v. Kemmerle, 171 Kan. 312, 232 P.2d 220 (1951). Carl’s argument is that this court should draw a distinction between contempt proceedings to enforce court-ordered alimony that is subject to modification and alimony arising out of a contract between the parties that is incorporated into the divorce decree and not subject to modification. He argues that contractual alimony is a debt and that the constitution prohibits his imprisonment because of that debt. He attempts to distinguish Peters, Brayfield, and Kemmerle on the basis they involve court-ordered alimony only and have no contractual characteristics.
Carl argues:
“The settlement agreement resulted in a contract and the debt arises upon that contract. To allow defendant to use the contempt proceedings to collect such a contractual debt would be to allow her the benefit of a court decree fixing maintenance or alimony allowance payments that are not subject to modification and at the same time claim such debt is not a debt arising upon contract and therefore is collectible through threat of imprisonment. Such is neither logical, reasonable, nor fair.”
He further argues that the trial court must have the right to modify a judgment for alimony if a court is to exercise contempt power to enforce the order.
He cites cases from Maryland, Texas, and California to support his argument. We do not deem it necessary to discuss those cases as we believe the applicable law to be well established in Kansas. The law in this state is that a contract between the parties to a divorce action that is approved by the trial court and merged into the judgment also retains its contractual characteristics. Fiske v. Fiske, 218 Kan. 132, 135, 542 P.2d 284 (1975); In re Estate of Sweeney, 210 Kan. 216, 224, 500 P.2d 56 (1972); In re Marriage of Wessling, 12 Kan. App. 2d 428, 430, 747 P.2d 187 (1987); Oehme v. Oehme, 10 Kan. App. 2d 73, Syl. ¶ 1, 691 P.2d 1325 (1984), rev. denied 236 Kan. 876 (1985); Long v. Brooks, 6 Kan. App. 2d 963, Syl. ¶ 1, 636 P.2d 242 (1981).
Carl overemphasizes the contractual characteristics. We have not declared that contractual alimony incorporated into the divorce decree is no longer a judgment of the court. Sweeney and subsequent cases stand for the proposition that such alimony is contractual with regard to interpreting the parties’ agreement, but is a judgment with regard to enforcement. The Sweeney court explained:
"By its judicial sanction through confirmation, the court makes the agreement judicial in character, entitling the parties to the full benefit of the agreement which is no longer executory but executed. When confirmed, the executed agreement is subject to enforcement pursuant to its terms and the decree of the court. In determining the effect of the decree, the agreement is properly to be considered, and this court is of the opinion the confirmation of the agreement and its merger into the decree does not abolish the contractual aspects of the agreement, but leaves the court in the position to construe the provisions of the agreement consistent with the facts and circumstances and the expressed intention of the parties.” 210 Kan. at 224.
We find Carl’s arguments unpersuasive. Whether a trial court is authorized to modify the amount of alimony, or maintenance as it is now termed, is not the determinative factor. Furthermore, this case does not involve interpretation of an agreement incorporated into a divorce decree. Thus, the contractual aspects of such an agreement with regard to alimony are not at issue. This case involves enforcement of a debt arising from nonpayment of alimony. Enforcement of such a debt is judicial in nature, not contractual. Thus, contempt proceedings, arrest, and imprisonment are appropriate means of enforcing the willful refusal to pay the alimony judgment and do not violate the constitutional prohibition against imprisonment for a debt.
Our view follows the general rule.
“In the majority of the states the usual method of enforcing an order in a divorce action, whether the order is for temporary alimony, permanent alimony, or counsel fees, suit money, or costs, is by means of a commitment for contempt of court after notice to the obligor spouse and a demand for payment. . . .
“Even though the constitutions of the various states commonly prohibit imprisonment for debt, it is widely held that the payment of temporary alimony, counsel fees, costs, suit money, and permanent alimony may be enforced by imprisonment for contempt of court since alimony, whether temporary or permanent, an obligation ■ of the marital community, or an award for attorney fees, does not constitute a debt within the meaning of such constitutional provisions. This is true even though the decree incorporates an agreement of the parties or expressly adopts such agreement.” 24 Am. Jur. 2d, Divorce and Separation §§ 798, 800, pp. 779, 781-82.
The trial court did not err in granting summary judgment on Carl’s abuse of process claim based upon Carl’s argument that he was being imprisoned on a debt.
Carl next argues that, based on the entire record, the trial court erred in granting summary judgment. His argument here is difficult to follow. It is three pages in length and cites two cases. The first page and a half gives the procedural history. Carl then seems to argue the bench warrant required the sheriff to arrest Carl and bring him before the judge, not place him in jail.
Carl cites language from Haglund v. Bank, 100 Kan. 279, 284, 164 Pac. 167 (1917), as authority. His reliance on Haglund is misplaced. In Haglund, a bank obtained judgment against Haglund on a promissory note. It then obtained a warrant to arrest the defendant. Haglund was arrested, put in jail, and held until his father paid the bank. The statute specifically restricted the warrant to be issued by a judge in the county where the defendant resided or may be arrested and to bring him “before such judge, within the county in which the debtor may be arrested.” G.S. 1915, § 7429. (Haglund, 100 Kan. at 280). Interesting is the fact the court instructed the jury that the bank had no responsibility if it did not direct the sheriff to imprison the plaintiff on the warrant or to keep him in prison on the warrant after he was there. The evidence is such that a factfinder could have found the bank directed the sheriff to imprison the plaintiff and/or directed that he be held in jail until his father paid his debt, and the jury found for the plaintiff. This court clearly confined its holding to the statute in question in which the legislature had only authorized the debtor to be brought to court for examination.
In the case at bar, K.S.A. 20-1204a does not direct the sheriff to bring the defendant before a judge within the county in which he is arrested. Thus, it contemplates that the defendant may be transported a considerable distance to reach the county in which the warrant was issued. Finally, the statute provides: “The court may make such orders concerning the release of the person pending the hearing as the court deems proper.” K.S.A. 20-1204a(c).
Here, the record before us is silent how Carl was arrested and subsequently transported to Johnson County, but the parties in their briefs make it clear he was arrested and spent some period of time in jail. There is not a scintilla of evidence that Helen directed he be incarcerated or retained in jail. She did cause the warrant to issue and drew the warrant and Carl’s whereabouts to the attention of the Miami County authorities. That does not establish liability under Haglund.
Summary judgment is proper “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” K.S.A. 1992 Supp. 60-256(c). See Bacon v. Mercy Hosp. of Ft. Scott, 243 Kan. 303, 306-07, 756 P.2d 416 (1988).
“To avoid summary judgment, the nonmoving party must establish each element of the cause of action. The moving party is entitled to a judgment as a matter of law if the nonmoving party fails to make a sufficient showing on an essential element of its case with respect to which it has the burden of proof.” St. Francis Regional Med. Center, Inc. v. Hale, 12 Kan. App. 2d 614, Syl. ¶ 1, 752 P.2d 129 (1988).
The trial court found Carl’s claim of false arrest and imprisonment failed, as a matter of law, because the restraint was legal. The court reasoned that the bench warrant, which initiated Carl’s arrest, was “regular and legal in form” and issued by a district court judge.
The bench warrant was issued pursuant to K.S.A. 20-1204a(c). Carl claims his restraint was illegal because the trial court failed to follow the procedure set forth in K.S.A. 20-1204a(c), which provides in pertinent part:
“If . . . the court finds at a hearing held on motion of a party to the civil action that the person allegedly in contempt is secreting himself or herself to avoid the process of the, court, the court may issue a bench warrant commanding that the person be brought before the court to answer for contempt.”
Carl contends the statute obligated the trial court to conduct a hearing on Helen’s motion that he was secreting himself before issuing a bench warrant.
There is no evidence of a formal hearing in the record on appeal. Helen’s motion and the bench warrant both were filed on June 19, 1990. According to the trial court’s memorandum decision, the following events transpired:
“Service of the May 8th order to appear and show cause could not be made because Deputy K. Collins was unable to locate [Carl]. On June 19, 1990, [Helen] again filed a motion for an order requiring [Carl] to appear and show why he should not be held guilty of indirect contempt of the orders of the Court for his failure to comply with the April 10th Court order. At the same time, [Helen] moved the Court for the issuance of a bench warrant pursuant to K.S.A. 20-1204a(c) alleging for the reason that [Carl] was secreting himself to avoid process. The Court sustained [Helen’s] motion, finding that [Carl] was secreting himself for the purpose of avoiding the process of the court, and issued the bench warrant on June 19, 1990.”
The trial court directed law enforcement to arrest Carl and bring him before the court, based upon a motion, Helen’s attorney’s verified affidavit, and a review of the court file. The trial judge also knew the history of the case, having had considerable involvement in it over the years.
It may be questioned how a trial court can conduct a formal hearing on whether a party is secreting himself or herself if the party is secreted. The statute requires that a hearing be held and, implicitly, that notice have been given. The statute, however, does not expressly require the presence of the party at the hearing. The legislature’s purpose in requiring a trial court to conduct a hearing before issuing a bench warrant is to protect the due process rights of the person allegedly secreting himself or herself.
We hold the bench warrant was issued properly. Even if the bench warrant had been issued improperly, that fact alone would not mean Helen caused the false arrest and imprisonment of Carl. Helen informed the trial court of the circumstances as she perceived them and left it to the court to take such action as the court deemed proper. It was then the trial court’s responsibility to follow the contempt procedures set forth in K.S.A. 20-1204a. Cf. Thurman v. Cundiff, 2 Kan. App. 2d 406, Syl. ¶ 5, 580 P.2d 893 (1978) (“A defendant is not liable for false arrest if he merely informs officers of circumstances and leaves it to the officers to take such action as the officers deem proper.”). Thus, the trial court did not err in granting summary judgment in favor of Helen on Carl’s claim of false arrest and imprisonment.
Affirmed. | [
-16,
124,
-39,
124,
-118,
-96,
42,
-104,
120,
-114,
35,
87,
-23,
115,
0,
107,
114,
47,
100,
106,
-33,
50,
23,
65,
-2,
-77,
-87,
-44,
-91,
-51,
-27,
-42,
76,
50,
-94,
-43,
98,
-101,
-57,
20,
-122,
20,
-87,
72,
-39,
-122,
52,
49,
-124,
13,
49,
-98,
51,
47,
48,
110,
108,
44,
95,
121,
-64,
-78,
-101,
13,
111,
18,
-77,
4,
-100,
39,
-8,
46,
-104,
25,
1,
-23,
59,
-90,
22,
116,
107,
-103,
1,
102,
102,
-112,
69,
92,
-36,
-104,
46,
-9,
31,
-90,
-42,
88,
26,
15,
-74,
28,
118,
84,
-83,
-2,
74,
-100,
29,
100,
11,
-38,
-60,
-111,
10,
118,
-36,
0,
-21,
-93,
1,
81,
-49,
-96,
76,
7,
123,
-101,
-58,
-26
]
|
Per Curiam:
This is an original proceeding in discipline filed by the Office of the Disciplinary Administrator against Bissessamath Ramcharan-Maharajh, of Topeka, an attorney admitted to the practice of law in Kansas.
The complaints filed herein arise from respondent’s handling of two bankruptcy actions. The complainant was Calvin J. Karlin, who served as opposing counsel in each of the bankruptcy actions.
A hearing panel of the Kansas Board for Discipline of Attorneys unanimously found the following:
“FINDINGS OF FACT
“2. Prior to Respondent entering his appearance in the Chapter 11 bankruptcy for the Musils, there had been a hearing on the Motion of Lift of Stay on February 10, 1989, wherein the Lift of Stay was granted as to the farm land thus allowing a foreclosure. The Respondent entered his appearance in this matter in July 1989 and on July 6, 1989, the Respondent filed a Motion for Reconsideration and a Motion to Set Aside the Lift of Stay. By Federal Rules of Civil Procedure, either motion should have been filed within ten days of the entry of order lifting the stay. However, both of these motions filed by the Respondent were heard on July 31, 1989, and the Court denied them both.
“3. Subsequent to the Court’s ruling in the Musil case, Respondent filed a Notice of Appeal on August 9, 1989, a Motion for an Order of Stay Pending Appeal [filed] on August 22, 1989, and another Motion for Reconsideration filed on August 25, 1989. From August 25th, the date on which the second Motion for Reconsideration was filed, until October 16, 1989, when the last pleading in Exhibit B was filed, the pleadings filed in the Bankruptcy Court by Respondent were so inconsistent and unusual that the Panel must conclude that some of these pleadings were without merit.
“4. Mr. Karlin filed a Motion to Dismiss the Musil Appeal in the United States District Court for the District of Kansas. However, the Respondent filed his answer and response to the Motion to Dismiss the Appeal in the Bankruptcy Court. Respondent also filed on September 14, 1989, a ‘Motion for Nunc Pro Tunc Order in an attempt to correct a reference to a date in a pleading which had originally been filed on July 25, 1989, and on which the Court had already ruled. The Panel finds these actions to be clear and convincing evidence that Respondent was not providing competent representation to his clients.
“5. The Respondent filed a Motion for Protection for the Musils in Sherman County District Court seeking relief under the Kansas Family Farm Rehabilitation Act. This motion was filed on or about October 8, 1989. During the January term of 1987 the Supreme Court held the Kansas Family Farm Rehabilitation Act unconstitutional in the case of the Federal Land Bank of Wichita v. Bott, 240 Kan. 624 [,732 P.2d 710 (1987)]. The filing of the motion and reliance on the Kansas Family Farm Rehabilitation Act shows Respondent’s lack of competence in the debtor/creditor area of the law and is another example of filing a claim that was not meritorious.
“6. On October 9, 1989, in the Sherman County District Court action regarding the Musils, Respondent also filed a mechanic’s lien to collect his attorney fees against funds held by the Court pursuant to an order of garnishment issued on behalf of the Federal Land Bank. The Court ruled on October 9, 1989, that the mechanic’s lien statute did not apply to professional services. On or about October 16, 1989, Respondent filed a Motion for Release of Funds in a bankruptcy proceeding and asserted a first and prior lien based on the same mechanic’s lien. In his memorandum in support of Motion for Release of Funds, Respondent states that he has filed a mechanic’s lien but does not state that at the time of his motion that the Court in Sherman County had already determined that he could not assert a mechanic’s lien for attorney fees. In the same pleading, Respondent cites a section of the U.S. Code which does not exist. Respondent failed to disclose a material fact in his bankruptcy pleading, and once again filed a nonmeritorious claim. Respondent’s behavior is further evidence of his lack of competence.
“7. On September 15, 1987, the Bankruptcy Court approved a plan of reorganization under a Chapter 11 Bankruptcy for both Arnold Helms and Elsa Helms. On November 9, 1988, the Respondent entered his appearance in the Chapter 11 bankruptcy for Arnold and Elsa Helms. While the Chapter 11 bankruptcy was still in effect for Arnold Helms and Elsa Helms, on October 12, 1989, Respondent filed yet another Petition for Bankruptcy on behalf of Elsa Helms for relief pursuant to the provisions of Chapter 11 in the same Bankruptcy Court. The Bankruptcy Court held that a ‘debtor cannot obtain a stay through an improper filing’ and annulled any stay that was created by the filing of the second and improper bankruptcy.
“8. After the second Chapter 11 Bankruptcy was dismissed, Respondent filed a Motion to Convert the original Chapter 11 Bankruptcy to a Chapter 7. The conversion was granted and on the 22nd of November, 1989, an Order was entered converting the original Chapter 11 to a Chapter 7 bankruptcy case; however, the Federal Land Bank objected to the conversion of the case to a Chapter 7. In Respondent’s response to the objection, the Respondent took the position that the Helms’ homestead would be free and clear of the Mortgage Lien since the Kansas Homestead Act only allowed a ‘waiver of rights and an attachment of a Mortgage Lien’ if the waiver was pursuant to an informed decision by the Helms at the time the Mortgage was signed. K.S.A. 60-2301 et seq., which is the homestead exemption provision in Kansas, states provisions of this section shall not apply to any process of law obtained by virtue of a lien given by the consent by both husband and wife when that relation exists.’ In spite of the fact that both of the Helms had voluntarily signed the Mortgage, Respondent’s contention as to the meaning of K.S.A. 60-2301 and the Mortgage Lien was contrary to the plain meaning of the statute and was without merit.”
The panel then concluded:
“CONCLUSION
“The Panel unanimously concludes that the facts provide clear and convincing evidence that the Respondent violated MRPC 1.1 [1992 Kan. Ct. R. Annot. 244], failure to provide competent representation to his client; MRPC 3.1 [1992 Kan. Ct. R. Annot. 293], asserting a claim for which there is no basis; MRPC 3.3 [1992 Kan. Ct. R. Annot. 295], failing to disclose a material fact to a tribunal when disclosure is necessary; and MRPC 8.4 [1992 Kan. Ct. R. Annot. 328], general misconduct in engaging in conduct that adversely reflects on the lawyer’s fitness to practice law. The Panel further finds that the evidence was not clear and convincing that the Respondent violated MRPC 4.2 [1992 Kan. Ct. R. Annot. 309] in communicating about the subject of representation with the party the lawyer knows to be represented by another attorney.
“The Panel finds that Respondent repeatedly filed inconsistent and unnecessary pleadings and took inconsistent positions in the same case. Respondent also, on two occasions, attempted to use more than one jurisdiction to invoke a stay of execution against creditors on behalf of his clients. In both of these cases there had been an Order of the Court that had in one way or another lifted the stay. This behavior by Respondent showed a failure to provide competent representation and repeated assertion of claims for which there is no basis. When Respondent failed to disclose to the Bankruptcy Court that the District Court in Sherman County had denied his mechanic’s lien argument, he failed to disclose a material fact to the tribunal. Furthermore, the Respondent relied on a [statute] that had, two years prior, been declared unconstitutional, cited a statute that was non-existent and took a position regarding homestead exemptions and mortgages that was contrary to the clear meaning of the Kansas statutes. Respondent has shown a consistent lack of competence in representing the Musils and the Helms in their bankruptcy.”
The panel then made the following recommendation as to the appropriate discipline to be imposed:
“RECOMMENDATION
“The Panel finds that there is no evidence presented in aggravation and based upon the Respondent’s testimony, it is clear that his actions were not committed in bad faith or that he is indifferent to the situation. The Respondent has acknowledged his errors and has been honest with the Panel and Disciplinary Administrator.
“In mitigation the Panel takes into account the absence of a prior disciplinary record, the absence of a dishonest or selfish motive, cooperation of the Respondent during the hearing and his acknowledgment of transgressions, the Respondent’s inexperience in the practice of law, and remorse on behalf of the Respondent.
“Based upon the Standards for Imposing Lawyer Sanctions set forth by the American Bar Association and the evidence presented in mitigation on behalf of the Respondent, the Hearing Panel unanimously recommends entry of an Order imposing public censure against the Respondent on the basis that he made claims that were not meritorious, failed to exhibit candor before the Court and exhibited incompetence in his practice in Bankruptcy Court.”
No exceptions to the hearing panel’s Final Hearing Report have been filed. After due consideration, we accept the hearing panel’s findings of fact, conclusions, and recommended discipline.
The record reflects respondent was admitted to practice law in Kansas on October 5, 1988. He commenced his practice as a sole practitioner with no support staff and no access to a supervising attorney. He entered his appearance as attorney for the Helms on November 9, 1988, and for the Musils in July 1989. It is clear from the hearing panel’s findings and conclusions that respondent was not competent to handle such representation and should not have undertaken the same. Hopefully, respondent has benefited from the disciplinary proceeding herein and will conduct his law practice in a manner which will avoid any recurrence of the problems exhibited herein.
It Is Therefore Ordered that Bissessamath Ramcharan-Maharajh be and he is hereby disciplined by this court by public censure for his previously enumerated violations of the rules of professional conduct.
It Is Further Ordered that the costs of these proceedings be assessed to respondent and that this order be published in the official Kansas Reports. | [
-80,
-32,
-35,
-52,
-118,
97,
60,
56,
65,
-45,
119,
83,
-27,
-50,
0,
105,
-14,
9,
-43,
121,
-43,
-77,
86,
-55,
114,
-13,
-15,
-43,
-80,
111,
-28,
23,
72,
48,
-110,
-41,
-58,
-126,
-61,
28,
-18,
7,
-119,
-28,
-39,
0,
48,
-21,
18,
11,
113,
15,
-13,
47,
25,
67,
9,
44,
-97,
109,
-64,
-80,
-81,
14,
127,
19,
-95,
-123,
-98,
-58,
88,
47,
-116,
56,
34,
-24,
115,
54,
-122,
116,
67,
89,
41,
38,
98,
33,
81,
-18,
-3,
-72,
14,
19,
-115,
38,
-15,
88,
67,
32,
-74,
-71,
117,
22,
39,
-4,
-18,
-123,
61,
-20,
14,
-53,
-126,
-105,
31,
23,
-98,
-117,
-26,
-111,
48,
113,
-114,
-25,
94,
71,
59,
59,
-82,
-75
]
|
The opinion of the court was delivered by
McFarland, J.:
Anthony R. Edwards appeals his jury trial convictions of second-degree murder (K.S.A. 21-3402) and unlawful possession of a firearm (K.S.A. 1992 Supp. 21-4204).
The charges arise from the death by gunshot of Timothy D. Moser which occurred on August 24, 1991, in an apartment located at 5024 Osie in Wichita. Inasmuch as two of the issues herein are very fact specific as to the events leading up to and resulting in Mr. Moser’s death, to avoid repetition, further recitation of the facts will be reserved until the discussion of those issues.
DISCHARGE OF A PROSPECTIVE JUROR
For his first issue on appeal, the defendant contends his statutory and constitutional right to be present at all stages of the trial was violated when the trial judge had a private conversation with a prospective juror.
The facts are as follows. The case was called for trial on the morning of October 21, 1991. Twelve prospective jurors were seated in the jury box and sworn. The trial judge made a few preliminary remarks, then, noting the time was 11:45 a.m., excused the jury panel until 1:30 p.m. Defense counsel desired to present a motion in limine, and that matter was set for 1:00 p.m.
After disposing of the motion as scheduled, the trial judge stated there was another matter he desired to discuss with counsel relative to an unseated member of the jury panel.
The court stated:
“There’s another issue the Court wants to take. The Court’s thought — I think I’m going to excuse Val James Brown, and, of course, if you know him, he’s black. He’s a doctor. He’s known me all my life, plus he’s got patients that need his help according to him. He’s told me that he set there all uptight this morning. Incidentally, he is one that said he wanted to serve, but he said, you know — he said I want to serve, but, you know, somebody is going to suffer. I’ve had patients that I should have been to this morning. And I’ve thought it over at noon, and as of now, this time, from this moment it’s my intent to excuse him. And I wanted to inform the — both counsel because I don’t ever do anything like this without telling counsel. And the record’s open to hear what objections there would be, and what — with the basis with me telling you all, the basis that I’m excusing, truthfully, as long as I’ve known him, I don’t know whether or not my voice inflection or anything else he could pick up on and feel that I have, but I know that I’ve never did it. But I know most defense lawyers will ask in a minute, do you know anybody involved with this case. Do you know the Judge. It doesn’t offend me because I can understand how they would feel that it could be some influence ’cause they certainly know my mannerisms. Well, I bet you he would know my mannerisms with anybody better than in this courtroom or on that jury, and I don’t intend to ever reflect my feelings in regards to it, but there’s some people that think they can read voices and body language, too. But I felt that I should inform you of why I’m going to excuse him. Further, that he didn’t ask specifically, but he told me what — the problem with being excused, and what he said is, is it makes him uptight, and he was wondering whether or not he could give the attention that I told those jurors that they have under their oath had to give.”
Defense counsel responded as follows:
“MS. REED: I’m sorry, but I will have to object to excusing him. I can understand the Court’s concern because of the hardship that it’s presenting to him and the fact that he’s having a hard time, but one of the difficulties that I have here in Sedgwick County and that my client has is that there’s so few people of his race on jury panels. They’re not usually representative of the population and that it makes it more difficult for him to receive a fair trial, particularly in this case, and I would have to say that it’s a great concern with me in this particular case since all of the prosecution witnesses are going to be white and he’s going to be black and—
“THE COURT: Is the deceased white?
“MS. REED: Yes. And so it’s been one of my concerns since the beginning of this case.”
The trial court then stated:
I wasn’t surprised with your reaction. That’s your obligation to make your record, and I’ve given you that opportunity, and I think I’ve made mine sufficient to where the upper court would see why I did this. I think that traditionally this Court has been very slow to excuse jurors, but I’ve been fairly lenient with doctors who have the responsibilities they have with patients who have problems because the Doctor told me that he had pending an appendectomy, and he was going to have to stand up and shout at the hospital, it was time to come, it’s presumed. And an appendectomy, they’re not easy. So that you are informed, the record’s made. I’ll excuse him now. I haven’t — I brought the card in here. I brought this piece of paper to instruct them further downstairs to let him go this week. And, in fact, if he called and given me the same excuse, I’d have done what I usually do with doctors if I can find them believable and, of course, naturally I believe Dr. Brown no more than any others, but I do admit that I’ve known him for years, and I’m not doing it as a favor. I do know that he’s busy, and so I’m going to write the note excusing him from jury period — jury service period this week.”
There was some additional discussion in which defense counsel stated black clients preferred members of their own race as jurors even though such jurors might be “tougher on them.”
At no time did defense counsel object to the fact she and her client were not present at the conversation between the judge and Dr. Brown, request the opportunity to make inquiry of Dr. Brown before a final decision on excusing him was made, or assert any statutory or constitutional rights violations relative to the way the Brown matter was handled. Rather, the objection was personal concern over losing a black person as a prospective juror. There is no indication in the record as to the racial composition of the venire or the jury ultimately selected.
K.S.A. 22-3405(1) provides:
“The defendant in a felony case shall be present at the arraignment, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence, except as otherwise provided by law.”
The Sixth Amendment to the United States Constitution guarantees a defendant the right to be present at every stage of trial. Illinois v. Allen, 397 U.S. 337, 338, 25 L. Ed. 2d 353, 90 S. Ct. 1057, reh. denied 398 U.S. 915 (1970); State v. Garcia, 233 Kan. 589, 595, 664 P.2d 1343 (1983). When constitutional grounds are asserted for the first time on appeal, they are not properly before the appellate court for review. State v. Goss, 245 Kan. 189, Syl, ¶ 4, 777 P.2d 781 (1989). Although ordinarily an appellate court will not consider an issue which has not been raised in the trial court or which has not been raised by the parties on appeal, the court does have the power to do so in exceptional circumstances, where consideration of the new issue is necessary to serve the interests of justice or to prevent a denial of fundamental rights. State v. Puckett, 230 Kan. 596, Syl. ¶ 1, 640 P.2d 1198 (1982).
Ex parte communications between a juror and the trial judge are improper. See State v. Bowser, 252 Kan. 582, Syl. ¶ 1, 847 P.2d 1231 (1993). Enormous bodies of case law have been developed on a defendant’s right to be present at all stages of the proceedings, exceptions thereto, and various types of ex parte communications and the legal effects thereof. The facts herein do not warrant an extensive discussion as any error existing herein is so minimal. The communication was not between the judge and an impaneled juror, only a venireman. The discussion had nothing to do with the trial. Had the matter come up before trial, in an ex parte communication, or in voir dire of Dr. Brown, the trial court, in exercising its discretion, could have excused Dr. Brown from service under K.S.A. 43-159(c) as a person whose presence elsewhere is required for public welfare, health, or safety. The judge advised counsel of the conversation before taking any final action and afforded counsel full opportunity to be heard and to object. Defense counsel did not request the opportunity to inquire of Dr. Brown or raise statutory or constitutional objections in regard to the matter.
On a scale of one to ten, the alleged error herein is, at most, a one and, by any standard, harmless as to its effect. Any further discussion on this issue would serve no purpose.
FAILURE TO GIVE A CAUTIONARY EYEWITNESS INSTRUCTION
For his second issue, the defendant contends the trial court’s failure to give a cautionary eyewitness instruction was error. No such instruction was requested nor was any objection lodged to the court’s proposed instructions.
The standard of review in such circumstances is set forth in State v. Perkins, 248 Kan. 760, Syl. ¶ 8, 811 P.2d 1142 (1991), as follows:
“A party may not assign as error the giving or failure to give an instruction unless he or she objects to the instruction, stating the specific grounds for the objection. Absent such objection, an appellate court may reverse only if the trial court’s failure to give the instruction was clearly erroneous. The failure to give 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.”
The cautionary eyewitness instruction contained in PIK Crim. 2d 52.20 is as follows:
“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 defendant[s] 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 defendant[s] 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 State v. Warren, 230 Kan. 385, Syl. ¶ 1, 635 P.2d 1236 (1981), we held:
“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.”
Was the failure to give a cautionary eyewitness instruction herein clearly erroneous? We believe not. This is not the factual situation in which questions on a cautionary eyewitness instruction usually arise. The eyewitness testimony under scrutiny is not that of a frightened victim of a stranger who was seen only fleetingly by the victim.
The facts herein are quite different. Mike McClellan was alone in his apartment at 8:00 p.m. on August 24, 1991. Shortly thereafter, five of his friends came to visit (Tim Moser, Kristy Twyford, Vince Larimore, James Blundell, and Debbie Blundell). Later, two other of Mike’s friends stopped by, Anthony “Tony” Edwards (the defendant) and Terrell Smith. The group drank beer and played a drinking game. The apartment became hot and the group went outside to the porch to cool off. Later, all went back inside except Tim, Mike, and Terrell.
Mike noticed a handgun tucked in Terrell’s waistband and commented, “That gun ain’t loaded.” Terrell disproved the statement by firing the gun into the ground. A neighbor, Brad Hilton, saw the incident, and Mike went over to talk with him. Music in Mike’s apartment became loud, and Mike returned, asking for it to be turned down. Mike went back to Brad’s. The music became loud again, and Mike returned, again asking that the volume be lowered. At this point, Terrell jumped on Mike. Terrell reached for his gun but it was gone as he had previously given it to the defendant, who then removed the bullets. Mike asked for the gun. The defendant gave it to Mike, who then checked to make sure it was unloaded and returned it to the defendant.
The drinking game resumed. Several of the individuals went back to the porch where it was cooler. Brad, who was 30 feet away, saw defendant and Tim arguing on the porch. The defendant then went into the apartment and entered the bathroom. He came out a short while later. As Tim started to walk back into the apartment, the defendant stated, “Fuck you, punk” and shot at Tim three or four times at close range. The defendant then ran out the back door of the apartment, holding the gun. Vince gave chase, tackled the defendant and put him in a headlock. During the chase, defendant attempted to shoot Vince, but the gun was empty. The defendant made his escape when Terrell kicked Vince in the head. The gun was later recovered in the grass. Tim, the victim, died from a gunshot wound to the chest. He had also been shot in the abdomen. The fatal bullet was identified as having come from the gun recovered at the scene.
At trial, Brad Hilton, his wife, Jessie, Debbie Blundell, and Vince Larimore all testified they saw defendant shoot Tim. The primary issue at trial was whether Terrell or the defendant shot the victim. There was some inconsistency on this point at the time the police were summoned. Vince called 911 and stated Terrell had shot the victim.
Some additional facts are necessary. All of the people in Mike’s apartment are white except for Terrell and the defendant, who are black. Terrell is tall and thin. The defendant is several inches shorter. The eyewitnesses from the apartment across the street (Brad and Jessie) at all times stated the short black man shot the victim. They had not met either black man and did not know their names, but were positive the short black man (the defendant) did the shooting. Vince testified he was excited when he made the 911 call and mixed up the names. He was positive defendant was Tim’s killer. Debbie Blundell had met Terrell previously. She was positive in her identification of defendant as Tim’s killer. Both Debbie and Vince had been in close proximity to Terrell and defendant in the apartment for hours before the shooting in a relatively relaxed, well-lighted atmosphere. Brad had observed Mike’s guests for a lengthy period of time. It was undisputed defendant was the short black man present and that Terrell was the tall black man present. Identification of the defendant was not the issue. Rather, the issue was which of the two black men shot Tim.
We conclude the trial court’s failure to give a cautionary eyewitness instruction was not clearly erroneous under the facts herein.
SUFFICIENCY OF THE EVIDENCE
For his third issue, the defendant challenges the sufficiency of the evidence supporting his conviction of second-degree murder.
Murder in the second degree is the malicious killing of a human being, committed without deliberation or premeditation, and not in the perpetration or attempt to perpetrate a felony. K.S.A. 21-3402.
The standard of review when the sufficiency of evidence is challenged in a criminal case is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Grissom, 251 Kan. 851, Syl. ¶ 4, 840 P.2d 1142 (1992); State v. Blackburn, 251 Kan. 787, Syl. ¶ 1, 840 P.2d 497 (1992); State v. Tyler, 251 Kan. 616, Syl. ¶ 9, 840 P.2d 413 (1992).
Applying this standard, there is abundant evidence supporting the conviction. The defendant said “Fuck you, punk” to the unarmed victim and fired multiple .38 caliber shots at the victim at close range.
APPLICATION OF K.S.A. 1992 SUPP. 21-4608 TO SENTENCES HEREIN
For his fourth issue, the defendant contends the trial court erroneously applied K.S.A. 1992 Supp. 21-4608 to the sentences imposed herein.
K.S.A. 1992 Supp. 21-4608 provides, in pertinent part:
“(1) When separate sentences of imprisonment for different crimes are imposed on a defendant on the same date, including sentences for crimes for which suspended sentences, probation or assignment to a community correctional services program have been revoked, such sentences shall run concurrently or consecutively as the court directs. Whenever the record is silent as to the manner in which two or more sentences imposed at the same time shall be served, they shall be served concurrently, except as provided in subsections (3), (4) and (5).
“(3) Any person who is convicted and sentenced for a crime committed while on probation, assigned to a community correctional services program, on parole or on conditional release for a felony shall serve the sentence consecutively to the term or terms under which the person was on probation, assigned to a community correctional services program or on parole or conditional release.”
The pertinent facts are as follows. Defendant had previously been convicted of conspiracy to possess cocaine in 'case No. 91 CR 410 (Sedgwick County). The sequence of events is as follows:
1/27/91 Defendant arrested for possession of cocaine. (Case No. 91 CR 410.)
7/18/91 Pled guilty to conspiring to possess cocaine.
8/7/91 Received a two-year suspended sentence.
8/24/91 Committed crimes herein.
8/27/91 Charged in case at bar. (Case No. 91 CR 1317.)
10/25/91 Found guilty of counts charged.
11/25/91 Suspended sentence revoked; sentenced to 1-5 years on cocaine charge; sentences imposed in case at bar.
In State v. Ashley, 236 Kan. 551, Syl. ¶ 1, 693 P.2d 1168 (1985), we held that suspended sentences were included in the meaning of probation in the consecutive sentencing statute, then K.S.A. 1983 Supp. 21-4608(3). However, in Ashley, the suspended sentences were revoked and the defendant sentenced thereon some two months before the sentencing occurred on the new convictions. Thus, subsection (1) of the statute was inapplicable.
It should be noted that the form of the statute was slightly different in Ashley. The statute (K.S.A. 1983 Supp. 21-4608) then provided:
“(1) When separate sentences of imprisonment for different crimes are imposed on a defendant on the same date, including sentences for crimes for which suspended sentences or probation have been revoked, such sentences shall run concurrently or consecutively as the court directs. Whenever the record is silent as to the manner in which two or more sentences imposed at the same time shall be served, they shall be served concurrently.
“(3) Any person who is convicted and sentenced for a crime committed while on probation, parole or conditional release for a felony shall serve the sentence consecutively to the term or terms under which the person was on probation or released.”
The last sentence in K.S.A. 1992 Supp. 21-4608 (1) which states “except as provided in subsections (3), (4) and (5)” applies only when the record is silent as to whether the sentences are to run concurrently or consecutively. Here, the record is not silent as to how the sentences shall be served. The trial court stated the sentences herein would be consecutive to that of the cocaine sentence.
The record is clear that the trial court believed subsection (3) controlled and, accordingly, that consecutive sentencing was mandatory. We do not agree.
When a statute is clear and unambiguous, the court must give effect to the legislative intent therein expressed rather than make a determination of what the law should or should not be. Thus, no room is left for statutory construction. In re Mary P., 237 Kan. 456, Syl. ¶ 1, 701 P.2d 681 (1985). General and special statutes should be read together and harmonized whenever possible, but to the extent a conflict between them exists, the special statute will prevail unless it appears the legislature intended to make the general statute controlling. Kansas Racing Management, Inc. v. Kansas Racing Comm’n, 244 Kan. 343, 353, 770 P.2d 423 (1989). The court is required to strictly construe penal statutes in favor of the accused. This rule of strict construction, however, is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent. State v. Tyler, 251 Kan. 616, Syl. ¶ 15.
The legislature may well have intended to make consecutive sentencing mandatory under the circumstances herein, but the clear language of the statute does not so indicate. Under such circumstances there is no room for judicial construction. Subsection (1) is a specific statute applied when all involved séntences occur, as here, on the same date and takes precedence over subsection (3) of said statute.
The trial court did not exercise discretion in determining under subsection (1) whether to impose the sentences concurrently or consecutively. Rather, the trial court imposed consecutive sentences on the basis such was mandatory under subsection (3), We conclude the sentences herein must be vacated and the case remanded for resentencing, applying K.S.A. 1992 Supp. 21-4608(1).
SENTENCING UNDER K.S.A. 1992 SUPP. 21-4618
For his final issue, the defendant contends the district court erred in applying K.S.A. 1992 Supp. 21-4618 to his conviction for unlawful possession of a firearm (K.S.A. 1992 Supp. 21-4204).
K.S.A. 1992 Supp. 21-4618 provides:
“(1) Except as provided in subsection (3), probation, assignment to a community correctional services program or suspension of sentence shall not be granted to any defendant who is convicted of the commission of the crime of rape, the crime of aggraváted sodomy or any crime set out in article 34 of chapter 21 of the Kansas Statutes Annotated in which the defendant used any firearm in the commission thereof and such defendant shall be sentenced to not less than the minimum sentence of imprisonment authorized by law for that crime. This section shall not apply to any crime committed by a person under 18 years of age.
“(2) When a court has sentenced a defendant as provided above, the court shall state in the sentencing order of the judgment form or journal entry, whichever is delivered with the defendant to the correctional institution, that the defendant has been sentenced pursuant to this K.S.A. 21-4618 and amendments thereto based on a finding by the court that a firearm was so used.
“(3) The provisions of this section shall not apply to any crime committed by a person where such application would result in a manifest injustice.”
It is uncontroverted that K.S.A. 1992 Supp. 21-4618 was properly applied to the second-degree murder conviction. Inasmuch as unlawful possession of a firearm is not an article 34 crime, or rape, or aggravated sodomy, application of 21-4618 to such conviction would be erroneous. The record at sentencing does not show any discussion of 21-4618 relative to the firearm charge.
The journal entry states, in pertinent part: “Defendant is hereby committed to the custody of the Secretary of Corrections . . . for a period of not less than two (2) years nor more than ten (10) years on the charge of Unlawful Possession of Firearm, Count Two, contrary to K.S.A. 21-4204, and in accordance with K.S.A. 21-4501(d) and K.S.A. 21-4618. “ (Emphasis supplied.)
The State contends the last phrase thereof, “and K.S.A. 21-4618” is an error which occurred through mistake or inadvertence and should be corrected by deleting the same through amendment or a nunc pro tunc order. Ordinarily, this procedure would adequately correct the error. However, inasmuch as we have vacated these sentences under the preceding issue, and the defendant will be resentenced on this conviction with a new journal entry being prepared thereon, there is nothing to be gained by correcting the journal entry on the original sentencing.
The convictions are affirmed, the sentences imposed herein are vacated, and the case is remanded for resentencing. | [
-80,
-24,
-79,
-102,
40,
-32,
106,
-104,
80,
-29,
-90,
115,
45,
-37,
21,
107,
57,
61,
85,
105,
78,
-78,
7,
-23,
-78,
-77,
82,
-43,
-77,
-49,
-92,
-3,
73,
96,
-62,
-107,
-26,
-54,
71,
28,
-122,
5,
9,
-47,
-48,
-104,
48,
126,
94,
3,
49,
30,
-5,
106,
30,
-61,
105,
40,
91,
59,
16,
-79,
-118,
-91,
-1,
18,
-77,
-90,
-98,
-121,
120,
60,
-48,
49,
72,
-4,
51,
-90,
-126,
116,
105,
-119,
12,
38,
99,
21,
29,
-49,
-72,
-87,
31,
-49,
-105,
-89,
29,
89,
65,
4,
-106,
-97,
122,
52,
-122,
-4,
-19,
85,
-37,
124,
4,
-97,
-110,
-109,
-49,
56,
6,
-6,
-5,
-123,
16,
117,
-51,
114,
92,
85,
91,
63,
-74,
-80
]
|
The opinion of the court was delivered by
Six, J.:
A juror in an attempted first-degree murder-aggravated kidnapping case fainted during trial when slides of the victim were being shown. A doctor who had just testified concerning the victim’s injuries treated the juror. The juror who fainted was replaced by an alternate. Defendant moved for a mistrial. The motion was denied.
This case addresses: (1) the mistrial ruling; (2) the ex parte conversation between the trial court and the fainting juror; (3) the admissibility of the slides; (4) the absence of an instruction on voluntary intoxication; and (5) defendant’s pro se brief and pro se argument. James Minski was convicted of aggravated kidnapping (K.S.A. 21-3421) and attempted first-degree murder (K.S.A. 1992 Supp. 21-3301 and K.S.A. 1992 Supp. 21-3401). Our jurisdiction is under K.S.A. 1992 Supp. 22-3601(b)(l) (appeal of a class A felony conviction or imposition of a maximum sentence of life impris onment).
We find no error and affirm.
Facts
J.C.B., the victim, received an early morning phone call from Minski requesting a ride. J.C.B., who knew Minski, drove her car to his house. Minski said he did not have his shoes on and that she should follow him downstairs.
Once downstairs, Minski threw J.C.B. on the couch, put his hand over her mouth, and said, “I am doing this because Gary said he would kill us both if we didn’t.” He then gagged and blindfolded J.C.B., moved her to a chair, and tied her hands. He removed her shorts and swimsuit bottoms and engaged in vaginal, oral, and anal intercourse against her will. During the rape, Minski told her “they wanted to know where the pot was.” J.C.B. replied that she knew nothing about the pot. While J.C.B., was still sitting on the chair, a second individual (she assumed it was Gary Freeman) raped her. Minski moved J.C.B. from the chair to the bed and without her consent had vaginal intercourse with her a second time. Minski then dressed her and said, “[W]e’re going to take you to find out where the pot is.” On cross-examination, J.C.B. explained that she was assaulted, dressed, assaulted, and dressed again.
Minski told her to get in a car trunk. J.C.B. refused. She was put in the trunk by Minski. (She recognized the car as her own because she felt wires taped together by the trunk keyhole as in her car.) The car was driven into Kansas. When Minski opened the trunk, J.C.B. stated, “Gary, I didn’t do it.” Minski replied, “Gary will be here in a minute” and began choking her around the neck with his hands. J.C.B. tried to resist. Minski grabbed her, placed his arm around her head and neck, and snapped her neck as he jerked her out of the trunk. She fell to the ground. Minski choked her again. While being choked, J.C.B. was struck on her right temple and lost consciousness. She assumed someone other than Minski had struck her. J.C.B. regained consciousness in a wooded area. She noticed that the seat covers from her car and the carpet from her trunk were on her. Her wrists had been cut. She reached up to her neck and discovered a shoelace, which she then wrapped around her arm to use as a tourniquet to stop her wrist from bleeding.
J.C.B. flagged down a pickup truck. The pickup driver said J.C.B. stated that “she had been beaten up and raped and left for dead.” J.C.B. was taken by ambulance to the Olathe Medical Center. She suffered a significant blood loss. The surgeon who operated on her wrist concluded that the injury was life threatening. J.C.B. also suffered injuries to her neck consistent with efforts at strangulation. Injuries to her head consisted of multiple bruises as well as bleeding in her eyes. The bleeding inside the eyes was consistent with blunt trauma of a fairly severe extent.
Before J.C.B. was moved to the hospital, a shoelace, a pair of socks which had been tied together, and a piece of 3/8-inch nylon rope were recovered. Later, at the crime scene, her car seat covers and carpeting were located underneath a hedgerow. J.C.B. reported “that a man known to her as Jimmy and another man known as Gary Freeman had done that to her.” J.C.B. also gave directions to “Jimmy’s” house. The police located Minski’s residence and secured a warrant. Tennis shoes without shoelaces and a shoelace which matched a shoelace retrieved from J.C.B.’s neck were recovered.
Slides of J.C.B.’s injuries were shown during the treating physician’s testimony. At the close of the testimony, a juror fainted. The trial court declared a recess. The case was recalled later that afternoon. When the jury was not in the courtroom, the trial court stated:
“[THE COURT:] During the last hearing, Mrs. Hart, one of the jurors, fainted. The Court did not formally take a recess at that time. The Court excused both parties, excused the remainder of the jury to make space available for MedAct to be called for Mrs. Hart, and she is — she went to the hospital to be checked out.
“The Court wanted to make a record of the situation and the fact that this did occur and the Court did not actually formally recess on the record. However, when the Court did excuse the jury from the courtroom, the Court directed the jury to go back to the jury room, which they did, and after I got permission from both parties to recess the jury for the noon hour, the Court did advise the jurors not to discuss this case and the usual admonitions. Before the Court calls the jury back in to continue, it appears we have [sic] will have to continue with the alternate, Mr. Maus.
“Is there anything by the State at this time?
“[The State]: With regard to your last comment, is it your understanding we will not be proceeding with the juror that fainted?
“THE COURT: When she left, she was going to the — probably the Olathe hospital, and she looked very peaked at the time. I advised her if she felt like it, she should return to the court and we were going to reconvene at 1:15 and she could call. And she has not returned, and we plan to continue with the case at this time. Since she is not here, the Court would anticipate proceeding without her.”
Defense counsel moved for a mistrial. The State opposed the motion. The motion was denied.
The trial court recalled the jury, replaced the juror who had fainted with an alternate, and explained:
“THE COURT: The record should reflect that the jury is in place. For the record, and for the benefit of the jury panel, the Court has determined that Ms. Hart is unable to continue in this matter and the Court — Ms. Hart has been excused from jury service.
“And Mr. Maus, who was selected as an alternate, at this time you are a part of the jury panel and will continue as one of the jurors in this matter.”
A Jackson County, Missouri, prosecutor in charge of the sexual assault division testified that Minski had entered pleas in open court in Missouri. Minski admitted that he had twice raped and twice committed forcible sodomy against J.C.B. in his basement. (Minski lived in Grandview, Missouri.) He also entered a plea to charges of felony auto theft. No negotiations or promises were made to Minski prior to entering the guilty pleas in Missouri.
Minski’s Story
Minski testified that on the evening in question, he arrived at a bar between 7:45 and 8:15 p.m. He stayed at the bar until almost 2:00 a.m., drinking beer, Jack Daniels whiskey, and pina coladas. Minski and a friend smoked marijuana during the ride home as well as after they arrived at home. Minski saw J.C.B. drive by. Later, he called J.C.B. to ask for a ride to another friend’s house. According to Minski, J.C.B. did not sound “particularly groggy or sleepy,” and she immediately agreed to come over to give him the ride. He also stated that she told him she did not have any gas and had to go to work the next day. He told her he would give her gas money. J.C.B. appeared to be high and drunk when she arrived. Minski invited her downstairs, where they talked and smoked marijuana for about 15 to 20 minutes. Eventually, “one thing led to another,” and they had consensual sex. They talked afterwards. J.C.B. became angry and left. Minski fell asleep.
Minski explained that, on the advice of his attorney, he pled guilty in Missouri to two counts each of rape and sodomy because he “was scared to death of the fact I would get hundreds of years” if the sentence was imposed by a jury rather than the judge. On cross-examination, Minski said that he was lying when he told the Missouri judge that he was guilty of rape and sodomy. He also testified that he had stated that he was satisfied with his representation and that the plea was voluntary but that he felt forced to enter the plea. He believed J.C.B. was lying. When she became angry the night , of the incident, she told him she would go to the police and accuse him of rape.
Voluntary Intoxication
Minski asserts that he had consumed a variety of alcoholic beverages and smoked marijuana during the night in question. However, he did not request an instruction on voluntary intoxication.
When no request for an instruction on voluntary intoxication is made, our standard of review requires us to reverse only if the trial court’s failure to give the instruction was clearly erroneous. State v. Davis, 247 Kan. 566, 574, 802 P.2d 541 (1990). There must be evidence of intoxication upon which a jury might find that Minski’s mental faculties were impaired. Was he incapable of forming the necessary specific intent required to commit the crime, even if he asserts another inconsistent defense? See State v. Shehan, 242 Kan. 127, 744 P.2d 824 (1987).
Minski reasons that his testimony of alcohol and drug consumption entitled him to a voluntary intoxication instruction on both specific intent crimes (aggravated kidnapping and attempted premeditated murder). He further contends that his denial of the crime is not fatal to the need to instruct on voluntary intoxication. Minski suggests that in State v. Seeley, 212 Kan. 195, 510 P.2d 115 (1973), we held that the giving of a voluntary intoxication instruction was proper even though Seeley could not recall any involvement in the crime he was charged with. Minski misreads Seeley. Seeley requested a package of instructions covering his defense of insanity. One was PIK Crim. 2d 54.11 (1988 Supp.) on involuntary intoxication. The trial court refused to instruct on involuntary intoxication. The issue in Seeley was whether the evidence presented a bona fide issue of insanity or merely demonstrated voluntary intoxication. 212 Kan. at 198. The voluntary intoxication instruction in the context cited by Minski was not an issue in Seeley.
Unless evidence is presented that shows intoxication to the extent a defendant’s ability to form the requisite intent was impaired, no voluntary intoxication instruction is required. State v. Gadelkarim, 247 Kan. 505, 508, 802 P.2d 507 (1990). According to the State, on appeal Minski has exaggerated the extent of his alcohol and drug consumption. Minski described his night at the bar and his later encounters with J.C.B. in detail. At trial, Minski neither contended that he was intoxicated nor claimed that he could not remember what happened on the night of the attack.
The evidence did not provide sufficient proof for a jury to determine that Minsld’s mental faculties were impaired to the extent that he was incapable of forming the requisite intent to commit aggravated kidnapping and attempted first-degree murder. State v. Keeler, 238 Kan. 356, 360, 710 P.2d 1279 (1985) (the burden of showing that intoxication has robbed defendant’s mental faculties is on defendant).
The absence of a voluntary intoxication instruction, in the case at bar, is not error.
Minski’s Mistrial Motion
The standard of review on the trial court’s refusal to declare a mistrial is abuse of discretion. State v. Stallings, 246 Kan. 642, Syl. ¶ 1, 792 P.2d 1013 (1990). Minski observes that a trial court must, in general, avoid ex parte communication with a party or juror. We agree. He references K.S.A. 22-3405(1), which provides that a defendant in a felony case be present at critical stages of the trial, including the impaneling of the jury and return of the verdict. Minski objects to the trial judge’s conversation with the fainting juror off the record without either Minski or his lawyer present. Minski emphasizes that the judge denied the motion for a mistrial without questioning the remaining jurors about the effect of the fainting incident upon their ability to deliberate impartially. No cautionary instruction was given. Minski asserts that because the trial court dismissed the juror ex parte, and summarily found no prejudice, we must reverse and remand for a new trial. We do not agree.
Minski relies on State v. Knapp, 234 Kan. 170, 671 P.2d 520 (1983), and State v. Stallings, 246 Kan. 642. In Knapp, we held that a defendant had a right to be present at a conference in chambers where a juror informed the court that she had knowledge of an incident which she had failed to mention during voir dire. 234 Kan. at 180. The State conceded error but argued that Knapp’s presence was not essential because his lawyer was present. The lawyer was given an opportunity to question the juror and to present argument to the court about whether the juror should continue to sit. 234 Kan. at 179. We agreed with the State, holding that the clear violation of the statute was harmless error. Stallings reasoned that a trial judge properly substituted an alternate juror when a deliberating juror stated that his religious convictions prevented him from rendering a decision. We addressed neither the ex parte issue nor Stallings’ right to be present during the judge-juror private conversation. 246 Kan. at 646-47.
Minski argues that Knapp dictates error in the case at bar. Minski emphasizes that, unlike Knapp, Minsld’s rights were not protected by his counsel because counsel was not present during the conversation between the trial judge and the fainting juror. Minski contends that because there is no contemporaneous record, we cannot determine whether the trial court acted with reasonable cause in substituting an alternate juror. According to Minski, it was undisputed that the juror fainted out of sympathy and horror from viewing the slides of the victim. Minski reasons that although the defense may have ultimately decided to ask that the juror be excused, Minski had no participation, no information, and no opportunity to be heard before the decision was made. Minski concludes his lack of participation was a denial of both due process and his statutory rights.
Minski cites a variety of cases to support his position, i.e., State v. Chears, 231 Kan. 161, 166, 643 P.2d 154 (1982) (defendant moved for a mistrial because a child witness cried and sobbed on the witness stand; trial judge denied the motion, stating that he had not observed the crying); State v. Everson, 229 Kan. 540, 543, 626 P.2d 1189 (1981) (no prejudice where rape victim burst into tears and court cautioned that neither sympathy nor prejudice should influence jury’s decision); Underwood v. Indiana, 535 N.E.2d 507 (Ind. 1989) (admonition to jury cured emotional outburst by victim’s mother in courtroom, and fainting by spectator not sufficiently linked to evidence to prejudice defendant); Com. v. Marshall, 523 Pa. 556, 568 A.2d 590 (1989) (immediate instruction diffused any prejudice where mother of deceased interrupted homicide trial with emotional outburst, but trial court cautioned the jury to ignore outburst and to decide case exclusively on facts and not on sympathy, emotion, or prejudice); Com. v. Atkinson, 364 Pa. Super. 384, 398, 528 A.2d 210 (1987) (spectator making thumbs down gesture to jury did not prejudice jury where judge took immediate steps to determine impact of behavior on jurors by asking them whether gesture influenced their opinion and by observing demeanor of jurors when responding). We have reviewed Minski’s authorities and find them deficient in developing a rationale for reversal in the case at bar. A cardinal concept for reversal is a showing by a defendant of substantial prejudice. Stallings, 246 Kan. at 646. How did the trial court’s action or inaction in resolving the emergency prejudice Minski?
In State v. Folkerts, 229 Kan. 608, 629 P.2d 173, cert. denied 454 U.S. 1125 (1981), Folkerts claimed the trial court committed error in replacing one of the jurors with an alternate without an in court, on-the-record examination of the juror. During a weekend recess, one of the jurors contacted the trial judge and advised of her grandfather’s death and of her need to attend the grandfather’s out-of-state funeral. The trial judge excused the juror and appointed an alternate. We held that K.S.A. 22-3412(3), which governs substitution of a juror with an alternate, is similar to Fed. R. Crim. Proc. 24(c). Under federal cases, it is well established that the substitution of an alternate for a juror for reasonable cause is within the discretion of the trial court. 229 Kan. at 616.
K.S.A. 22-3412(3) was interpreted in State v. Haislip, 237 Kan. 461, 701 P.2d 909, cert. denied 474 U.S. 1022 (1985). In Haislip, we reasoned that the attorney’s right to challenge jurors for cause prior to their being impaneled and the trial court’s discretionary power to later excuse a juror due to incapacity are two entirely different matters which should not be confused. Despite defense counsel’s desire in Haislip to inquire further of the excused juror, the trial judge concluded a hearing was unnecessary since there was no claim of juror misconduct. The trial court found the juror was simply not up to the stress of the situation. The juror was excused for incapacity. An alternate juror was selected. Haislip, 237 Kan. at 467. We concluded that although it would have been a better practice for the trial court to have conducted a hearing, Haislip failed to show he was prejudiced by the lack of one. Therefore, no error occurred by excusing the juror without a hearing. We found no abuse of discretion. 237 Kan. at 470-71.
The issue of explicit photographs, in the case at bar, was covered during voir dire. The juror who ultimately fainted gave no indication of concerns about her ability to view the slides. The slides were shown to the jurors during the testimony of J.C.B. None of the jurors reacted adversely at that time. The same slides were again shown to the jurors during the testimony of the orthopedic surgeon. The trial judge found that although the slides were vivid, they were not gruesome and were necessary to show the nature of the injuries and to assist the doctor in testifying as to what he observed. The trial court found no prejudice to Minski. Minski never requested to individually question jurors regarding the effect of the photographs upon their ability to be fair and impartial. At the motion for new trial hearing, Minski presented no evidence from any juror to support his contention of prejudice due to the fainting incident.
The reasoning of Haislip and Folkerts is persuasive in resolving the mistrial issue in the case at bar. The trial court should be allowed to discharge jurors for reasonable cause if they are found to be unable to perform their duties. Reasonable cause existed here. Minski has failed to demonstrate prejudice. We find no abuse of discretion.
Minski’s Right to be Present
We have held that a conference between a trial judge and a juror is a critical stage of the proceeding requiring the presence of the defendant when the trial judge communicates with the jury. Crease v. State, 252 Kan. 326, Syl. ¶ 1, 845 P.2d 27 (1993). We also have acknowledged that the scope of the defendant’s right to be present will be influenced by circumstances and context, Le., a defendant does not have a right to be present at proceedings before the court involving matters of law, State v. Mantz, 222 Kan 453, 463-64, 565 P.2d 612 (1977), at remand proceedings, State v. Hood, 245 Kan. 367, 780 P.2d 160 (1989), and when excuses from jury service and deferrals were determined prior to when jurors were assigned to a particular case, State v. Baker, 249 Kan. 431, 442, 819 P.2d 1173 (1991).
A determination must be made as to whether the violation of a defendant’s right to be present was prejudicial. In State v. Turbeville, 235 Kan. 993, 686 P.2d 138 (1984), we analyzed the statutory requirement that the defendant shall be present at every stage of the trial and reasoned that “[i]n general a defendant’s statutory and constitutional rights to be present are violated only if the defendant is absent when the jury is hearing the case or when he is prevented from attending such other proceedings' where his presence is essential to a fair and just determination of a substantial issue.” 235 Kan. at 1002. In State v. Baker, 236 Kan. 132, 689 P.2d 803 (1984), we explained that “[ajlthough a defendant has the right and should be present when a court communicated with a jury, the absence of the defendant may be harmless error where there is no reasonable possibility of prejudice from the error.” 236 Kan. at 136-37.
The trial court, in the case at bar, had the discretion to excuse the juror who fainted and to substitute an alternate juror. Although Minski had the right to be present and although it may have been better practice for the discussion between the juror and the trial judge to have been placed on the record, Minski has failed to demonstrate that he was prejudiced. An emergency medical situation was involved. If a juror-related emergency medical situation arises in court it may be either impractical or unwise for the trial judge to interrupt medical treatment. The merit of a trial judge’s involving a defendant and his counsel in the questioning of an ill or injured juror on the record may, at times, be doubtful. Emergency situations should be resolved by the trial judge on an individual basis. The fundamental right of a defendant to be present in person and by counsel during judge-juror conversations is to be factored into each emergency situation.
Minski is correct in observing that in the absence of a record we do not know specifically what was said by the court to the juror or by the juror to the court during the conversation relating to the juror being excused. A reasonable assumption is that the court’s remarks focused on either concerns for the juror’s well-being or the juror’s return to the courtroom (or both) and not on Minski’s trial.
Defense counsel failed to request a cautionary instruction. The trial judge could have reasonably determined, under these facts, that either polling the jury or giving a cautionary instruction was unnecessary or even unwise because such action would further focus the attention of the jurors on the fainting incident. Minski has not demonstrated prejudice. The trial court did not abuse its discretion.
The Photographic Slides
The standard of review regarding the admission of photographs is abuse of discretion. State v. Hill, 242 Kan. 68, 79, 744 P.2d 1228 (1987).
Minski failed to object to the admissibility of the slides at trial and did not file a pretrial motion in limine to keep the slides from being offered. Minski contends that the photographs of J.C.B.’s injuries which were taken at the hospital were gruesome and cumulative. He also alleges that when photographic slides are reproduced on an overhead projector, creating a magnified image, they are no longer true reproductions. Consequently, he argues it was error for the court to admit these slides.
Minski reasons that because the juror who was closest to the projector screen fainted, the prosecutor succeeded only too well in arousing juror sympathy. He concludes, therefore, that the slides were cumulative to the numerous witnesses who testified about J.C.B.’s injuries.
The State accents the fact that the trial judge did not find the slides gruesome. Instead, the judge concluded, “[T]hey were certainly vivid, but not gruesome. The court finds that the slides were necessary to show the nature of the injuries and to assist the doctor in testifying as to what he observed.”
The fact that photographs are gruesome will not, in and of itself, render photographs inadmissible. State v. Hedger, 248 Kan. 815, 821, 811 P.2d 1170 (1991). In each case, it is the trial judge who determines whether the photographs serve a proper purpose in the jury’s enlightenment. State v. Graham, 247 Kan. 388, 397, 799 P.2d 1003 (1990). At Minsld’s trial, the doctor appears to have pointed to the slides to assist his explanation while testifying.
In State v. Yarrington, 238 Kan. 141, 708 P.2d 524 (1985), the defendant objected to the showing of slides of an autopsy. We advised that the court should view slides outside the presence of the jury, unless their admissibility has been agreed to, in order to avoid showing the jury what may be determined to be inadmissible evidence. 238 Kan. at 144. It is unclear from the record whether the pretrial slide viewing procedure we discussed in Yarrington was used. However, Minski has not raised the issue. We have viewed the slides. We find no abuse of discretion.
Minski’s Pro Se Brief
Minski filed a pro se brief and a written argument. He contends that he has been denied both due process and his constitutional right of access to the courts. Appellate counsel read Minski’s pro se argument at the conclusion of her oral argument. Minski asserts that he had informed appellate counsel of his desire to have certain issues raised on appeal and that counsel failed to advance these issues, so he has not received effective assistance of counsel. He contends that because he is presently in prison in Missouri and does not have access to legal materials concerning Kansas law, he cannot develop his own arguments. Minski observes that he has attempted, without success, to have Kansas legal research materials sent to him. Consequently, he believes his right of access to the courts has been impinged upon.
Minski’s appellate counsel filed a motion to withdraw, which was denied by this court. Minski filed a response in which he objected to his counsel’s motion to withdraw. He has also filed a notice indicating that he is not knowingly or voluntarily abandoning the issues which his counsel has not raised on appeal. He also states that he wants his ineffective assistance of counsel claim raised on appeal.
Minski has received thorough representation by his advocate in the Office of Appellate Defender.
We have reviewed Minski’s pro se brief and his statement. We find neither persuasive in countermanding our affirmance of the trial court.
Affirmed. | [
80,
-24,
-71,
-97,
40,
98,
42,
24,
98,
-41,
50,
-13,
-81,
-51,
68,
107,
56,
63,
84,
97,
-43,
-74,
39,
-55,
-74,
-5,
80,
-59,
-78,
74,
-2,
-75,
13,
112,
-110,
-43,
-26,
-54,
-15,
86,
-114,
7,
-103,
-16,
18,
18,
34,
119,
-48,
15,
49,
28,
-29,
104,
27,
-126,
-55,
56,
26,
-1,
-32,
-80,
-88,
-105,
-55,
22,
-77,
-96,
30,
-87,
-8,
52,
-39,
-79,
8,
-22,
115,
-106,
-126,
116,
15,
-85,
68,
98,
32,
32,
29,
-53,
105,
-39,
63,
127,
-84,
-89,
-103,
72,
73,
44,
-73,
-33,
116,
52,
14,
126,
-1,
-34,
85,
-12,
26,
-33,
-112,
-111,
77,
116,
24,
-70,
-13,
-121,
48,
117,
-113,
48,
68,
117,
91,
-97,
111,
-106
]
|
The opinion of the court was delivered by
Beier, J.:
This case arises on petition for review from a divided panel of the Court of Appeals, which reversed the district court’s double jeopardy dismissal of a Saline County attempted theft by deception charge against defendant Matthias Schroeder, Jr.
Schroeder was first charged in Norton County with forgery and theft by deception. The State alleged he stole 47 cows from Norton Livestock by giving a forged check for purchase of the cattle.
A few days after the Norton County transaction, several of the stolen cows were brought to Farmers and Ranchers Sale Barn (Far mers and Ranchers) in Saline County. A man who gave his name as “Randall Senters” called Farmers and Ranchers, said he was the owner of the cattle, and requested payment. Farmers and Ranchers became suspicious and notified police, because the man gave an incomplete address and because ear tags had been removed from the cows. A special investigator for the Kansas Animal Health Department/Brand Division inspected the cows and determined that several had brands matching those of the cows purchased by means of the forged check in Norton County.
The next morning, police officers waited at Farmers and Ranchers for the man claiming to be Senters to arrive to pick up his payment. When the man arrived, a Farmers and Ranchers’ employee handed him the check. The officers arrested him immediately, and the man was identified as defendant Schroeder.
Schroeder was acquitted of forgery and theft by deception in Norton County. Two months later, the State charged him in Saline County with possession of the stolen cattle. The State later amended the complaint to add a charge of attempted theft by deception of the Farmers and Ranchers check.
At Schroeder’s preliminary hearing in Saline County, the State, with one exception, called the same witnesses who had testified in the Norton County trial that ended in acquittal. The witnesses testified about the Norton County theft of the cattle and the Saline County events that led to defendant claiming the Farmers and Ranchers check.
Schroeder filed a motion to dismiss, arguing only that the possession of stolen property charge violated double jeopardy. Specifically, in his reply memorandum to the district court, Schroeder focused on the compulsoiy joinder clause of K.S.A. 21-3108(2)(a) and summarized the similarities between the testimony in the Norton County trial and the Saline County preliminary hearing. Although the parties appeared at a later hearing on the motion to dismiss, they offered no further argument on the governing law to the district court at that time. Rather, at the hearing, the defense merely introduced a complete transcript of the Norton County trial in support of its motion, and the district judge took the matter under advisement.
The district judge ultimately dismissed both Saline County charges on double jeopardy grounds, stating in his journal entry of judgment:
“The Court finds that the elements of K.S.A. 21-3108(2)(a) are met in this case:
“1. The prior [charges] in Norton County resulted in [an] acquittal of the Defendant;
“2. The evidence of the present crimes was introduced in the prior prosecution; and
“3. The crimes charged in the Saline County prosecution could have been charged as additional or alternative counts in the Norton County case.”
The district judge also relied upon his theory that the Norton County and Saline County crimes were part of a single enterprise, giving each county jurisdiction over the prosecution of all of the crimes. In addition, he stated that Kansas “public policy strongly discourages piecemeal prosecutions.”
On appeal to the Court of Appeals, the State conceded that further pursuit of the Saline County possession of stolen property charge would violate double jeopardy. See State v. Schroeder, No. 90,188, an unpublished opinion filed May 7, 2004. However, because the Saline County attempted theft by deception charge was based on Schroeder s acceptance of the Farmers and Ranchers check rather than the theft of the cattle, in its view, that charge should have been permitted to proceed to trial.
The Court of Appeals majority quoted In re Berkowitz, 3 Kan. App. 2d 726, 743, 602 P.2d 99 (1979), for the three requirements of the compulsory joinder clause in K.S.A. 21-3108(2)(a):
“ ‘For the Kansas statute to bar a prosecution under the circumstances present in this case three elements must coalesce: (1) The prior prosecution must have resulted in either a conviction or an acquittal; (2) evidence of the present crime must have been introduced in the prior prosecution; and (3) the present crime must be one which could have been charged as an additional count in the prior case.’ ” Slip op. at 6.
Although the State had acknowledged that the first two factors of the compulsory joinder provision were met — Schroeder had been already been tried and acquitted in Norton County, and evidence of the Saline County theft by deception had been introduced in the Norton County trial — it argued the third requirement for application of the compulsory joinder provision was unmet. Norton County would not have been an appropriate venue for prosecution of Schroeder s attempted theft by deception of the Farmers and Ranchers check in Saline County.
The majority accepted this argument. Because all the elements of the Saline County attempted theft by deception occurred in that county, venue in Norton County would have been improper. In addition, the majority rejected Schroeder s claim that the Norton and Saline County crimes were parts of a single criminal enterprise amenable to prosecution in either county. Slip op. at 14-15.
Judge Greene dissented. He stated that the “State’s belated attempt to conjure up an independent crime in Saline County after Schroeder was acquitted in Norton County . . . [was] precisely what our statute and the Constitution seek to proscribe.” Dissent at D-l. Although he regarded the majority’s analysis and application of the compulsory joinder clause of K.S.A. 21-3108(2)(a) as sound, he argued that Saline County’s prosecution of the attempted theft by deception charge should have been barred by K.S.A. 21-3108(2)(b). Dissent at D-4.
Standard of Review
Our standard of review of a double jeopardy claim is de novo. See State v. Barnhart, 266 Kan. 541, 543, 972 P.2d 1106 (1999). In addition, Kansas has codified both the United States Constitution’s Fifth Amendment prohibition of double jeopardy and the state Constitution’s tandem prohibition in Section 10 of the Bill of Rights at K.S.A. 21-3108, see Barnhart, 266 Kan. at 544. We must also examine several statutes affecting joinder and venue to analyze the parties’ arguments. To the extent this case requires statutoiy interpretation, such interpretation also raises issues of law subject to de novo review on appeal. State v. Marsh, 278 Kan. 520, 537-40, 102 P.3d 445 (2004).
Compulsory Joinder under KS.A. 21-3108(2)(a)
The district court and the Court of Appeals majority both relied upon the first clause of section (2)(a) of K.S.A. 21-3108, although they reached opposite conclusions. The statute reads:
“(2) A prosecution is barred if the defendant was formerly prosecuted for a different crime, or for the same crime based upon different facts, if such former prosecution:
(a) Resulted in either a conviction or an acquittal and the subsequent prosecution is for a crime or crimes of which evidence has been admitted in the former prosecution and which might have been included as other counts in the complaint, indictment or information filed in such former prosecution or upon which the state then might have elected to rely.”
This first clause of section (2)(a) of K.S.A. 21-3108 is a compulsory joinder provision. State v. Wilkins, 269 Kan. 256, Syl. ¶ ¶ 1 and 2, 7 P.3d 252 (2000):
“Under the compulsory joinder rule, if evidence is admitted of an offense not contained in the charge, later prosecution of that offense is barred if it could have been included as an additional count in the first prosecution.” Syl. ¶ 1.
“The object of the compulsory joinder rule is simply to prevent the prosecution from substantially proving a crime in a trial in which that crime is not charged and then prosecuting the defendant in a subsequent trial using evidence presented in the earlier trial. The compulsory joinder rule furthers the constitutional guarantee against multiple trials . . . .” Syl ¶ 2.
The Court of Appeals majority correctly outlined the three requirements for application of the compulsory joinder clause to bar a prosecution: “ ‘(1) The prior prosecution must have resulted in either a conviction or an acquittal; (2) evidence of the present crime must have been introduced in the prior prosecution; and (3) the present crime must be one which could have been charged as an additional count in the prior case.’ ” Wilkins, 269 Kan. at 260 (quoting In re Berkowitz, 3 Kan. App. 2d at 743).
The State asserts this court’s decision in State v. Mahlandt, 231 Kan. 665, 647 P.2d 1307 (1982), supports its argument that Norton County would not have been an appropriate venue for prosecution of the attempted theft by deception charge.
The Mahlandt case began with a robbery of a service station in Sedgwick County. After obtaining the money in the cash register, the defendant kidnapped the service station clerk. However, she was able to escape the defendant’s car as it left the station parking area. Later the same morning, and before the defendant removed the proceeds of the Sedgwick County robbery from his car, he robbed another service station in neighboring Butler County. Again, he kidnapped the clerk. This time he succeeded in driving the clerk into Sedgwick County, where he raped and sodomized her.
The defendant was charged in Butler County with robbery, aggravated kidnapping, rape, and aggravated sodomy. He was also charged in Sedgwick County with robbery and aggravated kidnapping. The Sedgwick County victim testified about the Sedgwick County crimes in the Butler County case, which concluded first. The defendant was convicted on all four charges. He then filed a motion to dismiss the Sedgwick County case, claiming the second prosecution was barred by double jeopardy. The Sedgwick County district judge denied his motion, and he was convicted on both Sedgwick County charges. He then appealed.
This court determined that the first two elements of the K.S.A. 21-3108(2)(a) compulsory joinder test had been met. The defendant had been convicted of the Butler County crimes, and evidence of the Sedgwick County crimes had been admitted in the Butler County trial. The remaining question was whether the Sedgwick County crimes could have been prosecuted in Butler County.
The court discussed three venue statutes: K.S.A. 22-2603, which governs crimes committed in more than one county and provides for prosecution of such crimes in any county in which a constituent criminal act or element of the crime had occurred; K.S.A. 22-2609, which governs crimes in which property is stolen in one county and brought into another, and provides for prosecution in either county; and K.S.A. 22-2614, which provides that a kidnapping case could be prosecuted “ ‘in any county in which the victim has been transported or confined during the course of the crime.’ ” 231 Kan. at 668-69 (quoting K.S.A. 22-2614).
Under these statutes, this court held the Sedgwick County robbery charge could have been brought in Butler County, because the money stolen from the Sedgwick County service station was transported there. See K.S.A. 22-2609. This meant that all three of the requirements for application of the compulsory joinder clause of 21-3108(2)(a) were met as to the robbery, and the defendant’s double jeopardy rights were violated by his later prosecution in Sedgwick County. 231 Kan. at 669-70.
In contrast, the Sedgwick County kidnapping charge could not have been pursued in Butler County, because the Sedgwick County clerk had escaped from the defendant before he entered Butler County. In short, she was neither transported nor confined in Butler County during the course of the crime, as required by K.S.A. 22-2614. That charge also could not have been pursued in Butler County under K.S.A. 22-2603, because the kidnapping did not qualify as part of'the Sedgwick County robbery. “The kidnapping clearly was not an act necessary to the accomplishment of the robbery .... Instead, the facts show that die robbery was completed prior to the time when the victim [was kidnapped.] The commission of the robbery would not have been altered had the kidnapping not occurred.” 231 Kan. at 669.
This discussion demonstrates that Mahlandt supports the State’s argument on application of the compulsory joinder clause in this appeal if we view the Saline County attempted theft by deception at issue as more analogous to Mahlandt’s Sedgwick County kidnapping than its Sedgwick County robbery. If we take the opposite view, then the district judge was correct to dismiss the attempted theft by deception charge under the compulsory joinder clause of 21-3108(2)(a).
Theft by deception is defined as obtaining by deception control over property with intent to deprive the owner permanently of the possession, use, or benefit of the owner’s property. K.S.A. 21-3701(a)(2). An attempt is “any overt act toward the perpetration of a crime done by a person who intends to commit such crime but fails in the perpetration thereof or is prevented or intercepted in executing such crime.” K.S.A. 21-3301(a).
We note parenthetically that the State’s decision to file only an attempt charge against Schroeder in Saline County is perplexing. If the State intended to base this charge on Schroeder’s acceptance of the Farmers and Ranchers check rather than its surmise that he planned to negotiate the check for cash if he had not been arrested, it seems there had to have been a completed crime rather than an attempt, if there was any crime at all.
Be that as it may, to the extent the allegations against Schroeder added up to a theft by deception or an attempted theft by decep tion, it is clear that all of tire acts alleged to have constituted the crime were committed in Saline County. Under K.S.A. 22-2603, this situation differs from the Sedgwick County kidnapping before this court in Mahlandt because the Saline County crime was begun and finished after the crimes tried earlier in Norton County rather than before them. But this difference in sequence is not a meaningful legal distinction for venue purposes.
We also are not persuaded that tíre Saline County attempted theft by deception charge could have been tried in Norton County because, under K.S.A. 22-2603, it was integral to the possession of stolen property crime that the State has conceded could have been pi'osecuted in Norton County and thus was properly dismissed in Saline County. Paraphrasing Mahlandt, the attempted theft by deception was not an act necessary to the accomplishment of the possession of stolen property. Instead, the facts show that the possession of stolen property was completed prior to the time when the check was accepted from Farmers and Ranchers. The commission of the possession of stolen properly would not have been altered had the attempted theft by deception not occurred.
Under Mahlandt, the district court erred in dismissing the Saline County attempted theft by deception charge on the basis of a conventional reading of the compulsory joinder clause of 21-3108(2)(a). The third requirement for application of that statute was not met. Norton County would not have been a proper venue for prosecution of that charge.
Single Enterprise Theory
Schroeder also argues that the district court’s dismissal should be affirmed because each of the Norton County and Saline County cxixnes should have been treated as a component of a single criminal enterprise amenable to prosecution in either Norton County or Saline County.
Schx'oeder, the district court, and the Court of Appeals majority have cited thiee possible sources of authority to support the single enterprise theory. We discuss each in turn.
Although it is not perfectly clear, Schroeder appears to rely on an expansive reading of K.S.A. 21-3108(2)(a) and K.S.A. 22-2603. The reasoning of our decisions in Mahlandt, 231 Kan. 665; State v. Calderon, 233 Kan. 87, 661 P.2d 781 (1983); and State v. Baker, 255 Kan. 680, 877 P.2d 946 (1994), provides us no incentive to endorse such a reading.
In Mahlandt, as discussed, this court refused to reverse the Sedgwick County kidnapping conviction. This was true despite its obvious close ties in time and circumstance to the Sedgwick County robbery and the Butler County crimes. 231 Kan. at 666. The ties did not translate into treatment as components of a single criminal enterprise.
In Calderon, the defendant kidnapped an 11-year-old boy from Riley County and transported him to Pottawatomie County, where he sodomized him. The defendant entered a plea of nolo contendere to a kidnapping charge in Riley County, and the State referenced the sodomy in the factual basis it stated to support the plea. The defendant invoked the earlier prosecution in Riley County to challenge his later aggravated sodomy conviction in Pottawatomie County on double jeopardy grounds, asserting that the sodomy could have been prosecuted in Riley County along with the lad-napping. 233 Kan. at 88-89.
This court rejected the assertion. Despite the very close connection in time between the kidnapping and the aggravated sodomy and the fact that the former enabled the performance of the latter, proof of one still was not considered vital to proof of the other under K.S.A. 22-2603. “Venue did not lie in Riley County under K.S.A. 22-2603 because no act required to establish the crime of aggravated sodomy under 21-3506(b) occurred there .... Because the crime could not have been charged in Riley County there was no violation of the double jeopardy provisions of 21~3108(2)(a).” 233 Kan. at 91-92. In the alternative, we also held that the State’s mention of the sodomy at the defendant’s Riley County plea hearing did not meet tire requirement in 21-3108(2)(a) that evidence be introduced in a previous prosecution. 233 Kan. at 92-93.
In Baker, the defendant murdered a woman in her home in Shawnee County. When three of her neighbors checked on her welfare the following morning, tire defendant kidnapped the three at gunpoint and drove them into Douglas County, where he forced them out of the car. He was then persuaded to leave the three there for an hour while he checked on the status of the murder victim. During this hour, the only one of the three neighbors who was physically able escaped and summoned help from law enforcement. When the authorities arrived at the scene where the two neighbors had been left, they were gone. Two days later, the two neighbors’ bodies were found elsewhere in Douglas County.
The defendant was convicted of murder, aggravated burglary, conspiracy to commit aggravated burglary, and three counts of kidnapping in Shawnee County. He was later convicted in Douglas County of one count of aggravated assault of the neighbor who survived and two counts of murder and two counts of aggravated kidnapping of the two neighbors who did not.
On appeal, the defendant argued that all of the crimes should have been prosecuted together in Shawnee County. This court rejected his compulsory joinder argument regarding the two counts of murder and two counts of aggravated kidnapping, because the defendant’s act of leaving the three neighbors for a period of time constituted a bréale in the action. The later second kidnapping of two of the neighbors and their eventual murders, which occurred solely in Douglas County, were not parts of a single criminal enterprise including the Shawnee County crimes. 255 Kan. at 684.
On the other hand, the court accepted the defendant’s compulsory joinder argument with regard to the Douglas County aggravated assault of the neighbor who escaped. To the extent that neighbor was subjected to an aggravated assault in Douglas County, the court agreed it was a continuation of a kidnapping that had begun in Shawnee County and for which the defendant had already been tried and convicted. The aggravated assault could not be prosecuted separately later in Douglas County without running afoul of 21-3108(2)(a)’s compulsory joinder clause and double jeopardy. 255 Kan. at 685.
In this case, several days separated the Norton County and Saline County events. Relying on the logic of Mahlandt, Calderon, and Baker, we reject any assertion by Schroeder that the Norton County crimes and Saline County crimes should have been treated as constituent parts of a single enterprise and tried together in Norton County under an expansive reading of K.S.A. 21-3108(2)(a) and K.S.A. 22-2603.
The second possible source of authority for the single enterprise theory comes from the district judge, who cited State v. Martinez, 255 Kan. 464, 874 P.2d 617 (1994), to support his alternative holding that all of the crimes in both counties were part of a single enterprise. The Court of Appeals rejected this rationale, and we agree. Martinez involved aider and abettor liability in a county into which stolen property was transported. 255 Kan. at 467-68. Although it would support prosecution for the theft of the cattle in Saline County, it does not support prosecution for the theft of the check in Norton County. The cattle traveled in one direction across the county line; the check never traveled in the opposite direction across the line.
The Court of Appeals majority identified — and discounted — yet a third possible source of support for the single enterprise theory: K.S.A. 22-3202’s joinder provision for multiple crimes that malee up a “common scheme or plan.” We agree the operation of K.S.A. 22-3202 is limited to a common scheme or plan executed entirely within one jurisdiction. Mahlandf s specific rejection of reliance on K.S.A. 22-3202- as an avenue to support prosecution of the Sedgwick County kidnapping charge in Butler County, citing State v. Ralls, 213 Kan. 249, 515 P.2d 1205 (1973), is significant. Ralls’ discussion of joinder explicitly noted the requirement that the crimes to be joined under K.S.A. 22-3202 must have occurred in a single jurisdiction. 213 Kan. at 256-57. Joinder under 22-3202 does not trump the requirement of proper venue.
Crimes Inextricably Intertwined
Schroeder also argues before us that, even if the Norton County crimes and the Saline County crimes were not parts of a single enterprise, they were inextricably intertwined and thus could have been prosecuted together in Norton County. Judge Greene saw merit in this argument in this particular situation.
We decline to extend application of the compulsory joinder provision to crimes that are merely “inextricably intertwined” with crimes for which a defendant has already been tried to conviction or acquittal in another county. Neither K.S.A. 21-3108 nor our previous case law supports such an extension. Moreover, the vagueness of such a holding would be likely to cause more problems than it would cure.
K.S.A. 21-3108(2)(b)
Section (2)(b) of K.S.A. 21-3108, on which Judge Greene relied in his dissent, bars a prosecution if the defendant was prosecuted earlier for a different crime and that prosecution “[w]as terminated by a final order or judgment, even if entered before trial, which required a determination inconsistent with any fact necessary to a conviction in the subsequent prosecution.” We have never interpreted or applied this more general double jeopardy provision. Its potential effect on this case was raised for the first time by Judge Greene; neither party had argued that this section was controlling before the district court or had cited it in the brief submitted to the Court of Appeals.
We excuse Schroeder’s failure to preserve this issue for review, because we recognize that all three exceptions to the general rule that a new legal theory may not be asserted for the first time on appeal are applicable in this case. The newly asserted theory involves only a question of law arising on proved or admitted facts and is finally determinative of the case; consideration of the theory is necessary to serve the ends of justice or prevent denial of fundamental rights; and the judgment of the district court may be upheld despite its reliance on the wrong ground for its decision. See State v. Wiegand, 275 Kan. 841, Syl. ¶ 2, 69 P.3d 627 (2003).
Here, the plain language of K.S.A. 21-3108(2)(b) is clearly applicable to ban prosecution of the attempted theft by deception charge in Saline County. In the Norton County case, Schroeder was found not guilty on the central charge of theft of the cattle by deception. That finding was “inconsistent with [a] fact necessary to conviction” on the attempted theft of the check by deception in Saline County, i.e., that Schroeder’s exchange of cattle for the check was deceitful. Viewing the State’s factual basis for the check charge charitably, Schroeder’s acceptance of the check was only wrongful if he was misrepresenting his right to sell the cattle. In effect, the Norton County jury already found that the State failed to prove the absence of that right.
We believe our reasoning here is supported by the United States Supreme Court’s double jeopardy decision in Ashe v. Swenson, 397 U.S. 436, 25 L. Ed. 2d 469, 90 S. Ct. 1189 (1970).
In Ashe, three or four men broke into a house and robbed six men playing poker. The defendant was charged with robbery of one of the poker players, and a jury found him not guilty. He was later charged with robbeiy of a different poker player. The State presented the same witnesses and evidence in the second trial as it did in the first trial. The second jury convicted, and the defendant argued on appeal that his double jeopardy rights had been violated by the second prosecution. 395 U.S. at 437-40.
The Supreme Court determined that the doctrine of collateral estoppel applied in criminal cases and was embodied in the Fifth Amendment guarantee against double jeopardy. 397 U.S. at 443, 445-46. Once a jury determined that the defendant was not guilty of the robbery, the State could not “present the same or different identification evidence in a second prosecution ... in the hope that a different jury might find that evidence more convincing.” 397 U.S. at 446.
Here, as in Ashe, the jury in the first trial determined that Schroeder was not guilty of involvement in the theft of the cattle. The State then sought a guilty verdict on the same facts and evidence for a different crime that required Schroeder either to have stolen the cattle or to have possessed stolen property. These questions had already been decided against the State. Under K.S.A. 21-3108(2)(b), and consistent with the application of collateral estoppel to prevent double jeopardy in Ashe, the second prosecution was barred.
The Court of Appeals is reversed. The district court is affirmed. | [
-16,
-20,
61,
13,
10,
96,
42,
-86,
66,
-93,
54,
83,
-23,
-38,
5,
123,
-26,
13,
84,
121,
-10,
-74,
11,
-63,
54,
-14,
-48,
-59,
-70,
75,
-82,
-59,
75,
-80,
-118,
93,
70,
-128,
-61,
88,
-114,
4,
11,
-47,
-37,
-112,
44,
-21,
22,
2,
53,
-82,
-30,
47,
60,
71,
73,
44,
75,
45,
96,
-43,
-5,
7,
95,
22,
3,
38,
-70,
4,
-54,
46,
-100,
121,
1,
-40,
115,
-74,
-122,
116,
11,
-103,
12,
38,
98,
50,
-100,
-115,
-84,
-120,
43,
127,
-113,
-89,
-112,
72,
67,
46,
-106,
-99,
116,
118,
2,
-4,
-25,
12,
31,
108,
-124,
-50,
-112,
-109,
13,
60,
-98,
83,
-13,
-76,
49,
113,
-51,
-30,
93,
103,
80,
-101,
14,
-41
]
|
Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against Rebecca A. Ware, an attorney licensed to practice law in the state of Kansas since September 2000. Ware’s last registration address with the Clerk of the Appellate Courts of Kansas is Wichita, although she now resides in Chicago, Illinois.
The hearing panel found that respondent violated Kansas Rules of Professional Conduct (KRPC) 1.3 (2004 Kan. Ct. R. Annot. 354) (diligence), 8.4(c) (2004 Kan. Ct. R. Annot. 485) (misconduct involving dishonesty, fraud, deceit, or-misrepresentation), Supreme Court Rule 207(b) (2004 Kan. Ct. R. Annot. 261) (duty to assist investigation), and Supreme Court Rule 211(b) (2004 Kan. Ct. R. Annot. 275) (failure to timely file a written answer to amended complaint).
Three days prior to the hearing before the panel, respondent filed her written answer admitting all of the factual allegations of the amended formal complaint. These admissions were the result of an agreement between the parties that in exchange for the admissions and not objecting to the admission of petitioner’s exhibits, the Disciplinary Administrator would recommend the discipline of published censure.
On an unopposed motion, granted by the panel, the respondent was permitted to be excused from attending the hearing. She sought to be excused for the reasons that she had moved to Chicago, Illinois, where she had obtained nonattomey employment with a large insurance company. No witnesses were called at the hearing by either party. Respondent does not contest the hearing panel’s findings of fact or conclusions of law.
FACTUAL BACKGROUND
In summary, the hearing panel made the following findings of fact.
Respondent was hired by Sprint in August 2000 as an attorney in the labor and employment section of Sprint’s law department. Respondent’s job duties included responding to charges of discrimination against Sprint. On June 15, 2001, Deborah Simmons, a Sprint employee in Florida, filed a discrimination claim with the Florida Commission on Human Relations (FCHR). Respondent was assigned to handle the claim on behalf of Sprint.
Because Sprint declined FCHR’s request to mediate the claim, Sprint was required to file a position statement with the FCHR by July 19, 2001. Respondent did not file a position statement by that date. About 1 month after the position statement was due, respondent sent the FCHR a letter stating she would file a position statement by September 7, 2001. However, respondent did not file a position statement by September 7, 2001.
Months passed and, on January 30,2002, the FCHR sent a letter notifying respondent that Simmons had amended her claim to include an allegation of age discrimination and that a position statement was to be filed by March 4,2002. Respondent did not provide a position statement by March 4, 2002, and on March 5, 2002, the FCHR sent a fax to respondent requesting she contact them about the position statement. On April 2, 2002, the FCHR left a voice mail message with respondent stating that it had not received a position statement. Respondent contacted the FCHR and requested an extension to April 16,2002. However, respondent failed to provide a position statement by April 16, 2002.
On April 22, 2002, the FCHR faxed a letter to respondent requesting a position statement by May 4, 2002. The letter further informed respondent that the failure to provide a position statement could result in an adverse finding of reasonable cause against Sprint, pursuant to Florida Administrative Code, Rule 60Y- 5.003(4) (2004), which provides that an adverse inference of reasonable cause may be issued against a respondent if it has failed to provide the agency with requested information after having been provided reasonable notice and opportunity to cure.
Respondent did not provide a position statement by May 4, 2002. On May 6, 2002, respondent requested an extension to May 10, 2002. However, respondent did not provide a position statement by May 10, 2002. Consequently, in an internal agency document dated May 21, 2002, the FGHR recommended that a cause determination be made against Sprint for its failure to provide a position statement. On June 4, 2002, the FCHR adopted the recommendation and entered an adverse inference cause finding against Sprint based on the fact that Sprint had failed to provide information to the agency after reasonable notice and an opportunity to cure had been provided.
Sprint used a case tracking system to follow the matters assigned to the attorneys in the law department. The law department attorneys were required to record the status of each matter assigned by indicating on the report whether a matter is “active” or “pending.” A matter is “active” if the company has not yet filed a position statement or responded to agency requests for information. A matter is “pending” when a position statement has been filed or a response to a request for information has been provided, and the company is waiting on correspondence from the agency.
In addition to tracking matters as active or pending on the reports, the attorneys were required to provide a brief narrative update on the reports showing the status of the matters they are handling. The case track reports were issued bi-weekly and were reviewed regularly by Jill Ferrel, Vice President of Labor and Employment, who was responsible for supervising the attorneys of the law department, including respondent.
Respondent falsely reported the status of the Simmons matter on Sprint’s case tracking system throughout the course of her handling of the case. Shortly after having failed to provide a position statement by the September 7, 2001, due date, respondent changed the status of the Simmons matter from active to pending. Sometime between December 5, 2001, and January 16, 2002, re spondent had her secretary change the narrative section of the case track report to show that a position statement had been provided, despite the fact that she still had not sent a position statement to the FCHR. On or about May 13, 2002, respondent directed her secretary to show that information had been provided to the FCHR in response to their request. And lastly, while notice of the FCHR’s adverse determination was provided -to respondent, she did not record this fact in Sprint’s case tracking system.
Simmons filed suit against Sprint on July 18,2002, and the Sprint attorney assigned to handle the litigation contacted respondent and requested that she forward the Simmons file. On July 22, 2002, respondent replied that she would send it. When it was not received by July 31, 2002, respondent claimed to have sent it by regular mail on Monday July 29, 2002. However, the file was never received.
On August 4, 2002, Ferrel and others from Sprint confronted respondent about the Simmons case and accused her of falsely reporting the status on her case tracking reports. Respondent acknowledged that she had not filed a position statement, and therefore the case track reports were erroneous, but she blamed the errors on her secretary. However, unbeknownst to respondent, her secretary had been keeping respondent’s handwritten directions concerning the case track reports because the secretary believed respondent was blaming her for mistakes that were not hers. When Sprint showed respondent these handwritten directives, she admitted they were written in her handwriting and admitted that she had directed the false changes in the case tracking reports.
Additionally, when Sprint was investigating respondent’s handling of the Simmons matter, respondent’s supervisor attempted to inspect respondent’s assignment log. The assignment log was an additional case tracking system that respondent had maintained on her computer. However, respondent’s supervisor was unable to access the log because it had been deleted from respondent’s computer. When confronted with this, respondent told her supervisor she had no idea how the log was deleted. Sprint’s information technology expert determined that respondent had deleted the assignment log from her computer.
Mark D. Hinderks, an attorney for Sprint, filed a written complaint against respondent. Kevin Moriarty was assigned to investigate the complaint.
Moriarty contacted respondent, and she acknowledged that she had received the complaint. Respondent subsequently notified Moriarty that she had filed a complaint against Sprint with the Equal Employment Opportunity Commission and requested an extension of time to respond in writing to the complaint herein.
In her written response to Moriarty, respondent contended the allegations in the complaint were false, blamed her secretary for the false entries in the case tracking reports, denied that she had received any warning from the FCHR that the failure to submit a position statement would result in an adverse finding of cause, and denied ever receiving any notice that the FCHR had, in fact, issued an adverse cause determination. In part, respondent stated:
“Quite simply, Sprint’s allegations regarding my handling of the Deborah Simmons file are misleading, false, and in no way approach an ethical violation. . . .
"... I never received any warning from the [FCHR] that failure to respond would result in an adverse inference of discrimination by Sprint as Sprint claims. Further, I never received a ‘Notice of Determination: Cause’ by the [FCHR] as Sprint claims.
....
“On August 14, 2002, Ms. Crosswhite, Ms. Ferrel and Marvin Motley, Vice-President of Human Resources, contacted me to discuss my handling of the Simmons charge file. When Sprint accused me of falsely recording the status of the Simmons matter on my Case Track reports, I immediately stated that there must be some error because I had not filed a position statement in response to Ms. Simmons’ complaint and it should be reflected as an Open matter. When Sprint accused me of falsely recording the status of tire Simmons matter on my Case Track reports, I stated a plausible explanation was a data entiy error by my secretary. (Footnote 3)
“Footnote 3: It is a sad but true fact known to my supervisors that I had an ongoing problem with my secretary’s work at the time of the alleged entries: unfortunately, despite her efforts and mine to correct the problems-her work was routinely riddled with errors, missing or otherwise incorrect.”
Respondent also asserted that Sprint’s ethical complaint against her was in retaliation for an internal complaint of sexual harassment she had made against her supervisor in January of 2002.
Moriarty met with respondent and her counsel at the time, Ann Hoover. During the interview, respondent changed her explanation as to why the case track reports inaccurately reflected the status of the Simmons matter. She stated that there had been a change in the terminology of “pending” and “active,” which had confused her. She told Moriarty that she never intended to mislead anyone, and the changes were simply an error resulting from her confusion.
CONCLUSIONS OF LAW
The panel concluded that respondent violated KRPC 1.3, KRPC 8.4(c), Supreme Court Rule 207(b), and Supreme Court Rule 211(b). Specifically, the panel stated:
(1) Respondent failed to act with reasonable promptness and failed to provide diligent representation to Sprint in violation of KRPC 1.3, when she failed to defend the employment discrimination case;
(2) Respondent had engaged in conduct involving dishonesty, fraud, deceit or misrepresentation in violation of KRPC 8.4(c) when she falsified internal Sprint documents to make it appear as though she had taken action on the Simmons case when she had not;
(3) Respondent violated Kan. Sup. Ct. R. 207(b) by failing to cooperate in the disciplinary investigation when she wrote a false and misleading letter to Moriarty, in which she made repeated false accusations blaming her secretary for reporting errors when, instead, the respondent knowingly falsified internal Sprint documents to make it appear that she had done work assigned to her when, in fact, she had not; and
(4) the respondent violated Kan. Sup. Ct. R. 211(b) when she failed to timely file a written answer to the amended formal complaint.
It should be noted that the Disciplinary Administrator s office honored its agreement with respondent and recommended to the panel that discipline should be published censure and that respondent would take 2 years of voluntary inactive status.
RECOMMENDATION
The panel then made its recommendation for discipline, as follows:
“In making this recommendation for discipline, the Hearing Panel considered tire factors outlined by the American Bar Association in its Standards for Imposing Lawyer Sanctions (hereinafter ‘Standards’). Pursuant to Standard 3, the factors to be considered are the duty violated, the lawyer’s mental state, the potential or actual injury caused by the lawyer’s misconduct, and the existence of aggravating or mitigating factors.
“Duty Violated. The Respondent violated her duty to maintain personal integrity by failing to refrain from engaging in conduct that involves dishonesty, fraud, deceit, and misrepresentation.
“Mental State. The Respondent knowingly violated her duty.
“Injury. As a result of the Respondent’s misconduct, the Respondent caused actual injury to Sprint.
“Aggravating or Mitigating Factors. Aggravating circumstances are any considerations or factors that may justify an increase in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case, found the following aggravating factors present:
“Dishonest or Selfish Motive. The Respondent falsified internal Sprint documents and led her client to believe that she was appropriately defending an employment discrimination case when, in fact, the Respondent failed to represent her client in the case. In addition, when confronted with her actions, the Respondent repeatedly and falsely attempted to shift the blame for her actions to her secretary, whom she accused of making ‘mistakes,’ when, in fact, the Respondent knew that she alone was responsible for the false reports submitted to her superiors. As such, the Hearing Panel concludes that the Respondent’s misconduct was motivated by dishonesty and selfishness.
“A Pattern of Misconduct. The Respondent engaged in a pattern [of] misconduct when she repeatedly falsified internal Sprint documents. The Respondent’s pattern of misconduct exacerbated Sprint’s injury.
“Multiple Offenses. The Respondent violated KRPC 1.3, KRPC 8.4(c), Kan. Sup. Ct. R. 207(b), and Kan. Sup. Ct. R. 211(b). As such, the Respondent committed multiple offenses.
“Bad Faith Obstruction of the Disciplinary Proceeding by Intentionally Fading to Comply with Rules or Orders of the Disciplinary Process. By providing Judge Moriarty with a letter that contained false and misleading statements during the course of the Disciplinary Investigation, the Respondent engaged in a bad faith obstruction of the disciplinary process.
“Submission of False Evidence, False Statements, or Other Deceptive Practices During the Disciplinary Process. The Respondent’s response that she provided Judge Moriarty contained false and misleading statements. Accordingly, the Hearing Panel concludes that the Respondent engaged in a deceptive practice during the disciplinary process.
“Refusal to Acknowledge Wrongful Nature of Conduct. The Respondent failed to acknowledge any wrongdoing until three days prior to the hearing on the Formal Complaint. The Hearing Panel concludes that the Respondent refused to acknowledge the wrongful nature of her conduct until immediately before the hearing on the Formal Complaint.
“Mitigating circumstances are any considerations or factors that may justify a reduction in the degree of discipline to be imposed. In reaching its recommendation for discipline, the Hearing Panel, in this case,.found the following mitigating circumstances present:
“Absence of a Prior Disciplinary Record. The Respondent has not previously been disciplined.
“Inexperience in the Practice of Law. The Kansas Supreme Court admitted the Respondent to practice law in 2000. At the time the Respondent engaged in misconduct, the Respondent had been practicing law for a period of approximately 1 year. Accordingly, the Hearing Panel concludes that Respondent was inexperienced in the practice of law at the time she engaged in the misconduct.
“In addition to the above cited factors, the Hearing Panel has thoroughly examined and considered the following Standards:
‘Suspension is generally appropriate when a lawyer knowingly deceives a client, and causes injury or potential injury to the client.’ Standard 4.62.
“Prior to the hearing on this matter, the Deputy Disciplinary Administrator and counsel for the Respondent reached an agreement. In return for the Respondent (1) stipulating to the facts contained in the Formal Complaint, (2) stipulating to the admission of the Disciplinary Administrator’s exhibits, and (3) agreeing to taire ‘inactive’ status in Kansas for a period of two years, the Deputy Disciplinary Administrator agreed to recommend that the appropriate discipline should be censure, to be published in the Kansas Reports. Based upon the agreement, the Respondent concurred with the recommendation regarding discipline.
“It is the opinion of the Hearing Panel that before the Respondent resumes the active practice of law, proper safeguards need to be in place to protect the public from the repeat of this misconduct. The Hearing Panel is concerned that the parties’ plan does not contain any restrictions on the Respondent’s ability to apply for [and] receive a license to practice law in another state, and thus fails to provide adequate safeguards.
“Based upon the findings of fact, conclusions of law, and the Standards listed above, the Hearing Panel unanimously recommends that the Respondent be suspended from the practice of law in the state of Kansas for a period of one year. Additionally, the Hearing Panel recommends that if the Respondent decides to seek reinstatement after the suspension, that the Respondent be required to undergo a hearing, pursuant to Kan. Sup. Ct. R. 219. The Hearing Panel strongly suggests that during the course of any investigation conducted pursuant to a request for reinstatement, that the Respondent be required to undergo a psychological evaluation to ensure that, if reinstatement is granted, that the Respondent’s clients are properly protected from a repeat of the misconduct. At the reinstatement hearing, the respondent should be required to establish that she has sufficient monitoring and other safeguards in place to ensure that the misconduct in this case will not be repeated.”
STANDARD OF REVIEW
The applicable standards of review in disciplinary cases are well established:
“In a disciplinary proceeding, this court considers the evidence, the findings of the disciplinary panel, and the arguments of the parties and determines whether violations of KRPC exist and, if they do, what discipline should be imposed. [Citation omitted.] Any attorney misconduct must be established by substantial, clear, convincing, and satisfactory evidence. In re Carson, 252 Kan. 399, 406, 845 P.2d 47 (1993); see also Supreme Court Rule 211(f) (2002 Kan. Ct. R. Annot. 260) (misconduct to be established by clear and convincing evidence).
“This court views the findings of fact, conclusions of law, and recommendations made by the disciplinary panel as advisory, but gives the final hearing report the same dignity as a special verdict by a jury or the findings of a trial court. Thus, the disciplinary panel’s report will be adopted where amply sustained by the evidence, but not where it is against the clear weight of the evidence. [Citations omitted.].” In re Lober, 276 Kan. 633, 636-637, 78 P.3d 442 (2003).
ISSUE
Respondent takes no exception to the panel’s findings of fact and conclusions of law. The attorney misconduct has been established by substantial, clear, and convincing evidence. The issue before us is the appropriate discipline to be imposed.
Respondent takes exception to the hearing panel’s application of Standard 4.62 of the ABA Standards for Imposing Lawyer Sanctions, which provides for suspension when a lawyer’s knowing deception causes actual injury or potential injury to a client. Respondent argues that the panel failed to describe the injury or refer to any evidence to support its conclusion that Sprint suffered actual injury. Respondent further argues that there was no evidence of actual injury to support such a finding. Respondent ignores the potential injury portion of the standard.
The ABA Standards serve as guidelines to assist the panel in imposing disciplinary sanctions. Thus, the panel is not required to cite, discuss, or apply any of the standards:
“Neither this court nor the hearing panel are required to cite and discuss every potentially applicable standard. Moreover, discussion of any standard is not required. The Standards are guidelines to assist courts in selecting appropriate and uniform discipline, depending upon the facts and the aggravating and mitigating factors of each case. See In re Anderson, 247 Kan. 208, 212, 795 P.2d 64 (1990), cert. denied 498 U.S. 1095, (1991); Standards, pp. 6-7.” In re Keithley, 252 Kan. 1053, 1057, 850 P.2d 227 (1993).
See also, Internal Operating Rules of the Kansas Board for Discipline of Attorneys, E.3 (2004 Kan. Ct. R. Annot. 331) (panel may apply the ABA Standards in determining discipline and may reference or discuss the standards in the hearing report); cf., Supreme Court Rule 211(f) (2004 Kan. Ct. R. Annot. 275) (requiring panel to set forth aggravating and mitigating factors affecting the nature or degree of the recommended discipline).
Accordingly, the panel was permitted to consider, apply, and discuss ABA Standard 4.62 in considering what discipline should be recommended, but was not required to do so.
It is uncontroverted that respondent’s failure to file a position statement with the FCHR in the Simmons employment discrimination administrative claim caused the FCHR to issue an adverse determination of reasonable cause against Sprint. It is also uncontroverted that respondent’s intentional false entries in Sprint’s case tracking system were intended to deceive Sprint and prevent it from discovering her inaction on the Simmons matter. And further, it is uncontroverted that her falsifications did, in fact, prevent Sprint from discovering her inaction before the adverse determination was issued. Actual injury or potential injury to the client was not necessary to the panel’s recommended discipline although the facts herein support both.
We find no merit in respondent’s issue herein as to “actual injury” alleged deficiencies in the recommendation portion of the final hearing report.
CONCLUSION
In her answer, respondent admitted all of the factual allegations in the formal allegation and did not contest that these facts support the alleged violations of the Kansas Rules of Professional Conduct as charged in the amended formal complaint and as found by the panel. The only issue before us relates wholly to the recommended discipline. We agree with the panel’s concerns set forth in its recommendation of appropriate discipline.
We have some problems with the feasibility and value of the proposed requirement for seeking reinstatement under Supreme Court Rule 219 (2004 Kan. Ct. R. Annot. 312.). There is no indication that respondent’s misconduct arose from mental or physical problems, alcoholism, inappropriate drug use, a personal crisis, or other factors that can be tested, checked, or otherwise determined to have been remedied. The majority of the court finds the appropriate discipline is a 1-year suspension effective on the filing of this opinion. A minority of the court would impose a 2-year suspension.
It Is Therefore Ordered that respondent, Rebecca A. Ware, be suspended from the practice of law in the state of Kansas for a period of 1 year, commencing on the filing date of this opinion, in accordance with Supreme Court Rule 203(a)(2) (2004 Kan. Ct. R. Annot. 237).
It Is Further Ordered that the respondent comply with the provisions of Supreme Court Rule 218 (2004 Kan. Ct. R. Annot. 301).
It Is Further Ordered that this opinion be published in the official Kansas Reports and that the costs herein be assessed to the respondent.
NUSS, J., not participating.
Lockett, J. Retired, assigned. | [
-104,
-8,
-20,
-99,
-119,
97,
48,
52,
81,
-79,
119,
83,
109,
-28,
-115,
123,
-41,
41,
-47,
107,
-45,
-76,
86,
96,
102,
-9,
-7,
85,
-70,
79,
-11,
-36,
73,
48,
-118,
-41,
70,
74,
-121,
88,
-126,
22,
-119,
-16,
89,
-63,
40,
107,
18,
79,
53,
-50,
-13,
40,
17,
-53,
-88,
104,
-2,
-19,
-112,
-47,
-101,
-123,
124,
18,
-78,
-124,
-98,
-121,
92,
63,
-118,
56,
41,
-87,
114,
-74,
-110,
100,
11,
-7,
-123,
38,
106,
35,
-111,
-91,
108,
-124,
7,
28,
-113,
-90,
-111,
9,
35,
9,
-106,
-99,
116,
22,
11,
-4,
-22,
4,
27,
108,
11,
-113,
-44,
-109,
79,
101,
-50,
58,
-17,
-41,
0,
81,
-100,
-30,
92,
-57,
51,
23,
-2,
-80
]
|
By the Gowrt,
Kingman, J.
Eirman brought suit on a note of which the following is a copy:
“ $500.00. Three months after date, I promise to pay to the order of Charles H. Branscomb five hundred dollars with interest at the rate of thíee per cent, per month, until paid. Yalue received.
“Lawrence, July 1, 1858. James Blood.”
"Which note was endorsed as follows:
“ Abraham Wilder. Robert Morrow. Pay to J. S. Ballentine or bearer, without recourse to me, Chas. H. Branscomb. Pay to Lorenzo Eirman, J. S. Balentine.”
The amended petition contains the usual averments of a suit on a note, and also that the defendants, Morrow and "Wilder, at the time and place of the execution of the noté wrote their names upon the back of the note in blank. That Branscomb, the • payee of the note, was the duly authorized agent of the plaintiff. That the money for which the note was given belonged to the plaintiff, who alone was beneficially interested therein, and that Balentine, to whom Branscomb assigned the note, was an agent of plaintiff, and received it as such and transferred it to plaintiff. Plaintiff claims-judgment against all the defendants in error as joint makers of the note.
The amended answer of defendants contained a general • denial, and also set up a particular defense, substantially that Morrow and Wilder endorsed their names upon the note after the money had been received by Blood, and after the note had been delivered to Branscomb, and without any consideration passing to Morrow and Wilder from any person whomsoever. That Blood, when he received the money from Branscomb, had no knowledge of Branscomb’s agency, but dealt with him throughout as principal, believing him to be such, and that on the 7th day of August Blood paid Branscomb $175, and received his duebill therefor, under a special agreement then made with Branscomb, that the money so paid by Blood and received by Branscomb, was to be applied as a payment on said note. That on the 1st day of September, 1858, Branscomb was further indebted to Blood in the sum of $101.17, for which Branscomb gave his duebill. That this sum was for goods, money, &e., and that it was understood and agreed between BransGomb and Blood, when the goods and money were advanced, that they were to go as a payment on the note sued on. All the time Blood, as well as the other defendants, believing that Branscomb was acting for himself, having no knowledge of his agency. That on the 29th of October, 1859, Blood offered to confess judgment for the amount of the note less the sums above mentioned, as having been paid.
On these pleadings the parties went to trial, and a verdict was rendered for the defendants, and the plaintiff brings the case to. this Court, claiming that the Court erred in giving and refusing instructions to the jury.
The counsel for the defendant in error raises two preliminary questions which are to be disposed of before considering the main propositions.
It appears that the instructions asked for by the parties, •Were not requested or given until after the argument of counsel on both sides was concluded.
It is insisted that the plaintiff by not asking his instructions before the argument of the case, waived his privilege as a matter of right that the Court should pass upon the instructions requested. This seeins to be a reasonable conclusion from subdivision five of Sec. 277 of the Code, whieh provides that “when the evidence is concluded, either party may request instructions to the jury, which shall be 1 given or refused by the Court.”
We think, under the section of the Code, a part of which is j'ust quoted, that if a party as a matter of right desires the Court to pass upon any proposition of law pertinent to ■the issue and the evidence, that he must prefer his request before the argument. But it does not seem tó us that the defendant in this case is in a position to raise the question. The ' Court did not decline to pass upon the required instructions. The Court passed upon both, granting those asked by defendant and refusing those asked by plaintiff. If the Court had declined to pass upon the propositions embodied in the instructions, on the ground that the application was made too late, we do not think that this Court would decide that such an exercise of its discretion would be error. The Court did pass upon them. As much those offered by plaintiff as those offered by defendants. And if it did pass it was bound to give the law correctly.
Another objection of defendant in error is that the record does not show enough of the evidence for this Court to pass upon the law of the case, to show whether the instructions asked, even if law, were, pertinent to the evidence offered. We think otherwise. It appears that the plaintiff offered evidence tending to prove his case, and rested, and the defendants, offered evidence tending to • prove their defense and rested, This when the claim and defense are set out in the pleadings as fully as in this case, we- think sufficient to “ explain the exceptions,” and this is all that the Code or good practice requires.
The Court at the instance of defendant charged the jury substantially, that Morrow and Wilder were liable upon the note in controversy, if at all, simply as commercial endorsers, and that they cannot be charged with payment unless the note had been protested and notice of non-payment given to them according to law. This character of endorser cannot be changed except by agreement at the time of signing, on which further or other liability is assigned.
The Court in this instruction evidently was governed in its view of the law by the late decisions in New York reported in Ellis v. Brown, (6 Barb., 287,) and Spies v. Gilmore, (1 New York Rep.,) and Hall v. Newcomb, (7 Hill, 416.) These cases all tend to support the principle laid down in the instruction, that persons, strangers to the note, by endorsing it at the time it is made, only become liable as second endorsers. Those curious to see the reasoning by which the legal fiction of making a party who is not the holder or owner of the note capable of passing the title to the note, can examine the cases referred to. The doctrine is an innovation upon the earlier rulings of that State, and is not sustained by any authorities elsewhere within our reach. Nor do we think the doctrine is any better sustained by reason than by authority. By writing his name upon the back of a note a person can not pass the note to the payee. That becomes his from another cause—the consideration for which the debt was created of which thenote is the evidence. The note is delivered to the payee with the person’s name upon it, and it is then complete so far as the endorser is concerned, whatever obligation he has incurred it is to the payee and not to a subsequent endorser. By giving the note with his name upon it to the payee, he authorizes the payee to write over his signature whatever is consistent with the understanding of the parties. To write over it an endorsement is to make the paper meaningless in the hands of the payee and binds them to nothing and gives the payee no benefit from the signature on the back of the note. The note in this case must be held as complete, and perfect when delivered to Branscomb. Whatever liability Wilder and Morrow incurred at any time, was fully established when the note was delivered with their names on it.
In Ohio in the case of Greenough v. Smead, (3 Ohio. S., 416,) the Court lays down this principle, “That such a construction should be placed upon the contract as will prevent its failure, and will give effect to the obligation of each of the parties appearing upon it, at the moment the contract itself takes effect.” This seems a safe and reasonable rule of construction, and one wholly disregarded in the New York cases cited. This leads to the conclusion that the instruction given in this case in the Court below was erroneous, and the case will have to be sent back on that account.
On the trial the plaintiff requested the Court to instruct the jury, that “if they believe that Morrow and Wilder endorsed the note in controversy at or before the time it was delivered to Branscomb, or in pursuance of an arrangement made by Blood and Branscomb'when the money was loaned, then in either case Morrow and Wilder are liable as joint makers.” The principle embraced in. this instruction is one recognized in Massachusetts and most of the New England States, and also in Missouri. The cases are referred to and ably examined in the case of “ Union Bank of Weymouth, (8 Met., 504, and Lewis v. Harvey, (18 Mo., 16) It will be seen by these cases that a stranger byplacing his name on the back of a note at the time it is made is presumed, in .the absence of proof, to be an original promissor. While in Ohio and many other States, such a party, in the absence of proof, is presumed to be a guarantor. {See Greenough v. Smead, 3 Ohio, 416; Riggs v. Waldo, 2 Cal., 485; 13 Ills., 228; 4 Watts, 448; 1 Speneer, 256.) “ The difference is this; in Massachusetts he is presumed to be an original promissor; in Ohio he is presum ed to be a guarantor, but in either State parole evidence is received to rebut the presumption and show what liability it was intended he should assume, and what relation he should sustain to the paper.” Greenough v. Smead.
The contrariety of decisions makes it a perplexing and somewhat vexed question. We think the rule making him by presumption a guarantor, while it is equally supported by authority as that making him an original promissor, is more in conformity with reason and the general understanding of business men. It would not be the first impression of any man that one placing his name on the back of a note thereby becomes primarily liable. If all the parties to the note intended this, why not sign the note on its face in the usual way in which such obligations are perfected ? The payee of such a note looks only to the signatures on the back of the note as sureties, and the law does all that can be required of it when it gives effect to the intention of the parties at the moment the instrument takes effect and becomes operative.
If the note is designed for the payee, then he cannot be held as endorser. He is a stranger to the note. He must be held either as an original promissor or guarantor! Nor does the subsequent assignment of the note change the responsibility of the parties boundi Whatever character they receive when the note is completed, is not changed by the transfer.
Holding then5 that in settling this question for the first time, it is well to follow those decisions that seem best to interpret the original understanding of the parties, we think in the absence of proof, Wilder and Morrow should be held as guarantors.
On the point raised as to the propriety of the instructions. given and refused on the matter of payment, we must, in the condition of the record take the facts set up in the answer on that point as true, and in that view w.e think there was no error in the- ruling of the Court below; but for the misdirection of the Court as to the liability of Morrow and Wilder the cause is reversed and a new trial directed.
Bailet, J., concurring, Cobb, C. J., having been of counsel in. the case below, did not sit in the case. | [
48,
104,
-72,
31,
24,
32,
42,
-102,
-37,
16,
-26,
115,
105,
-51,
9,
37,
-13,
45,
-44,
43,
-28,
-93,
22,
-58,
-14,
-13,
-43,
-43,
49,
-36,
-28,
117,
65,
32,
-102,
29,
-61,
-94,
-63,
-112,
-114,
-128,
-87,
-28,
-33,
65,
48,
107,
65,
73,
37,
-74,
-85,
47,
61,
90,
105,
107,
121,
11,
-47,
-75,
-69,
-57,
61,
86,
-110,
3,
-100,
11,
88,
62,
-110,
53,
35,
-23,
30,
-66,
-122,
-12,
107,
-120,
8,
102,
98,
96,
-43,
109,
-72,
-68,
47,
-8,
15,
-89,
-13,
120,
11,
108,
-74,
-99,
-73,
20,
7,
68,
-72,
-115,
28,
40,
2,
-98,
-122,
-73,
-97,
62,
-116,
-113,
-25,
15,
52,
113,
79,
32,
92,
102,
56,
-109,
30,
-95
]
|
By the Court,
Kingman J.
This was an action brought by the plaintiff in error against the defendants in error in the District Court of Douglas County, to recover of the defendants in exTor the sum of $3,816 and interest thereon due on a promissory note givexx by defendants to the plaintiff.
The petition is in the usual form and at the time of the commencement of the action, the plaintiff obtained an or der of attachment from the Clerk of said Court against the property of the defendants.
The ground of the attachment was a fraudulent disposition of the property of the defendants, with intent to defraud their creditors and the plaintiff in particular, and is stated in the affidavit in positive terms, and also supported by a statement of facts positively set forth.
At the first term of the Court the defendants moved to vacate the order of attachment, which motion was sustained and an order made discharging the attachment, to which the plaintiff excepted, and brings a petition in error to this Court to reverse said order.
Defendants claim that the order of the Court below discharging the attachment, was correct, because 1st, the affidavit is insufficient, and 2d, because the Clerk had no power to issue such an order. If either of these positions are well taken, then the action of the Court was correct, and will not be disturbed. The affidavit states that the affiant is the lawful authorized agent of the plaintiff, that the defendants are indebted to the plaintiff on a promissory note for the sum of $3,816.47 and interest thereon at the rate of 2-J per cent, per month, from the 11th day of May 1859, the date of said note, the same having been given by the defendants to the plaintiff as the payee thereof; that said note is due and wholly unpaid, and is just; that the plaintiff ought to recover of the said defendants the aforesaid sum of money, with interest thereon as stated; that the said defendants have disposed of their property or a part thereof with intent to defraud their creditors, and the plaintiff in particular.
The affidavit then proceeds at length to state the facts upon which the affiant relies to show a fraudulent disposition of defendants property.
¥e have carefully examined this statement of facts and think if true they would convince any sane mind that the eighth ground of attachment set forth in Section 199 of the Code, is sufficiently made out.
"We do not propose, however, to comment upon the detailed statement as we are clear both upon reason and authority, that the ground of an attachment may be stated in the affidavit in the language of the Statute, without specifying more particularly the facts intended to be alleged. This the plaintiff did, and the facts and circumstances which he stated, upon which the alleged grounds of attachment are founded, need not have been stated, and can only be considered and held as surplusage.
This, principle is now so well settled by authority as to render it unnecessary to discuss it. See Carson v. Page, 9 Ohio, 8. 897; Harrison & Wiley v. King & Casey, id. 388 ; 17 B. Monroe, 542 ; 18 id. 632 ; 13 Howard,, 348.
There was at first some difference of practice under the Code as to what construction should be placed upon the Section, but the more reasonable course .of requiring the party seeking the benefit of an attachment only to state the ground in the Statutes seems now to be adopted as the general rule of proceeding, and of the propriety of this rule we have no doubt.
' It will be readily seen that this ruling as to the sufficiency of the affidavit disposes of the other alleged error. If the granting of an order of attachment is a ministerial act, then the duty may well be confided to the Clerk where the law had placed that duty, and granting it on an affidavit in which the grounds are positively stated, is a ministerial and not a judicial act, and not in conflict with the 27th Section of the Organic Act.
It will readily be granted that the making of an order of attachment on an affidavit in which the grounds are stated and followed by a statement of facts and circumstances showing the truth of the averment, imposes upon the officer granting it a judicial duty, if it is necessary for him to examine and weigh the detailed statements, arid the act of a Clerk in such a case under tlie Organic Act would be void as the exercise of judicial functions is confided by that act to another class of officers.
By giving to Section 199 of the Code the construction we have placed upon it, makes Section 200 valid and operative, giving it the reverse construction, and Section 200 becomes inoperative, and a well devised remedy given by the Legislature is totally destroyed. Such a construction ought to be given to a law, if it will reasonably admit of it as will not suffer it to be defeated. 15 Johnson, 358; 1 Cowen, 550.
By following well established authorities in holding the affidavit sufficient when it avers facts in the language of the law, the act of granting attachments becomes ministerial and properly performed by the Clerk, and the remedy given by law, as well as the Organic Act upheld.
We therefore think that the Court erred in vacating the attachment. The plaintiff in error alleges several other errors in the ruling of the Court, but they are all of a character that cannot be acted on by this Court until the case is-finally disposed of, and as it is still pending and undetermined, those errors will not be considered.
The case is remanded to the District Court of Douglas County, with directions to reinstate the attachment and for further proceedings. | [
-14,
104,
48,
127,
-118,
-32,
-86,
-102,
-47,
-31,
-73,
87,
-19,
-54,
4,
35,
-28,
57,
97,
120,
71,
-78,
7,
75,
-14,
-77,
-31,
-43,
-79,
77,
-28,
-43,
77,
-80,
-22,
85,
70,
-120,
-123,
90,
-50,
3,
-117,
-28,
-39,
72,
48,
-53,
2,
73,
113,
78,
-5,
43,
60,
67,
9,
44,
107,
-67,
-64,
-15,
-69,
5,
95,
23,
-111,
71,
-98,
75,
-56,
42,
-104,
57,
1,
-23,
50,
-74,
6,
116,
75,
27,
40,
98,
98,
0,
-59,
-3,
-72,
-116,
46,
-2,
-99,
39,
-110,
88,
11,
45,
-98,
-99,
117,
16,
6,
-4,
-16,
-115,
25,
108,
3,
-53,
-42,
-109,
61,
122,
-100,
11,
-17,
-93,
17,
113,
-51,
-32,
92,
103,
57,
-101,
-49,
-77
]
|
By the Court,
Crozieb, C. J.
The three points upon which the plaintiff in error relies for a reversal of the judgment of the Court below, are:—
1st. The Mayor of the City of Leavenworth could not lawfully exercise judicial functions under the laws of the State.
2nd. The District Court erred in charging the jury that they might give vindictive or punitive damages.
3d. The District Court erred in charging the jury that the law implied malice from want of probable cause.
By Article III, Sec. 1 of the constitution the judicial power of the State is “ vested in a Supreme Court, District Courts, Probate Courts, Justices of the Peace, and such other Courts inferior to the Supreme Court as may be provided by law.”
Article III of “An Act to incorporate cities of the State of Nansas” (Compiled Laws, page 388,) defines the "duties of Mayor, provides that he “ shall have original jurisdiction of all offenses against the laws of this State; committed within the limits of the city, and by virtue of his office shall be a Justice of the Pea'ce.” It is objected that this provision is not authorized by the section of the Constitution above quoted, because it attempts to confer judicial powers without in terms creating a Court. It will be discovered upon an examination .of the whole '-article of the Statute referred to, in connection with the provisions of the Code of Criminal Proceedure upon the subject “ of the arrest and examination of offenders ” (Compiled haws, page 212, See, 28, el seq.) that the Mayor- may use all the machinery necessary to hold an offender to bail that: may be employed by a Justice of the Peace. The provisions of. the Code of Criminal Proceedure apply in terms to both. The Mayor is authorized to administer oaths, hear complaints, issue process, subpoena witnesses, take testimony, and hold to bail; and yet we are asked to;say that such a tribunal is not a Court because the Act of the- Legislature does not in terms style it a .Court! We think we cannot adopt such a construction without sacrificing- substance to technicality. When the Mayor is sitting for the examination of an . offender against the'laws of the State, the tribunal is a Court. In the ease at bar the Mayor had jurisdiction of the subject matter, had power to proceed in it, and the proceeding was a prosecution.
- The charge to the jury upon the subject of the damages, is complained of. There has been much discussion in the Courts, and among elementary writers upon -the subject of vindictive damages, or “ smart money ” as they are sometimes styled. Several decisions sustain the rule as laid down by the Court below; and Mr. Sedgwick, ■ in, his admirable work upon the measure of damages, takes the same view. Mr. Qreenleaf thinks the damages should be limited to compensation only. Logically we think he is right, and were the question an open one, we should be inclined to adopt his view of the subject. But it can make no difference practically which rule is adopted in the trial, of a cause. ' If the jury shall be confined to compensation-for the injury sustained, they will be authorized to estimate in jury to the feelings, mental anguish and tarnished honor; and in assessing damages for these things their own judgment can be their only guide. No standard can be fixed— no rule of compensation established. All must necessarily be left to the discretion of the jury, subject only to the power of the Court to determine whether their estimate, if apparently excessive, has been influenced by passion or prejudice. So under the.other rule, their discretion, subject to the same power of revision must dictate.the amount of the verdict.
"We would rather adopt the compensatory theory, believing it to be more nearly logically correct; but the other having been long established, recognized and acted upon by enlightened Courts, we are not disposed to change it where a change would make no difference in results. In giving this rule to juries in cases, the details and circumstances of which are calculated to inflame their passions, the Court should be very careful to indulge in no loose expressions which would indicate that the feelings of the jury were in any manner to influence their action.
To sustain the action for malicious prosecution, two things are essential,—malice and want of probable cause. Malice is not of itself sufficient, neither is want of probable cause. Both must concur. Affirmative proof of malice is as necessary as affirmative proof of the absence of probable cause. Both are issues to be submitted to the jury, and both must be found from the testimony, as facts, by the jury, to sustain a verdict for the plaintiff’.
How then can they be said to find from the testimony that there was malice if the Court shall say to them that the evidence which shall convince them of the absence of probable cause must convince them of the existence of malice 2 The evidence might clearly show that the defendant acted in the best of faith, but upon an entirely innocent mistake of fact. The jury might be fully satisfied of the entire absence of probable cause in such a case; yet the rule as given the jury by the Court below would compel them to find that the prosecution was malicious. The real effect of the rule would be that the jury would find one of the essential facts, and the Court Would find the other, and compel the jury to adopt its finding.
Such we do not believe the law to be. The jury may consider the absence of probable cause as a circumstance tending to show malice. It may be in individual cases a circumstance sufficient to satisfy them of malice. They are to be the sole judges of that. They are not bound by the law to be so satisfied. They may infer malice from want of probable cause, but they are not bound so to infer it.
Therefore we think the Coitrt erred in charging the jury that mffiice Was implied from want of probable cause, and the judgment will be reversed.
All the justices concurring. | [
-16,
-24,
-40,
-22,
26,
96,
50,
-104,
105,
-79,
103,
51,
-19,
-38,
5,
125,
75,
-1,
-43,
75,
-41,
-74,
7,
99,
-74,
-109,
-45,
-43,
-74,
111,
-10,
-27,
76,
-16,
74,
-99,
7,
-61,
-127,
-44,
-122,
6,
-118,
-16,
-40,
67,
52,
114,
50,
-105,
113,
126,
-13,
42,
62,
-29,
-24,
40,
-33,
-107,
123,
-72,
-116,
-115,
109,
20,
-125,
38,
-100,
7,
94,
44,
-100,
57,
8,
-8,
115,
-74,
-126,
-43,
45,
11,
-88,
98,
98,
65,
79,
-54,
-72,
-119,
15,
123,
-99,
-89,
-100,
17,
107,
9,
-74,
-35,
101,
54,
15,
116,
-30,
20,
31,
116,
3,
-98,
-12,
-79,
-49,
-68,
-90,
-109,
-21,
-93,
-80,
112,
-60,
-68,
95,
103,
49,
27,
-82,
-44
]
|
JBy the Court,
Cobb C. J.
Execution was issued out of the District Court of the Territory in Leavenworth County in favor of the defendants in error, plaintiffs in the Court below, against the property of the plaintiffs in error, defendants in that Court, on the 10th day of July 1860, for the collection of $3,500.14 debt, with interest and costs. Certain real estate was sold by the sheriff under said execution and purchased by the plaintiff therein.
On the 5th day of September 1860, in the same Court an order was made on motion of the plaintiff below, and without appearance by the defendant, confirming said sale.
On the second day of April 1863, the said defendant made a motion in the District Court of the first Judicial District of the State of Kansas in Leavenworth County, to set aside said order of confirmation and the appraisal and sale of the land as contrary to law and irregular, which motion that Court declined to entertain. Whereupon he filed his petition in error in this Court to reverse the order con" firming said sale.
It is claimed that the order of confirmation in question is not a final order, and for that reason and because no exception to it was taken, it is not reviewable here. Whether it is so reviewable will be first considered. Section 524 of the Code provides that an order affecting a substantial right made in a special proceeding or upon a summary application after judgment is a final order which may be vacated, modified or reversed, &c.
Section 526 provides that “ the Supreme Court shall also-have authority to reverse or modify any of the following orders of the District Court,—first a final order as defined in Section No. 521.
The order in question is clearly an order made upon a summary applicátion after judgment, and as certainly affects a substantial right, the right of the purchaser to receive a conveyance of the property and of the judgment creditor to receive the purchase money—Sec. 119 of Code, and is therefore accurately described as a final order by Sec. 521.
Is it necessary that exception should be taken to such order that it may be reviewed ?
In the case of the Commercial Bank of Cincinnati et al. v. Horatio Buckingham, 12 O. St., 102, the Supreme Court of Ohio decided under a code entirely similar to ours in regard to taking exceptions, that it was not necessary for á party seeking the reversal of a final judgment to take exceptions at the time of its rendition, saying: “ The object of an exception is generally to bring upon the record for review, a decision of the Court upon a matter of law which the record would not otherwise show. In such cases the exception must be reduced to writing and allowed and signed by .the Court. But when the decision excepted to is'entered on the record and the grounds of objection appear in the entry, the exception may be taken by the party causing it be noted at the end of the decision that he excepts.” Code, Seo. 293. It is provided by Sec. 291 of the Code, that a the party objecting to the decision, must except at the time the decision is made.” These provisions of the Code are all found in title nine, which treats of and regulates the trial of causes, and they manifestly relate to decisions which are made by the Court upon questions of law which arise during the progress of the trial. Where objection is made at the time to such decisions, all grounds of exception may perhaps be obviated by the action of the other party or the consideration of the Court. But if the parties acquiesce in the decision by proceeding in the trial without objection they are regarded as waiving their right to except. But these provisions of the Code do not relate to the final judgment of the Court, which at the close of the trial definitely fixes the rights of the parties in the action. The judgment is not properly a part of the trial but forms the subject of a distinct title in the Code. If the record shows such final judgment to be erroneous it is the right of the party aggrieved to have it reversed, vacated or modified on petition in error to the proper reviewing Court. To note an exception to a final judgment in the Court which renders it, would seem to be utterly futile. The uniform practice of this Court has hitherto been in accordance with these views.”
'We copy the language of the learned Court at large, because the provisions of our Code relating to the question under consideration, are in substance identical with those of the Ohio Code therein cited, and the reasoning of that Court entirely satisfactory to our minds, is therefore as conclusive under our Code as under that of Ohio. The reasoning also, applies to final orders made in an action after judgment, with the same force as to judgments.
The order in question then is a final order, properly receivable in this Court without exception taken in the Court below. We therefore proceed to examine the alleged errors.
The duty of the Court as to confirming sales of real estate on execution is prescribed by Sec. 449 of the Code, which reads as follows: “ If the Court upon the return of any writ of exécution for the satisfaction of which any lands, tenements or stock in trade have been sold, shall alter having carefully examined the proceedings of the officer be satisfied that the sale has in all respects been made in conformity with the provisions, of this title, the Court shall direct the clerk to make an entry on the journal that the Court is satisfied of the legality of such sale, and ap order that the officer make to the purchaser a deed for such land,” &c. The Court is to be satisfied that the sale has been made in conformity with law by examining the proceedings of the officer, and if so satisfied is imperatively required to confirm the sale. It is not required on motion for confirmation to look into the judgment or execution farther than is necessary to determine whether the officer has properly performed his duty under the writ, nor permitted to decide upon the regularity of either.
The order of confirmation is an adjudication merely that the proceedings of the officer as they appear of record are regular, and a direction to the sheriff to complete the sale.
If the execution is irregular or unauthorized by law, the defendant has his remedy by motion to set it aside, or if it is void by controverting the title made under it, and if it is levied upon property not belonging to the judgment debtor or by any reason not liable to such execution, such wrong not appearing in the proceedings of the officer, has its appropriate remedy independent of and no way effected by the order of confirmation.
The doctrine here advanced was held by the Supreme Court of Ohio in the case of Buckingham v. Granvile Alexandria Society, 2 Ohio, 360. A motion for an order to the sheriff to make a deed of land sold upon a fi.fa. is a proceeding quite analogous to a motion for confirmation under our Code. This decision was made previous to the enactment of the Ohio Code, but under a provision of law nearly identical with Sec. 449 of our Code. In that case Hitchcock, justice, delivering the opinion of the Court, says: “Upon a motion to set aside an execution, as has been before observed, the Court can with propriety examine the previous proceedings to ascertain whether there has been any irregularity in the orders of the Court, or in the proceedings of the clerk. But upon a motion similar to the present, I apprehend we can look no farther than to ascertain whether the officer in making the sales has pursued the law. I infer this from the nature of the application and from the words of the statute. These words are as follows, “ provided that if the Court to which any execution shall be returned by the officer for the satisfaction of which any lands and tenements may have been sold, shall after having carefully examined the proceedings of said officer, be satisfied that the sale has been made in all respects in conformity to the provisions of this act, they shall direct their clerk to make an entry in the journal, that the Court are satisfied of the legality of such sale, and an order that the said officer make to the purchaser a deed for such land and tenements.”
The decision of that case it will be seen, by the language of. the learned justice and the statutory provision cited by him, is quite in point to sustain the views above expressed by us.
If this view be correct, as we cannot doubt it is, all questions of the regularity of the execution and other alleged defects and irregularities not appearing to the Court by the return of the officer, are excluded from our consideration under this petition in error which seeks only to reverse the order of confirmation, and we have only to inquire whether the proceedings under the execution as returned by the sheriff, were in conformity with law.
Section 407 of the Code provides that if no goods or chattels of the debtor can be found the officer shall endorse on the writ of execution “ no goods,” and forthwith levy the writ of execution on the lands and tenements of the debtor. No such endorsement is found upon the writ in question, nor any evidence in the return that the debtor had not sufficient goods and chattels to satisfy the execution. The object of the provision for such endorsement is that the personal property of the debtor, may be first applied in payment of the debt, and if there is none, to place proof of that fact upon the record to satisfy the Court of the regularity of the sale in that respect upon motion for confirmation.
Sucli proof being wholly lacking in this case, tbe sale for that reason ought not to have been confirmed. The Act entitled an Act relating to sales of real property passed Feb. 27, 1860, ánd which went into effect on the same day, provides that the officers whose duty it shall' be to make any sale of real property under any statutory provision of this Territory, shall give at least five days notice of such sale to the person to whom the land belongs. Comp. Z., 772.
That law was in force and applicable to the sale in ques-' tion, but the sheriff’s return does not show compliance with it, and is in that respect insufficient.
The District Court of the State was right in declining to entertain the motion to set aside the order of confirmation made by the District Court of the Territory. There was ho irregularity in obtaining the order complained of, but an error of the Court, in confirming a sale not regular upon the face of the papers, appears, and for that error the order of confirmation must be reversed with cost against the defendants in error.
All the justices concurring. | [
-80,
96,
-39,
124,
58,
-32,
44,
-78,
69,
-79,
39,
83,
109,
-54,
-124,
57,
-14,
73,
53,
121,
100,
-77,
7,
-63,
86,
-14,
-47,
-41,
49,
77,
118,
-42,
12,
32,
74,
-107,
70,
64,
-63,
92,
-114,
-124,
24,
108,
-47,
0,
48,
43,
18,
11,
81,
42,
-13,
46,
29,
-61,
105,
40,
-23,
41,
81,
-112,
-37,
-59,
127,
6,
-93,
7,
-102,
39,
-56,
118,
-112,
61,
19,
-24,
83,
-74,
-122,
116,
9,
11,
40,
102,
102,
65,
20,
-17,
-72,
-72,
14,
-36,
-115,
-89,
-112,
88,
34,
43,
-74,
-99,
101,
18,
6,
-4,
-17,
-123,
89,
124,
15,
-49,
-74,
-73,
-114,
124,
-102,
-125,
-5,
19,
-80,
48,
-49,
-10,
95,
102,
49,
51,
-114,
-41
]
|
By the Gowrt,
Kingman, J.
The errors alleged in this case are, that the petition does not state facts sufficient to constitute a cause of actioiq and that the verdict is against the evidence and contrary to law.
On the part of the plaintiff in error it is claimed that the petition is defective in nine distinct particulars, but as the 5th is a mere corollary from the fourth and must stand or fall with it, it is omitted ; the 6th alleged defect is omitted as it is embraced in’the 8th.
The defects alleged are as follows:
“ 1st. It. does not allege that the defendants charter authorized the company to insure against loss or damage by fire.
“2d. It does not allege any agreement to insure against any loss or damage by fire.
“ 3d. It does not allege the title and date of the passage of the act of incorporation of the defendant, nor is the act of incorporation referred to at all.
“ 4th. That the tender of money and demand was not alleged to have been made on the 1st day of August.
“7th. The money tendered should have been brought into Court, and it must have been so pleaded.
“ 8th. The alleged agreement is incomplete, and is no agreement at all.
“9th. That plaintiff does not aver that he was the owner of anything but the saddlery from the. time of the commencement of the risk to that of the loss.”
The first and second objections present substantially the • same principle, and may bo considered together.
The averment that the defendants were authorized to effect insurance generally, covers all kinds of insurance, fire as well as others, while the averment of an agreement to insure generally, authorized the proof of an .insurance against fire. The want of sufficient certainty in the statement of facts, is not a cause of demurrer. The Code has provided another mode of correcting such a defect in pleadings. Section 128 provides that “when the.allegations of a pleading are so indefinite and uncertain that the precise nature of the charge or defense is not apparent, the .Court may require the pleading to be made definite and certain.”
The most that is or can be claimed of these averments of the petition, is that they do not allege definitely the kind of insurance authorized by the charter, and agreed between the parties. If the defendant felt that his defense in this case was likely to be embarrassed by reason of the kind of insurance not being mentioned, he might by motion have applied to the Court to compel an amendment.
The defect, if it be one,, is one of form only, and it is to be corrected under Section 128, while the. Court here is called upon to pass upon it as a matter of right of the defendant. It would be against the whole spirit of the Code, if a mere defective statement in a petition were allowed to pass unnoticed until after a trial and verdict was had, and then for the first time invoke the judgment of the Court as to the definiteness and certainty of the averment on the alleged ground that facts sufficient to constitute a cause of action are not stated in the petition. 12 A Y. B., 443.
The evidence not appearing it is to be presumed that the plaintiff proved that the defendant’s charter did authorize an insurance against fire, and an agreement to so insure the plaintiff’s goods. As a loss by fire was averred, such proof of power and an agreement therefor, was necessary to a recovery, and was undoubtedly made, we think properly under the pleadings. If the averment was so vague as to leave doubts in the mind of the defendant, his remedy was by motion, to make definite.
In considering the third objection, we have not thought it necessary in this case to determine whether in a suit against a foreign corporation the pleader should set out the act of incorporation or refer to it in his petition. That will be done where the question is properly presented. The only objection to the petition is that it does not state facts sufficient to constitute a cause of action. The question whether the defendants are a corporation is no part of the cause of action. They are either a corporation or have no existence. If the last, a judgment is of no avail. If sued by the wrong name they are at liberty to answer that they are not what they are represented to be. The petition avers that the defendants are a foreign insurance company created under and by virtue of the laws of Massachusetts. Defendants may have been entitled to require that the petition should have been made certain and definite in this particular, though of that we have great doubts, but they only traversed the facts alleged, and it must have been proven that they were a foreign corporation created under and by virtue of the laws of Massachusetts, to entitle plaintiff to recover. As the case is presented here the averment must be held sufficient. This has been the law in Massachusetts. See 5 Mass. R., 95, and in New York, See 2 Cow., 770; 5 Bosworth, 717.
The fourth and seventh errors alleged may be considered together. The contract, as proven, is not in the record, and we can only ascertain its terms by reference to the pleadings. By the petition it appears that the defendant in error agreed to pay the plaintiff in error $47.50 as premium within one month from the time of his application, and within that time plaintiff in error was to deliver the policy of insurance. By the terms of the contract the consideration of the stipulation on either side was the promises made by the othér. Either could perform his part of the contract at any time within one month. Duffey offered to pay the money which was his part of the agreement, and he was authorized to-do that at any time during the month. The insurance company were not bound to deliver the policy until the 1st day of August, the last day on which it was to be done. No demand was necessary. The company was as much bound to deliver the policy as Duffey was to pay the money. Neither was dependent on the other. This view of the case disposes of both the objections under consideration.
The eighth presents the question as to whether a verbal agreement to insure is binding.
The plaintiff in error did not present, nor have we been able to discover any law that makes it necessary that contracts of insurance should be in writing. The general usage has most undoubtedly been to reduce such contracts to writing, but this is for the safety and convenience of parties, not a requirement of law. There is nothing in the nature of the contract which requires written evidence of it. There is no statute directing it. It may be necessary now under the revenue laws, requiring a stamp, but certainly was not in 1860.
The Supremo Court of the United States in a recent case in which this question ¡jjose, directly decided that a parole agreement to make and deliver a policy of insurance need not be in writing. 19 Howard, 318.
The Court of Appeals of New York, have directly and positively affirmed the doctrine.upon reasoning impossible to shake. 19 N. Y. R., 307.
And such is the general tone of the authorities on this point.
The ninth defect pointed out surely does not show a want of cause of action, but might under certain states of proof limit the amount of recovery.
In the way it presents itself to this Court we can only look to see whether it presents facts sufficient to constitute a cause of action, not the amount of the recovery.
We have examined the various objections to the sufficiency of the petition, and are of the opinion that it states facts sufficient to constitute a cause of action, and the objection to .the introduction of testimony under it was properly overruled.-
During the - progress of the trial the defendant below without objection introduced.a paper signed by the plaintiff,- of which the following is a copy :
“ In consideration of the payment by the Hartford Insurance Company of $1,000, I hereby waive all claims I may have against the Western Massachusetts Company under any policies issued previous to July 9th, 1860.
Owen Dueeey.”
The plaintiff .introduced testimony tending to prove that the said agent of the defendant, who was, also the agent of the Hartford Eire Insurance Company, -refused to pay to the plaintiff the amount due on the policy of the Hartford Insurance Company, unless the plaintiff would sign the paper above set forth. It. was . admitted on the trial that the plaintiff had an insurance upon the stock of goods described in the petitition at the time of their .destruction, in the Hartford. Eire Insurance Company to the amount of $1,000, '
If.Duffey .had any claim upon the Elartford Insurance Company, then the payment of that- claim was his, of right, and the liquidation of that claim was clearly no proper legal consideration for any release of any claim he might liave on the present plaintiff in error, and tlie jury were the judges of the fact whether the proof was satisfactory of a want of consideration for the receipt.
It is further insisted that the verdict is against the evidence. Of this we can form no opinion, as the evidence is not all on the record.
Upon a review of the whole case, we are of the opinion that the decision of the Court below should be affirmed.
All the justices concurring. | [
48,
120,
-40,
-83,
-120,
32,
40,
-118,
-43,
-127,
39,
83,
-19,
-37,
-108,
55,
-10,
125,
97,
34,
87,
-93,
15,
66,
-42,
-77,
-5,
-59,
48,
77,
-4,
92,
76,
32,
-126,
-43,
-58,
-118,
-59,
-40,
78,
-120,
-101,
-27,
-39,
96,
48,
91,
84,
71,
113,
-98,
-29,
36,
27,
67,
41,
44,
106,
-103,
-63,
-8,
-85,
13,
127,
1,
-95,
100,
60,
11,
-56,
14,
-112,
-71,
57,
-24,
114,
-74,
-122,
52,
41,
-103,
0,
102,
102,
32,
69,
-17,
-88,
-116,
54,
27,
15,
-91,
-14,
40,
43,
45,
-73,
-99,
124,
22,
39,
126,
-6,
28,
30,
108,
1,
-85,
-14,
-31,
-99,
-28,
-100,
-125,
-18,
-109,
50,
112,
-33,
-28,
92,
103,
61,
27,
14,
-17
]
|
By the Court,
Ckozier, C. J.
Upon the trial of this cause in the Court below, the only instruction giv&n to the jury was the following:
h Under the pleading the plaintiff is entitled to recover' for the number of cubic yards excavated, at twenty cents pgr cubic yard, and for the number of cubic yards filled at twenty cents per cubic yard.”
In so charging the jury, the Court decided that the agreement set out in the paper upon which the action was founded, embodied a valid contract, and should be construed as the language of the instruction indicates; in both of which it is claimed that the Court erred.
At the time the paper was signed the City of Leavenworth, in its corporate capacity had power under its charter to provide for grading streets and for levying and collecting taxes for this purpose upon the adj acent property to the middle of the block; but no such tax was to be levied without the consent of a majority of the resident owners to be affected thereby. To carry out these provisions, ordinance No. 129 had been enacted, published and was in full force. It required, before a contract should be entered into, that a petition requesting the council to order a grade to be made, signed by a majority of the resident property owners to be affected by the tax for the proposed improvement, should be presented to the council. It also provided that every contract made in pursuance of its provisions, should contain a stipulation that the city should in no event be liable for the cost of the work. The petition filed in the Court below, alleges that no such petition was presented to the council, and an inspection of the paper sued upon, shows that no such stipulation was incorporated into it; yet it is claimed that the agreement was a valid contract, or if not valid at its inception, there was such a subsequent ratification by the council as cured any original defect therein. Such seems to have been the opinion of the Court below.
Municipal corporations are creations of the law, and possess no powers except such as are conferred by law. They act under prescribed rules, and must act in accordance with them. , They cannot in any sense be said to act as natural persons. When they undertake to make contracts they must observe the regulations prescribed in that behalf, else there will be no contract, and no subsequent act can cure the defect. Their power to contract must be delegated' by law, while that-of a natural person is inherent. The law affects the contracting power in tho former, by conferring it and regulating its exercise; in the latter by restraining that which is inherent. Some acts of corporations, other than those created for governmental purposes, are to some extent and for some purposes estimated, measured and construed by the same rules that apply to the acts of individuals ; but municipal corporations can exercise only conferred powers, and must exercise them according to the prescribed rules. When the law prescribes a pre-requisite to their ability to contract, the obligation to observe it cannot with impunity be disregarded. Nor wilL a subsequently attempted ratification, cure the defect. Such a construction would render nugatory the most salutary safeguards, and in effect make municipal corporations omnipotent. They must contract if at all, within the prescribed- limits, and according to the prescribed forms. They take no powers by implication—certainly not the power to ratify an act they had no power to perform.
It is said that because the seal of the corporation is affixed to the paper sued upon, that it is an estoppel of all inquiry into the power of the corporation to make the con tract. Such a rale does not apply to municipal corporations, and there is no reason why it -should apply to them. Their charters are usually public laws; their ordinances are .published before taking effect; and all their business is conducted in the most public manner. All persons can inform themselves of their powers and the manner in which they are to be exercised; and if they propose to contract with them, are bound so to inform themselves at their peril.
The petition filed in the Court below alleges that the eitv authorities had. wholly disregarded the requirements of their charter and ordinances. That they had attempted to make a contract which, .under the circumstances, they had no power to make—that the very first step contemplated by law had not been taken. Yet it is alleged in the same paper, and insisted upon in the argument, that because they had so disregarded the law—and that too with the full knowledge of the plaintiff below—the city is liable upon the proposed contract. .
Now it may be that a large amount of work, beneficial to the inhabitants of the city has been performed under the alleged arrangement, and that the person who performed it is morally entitled to compensation therefor; but that such compensation can be obtained as for work done upon the'original contract, is wholly inadmissable.
The ordinance already referred to provided that the contractor who should grade a street must depend upon the adjacent property for his pay ; and that his contract should contain a stipulation that the city should in no event be liable for his compensation. The paper sued upon although it does not contain this stipulation, yet does provide that the contractor shall receive his pay according to the ordinances’ of the city-^-which means that for such work his pay must come out. of the adjacent property. If his contract were a valid one* and the proper city officer refused tp issue to him the certificates provided for in the ordinance, he possibly might require him to do so by mandamus. But lie alleges that he cannot in any event make his money out of the adjacent property because tlie very first step necessary to its subjection bad not been taken.
The allegations of the petition, then, considered in tho light of the charter and ordinance, amount to about these: The city made a contract without observing the essential and indispensible pre requisites, and because of these omissions the only property which the law says shall be charged with the cost of the work, cannot bo subjected to its payment—Therefore the contract is valid against the city. This conclusion presents to our minds somewhat the appearance of a non sequiter.
We think, therefore, that the mayor had no power to make such a contract as he undertook to make; and that the Court below erred in the first clause of the charge to the jury.
We are also of opinion that tho Court erred in its construction of tho contents of tho paper. The object of the proposed arrangement was to grade a certain street; i. e., to bring the surface to a certain line. To accomplish this it may have been necessary to remove earth from one point to another within the street. The language used would cover either or all of these operations; and the word grade was intended to include them all. It was to bo “ graded ” for twenty cents per cubic yard. The clay was to be measured but ouco. If there was to be a cut, its contents should be measured; but if any portion of the earth removed therefrom, should bo deposited within the street, it should not he again measured. If any earth, more than the cut would supply should be necessary to bring it to grade, that was to be paid for at twenty cents per cubic yard.
We do not desire to be understood as expressing any opinion upon the right of the plaintiff below to recover against the defendant in another form. All we intend to say, is, that lie can not in our judgment, legally maintain his action upon the paper referred to, as upon a contract.
The rulings of tbe Court below upon divers and sundry interesting questions of evidence were elaborately and ex-haustingly discussed at the bar by counsel for plaintiff in error; and upon one of. the most important—abstractly considered—“ reference is made to every elementary work on contracts and evidence, and tbe cases therein cited but inasmuch as the views hereinbefore indicated dispose of the case so far as this Court can dispose of it, we do not deem it necessary, however delightful and entertaining it might be, to consider those questions mow, or to imitate the apparent industry of counsel in the pursuit of authorities.
The judgment will be reversed.
All the justices concurring. | [
-16,
-8,
-48,
-18,
-38,
66,
58,
-104,
89,
-79,
-89,
95,
-19,
-54,
20,
97,
-89,
125,
80,
122,
101,
-78,
79,
2,
-74,
-41,
-45,
-43,
-78,
77,
-12,
-11,
76,
-79,
-53,
-99,
-25,
66,
-47,
-36,
-58,
-113,
-118,
68,
-40,
64,
52,
122,
114,
79,
81,
-34,
-13,
42,
21,
-45,
-81,
44,
93,
37,
-47,
-72,
-84,
-51,
125,
7,
-111,
6,
-100,
-29,
-38,
44,
-102,
61,
8,
-32,
119,
-74,
-122,
-4,
13,
27,
-120,
98,
106,
3,
97,
-25,
-40,
-99,
14,
-6,
-115,
-91,
-76,
24,
42,
43,
-106,
-105,
84,
82,
39,
118,
-26,
21,
31,
108,
3,
-121,
-12,
-13,
-49,
-12,
-108,
3,
-17,
-93,
48,
112,
-58,
-76,
94,
-25,
51,
19,
12,
-55
]
|
By the Court,
Cobb, C. J.
The plaintiffs commenced their action in the late Territorial Court of the first Judicial District, against the defendants on the 14th day of November, 1860, alleging in their petition that the plaintiffs and defendants in the month of March 1853, entered into partnership in the business of contractors and railroad builders in the State of Ohio, dh the terms that the plaintiffs should be jointly entitled to half the profits and bear half the losses of the business; and the defendants have the like interest therein. That the business of the firm continued until March 1856, when the firm was dissolved and “ the business thereof wound up and settled,” and an account stated between the parties.
That upon closing the business no assets of the firm remained. That plaintiffs had drawn from the firm $2,-378.69, and the defendants $7,244.90 and prayed judgment for $2,433.10. The defendants answered, first that the cause of action arose beyond the limits of the State of Kansas and in the State of Ohio, and did not accnie within two years before tbe commencement of the action. And as a sécond defence, they expressly admit the formation of the partnership and set out its terms and the proceedings of the parties under it, more fully than they áre stated in the petition ; allege that the partnership books .were kept by one of the plaintiffs, and state many important errors in them adverse to the defendants; and'that the plaintiffs had made úse of a large amount of property of the firm which they had never accounted for, and allege that on a fair adjustment of the partnership accounts there will be found due to the defendants the sum of $569.44, with interest at six per cent, since April 1st, 1856, and pray the taking of an account between the parties and for judgment against the plaintiffs for such sum as may be found due the defendants. The plaintiff demurred to the first cause of defence on the ground that it does not state facts sufficient to constitute a defence, and replied to the second by a general denial.
Upon these pleadings the Court with the consent of parties, made an order referring the cause to John M. Price, “ appointed a special master to take a mutual account of all dealings and transactions between plaintiffs and defendants referred to by the pleadings, and to report to the Court, &c.”
Said special master took such account, and at a subsequent term duly reported the same to the Court, showing a balance in favor of the plaintiffs.
Upon this report .the plaintiffs movéd for judgment in their favor, and the defendants moved the Court to arrest the judgment on the ground that the plaintiffs petition does not state facts sufficient to constitute a cause of action, for the reasons,
1st. That it appears from the petition that the action was not commenced within three years after the right óf action accrued, and
2d. That it appears that the cause of action accrued in Ohio, and the action was not commenced within two years after the canse of action accrued, and no reason for the delay is stated in the pleadings.
The Court arrested the judgment and gave judgment against the plaintiff for costs.
The plaintiff alléges as error,
1st. That the Court erred in sustaining .the motion in arrest of judgment, and granting an order therefor.
2d. That the said Court erred in not granting the motion for confirmation of said commissioner’s report, and in refusing to enter judgment thereon.
3d. The Court erred in refusing to consider the evidence returned and forming a part of report.
The counsel for defendants claim that the plaintiff’s action was barred by the statute approyed Eeb. 10,1859, and which by its terms went into effect on the same day, requiring actions upon contracts made beyond the limits of the Territory to be brought within two years after the cause of action accrued, and also by the limitation law included in the code requiring such action to be commenced within three years after such cause of action shall have accrued.
It appears by the petition that the right of action in this cause had accrued more than two years before the first mentioned law was passed, and if the defendant’s doctrine is correct, the time for commencing the action was not limited, but the cause of action instantly barred by that statute.
There is no language in that law indicating an intention to apply it to such cases, and it would he disrespectful to the Legislature who passed it-to presume that they intended so gross and manifest injustice to creditors.
But had such intention been expressed the statute as to such cases would be void. Section 10 of Article 1 of the Constitution of the United States, provides that no State shall pass any “ law impairing the obligation of contracts,” and it destroying all legal remedy upon a contract does not impair its obligation, it is difficult to conceive how it could be impaired. The legal obligation of a contract consists in the right of either party to have it enforced aga'mst the other or to Recover compensation for its breach by due process of law, and any argreement not carrying with it such right, is, in law, a perfect nullity. It is true that although the legal remedy upon a contract be destroyed the moral obligation will remain, and with or without constitutional restrictions, no human power could impair it. But the provision of the constitution referred to, was not intended by its framers to prohibit legislatures from impairing moral obligations, (a thing in its nature impossible,) but to prevent them from impairing legal rights vested under contracts, by impairing or destroying the legal power to enforce them. "We are not aware of any reported case upon this exact point, but respectable text writers and dicta of several eminent judges sustain the view here expressed. In Society &c. v. Wheeler, 2 Gall., 194, Justice Story, says: “ If the Legislature were to pass an act of limitation by which all actions upon past disseixens were to be barred without any allowance of time for the commencement thereof in future, it would be difficult to support its constitutionality, for it would be completely retrospective in its operation on vested rights,” and in Sturges v. Chowninsheild, 4 Wheat. R., 122, Chief Justice Marshall said: “ If in a State where six years may be pleaded in bar to an action of assumpsit, a law should be passed declaring that contracts already in existence not barred by the statute, should be construed to be within it, there could be little doubt of its unconstitutionality. See also Smith’s Commentaries on Constitutional and Statutory Law, page 401, and the following case's there cited.. Call v. Hagger, 8 Mass. R., 430; Proprietors of Kennebeck Purchase v. Laboul Greenleaf, 294, 3 Peters, 290 ; Blackfoot v. Pettier, 1 Blade, 36 ; Sedgioiclc on Btatutaryand Constitutional La/w, cmd oases there cited. There are numerous cases in which it has been held that the remedies of a party to enforce his judgment by execution against the person or property of the debtor, where there is no mortgage or other lien upon the debtors property, may be modified by a statute passed after the making of the contract upon which the judgmenf was recovered, but none we believe that all remedy upon such judgment may be swept away. That class of cases, however far they may go in allowing such modification, are not analagous to this, and we, know of no case or dictum sustaining the doctrine that a right of action already vested under a contract, may be divested by an act of the Legislature.
All the authorities cited by the defendant as sustaining this doctrine to which we have access, are quite foreign to the point in controversy, and if any decisions of courts of sister States exist sustaining the defendant’s doctrine, they are too manifestly repugnant to the constitutional provision above cited, to be followed as precedents here. The cause of action stated in the petition was therefore not barred by the Limitation Law passed on the 10th of February 1859.
But it is claimed that the petition shows that the plaintiff ’s cause of action was barred by the limitation of three years provided for in the Code, and that judgment was properly arrested on that ground.
We will first enquire whether, assuming that the plaintiff’s action was so barred, the defendant was in condition to avail himself of that defence after the report of the referee ? The plaintiff’s petition was for a balance stated in his favor upon an account between the parties as partners. The answer admitted the partnership and its dissolution and a large partnership account between the parties, but denied the striking of any balance, claimed that on a fair accounting there would be found a balance in his favor, and pray, ed that a3 account be taken and judgment rendered for such balance, and the parties both assented in open court to the order which was made for the taking of the account before a referee.
By assenting to the taking of the account the plaintiff abandoned his claim to recover as upon an account stated, and by the assent of both parties appearing of record the action became in substance .an equitable action for a final accounting between former partners. If the accounts thus sought to be settled were barred by the statute of limtiation, the action for stating the account was barred as to both parties, and no accounting could ¡properly be had till that question was determined.
In chancery, the practice in such suits was, when the defendant set up by-plea, answer , or demurrer, any bar to the account to try the issue of law or fact -raised, and if .the account was found to be barred, dismiss -the.bill, but if the issues were-found for.the complainant, an interlocutory decree was made that an account should be taken,¡and a reference was then made to a master to take and -state the account, and upon the coming in and confirmation of his report, a final decree was made for the balance found due to either party.
If the defendant, as in this, case, requested or assented to the taking .of the account, the accounting was ordered of. course, and reference made accordingly. There is nothing in the Code changing substantially this remedy, and it is believed to be still the correct practice to dispose of all matters in bar of an accounting before the.account is stated, and that if a defendant chooses not to set up. such bar, but . to take his chances of getting a report in his favor, and prays that the account be taken, he ..waives the bar and should not be allowed to raise it afterwards.
It is argued by the defendant that by the provisions of Section 98 of the Code, he has not .waived the defence, because it appears upon the face of the petition, and the petition therefore does not state facts sufficient to constitute a cause of action.
.That section provides that “if no objection.be taken either by demurrer or answer, the defendant shall be deem ed to have waived the same, except only the objection to the jurisdiction of the Court, and that the petition does not state facts sufficient to constitute a cause of action.
That the lack of material facts in the petition to constitute a cause of action is not waived by failing to demur, for that cause or answer is fairly inferrible from the language of that section, but it furnishes no authority for holding that a defence appearing by the petition will not be waived by answer, and other proceedings of the defendant placed upon the record wholly inconsistent with such defence.
Suppose the defendant together with the answer filed by him had filed an additional answer setting up the three years’ limitation as a bar to the partnership account % The one would have been in irreconcilable antagonism with the other. By one answer he sets up a partnership account upon which he alleges there is a large balance due to him} and prays the Court to take an account of the partnership business and give him a judgment for the balance in his favor. By the other he declares in the same breath, that the whole partnership account is barred by the Statute of limitations, and no judgment can be rendered on it. In such case the Court, on motion, would compel the defendant to elect which answer he would stand upon, and strike the other from the record. Van Stantford' Ple., 2nd ed., 518-19, and cases there cited.
But surely the defence attempted in this case is not less inconsistent with the defendants answer than if it had been placed upon the record with it.
The judgment was arrested on the ground that the petition showed a defence to the action, but other portions of the record show that defence to be waived by the defendant, and what is tantamount to an agreement of record by both parties, to waive any such defence. On motion in arrest of judgment the whole record is before the Court, and if a defect of the petition is waived of record by the defendant, the judgment should not be arrested for such defect.
It is needless therefore, for us to discuss the grave question whether by the petition alone, the cause would appear to be barred by the statute.
The order arresting judgment and the judgment for costs in the District Court must be reversed and judgment for costs in this Court rendered against the defendants, and the cause be remitted with instructions to the Court below to render judgment upon the report of the referee' or special master, as upon a special verdict.
All the justices concurring. | [
-16,
106,
-8,
-20,
-56,
104,
34,
-102,
108,
35,
39,
87,
-51,
-53,
16,
57,
102,
125,
81,
122,
100,
-109,
23,
35,
-126,
-13,
-5,
-51,
-79,
-51,
-12,
-44,
76,
32,
72,
-99,
2,
64,
-63,
28,
-50,
12,
-87,
-24,
112,
64,
60,
122,
52,
11,
49,
-86,
-13,
42,
29,
-53,
73,
44,
109,
41,
-15,
-15,
-118,
-59,
60,
7,
16,
38,
-98,
3,
-56,
31,
-104,
-107,
32,
-87,
115,
-74,
-122,
-12,
97,
-119,
45,
102,
99,
33,
21,
-19,
-68,
-128,
6,
-6,
-99,
-89,
-32,
0,
35,
73,
-66,
-99,
117,
2,
-121,
-2,
-4,
5,
25,
124,
-121,
-49,
-74,
-94,
-113,
126,
-97,
-109,
-5,
-109,
50,
80,
-56,
32,
93,
71,
56,
-101,
-97,
-28
]
|
The opinion of the court was delivered by
Allegrucci, J.:
This is a declaratory judgment action in which the attorney general is asking that the Sedgwick County Board of Commissioners’ resolution increasing its quorum requirements be declared void. The district court granted the State’s petition and declared the resolution void. The Board of County Commissioners of Sedgwick County appeals and we. reverse.
On May 27, 1987, the five members of the Board of County Commissioners of Sedgwick County (Board) unanimously adopted a home rule resolution to increase the quorum for future meetings of the board to four rather than three county commissioners. The attorney general, on behalf of the State of Kansas, filed a petition, alleging that the Board’s resolution increasing the quorum requirement to four members should be declared void as a violation of K.S.A. 1988 Supp. 77-201 Fourth. The Board now appeals from the district court’s decision, and the Wichita Eagle and Beacon Publishing Company, Inc., has filed a brief as amicus curiae supporting the decision of the district court.
We first must determine whether the resolution is void as a violation of public policy as stated in the Kansas Open Meetings Act. The Board contends that the quorum resolution reflects a valid exercise of powers delegated by the legislature to Sedgwick County through the Home Rule Act. K.S.A. 19-101a(a) grants to counties, subject to specific enumerated exceptions, the authority to “transact all county business and perform all powers of local legislation and administration it deems appropriate.” K.S.A. 19-101c provides: “The powers granted counties pursuant to this act shall be referred to as county home rule powers and they shall be liberally construed for the purpose of giving to counties the largest measure of self-government.”
In addition to these general grants of authority, the Board argues that the quorum resolution finds specific authorization in K.S.A. 19-218. This statute provides:
“Every board of county commissioners shall have a seal, and may alter the same at pleasure. They shall sit with open doors, and all persons conducting in an orderly manner may attend their meetings; and they may establish rules and regulations to govern the transaction of their business.”
The State and amicus respond by arguing that the quorum resolution adopted by the Board violates public policy in general, and the policy underlying the Kansas Open Meetings Act, K.S.A. 75-4317 et seq. They identify two objections to the quo rum resolution: First, that the resolution would frustrate democratic government by allowing two members of the Board to frustrate any action by refusing to attend commission meetings. Second, that the quorum resolution allows the Board to evade the general policy underlying the Kansas Open Meetings Act.
This court rejected an argument similar to the first argument advanced by the State and amicus in U.S.D. No. 407 v. Fisk, 232 Kan. 820, 660 P.2d 533 (1983). In Fisk, at issue was the proper interpretation of K.S.A. 25-2022 and K.S.A. 1982 Supp. 72-8205. The appellants argued that, where three vacancies exist on a seven-member school board, the four remaining board members should not be required to express a unanimous decision in selecting new members to fill the vacancies. One of the arguments advanced by the appellants was similar to that made by the State in the present case: A minority of the board could frustrate the filling of the vacancies by refusing to participate in the selection process. The Fisk court rejected the argument, stating:
“However, the same argument could be made of any board that lacked seven members. We do not adopt the argument that one or more of the members of a four-person board will refuse to perform the duties [of] the office and refuse to cooperate in bringing the board to full membership.” 232 Kan. at 828.
See In re Application for Incorporation as City, 241 Kan. 396, 398, 736 P.2d 875 (1987). Moreover, should two members of the county commission in the present case seek to frustrate any action by the Board by consistently refusing to attend any Board meetings, they could be removed from office pursuant to K.S.A. 19-2609. This statute provides for removal by civil action county commissioners and other officers who “shall neglect or refuse to perform any act which it is his duty to perform, or shall corruptly or oppressively perform any such duty.”
Similarly, the provisions of the Kansas Open Meetings Act do not provide an independent limitation upon the ability of a county commission to increase the quorum requirements for commission meetings. The general policy underlying the Kansas Open Meetings Act is stated in K.S.A. 75-4317(a):
“In recognition of the fact that a representative government is dependent upon an informed electorate, it is declared to be the policy of this state that meetings for the conduct of governmental affairs and the transaction of governmental business be open to the public.”
The Open Meetings Act seeks to increase public confidence in government by increasing the access of the public to the decision-making processes of government. This increases the accountability of governmental bodies, and deters official misconduct. See Tacha, The Kansas Open Meeting Act: Sunshine on the Sunflower State?, 25 Kan. L. Rev. 169, 170-71 (1977).
K.S.A. 75-4317a defines the governmental decision-making event which is subject to the provisions of the open meetings law:
“As used in this act, ‘meeting’ means any prearranged gathering or assembly by a majority of a quorum of the membership of a body or agency subject to this act for the purpose of discussing the business or affairs of the body or agency.”
See State ex rel. Murray v. Palmgren, 231 Kan. 524, 534, 646 P.2d 1091 (1982).
The State suggests that the quorum resolution at issue in the present case violates the Open Meetings Act by permitting two members of the county commission to meet outside the scope of the Act. Those two members could, in turn, individually speak with other members of the Board, thereby circumventing the provisions of the Open Meetings Act. The legislature, however, could have prevented this result by simply providing that the Open Meetings Act applies whenever two members of a governmental body or agency gather or assemble. Instead, it refused to adopt such an approach and defined a meeting simply as “a majority of a quorum,” but did not define what constitutes a quorum.
One authority has agreed, finding that the legislature’s refusal to designate a more explicit definition of the term “meeting” indicates that the Open Meetings Act is not an independent limitation upon the ability of a local governmental body or agency to change the definition of a quorum.
“In addition, proof of the majority of a quorum element necessarily requires evidence of the legal composition of the governmental body as well as the number of members necessary to constitute a quorum. The number of members of a body necessary for a quorum varies depending on the size of the body and the rules by which it operates. In the. absence of a statutorily designated quorum number it has been assumed a majority is a quorum. This may not, however, be the case if regulations or local ordinances provide for the attendance of a greater or lesser number of members, to transact business, Since the legislature did not require ‘a majority of a majority’ it must be presumed local variations are permitted.” Smoot and Clothier, Open Meetings Profile: The Prosecutor's View, 20 Washburn L.J. 241, 259-60 (1981).
We find that the Open Meetings Act contains no limitation upon the ability of a county commission to increase its quorum requirements. We conclude that the resolution increasing the quorum requirements does not violate the public policy of the Open Meetings Act.
The State next contends that the resolution of the Board violates the general common-law rule that a majority of a collective body constitutes a quorum. The State also notes decisions from other jurisdictions, which hold that a local governing body is required to follow the common-law quorum rule absent a contrary statutory authorization. Endeavor-Oxford Union F.H.S. Dist. v. Walters, 270 Wis. 561, 72 N.W.2d 535 (1955); Heiskell v. Mayor, ire., of Baltimore, 65 Md. 125, 4 A. 116 (1886). However, these cases are not beneficial in resolving the issue before us, since they fail to discuss the impact of home rule legislation upon the general common law. For that reason, both cases are distinguishable from the case before us. In Endeavor-Oxford, the Wisconsin court held that a municipal council did not possess an “implied power” to alter the general common-law definition of a quorum. 270 Wis. at 571. It did not discuss whether such authority might be derived from home rule legislation which, in Kansas, empowers counties to “transact all county business and perform all powers of local legislation and administration it deems appropriate,” subject only to specific enumerated exceptions. K.S.A. 19-101a(a).
The Maryland Court of Appeals’ decision in Heiskell was decided in the context of a legislative framework which severely limited the extent of powers delegated by the state legislature. Under the then-existing Maryland law,
“ ‘a municipal corporation possesses and can exercise the following powers, and no others: first, those granted in express words; second, those necessarily or fairly implied in, or incident to, the powers expressly granted; third, those essential to the declared objects and purposes of the corporation—not simply convenient, but indispensable. Any fair, reasonable doubt concerning the existence of power, is resolved by the Courts against the corporation, and the power is denied.’ ” Heiskell, 65 Md. at 148 (quoting 1 Dillon’s Commentaries on the Law of Municipal Corporations § 89 [4th ed. 1890]).
Contemporary Kansas law, however, not only contains a much broader grant of authority to counties to perform powers of administration as they deem appropriate, it also requires the liberal construction of those powers. Under K.S.A. 19-101c, the home rule powers delegated to the individual counties must be liberally construed “for the purpose of giving to counties the largest measure of self-government.” This broad delegation of power, combined with the mandatory liberal construction of such powers, requires the rejection of the State’s argument that the Board’s resolution violated the common law. Common-law rules as to a quorum requirement “may, of course, be altered by statute.” Equity Investors, Inc. v. Ammest Group, Inc., 1 Kan. App. 2d 276, 281, 563 P.2d 531, rev. denied 225 Kan. 843 (1977). Any limitation upon the ability of a county to alter the general definition of a quorum must be found within the specific exceptions to home rule powers enumerated in K.S.A. 19-101a(a).
The State and amicus assert two possible statutory limitations upon a county’s home rule power to alter its quorum requirements: K.S.A. 1988 Supp. 77-201 Fourth and K.S.A. 19-206. In particular, the State relies upon K.S.A. 1988 Supp. 77-201 Fourth, which provides:
“Words giving a joint authority to three or more public officers or other persons shall be construed as [giving] that authority to a majority of them, unless it is otherwise expressed in the act giving the authority.”
We find no Kansas case that has ever interpreted this statute as containing a definition of the quorum required for a legal meeting. Rather, the statute has been consistently interpreted as a voting requirement, the cases holding that a majority vote is sufficient to bind a collective body, and that a unanimous vote is not required. See, e.g., Wycoff v. Board of County Commissioners, 191 Kan. 658, 673, 383 P.2d 520 (1963); State v. Boicourt Hunting Ass’n, 183 Kan. 187, 326 P.2d 277 (1958); Chambers v. Herrick, 172 Kan. 510, 514, 241 P.2d 748 (1952); State, ex rel., v. Woodruff, 164 Kan. 339, 189 P.2d 899 (1948); Tucker v. Raney, 145 Kan. 256, 257, 65 P.2d 329 (1937); Union Public Ser. Co. v. Corporation Comm., 140 Kan. 722, 725, 37 P.2d 1010 (1934); Parrick v. School District, 100 Kan. 569, 573, 164 Pac. 1172 (1917); Water Co. v. City of Wichita, 98 Kan. 256, 258, 158 Pac. 49 (1916). The nature of K.S.A. 1988 Supp. 77-201 Fourth is revealed in particular in State v. Boicourt Hunting Ass’n, 183 Kan. 187. Citing G.S. 1949, 77-201, this court held that a resolution of the Forestry, Fish and Game Commission did not have to pass by a unanimous vote. 183 Kan. at 189-90. Moreover, the court also noted in its opinion the existence of an explicit statutory quorum requirement for meetings of the Forestry, Fish and Game Commission. G.S. 1949, 74-3301. In Boicourt, the application of K.S.A. 77-201 Fourth to a case where a separate statute explicitly provided for a quorum requirement confirms the conclusion that K.S.A. 77-201 Fourth does not contain an independent minimum limit on the size of a quorum.
P. & F. R. Rly. Co. v. Comm’rs of Anderson Co., 16 Kan. 302, 310 (1876), leads to a similar conclusion. The issue was whether sufficient notice had been given for a special session of a board of county commissioners and, therefore, whether the meeting was a valid legal session. This court also discussed the predecessor of K.S.A. 1988 Supp. 77-201 Fourth, but as an issue separate from the question of whether a sufficient number of commissioners had been contacted for a legal meeting of the board. Of the predecessor of K.S.A. 1988 Supp. 77-201 Fourth, the court stated: “We do not see that this affects the question. Whenever there is a legal session, unquestionably a majority of the commissioners can act and bind the county. But this casts no light upon the question as to the manner of convening a legal session.” 16 Kan. at 310. Thus, in P. & F. R. Rly., the court distinguishes between the requirements for a legal session of a collective body (e.g., notice, quorum considerations) and the voting standards (set forth in K.S.A. 1988 Supp. 77-201 Fourth) once a legal session is found to exist.
The State argues that to require the presence of more than a majority denies to the majority the authority conferred to it by K.S.A. 1988 Supp. 77-201 Fourth. The State and amicus contend that this would violate K.S.A. 1988 Supp. 77-201 Fourth because if two commissioners were absent, the three commissioners present, although constituting a majority, could not act. Thus, the amicus argues, the legislature did not intend the majority to be hamstrung by a minority by way of the home rule resolution. We are not at liberty to interpret the statutes to achieve a desired or popular result. We are bound by fundamental rules of statutory construction, the most basic being that the interpretation of a statute is a question of law, and the intent of the legislature governs where the intent can be ascertained from the statute itself.
We acknowledge that the results could be as appellee and amicus contend. However, the question is not one of authority to act but authority to call a meeting, i.e., a quorum. The legislature chose not to define “quorum” in the Open Meetings Act or in any legislative act that uniformly applies to all counties. That the legislature must do, and not this court.
The State and amicus rely on Lville. & Jeff. Co. Plng. & Zng. Comm. v. Ogden, 307 Ky. 362, 210 S.W.2d 771 (1948). We find their reliance is misplaced and that the case is distinguishable from the present case. The Kentucky Supreme Court did invalidate a zoning commission’s change in its quorum requirements as a violation of Kentucky’s version of K.S.A. 1988 Supp. 77-201 Fourth. However, the case involved a reduction in the quorum requirements which would potentially allow a minority of the zoning commission to approve an ordinance. The decision by the Kentucky Supreme Court would have been the same whether the statute was interpreted as a quorum requirement or as a voting requirement. In contrast to the present case, the increase in the quorum over a simple majority does not conflict with the interpretation of K.S.A. 1988 Supp. 77-201 Fourth as a voting requirement, since it guarantees that a majority will always have to vote in favor of any ordinance passed by the Board.
Our conclusion is supported by a straightforward construction of K.S.A. 1988 Supp. 77-201 Fourth. The statute simply provides that, where a joint authority is given to three or more persons, a majority vote of those persons is a binding statement of that joint authority. The statute does not establish, explicitly or implicitly, the legal requirements for a legal session of that joint authority, such as notice or quorum requirements.
The second possible statutory limitation asserted by the State and amicus is contained in K.S.A. 19-206. That statute provides:
“In all counties having more than eight thousand (8,000) inhabitants, the board of county commissioners shall and in all other counties may meet in regular session, at the county seat of the county, on the first Monday in each month during the year, and in special session on the call of the chairman for the transaction of any business general or special, at the request of a majority of the members on the board, as often as the interest and business of the county may demand. The nature of the business to be transacted at any call meeting to be governed by the matters and things set out in the call.”
The State contends that K.S.A. 19-206 implicitly limits the ability of a board of county commissioners to increase its quorum requirement. The State argues that it would be inconsistent for a majority of a board to be able to call a special session under K.S.A. 19-206, yet not constitute a quorum.
The Board does not respond by arguing that there is no inconsistency, but contends that K.S.A. 19-206 is a non-uniform statute inapplicable in the present case. We agree. Under K.S.A. 19-101a(a)(l), the home rule powers of counties are “subject to all acts of the legislature which apply uniformly to all counties.” K.S.A. 19-101a(b) provides, in part:
“If the legislation proposed by the board under authority of subsection (a) is contrary to an act of the legislature which is applicable to the particular county but not uniformly applicable to all counties, such legislation shall become effective by passage of a charter resolution in the manner provided in K.S.A. 19-101b.”
K.S.A. 19-206 requires counties having more than 8,000 inhabitants to hold regular monthly sessions, and to call special meetings at the request of a majority of the members of the board of county commissioners. It is non-uniform in nature since it is limited in its application by the population of the individual county.
K.S.A. 19-206 is not a uniform statute, applicable to all counties, and therefore does not limit the authority of the board of county commissioners to increase the definition of a quorum beyond a majority of its members. We find the resolution raising the quorum of the five-member county commission from three to four members was a valid exercise of the commission’s home rule authority.
The judgment of the district court is reversed. | [
-75,
-51,
-3,
-36,
12,
96,
48,
-122,
73,
-79,
-93,
83,
43,
-40,
20,
127,
-69,
109,
83,
105,
-63,
-78,
31,
67,
84,
115,
-73,
-41,
-65,
79,
-12,
-3,
72,
48,
26,
-27,
70,
-22,
-117,
28,
-82,
3,
-119,
-111,
-64,
2,
60,
41,
86,
-101,
-11,
110,
-77,
40,
26,
-61,
-24,
40,
91,
44,
-63,
-71,
-68,
-107,
89,
19,
1,
-124,
-120,
-121,
-24,
39,
-120,
56,
-88,
-24,
115,
-90,
-126,
117,
77,
-39,
45,
46,
104,
1,
56,
-18,
-24,
-88,
14,
51,
13,
-26,
-105,
89,
98,
15,
-106,
-67,
101,
22,
14,
124,
-26,
5,
-37,
-84,
-116,
-50,
-112,
-77,
14,
117,
-128,
1,
-21,
-123,
16,
113,
-46,
-26,
94,
-58,
18,
27,
110,
-72
]
|
The opinion of the court was delivered by
Lockett, J.:
Appellants, Kansas Racing Management, Inc., (KRM) and The Wyandotte County Economic Development Commission, Inc.-, (WCEDC) appeal from an administrative adjudication of the Kansas Racing Commission (Commission) awarding conditional licenses to appellees The Racing Association of Kansas East, Inc., (TRAK East) and Sunflower Racing, Inc., (Sunflower) under the Kansas Parimutuel Racing Act (Act), K.S.A. 1988 Supp. 74-8801 et seq. Appellants claim: (1) the Commission’s refusal to disclose Kansas Bureau of Investigation (KBI) investigative reports to appellants and the Commission’s failure to provide appellants an opportunity to present evidence and witnesses regarding those reports violated statutory law and appellants’ due process rights under the Kansas and United States Constitutions; (2) the Commission erred in ruling it lacked jurisdiction to. consider an alleged conflict of interest involving one of the principals of Sunflower and the Kansas Attorney General; (3) K.S.A. 1988 Supp. 74-8813(a) and 74-8815(c) were improperly retroactively applied to require appellants to pay the cost of KBI background investigations; and (4) the Commission’s grant of conditional facility owner and facility manager licenses to Sunflower and a conditional organization license to TRAK East was arbitrary, capricious, or an abuse of its discretion. Pursuant to our limited scope of review and after careful consideration of all points raised on appeal, we affirm.
In 1986, the Kansas Constitution was amended to allow the legislature to “permit, regulate, license and tax . . . the operation or conduct, by bona fide nonprofit organizations, of horse and dog racing and parimutuel wagering thereon.” Kan. Const, art. 15, § 3b. Subsequently, the 1987 legislature enacted the Kansas Parimutuel Racing Act, K.S.A. 1987 Supp. 74-8801 et seq., effective May 28, 1987, which governs racing activities in the state. The Act creates the Kansas Racing Commission, whose duties include the granting of organization and facility licenses for horse or greyhound racing.
The Act requires any nonprofit organization desiring to conduct racing to obtain a license from the Commission. In addition to conducting races, the Act allows a nonprofit organization to construct and own the racetrack facility or contract with a person, partnership, corporation, or association, the State of Kansas, or any political subdivision of the state (a nonprofit group) to construct and/or own the racetrack facility for the nonprofit organization to conduct racing.
The Act grants the Commission broad discretion in the grant or denial of organizational licenses. K.S.A. 1988 Supp. 74-8813(e) provides that,
“[i]f an application is found to be in compliance [with the provisions of the Act] and the commission finds that the issuance of a license would be within the best interests of horse and greyhound racing within this state from the standpoint of both the public interest and the horse or greyhound industry, as determined solely within the discretion of the commission, the commission may issue an organization license to the applicant.” (Emphasis supplied.)
In other words, the Commission is not statutorily required to grant an organizational license even though the applicant is found to be in compliance with statutory requirements.
At the time appellants filed their applications, K.S.A. 1987 Supp. 74-8813 and 74-8815 set out the procedure for submission of an application for licensure to the Commission. All applicants were required to pay a nonrefundable $5,000 application fee (K.S.A. 1987 Supp. 74-8813[a][l] and 74-8815[c]), and to deposit $500,000 (K.S.A. 1987 Supp. 74-8813[b][l]) and 74-8815[d][l]) to be held by the state treasurer and refunded to the applicant, with interest, if no license was awarded.
Acting upon recommendations of the Commission, the 1988 session of the Kansas Legislature made significant changes in the Act. Although the original legislation (K.S.A. 1987 Supp. 74-8813[e] and 74-8815[e]) required that the denial of an organiza tion or an owners’ license by the Commission be in accordance with the Kansas Administrative Procedure Act, K.S.A. 1987 Supp. 77-501 et seq., which creates procedural rights and imposes procedural duties upon administrative agencies, this provision was deleted by the 1988 legislature by a substitute for H. B. 2776 in chapter 318. In its place, the legislature provided that: (1) the grant or denial of an original facility owner license or facility manager license shall not be subject to the Kansas Administrative Procedure Act; (2) the grant or denial of a license shall be determined in the sole discretion of the Commission; (3) the decision to grant a license to one of two or more competing applicants is final and the Commission is not required to conduct a hearing on the denial of a license to each of the other competing applicants; (4) judicial review of the Commission’s decision is by appeal to the Supreme Court in accordance with the act for judicial review and civil enforcement of agency actions; and (5) judicial review is limited to whether the action of the Commission was arbitrary or capricious or constituted an abuse of discretion. K.S.A. 1988 Supp. 74-8813(v), and 74-8815(m).
Because of the expenses incurred by the Commission in processing the applications for licenses and investigating the applicants’ qualifications, H.B. 2773 amended the Act effective April 7, 1988, to enable the Commission to apply each applicant’s $5,000 fee toward payment of reasonable expenses incurred when processing the application and investigating the applicant’s qualifications for licensure. This amendment also required the Commission to charge each applicant for any additional amount necessary to pay these expenses. K.S.A. 1988 Supp. 74-8813(a) and 74-8815(c).
To assist the Commission with its investigation of the qualifications of the applicants, H.B. 2774 was enacted to permit the Commission to receive criminal and background investigation information for purposes of determining the applicants’ qualifications for licensure. K.S.A. 1988 Supp. 74-8804(n).
These amendments became effective during the time the Commission was receiving and processing applications for licenses to construct a race facility for greyhound and horse racing in the Kansas City area. The Commission’s application and interpretation of the 1988 amendments form the basis for this appeal.
On January 22, 1988, appellant WCEDC, and appellant KRM filed with the Commission a joint application for licenses to construct a racetrack facility and to conduct horse and greyhound racing with parimutuel wagering at a proposed site in Edwards-ville, Wyandotte County, Kansas. WCEDC, a Kansas not-for-profit corporation, filed to obtain organization and facility owner licenses. KRM filed for a facility management license.
On March 3, 1988, Sunflower and TRAK East filed with the Commission a joint application seeking licenses to construct a racetrack facility and to conduct horse and greyhound racing with parimutuel wagering at a proposed site in Kansas City, Wyandotte County, Kansas. Sunflower sought both the facility owner and facility manager licenses and TRAK East sought only the nonprofit organization license.
On March 5, 1988, the Commission held a public hearing at Edwardsville, Kansas, concerning the racetrack proposed by KRM and WCEDC. On March 7,1988, the Commission received two additional group applications from Kansas Greyhound Racing, Inc., and Greyhound Racing Charities of Kansas, Inc.; and Alabama/Kansas, Inc., and Kansas Racing Charities, Inc., seeking racetrack licenses in the Kansas City, Kansas, area.
On March 31, 1988, the Commission entered an order finding that the applications of WCEDC and KRM complied with both the Act and Commission regulations. The same day, the Commission entered similar orders finding all other applications for racetracks in the Kansas City area in compliance. Though statutorily parties to this appeal, K.S.A. 1988 Supp. 74-8813(v) and 74-8815(m), Kansas Greyhound Racing, Inc., and Greyhound Racing Charities of Kansas, Inc.; and Kansas Racing Charities, Inc., and Alabama/Kansas, Inc., have chosen not to participate in the appeal.
The 1988 amendments to the Act became effective during the month of April. From this point on, the Commission applied the Act as amended. On April 25, 1988, the Commission held a public hearing in Kansas City, Kansas, concerning the remaining racetrack proposals in that area, including the proposal of Sunflower and TRAK East.
Between June 17, 1988, and July 8, 1988, the Commission received KB I investigative reports on all applicants. Instead of providing written copies of these reports to the members of the Commission, the reports were read verbatim to the Commission in executive sessions. Subsequently, portions of the reports were reread to the Commission.
On July 8,1988, the Commission met in executive session with Sunflower’s and KRM’s principals regarding their KBI background investigative reports. On July 9, 1988, the Commission met in executive session to confer with principals of KRM and Alabama/Kansas concerning the KBI reports. On that same date in executive session, the Commission discussed the KBI reports with Dr. David A. Schoenstadt and Mr. Norman E. Rose, principals of KRM. That afternoon in a public session, the Commission voted to grant a conditional organization license to TRAK East, and conditional facility owner and facility manager licenses to Sunflower. The Commission instructed its counsel, an assistant attorney general, to draft a proposed order, with findings of fact and conclusions of law, for these licenses.
On July 15, 1988, KRM requested a meeting with the Commission in executive session to comment on the KBI investigative reports. In addition, KRM’s counsel delivered to the Commission a letter signed by its chairman, Dr. David Schoenstadt. Counsel for KRM asked that the letter be filed confidentially. The Commission placed these matters on its agenda for the following week. Counsel for both KRM and WCEDC then requested the Commission reconsider its conditional licensure of TRAK East and Sunflower.
On July 22, 1988, following an executive session with its counsel, the Commission ruled in a public session that the letter would not be filed confidentially. The letter was then publicly read. In the letter, KRM raised concerns regarding denial of access to the KBI investigative reports concerning the KRM applicants, an alleged conflict of interest between a principal of Sunflower and the Kansas Attorney General, and the Commission’s decision to award the licenses to Sunflower and TRAK East. The Commission ruled the letter raised no issues over which it had jurisdiction. Then, pursuant to K.S.A. 1988 Supp. 74-8815(j), the Commission granted licenses to Sunflower and TRAK East, conditioned upon the filing of final loan documents, closing of the loan, the posting of a surety bond, and the submission to the Commission of copies of all contracts executed by the applicants.
On July 29, 1988, the Commission denied licenses to all other competing applicants. On August 4, 1988, the executive director of the Commission sent letters billing additional KBI investigative costs to license applicants, including $58,864.88 to WCEDC. (This included $27,431.20 for agent salaries, $16,003.63 for travel costs, and $15,430.05 for agency administrative expenses.) Similar letters were sent to the other applicants. KRM and WCEDC filed this appeal on August 19, 1988, raising four issues. Additional facts will be developed where pertinent.
I. KBI INVESTIGATIVE REPORTS
The 1988 Kansas Legislature amended K.S.A. 1987 Supp. 74-8804 to allow the Commission to obtain background investigative reports on each licensure applicant. K.S.A. 1988 Supp. 74-8804 provides:
“(n) The commission may receive from the Kansas bureau of investigation or other criminal justice agencies such criminal history record information (including arrest and nonconviction data), criminal intelligence information and information relating to criminal and background investigations as necessary for the purpose of determining qualifications of licensees of and applicants for licensure by the commission. Disclosure or use of any such information received by the commission, or of any record containing such information, for any purpose other than that provided by this subsection is a class A misdemeanor and shall constitute grounds for removal from office, termination of employment or denial, revocation or suspension of any license issued under this act. Nothing in this subsection shall be construed to make unlawful the disclosure of any such information by the commission in a hearing held pursuant to this act.
“(o) The commission, in accordance with K.S.A. 75-4319 and amendments thereto, may recess for a closed or executive meeting to receive and discuss information received by the commission pursuant to subsection (n) and to negotiate with licensees of or applicants for licensure by the commission regarding any such information.”
Pursuant to this amendment, the Commission recessed into executive session and received information from KBI background investigations of the applicants. Principals of most applicants were subsequently summoned into executive sessions to discuss these background reports. However, WCEDC’s principals were neither summoned to discuss their background reports nor granted a meeting. KRM and WCEDC requested but were denied access to the KBI investigative reports without receiving an explanation by the Commission for the denial. However, from the record on appeal, it appears that the Commission’s policy was to keep the KBI reports confidential and only reveal portions of these reports to the various applicants interviewed in executive sessions. It is appellants’ contention that the Commission’s refusal to disclose these KBI investigative reports violates provisions of the Act, legislative intent, and their constitutional due process rights.
Statutory basis for disclosure
It is the Commission’s position that since the Act imposes penalties for disclosure of KBI investigative reports, its disclosure of any information contained within the reports is prohibited. In addition, the Commission argues that its disclosure of any information contained in the criminal investigation records of any law enforcement agency is also prohibited by the Kansas Open Records Act (KORA), K.S.A. 45-215 et seq. We disagree with the Commission’s narrow interpretation of the acts.
Though the KORA is a general act which requires the records of public agencies to be open to the public, it does not require a public agency to disclose all of the information contained in its records to the public. K.S.A. 1988 Supp. 45-221(a)(10)(A)-(E) specifically provides that a public agency cannot be compelled to disclose criminal investigation records unless an action is first brought for that purpose and the court finds disclosure is in the public interest. However, the statute specifically prohibits the court from requiring the public agency to disclose its criminal investigation records if disclosure would: (1) interfere with prospective law enforcement action; (2) reveal the identity of confidential sources or undercover agents; (3) reveal confidential investigative techniques or procedures; or (4) endanger the life or physical safety of any person.
It is important to note that the KORA defines “criminal investigation records” as records of an investigatory agency or criminal justice agency compiled in the process of “preventing, detecting or investigating violations of criminal law.” K.S.A. 45-217(b). (Emphasis supplied.) The KORA statutory exemption of criminal investigation information covers records related to the investigation of specific crimes or prospective law enforcement action, such as interviews with witnesses, affidavits, and notes and reports of investigative officers. See Frederickson, Letting the Sunshine In: An Analysis of the 1984 Kansas Open Records Act, 33 Kan. L. Rev. 205, 243 (1985).
The Kansas Parimutuel Racing Act, K.S.A. 1988 Supp. 74- 8804(n), allows the Commission to receive from the KBI or other criminal justice agencies “such criminal history record information (including arrest and nonconviction data), criminal intelligence information, and information relating to criminal and background investigations as necessary for the purpose of determining qualifications of licensees of and applicants for licensure by the commission.” The amendment also allows the Commission to recess into executive or closed session either to receive the background reports or to “negotiate” with potential licensees regarding the information. The data obtained through the law enforcement investigations supplements information provided by the applicants to the Commission. The statute clearly provides that the information contained in the background investigations may be disclosed by the Commission at any hearing held pursuant to the Act, and provides penalties only for disclosure for any other purpose.
We acknowledge that the KORA contains the legislative statement that it is public policy for the public records of this state to be open for inspection by any person. K.S.A. 45-216. Harris Enterprises, Inc. v. Moore, 241 Kan. 59,63, 734 P.2d 1083 (1987). However, contained in the KORA is a restriction upon public access to certain law enforcement information. A plain reading of K.S.A. 1988 Supp. 74-8804(n) indicates legislative intent to make both receipt and disclosure of information contained in background reports of the law enforcement agencies obtained for the Commission discretionary with the Commission. The statute provides that the information contained in background investigations may be discussed with license applicants at closed meetings or through regular Commission hearings.
The Kansas Open Records Act is a general act that allows the courts to order disclosure of a public agency’s criminal investigation reports, with certain stated exceptions. The Kansas Parimutuel Racing Act is a specific act that allows the Commission to disclose the substance of criminal investigation reports when determining the qualifications of applicants for licenses. The Kansas Parimutuel Racing Act does not require the court to determine whether the public interest would be served by disclosure of the information contained in the law enforcement agency’s report to the Commission, but gives the Commission the right to make that decision. Even though the narrow issue here is disclosure of the information contained in the investigative reports to appellants, the subjects of the reports, we also answer the broader question of the power of the Commission to disclose the reports not only to the applicants, but also to the public.
It is the duty of the court to reconcile different statutory provisions so as to make them consistent, harmonious, and sensible. NEA-Wichita v U.S.D. No. 259, 225 Kan. 395, 399, 592 P.2d 80 (1979) (citing Garden City Educators’ Ass’n v. Vance, 224 Kan. 732, 585 P.2d 1057 [1978]). General and special statutes should be read together and harmonized whenever possible, but to the extent a conflict between them exists, the special statute will prevail unless it appears the legislature intended to make the general statute controlling. Board of Park Commissioners v. Board of County Commissioners, 206 Kan. 438, Syl. ¶ 1, 480 P.2d 81 (1971).
The Commission incorrectly determined that written disclosure of any of the information contained in the background investigations in an executive session or at a regular Commission hearing violated the law. Likewise, appellants’ claim that the legislature removed all restraints of the KORA on the Commission when it enacted the Parimutuel Racing Act is incorrect. Subject to specified restrictions, disclosure of KBI investigative reports to racing license applicants is permitted both under K.S.A. 1988 Supp. 74-8804 (n) and (o) and under the KORA. The Commission may but is not required to disclose information contained in the law enforcement agency’s report that it determines is in the public interest if disclosure of that information does not violate the provisions of K.S.A. 1988 Supp. 45-221(a)(10)(A)-(E) by: (1) interfering with prospective law en-. forcement action; (2) exposing the identity of a confidential source or undercover agent; (3) revealing a confidential investigative technique or procedure not known by the applicant; or (4) endangering the life or safety of a person. Therefore, the Commission’s decision to disclose the substance of the reports only to certain applicants in executive sessions was one of its options under the law.
Due process
Appellants argue that the Commission’s refusal to disclose the KBI background investigations violated their due process rights under the Kansas and United States Constitutions. Initially, our analysis of this due process claim requires us to examine the nature of an applicant’s interest in the grant of a license under the Act. The Fourteenth Amendment to the United States Constitution provides that no state can “deprive any person of life, liberty or property, without due process of law.” Section 18 of the Bill of Rights of the Kansas Constitution provides that “[a]ll persons, for injuries suffered in person, reputation or property, shall have remedy by due course of law, and justice administered without delay.”
Appellants claim that their license applications created both a protected property and liberty right in being awarded the licenses. When an interest involving life, liberty, or property is implicated, due process considerations apply. However, a protected due process right must encompass an interest recognized by the Constitution. Harrison v. Long, 241 Kan. 174, 178, 734 P.2d 1155 (1987) (citing Sinclair v. Schroeder, 225 Kan. 3, 8, 586 P.2d 683 [1978]). To prevail on their due process claim, appellants must show that they possess a definite liberty or property interest and that this interest was abridged, under color of state law, without appropriate process. See Board of Regents v. Roth, 408 U.S. 564, 569-79, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972).
To establish a property interest in a particular benefit, appellant must have a “legitimate claim of entitlement to it.” Board of Regents v. Roth, 408 U.S. at 577. A person’s interest in a benefit becomes a property interest for due process purposes if there are “rules or mutually explicit understandings” that support the claim of entitlement to the benefit and that the person may invoke at a hearing. Perry v. Sindermann, 408 U.S. 593, 601, 33 L. Ed. 2d 570, 92 S. Ct. 2694 (1972). Without the existence of such rules or understandings, the person has only an abstract desire for or a unilateral expectation of the benefit. Board of Regents v. Roth, 408 U.S. at 577.
In support of the claim that an applicant for a license under the Act has a property interest in the granting of the license, appellants cite Rydd v. State Board of Health, 202 Kan. 721, 451 P.2d 239 (1969). A careful analysis of Rydd demonstrates that it does not bear the “striking similarity” to this case claimed by appellants. Rydd involved the State Board of Health’s denial of the appellant’s application for state licensure of a group day care home without notice or a hearing. The Board’s reason for denial of the license was that the applicant would “not be able to give the proper amount of timé” to the children nor “be of the proper temperament for looking after children.” 202 Kan. at 723.
Determining that Rydd’s due process rights had been violated by the lack of notice and hearing, we observed that the license for a day care center was within the category of licenses which the State must grant if the applicant meets certain minimum requirements. We further noted that similar results had been reached in other cases involving the denial of licenses to practice law, an accountant’s license to practice before the United States Board of Tax Appeals, $rid a license to conduct an employment agency based on the applicants’ personal unfitness. 202 Kan. at 726-28, and cases cited therein. Then, after characterizing the denial of the licensure as' based on an adjudication of the applicants’ individual fitness and character, we held that procedural due process requires notice and an opportunity to be heard “before [an applicant] may be denied a license on the ground of personal unfitness.” 202 Kan. at 730.
Here, the denial of the license to the appellants was not premised on the applicants’ unfitness of character. More importantly, the license sought in Rydd belongs to that category of licenses which the State must grant if the applicant meets certain minimum requirements. In Rydd, the applicant for the day care license had a legitimate claim of entitlement to the license, assuming she met the statutory requirements for licensure. In contrast, here, the applicants are competing for licensure and the statute gives the Commission broad discretion to grant or deny a license to any or all of the applicants, even if the applicants have complied with statutory requirements. K.S.A. 1988 Supp. 74-8813(e) clearly provides:
“If an application is found to be in compliance and the commission finds that the issuance of the license would be within the best interests of horse and greyhound racing within this state ... as determined solely within the discretion of the commission, the commission may issue an organization license to the applicant.” (Emphasis supplied.)
In a recent case, Curtis Ambulance v. Shawnee Cty. Bd. of Cty. Com’rs, 811 F.2d 1371 (10th Cir. 1987), the Tenth Circuit Court of Appeals refused to recognize that a disappointed low bidder for a county ambulance contract had a property interest in receiving the contract. As that court noted, state law gave the board of county commissioners broad discretion in rejecting any and all bids. Since the appellant could point neither to any state law or mutually explicit understandings giving rise to a legitimate claim of entitlement to an award of the contract, nor to any local or state rules “which sufficiently circumscribe the Board’s authority to award the contract in dispute,” Curtis had only a “unilateral expectation” of receiving the ambulance contract. 811 F.2d at 1384-85.
Since the discretion of the Commission to grant a license to conduct racing activities is similarly unrestricted by 74-8813, no applicant can claim an entitlement or property interest in acquiring such a license. The choice of one applicant over another or the decision not to issue a license to any applicant is fully discretionary and is limited only by the arbitrary and capricious standard of K.S.A. 1988 Supp. 74-8813(v) and 74-8815(m).
Appellants also claim they were entitled to due process protection because they possess a protected liberty interest. The concept of “liberty” is broad and includes the freedom to work and the protections of the person’s good name. See Board of Regents v. Roth, 408 U.S. at 573. A person may be deprived of a “liberty” interest without due process if that person’s standing in the community is damaged; if his reputation, honor, or integrity are questioned; or if a stigma or other disability is imposed upon him which forecloses his freedom to obtain and hold another job. Sinclair v. Schroeder, 225 Kan. 3, 9, 586 P.2d 683 (1978).
In support of their claim of infringement upon their liberty interest, appellants note comments in the press regarding the KBI investigations and one comment made by the Chairman of the Racing Commission regarding the confidentiality of the KBI reports. Appellants then cite an Alabama statute which appears to provide that Alabama would deny licenses to appellants based on the denial of a similar license by the Kansas Racing Commission. Nothing in the public record has revealed any stigma to appellants as a result of the licensure process. The Commission made no finding of unfitness and, in fact, most members commented on the record about the excellent quality of all the applicants. Further, since the Commission had the discretion not to issue any license, appellants’ failure to obtain a discretionary Kansas license and the possibility that they may be precluded from receiving a racing license in another state does not demonstrate appellants were deprived of a protected liberty interest.
Appellants have failed to show either a protectable property or liberty interest under the Act which entitles them to due process protections. We note that a similar result was reached in Medina v. Rudman, 545 F.2d 244 (1st Cir. 1976), cert, denied 434 U.S. 891 (1977). In Medina, plaintiff instituted a civil rights action against the New Hampshire State Greyhound Racing Commission and the state attorney general after her application to participate in the ownership of an outstanding greyhound license was denied. In affirming the lower court’s dismissal of the complaint, the First Circuit Court of Appeals distinguished those license cases which involve “broadly shared privileges essential in the pursuit of earning a livelihood,” 545 F.2d at 249-50, and commented on the rationale behind the broad discretion granted to the agency empowered to regulate the unique enterprise of racing:
“[R]acing licenses have not been viewed by the New Hampshire courts as open to all persons who meet prescribed standards. Rather they are treated as discretionary with the racing Commission. The statute says only that the Commission ‘may’ issue a license if satisfied that all provisions of law and its rules and regulations have been and will be complied with. NH RSA 284:16-a (Supp. 1975). Referring to a horse racing license, the New Hampshire Supreme Court has rejected a claim that once an applicant complies with the statutes and meets all requirements, the commission had no discretion to withhold a license. North Hampton Racing & Breeding Assoc. v. New Hampshire Racing Commission, 94 N.H. 156, 48 A.2d 472 (1946). The court explained that the state horse racing statute, on which the greyhound racing laws are patterned
‘deals with a private enterprise which, of its nature, is not only privileged, but which presents a social problem properly coming under the exercise and jurisdiction of the police power of the state and which requires strict regulation and supervision.’ Id. at 159, 48 A.2d at 475.
In Ratti v. Hinsdale Raceway, 109 N.H. 270, 272, 249 A.2d 859, 861 (1969), the court said that racetracks were permitted by the state to raise revenue, and that regulation allowed tracks to be run by private parties while guarding against ‘whatever social evils may be involved.’
“We think that New Hampshire, in its greyhound licensing laws, rather than creating a general entitlement in favor of all persons who qualify, has indicated merely that the Commission may issue licenses ‘at will’. [Citations omitted.] We concluded, therefore, that Mrs. Medina’s desire to participate in the ownership of a greyhound parimutuel track did not enjoy, either explicitly or implicitly, a protected status under New Hampshire law, and was not on that theory, a ‘liberty’ or ‘property’ interest.” 445 F.2d at 251.
Further indicating that the legislature did not intend that an application under the Act created a liberty or property interest, K.S.A. 1988 Supp. 74-8815(1) provides:
“The refusal to renew a facility owner license or a facility manager license shall be in accordance with the Kansas administrative procedure act and shall be subject to review under the act for judicial review and civil enforcement of agency actions.”
Here, the legislature clearly recognized that, once the facility owner license or the facility manager license is issued, the holder of that license has a property right and, if the Commission refuses to renew that license, the holder has a protected right to notice and a due process hearing.
We recognize there are instances where the interest of an applicant for licensure rises to the level of a constitutionally protected property or liberty interest. Those rights evolve where state laws provide that a license shall be conferred on those who meet specific minimum standards. Here, the Kansas Parimutuel Racing Act creates no similar entitlement. Licenses issued by the Commission under the Act were never intended to be issued to all persons who meet prescribed standards. Instead, the legislature stated that the issuance of the licenses was discretionary with the Commission. The statute merely states that the Commission ‘may issue a license if satisfied that the applicant has complied with the provisions of the Act and that the issuance of a license would be in the best interests of horse and greyhound racing within this state from the standpoint of both the public interest and the horse and greyhound industry, as determined solely within the discretion of the Commission. The legislature intended that, even where one or all of the applicants meet the requirements, the Commission has discretion to withhold a license. Therefore, appellants’ claim fails to establish a property or liberty interest.
II. JURISDICTION TO CONSIDER ALLEGED CONFLICT OF INTEREST
Appellants next contend that the Commission erred when it ruled it lacked jurisdiction to consider an alleged conflict of interest involving the Attorney General and a principal of Sunflower Racing. On July 9, 1988, the Commission voted to grant conditional organizational and facility licenses to Sunflower and TRAK East and requested its counsel to draft an order containing findings of fact and conclusions of law. On July 15, 1988, appellant KRM submitted a letter to the Commission, alleging improprieties in the licensing process, and requested the letter be filed confidentially. On July 22, 1988, after ruling the letter would be-filed publicly, the Commission had the letter read into the record'and then ruled it had “no jurisdiction” to consider the issues raised.
It is the appellants’ position that the Commission had jurisdiction to hear and decide the allegations raised by the letter under the-doctrine of “primary jurisdiction,” citing Western Kansas Express, Inc. v. Dugan Truck Lines, Inc., 11 Kan. App. 2d 336, 720 P.2d 1132 (1986). We disagree. This doctrine only applies to determine jurisdiction between an agency and a court when both have concurrent jurisdiction over an action and thus is not applicable to this case. The doctrine is invoked when the courts have initial jurisdiction over a claim but when it is likely that the action will require resolution of issues which, under a regulatory scheme, have been placed in the hands of the administrative body. The doctrine usually relates to particular issues in the proceeding rather than the entire proceeding and typically operates through a suspension of the judicial process pending referral qf such issues to the administrative agency.
It is the Commission’s position that, since the appellants raised these issues after the Commission had announced its intention1 to award the conditional licenses to Sunflower and TRAK East, appellants’ July 15 letter constituted a request for review of the licensing decision. Since K.S.A. 1988 Supp. 74-8813(v) provides that any act for judicial review shall be by appeal to the Supreme Court, the Commission determined it had no jurisdiction to consider these issues after it announced its intention to license other applicants.
The Commission failed to note that K.S.A. 1988 Supp. 74-8813(v) provides that the decision on licensure “shall be final upon the grant of a license to one of two or more competing applicants.” Therefore, the Commission’s decision was not final on July 9,when the Commission voted to grant the licenses to Sunflower, and TRAK East. The decision became final on July 22, 1988, when the Commission filed its order. Therefore, the Commission did have jurisdiction to consider the issues raised by appellants’ letter. During oral argument to this court, the Commission conceded, even under its interpretation of the Act, that it retained jurisdiction to determine the issues until it granted the final licenses on July 22, 1988.
In addition, jurisdiction for the Commission to review a license after it has been granted is contained in the Act, specifically K.S.A. 1988 Supp. 74-8813(i), which provides that the Commission “may review an organization license more often than annually upon its own initiative or upon the request of any interested party.” The legislature intended that the Commission have continuing jurisdiction to review a license if there are claims that the license holder has failed to comply with all the provisions of the law or the Commission’s rules and regulations, or has failed to meet the statutory requirements for the issuance of a license. This statutory authority makes such review discretionary with the Commission. Therefore, the Commission does indeed have statutory jurisdiction to consider issues concerning the qualifications of an applicant for a license raised after the order granting the license becomes final.
We now must consider the substance of appellants’ July 15 letter in which KRM alleged a conflict of interest between Attorney General Robert T. Stephan and a principal of Sunflower, R. D. Hubbard; bias on the part of Assistant Attorney General Janet A. Chubb; an improper connection between Sunflower and a funding source identified as “Delaware North”; and that the appellees had been “whitewashed” and the appellants “blackwashed” in the licensing process. Appellants requested a second background check to be performed by the Kansas Highway Patrol, an opportunity to review the KBI investigations, an opportunity to present evidence, an identification of the source of all loans, an examination into the “Delaware North” entity, the removal of Assistant Attorney General Chubb, and a delay of the final decision. After Chairman Alfred G. Schroeder commented that the letter appeared to be an attack on the successful applicants, the Commission ruled that the letter raised issues not under its jurisdiction and that it was not in a position to take further action. On appeal, in their briefs, appellants have chosen to address only the alleged conflict of interest.
The alleged conflict stems from the fact that a 50% shareholder of Sunflower, Inc., R. D. Hubbard, contributed $10,000 to settle a sexual harassment suit involving the Kansas Attorney General, Robert Stephan, and that Hubbard and Stephan were partners in a business venture. As a result of the state-wide media coverage, the general public was aware of Hubbard’s contribution to the settlement of the lawsuit against the attorney general in 1986. Information that Hubbard and Stephan were partners in a business venture is also contained in various public records. We observe that, although facts regarding the business venture were public record and the settlement of the sexual harassment suit had received extensive publicity, appellants sat through eleven months of hearings and chose not to raise the issue until one week after the Commission announced that it would award the licenses to other applicants.
We have reviewed the record on appeal and find that the Commission was notified of Hubbard’s personal and business relationship with the attorney general when Hubbard disclosed the payment and the business connection to the KBI during its background investigation of Hubbard and later when Hubbard appeared before the Commission during an executive session. The record shows that the Commission carefully considered the connection between Hubbard and the attorney general after it was disclosed to the Commission in September 1987, and determined that the relationship did not affect the merits of Sunflower’s application. We have found nothing in the record to indicate that the Commission’s determination of this issue was incorrect.
We must now recall that the Commission initially concluded that provisions of the Open Records Act and the Parimutuel Racing Act precluded disclosure of any information contained in the KBI report. Had the Commission avoided this narrow interpretation of the two acts and informed both the appellants and the public that it had previously considered the conflict of interest issues raised in KRM’s letter during executive sessions, it would have been unnecessary for the appellants to raise the conflict of interest issue on appeal. Release of this information by the Commission to the public would not have violated the restrictions of the KORA and would have made both the appellants and the public aware of the depth of the Commission’s investigation of Hubbard’s background.
Finally, we must also reject appellants’ allegation that, since the attorney general is the statutory head of the KBI, this relationship tainted the KBI investigations as well as the conduct of the two assistant attorneys general assigned as counsel to the Commission. We note that appellants rely on an “appearance of impropriety” argument and present no facts to substantiate their allegations, specifically how the alleged bias influenced any of the five Commission members. Appellants have failed to recognize that the legislature specifically directed the attorney general to appoint “not more than two assistant attorneys general who shall be assigned to assist the commission in all matters.” K.S.A. 1988 Supp. 74-8809. In addition, pursuant to the Kansas Code of Professional Responsibility, those assistant attorneys general who were appointed to assist the Commission are solely responsible to the Commission. We find this contention to be without merit.
III. RETROACTIVITY OF 1988 AMENDMENT REQUIRING APPLICANTS TO PAY ADDITIONAL FEES
In January 1988, when appellants’ applications were filed, both K.S.A. 1987 Supp. 74-8813 and K.S.A. 1987 Supp. 74-8815 provided that the applications be accompanied by a nonrefundable fee of $5,000 and further provided that if a facility owner applicant planned to construct a racetrack, the applicant must deposit $500,000 with the Commission. K.S.A. 1987 Supp. 74-8813(a) and 74-8815(c) were amended effective April 7, 1988, as follows:
“If the application fee is insufficient to pay the reasonable expenses of processing the application and investigating the applicant’s qualifications for licensure, the commission shall require the applicant to pay to the commission, at such times and in such form as required by the commission, any additional amounts necessary to pay such expenses. No license shall be issued to an applicant until the applicant has paid such additional amounts in full, and such amounts shall not be refundable except to the extent that they exceed the actual expenses of processing the application and investigating the applicant’s qualifications for licensure.” K.S.A. 1988 Supp. 74-8813(a) and 74-8815(c).
The background investigations began on March 7, 1988. On August 4,1988, the Commission notified WCEDC and KRM that the additional cost for background investigations totalled $58,864.88 and requested payment of this amount. Only the costs incurred in investigations conducted after the effective date of the amendment were included in the amount charged.
It is appellants’ contention that the assessment of additional fees is an impermissible retroactive application of the 1988 amendment which disturbs rights vested before the effective date of the amendment. Appellants reason that the amendment may only be applied to those who submitted applications to the Commission after the effective date of the amendment. The Commission argues that the applicants’ interest in the license fees is not a vested right and, in the alternative, that the assessment of costs incurred after the effective date of the Act is a prospective application of the amendment.
A retroactive law is one which takes away or impairs vested rights acquired under existing laws, or creates a new obligation and imposes a new duty, or attaches a new disability, in respect to transactions or considerations already past. 73 Am. Jur. 2d, Statutes § 348, p. 486. A statute operates prospectively unless its language clearly indicates a legislative intent that it operate retroactively. This rule is normally applied when an amendment to an existing statute or a new statute is enacted which creates a new liability not existing before under the law or which changes the substantive rights of the parties. Davis v. Hughes, 229 Kan. 91, 101, 622 P.2d 641 (1981) (citing Nitchals v. Williams, 225 Kan. 285, 590 P.2d 582 [1979]). However, when a change in the law merely affects the remedy or law of procedure, all rights of action will be enforced under the new procedure without regard to whether they accrued before or after such change of law. Nitchals v. Williams, 225 Kan. at 291.
The act of filing an application for a racing license fails to generate any vested rights as long as the application is still pending. Specifically, the appellants had no vested rights in the amount of the application fee while their applications were pending before the Commission. Furthermore, the statute is procedural and merely sets out the steps an applicant must follow when requesting a license from the Commission. We observe that, prior to the effective date of the amendment, any of the applicants could have withdrawn its application and escaped the additional cost. Instead, each applicant chose to proceed in the hope of obtaining a license. Finally, since the appellants were only charged for costs incurred after the effective date of the amendment, the application of the amendment was prospective.
Arbitrary and Capricious
Appellants claim that the Commission’s decision to award the organization license to TRAK East and the facility manager and owner license to Sunflower was arbitrary, capricious, and an abuse of discretion. It is important to recognize that the legislature has limited our scope of review of grants or denials of original licenses under the Act.
K.S.A. 1987 Supp. 74-8813 and 74-8815 originally provided that denials of organization as well as facility manager and owner licenses would be governed by the Kansas Administrative Procedure Act, K.S.A. 1987 Supp. 77-501 et seq. This language was repealed in 1988, and 74-8813 and 74-8815 were amended with identical language as follows:
“The grant or denial of an original organization license shall not be subject to the Kansas administrative procedure act. Such grant or denial shall be a matter to be determined in the sole discretion-of the commission, whose decision shall be final upon the grant of a license to one of two or more competing applicants without the necessity of a hearing bn the denial of a license to each other competing applicant. Any action for judicial review of such decision shall be by appeal to the supreme court in accordance with the act for judicial review and civil enforcement of agency actions, except that the scope of review shall be limited to whether the action of the commission was arbitrary or capricious or constituted an abuse of discretion. All competing applicants for the organization license shall be parties to such appeal. Any such appeal shall have priority over other cases except those having statutory priority.” K.S.A. 1988 Supp. 74-8813(v) and 74-8815(m).
The legislative intent in enacting this amendment is clearly to expedite any appeals of licensing decisions so that construction of the racing facilities can proceed in a timely manner. This intent is further demonstrated by the legislature’s narrowing of our original scope of review under the Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-621(c), which provides:
“(c) The court shall grant relief only if it determines any one or more of the following:
“(1) The agency action, or the statute or rule and regulation on which the agency action is based, is unconstitutional on its face or as applied;
“(2) the agency has acted beyond the jurisdiction conferred by any provision of law;
“(3) the agency has not decided an issue requiring resolution;
“(4) the agency has erroneously interpreted or applied the law;
“(5) the agency has engaged in an unlawful procedure or has failed to follow prescribed procedure;
“(6) the persons taking the agency action were improperly constituted as a decision-making body or subject to disqualification;
“(7) the agency action is based on a determination of fact, made or implied by the agency, that is not supported by evidence that is substantial when viewed in light of the record as a whole, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this act; or
“(8) the agency action is otherwise unreasonable, arbitrary or capricious.”
Pursuant to the legislature’s amendment to the Act, our review is limited to a determination only of whether the Commission’s decision was “arbitrary or capricious or constituted an abuse of discretion.” K.S.A. 1988 Supp. 74-8813(v) and 74-8815(m).
Under our limited scope of review of the Commission’s grant of a license, the arbitrary and capricious test relates to whether that particular action should have been taken of is justified, such as the reasonableness of the Commission’s exercise of discretion in reaching the determination, or whether the agency’s action was without foundation in fact. Pork Motel, Corp. v. Kansas Dept. of Health & Environment, 234 Kan. 374, 381, 673 P.2d 1126 (1983). Arbitrary or capricious conduct may be shown where an administrative order is not supported by substantial evidence. U.S.D. No. 461 v. Dice, 228 Kan. 40, 50, 612 P.2d 1203 (1980) (citing Neeley v. Board of Trustees, Policemen's & Firemen's Retirement System, 212 Kan. 137, Syl. ¶ 3, 510 P.2d 160 [1973]). “Substantial evidence” is evidence which possesses both relevance and substance, and which furnishes a substantial basis of fact from which the issues can be reasonably resolved. In re Petition of City of Shawnee for Annexation of Land, 236 Kan. 1, 21, 687 P.2d 603 (1984).
This court may not try the case de novo or substitute its judgment for that of the administrative agency. In re Certif. of Need App. by Community Psychiatric Centers, Inc., 234 Kan. 802, Syl. ¶ 2, 676 P.2d 107 (1984). A rebuttable presumption of validity attaches to all actions of an administrative agency and the burden of proving arbitrary and capricious conduct lies with the party challenging the agency’s actions.
Appellants contend initially that the order in question is arbitrary and capricious since it is not based on sufficient findings of fact. Appellants cite the following language from Blue Cross & Blue Shield v. Bell, 227 Kan. 426, 607 P.2d 498 (1980):
“An administrative agency must assume the responsibility of expressing the basic facts on which it relies with sufficient specificity to convey to the parties, as well as to the court, an adequate statement of the facts which persuaded the agency to arrive at its decision. Thus, there must be findings on all applicable standards which govern the agency’s determination, and the findings must be expressed in language sufficiently definite and certain to constitute a valid basis for the order, otherwise the order cannot stand. [Citation omitted.] Findings of ultimate fact expressed in the language of the applicable statute are not enough in the absence of basic findings to support them.” 227 Kan. at 433-34.
In Blue Cross, the applicable statute required the agency to make specific findings when denying a filing requesting an insurance rate increase. Similarly, in In re Tax Appeal of Horizon Tele-Communications, Inc., 241 Kan. 193, 734 P.2d 1168 (1987), the applicable statute required the Kansas Board of Tax Appeals to make written findings forming the basis for its determinations. We held that, although a more detailed and specific order would have been preferable, the order did contain sufficient facts and the record contained sufficient evidence supporting the agency’s conclusions. 241 Kan. at 197.
Here, the Act has no requirement that the Commission make written findings of fact. Specific findings of fact by an administrative agency, while desirable in contested matters, are not indispensable to a valid decision in the absence of a statute or rule requiring them. Olathe Hospital Foundation, Inc. v. Extendicare, Inc., 217 Kan. 546, Syl. ¶ 9, 539 P.2d 1 (1975). The Act does enumerate the qualifications for successful licensure and provides a list of factors which the Commission shall consider in reaching its decision. The Commission’s order demonstrates compliance with the statutory criteria and factors.
We observe that the Commission’s order does not undertake a comparison of the competing applicants; however, there is no statutory requirement to do so. The order emphasizes that two of the primary considerations in awarding the licenses to TRAK East and Sunflower were the proposed dual horse and greyhound facility track and the fact that TRAK East’s principals planned to invest $12.9 million of their own funds toward the project. Although the order could have been more specific, considering the unusual discretion vested in the Commission and considering the record as a whole, the order was supported by substantial evidence.
K.S.A. 1988 Supp. 74-8813(e) authorizes the Commission to grant licenses if it finds that the issuance would be “within the best interests of horse and greyhound racing within this state from the standpoint of both the public interest and the horse or greyhound industry, as determined solely within the discretion of the commission.” For their final point on this issue, appellants contend that, despite the broad authority vested in the Commis sion, the grant of the licenses to TRAK East and Sunflower was an abuse of discretion.
Appellants premise this argument on the allegation that the Commission “disregarded material, knowing misrepresentations and omissions in the conditional licensees’ application.” While we note that appellants have combed the record to discover discrepancies in documents submitted to the Commission, we cannot assume that these discrepancies were “disregarded,” but rather- that the Commission considered them and found them immaterial to their decision.
Appellants rely on K.S.A. 1988 Supp. 74-8813(0(5), which provides that the Commission may suspend or revoke an organization license or impose a civil fine for violations including “providing to the commission any information material to the issuance, maintenance or renewal of the licensee’s license knowing.such information to be false or misleading.” Appellants’ reliance on this provision of the Act is misplaced. The provision does not enable appellants to raise these issues on appeal nor does it, prescribe penalties for violations occurring during the licensing process. Rather, the provision gives the Commission discretion to penalize licensees as it sees fit after it becomes aware of possible violations.
The alleged misrepresentations are as follows:
1. TRAK East stated in its application that it had not been reincorporated or reorganized during the last five years. Appellants point out that an entity known as The Racing Association of Kansas East was incorporated in Johnson County May 1987 and dissolved in January 1988. Thereafter, another entity, The Racing Association of Kansas East was incorporated in Wyandotte County- It is TRAK East’s position that the second entity was separate and distinct, with different incorporators, and that any omission on the application was inadvertent. What appellants fail to- show, in any case, is how the earlier brief incorporation, with dissolution occurring before the corporation conducted any business, could have been material to the application process or material to the Commission’s proper determination of TRAK East as a bona fide nonprofit corporation.
2. Appellants argue that contracts between TRAK East and Sunflower, which it alleges existed before the applications were filed, also affect the nonprofit status of TRAK East as well as the financial projections of Sunflower and TRAK East. Appellants point to a certified audit performed by Arthur Andersen & Co. covering the period July 11, 1986, to December 31, 1987, which indicates that executed contracts may have existed between TRAK East and Sunflower prior to March 1, 1988, which was the date of execution identified by both parties at the time of application. TRAK East and Sunflower maintain the auditors received final drafts of the contracts which were executed on March 1, 1988. Again, although appellants may have discovered a discrepancy in dates, they have not shown how the discrepancy would be material to the licensing decision. Further, since all the documents establishing the alleged inconsistent dates were before the Commission during the licensing process, we can assume the Commission did not consider the discrepancy to be material.
3. Appellants also claim that Sunflower failed to provide documentation for a loan of $1.75 million from Southeast Bank of Miami, Florida, which was guaranteed by Sunflower’s stockholders, as required by K.A.R. 112-3-8(q)(13) and (14). They concede, however, that the loan was disclosed and they do not allege any discrepancy between the disclosure and the documents. Again, the- Commission appears not to have considered this technical noncompliance to be material.
4. Appellants allege that Sunflower knowingly failed to disclose subordinated debt agreements between R. D. Hubbard, Richard J. Boushka, and Sunflower as well as a contract or option to purchase whereby Hubbard acquired 10% of Boushka’s interest in Sunflower. However, an order dated October 28,1988, reveals that all the documents evidencing these transactions were executed after the conditional license was awarded and that each was presented to the Commission and approved in the order.
5. Finally, appellants contend that the awarding of the licenses to TRAK East and Sunflower was an abuse of discretion because appellants were the better applicants. They argue that a comparison of the competing applications demonstrates that the Commission “disregarded the interests of the horse and greyhound industries and the public interest in maximizing charitable returns.” KRM bases this argument on a comparison of all four applicants prepared by one of its principals, Norman Rose, which it claims demonstrates the superiority of their facility over that of the licensees’ in the following particulars: WCEDC, rather than private developers, would own the facility; more charitablé funds would accumulate since WCEDC would receive a greater percentage of gross handle than TRAK East; and WCEDC’s facility would be less expensive and generally more benefits , would devolve on the community than on private developers, .
It must be remembered that the legislature delegated to the Commission the task of selecting licensees from a group of qualified applicants. The legislature presumably vested the Commission with the sole discretion for issuing licenses because of the expertise it possesses in this area. In performing this task, the Commission had to balance many competing interests, which we cannot 'reweigh on appeal. It would have been easier for this court to review the decision below had the Commission’s order provided a, more detailed reasoning for its choice. However, it is clear that the Commission found the personal investment of $12.9 million by the principal shareholders of Sunflower and the proposed dual racetrack facility to be important factors in the licensing decision.
We cannot substitute our judgment for that of the Commission, but may only review its decision to determine whether it was arbitrary, capricious, or an abuse of discretion. Considering our limited scope of review on this issue, it cannot be said that the Commission abused its broad discretion in awarding the licenses to TRAK East and Sunflower. We find the Commission’s grant of the organization license to TRAK East and the facility manager and owner licenses to Sunflower was neither arbitrary or capricious nor an abuse of its discretion.
Affirmed. | [
-108,
-30,
-4,
110,
28,
96,
49,
26,
66,
-5,
-26,
83,
73,
-54,
16,
59,
-54,
63,
80,
107,
-62,
-78,
87,
-30,
-90,
-5,
-103,
-59,
-69,
75,
-4,
86,
72,
48,
-118,
85,
-122,
66,
1,
30,
-114,
10,
10,
81,
-48,
-63,
-70,
111,
50,
91,
17,
15,
-13,
40,
26,
67,
105,
62,
91,
-23,
-63,
-8,
-22,
71,
94,
6,
49,
4,
-68,
-57,
88,
46,
-102,
56,
8,
-56,
67,
-90,
-102,
-28,
107,
-39,
9,
39,
99,
33,
48,
-17,
108,
-124,
14,
91,
31,
-25,
-106,
89,
98,
9,
-106,
-99,
87,
18,
3,
-4,
-21,
-44,
-103,
-4,
-125,
-50,
-112,
-77,
-115,
101,
-118,
23,
-17,
-27,
16,
117,
-64,
-10,
79,
86,
54,
-103,
-35,
-76
]
|
The opinion of the court was delivered by
Lockett, J.:
State Farm Fire & Casualty Co. v. Gordon Finney and Dean Johnson, Case No. 62,711, and Gordon Finney v. Dean Johnson v. State Farm and Casualty Company, Proposed Intervenor, Case No. 62,712, are consolidated for appeal. In the first action, State Farm Fire & Casualty Co. (State Farm) appeals the district court’s finding that an insurer may not maintain a declaratory judgment action to determine if there is coverage for the acts of its insured if the declaratory judgment also decides key factual issues in an underlying tort suit brought against the insured. In the second action, State Farm appeals the district court’s denial of its motion to intervene in the underlying tort suit to stay that action until the declaratory judgment action was decided.
On January 22, 1988, Gordon Finney brought an action in Leavenworth County District Court against Dean Johnson claiming that on July 2, 1987, Johnson shot him with a gun either (1) willfully, wantonly, maliciously, and intentionally or (2) negligently. At the time of the incident, Johnson was insured under a homeowners policy issued by appellant, State Farm. The policy provided coverage for personal liability and medical payments under “coverages L and M,” but contained the following exclusion:
“1. Coverage L and Coverage M do not apply to:
a. Bodily injury or property damage which is expected or intended by an insured.”
After being notified that Finney had filed suit against its insured, State Farm provided Johnson with an attorney. Pursuant to a reservation of rights, State Farm also notified Johnson that, under the policy exclusion, it was denying coverage for intentional or expected acts.
On February 24,1988, State Farm filed a declaratory judgment action asking the district court to determine that there was no coverage under the policy for the acts alleged in the civil tort suit and, therefore, State Farm had no contractual duty to defend Johnson. At a discovery conference, counsel provided for Johnson requested that State Farm’s declaratory judgment action be stayed pending the outcome of the civil tort suit. The district court requested briefs and oral argument. At a subsequent hearing, State Farm argued that the declaratory judgment action should not be stayed because, under its interpretation of our holding in Patrons Mut. Ins. Ass’n v. Harmon, 240 Kan. 707, 732 P.2d 741 (1987), it would be collaterally estopped to raise its policy defense (non-coverage for intentional acts) by a judgment in the civil tort suit.
The district court disagreed with State Farm’s interpretation of Patrons and held that, under Bell v. Tilton, 234 Kan. 461, 674 P.2d 468 (1983), where an insurer provides an attorney to defend its insured in a pending action, while reserving its policy defenses, that attorney’s defense of the action does not estop the insurer from asserting its policy defense in a subsequent civil proceeding. Counsel for Johnson then orally moved to dismiss the declaratory judgment action, contending that a declaratory judgment action cannot be maintained to decide key factual issues to be determined in the underlying tort suit, citing U.S. Fidelity & Guaranty Co. v. Continental Ins. Co., 216 Kan. 5, 531 P.2d 9 (1975), and State Automobile & Casualty Underwriters v. Gardiner, 189 Kan. 544, 370 P.2d 91 (1962). The district court sustained Johnson’s motion and dismissed the declaratory judgment action. State Farm appealed.
State Farm then filed a motion seeking to intervene in the tort action to stay the civil action and to allow the declaratory judgment action to proceed to trial first. Noting that the declaratory judgment action had been dismissed prior to State Farm’s motion to intervene and that, under Bell, a judgment in the civil tort action would not impede State- Farm’s right to protect its interest in a subsequent action, the district judge denied the motion. Despite the district court’s favorable ruling that State Farm would not be estopped to litigate its policy defenses in the civil tort action, State Farm appeals the dismissal of the declaratory judgment and the denial of its motion to intervene in the civil tort action. Although the denial of its motion to intervene in the civil action was originally an issue on appeal, State Farm has abandoned that issue since it was neither addressed in the briefs nor at oral argument. Feldt v. Union Ins. Co., 240 Kan. 108, 112, 726 P.2d 1341 (1986).
It is State Farm’s position that its declaratory judgment action is necessary because our holding in Patrons reversed Bell and precluded State Farm from having its day in court. State Farm framed its first issue as “[wjhether an insurance carrier who is defending an individual in a lawsuit pursuant to a reservation of rights is collaterally estopped to assert policy defenses in a subsequent action when such policy defenses raise essentially the same factual issues decided in the underlying litigation.”
Rejecting State Farm’s position, the district court held Patrons did not overrule Bell. Therefore, we must first review Bell and Patrons. In Bell, plaintiff sued for injuries suffered as a result of a gunshot wound inflicted by an insured. The defendant made a demand on his insurer to defend under his homeowners policy. The insurer provided counsel for the defendant, but informed the insured that, pursuant to a policy exclusion for intentional acts, it was reserving its rights to assert its policy defenses at a later time.
In the tort case, the jury found that the insured had negligently shot and injured the plaintiff and awarded the plaintiff money damages. At a subsequent garnishment proceeding, the insurer disclaimed liability under the policy exclusion for intentional acts of its insured. The plaintiff contended that the insurer was collaterally estopped to assert this defense in the garnishment action. The trial court ruled in favor of the insurer and we affirmed, holding that where an insurance company provides an attorney to defend its insured against a pending action, while reserving its policy defenses, that attorney’s defense of the action does not estop the insurance company from asserting its policy defenses in a subsequent garnishment proceeding. Bell v. Tilton, 234 Kan. 461, Syl. ¶ 1.
The facts were different in Patrons. There, a husband fatally shot his wife. A jury found that the husband had intentionally caused the death of his wife and returned a verdict of voluntary manslaughter. Meanwhile, their son filed a wrongful death action against his father, claiming that the father had negligently caused the death of the mother. The father/husband requested his insurer, Patrons, to defend him under his homeowners policy. Patrons refused to provide an attorney to defend the husband in the civil action and filed a declaratory judgment action denying coverage on three grounds, including a policy exclusion for intentional acts. Prior to a determination in the declaratory judgment action, the wrongful death action proceeded to a jury trial and the judge found as a matter of law that the shooting was negligent. Later, in the declaratory judgment action, the trial court found Patrons had failed to provide its insured an attorney to defend the civil action and to reserve its rights under its policy, and was collaterally estopped by the judgment in the civil action from relitigating the issue of its insured’s intent in a subsequent action. We agreed, finding:
“Because Patrons was in privity with a party, [the insured], in the wrongful death action, it was bound by that judgment. An exception to the rule would allow Patrons, the insurer, to refuse to defend its insured in the original action and, if the insured lost, would allow the insurer to relitigate the same issue against its insured in a subsequent action.” 240 Kan. at 711.
State Farm claims that this statement overruled Bell. This claim ignores our subsequent language in Patrons, which limited that holding to cases where the insurance company refuses to defend its insured. After observing that the interest of the insured and the insurer were adverse in Patrons, we stated:
“In Bell v. Tilton, [citation omitted], there was a conflict of interest between' the insured and the insurer in a civil action. The insurance company hired independent counsel to defend the insured in the civil action and notified the insured that it was reserving its rights under the policy. This procedure protects both the insured’s and the insurer’s interests and rights and eliminates the necessity of multiple suits to determine the same issues. We believe this is the proper procedure to protect the, rights of both parties under their contract.” 240 Kan. at 712. (Emphasis added.)
In Bell, because there was a potential of liability, we found it proper that the insurance company honored its contractual duty to defend its insured while it retained the right to raise the policy defenses later. Any other rule would create an ethical conflict for the insurer by allowing the insurer to defend its insured, and, in the same action, to claim that the insured’s act was excluded from coverage under the insurance contract. Bell and Patrons encourage insurers to fulfill their contractual duty to defend the insured where there may be a legitimate question of coverage. This procedure protects the interest of the insured and the insurer because it does not bind the insurer to the factual determination of the underlying tort action and allows a subsequent action to determine if the insured’s act is covered by the policy. Patrons clearly approves our holding in Bell. Therefore, the trial court properly, found that our determination of the collateral estoppel issue in Patrons was limited to those cases where the insurance company refuses to defend its insured in the civil tort action. Here, since State Farm provided an attorney to defend its insured and reserved its policy defenses, the declaratory judgment action is not necessary to preserve its day in court.
For its second issue, State Farm argues that the district court erred in dismissing its declaratory judgment action. State Farm concedes that there is no absolute right to maintain a declaratory judgment action and that the granting of declaratory relief usually rests in the trial court’s discretion. See U.S. Fidelity & Guaranty Co. v. Continental Ins. Co., 216 Kan. 5, 9, 531 P.2d 9 (1975).
When ruling that a declaratory judgment action may not be maintained to decide key factual issues in an underlying action, the district court relied on two cases: U.S. Fidelity & Guaranty Co. v. Continental Ins. Co., 216 Kan. 9, and State Automobile & Casualty Underwriters v. Gardiner, 189 Kan. 544. Gardiner involved an underlying tort and wrongful death action filed as a result of an automobile accident where the driver of the insured vehicle, Gardiner, was a friend of the insured, Mulder. The insurance policy provided coverage for the insured and anyone driving the car with the insured’s permission.
Denying coverage, the insurer filed a declaratory judgment action alleging Gardiner had driven the insured vehicle without Mulder’s permission. The district court held for the insurance company and we reversed, stating we would not permit the company to obtain by declaratory judgment a predetermination of at least one very cogent issue of the tort actions, since this is not the purpose for seeking relief by a declaratory judgment action. 189 Kan. at 547.
U.S. Fidelity involved a declaratory judgment action seeking determination of insurance coverage between two insurance companies for damages resulting from an automobile accident. The vehicle in question was driven by a friend of the owner’s son. U.S. Fidelity had issued a policy covering a vehicle owned by the driver’s parents. Continental had issued a policy to the owners of the vehicle involved in the accident which excluded coverage for persons driving without the insured’s permission. After the driver of the other car involved in the accident filed a tort action to recover for his injuries, Continental denied coverage pursuant to the policy exclusion.
Subsequently, U.S. Fidelity, the driver, and the driver’s father brought a declaratory judgment action against Continental and the owner of the vehicle. The trial court dismissed the declaratory judgment action, refusing to determine a factual issue which was also a key issue in the underlying tort suit (whether the driver had permission to drive the car), especially since the insurers could be impleaded in the tort action. We affirmed, holding that ordinarily declaratory judgment actions should not be maintained where a question of fact is the main issue or where the object of the action is to try such fact as a determinative issue. 216 Kan. at 10.
In oral argument of the case at bar, State Farm acknowledged that, under the Kansas rule, declaratory judgment actions may not be maintained to decide key factual issues in underlying actions. State Farm argues that, in a proper case, allowing the declaratory judgment to proceed first would promote judicial economy, citing Stout v. Grain Dealers Mutual Insurance Company, 307 F.2d 521 (4th Cir. 1962), and Metro. Property & Liability Ins. Co. v. Kirkwood, 729 F.2d 61 (1st Cir. 1974). In Kirkwood, the First Circuit reasoned that the litigation will proceed with significantly greater efficiency if the declaratory judgment action is tried first. Because the basic issue in the declaratory judgment is not whether there is liability, but whether the insurer’s contractual liability flows from a negligent act or is excluded because the insured’s act was intentional, that issue can be tried directly in the declaratory judgment action. The court noted that trial by jury is available and a decision binds all parties. 729 F.2d at 63. Without commenting on the constitutional right of the insured not to testify in a declaratory judgment action during the pendency of a criminal action or on the fact that in either situation there are two lawsuits—(1) a declaratory judgment to determine coverage under the policy and (2) a civil suit to determine liability of the insured to the plaintiff—the First Circuit found no disadvantage to the plaintiffs in the underlying tort action by maintenance of the declaratory judgment suit.
A more persuasive analysis of this issue is found in Brohawn v. Transamerica Ins. Co., 276 Md. 396, 347 A.2d 842 (1975). Brohawn involved an underlying tort suit for injuries suffered in an assault. The complaint alleged in the alternative that the defendant acted either intentionally or negligently. The defendant’s insurance policy contained an exclusion for intentional acts. Subsequently, the insurer filed a declaratory judgment action alleging that the insured’s acts were intentional and requesting the court to relieve it from its obligation to defend.
After the circuit court denied declaratory relief and ordered the insurer to defend, the insurer appealed. The Court of Special Appeals reversed, holding that the issue of intent should be decided first in the declaratory judgment suit and that the determination of this issue would be res judicata in the pending tort suit, leaving only the question of damages to be decided in the tort suit. The Maryland Court of Appeals granted the insured’s writ of certiorari and reversed.
Initially, the court noted that, in certain circumstances, maintenance of a declaratory judgment action prior to trial of the underlying tort action could be a valuable means of resolving policy questions “where those questions are independent and separable from the claims asserted in the pending suit.” For example, where an insurer claims lack of coverage because of the insured’s failure to comply with contract provisions or to pay premiums, a declaratory judgment action would ordinarily be appropriate. 276 Md. at 405.
The court distinguished the cases where the issues to be resolved in the declaratory judgment action would be fully resolved in the tort action and elaborated on factors for a court to consider when deciding whether to grant declaratory relief in a particular case. It determined that, if the granting of the judgment in the declaratory judgment action would unduly inconvenience or burden the parties, or allow one party to wrest control of the litigation from another and cause a confusing alteration of the burden of proof, the court should refuse to grant the relief sought. By determining the question of whether the injuries were intentionally inflicted in the declaratory judgment action, the court would allow the defendant’s insurer, not the plaintiff in the tort action, to control the litigation. 276 Md. at 406.
Hartford Ins. Group v. District Court, 625 P.2d 1013 (Colo. 1981), is also instructive. In Hartford, the underlying tort suit involved a vehicular accident between two tractor-trailer trucks. After suit alleging negligence was filed by the driver of one of the trucks against the other driver and his employer, Hartford, the employer’s insurer, indicated it would provide a defense pursuant to a reservation of rights. The policy in question excluded intentional acts and acts by an employee outside the scope of the employer’s permission.
Subsequently, Hartford filed a declaratory judgment action asserting it was not obligated under the policy since the driver’s acts were intentional and outside the scope of authority or permission as extended by the employer. The trial judge ordered a stay of the declaratory judgment action, pending the outcome of the underlying tort suit. Hartford then filed an original proceeding in the Supreme Court of Colorado requesting an order prohibiting the stay. The Supreme Court denied the request. Rejecting Hartford’s argument that maintenance of the declaratory judgment action would promote judicial economy, the Colorado Supreme Court agreed that an insurer could, in some cases, seek a declaration of its contractual responsibility of defense and indemnification in connection with a claim filed against a person arguably qualifying as an “insured.” However, here, the resolution of the declaratory action first might well place the insured in the dilemma of defending the coverage issue by establishing that the conduct, at most, amounted to simple negligence. Defending the declaratory action on that basis would pose a substantial risk that the insured would unduly compromise its defense in the negligence action. In addition, a finding in the declaratory action that the insured’s action was willful and wanton could cause the plaintiff in the negligence action to amend his complaint to assert willful and wanton conduct against the defendant and invoke the doctrine of collateral estoppel. 625 P.2d at 1016.
Brohawn and Hartford demonstrate that prejudice to the insured may result by requiring the insured to litigate the key issues in the underlying suit in a declaratory judgment action against his own insurance company. First, the insured may be bound by the declaratory judgment suit by principles of collateral estoppel. Second, since the issue in the declaratory judgment action is whether the insured’s acts were intentional or negligent, the insured may be prejudiced by being forced into claiming the acts were merely negligent to insure coverage under the insurance policy.
State Farm argues that a factual determination of the issues in a declaratory judgment action does not prejudice the insurer or the insured. We disagree. The duty to defend and the duty to cover are not necessarily coextensive. The duty to defend arises whenever there is a “potential of liability” under the policy. Spruill Motors, Inc. v. Universal Underwriters Ins. Co., 212 Kan. 681, 512 P.2d 403 (1973). The insurer determines if there is a potential of liability under the policy by examining the allega tions in the complaint and considering any facts brought to its attention or which it could reasonably discover. Where a petition alleges an act that is clearly not covered, for example, that the defendant acted willfully and intentionally, a declaratory judgment would then be proper to determine the issue of coverage, since there would no “potential of liability” under the policy for intentional acts. Where the complaint alleges both a negligent and intentional act, these alleged facts give rise to the potential for liability and the duty to defend arises. 212 Kan. at 686.
Here, if it is determined in the underlying civil tort suit that the insured acted neither negligently, willfully, nor intentionally, there would be no need for a second action to determine if there was coverage under the policy. If the tort suit determines that the insured acted negligently, the insurer would not be collaterally estopped to litigate the intent issue in a subsequent proceeding. The trial court correctly held this procedure protects the rights of all parties.
Affirmed. | [
-80,
-4,
-3,
-84,
24,
98,
40,
26,
119,
-94,
38,
-45,
-65,
-30,
5,
47,
-2,
41,
69,
106,
-45,
-93,
55,
-30,
-42,
-69,
-45,
-59,
-78,
95,
108,
-33,
28,
96,
-118,
-59,
-26,
2,
-123,
-108,
-126,
13,
-71,
-19,
-39,
-62,
48,
123,
84,
79,
21,
-113,
-29,
34,
25,
-61,
105,
40,
-54,
-95,
-47,
-15,
-82,
-123,
125,
1,
-69,
2,
-102,
39,
-6,
58,
-112,
-79,
8,
-24,
114,
-90,
-110,
52,
43,
25,
40,
102,
99,
0,
49,
-49,
-20,
-88,
14,
31,
-113,
-121,
-102,
24,
51,
10,
-74,
-97,
112,
52,
-124,
124,
-19,
29,
31,
109,
5,
-50,
-108,
-93,
-53,
112,
18,
3,
-18,
23,
-92,
117,
-49,
-88,
93,
-57,
118,
23,
22,
-52
]
|
The opinion of the court was delivered by
Miller, C.J.:
This is an appeal by the State from an order of the Barton County District 'Court dismissing the information in a criminal case. The State may appeal such an order as a matter of right. K.S.A. 1987 Supp. 22-3602(b)(l). Before us in this matter is a question of first impression; Whether the 180-day period of limitation for trial of a criminal case, contained in K.S.A. 22-4303 of the Uniform Mandatory Disposition of Detainers Act, continues in effect after the prisoner is released from confinement.
The Uniform Mandatory Disposition of Detainers Act, K.S.A. 22-4301 et seq., deals with intrastate detainers. K.S.A. 22-4301 provides in substance that any person who is imprisoned in a penal institution of this state may request final disposition of any untried indictment, information, or complaint pending against him in Kansas. The prisoner’s request must be in writing and must be sent both to the court in which the charge is pending and to the county attorney charged with the duty of prosecuting it. K.S.A. 22-4302 requires the warden or other person having custody of the prisoner to prepare a certificate setting forth the term of commitment under which the prisoner is being held, and certain other information, and to send by certified or registered mail, return receipt requested, one copy of the prisoner’s request and one copy of the certificate to the court and one copy of each to the county attorney.
K.S.A. 22-4303, the statute with which we are primarily concerned, reads as follows:
“Trial within 180 days after receipt of request and certification, exceptions; dismissal, when. Within one hundred eighty (180) days after the receipt of the request and certifícate by the court and county attorney or within such additional time as the court for good cause shown in open court may grant, the prisoner or his counsel being present, the indictment, information or complaint shall be brought to trial; but the parties may stipulate for a continuance or a continuance may be granted on notice to the attorney of record and opportunity for him to be heard. If, after such a request, the indictment, information or complaint is not brought to trial within that period, no court of this state shall any longer have jurisdiction thereof, nor shall the untried indictment, information or complaint be of any further force or effect, and the court shall dismiss it with prejudice.”
K.S.A. 22-4304 provides in substance that the escape of a prisoner from custody subsequent to his execution of a request for final disposition of an untried information voids the request.
K.S.A. 22-4307 provides: “This article shall be so construed as to effectuate its general purpose to make uniform the law of those states which enact it.” The act is, of course, a uniform act which has been adopted not only in Kansas but also in many other states. See Am. Jur. 2d, Desk Book, Item No. 124 (1988 Supp.).
The facts are not in dispute. On April 24, 1987, in Case No. 86 CR 323, Allen R. Julian entered a plea of guilty in Barton County District Court to a charge of felony possession of marijuana. He was sentenced to imprisonment for a term of one to ten years. At the same time, his probation in another Barton County case, No. 85 CR 298, was revoked, and he was ordered to serve a one-year jail sentence imposed in that case concurrent with the one- to ten-year felony sentence. He was placed in the state penitentiary at Lansing, Kansas, to serve the combined sentence.
On June 29, 1987, the State filed a detainer with the Secretary of Corrections, informing Julian that he was charged with aggravated incest, K.S.A. 1987 Supp. 21-3603, in Case No. 87 CR 294 in Barton County District Court. On August 25, 1987, Julian made a written request under the Uniform Mandatory Disposition of Detainers Act, K.S.A. 22-4301 et seq., and on August 31 the Barton County Attorney received and filed the request for disposition on the new charge. Julian was brought back to Barton County on September 2, and had a first appearance on the aggravated incest charge. On September 24, a preliminary hearing was held, and on September 25 Julian was arraigned on that charge. He was then returned to the penitentiary.
On October 9,1987, Julian was placed on probation in Cases Nos. 85 CR 296 arid* 86 CR 323, and he was released on bond for later appearance~on the aggravated incest charge made in Case No. 87 CR 294. He has not been in the penitentiary or otherwise in custody. since.- October 9, 1987.
Julian’s jury tria], on the aggravated incest charge was scheduled to commence.on March 11, 1988. On March 9, he filed a motion to dismiss the aggravated incest charge for failure of the State to bring him-to trial within 180 days from August 31, 1987, the date on which the county attorney received Julian’s request for disposition.' On March 10, the motion to dismiss was argued to the trial court. Defendant contended that 180 days from August 31 expired on February 27, 1988. The State argued that the Uniform Mandatory Disposition of Detainers Act no longer applied after Julian’s release from custody, that the 180 days should be calculated from date of arraignment, September 25, 1987, pursuant to the speedy trial act, K.S.A. 22-3402(2), and thus the 180 days had not yet expired. The trial court sustained the defense motion, anil the State appeals.
We have not found any case construing the Uniform Mandatory Disposition. o£Detainers Act and determining the precise issue which we face here. There are many cases, however, which construe similar, provisions of the Interstate Agreement on Detainers, another uniform act designed to accelerate the disposition of cases out of-which detainers are issued. The Interstate Agreement on Detainers has interstate rather than intrastate application. It has. also been adopted in Kansas. See K.S.A. 22-4401 et seq. Both acts are designed to relieve prisoners of the unfavorable consequences of pending detainers. The courts which have constnied the speedy trial provisions of the Interstate Agreement oh Detainers uniformly hold that when a defendant is released from custody, his rights regarding a speedy trial are the same aS those of any other individual.
For example, in State v. Tarango, 105 N.M. 592, 595, 734 P.2d 1275 (N.M. App.), cert, denied 105 N.M. 521 (1987), the New Mexico court said: .
“When a defendant is discharged by a sending state, the purpose of the [Interstate Agreement on. Detainers] loses significance and defendant can no longer rely on its provisions. [Citation omitted.] The IAD only applies to individuals while they aré serving a prison term. [Citations omitted.] Once the prisoner is released, his rights regarding a speedy trial are the same as those of any other individual.”
See Pristavec v. State, 496 A.2d 1036 (Del. 1985); State v. Oxendine, 58 Md. App. 591, 473 A.2d 1311 (1984); State v. Quiroz, 94 N.M. 517, 612 P.2d 1328 (N.M. App. 1980); State v. Thompson, 19 Ohio App. 3d 261, 483 N.E.2d 1207 (1984); State v. Smith, 353 N.W.2d 338 (S.D. 1984).
The District Court of Appeals of Florida (Second District) clearly explains the purpose of the speedy trial provision of the Interstate Agreement on Detainers in its opinion in State v. Butler, 496 So. 2d 916, 917 (Fla. Dist. App. 1986), as follows:
“The IAD was enacted to provide certainty and prevent obstruction in ‘programs of prisoner treatment and rehabilitation.’ § 941.45(1), Fla. Stat. The purpose of the act is to ‘obviate difficulties in securing speedy trials of persons incarcerated in other jurisdictions and to minimize the time during which there is an inherent danger that a prisoner may forego preferred treatment or rehabilitation benefits.’ State v. Dunlap, 57 N.C. App. 175, 290 S.E.2d 744, 745 (N.C. App.), cert, denied, 306 N.C. 388, 294 S.E.2d 213 (1982). A detainer may cause truly adverse consequences to the prisoner while in the sending jurisdiction: he may be precluded from eligibility for parole consideration; he may be excluded from work-release programs; or he might be confined under stricter security because of prison officials’ fear that he might attempt to escape. State v. Oxendine, 58 Md. App. 591, 473 A.2d 1311, 1314 (1984). All of those consequences of detainers, however, expire when the prisoner is no longer incarcerated. At that point the IAD—and its attendant speedy trial element—is no longer applicable. Dunlap, 290 S.E.2d at 745.”
Similarly, in our case of In re Habeas Corpus Application of Sweat, 235 Kan. 570, 573-74, 684 P.2d 347 (1984), Justice Lockett, speaking for a unanimous court, said:
“The purpose of the Agreement [on Detainers], as set forth in Article I, is to encourage the orderly and expeditious disposition of detainers based on untried indictments, informations or complaints, in an effort to reduce uncertainty and facilitate prisoner treatment and rehabilitation in the state where the prisoner is incarcerated. . . .
“The Uniform Mandatory Disposition of Detainers Act (Act), K.S.A. 22-4301 et seq., is a Kansas intrastate procedure whereby persons imprisoned in this state may request final disposition of other Kansas charges pending against them. The procedures to obtain final disposition of the charges pending under the Act are similar to the procedures of the Agreement.
“This court has determined that the Agreement and the Act are parallel acts designed to secure a speedy trial to the person incarcerated in a penal institution either in this or another state. Few cases determining questions arising from the Agreement have been dealt with by this court, but we have had numerous cases arising under1 the Act. Questions answered as to the Act are therefore precedent for questions arising under the Agreement.”
One Missouri case is strikingly similar to the case at hand. In State ex rel. Haynes v. Bellamy, 747 S.W.2d 189 (Mo. App. 1988), the relator, Haynes, .while incarcerated in a Missouri correctional institution, filed a request under the Uniform Mandatory Disposition of Detainers Act for the disposition of a weapons charge. Haynes, however, was paroled from prison and released from the correctional institution before the running of the 180 days allowed for disposition of the weapons charge. After the 180 days had run, he filed an action for a writ of prohibition to prevent the State from taking any further action on the weapons charge. The Missouri Court of Appeals held that the Uniform Mandatory Disposition of Detainers Act was no longer available to the prisoner after his discharge from custody on parole. The court noted, citing State v. Smith, 686 S.W.2d 543, 547 (Mo. App. 1985), that the Uniform Mandatory Disposition of Detainers Act is to be construed in harmony with the Agreement on Detainers. The court concluded:
“When relator was released on parole within the 180 days following his request, he lost the right to avail himself of [Mo. Rev. Stat. § 217.450 (1986), the Missouri version of the Uniform Mandatory Disposition of Detainers Act], His right to a speedy trial on the weapons charge is the same as that of any other individual.” 747 S.W.2d at 190-91.
The Uniform Mandatory Disposition of Detainers Act speaks of “[a]ny person who is imprisoned in a penal or correctional institution of this state”; “prisoners” and “a prisoner,” K.S.A. 22-4301; “the prisoner,” K.S.A. 22-4302; “the prisoner,” K.S.A. 22-4303; “any prisoner,” K.S.A. 22-4304; and “prisoners,” K.S.A. 22-4306. Clearly, the Act is intended to apply to prisoners, those who are in the custody of the Secretary of Corrections. Persons who are on parole or probation are no longer in physical custody; they are not prisoners. No adverse consequences flow to a probationer or a parolee from a detainer.
We agree with the construction placed upon the Uniform Mandatory Disposition of Detainers Act by the Missouri court. Once Julian was released on probation and bond, his rights to a speedy trial were the same as any other individual charged with a felony in the State of Kansas, and he no longer had the right to rely upon the speedy trial provisions of the Act.
The judgment of the district court is reversed, and this case is remanded for further proceedings. | [
-48,
-24,
-11,
28,
43,
-61,
58,
-104,
115,
-77,
102,
83,
-19,
-46,
5,
121,
27,
47,
85,
121,
66,
-73,
119,
-63,
118,
-5,
-111,
-43,
-69,
95,
-28,
-4,
8,
-80,
-118,
117,
6,
-56,
-109,
28,
-114,
7,
-119,
-60,
81,
8,
44,
33,
90,
-114,
49,
28,
-29,
106,
26,
-46,
-119,
40,
-53,
47,
-39,
-63,
-37,
-99,
11,
22,
-93,
-124,
28,
7,
88,
63,
-104,
49,
0,
-24,
-13,
-106,
-122,
-76,
107,
-119,
40,
102,
99,
33,
93,
-18,
-68,
-88,
14,
54,
-83,
-90,
-104,
72,
105,
36,
-122,
-99,
126,
22,
35,
-4,
-25,
4,
125,
108,
-118,
-54,
-80,
-109,
79,
53,
2,
-69,
-21,
37,
-16,
113,
-59,
-10,
88,
87,
113,
27,
-2,
-68
]
|
Per Curiam:
This action involves a dispute between Scott and Tia Pierce, the children of Marion Pierce, deceased, plaintiffs herein, and the defendant, Vicki Pierce, Marion Pierce’s widow, over the proceeds of a life insurance policy. The trial court entered judgment in favor of the plaintiffs and awarded the proceeds of the policy to Scott and Tia Pierce. The Court of Appeals affirmed. Pierce v. Pierce, 12 Kan. App. 2d 810, 758 P.2d 252 (1988). This court granted review. We need not detail the facts and issues further here since they are fully set forth in the opinion of the Court of Appeals.
Justice Six took no part in this appeal since he served as a judge on the Court of Appeals at the time of that court’s decision in this case. Justices Holmes, McFarland, and Allegrucci would reverse the trial court and the Court of Appeals; Chief Justice Miller, joined by Justices Herd and Lockett, would affirm.
We stated the applicable rule in Paulsen v. U.S.D. No. 368, 239 Kan. 180, 182, 717 P.2d 1051 (1986):
“The general rule in this jurisdiction, and elsewhere, is that when one of the justices is disqualified to participate in a decision of issues raised in an appeal and the remaining six justices are equally divided in their conclusions, the judgment of the trial court must stand. [Citations omitted.] See also Kansas Constitution, Art. 3, § 2, which provides that the concurrence of four justices shall be necessary to a decision.”
The court being equally divided, the judgment of the Court of Appeals, affirming the judgment of the district court, is affirmed.
Six, J., not participating. | [
-12,
108,
-11,
60,
8,
-30,
34,
122,
81,
-47,
37,
83,
-87,
-21,
20,
127,
-38,
45,
99,
107,
-47,
-73,
23,
-64,
-2,
-13,
-5,
-59,
-69,
95,
110,
-34,
76,
112,
42,
-43,
102,
-117,
-123,
20,
-82,
14,
-120,
-91,
89,
-30,
-80,
119,
16,
19,
-11,
-101,
-13,
40,
-103,
-61,
104,
44,
-37,
-7,
-64,
-72,
-86,
-121,
-1,
20,
19,
21,
-104,
7,
88,
38,
-40,
57,
1,
-24,
115,
-90,
6,
116,
47,
-69,
13,
102,
108,
33,
16,
-17,
56,
-104,
7,
127,
-115,
-89,
-98,
24,
99,
14,
-74,
-67,
117,
6,
7,
124,
-18,
-123,
94,
-68,
9,
-113,
-42,
-95,
-49,
114,
-80,
-126,
-17,
-63,
50,
97,
-40,
-32,
84,
-57,
52,
-9,
-49,
-74
]
|
The opinion of the court was delivered by
McFarland, J.:
Curtis L. Doile appeals his bench trial convictions of driving with a suspended license (K.S.A. 1988 Supp. 8-262), possession of drug paraphernalia (K.S.A. 65-4152), possession of tetrahydrocannabinols (K.S.A. 1988 Supp. 65-4127b[a][3] and 65-4105[d]); and two counts of possession of cocaine (K.S.A. 1988 Supp. 65-4127a). Five issues are raised on appeal. Four issues relate to the propriety of the searches and seizures herein. The final issue is a claim that the sentences imposed are excessive.
On February 6,1987, at approximately 2:15 a.m., Officer Willie Turner and Lieutenant Rex Heinitz of the Emporia Police Department were dispatched to the Kona-Coast Club in Emporia to investigate a fight. After resolving the fight incident, the officers returned to the parking lot of the private club.
In the parking lot, Officer Turner observed Curtis Doile, defendant herein, and a woman get out of a van in the parking lot, walk to a car immediately in front of the van, open the car door, shut it, and then go inside the Kona-Coast Club. When Doile opened the car door, he bent down and appeared to be placing something in the car. Doile was known to Officer Turner and he knew the car belonged to Doile. Officer Turner discussed the matter with Lt. Heinitz and told him he wanted to make a visual observation of the car from the outside through the windows.
Officer Turner thereupon walked over to Doile’s car and shined his flashlight into the interior. Turner observed what he believed to be a partially burned hand-rolled marijuana cigarette lying on the console next to the gearshift. He returned to Lt. Heinitz and discussed the matter with him. They decided to wait and watch the vehicle. They took up different observation points—Lt. Heinitz on Highway 50, directly across from the club, and Officer Turner on West 12th Avenue. About 15 minutes later, Officer Turner observed an individual leave the KonaCoast Club, get into Doile’s car, and drive out of the parking lot onto 12th Avenue. He could not recognize the individual from his vantage point. Officer Turner followed the defendant’s car, turned on his vehicle’s overhead rotating red lights, and stopped the car. He approached the car, observed that the driver was Curtis Doile, and asked him to get out of the vehicle. He frisked Doile for weapons and found none. He asked Doile for his driver’s license and was told Doile did not have one because his license had been suspended. By this time Lt. Heinitz had arrived. Turner smelled alcohol on Doile’s breath. He asked Doile if he would be willing to take some sobriety, tests. Doile agreed. Following the tests, Doile was arrested, handcuffed, and put in Turner’s police vehicle. Turner later testified he arrested Doile for possession of marijuana, DUI, and driving with a suspended license.
Turner returned to Doile’s automobile, where he observed the hand-rolled marijuana cigarette in the same place it was when he had first seen it in the Kona-Coast Club parking lot. Turner then searched the vehicle. He discovered a mirror, with an image of a horse on it, in the glove compartment and a brown paper sack behind the front seat on the floorboards. In the paper sack was a “baggie” containing green vegetation Turner thought was marijuana. Turner then returned to his vehicle, advised Doile of his Miranda rights, and transported him to the Lyon County Jail.
At the jail, defendant placed his personal effects in a tray. One of the items placed thereon was a billfold. Inside the billfold was a straw. During the booking-in process, Doile was observed putting something in his mouth. After being told to spit out what was in his mouth, Doile refused. Police forced Doile to expel the item from his mouth. The item was a drinking straw. Officer Turner secured the straw, which contained a white substance. The straw from the billfold was missing. Both the billfold and straw were found to contain traces of cocaine.
As a result of the foregoing events, defendant was charged in case No. 87-CR-60 with: (1) driving under the influence, (2) possession of tetrahydrocannabinols, (3) possession of drug paraphernalia, (4) driving with a suspended license, and (5) possession of cocaine.
Officers then obtained a search warrant for the search of defendant’s residence at 706 West Fourth Avenue in Emporia. While executing the 'search warrant, nineteen items were seized, including a bag of green vegetation, an inhaler bottle with some white powder in it, a green sifter, a plastic bag containing white powder, two silver-grey zipper pouches, a black plastic container, a small black pouch containing two razor blades, and a metal straw and spoon.
KBI testing obtained cocaine-positive results on the billfold, straw, and mirror (items seized at time of arrest), and the inhaler bottle, black plastic container, and green sifter (items seized at the residence). The cigarette and the bag of green vegetation taken from the car tested positive for marijuana.
Defendant was charged in case No. 87-CR-194 with possession of cocaine, possession of tetrahydrocannabinols, and possession of drug paraphernalia. These charges arose from the items seized at defendant’s residence. The cases were consolidated for a bench trial. Defendant’s motions to suppress all seized items were denied.'
Defendant was convicted in the bench trial of the following crimes:
Case No. 87-CR-60:
1. Possession of tetrahydrocannabinols (marijuana);
2. possession of drug paraphernalia;
3. driving with a suspended license; and
4. possession of cocaine (a class B felony due to a previous conviction).
Case No. 87-CR-194:
1. Possession of cocaine (a class B felony due to a previous conviction).
All sentences herein run concurrent with each other. The controlling term is not less than 10 years nor more than 30 years (the sentence received on each of the two cocaine convictions).
Case No. 87-CR-60
We turn now to the issues. The first two issues arise from case No. 87-CR-60 and involve the search and seizure of items from defendant’s automobile and his person. For his first point, defendant contends the shining of the flashlight by the police officer into defendant’s car while it was parked in the Kona-Coast Club’s parking lot was an unreasonable search not justified by exceptions to the Fourth Amendment to the United;States Constitution.
Defendant contends that the parking lot of the Kona-Coast Club was a private area and the officer had nó lawful right to shine his flashlight into defendant’s automobile. The officer did not open a car door, physically intrude into the vehicle, or remove anything from the vehicle while it was in the parking lot. The officer’s curiosity was aroused when he saw Doile put something into the car, and the officer walked over and flashed his light into the vehicle. There he saw what he believed was a marijuana cigarette on the vehicle’s console.
Was this a search? We believe not. The officers were in the parking lot on official business—to quell a fight reported in the club. The parking lot was open to those with business in the club. Doile and the officers were in that category. This is not the same situation as looking into a vehicle parked in the owner’s garage. It is difficult to see what expectation of privacy for his vehicle Doile could have in these circumstances.
Defendant argues the officer’s actions constituted a search and would be justified only if the plain view doctrine or Ross exception applied.
It is well established that under certain circumstances the police may seize evidence in plain view. In Coolidge v. New Hampshire, 403 U.S. 443, 467-71, 29 L. Ed. 2d 564, 91 S. Ct. 2022, reh. denied 404 U.S. 874 (1971), the United States Supreme Court set out the circumstances in which plain view has legal significance. The test is threefold: (1) The initial intrusion which afforded the authorities the plain view was lawful by virtue of a warrant (search or arrest), waiver, or exigent circumstances; (2) the discovery of the evidence was inadvertent; and (3) the authorities immediately had reasonable or probable cause to believe the evidence observed in plain view was incriminating in nature.
In State v. Galloway, 232 Kan. 87, 652 P.2d 673 (1982), we adopted the “plain view” exception to the Fourth Amendment as enunciated in Coolidge v. New Hampshire, 403 U.S. 443.
In United States v. Ross, 456 U.S. 798, 72 L. Ed. 2d 572, 102 S. Ct. 2157 (1982), the United States Supreme Court held that police officers who have legitimately, stopped an automobile and who have probable cause to believe that contraband is concealed somewhere within may conduct a warrantless search of the vehicle, including compartments and containers within the vehicle whose contents are not in plain view.
However, the use, of a flashlight by a police officer lawfully on the premises to view the interior of an automobile does not by itself raise the activity to the level of a search.
In Texas v. Brown, 460 U.S. 730, 75 L. Ed. 2d 502, 103 S. Ct. 1535 (1983), a “plain view” case, a police officer, assisting at a routine nighttime driver’s license checkpoint in Fort Worth, Texas, asked a driver for his driver’s license. At the same time, the officer shined his flashlight into the car and saw the driver drop a knotted balloon onto the seat beside his leg. When the driver opened the glove compartment to get his license, the officer noticed several plastic vials, quantities of white powder, and an open bag of party balloons. On appeal, the United States Supreme Court upheld the use of the flashlight, stating:
“It is likewise beyond dispute that Maples’ action in shining his flashlight to illuminate the interior of Brown’s car trenched upon no right secured to the latter by the Fourth Amendment. The Court said in United States v. Lee, 274 U.S. 559, 563 (1927): ‘[The] use of a searchlight is comparable to the use of a marine glass or a field glass, It is not prohibited by the Constitution.’ Numerous other courts have agreed that the use of artificial means to illuminate a darkened area simply does not constitute a search, and thus triggers no Fourth Amendment protection.” 460 U.S. at 739-40.
See Annot., 89 L. Ed. 2d 939.
In State v. Blood, 190 Kan. 812, 378 P.2d 548 (1963), suspects in a case involving the theft of blank checks and the contents of the cash register from a service station were asked to return to the crime scene in their automobile. Returning to the service station, they parked partially on the shoulder of the highway leading to the service station. A state trooper dispatched to the scene looked into the parked automobile with a flashlight and saw several credit cards and a green metal box inside. Both occupants of the car denied knowledge of the items. They were thereafter arrested. Blood’s counsel moved to suppress the evidence and was overruled. On appeal, we affirmed. Justice Schroeder, writing for a unanimous court, reasoned:
“It has been held that the eye cannot commit a trespass condemned by the Fourth Amendment. (See, McDonald v. United States [1948], 335 U.S. 451, 93 L. Ed. 153, 69 S. Ct. 191.) Observation of that which is in plain view is not a search. (State v. Campbell [Mo. 1953], 262 S.W.2d 5; State v. Hawkins [1951], 362 Mo. 152, 240 S.W.2d 688; and State v. Havre [Mo. 1955], 280 S.W.2d 41.)” 190 Kan. at 819.
In State v. McMillin, 206 Kan. 3, 476 P.2d 612 (1970), we said:
“A search implies prying into hidden places for that which is concealed and it is not a search to observe that which is in open view. Looking into a parked car through the windows does not constitute a search, even though it is nighttime and the items can be seen only with the aid of a flashlight [Citation omitted.].” 206 Kan. at 7-8.
We find no basis for holding the district court erred or abused its discretion relative to the officer looking through the vehicle’s window while it was parked in the parking lot.
The next point relative to case No. 87-CR-60 is whether the district court erred in not holding the stop, search, and seizure of items from defendant’s vehicle were impermissible.
The appellate standard of review is clear. If the findings of the trial court on a motion to suppress evidence are based upon substantial evidence, this court in review will not substitute its view of the evidence for that of the trial court. State v. Chiles, 226 Kan. 140, 144, 595 P.2d 1130 (1979); State v. Kirby, 12 Kan. App. 2d 346, Syl. ¶ 5, 744 P.2d 146 (1987), affd 242 Kan. 803, 751 P.2d 1041 (1988).
K.S.A. 22-2402(1) provides:
“Without making an arrest, a law enforcement officer may stop any person in a public place whom he reasonably suspects is committing, has committed or is about to commit a crime and may demand of him his name, address and an explanation of his actions.”
The officer making the stop must be able to articulate the basis for his reasonable suspicions. See Brown v. Texas, 443 U.S. 47, 51, 61 L. Ed. 2d 357, 99 S. Ct. 2637 (1979), and Delaware v. Prouse, 440 U.S. 648, 59 L. Ed. 2d 660, 99 S. Ct. 1391 (1979). What is reasonable is based on the totality of the circumstances and is viewed in terms as understood by those versed in the field of law enforcement. United States v. Cortez, 449 U.S. 411, 417-18, 66 L. Ed. 2d 621, 101 S. Ct. 690 (1981).
A few minutes prior to the stop, the officer had observed what he believed was a marijuana cigarette on the vehicle’s console. Defendant was the only person to enter the vehicle thereafter. When defendant drove away the officer had probable cause to believe contraband was in the vehicle in defendant’s possession. He stopped the car. He asked defendant for his driver’s license and was told the license had been suspended. Rased on his observations of defendant, he believed defendant was driving under the influence of alcohol. Defendant told the officer he had consumed a few drinks that evening. Defendant failed the field sobriety tests administered. Defendant was at that point arrested and placed in the patrol car. The officer returned to defendant’s automobile and saw the marijuana cigarette still in place on the console. The vehicle was searched and what was believed to be contraband was found in the glove compartment and on the floor of the back seat. Additional contraband was found on defendant’s person when he was booked into jail.
Defendant’s position is that the initial flashlight observation at the parking lot was improper and could not serve as probable cause for stopping the vehicle. We have previously concluded that the observation of the contraband in the parking lot was not impermissible. Therefore, the officer had probable cause to stop the vehicle. Defendant does not contend the subsequent searches and seizures from the vehicle and defendant’s person were improper on any other grounds. We find no error or abuse of discretion in the trial court’s refusal to suppress the items seized from defendant’s automobile and his person.
Case No. 87-CR-194
We turn now to the search and seizures issues arising from case No. 87-CR-194. Defendant first argues that the affidavit filed to obtain the search warrant for his residence was insufficient to support a finding of probable cause.
In State v. Abu-Isba, 235 Kan. 851, 685 P.2d 856 (1984), we adopted the “totality of the circumstances” approach set forth in Illinois v. Gates, 462 U.S. 213, 76 L. Ed. 2d 527, 103 S. Ct. 2317, reh. denied 463 U.S. 1237 (1983), relative to the issuance of search warrants, wherein we held:
“Before a warrant for arrest or search may be issued, there must be a finding of probable cause by a neutral and detached magistrate. The complaint and supporting affidavits should supply the magistrate with sufficient factual information to support an independent judgment that probable cause to arrest exists.” Syl. ¶ 1.
“In determining whether to issue a warrant for arrest or search a magistrate should consider the ‘totality of the circumstances’ presented and make a practical, common-sense decision whether there is a fair probability that a crime has been committed and the defendant committed the crime, or that contraband or evidence of a crime will be found in a particular place.” Syl. ¶ 2.
“On appeal, the duty of the reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed.” Syl. ¶ 3.
The affidavit set forth the viewing of the marijuana cigarette in defendant’s automobile in the parking lot, and the events of the stopping of the vehicle and the seizure of the mirror, the partially burned marijuana cigarette, and a baggie of marijuana. It further recited the seizure of the straw in which white powder residue was discovered. The affidavit further stated defendant had been convicted of selling cocaine in 1983, the sales having occurred in 1982. Based on this information, the officers sought a search warrant of defendant’s residence.
In State v. Morgan, 222 Kan. 149, 153, 563 P.2d 1056 (1977), we said:
“Evidence of a single isolated drug sale may not give probable cause to believe drugs are present at a particular location; however, where an affidavit gives evidence of activity indicating protracted or continuous conduct at a particular location and that evidence provides a reasonable basis to infer drugs are still present, probable cause may exist.”
Defendant had a straw containing traces of a white powder, which he tried to dispose of after arrest. He had a partially burned marijuana cigarette, a mirror, and a baggie of marijuana in his car. Almost five years previously, he had sold cocaine. No facts were alleged indicating any current drug-related activity was occurring at the residence. Do these facts warrant a finding of probable cause to believe defendant’s residence contained marijuana, drug paraphernalia, and cocaine? We believe not.
Having concluded that no probable cause existed for the issuance of the search warrant, we come to the question of whether the cocaine seized at the residence should have been suppressed (other items seized are not involved in this appeal). For this determination we must consider United States v. Leon, 468 U.S. 897, 82 L. Ed. 2d 677, 104 S. Ct. 3405, reh. denied 468 U.S. 1250 (1984).
In Leon the court traces the history and purpose of the exclusionary rule. Highly summarized, the exclusion of evidence which the police have unlawfully obtained is a penalty aimed at the police and is imposed to deter future wrongful conduct. A strong theme running throughout Leon is that evidence seized under a search warrant subsequently held to be invalid is not to be suppressed absent some chicanery or wrongdoing by the police. Leon refers to this as the good faith exception to the exclusionary rule. This is somewhat of a misnomer, as the opinion makes it clear that such evidence is not to be excluded unless bad faith is shown. As Leon states: “We . . . conclude that suppression of evidence obtained pursuant to a warrant should be ordered only on a case-by-case basis and only in those unusual cases in which exclusion will further the purposes of the exclusionary rule.” 468 U.S. at 918.
Hence, Leon states that the evidence so seized is not to be excluded unless it is shown: (1) that the judge or magistrate who issued the warrant was deliberately misled by false information; (2) that the judge or magistrate wholly abandoned his or her neutral and detached role; (3) that the warrant was so lacking in specificity that the officers could not determine the place to be searched or the things to be seized; or (4) that there was so little indicia of probable cause contained in the warrant that it was entirely unreasonable for an officer to believe the warrant valid. United States v. Leon, 468 U.S. at 923.
None of the exceptions so stated are applicable herein. The affidavit contained no false or misleading statements. No pertinent information was withheld from the affidavit. There is no evidence the issuing judge “wholly abandoned his . . . neutral and detached role.” The warrant was not lacking in specificity. There are no circumstances where it was unreasonable for the officer executing the warrant not to override the determination of probable cause found by the issuing district judge and refuse to execute the warrant. There simply is no bad faith or wrongdoing shown in the issuance or execution of the warrant. Normally, this determination would end the inquiry. However, Leon makes it clear that:
“reviewing courts will not defer to a warrant based on an affidavit that does not ‘provide the magistrate with a substantial basis for determining the existence of probable cause.’ Illinois v. Gates, 462 U.S., at 239. ‘Sufficient information must be presented to the magistrate to allow that official to determine probable cause; his action cannot be a mere ratification of the bare conclusions of others.’ Ibid. See Aguilar v. Texas, [378 U.S. 108] at 114-115; Giordenello v. United States, 357 U.S. 480 (1958); Nathanson v. United States, 290 U.S. 41 (1933). Even if the warrant application was supported by more than a ‘bare bones’ affidavit, a reviewing court may properly conclude that, notwithstanding the deference that magistrates deserve, the warrant was invalid because the magistrate’s probable-cause determination reflected an improper analysis of the totality of the circumstances, Illinois v. Gates, supra, at 238-239, or because the form of the warrant was improper in some respect.” 468 U.S. at 915.
The affidavit herein does not contain any factual allegations from which the judge could have found there was probable cause to believe contraband was in the residence. There was no allegation of any drug-related activity at the residence except for the sales almost five years earlier. There was nothing about the items seized from the vehicle or person from which one could conclude they were part of a stash at the residence. The judge must have concluded that finding the small amount of drugs on the defendant’s person and in his auto was probable cause to search his residence simply because of the old conviction. This is an “improper analysis of the totality of the circumstances” within the purview of Leon, and we, as a reviewing court, need not defer to the issuing judge’s determination. We should, perhaps, note that the judge issuing the warrant was the same judge who denied the suppression motion, so this is the first “outside” review of the matter.
We conclude that, under the totality of the circumstances, the trial court erred in refusing to suppress the cocaine seized at the residence. The defendant’s conviction for possession of cocaine in case No. 87-CR-194 must be reversed.
For his final issue, defendant contends the trial court erred in denying his motion to modify the sentences imposed herein. The controlling term is 10 to 30 years. The reversal of the cocaine conviction in case No. 87-CR-194 does not reduce the figure, as like terms were imposed on both cocaine convictions and all sentences were run concurrently.
The sentences imposed were within the statutory limits for the offenses. Defendant does not contend the trial court failed to consider and apply the sentencing criteria set forth in K.S.A. 21-4606. Defendant argues that his prior criminal record and his current convictions were such that a lesser sentence was warranted.
The penalty for a second conviction of possession of cocaine under K.S.A. 1988 Supp. 65-4127a is that of a class B felony—a minimum of 5 to 15 years and a maximum of 20 years to life. Defendant received a sentence of 10 to 30 years. A sentence imposed by a trial court will not be disturbed on the ground it is excessive, provided it is within the limits prescribed by law and within the realm of discretion on the part of the trial court, and the sentence is not the result of partiality, prejudice, oppression, or corrupt motive. State v. McGlothlin, 242 Kan. 437, 438, 747 P.2d 1335 (1988); State v. Jennings, 240 Kan. 377, Syl. ¶ 2, 729 P.2d 454 (1986); State v. Van Cleave, 239 Kan. 117, Syl. ¶ 5, 716 P.2d 580 (1986). There is no allegation of partiality, prejudice, oppression, or corrupt motive. We find no abuse of discretion in the sentences imposed.
The convictions in case No. 87-CR-60 are affirmed. The conviction in case No. 87-CR-194 is reversed. | [
-80,
-18,
-7,
-100,
58,
-32,
59,
56,
88,
-9,
-28,
83,
-83,
-54,
5,
121,
-5,
127,
84,
121,
-57,
-73,
71,
-128,
-74,
-13,
-37,
-44,
-13,
-53,
-28,
-43,
10,
48,
-117,
85,
6,
72,
-73,
92,
-114,
5,
-71,
-46,
89,
82,
38,
58,
16,
14,
49,
-98,
-29,
42,
24,
-22,
73,
60,
91,
-68,
32,
-7,
-71,
29,
-34,
20,
-77,
36,
-65,
-89,
-40,
31,
-40,
56,
16,
-8,
115,
-90,
-106,
116,
111,
-103,
-124,
2,
98,
37,
25,
-19,
-68,
-124,
14,
59,
-97,
-89,
-104,
89,
96,
101,
-106,
-65,
110,
22,
11,
-12,
99,
85,
85,
-20,
-121,
-49,
-112,
-111,
77,
120,
-58,
122,
-21,
37,
48,
113,
-51,
-30,
92,
84,
115,
27,
-53,
-110
]
|
The opinion of the court was delivered by
Six, J.:
This appeal involves two consolidated cases arising from the same factual situation. The legal concepts interwoven into the factual fabric are intervention, setoff, attorney liens, the standard of review, for involuntary dismissals, fraudulent conveyance, reliance-promissory estoppel, and debtor-creditor settlements.
State Bank of Stanley (Stanley Bank) appeals from a denial of its motion to set off a judgment against it in favor of Tri-County Farm Equipment Co. (Tri-County) (case No. 61,167). Kansas Bankers Surety Company (KBS), an appellant in both cases, appeals from a denial of a motion to intervene in case No. 61,167, and from a dismissal of another suit against Tri-County, Executive Financial Services, Inc., (EFS) and SLC of North America, Inc., (SLC) creditors of Tri-County, based on a claim of fraudulent conveyance (case No. 61,647). The trial judge in No. 61,167 was James Bouska. The trial judge in No. 61,647 was Janette Sheldon.
We find no error and affirm.
The questions for review are:
fudge Bouska’s Case, No. 61,167
(1) Whether KBS should have the right to intervene in the action to determine the distribution of proceeds.
(2) Whether the trial court erred in denying Stanley Bank’s motion for setoff and in refusing to conduct an evidentiary hearing on the issue of the Bank’s right to setoff.
(3) Whether the trial court erred in determining that TriCounty’s attorney’s lien was valid.
fudge Sheldon’s Case, No. 61,647
(4) What is the proper standard of review for an involuntary dismissal pursuant to K.S.A. 60-241(b)?
(5) Whether the trial court erred: (a) in finding that KBS did not establish a prima facie case of fraudulent conveyance; (b) in finding that the settlement agreement between Tri-County, EFS, and SLC was in accord with normal business procedures; (c) in determining that the agreement between Tri-County’s attorney and John Deere’s attorney was illusory; (d) in finding that John Deere’s attorney unreasonably relied on the statements of Tri-County’s attorney; and (e) in ruling that EFS and SLC, creditors of Tri-County, are entitled to have their claims satisfied.
FACTS
The facts underlying these multi-party consolidated appeals are complicated. This appeal is the third review we have extended to controversies arising from the difficulties encountered by Tri-County, a John Deere farm implement dealership. Mohr v. State Bank of Stanley, 241 Kan. 42, 734 P.2d 1071 (1987) (Mohr I), provides a background of the events leading up to the present litigation. See also Executive Financial Services, Inc. v. Loyd, 238 Kan. 663, 715 P.2d 376 (1986).
Gene Mohr and James Loyd wbre co-owners of Tri-County. During 1982, Loyd embezzled money from Tri-County by endorsing checks made out to the company and depositing the proceeds into his personal account. He also assigned various fraudulent notes to John Deere and diverted installment payments due John Deere. The checks bearing forged endorsements were all paid by or through the First National Bank of Olathe (FNB) and the Stanley Bank.
Tri-County sued FNB, seeking recovery on the forged checks, on September 8, 1983. A similar action was filed against Stanley Bank on October 11, 1983. A $450,000 settlement was ultimately reached in the action against FNB. The action against the Stanley Bank proceeded to trial, resulting in a judgment in favor of Tri-County. The Stanley Bank case was affirmed, in part, by this court in Mohr 1, 241 Kan. 42.
In May 1983, John Deere had reached an agreement with Mohr and Tri-County. John Deere foreclosed upon certain TriCounty inventory in which John Deere had a security interest and Mohr (who had personally guaranteed the debts of TriCounty) conveyed certain real estate to John Deere. In addition, Tri-County and Mohr agreed to assist John Deere in collecting accounts receivable and to cooperate in the investigation or prosecution of Loyd.
Following the May 1983 agreement, counsel for John Deere and counsel for Tri-County and Mohr corresponded concerning claims against FNB and Stanley Bank arising out of the forged checks. John Deere’s counsel claimed that John Deere had a “proceeds” interest in some of the forged checks and sought a percentage of Tri-County’s recovery from the banks. Tri-County sought to keep John Deere from intervening in the state court actions against FNB and Stanley Bank. Although the negotiations between the attorneys continued for over two years, no written settlement was ever reached and John Deere never intervened in the state court claims against the banks. John Deere did, however, bring a separate action against Tri-County and the two banks in United States District Court on October 31, 1984.
John Deere’s lead attorney testified in Judge Sheldon’s case, No. 61,647, that the only reason the federal action was filed was to toll the statute of limitations. On December 3, 1984, counsel for John Deere informed the attorney for FNB that John Deere would oppose being joined as a party in Tri-County’s state action against FNB and indicated that John Deere would give credit to FNB on any judgment received in federal court to the extent that such judgment represented double recovery. On April 1, 1985, Tri-County’s counsel wrote to John Deere’s attorney, “I will contact you prior to executing any settlement agreement with the First National Bank of Olathe.”
On July 3, 1985, FNB, through its surety, KBS, filed a petition for involuntary bankruptcy against Tri-County in the United States Bankruptcy Court for the District of Kansas. KBS and Fidelity and Deposit of Maryland (F&D) first became involved in their capacity as surety companies for the Stanley Bank and FNB. John Deere, EFS, and SLC petitioned as creditors in the bankruptcy action. EFS claimed a judgment against Tri-County in the amount of $104,367.33. Executive Financial Services, Inc. v. Loyd, 238 Kan. 663. SLC claimed that Tri-County was indebted to it in excess of $800,000 pursuant to various lease agreements. John Deere claimed that Tri-County was indebted to it in excess of $1,000,000.
On July 11,1985, FNB and Tri-County reached a settlement in their state court litigation. At the time of the settlement, John Deere’s lead attorney was out of town on vacation. Tri-County’s attorney called the office of John Deere’s attorney and left a message for him. He also called and left a message for a partner of John Deere’s lead attorney. The partner received the message on July 11, 1985, that Tri-County was about to settle with FNB. When he returned to the office and learned of the message, the partner was unable to reach Tri-County’s attorney.
Under the terms of the settlement between Tri-County and FNB, FNB was to pay Tri-County, Mohr, and their attorneys $450,000. The amount of $156,551.70 was to be held in escrow pending a final determination of a garnishment order served on FNB by EFS on December 19, 1984. The money remained in escrow until October 1986, when the Court of Appeals affirmed the district court’s judgment quashing the garnishment order. Executive Financial Services, Inc. v. Loyd, case No. 58,966, (unpublished opinion, filed October 16, 1986).
John Deere did not attempt to assert any claim against the escrow account; however, it did file a motion for a temporary restraining order with the bankruptcy court. An order restraining Mohr from disposing of the proceeds of the settlement with FNB was filed on August.2, 1985, in the bankruptcy court. The order expired after ten days and John Deere took no action to renew it. John Deere contended that Tri-County’s attorney had breached an agreement with John Deere when Tri-County and Mohr settled with FNB without first consulting with John Deere’s attorney. John Deere, however, did not take steps to intervene in Tri-County’s remaining action against the Stanley Bank, which was set for trial on August 12, 1985.
During the fall of 1985, Tri-County, John Deere, FNB, Stanley Bank, KBS, and F&D held settlement negotiations. At one point, the prospect of settlement was so favorable that the bankruptcy hearing was continued and drafts of settlement agreements were circulated. No settlement was ever reached, however, and on March 7, 1986, John Deere entered into a settlement agreement with the two banks, was paid $340,000, and assigned its claims against Tri-County to KBS.
Shortly after the settlement between John Deere and KBS, Tri-County settled with EFS and SLC. The agreement provided that the two companies would share equally in a portion of the money held in escrow from the earlier settlement with FNB and that the proceeds from the action against Stanley Bank would be assigned to EFS and SLC. This agreement, which is the basis for KBS’s fraudulent conveyance claim (case No. 61,647), was filed in the bankruptcy court and made subject to that court’s approval. The bankruptcy action was subsequently dismissed in June 1986.
KBS brought suit against Tri-County, Mohr, SLC, and EFS (case no. 61,647). KBS asserted that the settlement between Tri-County and EFS and SLC was a fraudulent conveyance and claimed a pro rata share of the settlement as assignee of John Deere. KBS originally asserted several theories of recovery, but the district court ordered that the issue of fraudulent conveyance be bifurcated for a separate trial and that the other claims and issues be held in abeyance until a determination of the fraudulent conveyance claim. The record does not indicate the disposition of KBS’ other claims. At the close of KBS’ evidence, Tri-County and Mohr moved for dismissal pursuant to K.S.A. 60-241(b). Judge Sheldon granted the motion to dismiss, finding that KBS had failed to prove a prima facie case of fraudulent conveyance.
During the time that the litigation between KBS and TriCounty was pending, this court handed down Mohr I. 241 Kan. 42. Tri-County filed a motion for distribution of the proceeds of the judgment and a determination of attorney fees. The attorneys for Tri-County had previously filed a notice of attorney’s lien with the court, pursuant to K.S.A. 7-108 and no objection had been raised.
Stanley Bank moved for a right of setoff in the distribution of the proceeds of the Mohr I judgment, based on two alternative theories: the common-law right of set off and a “circle of indemnity” theory (case No. 61,167). KBS also filed, in 61,167, a motion to intervene in the distribution, claiming: (1) KBS, as assignee of John Deere, had a superior interest in the judgment proceeds as against any other party; and (2) Tri-County’s attorneys had fraudulently breached an agreement with John Deere (KBS’ assignor) and acted in bad faith.
Judge Bouska ordered that Tri-County’s attorneys be awarded fees and reimbursement costs. The remainder of the judgment was distributed to Tri-County. Tri-County paid the money over to SLC and EFS pursuant to their earlier agreement. Judge Bouska denied KBS’ motion to intervene and Stanley Bank’s motion for setoff.
Judge Bouska’s Case, No. 61,167 1. INTERVENTION
When Tri-County moved the district court for a distribution of the proceeds of the judgment and a determination of attorney fees, KBS moved to intervene pursuant to K.S.A. 60-224. K.S.A. 60-224(a) states:
“Upon timely application anyone shall be permitted to intervene in an action: (1) When a statute confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter substantially impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.”
Our cases interpreting 60-224 were summarized in McDaniel v. Jones, 235 Kan. 93, 106-07, 679 P.2d 682 (1984).
Since intervention is a matter of judicial discretion, KBS must show that the trial court abused its discretion in denying the motion. Lone Star Industries, Inc. v. Secretary, Kansas Dept. of Transp., 234 Kan. 121, 131, 671 P.2d 511 (1983). The scope of review is whether the judicial action is arbitrary, fanciful, or unreasonable or whether no reasonable person would take the view adopted by the trial court. 234 Kan. at 131. “If any reasonable person would agree, appellate courts will not disturb the trial court’s decision.” Hoffman v. Haug, 242 Kan. 867, 873, 752 P.2d 124 (1988). ■
In denying KBS’ motion to intervene, Judge Bouska said:
“The Court finds that the proposed intervenor, KBS, is the surety company for defendant SBS and is required to indemnify it for that portion of the judgment which has been affirmed by the Supreme Court on appeal, and, consequently, has known of this action since its inception. The Court further finds that KBS’s assignor, the John Deere Company, has known of this action since 1985, that the John Deere Company has filed a separate cause of action against SBS, among others, in the United States District Court for the District of Kansas, viz: John Deere Company v. James B. Loyd, et al., Case No. 84-2281-0 and, that all claims by John Deere against the State Bank of Stanley were settled and dismissed with prejudice on March 11, 1986. The Court further finds that KBS has an action pending against Tri-County in another division of this Court, viz: Kansas Bankers Surety Company v, Tri-County Farm Equipment Company, Case Number 86 C 8628, that KBS has applied for a prejudgment garnishment and that that motion was denied by Judge Sheldon on July 14, 1987. This Court further finds that SBS’s [sic] Motion to Intervene is not timely, that it has no interest in the subject matter of this action and that it is not so situated that the disposition of this matter will as a practical matter impair or impede its ability to protect its interest.”
Timeliness
In order to intervene in an action, all three factors listed in McDaniel v. fones, 235 Kan. 93, must be met. Here, Judge Bouska found that KBS? motion to intervene was not timely. The determination that the motion was untimely was not an abuse of discretion. The United States Supreme Court has held that timeliness is to be determined from all the circumstances and is a matter of judicial discretion. NAACP v. New York, 413 U.S. 345, 366, 37 L. Ed. 2d 648, 93 S. Ct. 2591 (1973). KBS has been the insurer for Stanley Bank throughout this litigation, which commenced in 1983. In addition, John Deere assigned its claims against Tri-County to KBS in March 1986, over a year before KBS sought intervention in this action.
KBS states that it did not intervene in this action after John Deere assigned its claims to KBS because: (1) The involuntary bankruptcy proceeding was pending from July 3, 1985, to June 1, 1986, and KBS was prevented from intervening by the automatic stay provision, 11 U.S.C. § 362 (1982); and (2) the Mohr I appeal was pending from October 1985 to July 1987, and the appeal did not concern issues that affected KBS’ interest in the litigation. We are not persuaded. FNB, through its surety, KBS, initiated the bankruptcy proceedings and neither KBS nor John Deere obtained relief from the automatic stay provisions. KBS still did not seek to intervene until over a year after the bankruptcy action was dismissed.
On June 6, 1986, during the pendency of the Mohr I appeal, Tri-County filed a motion to substitute KBS for Stanley Bank as the appellant, alleging that KBS was the real party in interest. At the time KBS settled with John Deere, it had also settled with Stanley Bank. A copy of this settlement was attached to TriCounty’s motion to substitute. Tri-County argued that the effect of this settlement was that KBS would indemnify Stanley Bank in the action and KBS would continue to provide a defense for Stanley Bank in the action.
Stanley Bank opposed the motion to substitute KBS as the real party in interest on the theory that an insurance company cannot be made an original party to a lawsuit against its insured. TriCounty’s motion, however, was not based on an insurance theory but on a contract theory due to the settlement agreement. KBS appears to have had an opportunity to become a party to Mohr I long before KBS moved to intervene, and it vigorously opposed being included in the litigation at that time.
KBS contends that its position as the assignee to John Deere’s claims against Tri-County gives it the right to intervene in this action. John Deere knew this action was pending as early as 1983 and did not intervene at that time. KBS claims that John Deere’s failure to timely intervene should be excused because John Deere was persuaded not to intervene by the misrepresentations made to John Deere’s counsel by Tri-County’s counsel. Even after the settlement between Tri-County .and FNB, which KBS contends was in bad faith, John Deere did not seek to intervene in the action against Stanley Bank. At the time KBS moved to intervene, the misrepresentation by counsel-bad faith issue was pending in separate litigation (case No. 61,647, which is the subject of the second part of this appeal.)
Our analysis indicates that KBS’ motion to intervene was untimely and that the trial court did not abuse its discretion in denying the motion to intervene.
KBS’ Interest in the Litigation
KBS claims that some of the forged checks, upon which TriCounty’s judgment against Stanley Bank is based, represented proceeds from John Deere’s security interest in Tri-County’s inventory and accounts receivable or proceeds from installment payments on notes owned by John Deere. KBS, however, has never presented any evidence which would establish that the judgment was “proceeds” from collateral in which John Deere had a security interest. A search of the UCC filings for TriCounty with the Secretary of State of Kansas on August 7, 1987, showed no security interest in favor of John Deere.
All claims John Deere had against Stanley Bank were settled when KBS settled with John Deere and the federal court action was dismissed. The interest of KBS arises out of John Deere’s claims against Tri-County, based on the alleged bad faith of Tri-County and its attorneys. KBS, as surety for Stanley Bank, has provided Stanley Bank’s defense throughout the litigation. There is no indication, however, that Stanley Bank ever asserted that the funds at issue were due to John Deere, not Tri-County. KBS and Stanley Bank have known of John Deere’s claims since at least October of 1984. It would be prejudicial to the other parties to allow KBS to intervene and assert its interest at this late date.
KBS claims that it was prejudiced by the denial of its motion for intervention because Tri-County’s judgment against Stanley Bank represents Tri-County’s last assets subject to Kansas jurisdiction and KBS will be unable to recover from Tri-County. KBS knew this action was pending and that it might have an interest in the proceeds of any judgment awarded, yet failed to move to intervene until after the case had been tried and appealed to this court.
In United States v. South Bend Community School Corp., 710 F.2d 394, 396 (7th Cir. 1983), the Seventh Circuit Court of Appeals held that a motion to intervene after entry of a consent decree was untimely. In the present case, although the district court still had jurisdiction over the proceeds of the judgment, the case had already been decided on its merits.
Judge Bouska’s finding that KBS’ motion to intervene was untimely was not an abuse of discretion.
2. SETOFF
Stanley Bank claimed a right of setoff based on KBS’ “liquidated contract claim against Tri-County in excess of $2,500,000.” Stanley Bank claims a right of setoff based on claims of KBS, not Stanley Bank. KBS is not a party to this action. Both KBS and its assignor, John Deere, contested previous efforts to bring them into this litigation.
In Alexander v. Clarkson, 100 Kan. 294, 299, 164 Pac. 294 (1917), which is cited by Stanley Bank, this court found that there could be no setoff because the two judgments involved were not mutual. Stanley Bank relies on Herman v. Miller, 17 Kan. 328, 332 (1876). In Miller this court said, “[A] party must be the absolute and beneficial owner of a judgment before he can have it off-set a judgment against him.”
KBS is obligated to reimburse Stanley Bank for the judgment in favor of Tri-County; however, KBS is not a party to this action and its claims against Tri-County arise from its settlement with John Deere, not its role as surety for Stanley Bank. The judgment against Stanley Bank and the claims against Tri-County are not mutual for purposes of setoff. In addition, KBS’ claims against Tri-County were not matured at the time of Stanley Bank’s motion for setoff. No “proceeds” right had been determined and there was no judgment on the fraudulent conveyance action. Judge Sheldon in case No. 61,647 ultimately found that the fraudulent conveyance claim had no merit. It was not an abuse of discretion for Judge Bouska in case No. 61,167 to deny Stanley Bank’s motion for setoff.
Stanley Bank also contends that it is entitled to setoff under the “circle of indemnity” theory advanced in Dennis v. Southeastern Kansas Gas Co., 227 Kan. 872, 610 P.2d 627 (1980).
In the case at bar, Tri-County is entitled to recover from Stanley Bank and Stanley Bank is entitled to recover from KBS, but there has been no determination that KBS is entitled to recover from Tri-County. A major distinction between this case and the Dennis case is that, in Dennis, all three participants in the “circle” were parties to the action and all the duties to indemnify arose out of the same factual situation. Here, KBS was not a party to the action and the claims that KBS alleges, although arising out of related matters, do not arise out of the same factual situation.
At the hearing on the various motions, the attorney for KBS and Stanley Bank requested an evidentiary hearing on the factual issues raised by the motions. Carson v. Chevron Chemical Co., 6 Kan. App. 2d 776, 635 P.2d 1248 (1981), is cited in support of the argument that an evidentiary hearing should have been held on the motion for setoff. In Carson, the trial court conducted a post-judgment hearing to determine the priorities in the proceeds of the judgment. The Court of Appeals did not address the issue of the appropriateness of an evidentiary hearing.
In Carson, it was clear that mutual judgments were involved; therefore, the trial court found it necessary to conduct an evidentiary hearing.
In the case at bar, it is clear, without any evidentiary hearing, that mutuality does not exist between Stanley Bank and TriCounty. Stanley Bank is not attempting to offset its own claim, but the claim of KBS, which is not a party to this action. In addition, even if there were mutuality, there is no judgment upon which to base a setoff. An evidentiary hearing was not necessary to make such a determination.
3. TRI-COUNTY’S ATTORNEY’S LIEN
At the hearing on the motions for distribution, setoff, and intervention, KBS/Stanley Bank’s attorney stated that there should be an evidentiary hearing, but never specifically requested a hearing on the validity of the attorney’s lien. Stanley Bank never challenged the validity of the attorney’s lien, but has asserted that the attorney’s lien should be set aside due to the fraudulent breach of trust by Tri-County’s attorneys.
KBS contends that a fraudulent breach of trust will defeat an attorney’s lien and that the trial court should have conducted an evidentiary hearing to determine if such a breach occurred. It has not been alleged that Tri-County’s attorneys did not properly file their lien in accordance with K.S.A. 7-108.
Tri-County does not challenge the lien of its attorneys, nor does it allege any misconduct by its attorneys. The misconduct asserted by KBS arose out of negotiations between John Deere’s attorneys and Tri-County’s attorneys and the claim of fraudulent breach of trust was subsequently assigned to KBS by John Deere. It is unrelated to the Tri-County/Stanley Bank suit and does not arise out of KBS’ role as surety to Stanley Bank. Since KBS was not allowed to intervene in this action, this issue has been raised on appeal by Stanley Bank.
Stanley Bank argues that K.S.A. 7-106 implicitly provides that an attorney’s lien may be voided where the attorney has fraudulently breached a trust. K.S.A. 7-106 provides:
“An attorney or counselor who is guilty of deceit or collusion, or consents thereto, with intent to deceive a court or judge, or a party to an action or proceeding, or brings suit or commences proceedings without authority therefor, is liable to be disbarred, and shall forfeit to the injured party treble damages, to be recovered in a civil action.”
A reading of the statue shows that the argument is without merit. The statute clearly contemplates the bringing of a separate lawsuit for such misconduct. The statute is not to be utilized as a method of defeating attorneys’ liens. In addition, the statute clearly states that the deception must be aimed at a party to an action or proceeding. It has not been alleged that Tri-County’s attorneys intended to deceive Stanley Bank, but that they intended to deceive John Deere/KBS, neither of which are parties to this action.
Stanley Bank has no basis on which to challenge the attorney’s lien. It was not error for the trial court to determine the validity and amount of the attorney’s lien without an evidentiary hearing.
Tudge Sheldon’s Case, No. 61,647
4. THE STANDARD OF REVIEW
After the close of KBS’ evidence on the fraudulent conveyance claim, in the case before Judge Sheldon, defendants jointly moved for an involuntary dismissal pursuant to K.S.A. 60-241(b). The trial court dismissed the case and made findings of fact, as required by K.S.A. 60-252(a), and conclusions of law. K.S.A. 60-252(a) provides, “Findings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.”
A finding that the plaintiff did not sustain the burden of proof is a negative finding. Box v. Cessna Aircraft Co., 236 Kan. 237, 246, 689 P.2d 871 (1984). In a fraudulent conveyance action, fraud is never presumed and must be proved by clear and convincing evidence. The party asserting the fraudulent conveyance has the burden of proving it. Koch Engineering Co. v. Faulconer, 239 Kan. 101, 106, 716 P.2d 180 (1986).
“The effect of a negative finding by a trial court is that the party upon whom the burden of proof is cast did not sustain the requisite burden. Absent arbitrary disregard of undisputed evidence or some extrinsic consideration such as bias, passion or prejudice tk* finding of the trial judge cannot be disturbed. An appellate court cannot Wullify a trial judge’s disbelief of evidence nor can it determine the persuasiveness of evidence which the trial judge may have believed.” Highland Lumber Co., Inc. v. Knudson, 219 Kan. 366, Syl. ¶ 5, 548 P.2d 719 (1976).
5. TUDGE SHELDON’S RULINGS
Our analysis continues with the examination of whether the trial court erred (a) in finding that KBS did not establish a prima facie case of fraudulent conveyance; (b) in finding that the settlement agreement between Tri-County and EFS and SLC was in accord with normal business procedure; (c) in determining that the agreement between Tri-County’s attorney and John Deere’s attorney was illusory; (d) in finding that John Deere’s attorney unreasonably relied on Tri-County’s attorney’s statements; (e) in ruling that defendants EFS and SLC are entitled to have their claims satisfied.
5a. Fraudulent Conveyance
The determination of whether a conveyance is fraudulent is a question of fact. Credit Union of Amer. v. Myers, 234 Kan. 773, Syl. ¶ 5, 676 P.2d 99 (1984). This court, therefore, can only reverse the trial court’s finding that KBS did not establish a prima facie case of fraudulent conveyance if the trial court’s finding was clearly erroneous.
“In general, the elements which comprise a fraudulent conveyance are first, an intent on the part of the grantor to hinder, delay or defraud his creditors and second, the participation of the grantee in such fraudulent scheme or such knowledge on the latter’s part of facts and circumstances as would impart knowledge of the fraud to him. This court has recognized six badges or indicia of fraud. The badges or indicia of fraud are: (1) a relationship between the grantor and grantee; (2) the grantee’s knowledge of litigation against the grantor; (3) insolvency of the grantor; (4) a belief on the grantee’s part that the contract was the grantor’s last asset subject to a Kansas execution; (5) inadequacy of consideration; and (6) consummation of the transaction contrary to normal business procedures. [Citation omitted.]” Credit Union of Amer. v. Myers, 234 Kan. at 778.
The trial court held that KBS had failed to prove that TriCounty had the requisite intent to hinder, delay, or defraud John Deere/KBS and that there was no enforceable agreement between Tri-County’s attorney and John Deere’s attorney. The court found that three of the above-stated “badges of fraud” existed: (1) Tri-County was insolvent; (2) EFS and SLC knew that there was litigation pending against Tri-County; and (3) it was reasonable to assume that EFS and *$LC knew that the judgment was Tri-County’s last asset subject to Kansas execution. Judge Sheldon found that KBS had failed to show: (1) a lack of consideration for the conveyance; (2) that the conveyance was contrary to normal business procedures; and (3) that there was a relationship between the grantor and grantee.
In weighing the above findings, the trial court found that no inference of fraudulent intent had been established. Judge Sheldon said:
“Further, there has been no evidence that Tri-County intended to hinder or delay KBS. It seems illogical for plaintiff to exert [sic] that position, as they were actively involved in settlement negotiations themselves, with Tri-County, right up to the time of the conveyance. Plaintiff has little right to complain. The judgment remained in an escrow account for fifteen months. Also, it was plaintiff’s filing of an involuntary bankruptcy proceeding that put a stay on the execution of the judgment.”
Judge Sheldon extended more weight to the three “badges” or indicia which were not proven by KBS. KBS argues that the three indicia that were found to exist were sufficient to create an inference of fraud.
In Koch Engineering Co. v. Faulconer, 239 Kan. at 107, this court recognized that some badges of fraud are weaker than others and that a finding of badges of fraud may warrant an inference of fraud, if they are unexplained in the evidence. “While these badges might give rise to an inference of fraud, this inference would be subject to explanation and contradiction by other circumstances and by oral testimony.” Schreiber Milling Co. v. Nutrena Mills, Inc., 149 Kan. 276, 282, 87 P.2d 577 (1939). “Existence of a circumstance which might be considered a badge of fraud, or existence of several such circumstances, is not necessarily incompatible with good faith in fact.” Johnson v. Collins, 142 Kan. 52, 54, 45 P.2d 575 (1935).
In Polk v. Polk, 210 Kan. 107, 499 P.2d 1142 (1972), the appellant contended that the trial court erred in finding no fraudulent conveyance occurred, because the record indicated that all six badges of fraud were present. This court upheld the trial court’s ruling, stating that the issue of a fraudulent conveyance is a question of fact and the trial court had the opportunity to evaluate the testimony and weigh the evidence.
Judge Sheldon heard the testimony of the two John Deere attorneys, Jerry Calloway (division credit manager for John Deere), and of Gene Mohr, one of the defendants. Judge Sheldon also examined numerous exhibits, including correspondence between the John Deere and Tri-County attorneys and evidence documenting the settlement negotiations among all the parties, arising out of the bankruptcy proceeding.
“Generally, when ruling on a motion for involuntary dismissal under K.S.A. 1981 Supp. -60-241(fc) at the close of plaintiff s case, a trial judge sitting without a jury has the power to weigh and evaluate the evidence in the same manner as if he were adjudicating the case on the merits and making findings of fact at the conclusion of the entire case. [Citation omitted.] On appellate review of an order of involuntary dismissal entered as per the situation above, the findings of fact made by the trial court will be upheld if there is substantial evidence to support them, and the evidence will be viewed in the light most favorable to the party prevailing at trial. [Citations omitted.]” Baker v. B.D. Andersen Constr. Co., 7 Kan. App. 2d 568, 579, 644 P.2d 1354 (1982).
There is substantial evidence to support the court’s finding that KBS did not establish a prima facie case of fraud. John Deere, the assignor of KBS, had itself been trying to negotiate a settlement with Tri-County in which SLC and EFS were not involved. John Deere ultimately settled with the banks instead and received more money than it would have in a settlement with Tri-County.. Tri-County did not assign the settlement money and judgment proceeds to EFS and SLC until after John Deere had settled with KBS and the banks. The settlement between EFS and SLC and Tri-County was filed with the bankruptcy court and made subject to the court’s approval.
It is apparent that Judge Sheldon carefully weighed all the evidence prior to ordering the dismissal. Her findings were supported by the evidence and we cannot say that the findings were clearly erroneous.
5b. The Settlement Agreement Between Tri-County and EFS and SLC
Judge Sheldon concluded that the settlement between TriCounty and EFS and SLC was “simply a settlement between a creditor and its debtor for a pre-existing debt, an event that takes place every day in the business world.” The trial court cited Jayhawk Equipment Co. v. Mentzer, 193 Kan. 505, 509, 394 P.2d 37 (1964):
“A debtor may in good faith prefer one creditor to another and the diligent creditor is entitled to protection if he is in good faith protecting his own claim as against others. [Citation omitted.]
“The mere fact that an insolvent debtor pays one creditor in full, and in doing so absorbs all of his assets, is not of itself evidence of an intention to hinder, delay or defraud other creditors.”
The evidence indicated that Tri-County did not enter into the agreement with SLC and EFS until negotiations with John Deere had broken down and John Deere had settled with KBS and the banks. In October 1985, at a bankruptcy hearing, John Deere’s attorney announced that John Deere had been in “intensive settlement negotiations” with Tri-County and Mohr and that, as soon as the settlement was completed, John Deere would withdraw as a petitioning creditor. The attorney’s testimony at trial indicated that John Deere came close to settling with Tri-County, Mohr, and the banks for a sum of $325,000. This settlement was never achieved, but John Deere ultimately settled with KBS and the two banks on March 7,1986, for the sum of $340,000. The proposed settlement between John Deere and Tri-County, Mohr, and the banks did not include EFS, SLC, or any other creditors of Tri-County.
There is no indication in the record that the agreement was made secretly or hurriedly, or that Tri-County retained control of any of the proceeds after the agreement. KBS points to the fact that the agreement was made three years after Tri-County had gone out of business. Part of the proceeds of the settlement with FNB, however, had been tied up for the entire time by EFS’s garnishment action and by the involuntary bankruptcy action against Tri-County. The appeal on the judgment against Stanley Bank was pending in this court.
The proceeds from the settlement with FNB had been in escrow for over fifteen months, and the litigation between TriCounty and” Stanley Bank had been pending for almost three years. Both. John Deere and KBS were aware of these facts.
“Under the established law of this state a debtor has a right to prefer creditors, and in doing so may pay or secure one of his creditors so long as such performance is in payment of a bona fide preexisting indebtedness.” Schmitz v. Stockman, 151 Kan. 891, 893, 101 P.2d 962 (1940).
EFS was. a judgment creditor of Tri-County. Mohr testified that he had signed notes, due to SLC on behalf of Tri-County and that he felt that the settlement with SLC was reasonable when consideration was given to the SLC claims against Tri-County.
The trial court’s determination that the agreement between Tri-County and EFS and SLC was not contrary to normal business procedures was supported by substantial evidence and was not clearly erroneous.
5c. The Agreement Between Tri-County’s Attorney and Tohn Deere’s Attorney
The trial court said:
“Plaintiffs rely on the alleged agreement between Dibble [John Deere’s attorney] and Willis [Tri-County’s attorney] as the key to its fraud claim. This agreement, assuming arguendo that there was one, was illusory at best. As such, it is unenforceable. It is illusory because essential terms were missing. It was not a present agreement, but instead an agreement to agree in the future. Further, if we attempt to piece together the alleged agreement which was to have arisen out of written memoranda among Willis and Dibble, the picture is not complete. Dibble believed the agreement was that Willis would not dispense of any settlement money without contacting him first. Willis, on the other hand, believed only that he should contact Dibble before he entered into any type of settlement. Indeed, Willis fulfilled that obligation by his phone call to Dibble’s office. It is apparent that the agreement was not enforceable as it lacked a meeting of the minds, mutuality of obligation and no consideration was paid.”
The existence or nonexistence of an agreement is a question of fact. Steele v. Harrison, 220 Kan. 422, 429, 552 P.2d 957 (1976). The correspondence between Dibble and Willis was admitted into evidence at the trial. The letters of April 1,1985, and April 8, 1985, were focused upon at trial. In addition, Dibble testified at length.
“In order for parties to form a binding contract, there must be a meeting of the minds as to all the essential terms thereof. [Citations omitted.] Generally, an agreement to make a contract in the future is not binding unless all the essential terms and conditions are agreed'upon and nothing essential to complete it is left to future negotiations.” Phillips & Easton Supply Co., Inc. v. Eleanor International, Inc., 212 Kan. 730, 734, 512 P.2d 379 (1973).
A review of the correspondence between John Deere’s attorneys and Willis indicates that there was never a meeting of the minds, but that they would continue to negotiate, pending a settlement with FNB.
On July 5,1985, three days before the Tri-County/FNB lawsuit was scheduled for trial, Deere’s attorneys wrote to Willis setting out Deere’s settlement demand for its claims against FNB. The letter stated that if Tri-County did not accept the proposal by 9:30 a.m. July 8, 1985, the hour Tri-County’s trial against FNB was to commence, the offer “will automatically terminate and be revoked.” If the Deere proposal was not accepted prior to 9:30 a.m. July 8, Deere reserved the right to pursue “any and all claims which it may have, now or hereafter,” against FNB.
The question of whether a binding contract was entered into depends on the intention of the parties and is a question of fact for the trial judge to resolve. 212 Kan. at 736-37. In a letter of January 23, 1985, from Dibble to Willis, Dibble stated, “I want some assurance that when and if Tri-County receives the proceeds of any settlement it will not unilaterally dispose of them without first coming to some agreement with John Deere Company. I do not suggest we have to reach such an agreement now.” Willis’ response of April 1, 1985, merely indicated that he would contact Dibble prior to executing any settlement agreement with FNB. Dibble’s testimony indicated that the parties specifically did not want to enter into a formal agreement at that time.
Only reasonable certainty is required in a purported contract, but where the purported contract is so vague and indefinite that the intentions of the parties cannot be ascertained, it is unenforceable. Richards Aircraft Sales, Inc. v. Vaughn, 203 Kan. 967, 971, 457 P.2d 691 (1969).
The evidence supported the trial court’s conclusion that there was no meeting of the minds and essential terms were missing to form a binding agreement. Although Dibble testified that Willis orally promised not to unilaterally dispose of any proceeds of a settlement with FNB, Dibble’s letter of April 8,1985, stating that Willis’ April 1 letter contained the assurances he wanted, contradicted that testimony. The only promise that Willis made to Dibble was that he would contact him prior to settling with FNB. There is no dispute that Willis attempted to contact both Dibble and his partner on the day of the settlement with FNB.
KBS argues that Dibble detrimentally relied on Willis’ assurances because John Deere did not intervene in Tri-County’s suit. Dibble, however, testified that he and Willis had not come to an agreement until after January 23, 1985. By that time, John Deere had already filed its suit against Tri-County and the banks in federal court. Dibble testified that, as of December 1984, John Deere had decided not to intervene and informed FNB that it would oppose an FNB motion to add John Deere as a party. The trial court found that Dibble’s reliance on Willis’ assurances was unreasonable. We agree.
5d. Reliance-Promisory Estoppel
Judge Sheldon stated:
“The court finds not that it was unreasonable for Dibble to rely on Willis’ statement per se, but it was unreasonable for him to rely in the matter in which he did. Willis, as an attorney, and as an officer of the court, had an ethical duty to deal truthfully with [Dibble], The court finds that he fulfilled this duty. The problem is that Willis’ statement in his letter to Dibble of April 1, 1985 saying \ . . I will contact you prior to executing any settlement agreement with the First National Bank of Olathe’ was relied on as standing for more than the literal language would dictate. This statement means nothing more than Willis would get in touch with Dibble before executing a settlement agreement with First National.”
Judge Sheldon made this finding based on KBS’ assertion that the doctrine of promissory estoppel could be invoked in this case because Dibble relied on Willis’ promise to his detriment. As discussed previously, most of the decisions Dibble made with regard to not intervening in the Tri-County litigation were made prior to the time he alleged that he and Willis had reached an agreement.
In order for the doctrine of promissory estoppel to be invoked as a substitute for consideration, the evidence must show: (1) The promisor reasonably expected the promisee to act in reliance on the promise, (2) the promisee acted as could reasonably be expected in relying on the promise, and (3) a refusal of the court to enforce the promise would sanction the perpetration of fraud or result in other injustice. Berryman v. Kmoch, 221 Kan. 304, 307, 559 P.2d 790 (1977). The trial court did not specifically address the first element, but did find that Dibble did not act as could reasonably be expected in relying on the promise and that Willis’ actions did not amount to a perpetration of fraud.
Judge Sheldon found that Willis fulfilled his ethical duty to deal truthfully with Dibble and that Willis’ behavior was not fraudulent. The evidence showed that the only assurance that Willis gave to Dibble was that he would contact him prior to any settlement and the evidence showed that Willis made every effort to contact both Dibble and Dibble’s partner.
Even had the court determined that Willis promised not to unilaterally dispose of the proceeds of the settlement, the evidence indicated that part of the proceeds remained in escrow for at least fifteen months pending the outcome of the involuntary bankruptcy action which was initiated by KBS.
The trial court did not err in finding that Dibble’s reliance on Willis’ statements was unreasonable.
5e. The Claims of EFS and SLC
There was sufficient evidence in the record to establish that EFS and SLC were bona fide creditors of Tri-County. EFS’s judgment against Tri-County had been affirmed in Executive Financial Services, Inc. v. Loyd, 238 Kan. 663, 715 P.2d 376 (1986). The testimony of Mohr and numerous documents admitted into evidence established that Tri-County was indebted to SLC. Tri-County raised this issue in its brief. The issue was not specifically raised by KBS. KBS has not contended that EFS and SLC were not bona fide creditors of Tri-County: consequently, we need not address this issue.
Both cases are affirmed. | [
-16,
-8,
-7,
-52,
10,
-32,
58,
-70,
73,
-31,
39,
83,
-85,
-53,
5,
105,
-10,
13,
85,
105,
83,
-77,
23,
-39,
-42,
-14,
-47,
-35,
-71,
75,
116,
22,
76,
-112,
10,
-43,
102,
-63,
-59,
22,
-116,
6,
24,
109,
-7,
-128,
-72,
-17,
54,
11,
113,
-97,
-13,
105,
29,
-62,
73,
56,
123,
-84,
81,
-16,
-118,
-121,
127,
17,
-79,
4,
-100,
38,
-40,
46,
-112,
57,
3,
-23,
114,
-74,
-106,
21,
1,
-69,
9,
102,
96,
17,
29,
-49,
-4,
-72,
46,
84,
-113,
-121,
-110,
88,
33,
15,
-106,
-99,
124,
18,
6,
-4,
-18,
4,
31,
108,
7,
-50,
-46,
-109,
-113,
116,
18,
-117,
-17,
-125,
-80,
101,
-113,
-96,
92,
-106,
27,
123,
-50,
-75
]
|
On the 14th day of June, 1974, Edward Bennett Soule was indefinitely suspended from the practice of law in Kansas. In re Soule, 215 Kan. 4, 522 P.2d 1330 (1974).
On the 16th day of March, 1988, Mr. Soule filed a petition with this court for reinstatement to the practice of law in Kansas. The petition was referred to the disciplinary administrator for consideration by the Kansas Board for Discipline of Attorneys pursuant to Supreme Court Rule 219 (1988 Kan. Ct. R. Annot. 135). On November 3, 1988, a hearing was held before a panel of the disciplinary board in the Kansas Judicial Center, Topeka, Kansas.
On January 3, 1989, the panel filed its report setting out the circumstances leading to Mr. Soule’s suspension, a summary of the evidence presented, and the panel’s findings and recommendations. The panel unanimously recommended that Mr. Soule be reinstated to the practice of law in Kansas. The panel further recommended that Mr. Soule’s reinstatement not be conditioned upon either his taking the Kansas Bar Examination or being supervised for a specified period of time after reinstatement.
The court, after carefully considering the record, accepts the recommendations of the panel and finds that Mr. Soule should be reinstated to the practice of law. The court further finds that Mr. Soule should be required to complete 15 hours of approved CLE within one year from the date of this order.
It is Therefore Ordered that Edward Bennett Soule be and he is hereby reinstated to the practice of law in the State of Kansas, conditioned upon his completion of 15 hours of approved CLE within one year of the date of this order, and the Clerk of the Appellate Courts is directed to enter his name upon the roster of attorneys authorized to practice law in Kansas.
It is Further Ordered that this order shall be published in the official Kansas Reports. | [
-76,
-21,
-114,
94,
11,
65,
58,
22,
85,
-14,
99,
83,
-83,
-38,
21,
105,
-60,
77,
86,
123,
-56,
-106,
119,
-63,
70,
-5,
81,
93,
-71,
127,
-28,
-11,
74,
-14,
-54,
-107,
-62,
72,
-47,
92,
-114,
12,
42,
-64,
88,
-63,
52,
41,
23,
10,
81,
47,
-77,
104,
30,
-49,
-88,
108,
88,
100,
81,
-111,
-103,
-123,
111,
85,
-96,
6,
-108,
7,
92,
47,
-120,
56,
0,
-4,
115,
54,
-110,
124,
79,
-119,
5,
102,
98,
19,
65,
-26,
-68,
-88,
63,
-78,
-99,
38,
-103,
80,
105,
-120,
-108,
-35,
119,
-42,
39,
124,
97,
-123,
83,
40,
78,
-50,
-108,
-79,
-33,
51,
-114,
24,
-21,
7,
50,
117,
-116,
-9,
86,
83,
114,
-101,
-90,
-76
]
|
The opinion of the court was delivered by
Holmes, J.:
Charles R. Stickney, the plaintiff in a medical malpractice action, appeals from a jury verdict finding that neither of the defendants committed medical malpractice or was negligent in the treatment of the plaintiff. The Court of Appeals, in an unpublished opinion filed July 15, 1988, reversed the judgment and ordered a new trial on the basis that the admission of collateral source benefits evidence was inherently prejudicial. The Court of Appeals did not address the other issues asserted by Mr. Stickney in his appeal. We granted petitions for review filed by The Wesley Medical Center (Wesley) and Ron Morford, M.D., the two original defendants.
On September 30,1983, at about 3:30 a.m., Charles R. Stickney was involved in an auto accident in Wichita while en route to work. He was transported by ambulance to Wesley. Ambulance personnel had placed Stickney on a spine board and had protected his neck against movement with a cervical collar and foam wedges. These precautions were standard procedure routinely undertaken with victims of automobile accidents. Stickney and the spine board were transferred from the ambulance to a hospital gurney at Wesley and wheeled to its emergency room.
Upon Stickney’s arrival at the emergency room, Jeanmarie Epperly, a nurse assistant, and Dr. Ron Morford, the emergency room physician, attended to the plaintiff. Stickney did not report any neck pain or tenderness, and neither Epperly nor Morford, during their initial examinations of Stickney, observed any other signs normally associated with neck injuries.
Dr. Morford sent Stickney to the x-ray lab for the purpose of obtaining x-rays of his chest and left elbow. Stickney was still confined to the spine board with his neck protected by the cervical collar and foam restraints. During this period Stickney’s wife and daughter arrived at Wesley. Upon his return from x-ray, Stickney was asked to sit up or stand up so the spine board could be removed from the gurney and returned to the ambulance personnel. He sat up and put his legs over the side of the gurney. Epperly testified that after 10 to 15 seconds Stickney insisted on standing up, even though she had told him to wait two to three minutes before he stood up. His daughter testified that Stickney slid off the side of the gurney toward the floor, his head slumping forward, and that her mother blocked his fall with her arm. Stickney broke out in a sweat, appeared to be short of breath, and complained of dizziness, chest pain, and neck pain. Epperly testified that she held Stickney’s arm while calling for help, that he was laid back down on the gurney, and that he did not fall to the floor.
After Stickney’s condition stabilized, Dr. Morford ordered an x-ray of his cervical spine, which revealed a fracture of the second cervical vertebra. Stickney subsequently developed a number of complications, necessitating a prolonged hospital stay.
Stickney filed this lawsuit on September 26, 1985, seeking damages for injuries and other losses sustained because of the alleged malpractice of Wesley and Dr. Morford. After a lengthy trial, the jury returned a verdict finding none of the parties to be at fault.
At the trial, collateral source benefits evidence was admitted pursuant to K.S.A. 1987 Supp. 60-3403 (subsequently held un constitutional in Farley v. Engelken, 241 Kan. 663, 740 P.2d 1058 [1987], and since repealed). The Court of Appeals reversed the judgment in this case in reliance upon Farley and our recent decision in Harrier v. Gendel, 242 Kan. 798, 751 P.2d 1038 (1988). Additional facts will be set forth as they become relevant to the various issues on appeal.
The first issue is whether the trial court erred in ruling that, if plaintiff introduced Dr. Charles Girod’s deposition into evidence, the defendants would be permitted to admit certain evidence for impeachment purposes. In the pretrial conference order filed January 27,1987, Charles Girod, M.D., deceased, was identified by the plaintiff as a witness by deposition. Dr. Girod had been deposed during discovery proceedings by attorneys for the defendants. Dr. Girod died after the deposition was taken but before trial. Defendant Wesley had filed a motion in limine to prohibit introduction of Dr. Girod’s deposition, arguing that the deposition allowed inadequate opportunity for cross-examination of Dr. Girod as plaintiff s expert witness. The motion was denied.
On February 13, 1987, Wesley filed a motion seeking permission to introduce evidence that Dr. Girod’s staff privileges at El Dorado Hospital had been terminated. Following a hearing on the motion, the court ordered production of the documents alleged to be pertinent to the matter and ordered that they be made available to all counsel. The judge specifically reserved until trial the issue of whether the documents or related testimony would be admissible. Although no record was made of the February 20 hearing on the motion, a journal entry reflecting the proceedings and the trial court’s orders was filed February 27, 1987. The journal entry was approved by plaintiff s counsel.
On March 6, 1987, plaintiff filed a motion in limine, in part asking the court to prohibit defendants from presenting any evidence maligning the reputation of Dr. Girod. At trial, counsel for Wesley again requested that the court disallow Dr. Girod’s discovery deposition. The trial court declined to reverse the earlier ruling allowing admission of the deposition. Wesley then renewed its motion to admit impeachment evidence. Specifically, Wesley sought to introduce evidence that Dr. Girod had falsified hospital records pertinent to a medical malpractice case in which he was involved while on the medical staff of El Dorado Hospital and that following peer review proceedings his privileges at the hospital were terminated. Dr. Girod’s deposition testimony had been to the contrary in that he asserted he had not been the subject of any disciplinary proceedings, had not been subjected to peer review proceedings by the hospital, had been cleared of everything, and had voluntarily resigned because of politics and disagreement with the hospital administrator. The trial court held that the defendants would be permitted to impeach Dr. Girod’s deposition testimony. Plaintiff s counsel then moved for a mistrial, arguing that the court’s ruling was unfair and a complete surprise. The court denied the motion. Plaintiff proceeded with the trial but elected not to introduce Dr. Girod’s deposition.
The plaintiff argues that the trial court reversed its earlier ruling prohibiting defendants from introducing the impeachment evidence. He contends that the ruling was a complete surprise and was a gross abuse of discretion and that the hospital documents proposed by the defense for introduction were inadmissible hearsay evidence under K.S.A. 1987 Supp. 60-460. He also argues that the impeachment evidence would have been so highly prejudicial as to render Dr. Girod’s deposition worthless. Plaintiff s arguments that he was surprised and that the court’s ruling was a reversal of a prior ruling are totally without merit. In a journal entry filed over three months prior to trial, which was approved by plaintiffs counsel, the court stated: “The Court specifically reserves until the time of trial any and all rulings upon the admissibility into evidence of any of the above documents [the hospital records relating to Dr. Girod’s hospital privileges] or testimony relating to said documents.” Plaintiffs counsel should not have been surprised by the position asserted by Wesley or by the court’s ruling on this matter.
On cross-examination of an expert witness, great latitude is necessarily indulged in order that the intelligence of the witness, his powers of discernment, and his capacity to form a correct judgment may be submitted to the jury so it may have an opportunity for determining the value of the testimony. Bourgeois v. State Highway Commission, 179 Kan. 30, 34, 292 P.2d 683 (1956). In Bott v. Wendler, 203 Kan. 212, 228, 453 P.2d 100 (1969), this court stated:
“The latitude permitted in the cross-examination of an expert witness is even wider than in the case of an ordinary opinion witness. No rule can be laid down that would determine the extent and limitation of cross-examination allowable in every case. Generally speaking, the matter must rest in the sound discretion of the judge trying the case.”
It is true that the evidence the defendants proposed to use to impeach Dr. Girod’s testimony would have been extremely prejudicial and damaging. However, it is also clear that, if it had not been for the untimely death of Dr. Girod, the evidence could have been used in cross-examination of his live testimony. We think it was equally admissible when plaintiff desired to use the discovery deposition taken by defendants to his own advantage.
Plaintiff s brief on appeal, although not entirely clear, seems to assert that the impeaching documents would amount to inadmissible hearsay evidence pursuant to K.S.A. 1987 Supp. 60-460. The hearsay argument was not specifically raised before the trial court, but even if the issue is properly before this court, the documents would appear to be admissible as business records pursuant to the exception in K.S.A. 1987 Supp. 60-460(m). We find no abuse of discretion by the trial court on this issue.
The second issue is whether the trial court erred in permitting Jeanmarie Epperly to testify as an expert and to relate a personal experience as a victim of an automobile accident. Plaintiff also argues that the trial court should have permitted plaintiffs counsel to question Epperly concerning whether, in her experience, paralysis had ever resulted from movement of a patient’s head.
Jeanmarie Epperly was called by the plaintiff as an adverse witness. On direct examination, plaintiffs counsel asked Epperly about her scholastic training and brought out that she was not a registered nurse. On cross-examination, counsel for Wesley presented evidence as to her educational and employment history. There is no support in the record for plaintiff s contention that Epperly testified as an expert witness for the defendants. All of her testimony was directed to her observations and treatment of the plaintiff and to one personal instance when she had been involved in an auto accident. She was allowed to testify that in her own case she had been transported to the hospital on a spine board with her neck in restraints and was not given a cervical spine x-ray after her arrival. One of plaintiff s theories was that a cervical spine x-ray should have been performed immediately, since he was transported to Wesley on a spine board, immobi lized by a cervical collar and foam wedges. We find no abuse of discretion in the allowance of the testimony, which had some relevance to one of the claims asserted by the plaintiff.
On redirect examination, plaintiff s counsel asked Epperly the following question: “Have you ever had an occasion where a patient in the Emergency Room at Wesley, whose head had been permitted to be moved and as a result of that movement the patient was paralyzed?” Counsel for Wesley immediately objected, arguing the question was too vague and general. The court sustained the objection.
Generally, the relevance of testimony elicited by a party from any witness, and the scope of both direct and cross-examination of a witness, is subject to reasonable control by the trial court. Exercise of reasonable control will not constitute reversible error absent a showing of abuse of discretion resulting in prejudice. Manley v. Rings, 222 Kan. 258, 261, 564 P.2d 482 (1977).
Plaintiff did not allege that he suffered paralysis following his treatment in the Wesley emergency room. The question posed to Epperly was irrelevant to this case. Whether or not head movement had ever caused a patient paralysis in Epperly’s experience at Wesley had no bearing on any material issue in this case. No error or abuse of discretion has been shown.
The next issue involves the admission of collateral source benefits evidence pursuant to K.S.A. 1987 Supp. 60-3403. At trial, evidence was admitted indicating that plaintiff had Teamster’s Union insurance and that nearly all his medical expenses had been reimbursed.
Subsequent to the trial of this case a majority of this court held K.S.A. 1987 Supp. 60-3403 unconstitutional in Farley v. Engelken, 241 Kan 663, 740 P.2d 1058 (1987). In Harrier v. Gendel, 242 Kan. 798, 751 P.2d 1038 (1988), the jury in a medical malpractice action found the defendant doctor had not been negligent in any degree, the same as in the present case. In Harrier the defendant doctor argued that the evidence of collateral source benefits related solely to the issue of damages and that the erroneous introduction of the evidence was harmless, since the jury returned a verdict of no negligence on the doctor’s part. The plaintiff argued that the introduction of the collateral source benefits evidence was prejudicial, since it might have improperly influenced the jury on the issues of liability and negligence. This court stated:
“It is impossible to say that the jury’s verdict was free from the prejudicial impact of the collateral source benefit evidence. To allow the introduction of evidence that the plaintiff received collateral source benefits is inherently prejudicial and requires reversal.” 242 Kan. at 802.
Justice Lockett, in a well-reasoned short dissent stated:
“I agree with the majority’s statement that evidence that a party received collateral source benefits is not admissible in a trial. Farley v. Engelken, 241 Kan. 663, 740 P.2d 1058 (1987). Under the instructions, however, the jury was not required to determine the collateral source issue. First, the jury was instructed to determine whether the defendant, Dr. Gendel, was negligent in his treatment of the plaintiff. If the jury found that the defendant was negligent, only then could it consider the fact that the plaintiff received collateral benefits while determining the compensation due the plaintiff.
“The burden is upon the plaintiff to show that jurors disregarded their oath, not as a matter of speculation, but as a demonstrable reality. There must be more than speculation that it was reasonably certain defendant did not receive a fair trial. State v. Ruebke, 240 Kan. 493, 498-99, 731 P.2d 842 (1987). Where a party claims error in the admission of certain evidence, there is no presumption of prejudice from the introduction of evidence alone; in addition, the party claiming error must also prove that the error prejudiced the party. Walters v. Hitchcock, 237 Kan. 31, 35, 697 P.2d 847 (1985).
“Unlike the majority, I cannot find that as a matter of law the improper introduction of evidence of collateral source benefits into the trial was so inherently prejudicial that it caused the jurors to disregard their oath and the judge’s instructions and to decide the case on an improper ground. It is true the plaintiff did not receive a perfect trial, but he did receive a fair trial. I would affirm the judgment.” 242 Kan. at 802.
In view of our holding in Harrier, the Court of Appeals reversed the present case and ordered the case remanded for a new trial. Our holding in Harrier that the admission of collateral source benefits evidence was “inherently prejudicial and requires reversal” was controlling at the time of the Court of Appeals’ opinion in this case.
However, in the very recent case of Wisher v. Hart, 244 Kan. 36, Syl. ¶ 4, 766 P.2d 168 (1988), we overruled Harrier and held:
“The erroneous admission of collateral source evidence pursuant to K.S.A. 1987 Supp. 60-3403 (held unconstitutional in Farley v. Engelken, 241 Kan. 663, 740 P.2d 1058 [1987], and since repealed) is held to be harmless error where the jury found the plaintiff s decedent to be 60 percent at fault and, accordingly, did not determine damages. Our holding in Harrier v. Gendel, 242 Kan. 798, 751 P.2d 1038 (1988), to the contrary is overruled.”
Wisher controls this issue now before the court and requires that we reverse the Court of Appeals’ opinion herein. In view of the very recent opinion in Wisker, we see no need to dwell upon this issue further.
The fourth- issue is whether the trial court committed reversible error in refusing to permit plaintiff s counsel to cross-examine Dr. Greg Snyder regarding Snyder’s alleged claim against Wesley in a prior malpractice action. Plaintiff alleges that this line of questioning was designed to challenge Dr. Snyder’s credibility.
Dr. Snyder, a neurosurgeon, was called as an expert witness on behalf of Dr. Morford. Dr. Snyder had examined and treated Stickney soon after his arrival at Wesley. He testified that in his opinion Stickney’s spinal cord injury occurred during the auto accident. He also testified that in his opinion nothing done in the emergency room in any way caused or contributed to Stickney’s prolonged hospital stay.
On cross-examination, plaintiffs counsel inquired about a previous malpractice action naming Dr. Snyder, Wesley, and others as defendants. The witness was asked' whether he had claimed in that suit that the plaintiff s injuries were caused by Wesley and the defendant radiologists. He responded, “I didn’t make any claim that was true.” The court sustained the objection by Wesley’s counsel on the ground that the question was immaterial. Out of the- hearing of the jury, plaintiff s counsel proffered that in the prior lawsuit Dr. Snyder was found not at fault and 100 percent of the fault was attributed to Wesley and the other defendants. Under the doctrine of comparative fault, certain pleadings filed on behalf of Dr. Snyder had alleged that if there was any negligence it was. that of Wesley and the other defendants and not Dr. Snyder. Counsel argued he was entitled to show that Dr. Snyder’s- statement that he had made no claim against Wesley was incorrect.
Although the witness had answered the question before the court had an opportunity to rule on the objection, the ruling sustaining the objection was correct. When read in the context of a cold record the answer, at best, is ambiguous. In any event, the entire line of questioning which related to an unconnected case was not material or relevant to the issues in this case. Extrinsic evidence of a prior inconsistent statement may be admitted for impeachment purposes only if the subject matter of the incon sistency is material to the instant case. Lilly, An Introduction to the Law of Evidence § 84 (1978). In this case, the plaintiff sought to impeach the witness using extrinsic evidence dealing with a collateral matter—the negligence of Wesley in an unrelated lawsuit. The evidence was therefore properly excluded by the trial court. See State v. Carter, 148 Kan. 472, 473, 83 P.2d 689 (1938); State v. Ray, 54 Kan. 160, 161, 37 Pac. 996 (1894). In State v. Alexander, 89 Kan. 422, Syl. ¶ 3, 131 Pac. 139 (1913), this court held: “Evidence should not be admitted to contradict a statement of a witness elicited upon cross-examination upon a purely collateral matter which does not tend to prove or disprove an issue in the case, the contradictory evidence being offered by the party eliciting the statement.”
The scope and extent of cross-examination for impeachment purposes rests largely in the trial court’s discretion. State v. Nixon, 223 Kan. 788, 794, 576 P.2d 691 (1978); State v. Nix, 215 Kan. 880, 884, 529 P.2d 147 (1974). We find no abuse of discretion in the court’s ruling.
Plaintiff also apparently complains that the trial court erred in sustaining objections to other questions propounded to Dr. Snyder on cross-examination. This line of questioning pertained to whether a cervical spine x-ray should have been taken prior to the time Stickney was permitted to sit up without wearing a cervical collar, and whether a cervical spine x-ray was indeed taken prior to that incident. Since plaintiff has not specifically briefed his arguments pertaining to this issue, it is waived or abandoned. Feldt v. Union Ins. Co., 240 Kan. 108, 112, 726 P.2d 1341 (1986); Steele v. Harrison, 220 Kan. 422, 429, 552 P.2d 957 (1976).
The fifth issue is whether the trial court erroneously denied plaintiff his right to cross-examine Dr. Philip Mills by sustaining various objections lodged by the defendants.
Dr. Mills testified for defendant Wesley. He is a physician whose specialty is physical medicine and rehabilitation. He was initially consulted in the Stickney case on December 9, 1983, and was responsible for directing Stickney’s rehabilitation therapy from that date until after his discharge from the hospital.
The record does not support plaintiff s argument that he was denied his right to cross-examine Dr. Mills. Although the court did sustain several objections to particular questions raised on cross-examination, none of the rulings constitute reversible error. The scope of cross-examination lies within the sound discretion of the trial court. Kearney v. Kansas Public Service Co., 233 Kan. 492, 501, 665 P.2d 757 (1983). The evidence plaintiff sought to elicit concerned events which took place when Stickney was first brought to the emergency room. The questions not only exceeded the scope of direct examination, but Dr. Mills repeatedly testified he had no knowledge or expertise regarding emergency room procedures. No abuse of discretion has been shown.
The last issue is whether the jury’s verdict must be set aside and a new trial granted because the jury was permitted to read and examine certain depositions that were not admitted in evidence. This issue was never raised before the trial court and is not properly before this court for review. Kansas Dept. of Revenue v. Coca Cola Co., 240 Kan. 548, 552, 731 P.2d 273 (1987). In addition, the record is not sufficient to afford meaningful review.
The decision of the Court of Appeals is reversed, and the judgment of the trial court is affirmed.
Six, J., not participating. | [
-80,
-24,
-39,
-20,
11,
98,
56,
26,
101,
-109,
-26,
115,
-83,
-61,
69,
47,
-9,
-83,
65,
107,
-41,
-77,
87,
-95,
-14,
-77,
107,
-36,
-15,
-18,
-26,
-11,
77,
40,
-62,
-123,
-58,
75,
-35,
82,
-50,
5,
8,
-24,
89,
-126,
48,
62,
-106,
15,
49,
-98,
-125,
42,
52,
-57,
-19,
40,
75,
53,
-44,
-79,
-120,
-123,
-33,
0,
-93,
4,
30,
13,
-38,
62,
-40,
-79,
16,
-20,
50,
-74,
-125,
-44,
111,
-119,
4,
98,
99,
33,
21,
-17,
-72,
-71,
46,
46,
61,
-89,
-101,
41,
-23,
13,
-106,
-67,
115,
84,
6,
124,
-3,
93,
30,
108,
6,
-113,
-108,
-77,
95,
112,
-98,
74,
-25,
47,
20,
113,
-36,
-8,
93,
-59,
59,
-77,
-66,
-110
]
|
The opinion of the court was delivered by
Lockett, J.:
Appellant, the City of Haven, Kansas, appeals a ruling of the district court of Reno County holding Municipal Ordinance No. 457 was invalid because a majority of the city council had failed to vote for its passage as required by K.S.A. 12-3002.
On September 2,1987, the chief of police of the City of Haven, (City) issued a complaint against Donald Gregg for violating Ordinance No. 457, which prohibits the sale or service of alcoholic liquor without obtaining a city license. Gregg entered a plea of no contest and a finding of guilty was entered by the municipal court judge. Gregg appealed to the district court of Reno County, claiming that because a majority of the elected members of the city council had not voted for the passage of the ordinance as required by K.S.A. 12-3002, Ordinance No. 457 was invalid.
During the district court trial, two witnesses testified. The chief of police testified that on the night the city council passed Ordinance No. 457, the mayor was absent and only four of the five elected city councilmen were present. When the ordinance was approved by the council, only two of the three members voted: two voted in favor of the ordinance, one member abstained and the member acting as mayor did not vote. The city clerk testified that three members voted for passage of the ordinance, but admitted that her minutes of the August 3, 1987, meeting merely reflected that the motion to pass the ordinance “carried.” As there was no breakdown of the “yeas” and “nays” in the minutes as required by K.S.A. 12-3002, the minutes of the meeting did not reflect an abstention, nor did the city clerk recall one. The city clerk also testified that, at the next council meeting, the minutes of the August meeting were read and approved without change or correction by the four council members present, three of whom had been present at the August meeting. The ordinance was regularly published in the official city newspaper on August 20, 1987.
At the close of the case, defendant moved to dismiss on the basis that Ordinance No. 457 was invalid since it had not been passed by a majority of the elected city council members. In a memorandum opinion, the district court determined one council member had abstained and only two members of the council had voted in favor of the ordinance. The district court then declared the ordinance invalid because a majority of the members-elect of the city council had failed to vote for its passage. The City appeals.
The Kansas Ordinances of Cities Act, K.S.A. 12-3001 et seq., sets out the procedure for consideration of an ordinance by a city governing body and the votes needed for final passage. However, the Act does not address the effect of an abstention upon the majority vote required for passage.
K.S.A. 12-3002 provides:
“The vote on any ordinance, except as otherwise provided herein, shall be by yeas and nays, which shall be entered on the journal by the clerk. No ordinance shall be valid unless a majority of all the members-elect of the council of council cities . . . vote in favor thereof: Provided, That in council cities where the number of favorable votes is one less than required, the mayor shall have power to cast the deciding vote in favor of the ordinance.” (Emphasis added.)
There is a presumption that a city government has complied with the law in passing an ordinance. In Truck-Trailer Supply Co. Inc. v. Farmer, 181 Kan. 396, Syl. ¶ 1, 311 P.2d 1004 (1957), we stated:
“Where an ordinance which has been regularly passed by a city council and approved by the mayor is offered in evidence, and the validity of such ordinance depends upon the existence of one or more facts at the time of the enactment thereof, the existence, and not the non-existence, of the necessary facts to sustain the validity of the ordinance should be presumed in the absence of evidence to the contrary.”
See State, ex. rel., v. City of Atchison, 92 Kan. 431, 140 Pac. 873 (1914).
Further, the presumption that a city complied with the law in passing an ordinance must be overcome by clear and convincing evidence. State, ex. rel., v. City of Hutchinson, 109 Kan. 484, 487, 207 Pac. 440 (1921). To be clear and convincing, evidence should be clear in the sense that it is certain, plain to the understanding, unambiguous, and convincing in the sense that it is so reasonable and persuasive as to make it believable.
The City argues that the defendant failed to overcome the presumption of regularity which attaches to the council’s action and failed to establish by clear and convincing evidence that the passage of the ordinance was invalid. Essentially, the City argues that since the city clerk testified she did not recall a council member abstaining from voting and the minutes of the council meeting reflect that the ordinance “carried,” the trial court should have accepted this as conclusive proof of proper passage.
In prior Kansas cases, parties attacking the validity of an ordinance have failed because they presented no evidence to overcome the presumption of the validity of the ordinance. Here, there was conflicting evidence. The police chief testified that two of the members voted to pass the ordinance and one member of the council abstained. The city clerk testified that three members of the council voted for passage of the ordinance. After hearing this evidence, the trial court found that only two council members voted to pass the ordinance and one abstained from voting.
Factual findings of the trial court will not be disturbed on appeal as long as they are supported by substantial evidence. Substantial evidence is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion. See Williams Telecommunications Co. v. Gragg, 242 Kan. 675, 676, 750 P.2d 398 (1988). There is substantial competent evidence which supported the trial court’s finding. In addition to the chief of police’s testimony, the city clerk stated she failed to properly record the individual votes of the members as required by K.S.A. 12-3002. Therefore, the minutes cannot be conclusive proof that the ordinance was validly passed.
Because substantial competent evidence supported the trial court’s finding, we now must determine whether the court’s finding that the ordinance was invalid because a majority of the council members failed to vote for its passage is correct. The City argues that Kansas follows the common-law rule that an abstention is counted as a vote with the majority or at least as acquiescence in the majority vote and that Kansas has not modified the common-law rule by statute. If we follow the common-law rule which counts an abstention as an affirmative vote, the ordinance would be valid because three of the five elected members to the council would have voted for passage of the ordinance.
The common-law rule regarding abstentions evolved from a rule pertaining to elections announced by Lord Mansfield in Rex v. Foxcroft, 2 Burr. 1017, 1021, 97 Eng. Rep. 683 (1760): “Whenever electors are present, and don’t vote at all, (as they have done here,) ‘They virtually acquiesce in the election made by those who do.’ ” Rex v. Foxcroft concerned the appointment of the town clerk of Nottingham by the mayor, alderman, and common council. Of the 25 electors, 21 were present, nine voted in favor of the appointment, and 12 refused to vote. Numerous subsequent cases interpreted this language to mean that those who refuse to vote, or abstainers, are to be counted as voting with the majority. See Annot., 63 A.L.R.3d 1064, and cases cited therein. See generally 4 McQuillin on Municipal Corporations § 13.32 (3d ed. rev. 1985).
Early Kansas cases demonstrate that we originally followed the common-law rule counting an abstention with the majority. In Smith v. State, 64 Kan. 730, 68 Pac. 641 (1902), the State brought an action to restrain the city of Rosedale from carrying out two ordinances which obligated the city to expend more money than it was authorized to raise for general revenue purposes. This court quoted with approval the following language from The Rushville Gas Company v. The City of Rushville et al., 121 Ind. 206, 208-09, 23 N.E. 72 (1889):
“The rule is that if there is a quorum present and a majority of the quorum vote in favor of a measure, it will prevail, although an equal number should refrain from voting. It is not the majority of the whole number of members present that is required; all that is requisite is a majority of the number of members required to constitute a quorum. If there had been four members of the common council present, and three had voted for the resolution and one had voted against it, or had not voted at all, no one would hesitate to affirm that the resolution was duly passed, and it can make no difference whether four or six members are present, since it is always the vote of the majority of the quorum that is effective. The mere presence of inactive members does not impair the right of the majority of the quorum to proceed with the business of the body. If members present desire to defeat a measure they must vote against it, for inaction will not accomplish their purpose. Their silence is acquiescence rather than opposition. Their refusal to vote is, in effect, a declaration that they consent that the majority of the quorum may act for the body of which they are members.”
Further, in Equity Investors, Inc. v. Ammest Group, Inc., 1 Kan. App. 2d 276, 281, 563 P.2d 531, rev. denied 225 Kan. 843 (1977), the Court of Appeals found that the provisions of former K.S.A. 17-3101 (Corrick) (repealed), which provided that “ ‘[t]he act of a majority of the directors present at a meeting at which a quorum is present shall be the act of the board of directors unless a greater number is required by the articles of incorporation, the bylaws, or by provisions of law,’ ” were a codification of the common-law rule.
Does K.S.A. 12-3002, which requires a majority of the members-elect of the city council to vote in favor of passage of an ordinance, alter the common-law rule regarding abstentions? Jurisdictions which have similar statutes and have considered the issue are divided as to whether a statute had modified the common-law rule.
Some states adhere to the common-law rule and count an abstention with the majority. A typical case is Northwestern Bell T. Co. v. Board of Com'rs of Fargo, 211 N.W.2d 399 (N.D. 1973), where two members of a city council voted affirmatively, one opposed, and two abstained due to a conflict of interest. The district court, refusing to count the abstention as a vote with the majority, ruled the passage of the ordinance invalid. The North Dakota Supreme Court reversed, holding an abstention should be counted as a vote with the majority, despite a statute requiring the majority of “all members of the governing body’’ to concur for valid passage of an ordinance. The court declined to adopt the rule disregarding abstentions, stating:
‘To adopt such a rule . . . would result in some instances in inaction and one-man rule by a nonacting member of the council. Such nonvoting member should be recorded either as “yea” or “nay,” for there is no provision in the statute to record or enter the inaction of a member of council who attends meetings and then refuses to vote. A councilman is elected for the purpose of expressing an opinion. Action, and not inaction, is a duty that he assumes with the office.’ ” 211 N.W.2d at 402 (quoting Babyak v. Alten, 106 Ohio App. 191, 154 N.E.2d 14 [1958]).
The North Dakota Supreme Court reasoned further that a member of a governmental body has a duty to vote and cannot avoid taking a stand because allowance of such action would encourage obstructive inaction. The court carefully restricted its ruling to cases in which present members declined to vote, rather than cases where council members were absent, dead, or disqualified. A similar result has been reached in additional jurisdictions concurring with the above holding. Payne v. Petrie, 419 S.W.2d 761 (Ky. 1967); State ex rel. Young v. Yates, 19 Mont. 239, 47 Pac. 1004 (1897); Babyak v. Alten, 106 Ohio App. 191, 154 N.E.2d 14 (1958). See generally Annot., 63 A.L.R.3d 1064.
Other jurisdictions, however, have ruled that statutes requiring a majority of the total number of members of a municipal governing body to vote in favor of an ordinance mandate an affirmative vote from each member before council action may be deemed valid. These states decline to consider an abstention as an affirmative vote. In State ex rel. Roberts v. Gruber, 231 Or. 494,373 P.2d 657 (1962), a city charter provided that vacancies in city elective offices were to be filled by vote of a majority of the elected members of the city council. The council was composed of six members, of which four attended the meeting in question, three voted in favor of the defendant’s appointment to fill the vacancy, and one abstained. The Oregon Supreme Court, affirming the circuit court, held that the common-law rule deeming abstentions as votes for the majority does not apply when the applicable statute requires affirmative action of the entire body.
In Kansas, the common law remains in force, unless modified by constitutional amendment, statutory law, or judicial decision. We recognize the validity of the common-law rule that council members have a duty to vote and should not be allowed to prevent government action by inaction; however, here the governing statute unambiguously requires an affirmative vote of a majority of the entire council.
The common-law rule that statutes in derogation of the common law shall be strictly construed is not applicable to any general statute of this state. All general statutes are to be liberally construed to promote their objective. K.S.A. 77-109. When a statute conflicts with the common law, the statute controls. Board of Neosho County Comm’rs v. Central Air Conditioning Co., Inc., 235 Kan. 977, 683 P.2d 1282 (1984).
When interpreting 12-3002, the legislative intent is the controlling factor. Accordingly, we must ascertain if the intent of the legislature was to overrule the common law by enacting the statute. K.S.A. 12-3002, which states the voting procedure and the number of members’ votes required for passage, provides: “No ordinance shall be valid unless a majority of all the members-elect of the council of council cities . , . vote in favor thereof.” (Emphasis added.)
The legislative intent is clear. K.S.A. 12-3002 requires that a majority of all the members-elect of the council vote in favor of an ordinance’s passage. Here, only two of the five council members of the City of Haven voted for passage of the ordinance. The abstention by one of the elected council members invalidated the ordinance because 12-3002 clearly prohibits counting an abstention or refusal to vote as affirmative action.
Affirmed. | [
-16,
-18,
-68,
-65,
62,
64,
26,
-100,
67,
-111,
-10,
83,
-83,
-54,
5,
107,
-101,
61,
20,
105,
-62,
-74,
71,
-32,
-90,
-37,
-5,
-59,
-73,
107,
-12,
-27,
28,
-16,
-38,
-99,
38,
-61,
-121,
92,
-122,
-90,
-119,
85,
-48,
-118,
52,
107,
50,
11,
17,
27,
-14,
40,
28,
-29,
-23,
44,
-37,
44,
89,
-13,
-86,
-107,
107,
0,
-109,
50,
-100,
-121,
-48,
46,
-102,
49,
4,
-8,
-29,
-90,
-122,
-12,
111,
-39,
-84,
38,
99,
33,
93,
-17,
-72,
-119,
14,
126,
-83,
-26,
-107,
88,
104,
1,
-74,
-35,
96,
86,
11,
-6,
103,
-59,
95,
124,
-118,
-50,
-68,
-79,
-119,
-76,
-126,
17,
-17,
-27,
48,
113,
-51,
-2,
94,
-9,
16,
27,
-121,
-40
]
|
The opinion of the court was delivered by
Allegrucci, J.:
The defendant, Lowell Thomas Eaton, appeals his convictions of one count of indecent liberties with a child (K.S.A. 21-3503) and one count of aggravated criminal sodomy (K.S.A. 21-3506). The State cross-appeals on a question reserved.
The victim in the case, B.M., was seven years old at the time the alleged acts occurred. B.M. lived with her grandmother. B.M.’s five-year-old brother, her teenaged aunt, and an uncle also lived with the grandmother. The defendant was a friend of B.M.’s grandmother and, at times, baby-sat with the children. On occasion, B.M. and her brother would spend evenings and weekends with the defendant.
In late November 1986, B.M. indicated to her aunt that the defendant had been touching her. B.M.’s grandmother was informed and she notified the sheriff. She was instructed to take B.M. to see Dr. Stephen C. Meyers, a pediatrician in Garden City. Dr. Meyers examined B.M., and at trial he testified that he found no physical evidence of vaginal or anal intercourse. He further testified that the hymen was still intact, and that, during the course of the examination, B.M. denied that the defendant had put his penis in her mouth.
Officer Linda Morgan, a volunteer reserve deputy sheriff, conducted two interviews with B.M. Prior to each interview, B.M.’s grandmother talked with B.M. and compiled a list of all the sexual acts the defendant had allegedly done to B.M. There were several inconsistencies among the lists, interviews, and B.M.’s testimony. At trial, she testified that the defendant put his penis in her mouth and that he had tried to put his penis in her “pee-pee” three times. The testimony was inconsistent with what she told Dr. Meyers and with the second list. Although the lists indicated that the defendant had put his finger in B.M.’s vagina, she did not indicate that to the officer at the time of the two interviews.
B.M.’s brother testified that he had observed the defendant put his “thing” in B.M.’s mouth. This observation was allegedly made through the bedroom window while the brother was playing in the defendant’s back yard.
The defendant did not testify, but did call several witnesses to testify for the defense. A friend of defendant was one such witness. She testified, among other things, that B.M.’s grandmother brought B.M. and her brother over to the defendant’s house on November 15, 1986, several days after the alleged incidents, and that B.M. ran over to the defendant, sat in his lap, kissed him on the cheek, and told him she loved him.
The State called Carol Lightner, a staff social worker at the Garden City Mental Health Center, as a rebuttal witness. She testified as to her education and work experience treating sexually abused children. The defendant objected on the grounds her testimony would be improper rebuttal. Prior to the trial court’s sustaining defendant’s objection, the prosecuting attorney stated that “the State intends to offer the expert testimony of Mrs. Lightner to rebut the expert testimony that Mr. Pierce offered through Dr. Meyers.”
The jury found the defendant guilty on both counts. Additional facts will be stated as necessary to determine the issues raised on appeal.
The defendant first contends that the district court erred in failing to instruct the jury on the crime of aggravated sexual battery as a lesser included offense of the crime of indecent liberties with a child. The defendant relies upon State v. Hutchcraft, 242 Kan. 55, 744 P.2d 849 (1987). This court’s decision in Hutchcraft was subsequently limited by our decision in State v. Fike, 243 Kan. 365, 757 P.2d 724 (1988), which is controlling in the present case. In Fike, we concluded that aggravated sexual battery is not a lesser included offense of indecent liberties with a child. 243 Kan. at 373. We find no merit in the defendant’s argument.
The defendant also argues that the district court erred in failing to instruct the jury on attempted aggravated criminal sodomy. One witness for the defendant testified that the complaining witness had told him that an adult man “had attempted to touch her with his fingers, . . . had tried to place his thing in her mouth.” The witness later testified that R.M. also denied that the man had engaged in “oral sex with her by sticking his penis in her mouth.” Had the jury credited this testimony, it could have found that the defendant had attempted to commit aggravated criminal sodomy, but failed to complete the attempt. The district court, therefore, erred in failing to instruct upon the crime of attempted aggravated criminal sodomy.
The State contends that the defendant waived his right to an instruction on attempted aggravated criminal sodomy when he failed to propose an instruction on the offense. We find no merit in the State’s argument. Under K.S.A. 21-3107(3), a trial court has an affirmative duty to instruct the jury as to all lesser included crimes of which the defendant might reasonably be convicted. This duty applies whether or not the defendant has requested the proposed instruction. State v. Marks, 226 Kan. 704, 713, 602 P.2d 1344 (1979).
The State also contends that an instruction on the crime of attempted aggravated criminal sodomy would have been inappropriate,, since other evidence presented in the case indicated that the crime had been completed. See State v. Grauerholz, 232 Kan. 221, 654 P.2d 395 (1982). However, the duty to instruct on all lesser included offenses does not arise simply where the preponderance of the evidence introduced in the case supports a conviction upon the lesser offense. Instead, an instruction upon a lesser included offense is required even though the evidence supporting the lesser offense may be weak and inconclusive. State v. Staab, 230 Kan. 329, 339, 635 P.2d 257 (1981).
The defendant next argues that the trial court erred in permitting B.M. to testify by means of closed-circuit television, pursuant to K.S.A. 22-3434. K.S.A. 22-3434 provides in part:
“(a) On motion of the attorney for any party to a criminal proceeding in which a child less than 13 years of age is alleged to be a victim of the crime, the court may order that the testimony of the child be taken:
“(1) In a room other than the courtroom and be televised by closed-circuit equipment in the courtroom to be viewed by the court and the finder of fact in the proceeding; or
“(2) outside the courtroom and be recorded for showing the courtroom before the court and the finder of fact in the proceeding if: (A) The recording is both visual and aural and is recorded on film or videotape or by other electronic means; (B) the recording equipment is capable of making an accurate recording, the operator of the equipment is competent and the recording is accurate and has not been altered; (C) every voice on the recording is identified; and (D) each party to the proceeding is afforded an opportunity to view the recording before it is shown in the courtroom, and copy of a written transcript is provided to the parties.
“(b) At the taking of testimony under this section:
“(1) Only the attorneys for the defendant, the state and the child, any person whose presence would contribute to the welfare and well-being of the child and persons necessary to operate the recording or closed-circuit equipment may be present in the room with the child during the child’s testimony.
“(2) only the attorneys may question the child;
“(3) the persons operating the recording or closed-circuit equipment shall be confined to an adjacent room or behind a screen or mirror that permits them to see and hear the child during the child’s testimony but does not permit the child to see or hear them; and
“(4) the court shall permit the defendant to observe and hear the testimony of the child in person, but shall ensure that the child cannot hear or see the defendant.
“(c) If the testimony of a child is taken as provided by this section, the child shall not be compelled to testify in court during the proceeding.”
Prior to trial, the State moved the trial court for an order admitting the videotapes of the two pretrial interviews of B.M., pursuant to K.S.A. 22-3433 or, in the alternative, allowing B.M. to testify by closed-circuit television, pursuant to K.S.A. 22-3434. The only rationale offered by the State in support of the motion was the age of B.M. and that “[t]aking the testimony-in this manner would be in keeping with the intent of the Supreme Court of Kansas and the Legislature and should be ordered to protect the child-victim.” The trial court denied the motion as to the two videotapes but granted permission to allow B.M. to testify by means of closed-circuit television, pursuant to K.S.A. 22-3434.
The closed-circuit testimony of B.M. was accomplished by placing in the jury room three chairs facing two large wooden booths with one-way glass fronts. The camera operator was in one booth and the defendant in the other. The defendant could observe B.M., but she could not see the defendant. The judge and jury could observe B.M. on a television screen set up in the courtroom. The judge and the attorneys could communicate by walkie-talkie.
At trial, B.M. testified in the jury room and the judge and jury observed her on the television screen in the courtroom. The defendant, although present in the jury room while B.M. testified, was hidden in one of the booths, observing her through the one-way glass.
The defendant contends that the procedure used to permit B.M. to testify violated his constitutional right to confront his accuser, and that K.S.A. 22-3434 is not capable of constitutional application. In support of his contention, the defendant relies upon the recent decision of the United States Supreme Court in Coy v. Iowa, 487 U.S--, 101 L. Ed. 2d 857, 108 S. Ct. 2798 (1988).
Writing for the United States Supreme Court in Coy, Justice Scalia statéd that the Sixth Amendment confrontation clause guarantees more than those peripheral rights which have been found to be reasonably implicit in the clause, such as the right of cross-examination and the right to exclude certain hearsay statements. 101 L. Ed. 2d at 866. The confrontation clause also provides the defendant a literal right to physically confront those witnesses who testify against him in a face-to-face meeting before the trier of fact. See 101 L. Ed. 2d at 864. This guarantee of a literal right to physical confrontation was necessary to protect “‘the core of the values furthered by the Confrontation Clause.’ ” 101 L. Ed. 2d at 864 (quoting California v. Green, 399 U.S. 149, 157, 26 L. Ed. 2d 489, 90 S. Ct. 1930 [1970]).
The United States Supreme Court acknowledged the disturb ing nature of the confrontation between victim and defendant in cases involving sex crimes, but found that the requirements of the confrontation clause were still binding:
“That face-to-face presence may, unfortunately, upset the truthful rape victim or abused child; but by the same token it may confound and undo the false accuser, or reveal the child coached by a malevolent adult. It is a truism that constitutional protections have costs.” 101 L. Ed. 2d at 866.
Joined by Justices Brennan, Marshall, and Stevens, Justice Scalía refused to decide whether, like the peripheral rights involving cross-examination and the right to exclude hearsay statements, the core or literal right to physical confrontation was also subject to exceptions designed to further important public interests. 101 L. Ed. 2d at 867.
Even if such exceptions were to be permitted with regard to the core or literal right, “they would surely be allowed only when necessary to further an important public policy.” 101 L. Ed. 2d at 867 (citing Ohio v. Roberts, 448 U.S. 56, 64, 65 L. Ed. 2d 597, 100 S. Ct. 2531 [1980]; Chambers v. Mississippi, 410 U.S. 284, 295, 35 L. Ed. 2d 297, 93 S. Ct. 1038 [1973]). The Court went further, finding that “a legislatively imposed presumption of trauma” in sex crime cases would not satisfy the requirements for an exception to the core right of confrontation; such exceptions, if any, require “individualized findings” that particular witnesses require special protection from the trauma of testimony. 101 L. Ed. 2d at 867.
Justice O’Connor (joined by Justice White) generally agreed with the opinion of the Court that the confrontation clause accords an independent, literal right to physically confront adverse witnesses. However, unlike the opinion of the Court, which refused to decide whether exceptions to the literal right were permissible, Justice O’Connor’s concurring opinion found that this right was not absolute and was subject to exceptions where the procedure was necessary to further an important public policy. Justice O’Connor agreed that the defendant’s confrontation clause rights had been violated in Coy because there had been no particularized findings of necessity under the Iowa statute. Any exceptions to the core right to physical confrontation must involve “a case-specific finding of necessity,” which is not satisfied by “the type of generalized legislative finding of necessity present” in all cases involving sex crimes. 101 L. Ed. 2d at 869.
Like the Iowa statute at issue in Coy, neither K.S.A. 22-3433 (relating to the videotaping or other recording of the statement of a child-victim witness) nor K.S.A. 22-3434 (relating to the testimony of a child-victim witness through closed-circuit television) requires an individualized finding of trauma or a need for special protection. Aside from the technical requirements for the closed-circuit television procedure, K.S.A. 22-3434(a) contains only two substantive requirements for an order authorizing the use of closed-circuit television. First, one of the parties must move for an order authorizing the use of closed-circuit television. Second, the case must involve a criminal proceeding in which the alleged child-victim is less than 13 years of age. If these requirements are satisfied, the court can order the use of closed-circuit testimony of the child-victim witness, and the trial court must “ensure that the child cannot hear or see the defendant” during the child’s testimony. K.S.A. 22-3434(b)(4).
Prior to Coy, this court upheld the constitutional validity of K.S.A. 22-3434 in State v. Chisholm, 243 Kan. 270, 755 P.2d 547 (1988), and State v. Johnson, 240 Kan. 326, 729 P.2d 1169 (1986), cert, denied 481 U.S. 1071 (1987). In State v. Johnson, this court held that K;S.A. 22-3434 satisfied the constitutional requirements of the Sixth Amendment confrontation clause. However, we analyzed the issue solely in the context of the constitutional requirements for the admission of out-of-court statements, following Ohio v. Roberts, 448 U.S. at 66. This court did not discuss the core pr.literal right to physical confrontation as an independent limitation upon the authority of the State to introduce closed-circuit television testimony.
The possibility of a core right to physical confrontation within the confrontation clause was denied by this court in State v. Chisholm, 243 Kan. 270. In Chisholm, the defendant contended that the use of closed-circuit television testimony violated his Sixth Amendment right to physically confront his accuser. This court held that the defendant’s constitutional rights were satisfied by providing the defendant’s attorney with the opportunity to cross-examine the child-victim witness:
“The only missing element in using closed-circuit television rather than live courtroom testimony is the witness’s observation of the defendant and the court during her testimony. Arguments are made that this element encourages the truth in an adult witness. However, it is more likely to inspire terror, trauma, and speechlessness in a small child. The legislature, in searching for the best means by which the truth could be ascertained, wisely provided an alternative method of adducing testimony of children under 13 years of age which preserves the right of cross-examination but eliminates the potential intimidation of a face-to-face meeting between an accused and a child victim.” 243 Kan. at 274.
In the present case, the trial court made no individualized determination that the child-victim witness required special protection. As in Johnson, 240 Kan. 326, no evidence was presented that the child-victim witness would suffer from physical or emotional trauma if she were to testify at trial. Rather, the court based its determination upon the “legislatively imposed presumption of trauma” reflected in K.S.A. 22-3434 (cf. Coy, 101 L. Ed. 2d at 867). Under K.S.A. 22-3434, the legislature has presumed that the testimony of all witnesses under the age of 13 years in criminal cases may be excluded from the requirements of the Sixth Amendment confrontation clause. The United States Supreme Court in Coy, however, has clearly indicated that such generalized legislative presumptions are impermissible. Coy requires that we find that the trial court, in the present case, violated the defendant’s Sixth Amendment confrontation rights in its order to utilize the closed-circuit television procedure.
We next turn to the constitutionality of K.S.A. 22-3434. It does not necessarily follow that K.S.A. 22-3434 is incapable of constitutional application because of our holding herein that it was unconstitutionally applied in the present case. Although that decision is dispositive of the defendant’s appeal, we are compelled to address this broader issue of. constitutionality due to the uncertainty and limited scope of the Coy decision and the need to provide guidance to. the trial courts of this state.
In determining the constitutionality of K.S.A. 22-3434, we are guided by certain basic principles. Justice Holmes, speaking for the court in In re Adoption of Baby Boy L., 231 Kan. 199, 643 P.2d 168 (1982), said:
“In examining the constitutionality of any statute there are certain basic principles which must be adhered to:
“ ‘We start with the proposition that the constitutionality of a statute is presumed; that all doubts must be resolved in favor of its validity, and before the statute may be stricken, it must clearly appear the statute violates the Constitution. It is the court’s duty to uphold the statute under attack, if possible, rather than defeat it. If there is any reasonable way a statute may be construed constitutionally permissible, that should be done.’ Board of Greenwood County Comm’rs v. Nadel, 228 Kan. 469, Syl. ¶ 1, 618 P.2d 778 (1980).
“ ‘A statute, apparently valid upon its face, may be unconstitutional in its application to a particular set of facts, circumstances or classifications.’ Max v. Kansas Turnpike Authority, 226 Kan. 1, Syl. ¶ 6, 596 P.2d 446 (1979).
“The corollary of Flax, of course, is that a statute apparently void on its face may be constitutional when limited and construed in such a way as to uphold its constitutionality by reading the necessary judicial requirements into the statute. This has often been done when it is clear that such an interpretation will carry out the intent of the legislature. State v. Motion Picture Entitled ‘The Bet,’ 219 Kan. 64, 70, 547 P.2d 760 (1976); State v. Gunzelman, 210 Kan. 481, 502 P.2d 705 (1972); State v. Hart, 200 Kan. 153, 434 P.2d 999 (1967).” 231 Kan. at 223.
In applying these principles to the present case, it is clear that K.S.A. 22-3434 does not require an individualized determination in each case prior to allowing the nonconfrontational testimony by closed-circuit television. Is it equally clear that by reading in the required individualized determination in each case the intent of the legislature will be carried out? We conclude that it is.
In State v. Vincent, 159 Ariz. 418, 768 P.2d 150 (1989), the Arizona Supreme Court faced the same question regarding an Arizona statute similar to K.S.A. 22-3434. The court said:
“The first and narrower question is whether the statute may be construed as permitting videotaped testimony only upon an individualized showing of necessity. If the statute could not be construed to require such a finding, which Coy tells us is a constitutional threshold requirement, we would be obliged to hold the statute unconstitutional on its face.
“We find no difficulty in upholding A.R.S. § 13-4253 on this ground. Although it does not explicitly require a finding of necessity, the statute implicitly does so. It is cast in permissive rather than mandatory language, requiring the trial court to exercise discretion in its use.
“ ‘The court, on motion of the prosecution, may order that the testimony of the minor be taken outside the courtroom and be recorded for showing in the courtroom before the court and the finder of fact in the proceeding. . . .’
“A.R.S. § 13-4253(B) (emphasis added). Although the statute does not indicate what factors bear on the trial court’s decision, it necessarily contemplates that the trial judge will exercise discretion in accordance with the state and federal constitutions. Thus, we hold, section 13-4253(B) requires the trial judge to condition the substitution of videotaped testimony for live testimony upon an individualized showing of necessity.” State v. Vincent, 26 Ariz. Adv. Rep. at 39.
The court then proceeded to determine the more difficult question of whether an individualized finding of trauma to the child will constitute an exception to the defendant’s constitutional right to confrontation recognized in Coy. The Arizona Supreme Court, in answering that question in the affirmative, stated:
“Justice Scalia acknowledged that certain rights implicit in the Confrontation Clause—the right to cross-examine and to exclude out-of-court statements, for example—were not absolute and might give way to other important interests. But this, he wrote,
“ ‘is not the same as holding that we can identify exceptions, in light of other important interests, to the irreducible literal meaning of the clause: “a right to meet face to face all those who appear and give evidence at trial.” California v. Green, 399 U.S. [149,] 175, 90 S. Ct. [1930,] 1943-44, [26 L. Ed. 2d 489, 506 (1970)] (Harlan, J., concurring) (emphasis added). We leave for another day, however, the question whether any exceptions exist. Whatever they may be, they would surely be allowed only when necessary to further an important public policy.’
“Id. at_, 108 S. Ct. at 2803, 101 L. Ed. 2d at 867 (emphasis in original).
“Though the Court’s opinion left the question of exceptions unsettled, two of the six participants in that opinion were willing to address it. Justice O’Connor, joined by Justice White, wrote in separate concurrence:
‘ “I would permit use of a particular trial procedure that called for something other than face-to-face confrontation if that procedure was necessary to further an important public policy. . . . The protection of child witnesses is, in my view and in the view of a substantial majority of the states, just such a policy. The primary focus therefore likely will be on the necessity prong. I agree with the Court that more than the type of generalized legislative finding of necessity present here is required. But if a court makes case-specific finding of necessity, as is required by a number of state statutes, . . . our cases support that the strictures of the Confrontation Clause may give way to the compelling state interest of protecting child witnesses.’
“Id. at_, 108 S. Ct. at 2805, 101 L. Ed. 2d at 869-70 (O’Connor, J., concurring).
“The majority and concurring opinions in Coy highlight two competing principles,.both of them deeply held. As Justice O’Connor observes, the protection of child witnesses is an important public policy; society has a natural concern to spare children the unnecessary rigors of appearance at trial. Yet, as Justice Scalia points out, the rigor of a face-to-face encounter between witness and accused has a fundamental function in the truth-discerning process. It impresses the witness with ‘the seriousness and solemnity of the occasion,’ Wildermuth v. State, 310 Md. 496, 513, 530 A.2d 275, 283 (1987), and aids the fact-finder in distinguishing the false accuser from the true, the uncertain from the sure.
“These competing objectives cannot be wholly reconciled. To whatever extent the law insists on face-to-face confrontation, it heightens the anxiety, and perhaps the trauma, of those who are willing to bear witness against crime. Yet ‘a witness’s reluctance to face the accused may be the product of fabrication rather than fear or embarrassment.’ Wildermuth, 310 Md. at 511, 530 A.2d at 282 (quoting Herbert v. Superior Court, 117 Cal. App. 3d 661, 671, 172 Cal. Rptr. 850, 855 (1981)). To whatever extent the law cushions a witness against the crucible of confrontation, it diminishes a fundamental courtroom test of truth.
“Into this thicket of competing values and objectives, we step partway today. Our guidepost is the witness unavailability standard of Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980), as applied in State v. Robinson, 153 Ariz. 191, 735 P.2d 801 (1987), and in two recent decisions of the Maryland courts.” State v. Vincent, 26 Ariz. Adv. Rep. at 39-40. ■
The Arizona court analyzed and then relied upon the recent case of Craig v. State, 76 Md. App. 250,544 A.2d 784 (1988). The Maryland statute provided an exception to face-to-face confrontation upon a judicial determination that such would “result in the child suffering serious emotional distress such that the child cannot reasonably communicate.” 76 Md. App. at 275. The constitutionality of the Maryland statute had been upheld by the Maryland Court of Appeals prior to Coy. The constitutionality of the statute was again before the Maryland Court of Special Appeals following the decision in Coy. The Arizona Supreme Court noted that the Craig court reaffirmed the constitutionality of the Maryland statute, and then compared the two statutes:
“The Craig court stressed the ‘high statutory threshold’ that must be crossed to justify abridgment of a defendant’s confrontation rights:
“ ‘[OJrdinarily the judge should observe and question the child. Additionally, testimony about the likely impact on the particular child must be specific and must show much more than mere nervousness or excitement or some reluctance to testify. . . . While the testimony need not be given in the precise words of the statute, it must be clear that the statutory requirements are met in substance. . . . Testimony about the likely impact on the child testifying must be definite, related to the statutory standard, and specific to the potential child witness him or herself.’
“Craig, 76 Md. App. at [285], 544 A.2d at 801 (quoting Wildermuth, 310 Md. at 524, 530 A.2d at 289).
“Arizona’s statute lacks the specificity of Maryland’s. As we have indicated, it necessarily contemplates that the trial judge will exercise discretion in accordance with the state and federal constitutions; yet it leaves the limits of that discretion to be elucidated by the courts. Maryland’s analysis of the Ohio v. Roberts criterion of unavailability assists us in supplying one basis for the proper exercise of such discretion.
“A central finding in Wildermuth and Craig was that the unavailability criterion would be satisfied by a well-grounded judicial determination that a child witness would be so traumatized by face-to-face confrontation as to be prevented from reasonably communicating. This court made a similar finding in a different context in State v. Robinson, 153 Ariz. 191, 735 P.2d 801 (1987). There a five year old child had been sexually abused by the defendant. The trial court found the child ‘unavailable’ for testimony at trial. The child’s out-of-court statements were admitted into evidence pursuant to A.R.S. § 13-1416, the ‘Minor Sexual Victim Testimony Act.’ We held that statute an unconstitutional infringement on the rule-making authority of the judiciary. However, we held that the statements were properly admitted pursuant to existing exceptions to the hearsay rule. The defendant argued that the admission of such testimony violated his confrontation rights under the state and federal constitutions. We rejected that argument, finding under Ohio v. Roberts that the witness was unavailable and that her out-of-court statements bore adequate indicia of reliability. . . .
“We build on Robinson today in giving a partial answer to the question left open in Coy: whether any exceptions exist to the ‘right to meet face to face all those who appear and give evidence at trial.’ [487] U.S. at-, 108 S. Ct. at 2803, 101 L. Ed. 2d at 867. An exception exists, we hold, under both the state and federal constitutions, where the state sustains its burden of proving by an individualized showing to the trial court that face-to-face testimony would so traumatize a child witness as to prevent the child from reasonably communicating. Like Maryland, we conclude that such a finding is ‘tantamount to a finding of unavailability in the Roberts sense,’ Wildermuth, 310 Md. at 519, 530 A.2d at 286, and would justify the substitution of the videotaped procedure established by A.R.S. § 13-4251. In so holding, we observe that § 13-4251 preserves all aspects of the defendant’s confrontation rights except the right to receive accusatory testimony face-to-face. We also observe that the statute permits the trial court authority to assure that videotaping will occur in a neutral, courtroom-like atmosphere.” State v. Vincent, 26 Ariz. Adv. Rep. at 40-41.
We find the reasoning of the Arizona Supreme Court persuasive. We are cognizant of the dilemma that this court, and the highest courts of our sister states, face in that we are bound by the decision in Coy, but we are not told what exceptions, if any, will be recognized by the United States Supreme Court. As Justice Scalia stated: “We leave for another day, however, the question whether any exceptions exist. Whatever they may be, they would surely be allowed only when necessary to further an important public policy.” Coy v. Iowa, 101 L. Ed. 2d at 867. “Another day” has arrived for this court. We find ourselves basically in the same situation as the Arizona Supreme Court did in Vincent. Ariz. Rev. Stat. Ann. § 13-4251 et seq. (1988 Supp.), for constitutional purposes, is identical to K.S.A. 22-3434. Likewise, this court has followed Ohio v. Roberts, 448 U.S. 56, in holding out-of-court statements of a child victim do not violate the confrontation clause of either the Kansas or the United States Constitutions. We so held in State v. Myatt, 237 Kan. 17, 697 P.2d 836 (1985), as to out-of-court statements admitted pursuant to K.S.A. 60-460(dd), and in State v. Johnson, 240 Kan. 326, 729 P.2d 1169 (1986), cert, denied 481 U.S. 1071 (1987), where videotaped statements were admitted pursuant to K.S.A. 22-3433 and 22-3434.
While the Court’s opinion in Coy indicated that any exception to the core right to confrontation required individualized findings that a particular witness required special protection, the Court refused to indicate whether such exceptions were permissible.. The.Court left open the possibility that the core right to face-to-face confrontation was an absolute right not subject to exceptions. The concurring opinion authored by Justice O’Con-nor rejected such a view, finding that “our precedents recognize a right to face-to-face confrontation at trial, but have never viewéd.that right as absolute. I see no reason to do so now and would recognize exceptions here as we have elsewhere.” 101 L. Ed. 2d at 869.
The Sixth'Amendment right guáranteeing physical confrontation between the defendant and his accuser is an important right, but it is not an absolute right to be applied universally and without exception. Several of the decisions of the United States Supreme' Court recognizing exceptions to the hearsay limitations contained in- the confrontation clause are also necessarily exceptions .to the right to physical confrontation. See Ohio v. Roberts, 448 U.S. 56. An exception to the confrontation clause which permits the introduction of the statements of an accuser made as an out-of-.court statement inherently involves no less an exception tp the right of the defendant to physical confrontation. As Justice O’Connor noted, an absolute application of a right to physical confrontation would prevent the use of any out-of-court statements when the witness is unavailable. See 101 L. Ed. 2d at 869 (citing Bourjaily v. United States, 483 U.S. 171, 97 L. Ed. 2d 144, 107 S. Ct. 2775 [1987]). See Craig v. State, 76 Md. App. 250.
As previously noted, both the opinion authored by Justice Scalia'and the concurring opinion by Justice O’Connor indicate that face-to-fáce physical confrontation may be excused only where, there is a case-specific finding of necessity. Such an exception must'be “necessary to further an important public policy.” 101 L. Ed. 2d at 867; cf. Ohio v. Roberts, 448 U.S. at 64. One such important public policy is the protection of child-victim witnesses from the trauma of “the harsh atmosphere” of a criminal trial. See, e.g., 101 L. Ed. 2d at 868, 869 (O’Connor, J., concurring).
This important public policy was clearly articulated by the Maryland Court of Special Appeals in Craig:
“Implicit in this examination is the underlying conclusion that the State has a legitimate and compelling interest in authorizing this kind of procedure, but, to the extent that conclusion was a tacit one in Wildermuth, we shall articulate it now. We conceive that the State has really a two-fold interest in allowing the testimony of a child abuse victim to be given via closed circuit television. Paramount, of course, is the fact that, if the child-victim is actually unable to testify otherwise—if he/she would be so ‘traumatized’ by a face-to-face confrontation as to be unable to ‘reasonably communicate’—the truth of the matter might never be revealed, a terrible crime might go unredressed, and a dangerous person might be turned loose to continue his or her predation, perhaps (and, in some instances, likely) upon the same helpless victim. In addition, although somewhat related, the State has an interest in protecting children generally from trauma, especially trauma that would result from the deliberate action of the State itself. Keeping in mind the threshold requirement in § 9-102, what is to be gained from forcing a child-victim to testify in the direct presence of the defendant when the only product of it will be further suffering for the child rather than any meaningful evidence—inculpatory or exculpatory? We have no doubt that the procedure authorized by § 9-102 is one that is ‘necessary to further an important public policy.’ Coy v. Iowa, [487] U.S. at __, 108 S. Ct. at 2803.” Craig v. State, 76 Md. App. at 283.
In State v. Kuone, 243 Kan. 218, 757 P.2d 289 (1988), this court found that the psychological trauma or disability resulting from a sexual assault could, in certain cases, constitute unavailability as that term is used in K.S.A. 1988 Supp. 60-460(dd). We found that a determination of unavailability due to then-existing mental illness could be based upon a review of the following factors:
“(1) the probability of psychological injury as a result of testifying, (2) the degree of anticipated injury, (3) the expected duration of the injury, and (4) whether the expected psychological injury is substantially greater than the reaction of the average victim of a rape, kidnapping, or other violent act. Other factors may also be relevant.” 243 Kan. 218, Syl. ¶ 2.
It would seem no less appropriate to utilize these factors, among others, in determining if a child victim is unavailable to testify, as required by the Roberts test, and thus justify the closed-circuit television procedure pursuant to K.S.A. 22-3434.
In Vincent, the Arizona Supreme Court, in reference to the finding that a child would be so traumatized by face-to-face testimony, said:
“Like Maryland, we conclude that such a finding is ‘tantamount to a finding of unavailability in the Roberts sense,’ Wildermuth, 310 Md. at 519, 530 A.2d at 286, and would justify the substitution of the videotaped procedure established by A.R.S. § 13-4251.” State v. Vincent, 26 Ariz. Adv. Rep. at 41.
We hold that an exception exists to a defendant’s right to confrontation where the State establishes by clear and convincing evidence that to require a child to testify in open court will so traumatize the child as to prevent the child from reasonably communicating to the jury or render the child unavailable to testify! Such an individualized finding must be made by the trial court before the State is permitted to proceed under the provisions of K.S.A. 22-3434.
Having determined that it was error to permit the closed-circuit testimony of B.M., we must determine if the error was harmless. The State contends that, even if the use of closed-circuit testimony violated the defendant’s right to confrontation, the error ;was harmless since “[t]here was sufficient evidence to convict [the defendant] without considering” the testimony of B.M. Such is not the test to determine if, in the present case, the error Was harmless. Before error involving a federal constitutional, right can be found harmless, we must be able to declare our belief that the error was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824, reh. denied 386 U.S. 987 (1967).
In the present case, it cannot be said beyond a reasonable doubt that the error was harmless. Underlying the decision of the United States Supreme Court in Coy was the impact of face-to-face confrontation upon the credibility of a witness. A physical confrontation of the witness and the defendant “may confound and undo the false accuser, or reveal the child coached by a malevolent adult.” 101 L. Ed. 2d at 866. The prejudice or harmlessness of the trial court’s error in the present case, therefore, cannot be determined solely by determining whether there was ’sufficient evidence from other witnesses to convict the defendant. Had the jury been accorded the opportunity to observe the confrontation of the alleged child victim and the defendant, it could have concluded that the accusation was false and required acquittal. In the present case, the testimony of the child-victim witness and her brother provided the only direct evidénce in support of the indecent liberties charges. In considering the issue of harmless error, the question is not whether there might have been sufficient evidence upon which the accused could have been convicted without the improperly admitted evidence, but whether “there is a reasonable possibility that the evidence complained of might have contributed to the conviction.” Fahy v. Connecticut, 375 U.S. 85, 86-87, 11 L. Ed. 2d 171, 84 S. Ct. 229 (1963). In the present case, where the testimony of the alleged child-victim witness and her five-year-old brother provided the central thrust of the State’s case against the defendant, it cannot be said that the trial court’s error was harmless beyond a reasonable doubt.
As previously noted, the State cross-appealed on a question reserved. The question reserved was whether the trial court abused its discretion in refusing to allow expert testimony concerning the child sexual abuse accommodation syndrome as rebuttal evidence. We note, however, that counsel for the State indicated in her brief that the question reserved “may be properly addressed as a response to [defendant’s] third issue,” and the State abandoned its cross-appeal. Since our holding herein is dispositive of the appeal, we need not decide defendant’s third issue nor consider the remaining issues raised by defendant.
The judgment of the district court is reversed and the case is remanded for further proceedings. | [
112,
104,
-23,
-65,
26,
97,
42,
56,
91,
-93,
51,
115,
-85,
-38,
4,
121,
-109,
127,
92,
113,
-47,
23,
23,
-31,
-14,
-13,
-70,
94,
-13,
95,
-28,
-106,
72,
48,
26,
-15,
-62,
-54,
-25,
92,
-114,
-123,
-87,
96,
17,
-110,
36,
63,
74,
78,
49,
31,
-13,
42,
28,
-49,
-23,
44,
75,
-67,
92,
49,
-70,
21,
13,
52,
-93,
39,
-100,
1,
-8,
44,
-100,
49,
32,
121,
50,
-92,
-126,
-12,
79,
-120,
-116,
96,
-30,
33,
45,
-57,
-83,
-56,
-113,
127,
61,
-89,
-104,
105,
72,
100,
-65,
-35,
116,
80,
40,
-8,
-15,
-58,
55,
100,
-88,
-113,
-92,
-111,
-49,
52,
-100,
-80,
-13,
61,
0,
117,
-49,
-32,
84,
86,
120,
-45,
62,
-14
]
|
The opinion of the court was delivered by
Holmes, J.:
This is an appeal by Gorham State Bank from an order of the Russell County District Court granting summary judgment to the defendants in a civil action filed by plaintiff bank to set aside certain conveyances of real estate as having been made with intent to hinder, delay, and defraud creditors of defendant Berniece M. Sellens. Summary judgment was granted to defendants on the ground that this civil action was commenced more than four months after the first publication of notice to creditors in the estate of Berniece Sellens’ husband, Ralph Sellens, to whom the subject real estate had been conveyed. The district court ruled that the nonclaim statute, K.S.A. 1988 Supp. 59-2239, barred the claim of plaintiff bank to the properties, which had been listed as assets of the decedent’s estate. We reverse.
The underlying facts leading to this appeal are not disputed. Sometime prior to May 23, 1984, the plaintiff, Gorham State Bank, made an unsecured loan to the defendant, Berniece M. Sellens. Following a number of extensions, the loan became due December 11, 1984, in the amount of $82,880.83. Berniece defaulted on the loan.
At the time the loan was originally made, Berniece and her husband, Ralph Sellens, owned several parcels of real estate in Russell County in joint tenancy. On July 29, 1985, Berniece Sellens and Ralph Sellens, as joint tenants, conveyed the real estate to Ralph Sellens, individually. The deeds were promptly recorded.
On October 15, 1985, the Gorham State Bank filed suit in Russell County District Court against Berniece M. Sellens and on December 27, 1985, secured a default judgment in the amount of $82,880.83 plus interest thereon at 14 percent per annum from December 11, 1984.
Ralph Sellens died January 7, 1986, and his widow was appointed executrix of his will and estate on January 14, 1986. Berniece Sellens, as executrix, first published the notice to creditors required by K.S.A. 1988 Supp. 59-2236 on January 20,
1986. On May 5,1986, Berniece disclaimed all her interest in her husband’s estate pursuant to K.S.A. 59-2291 et seq. The four-month period for filing claims or demands against Ralph Sellens’ estate expired May 20, 1986. No claim or demand was filed by Gorham State Bank within that statutory period. The inventory and appraisal filed in Ralph’s estate in January 1987 included the real properties described in the July 1985 deeds.
On June 12, 1986, this action was filed by the bank against Berniece M. Sellens, individually and as executrix of her husband’s will and estate. The defendant answered, raising, inter alia, the defense that the plaintiff’s claim was barred by the nonclaim statute, K.S.A. 1988 Supp. 59-2239. Thereafter, Berniece resigned as executrix due to ill health, and Joyce A. Mahoney was appointed as administrator C.T.A. On June 19, 1987, she was substituted as a party defendant in this case in place of Berniece M. Sellens, executrix. On July 29, 1987, the defendants Berniece M. Sellens, individually, and Joyce A. Ma-honey, as administrator C.T.A., filed a motion for summary judgment asserting that this action was barred by the nonclaim statute.
On May 23, 1988, the trial court rendered its memorandum decision granting summary judgment to the defendants, reasoning that plaintiffs exclusive remedy was to file a demand or claim against the estate of Ralph Sellens, and since the plaintiff failed to do so the action was barred by K.S.A. 1988 Supp. 59-2239. Plaintiff has appealed. The case was transferred to this court pursuant to K.S.A. 20-3018(c).
The scope of appellate review applicable when a grant of summary judgment is challenged has been stated many times.
“The burden on the party seeking summary judgment is a strict one. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. On appeal we apply the same rule, and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. [Citation omitted.] The party opposing summary judgment, however, has the affirmative duty to come forward with facts to support its claim, although it is not required to prove its case. [Citation omitted.] If factual issues do exist, they must be material to the case to preclude summary judgment. [Citation omitted.]” Bacon v. Mercy Hosp. of Ft. Scott, 243 Kan. 303, 306-07, 756 P.2d 416 (1988).
As noted in Bacon, the mere existence of unresolved factual issues does not necessarily preclude summary judgment. “If a disputed fact, however resolved, could not affect the judgment it is not a material fact so as to preclude summary judgment.” In re Estate of Messenger, 208 Kan. 763, Syl. ¶ 4, 494 P.2d 1107 (1972); see Secrist v. Turley, 196 Kan. 572, 575, 412 P.2d 976 (1966).
Plaintiff relies upon K.S.A. 33-102, a section of the Kansas Statute of Frauds that has not been amended since its enactment in 1868. The statute provides:
“33-102. Transfers to delay or hinder creditors or purchasers. Every gift, grant or conveyance of lands, tenements, hereditaments, rents, goods or chattels, and every bond, judgment or execution, made or obtained with intent to hinder, delay or defraud creditors of their just and lawful debts or damages, or to defraud or to deceive the person or persons who shall purchase such lands, tenements, hereditaments, rents, goods or chattels, shall be deemed utterly void and of no effect.”
It is the plaintiff s position that the July 1985 conveyances of the real property from Berniece and Ralph, as joint tenants, to Ralph, individually, were made with intent to defraud the plaintiff, a creditor, and that the conveyances were void under the statute. Plaintiff then contends that, since the conveyances were void, title to the property vested in Berniece as the surviving joint tenant by operation of law upon the death of Ralph. Thus, the property never became a part of Ralph’s estate, and therefore plaintiff was not required to file a claim or demand against the estate and the nonclaim statute is inapplicable.
Defendants, on the other hand, assert that, because record title to the real estate was in Ralph, this is an action to withdraw or remove property from the estate, and it had to be filed as a claim or demand against the estate within the four-month period of the nonclaim statute.
This court has held that whether or not a conveyance is fraudulent as to creditors under K.S.A. 33-102 is largely a question of fact. Credit Union of Amer. v. Myers, 234 Kan. 773, Syl. ¶ 5, 676 P.2d 99 (1984), and cases cited therein; Polk v. Polk, 210 Kan. 107, 110, 499 P.2d 1142 (1972); Walkeen v. Brown, 88 Kan. 571, 572, 128 Pac. 1122 (1913); Parmenter v. Lomax, 68 Kan. 61, 66, 74 Pac. 634 (1903). The party alleging a fraudulent conveyance must prove the allegation by clear and convincing evidence. Nordstrom v. Miller, 227 Kan. 59,65,605 P.2d 545 (1980). However, a party resisting a motion for summary judgment need not present this quantum of evidence in order to succeed in opposing the motion. Credit Union of Amer. v. Myers, 234 Kan. 773, Syl. ¶ 7.
For purposes of this appeal, the issue is not whether the conveyance was fraudulent, but whether a determination of that fact issue could affect the judgment and whether the plaintiff is timely in asserting its cause of action. If so, there remain unresolved “material” facts which precluded summary judgment.
Along with similar early statutes of other states, K.S.A. 33-102 was based upon the 16th century Statute of Elizabeth (13 Eliz. ch. 5 [1570]). Like the Statute of Elizabeth, our statute explicitly provides that a fraudulent conveyance “shall be deemed utterly void and of no effect.” However, the courts have not been in agreement as to the practical effect of such a conveyance. In 37 Am. Jur. 2d, Fraudulent Conveyances § 106, it is stated:
“The early statutes and many of those which have been patterned after them declared that the prohibited conveyance should be ‘void’; and if this language were to be taken literally, the consequence would be to render the transaction invalid and ineffectual, not only as to persons who have been defrauded, but also as to strangers and even the transferor himself. The Uniform Fraudulent Conveyance Act [which Kansas has not adopted], on the other hand, does not, in terms, state that a conveyance shall be ‘void,’ providing merely that certain conveyances shall be ‘fraudulent.’ Under both the older statutes and the Uniform Act, the courts have generally held that a voluntary or fraudulent conveyance is valid between the parties and in fact as to the whole world, except those within the protection of the statutes. The word ‘void’ in the statutes has ordinarily been construed to mean ‘voidable,’ and ‘voidable’ only at the instance and option of those who are within the meaning of the expression ‘creditors and others’ or ‘purchasers.’ Hence, even as against creditors, the generally prevailing view is that a fraudulent conveyance is merely voidable at their option. The statement that a fraudulent transfer is void as to creditors is generally held to mean that the rights of creditors are not affected by the transfer, that creditors may, notwithstanding the transfer, avail themselves of all remedies for collecting their debts out of the property or its avails, and that in pursuing those remedies they may treat the property as though the transfer had not been made—that is, as the property of the debtor. The conveyance will be held to have been ineffectual as to the transferor’s creditors only to the extent that may be necessary in order that the debts may be paid.” (Emphasis added.)
Additional insight into the history of the Statute of Elizabeth, our statute of frauds, and early cases applying our statute may be found in Moreau, Fraudulent Conveyances In Kansas—Substantive Law, 11 J.K.B.A. 205 (1943); Christenson, Fraudulent Conveyances In Kansas, 8 J.K.B.A. 360 (1940); and 1 Glenn, Fraudulent Conveyances and Preferences § 58 (rev. ed. 1940).
The Kansas cases appear to follow a variation of the general rule. While recognizing that legal title passes to the donee of the fraudulent conveyance, our cases hold that equitable title remains with the donor. Thus, the conveyance is void only as to the equitable title and is merely voidable as to the legal title.
In Bremen State Bank v. Loffler, 121 Kan. 6, 245 Pac. 742 (1926), a creditor attached Kansas land belonging to a nonresident debtor. The debtor contended that he had no attachable property in Kansas because he had conveyed his Kansas realty to his son, admittedly for the purpose of defrauding his creditors. The court rejected the debtor’s motion to dissolve the attachment, noting that it was clear the transfer was designed to secure the property against attachment or execution. This court concluded:
“It is the policy of the law that a debtor’s property shall be liable for his debts, and he cannot avoid liability by a fraudulent transfer. Such a transfer is void at law as well as at equity, and is to be treated as a nullity. While the legal title had been transferred by the defendant, he was the equitable owner of the property. An equitable interest in land is subject to attachment although the legal title is held by another. (Bullene v. Hiatt, 12 Kan. 98, Shanks v. Simon, 57 Kan. 385, 46 Pac. 774; Parmenter v. Lomax, 68 Kan. 61, 74 Pac. 634.)” 121 Kan. 9. (Emphasis added.)
This language was recently quoted with approval in In re Hensley, 70 Bankr. 237, 239 (Bankr. D. Kan. 1987). The pertinent syllabus paragraph of Bremen State Bank reads:
“A fraudulent transfer of land made to defeat a creditor is a nullity as to the creditor, and although the debtor has placed the legal title in another, his equitable interest in the land is subject to attachment for his debt.” 121 Kan. 6, Syl. ¶ 3. (Emphasis added.)
In Stumbaugh v. Anderson, 46 Kan. 541, 26 Pac. 1045 (1891), judgment creditors brought suit to set aside a deed made by the Andersons to their two sons. Judgment was entered for defendants, and the creditors appealed. This court reversed, stating:
“While a voluntary conveyance of land from a parent to his infant would be valid, where the claims of creditors do not intervene, yet if creditors are prejudiced by such a conveyance, they would have an equitable right to set it aside, or to avoid it to the extent at least of the debts due them.” 46 Kan. at 542. (Emphasis added.)
In Parmenter v. Lomax, 68 Kan. 61, a judgment creditor sued in equity to set aside certain transfers of real estate that had been made by the debtor to his relatives before the judgments were entered, but after the liability giving rise to the judgments was incurred. Although judgment was held properly entered against the judgment creditor for lack of evidence of fraud, this court held that the judgment creditor had a right to maintain the action in pursuit of the equitable interest in the land, which the court held was subject to attachment in Kansas.
In the recent case of Credit Union of Amer. v. Myers, 234 Kan. at 778, this court stated, “In Kansas every conveyance of land made with the intent to defraud creditors is deemed utterly void and of no effect. K.S.A. 33-102.”
Research has disclosed only one case that is factually similar to the instant appeal. In Flaks, Inc. v. DeBerry, et al, 53 Wyo. 203, 79 P.2d 825 (1938), 116 A.L.R. 1191, a creditor corporation sued its debtor for judgment for the amount owing, and to set aside an allegedly fraudulent conveyance of the debtor’s business to a third person, Vassos, to the extent of the debt. Vassos had died, and his administrators were named as defendants. Plaintiff also sought to attach the property alleged to have been fraudulently conveyed.
Unlike Kansas, Wyoming had enacted the Uniform Fraudulent Conveyance Act. That act permitted defrauded creditors either to have the conveyance set aside to the extent necessary to satisfy the claim, or to disregard the conveyance and attach or levy execution upon the property conveyed. The lower court granted the defendants’ motion to discharge the attachment for reasons that were not made clear.
The Wyoming Supreme Court reversed, holding that the attachment should not have been discharged for the reasons stated in defendants’ motion, which in part contended that the property was an asset of Vassos’ estate. In reaching that conclusion, the court stated:
“The right of the creditor to disregard the conveyance and attach the property presupposes that the title for the purpose of enabling the creditor to enforce his claim remains in the fraudulent grantor. [Citations omitted.] The attachment gives the creditor a lien which (at least before the Uniform Fraudulent Conveyance Act) was necessary as the basis of an action to set the conveyance aside. [Citations omitted.] Sometimes it is said that a fraudulent purchaser holds the property in trust for creditors of the vendor. [Citations omitted.]
“An administrator in possession of property conveyed to his intestate in fraud of creditors stands in the shoes of the deceased vendee. He takes only what his intestate rightfully held at his death. [Citations omitted.] It is not the policy of the law that he should hold the property to which others have a superior right. The statute gives the creditor the right to disregard the fraudulent conveyance and attach the property conveyed, as against any person except a purchaser for fair consideration without notice of the fraud. The administrator of the fraudulent vendee is not a ‘purchaser.’ Whether it be said that the property, as against the creditor, belongs to the debtor, or that it is held by the administrator as trustee for the creditor, does not matter. In so far as it is subject to the superior rights of the creditor, it is not rightfully in the custody of law so as to exempt it from the process of attachment.” 53 Wyo. at 210-11.
We recognize, of course, that Flaks is clearly distinguishable from the present case; however, much of what is said is informative and applicable to an action under K.S.A. 33-102.
It appears clear that K.S.A. 33-102 may be literally applied when the property is fraudulently conveyed with the knowledge and consent of the grantee and the rights of innocent third parties have not intervened, and in an appropriate case the equitable title, at least, remains in the fraudulent grantor. On the other hand, the rights of innocent third parties such as bona fide purchasers for value, without notice or knowledge of any fraud, are fully protected under our decisions, and in certain instances under other applicable statutes such as the real estate recording and notice statutes. We need not determine here the scope of K.S.A. 33-102 as it applies to other possible factual situations; nor are we called upon to determine the interest, if any, Berniece retains in the property. Suffice it to say, the issue at this point is whether under K.S.A. 33-102 Berniece retained any interest in the real property. If plaintiff can meet its burden of proof under the statute, the conveyances may be void, at least to the extent of the interest of Berniece in the property.
However, the foregoing determination does not conclude this appeal. Resolving the inferences which may reasonably be drawn from the facts in favor of plaintiff, who was the party opposing summary judgment, we must assume that the conveyances were fraudulent and therefore void under K.S.A. 33-102, at least as to plaintiff. If so, was it necessary for plaintiff to file a claim or demand against Ralph’s estate within the period of the nonclaim statute? We think not.
The defendants, as did the trial court, rely heavily on the numerous cases and authorities which assert the oft-repeated rules that, to take property out of an estate, one must proceed in probate court under the probate code, but to bring property into an estate, one must proceed under the code of civil procedure in the district court. See, e.g., In re Estate of Thompson, 164 Kan. 518, 190 P.2d 879 (1948). Since unification of the Kansas court system, the probate courts have been abolished and all probate matters are handled in the district court. However, the procedural rules and jurisdictional requirements still remain, and probate proceedings in the district court are governed by the probate code (K.S.A. ch. 59), while other civil actions are generally governed by the code of civil procedure (K.S.A. ch. 60). While we recognize the validity and general application of the position asserted by the defendants and adopted by the trial court, under the specific facts presented we do not find that plaintiff is attempting to take property out of Ralph’s estate. On the contrary, if plaintiff meets its burden of proof under K.S.A. 33-102 then Berniece’s interest in the property never became a part of Ralph’s estate. To that extent plaintiff is not asserting any claim or demand against the estate but only against Berniece as to her interest in the property. There is substantial support and authority for the plaintiff s position.
Plaintiff relies heavily on Windscheffel v. Wright, 187 Kan. 678, 360 P.2d 178 (1961), for the argument that the nonclaim statute does not apply to an action alleging a fraudulent conveyance. In Windscheffel, Evaline Post Wright, the owner of a life estate, also had the power to sell the realty and hold the proceeds for the remaindermen. In 1936, the life tenant conveyed the property to her husband, who reconveyed it to her in fee simple for the purpose of cutting off the remaindermen’s interests. Evaline died testate on November 10, 1957, and her estate was probated in Freemont County, Iowa. An action was commenced by the remaindermen to recover the real property. The court held, the attempted conveyances between Evaline and her husband were void because of Evaline’s breach of her fiduciary duty owed the remaindermen. The defendants, who included Eva-line’s surviving husband and the beneficiaries under Evaline’s will, asserted the conveyance to her husband was valid under the power of sale and also argued the action was barred by the nonclaim statute. This court held there was no valid sale and stated:
“The appellants contend that the district court had no jurisdiction of the subject of the action and that the cause of action is barred by the statute of nonclaims (G.S. 1949, 59-2239). It is argued that the petition attempts to set up what can only be a claim against Evaline’s estate because it seeks to take the undivided 7/9ths interest in the property in question out of her estate. We do not agree. The property was never a part of Evaline’s estate. Not having sold the property during her lifetime, the life estate devised to her under the testator’s will terminated upon her death November 10, 1957.” 187 Kan. at 690.
While it is true that the action in Windscheffel was not based upon K.S.A. 33-102, the case clearly stands for the proposition that if a conveyance is a nullity the property never becomes a part of the deceased grantee’s estate and the nonclaim statute does not apply. The holding in Windscheffel was recognized and commented upon in In re Estate of Zimmerman, 207 Kan. 354, 485 P.2d 215 (1971). For other variations and applications of the rule, see Oswald v. Weigel, 215 Kan. 928, 529 P.2d 117 (1974); Hurley v. Painter, 180 Kan. 552, 306 P.2d 184 (1957); and In re Estate of Sloven, 177 Kan. 185, 277 P.2d 580 (1954).
Defendants contend that the plaintiff s claim is tantamount to a demand against Ralph’s estate because the real estate at issue was inventoried and appraised by the executrix as a part of the decedent’s estate. In Adams v. Adams, 4 Kan. App. 2d 1, Syl. ¶ 2, 602 P.2d 115 (1979), rev. denied 227 Kan. 927 (1980), the Court of Appeals held: “A claim of ownership to real estate inventoried in a decedent’s estate during probate proceedings constitutes a ‘demand’ within the meaning of K.S.A. 59-2239.” In the present case, however, plaintiff is not claiming ownership of the subject property. Instead, it claims that Berniece is still the rightful owner of the property that she allegedly fraudulently conveyed to Ralph. Adams does not mention In re Morgan, 219 Kan. 136, 546 P.2d 1394 (1976), where this court held:
“The mere fact that the property was inventoried is not conclusive, of course. In Oswald v. Weigel, 215 Kan. 928, 529 P.2d 117, we recognized that the inventory is only prima facie evidence of the contents of an estate. There, an executrix in possession of cattle under a bill of sale was held to have good title as against the estate despite her inclusion of the cattle in the estate inventory .... Further, since the property did not belong to the estate no action was required to take it out of the estate and the non-claim statute was inapplicable.” 219 Kan. at 138.
It must also be noted that the inventory and appraisal, upon which defendants seek to rely, was not even filed until January 1987, nearly eight months after the running of the nonclaim statute. Defendants cannot rely upon the filing of the inventory as imparting notice to the plaintiff that the property belonged to Ralph.
In summary, the question of whether plaintiff was required to file a claim against Ralph’s estate depends upon whether Berniece retained an interest in the subject real estate which never became a part of the decedent’s estate in the first place. If she did, there was no need to file a claim or demand in Ralph’s estate as to her retained interest in the property.
We conclude that under the peculiar facts of this case, and limited to those facts, the trial court was premature in granting summary judgment. If plaintiff can prove its case that the original conveyances from Berniece to Ralph were void as to these parties under K.S.A. 33-102, then this action was proper. The action is primarily against Berniece and whatever interest, if any, she still owns in the property and not against any interest belonging to the estate. While the defendants may be united in interest in attempting to defeat plaintiffs cause of action, the claim of plaintiff is not against Ralph’s estate or any interest it may have in the property but is against the alleged interest of Berniece in the property. Under such circumstances the non-claim statute is no bar to plaintiff s action. There remain unresolved material facts which should be determined after an appropriate trial. We wish to emphasize that we are making no determination of what interest, if any, Berniece might have retained in the property or of any issues other than the limited one addressed herein.
In view of the result reached, it is not necessary for us to reach the other issues and arguments raised by the parties.
The judgment is reversed and the case is remanded for further proceedings. | [
-47,
-20,
-35,
92,
56,
96,
122,
-102,
91,
-91,
37,
83,
-87,
-22,
21,
111,
54,
13,
117,
104,
-59,
-77,
23,
-95,
-46,
59,
-47,
-51,
-76,
-33,
-92,
-41,
76,
96,
-54,
-99,
-58,
-94,
71,
28,
12,
0,
-119,
125,
89,
67,
48,
43,
84,
11,
21,
-84,
-69,
45,
29,
98,
104,
42,
75,
57,
65,
-71,
8,
5,
125,
21,
51,
4,
-104,
1,
88,
42,
-112,
53,
0,
-8,
118,
-74,
-58,
116,
111,
-103,
8,
38,
98,
51,
53,
-51,
-92,
-104,
7,
-42,
-97,
-89,
-109,
88,
32,
41,
-73,
-99,
125,
16,
1,
-12,
-18,
-115,
15,
108,
2,
-50,
-106,
-111,
-115,
-3,
-101,
27,
-9,
-113,
50,
113,
-49,
-128,
93,
-58,
116,
59,
78,
-8
]
|
The opinion of the court was delivered by
Six, J.:
Gary Wade was convicted of aggravated criminal sodomy, K.S.A. 1987 Supp. 21-3506.
The first issue in his appeal is whether the trial court had jurisdiction. Was the criminal complaint, used as an information, defective because it failed to allege that the five-year-old child victim, S.E., was not married to the offender?
The trial court did have jurisdiction. The information was not defective.
A secondary issue focuses on the trial court’s admission, over Wade’s objection, of the testimony of a social rehabilitation service worker who had observed and interviewed S.E., the five-year-old child victim. The trial court did not abuse its discretion in admitting the SRS worker’s testimony.
Wade also contends there was not sufficient evidence for a rational factfinder to find him guilty beyond a reasonable doubt; consequently, he reasons his motion to dismiss should have been granted. We disagree.
Finding no error, we affirm.
In January of 1986, S.E.’s parents, D.E. and R.E., separated. S.E. and her mother moved into an apartment in Auburn, Kansas. In February, Gary Wade, the defendant, moved into the apartment. In March, S.E. told her mother of Wade’s actions that formed the aggravated criminal sodomy charge. We choose not to recite the indelicate factual background. The rationale for our decision does not rest upon the physical fact relationship between S.E. and Wade.
S.E.’s mother testified that, when Wade found out about the accusation, he beat her up, causing two black eyes and a bloody nose. He then grabbed her as well as S.E. by the neck and threatened to kill them if they told anyone. Wade testified that when he found out about the accusations, he was “disap pointed.” He told the mother and S.E. that the accusation should not be discussed outside the family. According to Wade, S.E. began to throw a temper tantrum. He spanked her and put her to bed. After S.E. was in bed, he and S.E.’s mother had a discussion during which things were thrown and verbal abuse was exchanged. Wade denied that he beat the mother.
S.E.’s mother testified that, after Wade threatened them, S.E. told her that she had made the story up to try to break up her mother’s relationship with Wade. There was testimony that S.E. wanted her parents to get back together and that she did not like living with Wade. There also was testimony that the mother had previously talked to S.E. about what S.E. should do if anyone ever made any sexual advances to her and that people that did those things are sent to jail. S.E. told a social worker that she wanted Wade put in jail. S.E.’s mother also testified that S.E. had once walked in on Wade and the mother while they were having oral sex. She said, however, that she thought S.E. had hot seen anything.
S.E. told her mother that S.E.’s incident with Wade occurred in the bathroom. S.E. told the social worker that the incident occurred in the living room.
In June 1986, SRS removed S.E. from her mother’s custody. The removal was not based on the alleged sexual abuse by Wade, as this had not yet been reported to the authorities. The reason for the removal appears to have been excluded prior to trial by a defense motion in limine. S.E. was first placed in foster care. Later in July, custody was given to her paternal grandmother (with whom her father lived). Her father testified that, late in July, S.E. told him about the alleged incident of sexual abuse. The incident was reported to Michelle Mlynar, a child protection worker, in July 1986. Mlynar interviewed S.E. in August 1986 and again in October.
In August, S.E.’s parents reported the sexual abuse incident to the Shawnee County Sheriff s Department. The testimony indicated that shortly after the incident was reported to the police, S.E.’s mother moved back in with Wade. She had also reported that Wade had beaten her up, but later refused to testify against him. S.E.’s mother continued to live with Wade until he was arrested on the aggravated criminal sodomy charge. She visited him in jail a couple of times after the arrest.
S.E.’s mother was told by SRS that she could not regain custody of S.E. unless she disassociated herself from Wade. At one point, the mother accused Michelle Mlynar of postponing a custody hearing to make sure that she would testify against Wade in the sodomy case. The mother regained custody of S.E. in February 1987, with the understanding that S.E. was to have no contact with Wade.
The jury found Wade guilty of aggravated criminal sodomy in April 1987. Wade was sentenced to 45 years to life in June 1987. Wade moved for modification of sentence. The sentence was modified to 15 to 60 years on October 7,1987, and Wade filed his notice of appeal on the same day.
1. JURISDICTION
Wade was charged under K.S.A. 1987 Supp. 21-3506, which provides:
“Aggravated criminal sodomy is:
“(a) Sodomy with a child who is not married to the offender and who is under 16 years of age.”
The information upon which Wade was convicted read as follows:
“I, Gene M. Olander, being duly sworn, on oath, says that on or about the_ day of March to April A.D. 1986 in the County of Shawnee and State of Kansas, Gary G. Wade Route 2, Box 34A, Carbondale, Kansas, dob 1-31-61, WM, 5'9" 135#, bro/bro did then and there unlawfully, feloniously, and willfully, . . . engage in oral copulation with [S.E.] a child under the age of sixteen, to-wit, age 5, contrary to the form of the statutes in such case made and provided and against the peace and dignity of the State of Kansas.”
The information fails to allege that S.E., the child victim, is not married to the offender. Wade contends that such an allegation is one of the essential elements of the crime of aggravated criminal sodomy set out in K.S.A. 1987 Supp. 21-3506. We agree. He asserts that failure of the information to state the essential element of non-marriage is a fundamental defect and, consequently, his conviction is void. We disagree.
The essential element of non-marriage is implied by a common-sense construction when the information, on its face, recites the tender age of the victim; here, five years. The trial court did have jurisdiction.
Wade relies on State v. Jackson, 239 Kan. 463, 721 P.2d 232 (1986). In Jackson, the defendant appealed his conviction of two counts of indecent liberties with a child and one count of ag gravated criminal sodomy. The alleged victim in Jackson was six years old. We reversed both counts of indecent liberties with a child because essential elements of the offense were omitted from the information. The first count failed to allege that the victim was under sixteen years of age. The second count failed to allege that the child was not married to the accused and that the child was under sixteen years of age. 239 Kan. at 465. We distinguish Jackson on the basis that neither count alleged the child’s age. Therefore, there was nothing on the face of the information that would indicate that the victim could not be married to the offender and, in addition, the information also failed to state another essential element. The aggravated criminal sodomy charge was reversed on other grounds. 239 Kan. at 470.
In its brief, the State conceded that the court lacked jurisdiction of Wade because of the defect in the information. At oral argument, however, the State shifted its position. Counsel for the State suggested that failure to allege that S.E. was not married to the defendant is not a fatal defect because it is a legal impossibility for a five-year-old to be married. No authority was cited. Wade’s counsel was granted permission to file a supplemental brief. Wade observes that, although the probability of a five-year-old being married is low, such a marriage is possible.
A kindergarten wedding would be a ceremony of the absurd. It is a legal impossibility for a five-year-old to be married in Kansas.
There is no minimum statutory age for marriage in Kansas. The K.S.A. 23-106 age limitation relates only to the issuance of a marriage license without parental (or guardian) and judicial consent. Anyone under the age of 18 must have the consent of a parent or legal guardian and a judge of the district court to be issued a marriage license.
K.S.A. 23-101 provides:
“The marriage contract is to be considered in law as a civil contract between two parties who are of opposite sex, to which the consent of the parlies is essential; and the marriage ceremony may be regarded either as a civil ceremony or as a religious sacrament, but the marriage relation shall only be entered into, maintained or abrogated as provided by law.” (Emphasis added.)
The validity of a contract of marriage entered into by a minor was considered in Browning v. Browning, 89 Kan. 98, 130 Pac. 852 (1913). The court discussed the requirements for the issuance of a marriage license and the validity of a marriage entered into by a minor without the necessary statutory consents which were similar to those in K.S.A. 23-106. The court stated:
“The act already referred to, in the case of a groom under seventeen years of age, or of a bride under fifteen, requires the consent of the probate judge, as well as the parent or guardian, but we have no statute fixing the age at which persons are capable of entering into the marriage relation. The common law, therefore, governs, the ages being fourteen and twelve respectively.” 89 Kan at 100. (Emphasis added.)
See State v. Johnson, 216 Kan. 445, 448, 532 P.2d 1325 (1975).
The information stated S.E.’s age as five. She could not have been married to Wade. The information: (1) should be read in its entirety; (2) construed according to common sense, and (3) interpreted to include facts which are necessarily implied. State v. Micheaux, 242 Kan. 192, 199, 747 P.2d 784 (1987). There is no jurisdictional defect.
K.S.A. 1987 Supp. 22-3201(2) provides, in part:
“(2) The complaint, information or indictment shall be a plain and concise written statement of the essential facts constituting the crime charged, which complaint, information or indictment, drawn in the language of the statute, shall be deemed sufficient.”
While the statute makes it clear that an offense stated in the language of the statute is sufficient, there is no requirement that it must be stated in the statutory language. In State v. Lashley, 233 Kan. 620, 628, 664 P.2d 1358 (1983), the court stated:
“K.S.A. 22-3201 requires that the information be a plain and concise written statement of the essential facts constituting the crime charged. The information must enable the accused to know the nature and the cause of the charge to form a defense.”
In State v. Loudermilk, 221 Kan. 157, 159, 557 P.2d 1229 (1976), we stated:
“The federal courts have held that under the language of the Sixth Amendment and under the due process clause of the Fourteenth Amendment, an indictment or information must be drawn with sufficient clearness and completeness to show a violation of law, to enable the accused to know the nature and cause of the charge against him and to enable him to make out his defense.”
In the present case the information clearly and concisely advised Wade of the charges he was facing and sufficiently advised him so that he could defend against them. Wade knew he was not married to the five-year-old victim and the failure to allege that fact did not mislead him or impair his ability to present his defense. The allegation that the victim was only five years old carries with it the implicit and obvious fact that the victim was not and could not have been married to the defendant. Cf. State v. Bishop, 240 Kan. 647, 732 P.2d 765 (1987) (alleging assault committed with a deadly weapon, a 12 guage shotgun, sufficient to allege apparent ability).
The jury was instructed as to the elements of aggravated sodomy. Instruction Number 2 included the following:
“The defendant is charged in the complaint with the crime of aggravated sodomy. The defendant pleads not guilty.
“To establish this charge, each of the following claims must be proved:
“2) That [S.E.] was a child who was not married to the defendant and who was under sixteen years of age.”
The record reflects the mother testified on direct examination:
“Q. And how old is [S.E.]?
“A. She’ll be six in May.
“Q. Is your daughter married to anyone, ma’me?
“A. No, she’s not.”
In State v. Howell & Taylor, 226 Kan. 511, Syl. ¶ 2, 601 P.2d 1141 (1979), we stated:
“If the facts alleged in an information do not constitute an offense within the terms and meaning of the statute upon which it is based, the information is fatally defective. The evidence introduced at trial to show commission of the crime sought to have been charged and the jury instruction thereon have no bearing on this question.”
Howell & Taylor does not control the instant case. Here the information stated S.E. was five years of age. S.E.’s marriage to the offender was a legal impossibility. All of the essential elements of the crime were contained in the information.
2. THE SOCIAL REHABILITATION SERVICE WORKER’S TESTIMONY
Michelle Mlynar is a child protection worker who was assigned to investigate S.E.’s case. Mlynar has a Bachelor of Science in Social Work and is licensed by the State of Kansas. At the time of Wade’s trial, Mlynar had been a social worker, working on child protective cases, for two and one-half years. During that time, she had investigated over 75 cases, 18 of which involved sexual abuse. She has also attended numerous sexual abuse workshops provided by the State.
Mlynar testified for the State. She testified as to what S.E. told her and about the use of anatomically correct dolls in her interviews with S.E. She also testified that she and S.E. had a good relationship and that S.E. sees her as a protector. Wade, during redirect examination by the State, objected to the following testimony.
“Q. [Counsel for the State] You testified, ma’me, that at some point, in response to questions from counsel [for Wade], at some point after you’ve talked with the child, you have to make what you call a ‘case determination.’
“A. [Mlynar] Yes.
“Q. What things do you look for in order to make the determination you’re responsible for?
“A. I look for consistency. When I interview a child, I cannot lead the child and ask them to tell me what happened. They have to tell me what happened on their own accord in a sexual-abuse investigation; so, I do not put words in children’s mouths, and when a child tells me that they have been sexually abused, most of the time they’re very angry, they’re very fearful, and very afraid, and most children, who have been sexually abused, also go through a time where they have a lot of behavior difficulties, and I saw every one of those with [S.E.].”
Wade stated two grounds for his objection: (1) Mlynar was not qualified as an expert; and (2) testimony corroborating the testimony of the victim is impermissible under State v. Bressman, 236 Kan. 296, 689 P.2d 901 (1984), because it takes the determination of the child’s credibility out of the hands of the jury. The court overruled the objection, stating:
“I didn’t think she was testifying as an expert. . . . She was relating to the jury the steps she took, the different observations she has made of the eighteen, but she’s not relating that as the scientific community criteria for determination as to expressing an opinion.”
Mlynar was not asked any further questions about her methodology or her observations of S.E. She was never asked her opinion as to the veracity of S.E.’s story.
Bressman was a rape case in which the doctor who treated the victim was called to testify. The doctor worked in an emergency room which was a rape referral center and had examined many individuals who claimed they had been raped. 236 Kan. at 301. The doctor testified as to the common characteristics and emotional problems that she had seen in the rape victims she examined. Although the physical tests the doctor performed were all negative and there was no evidence of physical trauma, the doctor testified that she believed the victim had been raped. 236 Kan. at 302. We found that the trial judge erred in admitting the testimony. There was no showing that the doctor was trained in psychiatry. There was a lack of foundation to qualify the doctor as an expert able to render such an opinion. 236 Kan. at 303. In Bressman, we said:
“Here the normal experiences of laymen jurors would permit them to draw proper conclusions from the evidence presented by the State. In addition, Dr. Stass-Isern, [the emergency room doctor,] in arriving at her opinion that Mrs. T had been raped, of necessity had to pass upon the credibility of Mrs. T’s story.” 236 Kan. at 303-04.
The facts of the case at bar are similar to the facts in State v. Clements, 241 Kan. 77, 734 P.2d 1096 (1987). In Clements, the defendant was accused of sodomizing an eleven-year-old boy. At the trial, a mental health therapist who had counseled the victim after the incident testified. As with Mlynar’s testimony in the instant case, the therapist in Clements testified as to what the victim had told him and whether the victim’s progress in counseling was consistent with the victim’s story. The therapist never testified as to his opinion of whether the victim was telling the truth.
“Mr. Pletcher’s testimony relative to his patient’s initial condition and progress during treatment may tend to corroborate parts of P.V.’s testimony inferentially, but Pletcher’s testimony is not an impermissible opinion on whether or not P.V. is testifying truthfully as to the facts giving rise to sodomy charges.” 241 Kan. at 80.
Lay opinion testimony is permitted by K.S.A. 60-456 in some circumstances:
“(a) If the witness is not testifying as an expert his or her testimony in the form of opinions or inferences is limited to such opinions or inferences as the judge finds (a) may be rationally based on the perception of the witness and (b) are helpful to a clearer understanding of his or her testimony.
“(c) Unless the judge excludes the testimony he or she shall be deemed to have made the finding requisite to its admission.”
A review of the transcript of Mlynar’s cross-examination indicates that defense counsel questioned her about her case investigation of S.E. and about her “judgment call” of sexual abuse.
"Q. [Wade’s Counsel] So, and in investigating a case like that, one, basically, has to take an attitude, either you believe the child or you don’t believe the child. Would that be a fair statement?
“A. Not before the interview, no.
“Q. Okay. After the interview takes place and you have information, then you’re going to have to make a judgment call pretty much whether you believe the act occurred, or the act didn’t occur.
“A. Yes, right.
“Q. Then, your job, basically, is to turn it over to the office to investigate the case.
“A. Yeah; after I conduct a sexual abuse interview, I make a case determination on whether I believe that it’s unconfirmed or confirmed.”
Mlynar’s case determination judgment call was opened up by the defense.
A witness may be asked questions on redirect examination to clarify of modify statements made on cross-examination. A witness on redirect may also explain the effect of new matters brought out on cross-examination. State v. Martin, 241 Kan. 732, 739, 740 P.2d 577 (1987).
The admission of non-expert opinion testimony is within the trial court’s discretion. State v. Craig, 215 Kan. 381, 383, 524 P.2d 679 (1974). Mlynar, on redirect examination, described what she looked for when required to make a sexual abuse case determination judgment call as an SRS case worker. She described the behavior of children who have told her they have been sexually abused and stated that it was consistent with the behavior she observed in S.E. She also stated that most children who have been sexually abused also go through a time where they have a lot of behavior difficulties. She did not testify as to whether she believed S.E.’s story. She expressed no opinion as to the credibility of the victim’s story. Defense counsel was free to cross-examine Mlynar as to what other causes there might be for S.E.’s behavior.
The trial court did not abuse its discretion.
We signal prosecutors to stand with caution as they embark on the direct examination of child protection workers in sexual offense cases. Care is to be exercised to observe the distinctions between Clements and Bressman and to avoid the inquiry prohibited by Bressman.
3. THE SUFFICIENCY OF THE EVIDENCE
Wade argues that the evidence was insufficient to sustain his conviction.
When a defendant in a ci'iminal action challenges the sufficiency of the evidence to support a conviction, our scope of review is limited. Does the evidence viewed in that light most favorable to the prosecution convince us that a rational factfinder could have found the defendant guilty beyond a reasonable doubt? State v. Willis, 240 Kan. 580, 587, 731 P.2d 287 (1987).
Although there was some evidence presented which tended to challenge the credibility of S.E., under the Willis standard, we need not review it. The jury believed the testimony of S.E. and of the witness who corroborated her testimony. The credibility of witnesses is a determination for the finder of fact, in this case the jury. Witness credibility should not be second-guessed by an appellate court, which only has access to the cold transcript of the trial proceedings. The trial court did not err in denying Wade’s motion j:o dismiss.
Affirmed. | [
-112,
-20,
-115,
-2,
8,
103,
42,
60,
50,
-105,
99,
-13,
47,
-53,
0,
123,
-37,
47,
84,
105,
-45,
-77,
87,
65,
50,
-5,
-14,
-35,
-77,
93,
-12,
-36,
72,
32,
-118,
-11,
98,
75,
-25,
84,
-122,
7,
-71,
-4,
82,
6,
36,
35,
118,
7,
49,
14,
-77,
74,
52,
-37,
-85,
44,
91,
-82,
88,
-111,
-38,
31,
-19,
32,
-77,
-92,
60,
5,
120,
61,
24,
-71,
0,
60,
59,
-122,
-126,
116,
93,
-103,
8,
-30,
66,
1,
-83,
-26,
124,
-119,
-50,
63,
-99,
-90,
-104,
105,
97,
13,
-66,
-99,
116,
84,
43,
114,
-49,
77,
63,
-28,
-87,
-49,
-106,
-103,
-51,
8,
36,
24,
-13,
5,
16,
117,
-33,
-96,
84,
86,
120,
-45,
62,
-109
]
|
The opinion of the court was delivered by
Allegrucci, J.:
The defendant, Jimmy D. Wills, appeals from a judgment denying his motion to withdraw his plea of guilty to three counts of theft and two counts of burglary. The plea was entered pursuant to a plea bargain agreement. The Court of Appeals affirmed the judgment of the district court in an unpublished opinion dated May 27, 1988. On July 8, 1988, we granted the defendant’s petition for review.
The defendant was charged in Sedgwick County District Court with two counts of burglary and three counts of theft. The five counts arose from three separate complaints: 86-CR-1743 (charging one count of theft and one count of burglary); 86-CR-1763 (charging theft); and 86-CR-1814 (charging burglary and theft). Under a plea agreement with the State, the defendant agreed to plead guilty to each count in exchange for the State’s promise not to invoke the provisions of the Habitual Criminal Act, and to recommend that the sentences upon each count run concurrently, yielding a three- to ten-year controlling sentence on all counts.
The district court accepted the defendant’s guilty plea on February 9, 1987, and on March 6, 1987, imposed a sentence of one to five years’ imprisonment on each theft count, and three to ten years on each burglary count. The district court, however, chose not to follow the State’s recommendation, and the sentences imposed in Case No. 86-CR-1814 were designated to run consecutively with the sentences imposed in the other three counts. The defendant thus received a controlling term of imprisonment of six to twenty years.
On March 9, 1987, the defendant filed a motion to modify the sentence imposed. At a hearing on the defendant’s motion, counsel for the defendant requested that the court grant probation or reduce the controlling term of imprisonment to three to ten years. When the court asked the State for its views on the defendant’s motion, the State’s attorney referred to a State Reception and Diagnostic Center report, which it characterized as “not what you would call a good report.” The State then concluded: “It does not appear that a modification is in order.” The defendant’s motion to modify the sentence was denied.
The defendant then moved to withdraw his guilty plea, arguing that the State had violated his due process rights by failing to comply with the terms of the plea arrangement. The defendant’s motion was overruled on June 18, 1987. The defendant then appealed the denial of his motion to the Court of Appeals, which affirmed the judgment of the district court.
The sole issue on appeal is whether the district court erred in refusing to permit the defendant to withdraw his guilty plea after the State failed to support the previously recommended sentence during a post-sentence hearing. More specifically, is the State bound by the plea agreement at the hearing on defendant’s motion to modify the sentence?
While the opinion of the Court of Appeals cites to several Kansas cases applying general rules of law regarding plea bargains, none of the cited cases deals with the obligation of the State to comply with the terms of the plea arrangement in post-sentence proceedings. Nor does the Court of Appeals opinion cite any persuasive authority for its conclusion that the State is absolved from any further obligations under the plea arrangement once it makes its initial recommendations at the original sentencing hearing.
The Court of Appeals, in finding that the district court did not err in denying the defendant’s motion to withdraw his guilty plea, stated:
“Wills contends on appeal that the State violated the terms of the plea negotiation by not recommending a controlling term of three to ten years at the sentence modification hearing and that manifest injustice resulted. He relies on Santobello v. New York, 404 U.S. 257, 30 L. Ed. 2d 427, 92 S. Ct. 495 (1971), for the proposition that the State may not renege on a promise made in the course of plea negotiations. In Santobello, the State agreed during plea negotiations to make no recommendation concerning the sentence, but at a sentencing hearing the State recommended the maximum sentence. The judge stated that he was not influenced by the State’s recommendation, but nevertheless imposed the maximum sentence. The Supreme Court vacated the judgment and remanded, holding that where a plea rests on a promise by the State, the promise must be fulfilled.
“The pivotal question in the present case is whether the State violated the terms of the plea agreement by not recommending that all the sentences run concurrently. Our Supreme Court has held that a motion for modification is not considered part of the ‘imposition of sentence.’ State v. Jennings, 240 Kan. 377, 378, 729 P.2d 454 (1986). The Supreme Court has further observed that, at the time plea negotiations were entered into, the prosecutor may not have had full knowledge of defendant’s past record or the dispositions on prior charges. Burden v. State, 225 Kan. 549, 555, 592 P.2d 451 (1979).
“Where the prosecution carries out its promise to recommend a certain sentence, Santobello does not apply. Burden v. State, 225 Kan. at 553. In the present case the State made the agreed recommendations at the sentencing hearing. After the State Reception and Diagnostic Center report became available and Wills filed his motion to modify, the State was no longer bound to recommend a shorter sentence. The trial court did not abuse its discretion in refusing to find manifest injustice to the defendant.”
While the Court of Appeals correctly noted that, in State v. Jennings, 240 Kan. 377, 729 P.2d 454 (1986), we held that a motion for modification is not part of the “imposition of sentence,” the issue, however, was the right of the defendant to appear in person. We said:
“Unless a motion for modification is considered part of the ‘imposition of sentence,’ the appellant had no right to appear in support of his motion. We resolved this issue in State v. Bryant, 227 Kan. 385, 607 P.2d 66 (1980), where we held that a defendant’s right to be present does not extend to post-conviction motions. In so holding, we reasoned that the trial ends when a verdict has been rendered, any right which the accused may have to be present at proceedings following indictment continues only during the pendency of the trial, and a defendant, once convicted, cannot expect to be present at post-conviction motions. See also State v. Myers, 10 Kan. App. 2d 266, 271, 697 P.2d 879 (1985), where the Court of Appeals noted that a defendant has no right to be present at a ruling on a motion to modify. We agree and hold that a defendant has no right to a hearing on a motion to modify sentence or to be present at consideration of that motion.” 240 Kan. at 378-79.
The obligation of the State pursuant to a plea agreement was not at issue in Jennings. Nor did the State in the present case limit its promise to the “imposition of sentence.”
In Santobello v. New York, 404 U.S. 257, 30 L. Ed. 2d 427, 92 S. Ct. 495 (1971), the United States Supreme Court stated:
“The plea must, of course, be voluntary and knowing and if it was induced by promises, the essence of those promises must in some way be made known. . . .
“This phase of the process of criminal justice, and the adjudicative element inherent in accepting a plea of guilty, must be attended by safeguards to insure the defendant what is reasonably due in the circumstances. Those circumstances will vary, but a constant factor is that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” 404 U.S. at 261-62.
The basis for the Court’s decision is somewhat unclear because the Court did not specifically cite a constitutional provision as the basis for its decision. However, one obviously existed in order for the Court to reverse the decision of the New York State court. The Court seems to apply a combination of contract and constitutional law in arriving at its decision. However, in Mabry v. Johnson, 467 U.S. 504, 81 L. Ed. 2d 437, 104 S. Ct. 2543 (1984), the Court made it clear that the decision in Santobello was based upon constitutional due process considerations. In Mabry, the Court said:
“A plea bargain standing alone is without constitutional significance; in itself it is a mere executory agreement which, until embodied in the judgment of a court, does not deprive an accused of liberty or any other constitutionally protected interest. It is the ensuing guilty plea that implicates the Constitution. . . .
“Thus, only when it develops that the defendant was not fairly apprised of its consequences can his plea be challenged under the Due Process Clause. Santobello v. New York, 404 U.S. 257 (1971), illustrates the point. We began by acknowledging, that the conditions for a valid plea ‘presuppose fairness in securing agreement between ah accused and a prosecutor. . . . The plea must, of course, be voluntary and knowing and if it was induced by promises, the essence of those promises must in some way be made known.’ Id., at 261-262. It follows that when the prosecution breaches its promise with respect to an executed plea agreement, the defendant pleads guilty on a false premise, and hence his conviction cannot stand.” 467 U.S. at 507-09.
Neither Santobello nor Mabry speaks to whether the State is bound by its promise in post-sentence modification hearings. We did note the Santobello decision in Burden v. State, 225 Kan. 549, 553, 592 P.2d 451 (1979), stating, “[A]s a matter of constitutional law if the prosecution agrees to make concessions in exchange for a guilty plea, then it must carry out those concessions or the plea will be invalid.” The issue of whether the prosecution may deviate from the terms of the plea agreement during post-sentence proceedings was not before this court ip Burden, nor has it been considered by this court.
This issue was addressed in United States v. Ewing, 480 F.2d 1141 (5th Cir. 1973), where the defendant agreed to plead guilty under a plea bargain in which the prosecution agreed not to oppose a sentence of probation. The trial court, however, denied the defendant’s request for probation, and imposed a sentence of seven years’ imprisonment. The defendant subsequently filed a motion for a reduction of sentence, pursuant to Rule 35(b) of the Federal Rules of Criminal Procedure. At a hearing on this motion, the prosecution “argued strongly in opposition” to the defendant’s request for probation. 480 F.2d at 1142. The defendant’s motion for a reduction of sentence was denied, and he appealed to the Fifth Circuit Court of Appeals.
The circuit court concluded that the prosecution had violated the terms of the plea arrangement by opposing the defendant’s request for probation in the hearing on his motion for a reduction of sentence:
“Our case is almost identical to Santobello except for the fact that the prosecution fulfilled its commitment at the initial sentencing hearing only to breach it at the subsequent hearing on Ewing’s Rule 35 motion for the reduction of sentence. But this distinction is of little import because both of these proceedings were integral parts of the sentencing process in this case. Surely when Ewing obtained the Government’s promise not to oppose probation in exchange for his plea of guilty, he did so in the expectation that the benefits of that promise would be available throughout the proceedings relevant to the determination of his sentence. The Government was obligated to fulfill its commitment at least until the question of Ewing’s sentence was finally resolved by the sentencing judge.” United States v. Ewing, 480 F.2d at 1143.
In 1978, the Fifth Circuit held that the prosecution could respond to false statements in a defendant’s motion to modify a sentence without violating its obligations under the original plea agreement. In United States v. Johnson, 582 F.2d 335 (5th Cir. 1978), the defendant’s motion for modification incorrectly stated that the prison to which he had been assigned did not contain psychiatric facilities. In responding to the motion for modification, the Government noted simply that the institution did possess facilities for the treatment of psychiatric problems. The court held that, in sentence modification proceedings, the Government could counter misinformation by the defendant in his motion, but may not violate “the essence of the plea bargain.” 582 F.2d at 337.
Whether a “no recommendation” agreement, in which the prosecution agrees to make no recommendation at the original sentencing hearing, bars the prosecution from opposing a subsequent sentence modification motion is a disputed issue among the federal circuits. Several circuits have held that a “no recommendation” agreement does not bar the Government from opposing a motion for modification of sentence. See United States v. White, 724 F.2d 714 (8th Cir. 1984); Brooks v. United States, 708 F.2d 1280 (7th Cir. 1983); United States v. Arnett, 628 F.2d 1162 (9th Cir. 1979). The Eleventh Circuit, however, has indicated that such an agreement does prevent the Government from opposing a motion by the defendant to modify his sentence. See United States v. Campbell, 711 F.2d 159 (11th Cir. 1983).
All of the above cases, with the exception of Brooks, distinguish rather than reject Ewing. Brooks unequivocally rejects Ewing, stating: “A plea bargain is, in law, just another contract.” 708 F.2d at 1281. The court went on to find that all the Government promised was not to make a sentence recommendation. It did not make a further promise to stand mute at the post-sentence hearing. The court concluded that the plea bargain agreement was silent on whether the Government was bound in a post-sentence hearing. Therefore, unless the agreement specifically states otherwise, the promise of the Government is not binding after the original sentencing. The court in Brooks found that, since the agreement was silent as to post-sentence hearings, the defendant bore the loss. In other words, the plea agreement is construed in favor of the Government and against the accused. The problem with such an approach is twofold. First, the de fendant’s due process rights recognized by the decisions in Santobello and Mabry are ignored. We recognize that, before a plea of guilty is entered, the parties are free to contract subject to basically the same legal principles as apply in a commercial contract setting. Once the defendant enters a plea of guilty, due process mandates the State perform as it promised. As pointed out by Daniel Frome Kaplan in his comment on the subject:
“In the commercial setting, courts often allocate the burden of expression by allowing losses to lie where they fall. This has been attributed to an attitude of non-intervention, a related attitude that shifting the loss interferes with personal autonomy, and an application of a species of ‘social Darwinism’ to the commercial world. These attitudes, however, cannot be unthinkingly applied to the criminal justice system, which is interventionist by design and which gives the accused numerous procedural protections reflecting the fact that the parties in a criminal proceeding do not stand on an equal footing.
“It is a reasonable presumption that, at the bargaining stage, defendants expect to reap the benefits of their plea agreements during the entire sentencing process, whether the process is bifurcated or not. The defendant has only one bargaining chip—his ability to impose procedural costs on the prosecution by insisting upon going to trial—and once he has used it by pleading guilty, he has nothing left with which to bargain. In this situation, the defendant is bargaining for a particular end result—a guilty plea that will result in a lighter sentence than the one he would expect to receive after a trial. In light of the ‘consideration’ given by a defendant for the government’s promise, it is reasonable to expect continuing prosecutorial adherence to the agreement: a prosecutor’s commitment to a specified sentence recommendation would be of little value if the government’s tongue is to be freed at a later, related proceeding.” Comment, Where Promises End: Prosecutorial Adherence to Sentence Recommendation Commitments in Plea Bargains, 52 U. Chi. L. Rev. 751, 767-71 (1985).
Second, a plea agreement which is silent as to post-sentence hearings is ambiguous. The ambiguity of such a plea agreement is also discussed by Kaplan:
“The parties to such a contract must either have negotiated this point, but failed to set it out in their written agreement with sufficient clarity, or not have negotiated the point at all. If the first is the case, the contract is ambiguous because the language in the writing is susceptible of either of the two interpretations urged by the parties; in such situations, the court must decide which interpretation, if either, was in fact agreed upon. If the parties did not negotiate the point, an implied term must be found to cover the unbargained-for contingency.
“The plea agreement in Brooks, ‘to recommend neither for nor against an executed sentence in this cause,’ is ambiguous. It is susceptible of different interpretations and, not surprisingly, the parties urged different meanings on the court ex post. If no extrinsic evidence is available to show that the parties gave the ambiguous term a common meaning at the bargaining stage, the court cannot give meaning to a term about which the parties’ expectations diverged. Instead, in order to prevent the bargain from failing entirely, the court must supply a term to cover the unbargained-for contingency.
“. . . When the parties’ shared expectations are not ascertainable, either on the face of the agreement or by recourse to extrinsic evidence, a prosecutor’s promise either to remain silent at sentencing or to make a favorable recommendation should be construed as binding the prosecution at a Rule 35(b) proceeding for sentence reduction. The application of such a default rule is consistent with modern contract law and realistically enforces defendants’ expectations, so that plea bargains may properly be considered to have been knowingly and intelligently entered into by these defendants.” 52 U. Chi. L. Rev. at 765-72.
In the present case, the State’s agreement to recommend a controlling term of imprisonment of three to ten years is silent as to the State’s obligations under the arrangement during post-sentence proceedings. The agreement contains neither an express provision that the State’s obligations to make such recommendations includes post-sentence proceedings nor an express provision that the State’s obligations are limited solely to the original sentencing hearing. The State obviously controls the promise it makes to the defendant. The State for all practical purposes controls the plea agreement process from negotiations to drafting the final agreement that is signed by the defendant. If the State wants to limit its promises, it can do so by clearly setting out these limitations in the plea agreement. There can then be no question as to what the parties agree to and that the defendant’s waiver of his constitutional right to jury trial is voluntary and knowing. Absent such a limitation, the defendant would reasonably expect the State to be bound by its promise at all hearings which affect the determination of his sentence.
A plea agreement reasonably susceptible to different interpretations is ambiguous. The plea agreement in the instant case is reasonably susceptible to different interpretation and is therefore ambiguous. Where a statute is ambiguous, we require that it be strictly construed in favor of the accused. State v. Magness, 240 Kan. 719, 721, 732 P.2d 747 (1987). We find no compelling reason to adopt a different rule in interpreting ambiguous plea agreements.
We conclude that in the present case the State’s promise to make favorable sentence recommendations binds the State at the subsequent hearing on the defendant’s motion to modify sen tence, absent language in the plea agreement limiting the State’s promise to the original sentencing hearing. However, it does not follow that the defendant is entitled to withdraw his plea of guilty. Since the State honored the plea agreement at the time the defendant pled guilty and was sentenced, the district court was correct in denying the defendant’s motion to withdraw his plea of guilty. The defendant is entitled to have his motion to modify his sentence reheard by a different district judge and, at such hearing, the State will be bound by the plea agreement.
The judgment of the Court of Appeals is affirmed in part and reversed in part. The judgment of the district court is affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion.
Six, J., not participating. | [
-16,
-32,
-39,
-66,
26,
96,
59,
-104,
66,
-11,
50,
83,
-89,
-60,
20,
57,
-5,
-1,
85,
113,
64,
-126,
71,
-31,
-74,
-77,
-29,
84,
-66,
75,
-4,
-106,
74,
32,
-46,
53,
-26,
-128,
97,
88,
-118,
5,
-72,
-26,
-15,
74,
48,
43,
20,
9,
49,
14,
-73,
46,
16,
74,
105,
41,
75,
-87,
72,
-71,
-69,
77,
105,
4,
-94,
-121,
-100,
6,
92,
103,
-100,
49,
-126,
-24,
51,
-74,
-106,
116,
75,
-117,
-84,
102,
99,
3,
69,
79,
-8,
-87,
6,
62,
-83,
-89,
-39,
89,
104,
4,
-108,
-67,
113,
22,
36,
126,
109,
-100,
93,
108,
0,
-58,
-76,
-109,
-115,
112,
-118,
-13,
-29,
35,
33,
49,
-114,
-28,
92,
102,
115,
-101,
-50,
-45
]
|
The opinion of the court was delivered by
Horton, C. J.:
Fletcher P. Privett was elected at the November election of 1880 to fill a vacancy in the office of sheriff of Harper county. The board of commissioners refused to canvass the returns of the election until ordered so to do by a peremptory writ of mandamus issued out of this court. Owing to this delay, Privett did not qualify as sheriff until the 18th of May, 1881. He then demanded the office and records from his predecessor, Charles I). Bickford, who refused to give him possession of the office, refused to surrender the records, and continued in the discharge of the duties thereof. Thereupon Privett instituted in- this court an action in the nature of a quo warranto, to oust Bickford from the possession of the office, and obtain possession himself. In June, 1881, while the action of quo warranto was pending in this court, Privett commenced this proceeding against the commissioners of Harper county, the county clerk and district clerk of that county, asking that an injunction be granted pending the action in this court, to enjoin the defendants from allowing any claim, or paying any money to Bickford; or his deputy, as fees, costs or emoluments accrued or accruing for services performed by him as sheriff, after plaintiff qualified and demanded the possession of the office. On J une 29,1881 the probate judge of Harper county granted a temporary injunction, as prayed for in the petition of plaintiff. On the 28th of July, 1881, an application was made by the defendants to the district judge of Harper county, at chambers, to dissolve the temporary injunction granted by the probate court, for various reasons, among others, that Bickford was not a party defendant; and because the facts recited in the petition, affidavit-and order did not entitle the plaintiff to the relief ' obtained. We think the court below rightly dissolved the injunction. The action seems to have been brought merely to restrain the defendants from paying to the acting sheriff the fees, costs and emoluments claimed by him as sheriff during the pendency of the action of quo warranto in this court. In that action, no claim for fees or damages was demanded, and in the petition filed in this case there is no claim for the recovery of any fees or damages by Privett. Bickford is not a party to this proceeding. The plaintiff does not seek a permanent injunction. The proper parties were not before the the court, for clearly Bickford’s legal rights were sought to be affected in an action to which he was not a party pending other proceedings against him in another court. No such practice can be sustained, and we must affirm the order of the district court.
All the Justices concurring. | [
-76,
111,
-16,
-98,
90,
96,
-103,
60,
-62,
-93,
-95,
115,
-1,
65,
0,
121,
107,
11,
69,
121,
-62,
-73,
83,
99,
34,
-13,
-13,
-49,
-73,
72,
-9,
-58,
72,
52,
74,
85,
103,
42,
-63,
84,
-122,
-96,
105,
-27,
-38,
-120,
60,
99,
83,
11,
17,
-98,
-13,
42,
92,
-61,
41,
44,
91,
-86,
80,
113,
-100,
13,
109,
4,
-109,
102,
-116,
-45,
72,
46,
-104,
49,
-128,
-8,
115,
-90,
-122,
116,
47,
-72,
8,
102,
3,
33,
-72,
-49,
-88,
-120,
14,
62,
-97,
-26,
-78,
72,
-6,
73,
-74,
-99,
101,
16,
7,
-4,
-30,
-123,
80,
110,
-123,
-50,
-44,
-89,
7,
56,
-116,
3,
-21,
-123,
16,
113,
-51,
-14,
92,
-61,
49,
-101,
-121,
-72
]
|
Lewis, J.:
Appellant DPR, Inc., whom we shall refer to as plaintiff, has been operating in the City of Pittsburg (City) for over 15 years. The owners of DPR, Inc., Patricia and Don Rohrbaugh, operate a business known as “Pat’s Lounge.” This business is licensed to sell alcoholic beverages by the drink. It also features totally nude dancing as entertainment. It is worth noting that Pat’s Lounge had been in the business of serving intoxicating liquors and presenting nude dancing to the public for approximately 15 years prior to the enactment of the ordinance which is the focal point of this action.
The ordinance in question regulates the services and entertainment offered by Pat’s Lounge and prohibits totally nude dancing and certain other activities. The ordinance applies only in places where alcoholic beverages are sold. At the present time, Pat’s Lounge is the only business in Pittsburg affected by the ordinance. Plaintiff filed this declaratory judgment action, seeking to have the constitutionality of the ordinance determined. The trial. court found the ordinance to be constitutional in all respects, and plaintiff appeals.
The facts are not remarkable, although it does appear that plaintiff is caught in a web created by a city council that misread the future. For all intents and purposes, considering the type of establishment Pat’s Lounge is, that business has caused very little trouble to law enforcement officers in the City over the past 15 years.
The defining event in this controversy came with the news that a proposed racetrack would be located near Pittsburg. The city council looked ahead and saw a future littered with nude dancing establishments. It was not the kind of future the council wanted to see. The result was ordinance G-741, which banned totally nude dancing and restricted other activities in establishments that sell alcoholic beverages.
The racetrack did not attract a great number of people to the Pittsburg area and has closed. As near as we can tell from this record, no other totally nude dancing establishments were opened and, at this time, plaintiff operates the only establishment that is subject to the provisions of the ordinance.
STANDARD OF REVIEW
This is a case involving the constitutionality of a city ordinance. Our standard of review is set out in City of Baxter Springs v. Bryant, 226 Kan. 383, 385-86, 598 P.2d 1051 (1979), as follows:
“ ‘The constitutionality of a statute is presumed, all doubts must be resolved in favor of its validity, and before the statute may be stricken down, it must clearly appear the statute violates the constitution. [Citations omitted.]
“ ‘In determining constitutionality, it is the court’s duty to uphold a statute under attack rather than defeat it and if there is any reasonable way to construe the statute as constitutionally valid, that should be done. [Citations omitted.]
“ ‘Statutes are not stricken down unless the infringement of the superior law is clear beyond substantial doubt. [Citations omitted.]
“ ‘The propriety, wisdom, necessity and expedience of legislation are exclusively matters for legislative determination and coruts will not invalidate laws, otherwise constitutional, because the members of the court do not consider the statute in the public interest of the state, since, necessarily, what the views of members of the court may be upon the subject is wholly immaterial and it is not the province nor the right of courts to determine the wisdom of legislation touching the public interest as that is a legislative function with which coruts cannot interfere. [Citations omitted.]’ [Citation omitted.]
“The general rule for reviewing statutes or ordinances enacted pursuant to the police power is stated in City of Wichita v. White, 205 Kan. 408, 469 P.2d 287 (1970), as follows:
“ ‘In reviewing statutes such as these, the court begins with the proposition that all presumptions are in favor of their validity. [Citations omitted.] The court does not sit in judgment on the merits of such legislation. If the statute here challenged does not contravene significant constitutional or inherent rights of individuals, if the classification on which it is based is reasonable, if it is within the scope of the police powers of the state, if it is appropriately related to a proper purpose of such police power, the statute is not to be invalidated by the judicial arm of government.’ [Citation omitted.]”
STANDING
In many respects, plaintiff’s argument against the ordinance is focused on the rights of plaintiff’s customers and not itself. The City argues that plaintiff has no standing to raise these issues. “The constitutionality of government action can only be challenged by a person directly affected and such challenge cannot be made by invoking rights of others.” Manzanares v. Bell, 214 Kan. 589, 616, 522 P.2d 1291 (1974).
In United States v. Hays, 515 U.S. 737, 742-43, 132 L. Ed. 2d 635, 115 S. Ct. 2431 (1995), it was said:
“It is by now well settled that ‘the irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an “injury in fact” — an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of. . . . Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.’ [Citations omitted.]”
Among other things, plaintiff attacks those portions of the ordinance which prohibit the showing of certain motion pictures, photographs, and other materials. There is nothing in the record to indicate that plaintiff’s operation would be affected by this particular section of the ordinance. The City argues that under the circumstances, plaintiff has no standing to raise the issue.
Despite the general rule as set out above, we conclude that plaintiff does, indeed, have standing to invoke the rights of its customers in this case. In State v. Neighbors, 21 Kan. App. 2d 824, 829, 908 P.2d 649 (1995), we said:
“A special standing rule permits a party to raise overbreadth when a statute purports to regulate the First Amendment rights of others. City of Wichita v. Wallace, 246 Kan. at 267; Moody v. Board of Shawnee County Comm’rs, 237 Kan. 67, 69, 697 P.2d 1310 (1985); see Broadrick v. Oklahoma, 413 U.S. 601, 611-13, 37 L. Ed. 2d 830, 93 S. Ct. 2908 (1973).”
In this case, the challenge to the ordinance by plaintiff has an impact on the First Amendment rights of others. Our Supreme Court, in City of Wichita v. Wallace, 246 Kan. 253, 267, 788 P.2d 270 (1990), explained the special rule as follows:
“The United States Supreme Court has recognized that, although an ordinance is not vague or overbroad as applied to a defendant, he or she may nevertheless be permitted to raise its vagueness or overbreadth as applied to the First Amendment protected rights of third parties. An exception to normal standing requirements is allowed because the mere existence of the statute could cause a person not before the Court to refrain from engaging in constitutionally protected speech or expression. [Citations omitted.] This exception is justified by the importance of maintaining a free and open market for the exchange of ideas, but can be overridden if the deterrent effect on legitimate expression is not ‘ “both real and substantial,” ’ and if the statute is ' “readily subject to a narrowing construction by the state courts.” ’ [Citations omitted.]”
We rely on Neighbors, Wallace, and other similar cases cited in our opinion in deciding that plaintiff does have standing to raise issues involving the rights of third parties in its First Amendment overbreadth and vagueness attack on the ordinance.
TWENTY-FIRST AMENDMENT VS. FIRST AMENDMENT
There is an issue between the parties as to what section of the United States Constitution is implicated by the ordinance and, if more than one section is implicated, which one controls.
The City argues that it has the power to regulate private clubs selling alcoholic beverages, that this power springs from the Twenty-first Amendment, and that this amendment controls even in the face of alleged First Amendment violations.
The trial court held that in this case the statute was framed by the Twenty-First Amendment and said:
“The City of Pittsburg possesses authority under its police powers and the grant of authority from the Home Rule Amendment to enact Ordinance No. G-741. Its constitutionality is framed by the 21st Amendment to the U.S. Constitution, not the 1st Amendment. The Ordinance does not infringe upon fundamental rights. The City had several rational bases to adopt its provisions, including the experience of other communities, the concern that lack of regulation might result in an influx of drinking establishments that allow and promote nudity and various sexual acts inside the premises, and the intent to prohibit persons from appearing nude in public places before strangers in such establishments.” (Emphasis added.)
The trial court further stated:
“Police powers may be enacted as a restraint upon private rights of persons or to regulate the use of property, and where appropriate or necessary, prohibit the use of property for certain purposes in aid of the public safety and general welfare, and constitutional limitations form no impediment to its exercise where the regulation is reasonable and bears a fair relationship to the object sought to be attained. Hearn v. City of Overland Park, 244 Kan. 638, 645, 772 P.2d 758 (1989). The police power is wide in its scope and gives the governmental body broad powers to enact laws to promote the health, morals, security, and welfare of the people. Broad discretion is vested in the governing body to determine for itself what is deleterious to health or morals, or is inimical to public welfare. Id. at 646.”
We live in a nation in which opinions may be stated or published which many of us find contrary to our core beliefs and are repelled by. Despite the fact that some of these statements trigger overwhelming public outcry and disgust, they cannot be silenced. We have not and will not infringe upon the free speech rights of others. We take this position because tire First Amendment to the United States Constitution may, of all of the amendments, truly reflect the freedom of our society. The First Amendment says: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
It requires no citation of authority to note that this amendment limits state action under the Fourteenth Amendment to the United States Constitution.
The Twenty-first Amendment, on the other hand, came about as a result of the failure of the experiment with Prohibition in the United States. After that experiment had been declared a total failure, the Twenty-first Amendment was proposed and ratified. It reads: “The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.”
Despite its rather confusing language, the purpose of the Twenty-first Amendment was simply to get the federal government out of the business of regulating liquor sales. The history of that Amendment is detailed in 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 134 L. Ed. 2d 711, 735, 116 S. Ct. 1495 (1996). In Liquormart, the United States Supreme Court said:
“From 1919 until 1933, the Eighteenth Amendment to the Constitution totally prohibited ‘the manufacture, sale, or transportation of intoxicating liquors’ in the United States and its territories. Section 1 of the Twenty-first Amendment repealed that prohibition, and § 2 delegated to the several States the power to prohibit commerce in, or the use of, alcoholic beverages. The States’ regulatory power over this segment of commerce is therefore largely unfettered by the Commerce Clause.’ Ziffrin, Inc. v. Reeves, 308 U.S. 132, 138, 84 L. Ed. 128, 60 S. Ct. 163 (1939).” (Emphasis added.)
Liquormart was a case in which the State of Rhode Island had absolutely and without exception banned the publication or broadcasting of any price of an alcoholic beverage. The State argued that it had the right to do this under the Twenty-first Amendment and that its power under the Twenty-first Amendment overruled any First Amendment rights of the defendants. The State, in making this argument, relied on California v. LaRue, 409 U.S. 109, 34 L. Ed. 2d 342, 93 S. Ct. 390 (1972). In LaRue, the court applied the Twenty-first Amendment to uphold a ban on grossly sexual exhibitions in premises licensed to serve alcoholic beverages. The Supreme Court distinguished LaRue and held the Rhode Island ban on liquor advertising to be unconstitutional under the First Amendment:
“Without questioning the holding in LaRue, we now disavow its reasoning insofar as it relied on the Twenty-first Amendment. As we explained in a case decided more than a decade after LaRue, although the Twenty-first Amendment limits die effect of the dormant Commerce Clause on a State’s regulatory power over die delivery or use of intoxicating beverages within its borders, ‘the Amendment does not license die States to ignore dieir obligations under odier provisions of die Constitution.’ [Citation omitted.] That general conclusion reflects our specific holdings that die Twenty-first Amendment does not in any way diminish the force of the Supremacy Clause. [Citations omitted.] We see no reason why die First Amendment should not also be included in that list. Accordingly, we now hold that die Twenty-first Amendment does not qualify the constitutional prohibition against laws abridging the freedom of speech embodied in the First Amendment. The Twenty-first Amendment, dierefore, cannot save Rhode Island’s ban on liquor price advertising.’ ” Liquormart, 517 U.S. at 516.
The Liquormart decision establishes the supremacy of the First Amendment in cases involving the Twenty-first Amendment right of states to regulate the sale of intoxicating liquor. The First Amendment, where implicated, trumps the authority of the State to regulate the sale of liquor under the Twenty-first Amendment. To the extent the trial court may have held to the contrary, it is wrong, and we will apply the rule developed in this opinion.
We have no doubt that the City, acting under the Twenty-first Amendment, has very broad authority to exercise its police power regulating establishments selling alcoholic beverages. There seems to be little constitutional restraint against the exercise of that power. However, a very important restriction on the police power of the City under the Twenty-first Amendmént is that the exercise of that power cannot violate rights granted to citizens under the First Amendment. Whether the First Amendment applies or has been violated in this case will be analyzed as this opinion develops. However, we recognize the general power of the State under the Twenty-first Amendment to regulate the sale of intoxicating beverages. To the extent the City’s exercise of the Twenty-first Amendment does not unduly interfere with rights protected by the First Amendment, it will be valid. However, to the extent the ordinance violates the First Amendment rights of plaintiff or its customers, it is unconstitutional and cannot stand.
DOES THE ORDINANCE CONTAIN MORE THAN ONE SUBTECT?
Article 2, § 16 of the Kansas Constitution provides that “[n]o bill shall contain more than one subject, except appropriation bills and bills for revision or codification of statutes.”
K.S.A. 12-3004 states:
“No ordinance shall contain more than one subject, which shall be clearly expressed in its title; and no section or sections of an ordinance shall be amended unless the amending ordinance contains the entire section or sections as amended and the section or sections amended shall be repealed.”
Plaintiff, relying on the Kansas Constitution and K.S.A. 12-3004, argues that ordinance G-741 is unconstitutional because it contains more than one subject. We disagree.
The title to the ordinance in question reads: “AN ORDINANCE REGULATING CERTAIN ACTIVITIES UPON THE PREMISES OF DRINKING ESTABLISHMENTS, CLASS A AND CLASS B CLUBS, CATERERS, AND ESTABLISHMENTS LICENSED TO SELL CEREAL MALT BEVERAGES AND PROVIDING PENALTIES FOR THE VIOLATIONS OF THE ACTS PROHIBITED HEREIN.”
The Kansas Supreme Court in State v. Reves, 233 Kan. 972, 978, 666 P.2d 1190 (1983), said:
“ ‘The constitutional prohibition of more than one subject in an act does not impose any limitation on the comprehensiveness of the subject, which may be as comprehensive as the legislature chooses to make it, provided it constitutes, in the constitutional sense, a single subject and not several. To constitute plurality of subject, an act must embrace two or more dissimilar and discordant subjects, that by no fair intendment can be considered as having any legitimate connection with or relation to each other. Within the meaning of the constitutional provision, matters which apparently constitute distinct and separate subjects are not so where they are not incongruous and diverse to each other.’ ”
This issue has also been discussed in Garten Enterprises, Inc. v. City of Kansas City, 219 Kan. 620, 549 P.2d 864 (1976), and City of Kansas City v. Tipton, 193 Kan. 651, 396 P.2d 350 (1964).
After examining the record and becoming familiar with the controlling authorities on the subject, we hold that the ordinance in question is not unconstitutional because it contains more than one subject. The ordinance deals with certain behaviors prohibited in establishments that serve alcoholic beverages. The principal thrust of the ordinance is to outlaw totally nude dancing in places selling alcoholic beverages. As we read the ordinance, it deals with only one subject and that is the prohibition of activities within an alcohol-serving establishment. Plaintiff’s argument to the contrary is without merit.
STATE PREEMPTION
Plaintiff next argues that the State of Kansas has preempted the issues of nude dancing and that the local ordinances are invalid for that reason.
We disagree. State v. McGraw, 19 Kan. App. 2d 1001, 879 P.2d 1147 (1994), is relied upon by plaintiff. Plaintiff argues that Mc-Graw allows nonobscene public dancing and that the City has no authority to regulate that category of behavior. Plaintiff’s reliance on this decision is misplaced. McGraw held that nude dancing is protected by the First Amendment unless it is obscene.
Plaintiff next argues that the ordinance conflicts with K.S.A. 41-2611, K.S.A. 41-2614, and K.S.A. 41-2623. These statutes deal with grounds for revocation of a liquor license, hours of operation, and qualifications to receive a liquor license. We have examined the statutes in question and find nothing to indicate that the State intended to preempt the regulation of private clubs.
On this issue, we agree with the trial court, which said:
“The State of Kansas has not attempted to preempt local units of government from enacting legislation such as Ordinance No. G-741. K.S.A. 41-2631, a portion of the State’s Liquor Control Act, restricts a city from enacting ordinances ‘in conflict with or contrary to the provisions of this act. . .’ There is nothing in the statutory scheme which addresses the subject matter of G-741. The state has elected not to pass a uniform state law. As such, there can be no conflict between the City’s ordinance and state statutes. Further, the Kansas Supreme Courts [sic], on several occasions, has approved restrictive local enactments challenged as being in derogation of Kansas statutes. In Leavenworth Club Owners Assn. v. Atchison, 208 Kan. 318, 492 P.2d 183 (1971), a city ordinance regulating hours of consumption of alcoholic beverages that was more restrictive than state statutes was upheld as a proper exercise of the police power; Blue Star Supper Club, Inc. v. City of Wichita, 208 Kan. 731, 495 P.2d 524 (1972), allowed the city to enforce an ordinance that was more strict than the state act regulating private clubs; and a city ordinance regulating hours of consumption of alcoholic beverages and prescribing more limited hours of operation than those set forth in the Liquor Control Act was approved in Garten Enterprises, Inc. v. City of Kansas City, 219 Kan. 620, 549 P.2d 864 (1976).”
LOSS OF INCOME
Plaintiff argues that the trial court erred in finding that “[t]he evidence presented does not support a claim or finding that the establishment has lost substantial business or that it has been significantly less profitable than it was before the ordinance was adopted and enforced.”
We have examined the record, and we agree with the trial court. Plaintiff did not present its books and records at trial. It is true that plaintiff’s operator testified that in her opinion the lounge had lost business since the passage of the ordinance, but there was evidence to the contrary. Plaintiff simply did not document its loss of income in a manner sufficient to satisfy the rules of evidence.
The finding made by the trial court was a negative finding on this issue. In the case of a negative finding, “ ‘there must be proof of an arbitrary disregard of undisputed evidence or some extrinsic consideration such as bias, passion or prejudice, since the negative finding signifies the failure of the party upon whom the burden of proof was cast to sustain it.’ ” City of Dodge City v. Norton, 262 Kan. 199, 203, 936 P.2d 1356 (1997). In this case, there is nothing in the record to impel us to overrule the trial court’s findings of fact on this issue.
PERNICIOUS SECONDARY EFFECTS
Plaintiff suggests that nude dancing can only be regulated if there is a showing of pernicious secondary effects from the operation of the establishment in question. This argument springs from plaintiff’s belief that the ordinance was intended to regulate only the business of Pat’s Lounge.
Although, as we have noted, Pat’s Lounge is the only business currently being regulated by the ordinance, we conclude that the city council did not intend to single out that business. The city council was concerned over new establishments coming into town and offering nude dancing. We believe that had the new racetrack not been proposed for the Pittsburg area, it is doubtful that such an ordinance would have been suggested, let alone adopted. The City, in passing the ordinance, was reacting to false optimism concerning a proposed racetrack and, in deciding to pass the ordinance, considered problems encountered by other similar communities. In fact, Pat’s Lounge was a relatively stable, trouble-free business considering what went on within its walls. There were isolated incidents of pernicious secondary effects as a result of the operation of Pat’s Lounge, but they were somewhat rare and relatively minor.
We do not believe that a city must show specific examples of pernicious secondary effects caused by a drinking establishment before it can regulate that business.
In Renton v. Playtime Theaters, Inc., 475 U.S. 41, 51-52, 89 L. Ed. 2d 29, 106 S. Ct. 925, reh. denied 475 U.S. 1132 (1986), the Court said:
“The First Amendment does not require a city, before enacting such an ordinance [zoning for adult theaters], to conduct new studies or produce evidence independent of that already generated by other cities, so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses.”
The trial court in the instant matter held as follows on this issue:
“Several cases decided by the United States Supreme Court have upheld the authority of state and local units of government to ban nudity in bars or taverns where alcoholic liquor is sold or served. California v. LaRue, 409 U.S. 109, 93 S. Ct. 390 (1972); New York State Liquor Authority v. Bellanca, 452 U.S. 714 (1981); City of Newport, Ky. v. Iacobucci, 479 U.S. 92, 107 S. Ct. 383 (1986); and Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S. Ct. 2456 (1991). In Barnes, the Indiana public nudity statute was upheld even though the restriction was not limited to establishments where alcohol is sold or served; it being uniformly understood that the police power doctrine grants the broadest possible authority to local units of government to regulate activities in such establishments.”
Further, the trial court found:
“Cities are not required to initiate their own studies or await localized proof of the ‘secondary effects’ of nudity and sexual activities even though alcohol is not necessarily served or sold; instead, cities can rely upon events and occurrences at other places. (See City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S. Ct. 925 [1986]).”
We agree with the comments of the trial court. The action of the City is supported by evidence of secondary effects from establishments which sell liquor and allow totally nude dancing, which is taken from other similar establishments in other cities. This, when coupled with the relatively minor evidence of those effects associated with Pat’s Lounge, supports this particular exercise of the police power of the City.
TELEVISION BROADCAST, MOVIES, PHOTOGRAPHS, AND MAGAZINES
Section 4 of the ordinance reads as follows:
“The following conduct by a licensee, a licensee’s manager, employee, or agent, or by an independent contractor hired by a licensee or hired by a licensee’s manager, employee or agent, or by any person with the approval, permission, acquiescence, or tolerance of a licensee or a licensee’s manager, employee, or agent, if occurring on the licensed premises, is deemed contrary to the public health, safety, morals, and welfare, is unlawful, and is hereby prohibited:
A) Knowingly exposing to the view of another person or knowingly permitting any person to remain on the licensed premises who exposes to the view of another person,
i) the human male or female genitals, pubic area, pubic hair, anal cleft or cleavage of the buttocks, or
ii) any portion of either the nipple of the female breast or the female vulva, or
iii) any portion of the male penis or the penis in a discernible erect state, even if completely or opaquely covered; or
B) Encouraging or knowingly permitting any manager, employee or agent on the licensed premises to touch, caress or fondle, whether clothed or un clothed, the breasts, buttocks, anus, vulva, penis or genitals of any other manager, employee, or agent or of any patron; or
C) Encouraging or knowingly permitting any patron on the licensed premises to touch, caress or fondle, whether clothed or unclothed, the breasts, buttocks, anus, vulva, penis or genitals of any manager, employee, or agent; or
D) Performing or knowingly permitting any person to perform on the licensed premises acts of or acts which simulate:
1) Sexual intercourse, masturbation, sodomy, including such acts with animals or reptiles, or any other sexual act which is prohibited by state law; or
2) Touching, caressing or fondling the anus, vulva, penis, or genitals of the actor or another; or
E) Using or knowingly permitting any person to use on the licensed premises, any artificial device or inanimate object to depict any of the acts prohibited by paragraph (D) of this section; or
F) Showing or knowingly permitting any person to show on the licensed premises any motion picture film, photograph, video tape, or other electronic or mechanical visual reproduction depicting any of the acts prohibited by paragraph (D) of this section. PROVIDED, HOWEVER, it shall not be unlawful to show or permit to be shown any regular programming as broadcast on a commercial or public television station and not in violation of state obscenity laws; or
G) Showing or knowingly permitting any person to show on the licensed premises, or permitting any person to view from the licensed premises, any motion picture film not given a rating by the Motion Picture Association of America of G, PG, PG-13 or R.”
We note that section 4 is the heart of the ordinance, and it is the portion of the ordinance which criminalizes certain behavior. Plaintiff attacks certain provisions of section 4 as unconstitutionally overbroad and/or vague. As suggested, the violation of section 4 of the ordinance or any part thereof is a crime with a potential penalty of not more than 60 days in jail and a fine of not less than $500 nor more than $1,000.
The difference between overbroad and vague, as used in this context, is discussed by the Supreme Court in City of Wichita v. Wallace, 246 Kan. 253, 264, 788 P.2d 270 (1990):
“[C]onfusion occurs because ‘vagueness’ and ‘overbreadth’ are sometimes used interchangeably or a clear distinction is not made between the two terms. However, these terms are not synonymous. A statute or ordinance can be clear and unambiguous but may nevertheless be overbroad if it prohibits constitutionally protected conduct. [Citation omitted.] In State ex rel. Murray v. Palmgren, 231 Kan. at 553, we said: While a vague statute leaves persons of common intelligence to guess at its meaning, an overbroad statute makes conduct punishable which under some circumstances is constitutionally protected.’ [Citations omitted.]”
The overbreadth standards are addressed in Moody v. Board of Shawnee County Comm’rs, 237 Kan. 67, 71-72, 697 P.2d 1310 (1985):
“An overbroad statute makes conduct punishable which under some circumstances is constitutionally protected from criminal sanctions. State v. Huffman, 228 Kan. 186, 189, 612 P.2d 630 (1980). A successful overbreadth challenge can thus be made only when (1) the protected activity is a significant part of the law’s target and (2) there exists no satisfactory method of severing that law’s constitutionality from its unconstitutional applications. [Citations omitted.]”
In State v. Neighbors, 21 Kan. App. 2d 824, 826, 908 P.2d 649 (1995), we said:
“A statute is presumed constitutional, and all doubt must be resolved in favor of its validity. If there is any reasonable way to construe a statute as constitutionally valid, the court must do so. A statute must clearly violate the Constitution before it may be struck down. State v. Scherzer, 254 Kan. 926, Syl. ¶ 6, 869 P.2d 729 (1994).
“A statute must be sufficiently definite to meet due process standards. The test to determine whether a criminal statute is unconstitutionally vague is whether its language conveys a sufficiently definite warning as to the conduct proscribed when measured by common understanding and practice. A statute which either requires or forbids the doing of an act in terms so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application is violative of due process. State v. Dunn, 233 Kan. 411, 418, 662 P.2d 1286 (1983). In determining whether a statute is void for vagueness, two inquiries are appropriate: (1) whether the statute gives fair warning to those persons potentially subject to it and (2) whether the statute adequately guards against arbitrary and discriminatory enforcement. See City of Wichita v. Wallace, 246 Kan. 253, 259, 788 P.2d 270 (1990).”
In Neighbors, we found the ordinance in question to be constitutional because “[t]he statute clearly sets forth the particular items within its scope. A person of common intelligence need not guess whether the statute forbids the sale of metal knuckles, regardless of whether they are characterized as paperweights, belt buckles, historic replicas, or wall hangings.” 21 Kan. App. 2d at 827.
We conclude that based on the authorities cited above, this ordinance is not unconstitutionally vague. The language of the ordinance is clear and concise, and no patron or employee of Pat’s Lounge could harbor any doubt about what is prohibited. The City has acted in no uncertain terms to prohibit total nudity within Pat’s Lounge, and that should be clear to anyone reading the ordinance. We do not consider the ordinance to be unconstitutionally vague.
The fact that we conclude the ordinance is not unconstitutionally vague does not mean it cannot be unconstitutionally overbroad.
In State v. Hughes, 246 Kan. 607, 792 P.2d 1023 (1990), the Supreme Court said:
“When a state chooses to regulate matters involving sensitive rights of its citizens, it is obligated to do so in a manner that bears a real and substantial relationship to the objective sought [citation omitted] and is narrowly drawn to express only those objectives [citation omitted]. We hold the dissemination and promotion of such devices for purposes of medical and psychological therapy to be a constitutionally protected activity. As the legislature made no provision for such acts, those sections dealing with obscene devices were properly found to be overbroad and unconstitutional. The State has demonstrated no interest in the broad prohibition of distributing the devices in question sufficiently compelling to justify to infringement of the rights of those seeking to use them in legitimate ways.” 246 Kan. at 619-20.
“A statute is overbroad when its language criminalizes constitutionally protected conduct. . . . The overbreadth doctrine generally has been held to apply only in First Amendment contexts. [Citation omitted.] In Hearn v. City of Overland Park, 244 Kan. 638, 645, 772 P.2d 758, cert. denied 493 U.S. 976 (1989), we held a city ordinance regulating ownership of pit bull dogs could not be attacked as overbroad because the owners’ rights did not fall under the First Amendment.
“Nevertheless, the overbreadth doctrine has been applied by the United States Supreme Court where the operation of a statute infringes on freedoms guaranteed by the Bill of Rights, where those freedoms involve privacy rights and medical matters. In Eisenstadt v. Baird, 405 U.S. 438, 31 L. Ed. 2d 349, 92 S.Ct. 1029 (1972), a lecturer was convicted of giving a woman a package of contraceptive foam in violation of a Massachusetts statute prohibiting distribution of contraceptives to unmarried persons. The United States Supreme Court granted the defendant standing to assert the privacy and equal protection rights of unmarried persons. It held the statute overbroad as a health measure in its language prohibiting all contraceptives, regardless of their safety, to all unmarried persons. The Court found the statute violated the equal protection clause of the Fourteenth Amendment and affirmed the order of the United States Court of Appeals for the First Circuit discharging the defendant.
“The trial court’s decision was made on privacy and medical treatment grounds. The United States Supreme Court has found that a constitutionally protected zone of privacy exists under the First, Third, Fourth, Fifth, and Ninth Amendments to the United States Constitution. Griswold v. Connecticut, 381 U.S. 479, 484-86, 14 L. Ed. 2d 510, 85 S. Ct. 1678 (1965). The Court has stressed that individuals have a fundamental ‘right to be free, except in very limited circumstances, from unwanted governmental intrusions into one’s privacy.’ [Citation omitted.] This liberty interest in privacy was held protected by the Fourteenth Amendment’s restriction on state action against personal liberty in Roe v. Wade, 410 U.S. 113, 152-53, 35 L. Ed. 2d 147, 93 S. Ct. 705, reh. denied410 U.S. 959 (1973). ... [A] statute is impermissibly overbroad when it impinges without justification on the sphere of constitutionally protected privacy which encompasses therapy for medical and psychological disorders.” 246 Kan. at 616-17.
We note that we deal in this case with a declaratory judgment action in which no one has of yet been charged with a violation of the ordinance. As a result, the challenge in this case is considered to be “facile” in character. We are required to determine only “whether the enactment reaches a substantial amount of constitutionally protected conduct.” Dodgers Bar & Grill v. Johnson Cty. Bd. of Com'rs, 32 F.3d 1436, 1442 (10th Cir. 1994).
It is our conclusion that certain parts of section 4 of the ordinance are overbroad and, therefore, unconstitutional.
Section 4(G) of the ordinance prohibits the showing on the premises of Pat’s Lounge of any motion picture “not given a rating by the Motion Picture Association of America of G, PG, PG-13 or R.”
We conclude this section of the ordinance is far too broad in its sweep. Although it may have been intended to ban the showing of pornographic movies, its scope is much broader. Plaintiff points out that this provision of the ordinance would effectively ban movies as diverse as “National Velvet” and “Birth of a Nation” simply because these movies do not bear a rating by the Motion Picture Association of America. An overbroad statute “ ‘makes conduct punishable which under some circumstances is constitutionally protected.’ ” City of Wichita v. Wallace, 246 Kan. at 264.
It is not a crime to view movies which do not bear the rating of the Motion Picture Association of America, and we have no doubt there is a protected First Amendment right to do so. Despite this, section 4(G) of the ordinance would make it a crime to view a movie such as “National Velvet” within the confines of the bar. We know of no one who would reason that citizens do not have a con stitutional right to view that movie under the First Amendment. Although the ordinance may be aimed at so-called XXX-rated movies, its language bars any movie not rated G, PG, PG-13, or R. This is an attempt to criminalize the exercise of a First Amendment right, and this portion of the ordinance is unconstitutionally over-broad and, therefore, invalid.
Section 4(F) of the ordinance prohibits the showing of motion pictures, photographs, videotapes, etc., which depict any of the acts prohibited by paragraph D. Paragraph D bans actions involving, simulating, or showing:
“1) Sexual intercourse, masturbation, sodomy, including such acts with animals or reptiles, or any other sexual act which is prohibited by state law; or “2) Touching, caressing or fondling the anus, vulva, penis, or genitals of the actor or another.”
The right to possess certain photographs, which may be contained within a magazine, for instance, is obviously a First Amendment right. There are publications that patrons might bring with them to the bar which display actions or portions of the anatomy that are within the purview of section 4(F). The ordinance does not require that the banned material be obscene or pornographic, only that it depict that which is forbidden. The problem with the ordinance is that in its broad scope, it would criminalize bringing photographs of some of our great objects of art into Pat’s Lounge. We cite as an example a statue by Auguste Rodin named “The Kiss.” This statue shows two obviously nude individuals in the act of kissing and does show some of the body parts which are prohibited by paragraph D of the ordinance. There are a number of other publications which are protected by the First Amendment and which are legal to possess which might depict some portion of the male or female anatomy prohibited by paragraph D. We consider, therefore, that section 4(F) is unconstitutionally overbroad. It would criminalize the possession by individuals of photographs, etc., the protection of which is guaranteed by the First Amendment. We hold, therefore, that this provision of the ordinance is unconstitutionally overbroad and invalid.
Section 4(B) of the ordinance prohibits “[ejncouraging or knowingly permitting any manager, employee or agent of the licensed premises to touch, caress or fondle, whether clothed or unclothed, the breasts, buttocks, anus, vulva, penis or genitals of any other manager, employee or agent of any patron.”
We are advised that this section of the ordinance was intended to prohibit “lap dancing.” We conclude its scope is far wider than that and that it is, in fact, unconstitutionally overbroad.
In effect, this provision of the ordinance would put employees of Pat’s Lounge at risk if an employee was dancing with his or her spouse or with a customer. It seems obvious that it is difficult if not impossible for two people to dance closely together and not to make contact with one of the prohibited body parts described by paragraph B of the ordinance. This ordinance places persons at risk who are dancing closely with their spouse, girlfriend, or boyfriend. Again, we have an ordinance which is an attempt to criminalize behavior protected by the First Amendment, and that ordinance is overbroad under the scope.
NUDE DANCING
Finally, we come to the question of whether the ordinance can ban totally nude dancing in the City of Pittsburg. In reaching our conclusion, we do not consider the question of whether totally nude dancing is obscene, as that is not an issue in this action. We do, however, conclude that totally nude dancing can be regulated by the City and that the City has done so in a constitutional manner.
The ordinance bans totally nude dancing. If the requisite parts of the dancer are covered by the use of such items as pasties and G-strings, the ordinance would not prohibit any activity by a dancer so “clothed." The use of pasties and G-strings would protect against total nudity.
We have no hesitation in holding that this ordinance is well within the police power of the City acting under the Twenty-first Amendment. The question, however, is whether the type of dancing prohibited is entitled to the superior protection of the First Amendment. We hold that in this case it is not.
In Barnes v. Glen Theatre, Inc., 501 U.S. 560, 115 L. Ed. 2d 504, 111 S. Ct. 2456 (1991), the United States Supreme Court reversed the 7th Circuit’s decision which held that nude dancing was expressive conduct protected by the First Amendment. The Supreme Court said:
“The Court of Appeals then heard the case en banc, and the court rendered a series of comprehensive and thoughtful opinions. The majority concluded that nonobscene nude dancing performed for entertainment is expression protected by the First Amendment, and that the public indecency statute was an improper infringement of that expressive activity because its purpose was to prevent the message of eroticism and sexuality conveyed by the dancers. Miller v. Civil City of South Bend, 904 F.2d 1081 (1990). We granted certiorari, 498 U.S. 807 (1990), and now hold that the Indiana statutoiy requirement that the dancers in the establishments involved in this case must wear pasties and G-strings does not violate the First Amendment.” 501 U.S. at 565.
The Court went on to say:
“The perceived evil that Indiana seeks to address is not erotic dancing, but public nudity. The appearance of people of all shapes, sizes and ages in the nude at a beach, for example, would convey little if any erotic message, yet the State still seeks to prevent it. Public nudity is the evil the State seeks to prevent, whether or not it is combined with expressive activity.” 501 U.S. at 571.
In light of the quote above from the Supreme Court in Barnes, we think it of some significance that in this case the public comments before the city council overcome the morality of nudity. We echo Barnes when we conclude that the purported evil sought to be prohibited by the ordinance was public nudity and not the expression of anything entitled to First Amendment protection. Although there was no evidence of this fact, apparently the City concluded that totally nude dancers and alcoholic beverage drinking customers are not a particularly good mix.
The Barnes Court, speaking through the Chief Justice, said:
“Presumably numerous other erotic performances are presented at these establishments and similar clubs without any interference from the State, so long as the performers wear a scant amount of clothing. likewise, the requirement that the dancers don pasties and G-strings does not deprive the dance of whatever erotic message it conveys; it simply makes the message slightly less graphic.” 501 U.S. at 571.
We agree with the comments of the Chief Justice set out above. The Court also said that “nude dancing of the kind sought to be performed here is expressive conduct within the outer perimeters of the First Amendment, although only marginally so.” 501 U.S. at 566.
In line with Barnes, we uphold the constitutionality of the city ordinance’s ban on totally nude dancing. We have applied the four-part test set out in United States v. O’Brien, 391 U.S. 367, 20 L. Ed. 2d 672, 88 S. Ct. 1673 (1968), and, in so doing, we hold that the ordinance involved in this action is valid in its ban on totally nude dancing despite certain incidental limitations on some expressive activity.
We strike those provisions of the ordinance ruled to be unconstitutional in this opinion. The balance of the ordinance is held to be constitutional.
Affirmed in part and reversed in part. | [
-15,
-18,
-35,
108,
124,
-32,
52,
-108,
122,
-93,
-9,
115,
-19,
-56,
8,
121,
-5,
127,
81,
105,
-58,
-77,
3,
98,
-96,
-37,
-112,
-43,
-75,
79,
118,
-43,
77,
96,
74,
-11,
70,
75,
-39,
94,
-118,
34,
27,
-55,
81,
-63,
52,
123,
0,
75,
49,
29,
-77,
44,
28,
-61,
105,
60,
25,
63,
96,
-7,
-7,
-107,
124,
22,
-95,
37,
-100,
-125,
-40,
74,
-104,
49,
16,
-88,
115,
-90,
4,
118,
13,
-23,
-127,
97,
99,
32,
1,
-81,
-88,
-120,
13,
-2,
-83,
-92,
-79,
89,
98,
13,
-67,
-100,
112,
20,
11,
-2,
-18,
-43,
25,
-20,
-113,
-54,
-108,
-77,
-19,
124,
20,
69,
-17,
-9,
16,
117,
-55,
-2,
94,
-42,
52,
27,
-49,
120
]
|
Rulon, J.:
The beneficiaries of the Edward A. Maxedon Trust (beneficiaries) appeal the trial court’s decision denying them relief on their claim that the trustee, The Peoples State Bank of Pratt (Bank), mismanaged certain real property within the trust and breached the trustee’s fiduciary duty owed to the beneficiaries of the trust. We affirm.
The material faqts are as follows:
Edward A. Maxedon executed his last will and testament on March 18, 1949, and died on March 11, 1953. Maxedon’s will established a trust to provide income for the lives of his brother and sister with a remainder interest for the benefit of their children and eventually terminating with distribution to certain named beneficiaries. The trust instrument provided that the trust would continue during the lives of Maxedon’s brother and sister and terminate 20 years after the death of the surviving brother or sister. Upon termination of the trust, the trustee was to sell the remaining property in the estate and distribute the trust property to the named beneficiaries.
At inception, the trust consisted of real property, principally farmland and grassland located in at least three Kansas counties, which was valued at $112,150, and “other assets,” including a mortgage and a bank account, valued at $3,048.60.
During the term of the trust, the Bank collected rents, oil and gas royalties, and crop income. For the years 1982 through 1992, the Bank valued the real property in the trust at approximately $658,000. Upon liquidation, the real property was sold for a total of about $479,000. The difference between the previously stated value of the land and the amount it actually sold for is the primary basis for this action.
In December 1993, the Bank filed a petition to make final distribution of the trust and to approve the final accounting. The beneficiaries filed an objection to that petition, essentially claiming the Bank breached its fiduciary duty by mismanaging the trust.
The action was tried to the district court. The court entered judgment in favor of the Bank on all claims. The beneficiaries perfected this appeal.
SALE OF NON-WASTING ASSETS
The beneficiaries claim the district court erred in finding the trust instrument specifically prohibited the sale of non-wasting real property prior to the termination of the trust.
“Under our standard of review, ‘[t]he legal effect of a written instrument is a question of law for the court to decide. On appeal, a written instrument or contract may be construed and its legal effect determined by the appellate court regardless of the construction made by the trial court.’ Galindo v. City of Coffeyville, 256 Kan. 455, Syl. ¶ 2, 885 P.2d 1246 (1994). Whether an instrument is ambiguous is a matter of law to be decided by the court. Mobile Acres, Inc. v. Kurata, 211 Kan. 833, 839, 508 P.2d 889 (1973).” In re Estate of Sanders, 261 Kan. 176, 181, 929 P.2d 153 (1996).
“The same rules that apply to the construction of wills apply to the construction of trusts and most other written instruments.” 261 Kan. 176, Syl. ¶ 2.
Essentially, the beneficiaries claim the Bank breached its duty as trustee by failing to diversify the trust assets so as to maximize the income of the trust and protect trust assets from market fluctuations.
After considering the beneficiaries’ claims, the district court concluded:
“Accordingly, the Court concludes that the Trust of Edward A. Maxedon specifically prohibited the Trustee from selling Trust real estate during the course of the administration of the Trust; that none of the Trust real estate was ‘nonproductive’ as defined by Kansas law, except for the vacant Cunningham, Kansas, city lots sold by Court order in 1970 and that the Trustee properly and timely sold the Trust real estate upon termination of the Trust. The Trustee could not sell income producing Trust real estate under the terms of the Trust, even if it wanted to. (See also Restatement of Trusts 2d, 190.1.)”
We have carefully reviewed the trust instrument and conclude such instrument is not ambiguous or uncertain as to whether the trustee had the power to sell any of the non-wasting real estate included in the trust property. The trust instrument is simply silent on the issue of the trustee having such powers to sell non-wasting assets. Our research indicates a lack of controlling Kansas law to guide us. However, when Kansas appellate courts are faced with a lack of controlling authority direcdy on point they have frequently turned to the guidance found in the Restatement of Trusts. See 261 Kan. at 183.
The Restatement (Second) of Trusts § 190 (1957) provides:
“The trustee can properly sell trust property if
(a) a power of sale is conferred in specific words, or
(b) such sale is necessary or appropriate to enable the trustee to carry out the purposes of the trust, unless such sale is forbidden in specific words by the terms of the trust or it appears from the terms of the trust that the property was to be retained in specie in the trust.”
The Restatement (Third) of Trusts § 190 (1990), revises the rule slightly:
“The trustee can properly sell trust property unless
(a) the terms of the trust expressly prohibit or condition the sale of some or all of the trust assets, or
(b) it appears from the terms of the trust and the circumstances that assets of the trust are to be retained in specie in the trust estate.”
“There is a greater reluctance in the trust law to find a duty to retain land that had been purchased by the settlor for purposes of investment than to find a prohibition against sale of land that had been occupied as a residence by the settlor and his or her family . . . .” Restatement (Third) of Trusts § 190, Comment d.
In the instant case, the stated purpose of the trust was to pay income to the settlor’s brother and sister during their lives and to their children upon the death of either of them. Upon the death of the last surviving sibling, the trust would continue for an additional 20 years, and then the trustee was to sell the assets of the trust and distribute them to the parties named in the trust and will. Consequently, the trial court was correct in finding that the primary purpose of the trust was to supply income to the settlor’s brother and sister and their children and then liquidate and provide a payment in cash to the named beneficiaries.
“The cardinal rule is that the intention of the trustor as gathered from the whole instrument must control unless contrary to settled principles of law.” In re Estate of Pickrell, 248 Kan. 247, 255, 806 P.2d 1007 (1991).
“[Our Supreme Court] has repeatedly held that extrinsic evidence is not admissible to show the intention of the testator where there is no ambiguity in the language used, or to give the language of the will a meaning different from that which the law attributes thereto.” Baldwin v. Hambleton, 196 Kan. 353, 356, 411 P.2d 626 (1966).
“The primary consideration in construing a will is to determine the testator’s intent. If that intent can be determined from the four comers of the will it is not necessary to give consideration to any other element. If the testator’s intent camiot be determined from the will itself, the will is ambiguous and extrinsic evidence is admissible to assist in defining the intent of the testator.” McClary v. Harbaugh, 231 Kan. 564, Syl. ¶ 2, 646 P.2d 498 (1982).
In absence of any controlling Kansas authority, the language of the Restatement (Second) of Trusts is instructive and we hold that in Kansas, a trustee has the power to sell non-wasting real estate held in trust as long as such sale furthers the purpose of the trust, unless there is a clear indication that such power is prohibited by the trust instrument. Under the facts shown here, die Bank possessed an implied power to sell the non-wasting real property as a reasonable and necessary power in light of the purpose of the trust.
DUTY TO DIVERSIFY
Briefly said, the beneficiaries argue the Bank breached a fiduciary duty by not diversifying the trust assets under the “prudent man” standard.
Because this trust was established in 1955, the trustee’s duties and powers are defined by the law in effect at that time, i.e., G.S. 1949, 17-5004 (1955 Supp.), which reads:
“In acquiring, investing, reinvesting, exchanging, retaining, selling and managing property for the benefit of another, a fiduciary shall exercise the judgment and care under the circumstances then prevailing, which men of prudence, discretion and intelligence exercise in the management of their own affairs, not in regard to speculation but in regard to the permanent disposition of their funds, considering the probable income as well as the probable safety of their capital. Within the limitations of the foregoing standard, a fiduciary is authorized to acquire and retain every kind of property, real, personal or mixed, and every kind of instrument . . . which men of prudence, discretion and intelligence acquire or retain for their own account, and within the limitations of the foregoing standard, a fiduciary may retain property properly acquired, without limitation as to time and without regard to its suitability for original purchase . . . .”
None of the parties argue that the current version of the Uniform Trustees’ Powers Act, K.S.A. 58-1201 et seq., which incorporates the prudent investor rule of K.S.A. 17-5004, has any application here. The current version of K.S.A. 17-5004 expressly states that it applies to all existing trusts, but only to the extent of any actions or inactions occurring after the effective date of the 1993 amendment. It is uncontroverted that all the actions of the trustee that are at issue here occurred prior to the legislative adoption of the prudent investor rule.
The beneficiaries argue, however, that under the prudent man standard, a trustee had a duty to diversify the portfolio if consistent with the purposes of the trust and in the absence of a specific prohibition in the trust terms and conditions. Here, the district court found that under pre-1993 law the trustee was under no duty to diversify. As we understand the court’s decision, the court found the Bank adequately examined the corpus of the trust on a regular basis and determined that, because the subject farm ground was productive, there was no need to diversify. The record is unclear whether the court recognized a duty to diversify or simply found that the Bank had not breached the duty.
The parties note there are no Kansas cases that discuss whether a trustee has a duty to diversify under the prudent man standard.
The Restatement (Second) of Trusts § 228 reads:
“Except as otherwise provided by the terms of the trust, the trustee is under a duty to the beneficiary to distribute the risk of loss by a reasonable diversification of investments, unless under the circumstances it is prudent not to do so.”
In an article written shortly after the enactment of G.S. 1949, 17-5004, one commentator noted:
“It cannot be too much emphasized that the new statute does not reheve the trustees of responsibility for investment. On the contrary, it increases the trustees’ responsibility by requiring them to justify their investments on the basis, not only of prudence and discretion, but of intelligence. Under this statute trustees are required to be both diligent and intelligent.
“Inherent in the statute is the principle of diversification. This principle will in a great number of cases enable the trustees to build up the income of their trust to a reasonable extent without endangering the principal. That, primarily is the objective of the Act. . . .
“It will, also be observed that the Act, within the limits of the standard set, permits the retention of property properly acquired ‘without limitations as to time and without regard to its suitability for original purchase.’ This part of the Act places authorized retention on the basis of what an informed judgment would regard as best for the trust. This rule frees the trustees from any inflexible re quirement, often disadvantageous to the trust, of unloading within any fixed time investments which have ceased to qualify, or which, if received from the settlor, never qualified. Definitely, it does not authorize the trustee to rest inattentively on the assets and do nothing. Here, as in other cases, the statute requires of the trustees vigilance and intelligence.” Fleeson, The 1949 Kansas Investment Standards Act and a Necessary Corollary, 18 J.K.B.A. 300, 303-04 (1949).
The Restatement (Second) of Trusts \ 228, Comments a and b states:
“a. Duty to diversity investments. The trustee is under a duty to the beneficiary to exercise prudence in diversifying the investments so as to minimize the risk of large losses, and therefore he should not invest a disproportionately large part of the trust estate in a particular security or type of security. It is not enough that each of the investments is a proper investment ....
“b. Factors to be considered. In making a diversification of investments the trustee should consider among others the following factors: (1) the purposes of the trust; (2) the amount of the trust estate; (3) financial and industrial conditions; (4) the type of investment, whether mortgages, bonds or shares of stock or otherwise; (5) distribution as to geographical location; (6) distribution as to industries; (7) dates of maturity.” '
Scott on Trusts notes that where there is a duty to diversify, a trustee may be under a duty to dispose of a part of a given investment in order to bring about diversification. However, a trustee may be relieved of that duty by the express term's of the trust. Also, a trustee may impliedly be authorized to retain certain property which the settlor placed in the trust at its inception despite the fact such property makes up a large portion of the trust estate. 3 Scott on Trusts § 230.3 (4th ed. 1988). See 13 Bogart, Trusts and Trustees § 612, p. 50 (2d ed. rev. 1980).
We are convinced that in the absence of controlling Kansas law, the weight of authority tips the balance in favor of concluding that a trustee has a duty to diversify the trust assets in order to carry out- the terms of the trust under the prudent man standard. The factors stated in Comment b of § 228 of the Restatement (Second) of Trusts, provide a guide as to how such decisions should be evaluated. There is authority for taking into account that a particular investment, which forms a large portion of the trust estate, was purchased and placed into the trust by the settlor. However, whether it is prudent to retain such an investment depends on whether the settlor was a competent investor, given the purposes of the trust. Restatement (Second) of Trusts § 230, Comment j. See also Restatement (Second) of Trusts § 240, Comment g. (Where the terms of the trust generally authorize the trustee to retain trust property, such authorization may be interpreted as authorizing retention of property that is otherwise not a proper investment.).
Here, to the extent the district court found the trustee had no duty to diversify under the prudent man standard, the court erred. However, to the extent the court found that if such duty did exist, then the trustee did not violate such duty, we conclude the court did not err. Similarly, to the extent the court held that the trustee was excused from selling the property, we also conclude the court did not err. While the trust document did not expressly prohibit the trustee from selling the land, the trustee could properly have considered the fact that the subject land was placed into the trust by the settlor and comprised a majority of the corpus of the trust, thus indicating the settlor s intent that the land remain the primary asset of the trust.
STANDARD OF CARE
Next, the beneficiaries argue the district court measured the Bank’s actions by an incorrect standard of care. According to the beneficiaries, because the Bank has a trust department whose sole function is to manage trusts, it is a professional trustee and is thus held to a higher standard of care than the ordinary prudent man. Specifically, the beneficiaries argue the court erred in holding that they were required to produce expert testimony as to the duty owed by the Bank as trustee and whether there was any breach of that duty based upon the “community standard” rule.
While there are Kansas cases which deal generally with a trustee’s duty to a beneficiary in managing a trust, there are no cases which address a professional trustee’s standard of care.
“The Restatement (Second) of Trusts § 174 (1957) states: ‘The trustee is under a duty to the beneficiary in administering the trust to exercise such care and skill as a man of ordinary prudence would exercise in dealing with his own property.’ Similarly, ‘[t]he trustee is under a duty to the beneficiary to administer the trust solely in the interest of the beneficiary.’ Restatement (Second) of Trusts § 170(1) (1957).” Gillespie v. Seymour, 19 Kan. App. 2d 754, 766-67, 876 P.2d 193, rev. denied 255 Kan. 1001 (1994).
“a. Standard of care and skill. The standard of care and skill required of a trustee is the external standard of a man of ordinary prudence in dealing with his own property. . . . On the other hand, if the trustee has a greater degree of skill than that of a man of ordinary prudence, he is hable for a loss resulting from the failure to use such skill as he has.” Restatement (Second) of Trusts § 174, Comment a.
“d. Corporate trustees. If the trustee is a bank or trust company, it must use in selecting investments the facilities which it has or should have, and it may properly be required to show that it has made a more thorough and complete investigation than would ordinarily be expected from an individual trustee.” Restatement (Second) of Trusts § 227, Comment d.
Scott on Trusts comments:
“Is the standard of care and skill to which a trustee must conform different in the case of a corporate or other professional trustee from what it is in the case of an individual nonprofessional trustee? . . . If the trustee has greater skill or more facilities than others have he is under a duty to employ such skill and facilities. Moreover, as we have seen, if a trustee has held himself out as having a higher degree of skill or greater facilities than others have, he may incur a liability by failing to come up to the standard he has set. These principles are applicable to trust institutions. In holding corporate trustees liable for negligence, courts have not infrequently called attention to the fact that they have or hold themselves out as having special skill and special facilities.” 2A Scott on Trusts § 174.1, pp. 472-73 (4th ed. 1987).
“[W]here a trustee has special or professional knowledge or skill, he ordinarily is under a duty to exercise such knowledge and skill, where applicable, in the administration of the trust.
“Considering the reasoning that bankers, doctors, and lawyers should not be allowed to gain business as specialists and defend their mistakes as laymen, and in view of the more general awareness of consumer rights, it seems likely that the courts will increasingly adopt the view that a trustee representing itself as having greater knowledge and skill than the ordinary man is under a duty to exercise [a] degree of skill greater than that of an ordinary prudent man.” Annot., 91 A.L.R.3d 904, 906.
But see Security Trust Co. v. Appleton, 303 Ky. 328, 197 S.W.2d 70 (1946) (court held professional trustee not subject to any heightened duty of care).
The logic stated above strongly supports a notion that if a trustee who represents that he, she, or it is a professional trustee, then such trustee should be held to a higher standard of care. The standard is that a professional trustee is bound to exercise such reasonable and prudent skill in management of the trust estate as the conditions require, taking into account the expressed directions of the settlor and the purposes of the trust. The extent and character of care in managing the trust that a trustee owes the beneficiaries depends on the circumstances of the particular trust, and the measure of such duty is that degree of care and diligence in management which is used by professional trustees generally in the same or a similar community. See Mellies v. National Heritage, Inc., 6 Kan. App. 2d 910, 913, 636 P.2d 215 (1981).
We are convinced the weight of authority suggests the standard of care of a bank trustee is higher than an ordinary individual nonprofessional trustee, and we conclude such is the law in Kansas.
The above notion, however, leads to the next query: Is expert testimony as to the standard of care necessary to establish a breach of . such a duty?
In Kansas, often the appellate courts have required expert testimony concerning the standard of care applicable to various professions. Similarly, expert testimony has been found necessary to determine whether the defendant has in fact violated such standard of care.
“The primary purpose of expert testimony is to establish the community standards for the benefit of the trier of fact when the facts are somewhat alien in terminology and the technological complexities would preclude an ordinary trier of fact from rendering an intelligent judgment.” Juhnke v. Evangelical Lutheran Good Samaritan Society, 6 Kan. App. 2d 744, 748, 634 P.2d 1132 (1981).
In McConwell v. FMG of Kansas City, Inc., 18 Kan. App. 2d 839, Syl. ¶ 5, 861 P.2d 830 (1993), rev. denied 254 Kan. 1007 (1994), this court noted:
“Expert testimony is generally required and may be used to prove the standard of care by which the professional actions of the attorney are measured and whether the attorney deviated from the appropriate standard. Expert testimony is required with respect to a question that an ordinary person is not equipped by common knowledge and skill to judge.”
Similarly, architectural procedures were found sufficiently technical and outside the realm of ordinary knowledge to warrant application of an “architectural community standard,” thus requiring expert testimony as to questions of an architect’s alleged negligence. But we concluded the “common knowledge exception” to this requirement was still applicable in an appropriate case. Seaman U.S.D. No. 345 v. Casson Constr. Co., 3 Kan. App. 2d 289, Syl. ¶ 1, 594 P.2d 241 (1979).
We conclude that to establish the standard of care and a breach of that standard, it will ordinarily be necessary to present testimony of someone who is competent to testify as to whether the trustee’s actions conformed to the standard of care for a professional trustee.
BREACH OF FIDUCIARY DUTY
Here, the district court found the beneficiaries had failed to present any evidence that the Bank had failed in exercising its duty as a professional trustee to the degree of care and diligence in management which is used by professional trustees generally in the same or similar community. Such a finding is more consistent with the court recognizing that the standard of care was higher for professional trustees. It is also a negative finding.
“ ‘The effect of a negative finding by a trial court is that the party upon whom the burden of proof is cast did not sustain the requisite burden. Absent arbitrary disregard of undisputed evidence or some extrinsic consideration such as bias, passion or prejudice the finding of the trial judge cannot be disturbed. An appellate court cannot nullify a trial judge’s disbelief of evidence nor can it determine the persuasiveness of evidence which the trial judge may have believed.’ [Citation omitted.]” Mohr v. State Bank of Stanley, 244 Kan. 555, 567-68, 770 P.2d 466 (1989).
The beneficiaries argue that the uncontroverted evidence showed that the Bank held over 90% of the trust assets in farmland and that in and of itself constituted a breach of fiduciary duty.
Unquestionably, over 90% of the trust property consisted of farmland. While the court erroneously concluded the Bank had no duty to diversify, the court found the fact that the settlor selected the farmland and placed such land into the trust was an indication that the settlor felt such property was an appropriate investment for the trust. The court further found this fact was properly taken into account by the Bank in its management of the trust. The court further noted the land produced an average income of 4.85% for the life of the trust and the trust property had substantially appreciated over the life of the trust.
Next, the beneficiaries argue the Bank violated its duty by failing to make annual accountings. The beneficiaries point to testimony of the trust officer that some of the annual accountings did not contain all the required information.
The district court found the Bank filed annual accountings, which were in turn approved by the court, and further found the beneficiaries’ testimony was inconsistent as to what accountings they received. The court concluded that the reports provided the beneficiaries all the required information as to the trustee’s financial activities.
Absent a more complete argument by the beneficiaries which states exactly what statute applies and just what information was omitted, this issue fails. As the beneficiaries do not specify the error or cite legal authority supporting their contention, we need not address the issue. See Enlow v. Sears, Robuck & Co., 249 Kan. 732, 744, 822 P.2d 617 (1991). Also, “[a]n issue which is not briefed is deemed abandoned.” State v. Wacker, 253 Kan. 664, 670, 861 P.2d 1272 (1993).
Next, the beneficiaries claim the Bank breached its fiduciary duty by not conducting regular inspections of the property. However, the sum of this argument is that the authority and argument for this issue are contained in the beneficiaries’ proposed findings of fact and conclusions of law, which are “in the record.” Once again, failure to brief equals abandonment. Similarly, in the remaining issues the beneficiaries simply refer us to their trial brief and proposed findings of fact and conclusions of law. Such is not sufficient, and the court reminds the beneficiaries that their argument must be contained in their brief and a reference to some other brief is not proper argument.
The record shows that the beneficiaries presented the testimony of Ed Chapline, who was a stockbroker from Kansas City. The district court found that Chapline had never worked for a bank and had never been a trust officer, and while he had made recommendations to banks, had never been part of a trust department. The court further found Chapline had no expertise in real estate, nor was he aware of any standard of care a professional trustee would owe a beneficiary. Even though Chapline was allowed to testify, the court found he was not qualified as an expert on trust matters. The beneficiaries do not dispute this finding and conclusion.
Conversely, the Bank presented the testimony of W. Newton Male, a former State Banking Commissioner, who during his tenure set up the state trust examiners’ system. Male also had worked in his spare time appraising farms in and around Wichita. Male testified that the fact the farmland was spread out over three counties and consisted of tillable land as well as pasture, plus the fact there was oil and gas production on some of the property, showed the trust was in fact diversified. While Male did not testify as to what the standard of care was, it was his opinion that the Bank did not breach its duty of care in managing the assets of the trust.
Our review of the record convinces us the beneficiaries failed to present competent testimony of the trustee’s standard of care and how the trustee’s actions violated that standard of care. Conversly, the Bank did present competent testimony that indicated that the Bank’s actions did not breach the applicable standard of care. Thus, we conclude the court did not err on this point.
ACTUAL DAMAGES
Last, the beneficiaries argue the district court erred in finding they had failed to prove actual damages. The totality of the beneficiaries’ argument is that “[ajbundant evidence exists in the record to enable the Court to fashion an equitable remedy in compliance with the guidelines set forth in the Restatements of Trusts. That evidence is cited and discussed at length in the Proposed Findings of Fact and Conclusions of Law and Brief in Support filed by the Beneficiaries . . . .” The beneficiaries have again failed to state in their brief what evidence they presented at trial or the extent of damages such evidence would prove. Therefore, this issue is abandoned.
The judgment of the district court is affirmed. | [
-14,
108,
-36,
44,
-104,
-32,
58,
-102,
67,
122,
37,
91,
-23,
-55,
17,
43,
-28,
-81,
77,
105,
-41,
-77,
31,
-111,
-46,
-77,
-7,
-35,
-80,
93,
-90,
-41,
72,
48,
-118,
21,
-62,
-92,
-57,
88,
-116,
5,
-119,
-91,
93,
1,
60,
103,
20,
9,
85,
42,
59,
40,
57,
-30,
73,
46,
107,
57,
89,
-8,
-85,
4,
-17,
19,
-127,
5,
-104,
11,
-64,
35,
-112,
117,
1,
-24,
55,
-74,
-58,
116,
7,
25,
44,
110,
98,
49,
16,
-3,
-80,
-120,
46,
-65,
-115,
-121,
-30,
89,
0,
-85,
-76,
-98,
121,
6,
71,
-4,
102,
-116,
126,
108,
5,
-33,
-106,
-127,
-115,
124,
-116,
-117,
-1,
-81,
48,
113,
-113,
-30,
92,
7,
58,
27,
-122,
-9
]
|
Pierron, J.:
The natural father of K.J.B., L.D.B., and R.J.B., minor children, appeals a judgment granting the stepfather the right to adopt the children. The district court determined the fa ther’s consent to the adoption was unnecessary because he had failed to assume the duties of a parent during the 2 years preceding the filing of the adoption petition. On appeal, the father argues the district court erred in determining that his social security disability payments, a portion of which were paid to the children’s mother, did not constitute child support or financial support so as to rebut the presumption that he failed to assume parental duties as set forth in K.S.A. 59-2136(d). Additionally, the father contends the district court erred by failing to consider the time he was institutionalized for mental disabilities in determining that he had only nominal or incidental contacts with the children. We affirm.
The mother and father of K.J.B., L.D.B., and R.J.B. were divorced in 1989. The mother was given residential custody of L.D.B and R.J.B. and the father was given residential custody of K.J.B. This arrangement lasted until May 1989, when all three children began residing with the mother as a result of a child in need of care proceeding regarding K.J.B. The mother married the petitioner/stepfather in May 1991. The mother testified she has lived at the same residence since she remarried.
Following the divorce, the father was ordered to pay $254 per month in child support for the two children in the mother’s custody. The mother never requested a change in the amount of support after all three children were placed in her custody. The mother testified the only check she ever received from the father was one for $98.
In 1991, the father filed for social security disability benefits and the children began receiving a portion of these benefits, which were back-dated to 1990. The father testified it is the advice of his physician that he not seek employment. From 1990, the children received $255 per month in social security benefits. The mother claimed the benefits were less than what the children should have received because the father claimed parentage of another child in order for that child’s mother to receive a portion of the benefits.
The father exercised regular visitation for approximately 1 year after the children began residing with their mother. On June 29, 1992, the district court entered an order approving the change of custody of all three children to the mother. The court permitted visitation by the father, but due to the father’s mental problems, the visitation was to be under the direct supervision of the Pawnee Mental Health Center. The father exercised four supervised visits with the children in the following 3 months.
On September 23, 1992, the father filed a motion to set specific visitation rights. After filing the motion, the father had a visit with the children for a birthday party, and other visits also took place when the father volunteered his time. On February 11, 1993, the district court entered an order allowing visitation by the father at his home for 3 hours on alternating weekends, with the visits increasing an hour each visit until a full weekend was allowed. The father exercised his visitation rights under this order until September 1993. On October 20, 1993, the mother filed a motion to alter the father’s visitation schedule. The father exercised no visitation or contact with the children from that point on.
On January 4, 1994, the district court entered an order modifying the father’s visitation rights in response to the mother’s motion to alter. The father did not appear at the January 4, 1994, hearing. He was granted certain visitation rights, but the judge ordered the visitation stayed until the father appeared and requested the same to be reinstated. However, the court permitted visitation in the mother’s home under her supervision. The mother testified the district court stayed the visitation because the father had not visited the children since September and had received two DUI’s.
Approximately a month after the court stayed the father’s visitation, he called the mother, and she tried to arrange visitation in her home. The mother testified the father told her that was not correct and hung up the phone. She did not hear from him again. The father has not filed any legal proceedings regarding visitation or custody. The mother indicated the father sent only two of the three children birthday cards in 1994 and 1995. Additionally, the children received Christmas cards in 1994, but nothing for Christmas 1995.
The father is mentally disabled and suffers from depression and agoraphobia, a fear of strange places with large numbers of people. He acknowledged he takes several medications for his mental ill ness. He claims that when he takes his medications, he is able to function as a normal person. He stated that shortly after the mother filed the motion to alter visitation in September 1993, he was involuntarily hospitalized in Osawatomie State Hospital from October 1993 through December 1993.
The father testified he called the stepfather in April. 1994 and was told that the children were not his anymore, they were the stepfather’s children, and to never call again. The father testified he did not call the children because of the stepfather’s command. The father stated that as a result of the inability to see his children, he voluntarily checked himself into Osawatomie State Hospital and then was transferred to Topeka State Hospital from May 1994 to July 1994. When the father was released from the hospital, he was sent to a halfway house in Liberal, Kansas, where he lived from July 1994 through November 1994. Because of a DUI conviction, the father then spent November and December 1994 in the Riley County jail.
From January 1995 through July 1995, the father lived with his own father in Wamego. He went to a facility, in Georgia for the month of July 1995 to prepare himself for the litigation concerning his children. He returned to Wamego and lived there until April 1996. At the time of the hearing on whether his consent to the adoption was necessary, the father resided in Topeka in an assisted living home for the mentally ill.
On November 6, 1995, the stepfather, with the consent of the mother, filed a petition for adoption of the three children. The adoption proceedings were heard before a district magistrate judge. The petition claimed the father’s consent was unnecessary because he had failed or refused to assume the duties of a parent for the 2 years prior to the filing of the adoption petition.
The issue of whether the father’s consent was required for the adoption was removed to the district court. The court held an evidentiary hearing on the matter and reviewed briefs submitted by the parties. On August 23, 1996, the court held that within the 2 years previous to the filing of the adoption petition, the father had only nominal and incidental contacts with the children and that the social security benefits the children received were not sufficient to require his consent to the adoption. The court concluded the father had failed to assume his parental responsibilities for the 2-year period and his consent to the adoption was unnecessary. The district court returned the case to the magistrate court for the continuation of the adoption proceedings.
On September 16, 1996, the magistrate judge granted the stepfather s petition for adoption. On the same day, the father filed a motion to stay the adoption and a notice of appeal concerning the district court’s order finding his consent to be unnecessary. On September 20,1996, the father withdrew the motion for a stay and filed a notice of appeal from the decree of adoption.
The issue before us is not the father’s parental fitness. See In re Adoption of Wilson, 227 Kan. 803, Syl. ¶ 1, 610 P.2d 598 (1980). Rather, we are to determine whether he has performed certain duties. The controlling Kansas statute is K.S.A. 59-2136(d):
“In a stepparent adoption, if a mother consents to the adoption of a child who has a presumed father under subsection (a)(1), (2) or (3) of K.S.A. 38-1114 and amendments thereto, or who has a father as to whom the child is a legitimate child under prior law of this state or under the law of another jurisdiction, the consent of such father must be given to the adoption unless such father has failed or refused to assume the duties of a parent for two consecutive years next preceding the filing of the petition for adoption or is incapable of giving such consent. In determining whether a father’s consent is required under this subsection, the court may disregard incidental visitations, contacts, communications or contributions. In determining whether the father has failed or refused to assume the duties of a parent for two consecutive years next preceding the filing of the petition for adoption, there shall be a rebuttable presumption that if the father, after having knowledge of the child’s birth, has knowingly failed to provide a substantial portion of the child support as required by judicial decree, when financially able to do so, for a period of two years next preceding the filing of the petition for adoption, then such father has failed or refused to assume the duties of a parent.”
Initially, K.S.A. 59-2136(d) sets out the general principle that consent to an adoption is unnecessary for a father who has failed or refused to assume parental duties within the 2 years prior to the filing of the adoption proceeding. The next two sentences of K.S.A. 59-2136(d) merely provide explanatory provisions to help the trial court make this determination. The statute permits the trial court to disregard incidental visitations, contacts, communications, or contributions, and a rebuttable presumption of failure to assume parental responsibilities arises when there have been no substantial financial contributions, as required by judicial decree, made by a parent to his or her child within the 2-year period.
The father first argues that the social security benefits his children received because of his disability are sufficient to fulfill his child support obligation under Kansas law and, therefore, rebut the presumption that he has not assumed his parental duties in the last 2 years. In response, the stepfather indicates he never argued that the disability payments should not have been credited against the father’s child support and the district court never made a finding that the payments did not rebut the presumption in K.S.A. 59-2136(d). Rather, the stepfather argues the district court examined all the circumstances and held the father did not assume his parental duties within the 2 years prior to the filing of the adoption petition.
“Interpretation of a statute is a question of law.” State v. Donlay, 253 Kan. 132, Syl. ¶ 1, 853 P.2d 680 (1993). “[T]he legislature is presumed to intend that a statute be given a reasonable construction, so as to avoid unreasonable or absurd results.” Todd v. Kelly, 251 Kan. 512, 520, 837 P.2d 381 (1992). “When determining a question of law, this court is not bound by the decision of the district court.” Memorial Hospital Ass’n, Inc. v. Knutson, 239 Kan. 663, 668, 722 P.2d 1093 (1986).
The father cites several cases demonstrating how social security payments constitute income with regard to child support obligations. None of these cases deal with an adoption situation. They deal only with whether social security payments are to be considered in the determination of what amount of child support is owed.
In Andler v. Andler, 217 Kan. 538, Syl. ¶ 4, 538 P.2d 649 (1975), the court stated:
“Where a father who has been ordered to make child support payments becomes totally and permanently disabled, and unconditional Social Security payments for the benefit of the minor children are paid to the divorced mother, the father is entitled to credit for such payments by the government against his liability for child support under a divorce decree to the extent of, but not exceeding, his monthly obligation for child support.”
See also In re Marriage of Callaghan, 19 Kan. App. 2d 335, 869 P.2d 240 (1994) (Social security disability payments are not public assistance and, accordingly, are to be included as income in calculating child support under the Kansas Child Support Guidelines.).
A case somewhat similar in nature to the case at bar is In re Adoption of C.R.D., 21 Kan. App. 2d 94, 897 P.2d 181 (1995). There, in the 2 years preceding the filing of the adoption petition by the stepfather, the father had no contact with the child and did not call or send letters or gifts. As a result of the parties’ divorce, the father was under an obligation to pay $200 per month in child support. In the critical 2-year period, the father had paid from his earnings $1,100 in child support when $4,800 was due and provided some health insurance for the child. However, including time periods prior to the 2-year period, the father owed approximately $6,000 in child support arrearages. The father alleged he had maintained a savings account in his mother’s name into which he paid the child support. The trial court found the father’s payments to be insufficient to rebut the presumption that he failed or refused to assume the duties of a parent by failing to provide a substantial portion of the child support. 21 Kan. App. 2d at 97.
In a 3-way split opinion, this court reversed the trial court’s decision. The “majority” conceded that a substantial amount of the ordered child support had not been paid. However, it concluded that “as a matter of law, it cannot be said that the $1,100 and medical insurance coverage do not constitute substantial efforts and assumption of parental duties, incomplete and unsatisfactory though they may be.” The majority ruled that the father’s support was not what it should have been, but it was not só insubstantial as to deprive him of his rights of parenthood. 21 Kan. App. 2d at 99.
In a concurring opinion, Judge Lewis stated his position that “it is only when a parent has failed to exercise all of the duties of a parent, including those of financial support and love and affection, that his right to consent to an adoption may be dispensed with.” Judge Lewis stressed that a lack of financial support, standing alone, should not be sufficient to sever the ties of a dutiful and loving parent. 21 Kan. App. 2d at 102.
In a dissenting opinion, Judge Green stated that the father failed to show any affection, care, or interest in the child and failed to pay approximately 77% of his court-ordered child support during the relevant time period. He concluded the father had failed to rebut the presumption that he had failed or refused to assume his parental duties. 21 Kan. App. 2d at 104.
There was no evidence presented at the instant district court hearing as to whether the father had any child support arrearages. However, there was evidence that the mother received social security disability payments from the father in an amount equalling or exceeding the amount of his court-ordered child support payment.
However, the only parental effort made by the father in this matter was to apply for government benefits for the children and himself. While the monetary sum for child support was being satisfied, it was being satisfied through governmental transfer payments. Child support is therefore current from the standpoint of the number of dollars having been paid in from some source at the behest of the father. But this was a totally passive act by him except for the minimal effort of applying for the benefits.
The actions of the father in this case do not constitute positive parental action of the hind exhibited by the father in C.R.D.
The father also argues that when a natural father is mentally ill and has been institutionalized either voluntarily or involuntarily, and has been unable to maintain a continuous and ongoing relationship with his minor children because of the illness, the trial court must consider the father’s disability and examine all the surrounding circumstances before terminating parental rights through an adoption.
“In an adoption proceeding, the question of whether an individual has failed or refused to assume the duties of a parent for the required period of time pursuant to K.S.A. 1986 Supp. 59-2102(a)(3) is ordinarily a factual one to be determined by the trier of facts upon competent evidence after a full and complete hearing.”
“When findings of fact are attacked for insufficiency of evidence or as being contrary to the evidence, the duty of the appellate court extends only to a search of the record to determine whether substantial competent evidence exists to support the findings. An appellate court will not weigh the evidence or pass upon the credibility of the witnesses. Under these circumstances, the reviewing court must review the evidence in the light most favorable to the party prevailing below.” In re Adoption of F.A.R., 242 Kan. 231, Syl. ¶¶ 1, 2, 747 P.2d 145 (1987).
The father contends that circumstances beyond his control have prevented him from maintaining contact with his minor children. He argues his mental illness has prevented him from enjoying a normal father-child relationship during the critical 2-year period; the mother and stepfather made any contact with the children difficult; and he has been in and out of treatment and institutions. He maintains that if all the surrounding circumstances are examined, especially the limiting nature of his mental illness, the court erred in dispensing with his consent. He claims he “very much wants to have and maintain a long-term relationship with his children and because of the treatments which he has had, this can now be accomplished, providing the court does not sever his parental rights.”
By analogy, the father cites cases involving stepparent adoption in which one of the natural parents was incarcerated. See In re Adoption of F.A.R., 242 Kan. at 236 (father continuously incarcerated; trial court must determine whether incarcerated parent pursued the opportunities and options which may be available to carry out parental duties to the best of his or her ability); In re Adoption of S.E.B., 257 Kan. 266, 891 P.2d 440 (1995) (in applying rebuttable presumption in K.S.A. 59-2136[d]), trial court required to take into consideration the period of time the father was in prison and unable to support children). He argues the district court’s decision affords an incarcerated person more rights than an individual suffering from mental illness.
Contrary to the father’s claim, the district court took into consideration his mental illness and treatment within the required time period. The court ruled as follows:
“I reviewed the authority submitted by the petitioner and now find that in the two years next preceding the filing of the petition for adoption herein, that the natural father, [T.B.], had only nominal and incidental contact with the children whatsoever. There were several erratic card mailings, and there was on his, initiated by him on behalf of the children, a filing for social security benefits, but aside from that, there was no other meaningful or significant contact whatsoever between him and the children. The court finds that upon review that the treatment that he received although it was, 1 don’t dispute the necessity was well advised and that the endeavor was well taken, was not such that it would have significantly impaired his ability should he have chosen to establish and maintain contact with these children to the extent that it could be found by the court that he had failed or had exercised the duties of a parent. The court, therefore, finds that the petitioner has established the allegations of his petition, that the respondent has failed to assume the duties of a parent for two years next preceding the filing of the petition and that his consent is not necessary or required to proceed forward with the adoption as prayed.” (Emphasis added.)
The father attempts to justify his failure to show any love and affection to his children by insisting that the mother and stepfather made it difficult to see the children and that the stepfather prohibited him from calling or seeing the children. On the other hand, the stepfather argues it was not reasonable for the father to sit back and not seek counsel to enforce his visitation rights if he felt they were being obstructed. The father also failed to attend the January 4, 1994, hearing where the district court modified visitation to the mother’s home. The father denied receiving notice for this hearing. The father tried to obtain Flint Hills Legal Services as counsel, but Flint Hills refused because of a conflict.
Today, Kansas courts have noted that “incidental” contacts and contributions as contemplated by K.S.A. 59-2136(d) and its predecessor statute, K.S.A. 59-2102(b) (Ensley), are to be disregarded when determining whether parental duties have been assumed. “Incidental” has been defined as “casual, of minor importance, insignificant, and of little consequence.” In re Adoption of McMullen, 236 Kan. 348, Syl. ¶ 1, 691 P.2d 17 (1984).
The district court correctly found the father failed the “love and affection” side of his parenting responsibilities. During the 2 years preceding the filing of the adoption petition, the father was in a treatment facility for 5 months, in a halfway house in Liberal for 4 months, living with his father in Wamego (the same small town where the children lived) for 13 months, and incarcerated in the Riley County jail for 2 months. The father s excuse that it was difficult to see his children is no excuse for not loving and nurturing them. There is no evidence in the record how the father’s mental illness “limited” him from maintaining contact with his children. Furthermore, even taking into account that the father was institutionalized for a portion of the 2 years, there is no evidence he “pursued the opportunities and options which [were] available [to him] to carry out [parental] duties to the best of his .... ability.” In re Adoption of F.A.R., 242 Kan. 231, Syl. ¶ 7.
For whatever reason, the father failed to see or contact the children. The birthday cards he sent to two of the children, not all three, and the Christmas cards in 1994 clearly constitute incidental contacts and communications. As correctly found by the district court, the father had only “nominal and incidental contacts” with the minor children.
The district court noted that social security disability payments were made to the children. The district court made a conclusion of law that these payments were not sufficient, in and of themselves, to require the father to consent to the adoption, i.e., he had not assumed his parental duties. “Where the trial court has made findings of fact and conclusions of law, the function of an appellate court is to determine whether the findings are supported by substantial competent evidence and whether the findings are sufficient to support the trial court’s conclusions of law.” Tucker v. Hugoton Energy Corp., 253 Kan. 373, Syl. ¶ 1, 855 P.2d 929 (1993). “This court’s review of conclusions of law is unlimited.” Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991).
Parental duties include not only financial support but also the natural and moral duty of a parent to show affection, care, and interest toward his or her child. See In re Adoption of F.A.R., 242 Kan. at 239; In re Adoption of Wilson, 227 Kan. 803, 805, 610 P.2d 598 (1980); In re Sharp, 197 Kan. 502, 508, 419 P.2d 812 (1966). However, the foregoing cases do not stand for the principle that parental rights may always be abrogated if a parent fails in any one of the parent’s obligations. A failure in one area may be balanced by action in another, or it may not.
Cases such as this must be decided under certain principles of law, but are very fact sensitive. All surrounding circumstances must be considered and a decision made as to whether the parent’s efforts constitute a sufficient assumption of parental duties to prevent a termination of parental rights through stepparent adoption. See In re Adoption of F.A.R., 242 Kan. at 239-40.
We find in the instant case that the father failed in both his positive financial obligations and in his responsibilities to provide even a minimum of parental love and affection. Luckily, there was social security to provide assistance for his children’s financial needs and a stepfather who was willing to provide parental love and affection to the children.
Because of the complete failure of the father to provide either, we need not and do not make the difficult decision of determining how little of either one or both responsibilities is enough to stave off a finding of a failure to exercise parental duties. While some of the father’s failings are explicable due to his mental problems, all of them are not. A parent may not totally fail (except for incidental efforts) in exercising parental duties and avoid the import of K.S.A. 59-2136(d) by pleading that some of the failure was explainable.
We find the district court’s decision was consistent with the law governing these issues, particularly when we consider our standard of review.
Affirmed. | [
-47,
-19,
-35,
126,
27,
97,
-85,
42,
82,
-93,
-89,
-45,
-21,
-26,
92,
105,
80,
47,
81,
122,
-45,
-93,
63,
0,
-6,
-13,
-72,
-33,
-79,
77,
100,
86,
28,
48,
-118,
-59,
102,
-64,
-81,
20,
-114,
-122,
-117,
13,
-47,
2,
52,
115,
26,
11,
113,
-66,
-105,
12,
57,
126,
12,
14,
31,
-72,
-112,
-16,
-113,
5,
78,
85,
-79,
84,
-72,
68,
88,
-113,
-118,
61,
0,
-24,
50,
-76,
-118,
118,
83,
29,
-119,
100,
102,
34,
13,
-12,
-8,
-104,
-50,
30,
-97,
-90,
-111,
88,
2,
38,
-74,
-66,
76,
68,
46,
120,
-53,
12,
30,
100,
10,
-114,
-42,
-111,
-116,
-16,
78,
-119,
-9,
101,
16,
113,
-37,
-32,
84,
67,
122,
-109,
-90,
-14
]
|
Royse, J.:
This appeal arises out of a joint application filed by Sprint Communications Company, L.P., United Telephone Company of Kansas, United Telephone Company of Eastern Kansas, United Telephone Company of South Central Kansas, and United Telephone Company of Southeastern Kansas (Sprint) with the Kansas Corporation Commission (KCC). Sprint asked the KCC to open a generic proceeding to examine'Southwestern Bell Telephone Company’s (SWBT) costs and determine the prices SWBT could charge for services under interconnection agreements with carriers pursuant to the Federal Communications Act of 1996, 47 U.S.C. § 151 et seq., and the Federal Communication Commission’s (FCC) interconnection rules. The KCC granted Sprint’s joint application and opened a generic proceeding.
The Citizens’ Utility Ratepayer Board (CURB) filed a petition to intervene, alleging that the KCC’s order in the proceedings will or may effect the rates paid and service received by residential and small commercial ratepayers. The KCC granted CURB’S motion to intervene.
The KCC later adopted a procedural schedule and issued a protective order regarding SWBT’s proprietary cost data. The protective order stated in pertinent part that only parties which requested interconnection negotiations with SWBT would have access to the proprietary cost data. Under that order, CURB would be unable to view SWBT’s cost data.
CURB timely filed a petition for the KCC to reconsider its protective order, which the KCC denied. CURB then filed its application for judicial review of the protective order to this court.
JURISDICTION
The first issue we must address is this court’s jurisdiction to entertain CURB’S appeal. K.S.A. 1996 Supp. 66-118a(b) provides in pertinent part that the Court of Appeals has exclusive jurisdiction to review any agency action of the KCC arising from a rate hearing. The KCC and SWBT argue that this case did not arise out of a rate hearing, because this proceeding does not involve rates a regulated monopoly may charge consumers. They characterize the proceeding as one merely to establish a cost methodology to assist the KCC in setting prices SWBT may charge its competitors.
This argument ignores several statements in the record which characterize this proceeding as a rate hearing. Sprint’s joint application asked the KCC to examine SWBT’s costs and “determine the rates that SWBT can charge.” The KCC noted this language in its order granting the application. The KCC’s order contemplated more than the establishment of cost methodologies; the KCC indicated its goal was to issue a “definitive decision on the cost issues in six months.”
In its later order denying requests for reconsideration filed by SWBT and AT&T Communications of the Southwest (AT&T), the KCC described this proceeding as a “generic study to establish rates for SWBT pricing of unbundled elements required for use in negotiations of interconnection agreements.” The KCC repeated that description in its order which set forth the procedural schedule and protective order. This latter order also stated: “[T]hrough this docket the Commission will prescribe the costing methodology and determine prices which may be used for interconnection.” Finally, the parties have repeatedly recognized that the cost determinations in this proceeding will have a “direct and significant impact” on the effort to develop competition in local exchange services in Kansas.
In addition to the terminology used by the parties in this cáse, the Federal Communications Act of 1996 makes clear that SWBT’s costs form an integral part of the rates SWBT can charge its competitors. Section 252(d) of the Act contains pricing standards and provides that rates for interconnection shall be based.on the cost of providing the interconnection or network element, plus a reasonable profit. 47 U.S.C. § 252(d).
This proceeding, then, represents the first of a series of decisions to be made in establishing who pays what for competitive services in Kansas. While this proceeding will not produce a rate schedule, it will determine the cost methodologies and costs which will be used in later proceedings to determine the rates SWBT may receive from its competitors and the rates that they in turn may charge their customers.
We have reviewed the cases cited by the KCC in its motion to transfer to the district court. As CURB notes, those cases all deal with rate changes. This proceeding, however, will establish initial costs to be used in setting rates under interconnection agreements. See Kansas Gas & Electric Co. v. Kansas Corp. Comm’n, 14 Kan. App. 2d 527, 530-31, 794 P.2d 1165, rev. denied 247 Kan. 704 (1990); Midwest Gas Users Ass'n v. Kansas Corporation Commission, 3 Kan. App. 2d 376, 390, 595 P.2d 735, rev. denied 226 Kan. 792 (1979). Moreover, while those cases illustrate what the term “arising from a rate hearing” may include, they provide no basis for concluding that this proceeding is beyond the scope of that term. We decline to adopt the narrow view of “arising from a rate hearing” urged by the KCC.
Intervenor SWBT raises a second challenge to this court’s jurisdiction. SWBT argues that K.S.A. 77-608 limits judicial review to “final agency action” and that KCC’s protective order is not a final agency action. SWBT characterizes the KCC’s protective order as a mere procedural ruling which cannot be equated with a final order.
The “final agency action” requirement was recently examined in ; Kansas Pipeline Partnership v. Kansas Corporation Comm’n, 22 Kan. App. 2d 410, 916 P.2d 76 (1996). In that case, this court determined that because the KCC failed to act within 240 days, contracts submitted for review by Kansas Pipeline Partnership were deemed approved by operation of law. Kansas Pipeline Partnership is instructive in two respects. First, it makes clear .that the terms “final agency action” and “final order” are not synonymous. 22 Kan. App. 2d at 418. Second, it illustrates the application of the “final agency action” requirement:
“The KCC’s denial of KPP’s arguments that the contracts were ‘deemed approved’ due to the expiration of time is a final decision on this issue. It has a direct effect on KPP and presents a legal question for our review. Further, ruling on this issue does not disrupt the orderly process of adjudication in the administrative proceeding.” 22 Kan. App. 2d at 413-14.
Similarly, in this case, the KCC’s ruling on CURB’S petition to reconsider the protective order is a final decision on the issue of CURB’S access to SWBT’s proprietary cost data. It has a direct effect on CURB and presents a legal question for our review. Further, ruling on this issue does not disrupt the orderly process of adjudication in the administrative proceeding.
Even if the KCC’s protective order is not a final agency action, we have jurisdiction to consider CURB’S appeal. K.S.A. 77-608 authorizes interlocutory review of a nonfinal agency action where postponement of judicial' review would result in an inadequate remedy or irreparable harm disproportionate to the public benefit derived from postponement. In this case, the KCC’s protective order will be effectively unreviewable if an appeal is delayed until after the KCC has approved cost methodologies and determined prices that SWBT can charge its competitors. If CURB is denied review of SWBT’s cost data, a situation is created which cannot be completely rectified. CURB will be placed in the untenable position of trying to show how its examination of witnesses and arguments to the KCC would have differed had it been allowed to review the proprietary cost data. See, e.g., Skahan v. Powell, 8 Kan. App. 2d 204, 653 P.2d 1192 (1982) (order disqualifying attorney deemed to be appealable); Southwestern Bell Tel. Co. v. Kansas Corporation Commission, 6 Kan. App. 2d 444, 453-54, 629 P.2d 1174, rev. denied 230 Kan. 819 (1981) (denial of protective-order reviewable).
Whether the KCC’s order precluding CURB’S access to SWBT’s cost data is a final agency action or a nonfinal agency action ripe for interlocutory review, we conclude that this court has jurisdiction to consider CURB’S appeal.
STANDARD OF REVIEW
The applicable standard of review is set forth in K.S.A. 77-621, which codified principles repeatedly recognized by the Kansas courts. See, e.g., Kansas Gas & Electric Co. v. Kansas Corporation Comm’n, 239 Kan. 483, 497-98, 720 P.2d 1063 (1986); Midwest, 3 Kan. App. 2d at 380-81. Thus, the burden of proving the invalidity of the KCC’s action is on CURB, the party asserting invalidity. K.S.A. 77-621(a)(l).
CURB argues that KCC has erroneously interpreted or applied the law and that its protective order is otherwise unreasonable, arbitrary, or capricious. K.S.A. 77-621(c)(4) and K.S.A. 77-621(c)(8). Interpretation of a statute is a question of law, subject to unlimited review on appeal. Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, Syl. ¶ 1, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995). “Unreasonable” agency action is action taken without regard to the benefit or harm to all interested parties. Agency action is “arbitrary and capricious” if it is unreasonable or “without foundation in fact.” Peck v. University Residence Committee of Kansas State Univ., 248 Kan. 450, 456, 807 P.2d 652 (1991); Zinke & Trumbo, Ltd. v. Kansas Corporation Comm’n, 242 Kan. 470, 474-75, 749 P.2d 21 (1988).
The KCC urges us to apply the substantial evidence standard in reviewing the KCC’s protective order. We decline to do so, as that standard of review is inapplicable here. This appeal does not turn on any resolution of a question of fact, but on the KCC’s interpretation of K.S.A. 77-521. Moreover, the KCC entered the order at issue on its own motion. No hearing was conducted, and no evidence was presented. Thus, we would have no basis in the record to conclude that the KCC’s order was supported by substantial evidence.
MERITS
CURB argues that the KCC’s protective order so seriously impedes CURB’S participation in the proceedings that it interferes with CURB’S statutory role as “official intervenor” in cases filed before the KCC. K.S.A. 667223(b). CURB takes the position that implicit in its statutory authority to intervene is the right to engage in meaningful discovery. CURB further argues that the protective order violates its due process rights. The KCC responds that its protective order is authorized by K.S.A. 77-521(c), which provides that an agency may impose conditions upon an intervenor’s participation in the proceedings. Specifically, K.S.A. 77-521(c)(2) provides that the agency may limit an intervenor’s “use of discovery, cross-examination and other procedures so as to promote the orderly and prompt conduct of the proceedings.” (The KCC also claims reliance on K.A.R. 82-1-225. Because that regulation merely parrots 77-521, we will not discuss it separately.)
Although 77-521(c)(2) authorizes limitations on an intervenor’s discovery in order “to promote the orderly and prompt conduct of the proceedings,” the KCC makes no argument that the protective order in this case was necessary to assure orderly and prompt proceedings. The protective order makes no mention of 77-521(c)(2). We find nothing in the record which would warrant the conclusion that depriving CURB of access to information, which is available to other parties to these proceedings, serves the purpose of prompt and orderly proceedings.
The Kansas Administrative Procedure Act, K.S.A. 77-501 et seq., is drawn from the 1981 Model State Administrative Procedure Act. Ryan, The New Kansas Administrative Procedure and Judicial Review Acts, 54 J.K.B.A. 53, 54 (1985). Thus, the comments to the provision in the Model Act corresponding to 77-521 are instructive:
“Subsection (c), authorizing the presiding officer to impose conditions upon the intervener’s [sic] participation in the proceedings, is intended to permit the presiding officer to facilitate reasonable input by interveners [sic], without subjecting the proceedings to unreasonably burdensome or repetitious presentations by intervenors.” Comment, 1981 Uniform State Administrative Procedure Act § 4-209,15 U.L.A. 84 (1990).
The KCC has made no argument in this case that its protective order was necessary to prevent burdensome or repetitious presentations or discovery requests by CURB.
The KCC attempts to justify the protective order by referring to K.S.A. 66-1220a, the statute governing disclosure of trade secrets. K.S.A. 66-1220a provides:
“(a) The state corporation commission shall not disclose to or allow inspection by anyone, including but not limited to parties to a regulatory proceeding before the commission, any trade secret or confidential commercial information of a corporation, partnership or individual proprietorship regulated by the commission unless the commission finds that disclosure is warranted after consideration of the following factors:
“(1) Whether disclosure will significantly aid the commission in fulfilling its
functions;
“(2) the harm or benefit which disclosure will cause to the public interest;
“(3) the harm which disclosure will cause to the corporation, partnership
or sole proprietorship; and
“(4) alternatives to disclosure that will serve the public interest and protect the corporation, partnership or sole proprietorship.”
One problem with the KCC’s reliance on 66-1220a on appeal is that the KCC’s protective order and its order denying CURB’S motion for reconsideration never mention 66-1220a. Second, this proceeding was opened for the very purpose of reviewing SWBT’s cost studies, as a “necessary prerequisite for establishing the cost based rates required” by the Federal Communications Act of 1996. Third, the KCC has not explained how disclosure to CURB of SWBT proprietary cost study information will harm the public or SWBT, in light of the fact that the very same information has already been made available to SWBT’s competitors. Finally, the KCC made.no effort to explore alternative measures to foreclosing CURB’S access to the materials, such as the procedures it adopted to limit the use and further disclosure of confidential information by those parties which were permitted to review the information.
The KCC contends that this proceeding is simply a bilateral negotiation/arbitration process to facilitate agreement between carriers, and, thus, CURB really has no interest that will be substantially affected by these proceedings. This contention is not persuasive. Instead, it reflects a belated attempt to recast the nature of this proceeding. Sprint’s application made clear that it sought a generic proceeding which, would involve all interested parties, “not just those involved in pending arbitrations.” The KCC’s order opening a general investigation noted that the Federal Communications Act of 1996 imposes strict time limits on arbitration proceedings. Because it considered resolution of cost issues within the time limits for arbitration to be “unrealistic,” the KCC granted Sprint’s application to allow the necessary in-depth examination of cost issues. It also bears mentioning that the KCC captioned this matter with the abbreviation “GIT,” rather than the “ARB” label which it applied to arbitration proceedings. Finally, the arguments now made on appeal by the KCC to characterize this proceeding as simply a matter between negotiating parties are the very same arguments urged below by SWBT in opposition to Sprint’s application and rejected by the KCC when it opened this proceeding.
The KCC argues that nothing in the Federal Communications Act of 1996 or the Kansas Telecommunications Act, K.S.A. 1996 Supp. 66-2001 et seq., provides for the exchange of proprietary cost data to non-negotiating intervenors. This is a red herring. Nothing in the federal or state acts mentions generic proceedings at all.
The KCC’s final suggestion that CURB will be able to file testimony, submit briefs, and cross-examine witnesses in this proceeding, even without access to the cost studies, is not persuasive. The fallacy of this contention may be seen by examining the KCC’s explanation in its order denying reconsideration: “CURB may participate but will not know the exact numbers.” Such “participation” in a proceeding to investigate cost studies and determine prices can hardly be viewed as meaningful.
In summary, we have considered the arguments made by the KCC and SWBT in support of the KCC’s protective order and find them to be without merit. By singling out CURB and refusing it access to confidential cost study information (which was nonetheless available to SWBT’s competitors), the KCC misapplied the law, and its action was unreasonable, arbitrary, and capricious. In light of this conclusion, we need not address CURB’S due process arguments. But see Mobil Exploration & Producing U.S. Inc. v. Kansas Corporation Comm’n, 258 Kan. 796, 818-25, 908 P.2d 1276 (1995).
Reversed. | [
-100,
120,
-27,
-20,
-115,
-32,
18,
-78,
107,
-77,
102,
83,
-19,
-64,
-123,
59,
-41,
61,
55,
121,
-13,
-73,
95,
-30,
-34,
-13,
115,
-57,
-69,
95,
117,
-34,
72,
40,
-62,
21,
2,
66,
-51,
-98,
-82,
2,
-39,
97,
-31,
67,
52,
107,
22,
66,
17,
-113,
-13,
40,
-104,
96,
104,
62,
-1,
40,
-63,
-16,
-54,
-105,
92,
22,
32,
36,
24,
5,
116,
46,
-104,
-71,
40,
-52,
114,
36,
-126,
109,
9,
-39,
-83,
-22,
99,
36,
-128,
-81,
-34,
-84,
38,
-40,
-97,
-122,
-74,
88,
39,
4,
-106,
31,
70,
6,
3,
-2,
-1,
-124,
19,
-19,
-125,
-50,
-106,
-109,
15,
101,
-125,
23,
-25,
-42,
16,
100,
-53,
-32,
94,
-58,
62,
-97,
-98,
-67
]
|
Knudson, J.:
Kelvin Campbell appeals from his jury trial convictions for possession of cocaine, in violation of K.S.A. 1996 Supp. 65-4160(a), and driving with a suspended license, in violation of K.S.A. 1996 Supp. 8-262. He contends the initial stop of his car by a police officer was not based upon reasonable suspicion that a crime was being committed and that the police did not have probable cause to search the car after the stop. He further challenges the sufficiency of the evidence to support his convictions.
We conclude the police officer made a lawful Terry stop of Campbell’s car and subsequently acquired sufficient information to support probable cause that the car contained contraband. We further conclude that the evidence against Campbell was sufficient to support the jury verdicts.
The facts of this case are not in substantial dispute. Officer Cary Stone of the Atchison Police Department saw Campbell driving a car and recalled that within the past week he had learned that Campbell’s driving privileges were suspended. At Stone’s request, Officer Dan Regan stopped Campbell’s car. When asked by Regan to produce a driver’s license, Campbell stated that his license had been suspended. Regan was also informed by the police dispatcher that Campbell’s license was suspended.
After arresting Campbell, Officer Regan asked Campbell if there was any contraband in the car. Campbell responded that there was some beer and a blue bag that belonged to a friend. Armed with this information, the police seized the beer and blue bag. The bag contained crack cocaine pipes with cocaine residue on them.
Campbell first argues that Officer Regan lacked reasonable suspicion to stop his car. On this issue, our standard of review is twofold: We consider the trial court’s findings as to underlying facts under a substantial competent evidence standard and then consider de novo whether those facts support a reasonable and articulable suspicion to warrant a stop under K.S.A. 22-2402. See State v. Vandiver, 257 Kan. 53, Syl. ¶¶ 5, 6, 891 P.2d 350 (1995).
K.S.A. 22-2402 requires that “a police officer have a reasonable and articulable suspicion, based on objective facts, that the person stopped has committed, is committing, or is about to commit a crime. State v. Epperson, 237 Kan. 707, 712, 703 P.2d 761 (1985).” State v. Henry, 14 Kan. App. 2d 416, 417, 792 P.2d 358, rev. denied 247 Kan. 706 (1990).
Campbell contends that the police officer did not have reasonable suspicion to stop his car and cites the holding in Henry in support of his argument. In Henry, a police officer stopped Henry’s car after recalling that he had heard the defendant’s license had been suspended. The officer’s belief was not based upon firsthand knowledge. The Court of Appeals panel agreed with die trial court that the arresting officer lacked reasonable and articulable suspicion to stop Henry’s car. 14 Kan. App. 2d at 418-19.
Campbell’s reliance on Henry is misplaced. In Henry, the arresting officer had, at most, a hunch that the defendant’s license had been suspended. A hunch does not qualify as a reasonably articulable suspicion of wrongdoing. In the case now before us, Officer Stone had been informed of Campbell’s suspension only days before the stop by another officer who had learned through official channels that Campbell’s license was suspended. The collective information of the police officers was sufficiently timely and reliable to constitute reasonable suspicion warranting the stop of Campbell’s car.
Campbell next contends the search of his vehicle was unlawful and in violation of his Fourth Amendment rights. He argues that he did not consent to the search, nor was it a search incident to a lawful arrest. Campbell has simply missed the target in his argument as to the dispositive legal principle.
In State v. Jaso, 231 Kan. 614, Syl. ¶ 5, 648 P.2d 1 (1982), the Supreme Court held:
“When police officers have made a lawful stop of a vehicle and have probable cause to believe that contraband is in the vehicle, the officers may search every area of the vehicle and its contents which might reasonably contain the contraband without the necessity of first obtaining a warrant.”
After being arrested, Campbell told Officer Regan that there was contraband in the car. Thus, the subsequent search of the car was not justified as incidental to an arrest or Campbell’s consent; the search was based upon Officer Regan’s probable cause that the car contained contraband. The trial court did not err in its ruling upon this issue.
Campbell next contends that his conviction for driving with a suspended driver’s license must be reversed because the State failed to present a copy of his certified driving record indicating notice of suspension was mailed to him at his last known address by the Division of Motor Vehicles (DMV). He relies upon State v. Jones, 231 Kan. 366, 368, 644 P.2d 464 (1982), to support his contention.
In Jones, the defendant was stopped for speeding and the officer discovered that his driver’s license had been suspended. The de fendant argued that he did not have knowledge of the suspension. At the close of bench trial, the trial judge found the defendant not guilty, finding that notice or knowledge of the suspension was essential and that the State had failed to meet its burden of showing that it sent notice to Jones as required under K.S.A. 1983 Supp. 8-255(b) (now K.S.A. 1996 Supp. 8-255[d]). 231 Kan. at 368. The State appealed and the Supreme Court stated:
“We hold (1) that the State must send a copy of the order of revocation or suspension or a written notice thereof to the licensee at the last known address according to the division’s records; (2) that when written notice has been mailed, then, after reasonable time for mail delivery has expired, receipt is conclusively presumed; and (3) that in a prosecution under K.S.A. 1981 Supp. 8-262, the State need not prove actual receipt of the notice, actual knowledge of the revocation, or specific intent to violate the statute, by the licensee.” 231 Kan. at 368.
The holding in Jones has since been followed in State v. Moffett, 240 Kan. 406, 728 P.2d 1330 (1986), and State v. Lovett, 17 Kan. App. 2d 450, 451, 839 P.2d 53, rev. denied 252 Kan. 1094 (1992). However, in each of these decisions, the defendant denied knowledge of a license suspension. Thus, these cases do not directly address the situation now before us, where the defendant admits actual knowledge of the suspension but challenges the conviction because there was no direct evidence that the DMV had mailed notice of the suspension.
Under these circumstances, we do not believe the State’s failure to present evidence of compliance with the mandatory notice requirements under what is now K.S.A. 1996 Supp. 8-255(d) precludes Campbell’s conviction. The purpose of mailing written notice is to establish a conclusive presumption that the licensee has knowledge of the revocation. Such mailing relieves the State from having to prove actual receipt. See Jones, 231 Kan. at 368. When a defendant has actual knowledge that his or her license has been suspended, we conclude the State is not required to present direct evidence that there has been compliance with K.S.A. 1996 Supp. 8-255(d) in a prosecution under K.S.A. 1996 Supp. 8-262.
Last, Campbell challenges the sufficiency of the evidence to support his conviction for possession of cocaine. The State’s evidence against him was largely circumstantial. He contends the State did not introduce evidence upon which a reasonable juror could have inferred that he had possession of cocaine.
In State v. Faulkner, 220 Kan. 153, 156, 551 P.2d 1247 (1976), the court defined “possession” as: “ ‘Having control over a place or thing with knowledge of and the intent to have such control.’ ” (Quoting State v. Neal, 215 Kan. 737, 740, 529 P.2d 114 [1974].) The court further stated that possession could be proved by circumstantial evidence alone. 220 Kan. at 160.
The evidence at trial was that Campbell had control over the car, the bag containing the drugs was found in the car by the driver’s seat where Campbell had been sitting, and Campbell told the arresting officer there was contraband in the bag. This is substantial competent evidence sufficient to support a reasonable inference that Campbell intentionally possessed the cocaine.
Affirmed. | [
-80,
-21,
-20,
-84,
59,
-32,
59,
62,
65,
-77,
-10,
83,
-19,
-47,
5,
59,
-54,
125,
116,
105,
-45,
-74,
103,
17,
-62,
-41,
-5,
-53,
-77,
-53,
108,
-12,
93,
-80,
-125,
-35,
102,
72,
-73,
92,
-114,
4,
-8,
81,
82,
18,
-92,
106,
-46,
15,
113,
-97,
-61,
42,
26,
-49,
-55,
12,
-113,
-84,
-8,
-32,
-103,
29,
-114,
6,
-93,
4,
-67,
7,
-40,
57,
92,
56,
17,
-24,
115,
-90,
-110,
-12,
125,
-103,
-120,
96,
98,
33,
24,
-84,
-68,
-116,
62,
-89,
31,
-90,
92,
73,
73,
-91,
-105,
-65,
101,
55,
14,
-20,
-13,
85,
87,
124,
7,
-33,
-76,
-111,
77,
48,
6,
121,
-1,
1,
32,
97,
-49,
-30,
94,
53,
82,
-101,
-42,
-44
]
|
The opinion of the court was delivered by
Herd, J.:
This is a personal injury case arising out of a bicycle-automobile collision. Deborah Schallenberger appeals the Court of Appeals’ affirmance of the district court’s judgment for Gloria Rudd.
The facts from which this controversy arose are as follows. Schallenberger was injured when she was struck by a car as she was riding a bicycle. She testified she was proceeding west on a sidewalk on the south side of 87th Street in Lenexa when she came to the Lackman Road intersection. She stopped at a red light. When it turned green, she observed a car driven by Rudd to her left which was northbound on Lackman Road. The car slowed as if to stop, and Schallenberger proceeded to cross the intersection on the crosswalk. Rudd, who was looking west for eastbound traffic on 87th Street, then accelerated and turned right on the red light, hitting Schallenberger on her bicycle and causing her serious injury.
Gloria Rudd testified she was making a proper right turn on a red light when Schallenberger sped in front of her. She testified Schallenberger was not riding on the sidewalk, but was cycling westward against the traffic in the furthest lefthand lane of 87th Street. Since Rudd acknowledged she did not look to her right, she was dependent upon evidence from an accident reconstruction expert to present her version of the facts.
Schallenberger testified she had previously walked in the area and was aware of the heavy traffic on 87th Street. She knew there was no shoulder, path, or sidewalk on the north (right) side of the street usable for bicycles. She also knew a sidewalk ran adjacent to 87th Street on the south side with sloping ramps at intersections which would allow her to ride along the sidewalk without dismounting. She therefore took this path as the safest.
The jury found both parties to be 50% at fault and the district court thus awarded judgment to Rudd pursuant to K.S.A. 1987 Supp. 60-258a. The Court of Appeals affirmed. We granted review.
The issue in this case is whether people are prohibited from riding bicycles on sidewalks in Kansas. Schallenberger claims the trial court erred in refusing to give her proposed jury instructions, which were patterned after traffic statutes. Proposed instruction number 9(a) defines a “vehicle” and proposed instruction number 17, which is PIK Civ. 2d 8.71A(c), instructs that bicyclists are required to use bicycle paths when provided. These instructions will be discussed in detail later.
First, let us review the law relevant to this case regarding jury instructions. In a case involving a vehicle, the trial court has a duty to instruct the jury on the applicable traffic statutes. Wegley v. Funk, 201 Kan. 719, 723, 443 P.2d 323 (1968). A party is entitled to an instruction explaining his theory of the case where there is evidence to support it. McGraw v. Sanders Co. Plumbing & Heating, Inc., 233 Kan. 766, 771, 667 P.2d 289 (1983). However, refusing to give an instruction is not error when its substance is adequately covered in other instructions. Black v. Don Schmid Motor, Inc., 232 Kan. 458, 474, 657 P.2d 517 (1983). A court should not by its instructions unduly emphasize one aspect of a case. Timsah v. General Motors Corp., 225 Kan. 305, 315, 591 P.2d 154 (1979).
The trial court instructed the jury pursuant to the following statutes: K.S.A. 8-1587, which provides that every person riding a bicycle upon a roadway is subject to the duties applicable to the driver of a vehicle; K.S.A. 8-1575, which provides that no person shall drive any vehicle upon a sidewalk; and K.S.A. 8-1590(a), which provides that every person operating a bicycle upon a roadway shall ride as near to the right side of the roadway as practicable.
The court thus treated the bicycle as a vehicle and rendered its use on a sidewalk, as well as its use on the street against the flow of vehicular traffic, illegal. Hence, the jury was instructed that Schallenberger was in the wrong whether she was on the sidewalk, as she contends, or on the left side of the street, as Rudd contends. This was error as it mandated the jury to find Schallenberger at fault.
Schallenberger, in her enthusiasm to legitimize her riding on the sidewalk, first incorrectly argues K.S.A. 8-1590(c) is applicable. It provides: “Wherever a usable path for bicycles has been provided adjacent to a roadway, bicycle riders shall use such path and shall not use the roadway.” Schallenberger argues a sidewalk is such a “usable path” and justifies the giving of PIK Civ. 2d 8.71A(c), her proposed instruction 17, which follows K.S.A. 8-1590(c). The trial court correctly found that a sidewalk is not a “usable path” for bicycles mandated by K.S.A. 8-1590(c). Instead, it found the legislature intended mandatory bicycle use of only those paths set aside for the exclusive use of bicycles. The district court did not err in refusing to give Schallenberger’s proposed instruction number 17.
Schallenberger also requested the court to give proposed jury instruction number 9a pursuant to K.S.A. 8-1485. This statute defines a vehicle as “every device in, upon or by which any person or property is or may be transported or drawn upon a highway, except devices moved by human power . . . .” (Emphasis supplied.) This instruction was requested because of the court’s instruction on K.S.A. 8-1575, which provides that “[n]o person shall drive any vehicle upon a sidewalk or sidewalk area.” The requested instruction would have informed the jury that K.S.A. 8-1575 does not prohibit a person from operating a bicycle oñ a sidewalk since a bicycle is not a vehicle.
Rudd argues that K.S.A. 8-1465 controls in its definition of “sidewalk” as “that portion of a street between the curb lines, or the lateral lines of a roadway, and the adjacent property lines intended for use by pedestrians.” (Emphasis supplied.) A “pedestrian” is defined as “any person afoot.” K.S.A. 8-1446. Rudd concludes that it is thus clear the legislature intended to prohibit bicyclists from using the sidewalks.
Nationwide, only a few states prohibit bicycles on the sidewalk, usually in commercial areas. Kansas does not specifically prohibit bicycles on the sidewalk. Restrictions are left to city regulation. Lenexa has no ordinance which prohibits bicyclists on sidewalks.
K.S.A. 8-1575 obviously does not apply to bicycles, as it prohibits any person from driving a vehicle on a sidewalk, and a bicycle is not a vehicle. See K.S.A. 8-1405 and 8-1485. The court found the statute applied to Schallenberger, however, through the operation of K.S.A. 8-1587, which provides that every person riding a.bicycle is subject to all the duties of a driver of a vehicle. This rule applies only to persons riding a bicycle on a roadway. However, according to Schallenberger’s theory, she was not on the roadway. Roadway is defined as the improved portion of the highway used for vehicular travel. K.S.A. 8-1459. Thus, we see the specific statutes applying vehicular rules to bicycles do so only when the bicyclist is using the roadway.
The Kansas act regulating vehicles, bicycles, and pedestrians is patterned after the Uniform Vehicle Code. The drafters of the Uniform Code recognized those sections adopted as K.S.A. 8-1575 and 8-1587 could be interpreted as prohibiting the use of bicycles on sidewalks. It therefore revised the section adopted as K.S.A. 8-1575 to read “No person shall drive any vehicle other than hy human power upon a sidewalk.” The drafters of the Uniform Code noted the section was revised “to make perfectly clear that it does not, and was never intended to, apply to bicycles and other devices moved solely by human power.” Traffic Laws Annot., § 11-1103 historical note (1979).
The legislature has not yet adopted this revision which more clearly states the Uniform Code’s intended purpose. In spite of the legislature’s failure to clarify Kansas’ version of the Uniform Act, we think it clear it did not intend to prohibit bicycles and other devices moved by human power from being used on sidewalks. To do otherwise would produce an undesirable result. It would prevent little children from riding their bicycles on the sidewalks in front of their homes. Further, were we to accept Rudd’s argument that sidewalks are solely for pedestrians, as defined by K.S.A. 8-1446, by reason of K.S.A. 8-1465, then not only are bicycles prohibited on sidewalks, but tricycles, skateboards, baby carriages, toy wagons, and wheelchairs would be barred. We hold that, in the absence of a specific statutory prohibition, bicycles, skateboards, tricycles, wheelchairs, baby carriages, toy wagons, and other human-powered conveyances may legally be used on the sidewalks with pedestrians.
This brings us to the final issue, which pertains to the right-of-way in an intersection with traffic control signals. K.S.A. 1987 Supp. 8-1508(c)(l) provides that vehicular traffic facing a steady red light shall stop and remain stopped until an indication to proceed is shown. K.S.A. 1987 Supp. 8-1508(c)(2) provides for an exception to the effect that, unless specifically prohibited by sign, vehicular traffic may cautiously turn right on a steady red light after coming to a complete stop, but shall yield the right-of-way to pedestrians on the crosswalk and other traffic lawfully using the intersection. We construe this section to mean users of bicycles, skateboards, tricycles, wheelchairs, baby carriages, toy wagons, and other human-powered conveyances using the sidewalk also may lawfully use the crosswalk with the same rights as pedestrians, to which a vehicle turning right on a red light after a complete stop must yield the right-of-way.
The jury should have been instructed that, if Schallenberger was riding on the sidewalk, which she could legally do, she had the right-of-way in using the crosswalk. If the jury believed Schallenberger was riding in the roadway in the wrong traffic lane, she was in violation of the vehicular traffic regulations and Rudd had the right-of-way if she stopped at the red light. If the jury finds Schallenberger was in the roadway but Rudd failed to stop at the light, the parties are in pari delicto. In any case, causation of the accident and the resulting injury remains an additional jury question.
The judgments of the Court of Appeals and trial court are reversed and this case is remanded for a new trial.
Six, J., not participating. | [
-48,
-56,
-44,
-18,
14,
0,
18,
8,
97,
-107,
-75,
19,
-83,
-37,
-59,
57,
-65,
125,
80,
11,
-43,
-77,
87,
-119,
-78,
-14,
-77,
-33,
-86,
-37,
116,
39,
79,
112,
-54,
21,
102,
-53,
69,
92,
-122,
22,
73,
-8,
-103,
-61,
-28,
122,
-46,
15,
-15,
15,
-109,
46,
24,
-29,
-84,
44,
27,
33,
-37,
-16,
-55,
-107,
-37,
2,
-93,
4,
-66,
3,
-40,
24,
-48,
57,
8,
-8,
55,
-90,
-46,
-75,
111,
-103,
-124,
-26,
102,
33,
29,
-51,
-84,
-88,
14,
89,
-113,
-89,
26,
24,
97,
5,
-105,
-109,
125,
54,
66,
124,
-2,
92,
31,
-20,
5,
-53,
-80,
-103,
-17,
112,
-106,
69,
-1,
-59,
48,
101,
-54,
86,
95,
-43,
54,
-109,
-34,
-74
]
|
The opinion of the court was delivered by
Six, J.:
This case presents a first impression review of the Kansas Insurance Guaranty Association Act (the Guaranty Act), K.S.A. 40-2901 et seq. The context of our initial interpretation involves the relationship of uninsured motorist coverage held by a plaintiff asserting a personal injury claim against a defendant whose insurance carrier is insolvent.
Plaintiff Mary Hetzel appeals from the trial court’s dismissal with prejudice of her damage action against defendant Charles Clarkin. Hetzel’s claim arose out of injuries she sustained in an automobile accident in Wichita, Kansas. Clarkin’s insurance carrier was insolvent.
The following questions are presented for resolution. (1) Did Hetzel exhaust her rights under her uninsured motorist coverage? (2) If she did not exhaust her rights, is the Kansas Insurance Guaranty Association (Guaranty Association) insulated from any liability? (3:) Was there sufficient evidence for the trial court to find that Hetzel had not exhausted her rights under her uninsured motorist coverage? (4) Is Hetzel entitled to costs, attorney fees, and expenses on appeal?
We do not agree with the trial court’s interpretation of the Guaranty Act; consequently, we reverse and remand for further proceedings.
FACTS
Mary Hetzel was a passenger in one of the automobiles involved in the accident. Hetzel alleged that she sustained severe and disabling, injuries and that the accident was solely the fault of Clarkin, who ran a red light.
In addition to naming Clarkin as a defendant, Hetzel sued her insurance carrier, Farmers Insurance Company, Inc., (Farmers) alleging in her petition;
“That Farmers Insurance Company, Inc. is made a party under the provisions of K.S.A. 40-284, et seq., commonly referred to as the uninsured and underinsured motorist coverage law for the reason that the defendant, Charles T. Clarkin, at all material times was insured by Iowa National Mutual Insurance Company which is now in liquidation. That Farmers Insurance Company, Inc. is the U.M. insurer for plaintiff.”
Farmers responded, asserting that if it was found to have legal liability to its insured its liability was limited to $30,000, the policy limit of Hetzel’s uninsured motorist coverage. Farmers paid the medical expense Personal Injury Protection (PIP) policy limit of $5,000. Hetzel settled with Farmers under her uninsured motorist coverage for an additional $25,000. The trial court dismissed Hetzel’s claim as to defendant Farmers with prejudice.
Clarkin, the remaining defendant, moved to dismiss Hetzel’s claim. Clarkin argued that Hetzel had failed to exhaust her rights under the uninsured motorist provisions of her policy as required by K.S.A. 40-2910 of the Guaranty Act. Clarkin reasons that Hetzel settled with Farmers for $25,000, $5,000 less than the Farmer’s policy limit of $30,000.
Hetzel contends that Clarkin’s motion to dismiss was premature. Hetzel argues that it was not appropriate to determine if the limits of her policy had been exhausted until the court had tried the issues of negligence and damages.
The trial court based the dismissal with prejudice of Hetzel’s damage claim against Clarkin upon its analysis of the language of the Guaranty Act, and effectively closed the courtroom door to Hetzel.
1. Exhaustion of Rights
The Guaranty Act, K.S.A. 40-2901 et seq., was created:
“to provide a mechanism for the payment of covered claims under certain insurance policies, to avoid excessive delay in payment and to avoid financial loss to claimants or policyholders because of the insolvency of an insurer, to assist in the detection and prevention of insurer insolvencies, and to provide an association to assess the cost of such protection among insurers. This act shall be liberally construed to effect such purpose which shall constitute an aid and guide to interpretation.” K.S.A. 40-2901.
The Guaranty Act sets up a fund to cover claims against insolvent insurance companies which arise prior to determination of insolvency or within thirty days after determination of insolvency. K.S.A. 40-2906(a)(l). Hetzel filed a timely notice of her claim against Clarkin’s insurer upon learning that the insurer was insolvent. The dispute in this appeal arises out of differing interpretations of the language of the Guaranty Act. K.S.A. 40-2910(a) states:
“Any person having a claim against an insurer under any provision in an insurance policy other than a policy of an insolvent insurer which is also a covered claim shall be required to exhaust first his right under such policy. Any amount payable on a covered claim under this act shall be reduced by the amount of any recovery under such insurance policy.” (Emphasis added.)
K.S.A. 1988 Supp. 40-284 requires that uninsured and underinsured motorist coverage must be offered with every automobile liability policy unless the insured named in the policy rejects the coverage in writing. Hetzel had uninsured motorist coverage.
An insured motor vehicle is considered to be an uninsured motor vehicle where the insurer of the vehicle is insolvent. K.S.A. 40-285. A statutory blending of K.S.A. 40-2910(a), 40-284, and 40-285 requires an auto accident plaintiff asserting a claim against a defendant whose insurer is insolvent to first assert a claim under his or her own uninsured motorist policy provisions.
The Guaranty Act was adopted in 1970. It is based on a Post-Assessment Property & Liability Insurance Guaranty Model Act proposed by the National Association of Insurance Commissioners. Senate Bill 440, which later became K.S.A. 40-2901 et seq., was introduced by the Senate Committee on Commercial and Financial Institutions. The section of S.B. 440 later to become K.S.A. 40-2910 was noted in the January 27, 1970, minutes of that committee: “The intent of this section is to prohibit duplication of recovery by a claimant because of the existence of this association—identical to the N.A.I.C. proposals.”
Clarkin’s vehicle was insured for a maximum policy limit of $50,000 by Iowa National Mutual Insurance Company, which had been declared insolvent. Pursuant to K.S.A. 40-2906(a)(l), the Guaranty Association is responsible for claims up to the face value of the policy. Hetzel claimed $750,000 in damages as the result of Clarkin’s negligence. The Guaranty Association was not joined as a defendant in this action, although Hetzel did give the Guaranty Association notice of her claim.
At the hearing before the trial court on the motion to dismiss, Clarkin’s attorney said, “My representation in behalf of Mr. Clarkin is under the Kansas Insurance Guaranty Association that provides a defense.” He argued that, because Hetzel had settled with Farmers for $25,000 when her uninsured motorist limit was allegedly $30,000, she had not exhausted her uninsured motorist benefits as required by K.S.A. 40-2910 and, therefore, her action against Clarkin should be dismissed. The trial court was convinced. We are not.
Neither this court nor the Kansas Court of Appeals has defined what constitutes exhaustion of rights under K.S.A. 40-2910(a). The last sentence of K.S.A. 40-2910(a) makes it clear that the Guaranty Association is only liable for the difference between the plaintiff s recovery from his or her own insurer and the limits of the defendant’s policy issued by the insolvent insurer. For example, if Hetzel recovered the $30,000 uninsured motorist policy limit from Farmers, the Guaranty Association is only liable for an additional $20,000 (the difference between $30,000 and the $50,000 limit on Clarkin’s original policy).
The “exhaustion question” has been addressed in several other jurisdictions. In many states the corresponding statute under judicial review is identical to K.S.A. 40-2910. The individual state legislatures drafted statutes based on the recommendations of the National Association of Insurance Commissioners. Despite the fact that the wording is identical in many of the “nonduplication of recovery” provisions, differing judicial interpretations have emerged.
The Louisiana Supreme Court in Hickerson v. Protective Nat. Ins. Co., 383 So. 2d 377 (La. 1980), reviewed the issue. La. Rev. Stat. Ann. § 22:1386(1) (West 1978) is identical to K.S.A. 40-2910(a). In Hickerson, the Supreme Court of Louisiana said:
“The stated purpose of the act is to avoid financial loss to both claimants and policyholders, and that purpose is thwarted by requiring an injured party to proceed first against his or her own insurer. The policyholder with an insolvent insurer is not protected at all. The purpose of the ‘Nonduplication’ provision was to prevent double recovery. It was designed to apply to ordinary insurance coverage and not to uninsured motorist coverage, which is required by public policy. [Citations omitted.] Any other interpretation would render LIGA’s function meaningless since an injured claimant would in all cases have to proceed first against his own insurer under the uninsured coverage mandated in Louisiana. The policyholders of the insolvent insurer would then be cast in judgment for the reimbursement claim of the uninsured carriers. No one would be protected except the Louisiana Insurance Guaranty Association [LIGA], which has statutory immunity from subrogation claims in LSA-R.S. 22:1379(3).” 383 So. 2d at 379.
Hickerson held that the LIGA was responsible for all the obligations of the insolvent insurer and that the plaintiff could recover from the LIGA without resort to her uninsured motorist policy, just as she could have recovered had the defendant’s insurance carrier not been insolvent. See Billeaudeau v. Lemoine, 386 So. 2d 1359 (La. 1980).
Louisiana appears to be the only reported jurisdiction which has not allowed the state guaranty insurance association credit for sums recovered from the plaintiffs own insurance. Hetzel encourages us to adopt the Louisiana view. We are not persuaded by her suggestion.
K.S.A. 40-285 includes vehicles which are insured by insolvent companies within the definition of uninsured motor vehicles. The Louisiana Supreme Court’s analysis in Hickerson, that uninsured motorist coverage was not contemplated in the “non-duplication” provision of its Guaranty Act, is not applicable to Kansas.
In Lucas v. Illinois Ins. Guaranty Fund, 52 Ill. App. 3d 237, 367 N.E.2d 469 (1977), Lucas obtained a $390,000 judgment against the defendant, whose insurance liability limit was only $20,000. The defendant’s insurer subsequently became insolvent. Lucas recovered $10,000 from her own insurer, which was the policy limit on the uninsured motorist provision of her policy. Lucas contended that the $10,000 recovered from her insurer was a collateral source and should not diminish the damages she was entitled to recover from the Illinois Insurance Guaranty Fund. The Appellate Court of Illinois disagreed, stating:
“The statutory purpose is to place claimants in the same position that they would have been in if the liability insurer had not become insolvent. (111. Rev. Stat. 1975, ch. 73, par. 1065.82.) The Act states that the Fund is intended to protect claimants against financial loss because of the insolvency of insurance companies. The difference between the amount of the insolvent insurer’s policy limits and the amount paid to claimant by his own insurer is made up by the Fund. To permit a greater recovery than would have occurred had the insurance company remained solvent would both extend the Act beyond its purpose and offend public policy by giving the Act an interpretation which results in a windfall judgment.” 52 111. App. 3d at 239.
Although the Illinois statute is not identical to the Kansas statute, it is substantially similar. We agree with the Illinois statement of statutory purpose.
In King v. Jordan, 601 P.2d 273 (Alaska 1979), Jordan sued King for injuries she received when her car was rear-ended by King’s car. King was insured for $15,000, but while the trial was pending, King’s insurance carrier was declared insolvent. Jordan settled with her own insurer for $12,500 under the uninsured motorist provision. King conceded liability, and a nonjury trial on the issue of damages was held in which the judge awarded Jordan $9,547.94. The trial judge ruled that this award should not be offset by the money Jordan recovered from her own insurer. The Alaska nonduplication of recovery statute is identical to K.S.A. 40-2910(a). The Supreme Court of Alaska held that this statute embodies a legislative abrogation of the collateral source rule where the guaranty fund is liable for damages. 601 P.2d at 278. The court found that, although the fund would be liable for the judgment against King as a result of the insolvency of his insurer, because Jordan had already recovered from her own insurer in excess of the amount of the judgment, the fund was relieved of liability.
Clarkin, in the case at bar, cites Prutzman v. Armstrong, 90 Wash. 2d 118, 579 P.2d 359 (1978). In Prutzman, the trial court had entered a judgment against Armstrong for $15,000. Armstrong’s insurance carrier was insolvent. Prutzman brought a declaratory judgment action against her uninsured motorist carrier and the Washington Insurance Guaranty Association (WIGA). The policy limits on both Armstrong’s liability insurance and Prutzman’s uninsured motorist insurance were $15,000. Prutzman settled with her insurance company for $12,600 and the trial court entered judgment against WIGA for the difference between the $12,600 and $15,000. The Supreme Court of Washington reversed, finding that the plaintiff did not comply with the exhaustion provision when she settled with her insurer for less than the policy limits. In addition, the court said:
“[E]ven absent the settlement issue, respondent could obtain no recovery from the WIGA under these facts. Her uninsured motorist coverage limit is identical to the policy limits of the insurance policy held by the original defendant with Medallion. Respondent must seek the full value of her claim up to $15,000 from her own insurer. . . . Accordingly, unless the insolvent insurer’s policy limit exceeds the plaintiff s uninsured motorist policy limit under that plaintiff s own insurance policy, the WIGA cannot be held responsible for any portion of the plaintiff s damages.” 90 Wash. 2d at 122.
The instant fact situation differs from Prutzman in that: (1) defendant Clarkin’s policy limits with Iowa National Mutual Insurance Company exceeded Hetzel’s uninsured motorist policy limits with Farmers; and (2) Hetzel claims damages in excess of the limits of both policies.
In Watts v. Department of State, 394 Mich. 350, 231 N.W.2d 43 (1975), the Wattses’ insurance company settled with Mr. Watts for $5,000 and Mrs. Watts for $7,500. The Wattses then obtained a judgment against the tortfeasor in the amount of $15,000 for Mr. Watts and $16,000 for Mrs. Watts. The Motor Vehicle Accident Claims Fund contended that it was liable only for the excess of each of those amounts over the $10,000 per person policy limit on the Wattses’ uninsured motorist policy.
The Supreme Court of Michigan disagreed, finding that the fund was liable for any amount in excess of the amount paid by the uninsured motorist carrier. The fund argued that such a construction of the statute would lead to collusive settlements between plaintiffs and their uninsured motorist carriers. The court answered that the fund could attack settlements that it felt were improper by showing collusion or fraud. The court held “that where a good-faith settlement is negotiated, whether with the tortfeasor [citation omitted] or the injured person’s own insurer (this case), the statute does not require that policy limits be fully collected or credited to the fund.” 394 Mich, at 357. We decline to adopt the Michigan “good faith rule.” Allowing a plaintiff to recover the difference between her “good-faith” settlement with her own insurer and the limits of the Guaranty Association’s liability may lead to collusive settlements between the injured plaintiff and the plaintiff s uninsured motorist insurer. It may also lead to excessive litigation on the issue of whether such settlements were made in good faith.
The stated purpose of the Kansas Guaranty Act is to avoid financial loss to claimants and policyholders because of the insolvency of insurance companies. K.S.A. 40-2901. The non-duplication provision was adopted to avoid windfall recoveries. The result in Hetzel’s case, at the trial court level, does not carry out the legislative intent of the Kansas Guaranty Act. Here, regardless of whether Hetzel’s actual policy limits under her policy were $35,000 ($30,000 uninsured motorist plus $5,000 PIP benefits), or $30,000 ($25,000 uninsured motorist plus $5,000 PIP benefits), or $25,000 ($25,000 uninsured motorist coverage with no contractual relationship under the policy language between PIP and uninsured motorist coverage), the Guaranty Association was liable for the excess of whatever her uninsured motorist coverage limit was up to $50,000, the limits of Clarkin’s policy.
The Guaranty Act was designed to put claimants and policyholders in the same position in which they would have been had the policyholders’ insurance company remained solvent. Here, if Clarkin’s insurer had remained solvent, Hetzel could have proceeded to trial. If she had secured a judgment against Clarkin of at least $50,000, she could have collected $50,000 from Clarkin’s carrier as payment from Clarkin on the judgment.
Even if Hetzel’s settlement with her insurance company was $5,000 short of the policy limit, she should still be able to collect the excess coverage that the Guaranty Association had a duty to provide ($50,000 less the maximum she could have recovered from her uninsured coverage).
The trial court’s interpretation of K.S.A. 40-2910(a) barring Hetzel from proceeding against Clarkin or the Guaranty Association because she may have settled for less than the policy limits of her Farmers uninsured motorist insurance does not comply with the purpose of the Guaranty Act.
Legislative intent requires that, to recover damages under the Kansas Insurance Guaranty Association Act, K.S.A. 40-2901 et seq., the plaintiff collect as much as she or he can from her or his first-party carrier under the policy provisions for uninsured motorist coverage. The plaintiff can collect from the Kansas Insurance Guaranty Association under K.S.A. 40-2906 only the amount that the Association’s liability exceeds the limits of the plaintiff s uninsured motorist coverage, to the extent supported by the plaintiff s judgment and the defendant’s coverage. A plaintiff shall be assumed to have received the policy limits of his or her uninsured motorist coverage. Consequently, a plaintiff who makes a claim on his or her own uninsured motorist policy will have exhausted his or her rights under K.S.A. 40-2910 regardless of the amount actually received from his or her uninsured motorist carrier. The amount available for recovery from the Guaranty Association shall be the difference between the policy limits of the plaintiffs uninsured motorist coverage and the Guaranty Association’s liability limits even if the amount the plaintiff actually receives from his or her uninsured motorist carrier is less than the limits.
We adopt this interpretation as the rule for Kansas. Under the Kansas rule, unless the parties effect a settlement, it will be necessary for the issues of negligence and damages to be litigated in cases where the Guaranty Association’s liability exceeds the limits of the plaintiff s uninsured motorist coverage.
The trial court’s dismissal of Hetzel’s action was premature.
Clarkin relies on White v. Accardo, 15 Pa. D. & C. 3d 609, appeal dismissed (1980) (a Pennsylvania trial court ruling on a motion for summary judgment).
No issue was raised in White as to the Pennsylvania Insurance Guaranty Association’s liability for plaintiffs’ losses exceeding their $10,000 uninsured motorist policy limit. White did not address the factual situation present in the instant action. White is distinguished from the instant case. No determination of Hetzel’s damages had been made. Hetzel has alleged damages of $750,000. In addition, there is a dispute as to: (1) whether her insurance carrier, Farmers, had paid out the policy limits of her uninsured motorist coverage, and (2) what the limits were.
The Guaranty Associations liability was limited to $50,000, based on the terms of Clarkin’s policy with the insolvent insurance carrier. Since Hetzel’s uninsured motorist limit was either $30,000 or $25,000, the Association’s potential liability was $20,000 or $25,000. A determination of Hetzel’s damages was required in order to make a determination that the Guaranty Association was not liable.
In the case at bar, a pretrial conference order set out the following:
“As a result of said collision, plaintiff claims damages as follows: $750,000.00 and medical expenses to date; pain and suffering to date; future pain and suffering; future medical, surgical and hospitalization; and temporary and permanent disability.”
The issues were stated to be:
“A. The negligence, if any, on the part of the defendant, Charles Clarkin.
“B. The negligence, if any, on the part of Gordon Deering.
“C. The nature and extent of the injuries and damages sustained by the plaintiff.
“D. Whether the plaintiff failed to mitigate her damages.”
The pretrial order does not mention the Guaranty Association or its potential liability in the case. “A trial court has no jurisdiction to hear issues which are not raised by the pleadings or defined at pretrial conference, except new issues raised by evidence to which there is no objection. [Citations omitted.]” Febert v. Upland Mutual Ins. Co., 222 Kan. 197, 200, 563 P.2d 467 (1977). Hetzel’s attorney strenuously objected to raising the issue of the Guaranty Association’s liability, and to the admission of evidence of Hetzel’s settlement with her insurer.
Hetzel contends that she did exhaust her remedies because, if added together, the PIP payment of $5,000 and the $25,000 settlement equal the limit on her uninsured motorist policy. K.S.A. 1988 Supp. 40-284(e)(6) allows insurers to limit the coverage under the uninsured motorist provision to the extent that PIP benefits have been paid. Hetzel did not produce a copy of her policy at the hearing on the motion to dismiss. Her insurance policy is not included in the record on appeal. We cannot determine what the uninsured motorist limits of Hetzel’s policy are. We leave that determination for the parties and the trial court on remand.
The only evidence as to the policy limits on the Farmers uninsured motorist policy arose from the verbal assertions of defense counsel and Farmers’ answer, which stated that Farmers’ liability was limited to $30,000. Farmers did not indicate if the $30,000 limit included the $5,000 PIP payments.
2. Costs, Expenses, and Attorney Fees
Hetzel, in oral argument, reasserts the claim for costs, expenses, and attorney fees advanced in her brief. She contends Clarkin’s trial court motion to dismiss was frivolous.
Hetzel relies on Supreme Court Rule 7.07(b) (1988 Kan. Ct. R. Annot. 35). She is the appellant and the rule is not applicable to the party appealing. Stang v. Caragianis, 243 Kan. 249, 261, 757 P.2d 279 (1988).
Reversed and remanded. | [
-48,
121,
-15,
-83,
8,
96,
34,
-118,
91,
-63,
36,
-45,
-87,
-50,
21,
57,
-84,
-67,
97,
98,
-9,
-89,
23,
-126,
-42,
26,
-71,
-59,
-127,
91,
108,
127,
76,
48,
10,
85,
-90,
-45,
69,
28,
-50,
6,
-55,
-8,
-40,
-64,
-80,
123,
86,
69,
113,
-97,
115,
42,
56,
67,
45,
40,
43,
-27,
-127,
-80,
-117,
-105,
126,
16,
51,
4,
-98,
39,
80,
26,
-112,
-80,
56,
-24,
82,
-90,
-46,
52,
119,
-103,
13,
38,
103,
49,
32,
-52,
-36,
-104,
38,
-29,
15,
-122,
-106,
88,
19,
8,
-65,
-69,
117,
30,
6,
124,
-4,
85,
15,
-31,
7,
-117,
-44,
-79,
-51,
99,
-104,
-125,
-17,
-121,
54,
101,
-54,
-10,
93,
71,
62,
-69,
95,
-66
]
|
The opinion of the court was delivered by
McFarland, J.:
John E. Beebe appeals his jury trial convictions of first-degree murder (K.S.A. 21-3401), and of aggravated kidnapping (K.S.A. 21-3421).
From the evidence at trial, the facts underlying these brutal and senseless crimes may be summarized as follows. On the evening of January 1, 1987, Lawrence Leland Capps left his mother’s home in Andover to do his laundry. Mr. Capps was eighteen years old. He stopped at a friend’s apartment in Augusta and stayed there from 9:00 p.m. until after midnight. He returned to the apartment shortly after his departure, stating that he had car trouble. The friend offered to let him stay the night but the young man declined. Mr. Capps then went to a pay phone on the street below to telephone his father for a ride home.
While Mr. Capps was in the telephone booth, a pickup truck stopped. The truck was owned by Billy Horton. Horton, Billy Mathis, and defendant were in the truck. Mr. Capps was offered a ride home and climbed into the back of the truck. The truck’s three original occupants were in the truck seat. On the way to Andover, the three decided to rob Mr. Capps. The truck was driven to a deserted farmhouse. Capps became alarmed and commenced hitting and kicking the rear window of the truck. At the farm the three men beat Capps and Mathis took the victim’s billfold and some change from a pocket. Defendant had a pistol which was fired several times into the air and the ground during the beating and robbery.
Capps was ordered back into the rear of the truck. Initially, the three men planned to leave Capps somewhere without further harm to him. While driving from the farm, they decided that because he could identify them, they would kill him. They drove to a secluded area near the Whitewater River. The victim stepped down from the truck and Mathis shot him in the back of the head with defendant’s gun. The three men tied up the body with a chain and cipder block from the truck and dropped the body in the river.
On January 5, 1987, Mathis walked into the Douglas Police Department, confessed to the crimes, and led the officers to the body. Mathis told of the involvement of Horton and defendant. Defendant was convicted of first-degree murder and of aggravated kidnapping.
The first three issues on appeal involve witness Eileen Burnau, a serologist with the Kansas Bureau of Investigation. The sequence of events involving Ms. Burnau is significant and must be set forth in considerable detail. The jeans defendant had been wearing while the crimes were being committed were seized by the Butler County Sheriff s Department. They were sent, along with a sample, of the victim’s blood, to the KBI laboratory on January 15, 1987. The purpose was to determine if any of the victim’s blood was on the jeans. On March 11, 1987, Ms. Burnau made a report of her findings that the bloodstains on the jeans were not from the victim. The report was mailed to the sheriff s department, the sending agency. The report was received on April 4 or 5. The report was forwarded on to the county attorney. When this was done is uncertain. A deputy sheriff stated it was forwarded a week after its receipt. The county attorney stated he received it on May 7. The report is file-stamped as being received on the. latter date. A copy of the report was provided to defense counsel on May 9, 1987.
After receipt of the report, the county attorney telephoned Ms. Burnau, where he was told there was a fifth bloodstain on the jeans which, when “queried,” was consistent with the victim’s blood but that the “query” was not strong enough to include in her report. The county attorney asked her to do further analysis on the stain. The sequence of events is important as the trial was scheduled to begin on May 12, 1987. On May 12, 1987, Ms. Burnau made a report that the fifth bloodstain was consistent with the victim’s blood. On May 13, 1987, the second day of trial, the State moved to endorse Ms. Burnau as an additional witness, the county attorney having received the inculpatory report on the previous day. The motion was sustained over defense counsel’s objection.
The first issue is whether the defendant was denied a fair trial under the due process clause of the Fourteenth Amendment by prosecutorial failure to disclose the existence of exculpatory evidence.
In State v. Carmichael, 240 Kan. 149, 152, 727 P.2d 918 (1986), we discussed the prosecutorial duty to disclose exculpatory evidence as follows:
“A defendant has a constitutionally protected privilege to request and obtain from the prosecution evidence that is material to the guilt or innocence of the defendant. Suppression of such evidence is a violation of the defendant’s Fourteenth Amendment due process rights. Brady v. Maryland, 373 U.S. 83, 87, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963). Prosecutors are under a positive duty, independent of court order, to disclose exculpatory evidence to a defendant. To justify a reversal of a conviction for failure to disclose evidence, the evidence withheld by the prosecution must be clearly exculpatory and the withholding of the evidence must be clearly prejudicial to the defendant.”
The district court held there was no wrongdoing on the State’s part, and that the State had not been remiss in turning the exculpatory report (dated March 11, 1987) over to defense counsel. Although the district court does not specifically find the report was actually received by the county attorney’s office on May 7 rather than earlier, we believe such a finding is inherent in the court’s verbal determination of this question. There is certainly sufficient evidence to support such a finding. Additionally, in issues numbers two and three, defense counsel, in essence, states he relied so heavily on the exculpatory report in building his defense that the subsequent inculpatory report shattered the defense to the degree that the defendant did not receive a fair trial. Under such circumstances, it is difficult to see how the failure to receive the exculpatory report earlier was clearly prejudicial to the defendant. We conclude this issue is without merit.
For his second issue, defendant contends the district court erred in permitting the late endorsement of witness Eileen Burnau.
In State v. Bryant, 227 Kan. 385, 387, 607 P.2d 66 (1980), we discussed the late endorsement of witnesses as follows:
“K.S.A. 1978 [now 1987] Supp. 22-3201(6) has been construed to confer broad discretionary power on the trial court in allowing a late endorsement. A trial court’s order permitting a late endorsement of a witness is not to be overturned absent an abuse of discretion. The test is whether the defendant’s rights have been prejudiced. State v. White & Stewart, 225 Kan. 87, 91, 587 P.2d 1259 (1978). This court will not condone surprise caused by the intentional withholding of the name of a witness as a part of the prosecution’s trial strategy. State v. Stafford, 213 Kan. 152, 164, 515 P.2d 769 (1973), modified 213 Kan. 585, 518 P.2d 136 (1974). The purpose of the endorsement requirement is to prevent surprise to the defendant and to give him an opportunity to interview and examine the witnesses for the prosecution in advance of trial. State v. Stafford, 213 Kan. at 164. The trial court commits reversible error in allowing a late endorsement when surprise prevents ‘a fair preparation of his defense.’ State v. Wilson & Wentworth, 221 Kan. 359, 559 P.2d 374 (1977). Accordingly, this court has traditionally required the defendant not only to object to the late endorsement but to request and be denied a continuance before a late endorsement will constitute reversible error. See for example, State v. Wilson & Wentworth, 221 Kan. at 365.”
In the case before us, the second report, inculpatory in nature, was not received by the State until the trial was in progress. The prosecution promptly made its existence known to defense counsel. This new evidence was a surprise to both counsel. The district court granted defense counsel the opportunity to interview Ms. Burnau prior to her testimony. Further, counsel did not request a continuance. Under the standards set forth in State v. Bryant, 227 Kan. 385, we conclude that no reversible error occurred in the district court’s allowance of the late endorsement of the witness. However, the residual and cumulative effect of the late endorsement must be considered in determining the next issue.
For his next issue, defendant alleges prosecutorial misconduct in the closing argument. In his opening statement, defense counsel outlined his defense. This may be summarized as follows: the statements given by the State’s two eyewitnesses, Billy Mathis and Billy Horton, to the police were not nearly so inculpatory of defendant as the prosecution’s opening statement indicated their testimony would be. Both witnesses had entered into plea bargains with the State and their change of testimony as to defendant’s participation was a result of the plea bargains. Defendant was present during the crimes committed by Mathis and Horton against the victim, but he was wholly passive during the events. Further, defendant would testify as to what had occurred.
Defendant did not testify. At the close of the evidence, defense counsel requested and received an order from the court directing the State not to comment in closing argument on defendant’s failure to testify.
In closing argument the prosecutor stated:
“Do you recall in opening statement—And opening statement is simply what we lawyers tell you we think the evidence is gonna show. I want you to think hard about what you were told by the defendant you were gonna be shown in this case. Think about what he said he was gonna prove to you, and think about how he said he was gonna prove it, and ask yourselves if he proved any of it. Now, he told you that it wasn’t his burden to prove anything, and he’s right. The burden’s on me to prove everything beyond a reasonable doubt. But, I want you to think about what the defendant said he was gonna show, and ask yourselves if he showed it, and I think you’ll conclude that he did not.”
The above statements were made during the first section of the State’s closing argument. Defense counsel objected to the statements as being a comment on the defendant’s failure to testify, in violation of the court’s order. The prosecutor argued his comments did not refer to defendant’s failure to testify, but just generally to defendant’s failure to show through the evidence what he had stated he would show in his opening statement. The trial court overruled the objection, stating, however, that it was a “very close” question. The trial court directed the prosecution to make no further references to the defendant’s opening statement in its final closing argument.
A prosecutor in a criminal case may not comment upon an accused’s failure to testify. Griffin v. California, 380 U.S. 609, 14 L. Ed. 2d 106, 85 S. Ct. 1229 (1965); State v. Reeves, 224 Kan. 90, 93, 577 P.2d 1175 (1978). Kansas has codified the Griffin rule in K.S.A. 60-439. Any such comment is error but is not per se reversible error. In determining that a federal constitutional error constitutes harmless error, a court must be able to declare the error had little, if any, likelihood of having changed the result of the trial and the court must be able to declare such a belief beyond a reasonable doubt. State v. Bell, 239 Kan. 229, Syl. ¶ 3, 718 P.2d 628 (1986).
The comments of the prosecutor can easily be construed herein to be a comment on the defendant’s failure to testify, regardless of what the prosecutor intended. Hence, such comments must be held to be improper. Under the totality of the circumstances herein, we cannot declare that the error was harmless under the Bell test. The whole situation is made more egregious when one considers how it developed. The prosecution delivered the wholly exculpatory report of Ms. Burnau to defense counsel: The blood on defendant’s jeans did not come from the victim. The prosecution did not advise defense counsel that additional testing was going to be done. Defense counsel relied on the exculpatory report to support his strategy that there was no physical evidence that defendant actively participated in the crimes—only the anticipated testimony of two admitted participants in the crimes. The defense would be that defendant’s participation in the events was passive. It was intended that defendant would testify that he remained in the truck when the victim was killed and was, in effect, a bystander to the crimes. Based upon this strategy, defense counsel told the jury in his opening statement that defendant would testify as to his passive involvement. On the second day of trial, defense counsel was told of the second Burnau report, inculpatory of defendant. Faced with this new evidence, defendant elected not to testify and called no witnesses. Then, the prosecutor, in his closing arguments, made comments which could be construed by the jury to highlight defendant’s failure to testify. The acts and omissions of the prosecutor placed defendant in a difficult position and the prosecutor impermissibly exploited the situation in his closing argument. We conclude that the prosecutor’s comments herein constitute reversible error and defendant’s convictions must be reversed.
Defendant’s final three issues concern matters which are likely to reoccur in the retrial of this case. For this reason, the same will be discussed.
For his fourth issue, defendant contends the district court erred in instructing the jury it could infer malice, premeditation, and deliberation from the use of a deadly weapon in the killing and the lack of provocation in the killing.
Jury Instruction No. 9 states:
“As to both the crimes of Aiding and Abetting First Degree Murder and Aiding and Abetting Second Degree Murder:
“You are further instructed that if you find beyond a reasonable doubt that a deadly weapon was used in the killing, that fact alone may be sufficient to infer the element of malice as required in either crime.
“As to the crime of Aiding and Abetting First Degree Murder only:
“You are further instructed that if you find beyond a reasonable doubt that a deadly weapon was used in the killing and that there was not provocation for the killing, these facts taken together may constitute sufficient evidence to support an inference of the elements of deliberation and premeditation as required by Aiding and Abetting First Degree Murder.
“You are further instructed that a .22 caliber pistol is a deadly weapon.”
Murder in the first degree is defined in K.S.A. 21-3401 as follows:
“Murder in the first degree is the killing of a human being committed maliciously, willfully, deliberately and with premeditation or committed in the perpetration or attempt to perpetrate any felony.”
Murder in the second degree is defined in K.S.A. 21-3402 as follows:
“Murder in the second degree is the malicious killing of a human being, committed without deliberation or premeditation and not in the perpetration or attempt to perpetrate a felony.”
Hence, malice is an element of both crimes, but deliberation and premeditation are elements only of first-degree murder (excluding felony murder). All three of these elements deal with the thought processes of the perpetrator which renders them difficult to prove by direct evidence in the majority of cases. For example, if the jury hears only that: (1) on Monday morning A had a violent argument with B and threatened to kill B; (2) Tuesday A bought a gun; and (3) Wednesday A hides near B’s driveway and shoots B with the purchased gun, the evidence is sufficient for the jury to infer malice, deliberation, and premeditation on the part of A. Other evidence such as that introduced in an insanity defense or of a sudden quarrel on the driveway with the gun being there by inadvertence, etc., might cause the jury to conclude otherwise.
For purposes of our discussion, we must divide the complained-of instruction into two parts. We will first consider the portion relating to inferring deliberation and premeditation. We have found no Kansas cases where such an instruction was given. Our discussion of what a jury could have inferred from the evidence arises from sufficiency of the evidence questions. Illustrative thereof is State v. Hamilton, 216 Kan. 559, 534 P.2d 226 (1975), wherein we stated:
“The defendant’s final point goes to the sufficiency of the evidence to establish the elements of malice and premeditation, both essential components of first-degree murder as defined in K.S.A. 21-3401. (Weeks 1974) It is argued on behalf of defendant that he and the deceased were complete strangers, rebutting any inference of malice or premeditation.
“This court has long held to the rule that malice in law may be inferred from the fact that a deadly weapon was used in a homicide. (State v. Earnest, 56 Kan. 31, 38, 42 Pac. 359; State v. Dull, 67 Kan. 793, 799, 74 Pac. 235; State v. Smith, 78 Kan. 179, 183, 96 Pac. 39; State v. Donahue, 197 Kan. 317, 319, 416 P.2d 287; State v. Blake, supra, 202.) These cases accord with the view generally accepted in this country. (40 C.J.S., Homicide, § 78, p. 942.)
“Whether premeditation may also be inferred from use of a deadly weapon is not so clear. As a general principle it would seem that use of a deadly weapon, standing alone, is not sufficient to establish premeditation. (1 Wharton’s Criminal Evidence, 13th Edition, § 135.) In an annotation contained in 96 A.L.R. 2d, Homicide—Premeditation, § 3, p. 1439, we find this statement of the rule:
“ ‘It appears to be generally agreed that the fact that the killing was effected by the use of a deadly weapon is not, of itself, a sufficient basis for a legal presumption that it was deliberate or premeditated. . . .’
“While the use of a deadly weapon is not alone sufficient to infer premeditation it is one of the circumstances which may be considered in determining whether a homicide was committed with deliberation. We find this discussion set out in 1 Wharton’s Criminal Evidence, supra, pp. 226, 227:
“ ‘According to some courts, if, in addition to the use of a deadly weapon, another circumstance is shown, such as the lack of provocation, the evidence may be of such probative force as to give rise to a presumption, as opposed to a mere inference that the homicide was premeditated and deliberate, thereby casting upon the defendant the burden of going forward with appropriate evidence to explain away such presumption. According to other courts, the existence of premeditation and deliberation which will raise the homicide to murder in the first degree may not be the subject of a legal presumption, but is a matter of inference which the trier of fact may or may not see fit to draw.
“ ‘Premeditation and deliberation can be found from various circumstances, such as the nature of the weapon used, the lack of provocation, the defendant’s conduct before and after the killing, . . .’
“We believe the circumstances surrounding the homicide in this case, which included the use of a deadly weapon, were sufficient for the jury to infer premeditation as well as malice. The victim was unarmed and the attack upon him was unprovoked. After the shooting Mr. Hamilton disposed of his gun. From defendant’s actions in following the victim’s car, honking his horn and blinking his lights, it is not too much to assume he was angry and intended to pick a quarrel, by telling a cock and bull story and demanding to ride in the victim’s car. In a very early case, State v. Kearley, 26 Kan. 77, we said:
“ ‘. . . If one party seeks an interview with another, arming himself for the encounter, intending deliberately that such other shall do some certain thing, or failing to do that, that he will kill him, such conditional intent is sufficient, if carried into effect by the homicide of the latter, to make murder in the first degree.’ (p. 85.)
“In State v. Greenwood, 197 Kan. 676, 421 P.2d 24, where the defendant shot his girl friend with whom he had quarreled, we said that ‘the record discloses an abundance of evidence for the jury to draw an inference of premeditation and malice aforethought, as well as an intent to kill the deceased.’ (p. 686.) The same may be said in the instant case in view of all the circumstances.” 216 Kan. at 566-67.
In State v. McKibben, 239 Kan. 574, 722 P.2d 518 (1986), we stated:
“Finally, the defendant argues the circumstantial evidence is insufficient to support his conviction. The defendant argues that to conclude the defendant is guilty beyond a reasonable doubt requires the stacking of inference upon inference.
“The scope of review applicable when the sufficiency of the evidence is challenged on appeal has been often stated: the question is whether the evidence, when viewed in a light most favorable to the prosecution, convinces the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. The appellate court looks only to the evidence in favor of the verdict to determine if the essential elements of the charge are sustained. State v. Zuniga, 237 Kan. 788, 794, 703 P.2d 805 (1985). When considering the sufficiency of circumstantial evidence to sustain a conviction on appeal, the appellate court’s function is limited to ascertaining whether there is a basis in the evidence for the jury’s verdict. If the essential elements of the charge are supported by any competent evidence, the conviction must stand. State v. Soverns, 215 Kan. 775, 529 P.2d 181 (1974). A conviction of even the gravest offense may be sustained by circumstantial evidence. State v. Hanks, 236 Kan. 524, Syl. ¶ 3, 694 P.2d 407 (1985).
“We find the circumstantial evidence introduced at trial is sufficient to support the defendant’s conviction of second-degree murder. The victim was shot in the back and left to die in a field in the country. The defendant had spent the previous evening with the victim. The defendant had given one of his friends a rifle to pawn the next morning. The right rear pocket of defendant’s jeans had blood smears which matched the blood of the victim. Only ten percent of the population have blood similar to the victim’s, containing the two genetic markers. A package of Benson & Hedges cigarettes recovered from the defendant at the time of his arrest and another package recovered near the victim’s body had the same tax stamp number-43667. The supplier who was assigned that tax stamp number distributed Benson & Hedges cigarettes to Quik Trip stores in Salina. Melody Hoeffner testified the defendant stopped at a Quik Trip store after he had taken Sheleen home in the early morning hours of November 3,1984, and bought two packages of Benson & Hedges cigarettes. At the time of his arrest, the defendant was wearing new shoes, purchased approximately one hour earlier. His old shoes were recovered from a ditch, and an analysis showed the possible presence of blood. The victim had been involved in a forceful act of sexual intercourse within twelve hours of her death. Seminal fluid was found on the inside of the fly of defendant’s jeans. The victim had been on her menstrual period when she died. The defendant was found to have blood on his penis.
“The probative value of each bit of circumstantial evidence permitting its individual inference was for the jury to determine, and the accumulation of these inferences supports the jury’s finding of guilt beyond a reasonable doubt. There was no stacking of inference upon inference to establish guilt.
“The defendant asserts the inconsistencies in Mr. Trow’s testimony cause the evidence to be insufficient to establish the defendant was with the victim at 1:40 a.m. on November 3,1984. The credibility of witnesses is within the province of the trier of fact, and not the appellate court. It is not the duty of this court to weigh the evidence. State v. Holt, 221 Kan. 696, 700-01, 561 P.2d 435 (1977).
“The evidence, while circumstantial, could lead a rational factfinder to find the defendant guilty beyond a reasonable doubt.” 239 Kan. at 585-86. (Emphasis supplied.)
We must conclude it was error to instruct that premeditation and deliberation could be inferred from the fact of the use of a deadly weapon. That fact, standing alone, does not support such an inference. A gun could be used to kill in first-degree murder, second-degree murder, voluntary manslaughter, or involuntary manslaughter.
We turn then to the portion of the instruction relative to the inference of malice.
In State v. King, 221 Kan. 69, 557 P.2d 1262 (1976), we stated:
“Second, the trial court instructed the jury that malice could be inferred from the use of a gun. Appellant objected to the instruction, preferring one which did not mention the permissible inference. The one given, she says, was inconsistent with her theory of self-defense. We find no error in the instruction. Unlike State v. Earnest, 56 Kan. 31,42 Pac. 359, relied on by the appellant, the instruction did not tell the jury to presume malice. The jury was elsewhere properly instructed on the state’s burden of proof, the defendant’s presumed innocence and her theory of self-defense. The jury was thus required to consider the self-defense theory along with all the other evidence and was told only that it was entitled to infer malice from the use of a gun. Such has long been our law. State v. Hamilton, 216 Kan. 559, 534 P.2d 226, Syl. 5; State v. Blake, 209 Kan. 196, 495 P.2d 905, Syl. 4; State v. Earnest, supra, Syl. 1.” 221 Kan. at 74.
Defendant contends that certain United States Supreme Court decisions have invalidated the quoted portion of State v. King. He relies, in part, on Francis v. Franklin, 471 U.S. 307, 85 L. Ed. 2d 344, 105 S. Ct. 1965 (1985), and Sandstrom v. Montana, 442 U.S. 510, 61 L. Ed. 2d 39, 99 S. Ct. 2450 (1979). These cases involve the propriety of a general criminal intent instruction on a person intending all of the usual consequences of his voluntary acts.
PIK Crim. 2d 54.01, given herein, states:
“Ordinarily a person intends all of the usual consequences of his voluntary acts. This inference may be considered by you along with all the other evidence in the case. You may accept or reject it in determining whether the State has met its burden to prove the required criminal intent of the defendant. This burden never shifts to the defendant.”
This instruction has been held to satisfy the requirements of Sandstrom. See State v. Jackson, 238 Kan. 793, 714 P.2d 1368, cert, denied 479 U.S. 821 (1986), and State v. Robinson, Lloyd & Clark, 229 Kan. 301, 624 P.2d 964 (1981).
Defendant also relies on Yates v. Aiken, 484 U.S. 211, 98 L. Ed. 2d 546, 108 S. Ct. 534 (1988). The Yates case applied the holding of Francis v. Franklin, 471 U.S. 307, to reverse the murder conviction of a defendant who, with an accomplice, robbed a convenience store. After defendant left the store, a fight occurred in which the accomplice and the storekeeper’s mother were both killed. At trial, defendant testified he had left the store before the victim was killed and he had not intended to kill or harm anyone. The jury, however, was instructed “that malice is implied or presumed from the use of a deadly weapon.” 98 L. Ed. 2d at 551. After defendant’s conviction and death sentence were affirmed by the South Carolina Supreme Court, that court ruled in another case it was error to give such a malice instruction. Defendant sought habeas corpus relief. While his petition was pending, the Supreme Court decided Francis v. Franklin, 471 U.S. 307. The South Carolina Supreme Court denied defendant’s petition without opinion, but the United States Supreme Court vacated the judgment and remanded for reconsideration in light of the Franklin decision! On remand, the South Carolina Supreme Court again denied the petition. Without addressing the Franklin decision, it stated its denial was on the ground that its own decision invalidating the malice instruction was not retroactively applicable.
On certiorari, the United States Supreme Court reversed and remanded. A unanimous court held that the Franklin case was applicable because that decision did not announce a new constitutional rule, but merely applied the principles previously announced in Sandstrom v. Montana, 442 U.S. 510. Yates v. Aiken, 98 L. Ed. 2d at 553-54.
In support of his position, defendant also cites United States v. United States Gypsum Co., 438 U.S. 422, 57 L. Ed. 2d 854, 98 S. Ct. 2864 (1978). In Gypsum, several gypsum board manufacturers were indicted for violations of the Sherman Act by allegedly engaging in a price-fixing conspiracy. One type of price-fixing action allegedly taken was interSeller price verification, which is the practice of telephoning a competing manufacturer to determine the price being currently offered on gypsum board to a specific customer. On this verification issue, the trial judge charged the jury that if the price-information exchanges were found to have been undertaken in good faith to comply with the Robinson-Patman Act, verification alone would not suffice to establish an illegal price-fixing agreement, but that if the jury found that the effect of verification was to fix prices, then the parties would be presumed, as a matter of law, to have intended that result. 438 U.S. at 429-30. On appeal, the Supreme Court rejected this instruction, stating:
“[W]e hold that a defendant’s state of mind or intent is an element of a criminal antitrust offense which must be established by evidence and inferences drawn therefrom and cannot be taken from the trier of fact through reliance on a legal presumption of wrongful intent from proof of an effect on prices.” 438 U.S. at 435.
We believe both the Yates and Gypsum cases may be distinguished. The instruction herein does not require or direct that malice be found from the use of a deadly weapon. For convenience, the malice portion of the instruction herein is repeated as follows:
“You are further instructed that if you find beyond a reasonable doubt that a deadly weapon was used in the killing, thát fact alone may be sufficient to infer the element of malice as required in either crime.”
The instruction is not well drawn. Something patterned along the lines of PIK Grim. 2d 54.01, previously cited, would have been preferable. In recent years, we have observed a growing trend toward the simplification of instructions in criminal cases and the elimination of many instructions which emphasize particular portions of the evidence. Although we do not consider the instruction on malice to constitute reversible error herein, we discourage the giving of this type of instruction. The use of a deadly weapon is one of the evidentiary facts from which the jury could infer malice, but we conclude it is the better practice not to give a separate instruction thereon.
For his fifth issue, defendant contends the voluntary intoxication instruction, PIK Crim. 2d 54.12, is clearly erronéous.
The instruction provides:
“Voluntary intoxication is not a defense to a criminal charge, but when a particular intent or other state of mind is a necessary element of the offense charged, intoxication may be taken into consideration in determining whether the accused was capable of forming the necessary intent or state of mind.”
This instruction is grounded in and consistent with K.S.A. 21-3208, which provides:
“(1) The fact that a person charged with a crime was in an intoxicated condition at the time the alleged crime was committed is a defense only if such condition was involuntarily produced and rendered such person substantially incapable of knowing or understanding the wrongfulness of his conduct and of conforming his conduct to the requirements of law.
“(2) An act committed while in a state of voluntary intoxication is not less criminal by reason thereof, but when a particular intent or other state of mind is a necessary element to constitute a particular crime, the fact of intoxication may be taken into consideration in determining such intent or state of mind.”
We conclude this issue is without merit as the instruction given adequately states the applicable law.
For his final issue, defendant contends the trial court erred in permitting the jury to view a videotape taken of the victim’s body after it was removed from the river. He contends the tape was inflammatory and irrelevant.
In State v. Ruebke, 240 Kan. 493, Syl. ¶¶ 4-5, 731 P.2d 842, cert, denied 483 U.S. 1024 (1987), we stated the general rules concerning the admissibility of photographs, and the appellate standard of review, as follows:
“Photographs are erroneously admitted where they are unduly repetitious, gruesome, and without probative value. State v. Dargatz, 228 Kan. 322, 614 P.2d 430 (1980). They are not inadmissible as evidence merely because they may be gruesome and shocking, provided they are true reproductions of relevant physical facts and conditions material to matters in issue. State v. McCorgary, 224 Kan. 677, 681, 585 P.2d 1024 (1978).” Syl. ¶ 4.
“The admission in evidence of photographs of homicide victims must necessarily rest largely in the discretion of the trial judge. In each case, it is the trial judge who determines whether the photographs serve a proper purpose in the jury’s enlightenment. His action will not be disturbed by an appellate court unless there is an abuse of discretion.” Syl. ¶ 5.
The tape showed the condition of the body and how it had been bound and weighted. The videotape is not particularly gruesome and does not involve autopsy procedures. We find no abuse of discretion in the admission of the videotape.
The judgment is reversed, and the case is remanded for further proceedings. | [
48,
104,
-79,
-66,
27,
96,
-22,
24,
-72,
-29,
-14,
115,
41,
-57,
1,
105,
63,
13,
-43,
105,
22,
-73,
7,
-29,
-125,
-13,
123,
-60,
-77,
-56,
-92,
-41,
72,
80,
-62,
89,
-26,
72,
-57,
-36,
-114,
4,
-79,
-15,
80,
18,
32,
122,
34,
15,
49,
15,
-5,
42,
18,
-30,
-119,
44,
91,
-67,
64,
57,
14,
-99,
-51,
82,
-77,
-96,
-102,
5,
88,
45,
-39,
49,
0,
-4,
-5,
-122,
-126,
-11,
77,
-119,
12,
38,
67,
53,
125,
-52,
104,
-87,
47,
118,
-91,
-89,
31,
8,
4,
5,
-73,
-35,
114,
20,
26,
-28,
-29,
30,
29,
100,
-92,
79,
-112,
-127,
-113,
60,
30,
56,
-37,
37,
0,
113,
-51,
-30,
69,
85,
121,
-111,
-114,
-16
]
|
The opinion of the court was delivered by
Lockett, J.:
Ronald Graham appeals his convictions of one count of possession of methamphetamine, K.S.A. 1987 Supp. 65-4127b(b)(2); one count of possession of marijuana, K.S.A. 1987 Supp. 65-4127b(a)(3); and one count of possession of cocaine, K.S.A. 65-4127a. Due to two prior narcotics convictions, Graham was sentenced to life imprisonment. K.S.A. 65-4127a.
On November 6, 1986, Junction City police officer James Nixon, knowing that he had issued Ronald Graham a traffic ticket for driving with a suspended license, stopped a blue Camaro driven by Graham. The car was registered in the name of Alan Marks. Aware that a bench warrant had been issued for Graham’s arrest that morning because of Graham’s failure to appear for his court date, Nixon arrested Graham.
Nixon noticed that Graham’s eyes appeared irritated and were extremely bloodshot. Nixon then searched Graham for weapons and contraband. In the watch pocket of the jeans Graham was wearing, Nixon found a plastic packet containing cocaine residue. In the lower right pocket of the black jacket Graham was wearing, Nixon found a plastic sandwich bag with eight small plastic packages containing cocaine. Between the bucket seat on the driver’s side and the center console, the officer found a large plastic bag containing a large amount of methamphetamine. Within the center console, Nixon found another plastic bag containing marijuana. Finally, Nixon found three hand-rolled marijuana cigarettes. After Graham was booked into jail, another packet of marijuana was discovered in the jacket.
At Graham’s trial, the State presented three witnesses, including Officer Nixon, who testified regarding the arrest. Certified copies of Graham’s two prior narcotics convictions were also admitted into evidence.
Graham took the stand and testified that, on the day before his arrest, he and a friend, Steve Miller, were doing body work on the Camaro which belonged to their friend Alan Marks. He further stated that, after working on the car, he and Miller went to a club to have drinks. They left the club about 11:30 p.m. and ran into Alan Marks, who borrowed Graham’s jacket.
Graham further testified that he spent the night at Miller’s house. Waking during the night, he discovered that he had urinated in his pants. He went to the bathroom, disrobed and washed, and went back to sleep. Upon awakening the next day, he realized he was late for his court appearance. Since his pants were still wet, he put on Miller’s pants, his own shirt, and Miller’s jacket. He then drove Alan Marks’ Camaro in the direction of the courthouse and was stopped by Officer Nixon. Graham stated that, when he was stopped by the officer, he believed his eyes appeared red and irritated because he had not worn glasses while working on Marks’ automobile and may have received some weld burns to his eyes.
Though Graham had contended that (1) all the contraband found was located in clothing which did not belong to him and in an automobile which was not his, and (2) he had no knowledge of the presence of or intent to possess any of the drugs, the jury convicted him of one count each of possession of marijuana, possession of methamphetamine, and possession of cocaine. He appeals, raising numerous issues.
Initially, Graham argues that the admission of the certified copies of his two prior narcotics convictions and the testimony of two witnesses regarding some of the occurrences surrounding those convictions were erroneously introduced in the State’s case in chief solely to prove his disposition to commit the offenses charged. The State claims the evidence of Graham’s prior convictions was properly admitted to show knowledge, intent, and absence of mistake or accident under K.S.A. 60-455, which provides:
“Subject to K.S.A. 60-447 evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his or her disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion but, subject to K.S.A. 60-445 and 60-448 such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.”
In ruling on the admissibility of other crimes evidence under K.S.A. 60-455, the trial court must: (1) determine if the evidence is relevant to prove one of the facts specified in the statute; (2) determine that fact is a disputed, material fact; and (3) balance the probative value of the prior conviction evidence against its tendency to prejudice the jury. State v. Breazeale, 238 Kan. 714, 719, 714 P.2d 1356, cert, denied 479 U.S. 846 (1986) (citing State v. Myrick & Nelms, 228 Kan. 406, 420, 616 P.2d 1066 [1980]; State v. Bly, 215 Kan. 168, 523 P.2d 397 [1974]).
Here, Graham is charged with possession of a controlled substance. Proof of possession is an essential element of the State’s burden. The Uniform Controlled Substances Act, K.S.A. 65-4101 et seq., does not define “possession.” See K.S.A. 21-3102[1]. In State v. Neal, 215 Kan. 737, 740, 529 P.2d 114 (1974), we cited with approval PIK Grim. 53.00 (now PIK Grim. 2d 53.00), which defines “possession” as having control over a place or thing with knowledge of and the intent to have such control. See City of Hutchinson v. Weems, 173 Kan. 452, 249 P.2d 633 (1952); State v. Metz, 107 Kan. 593, 193 Pac. 177 (1920). This definition was also approved in State v. Adams, 223 Kan. 254, 256, 573 P.2d 604 (1977).
Because Graham’s possession of the illegal substance itself may be susceptible to two interpretations, one innocent and the other criminal, then the intent with which the act was committed becomes the critical element in determining its character. State V. Nading, 214 Kan. 249, 254, 519 P.2d 714 (1974). Both knowledge and absence of mistake are factors relevant to intent. Knowledge signifies awareness and is a requirement for “possession.” Knowledge of the presence of a narcotic or dangerous drug as embraced within the concept of physical control with the intent to exercise such control is essential. 28 C.J.S., Drugs and Narcotics Supplement § 160, p. 235. Absence of mistake simply denotes an absence of honest error; evidence of prior acts illustrates the doing of the criminal act in question was intentional. Slough, Other Vices, Other Crimes: An Evidentiary Dilemma, 20 Kan. L. Rev. 411 (1972). See State v. Faulkner, 220 Kan. 153, 156-57, 551 P.2d 1247 (1976).
First, we will examine whether the certified copies of Graham’s two prior convictions could be admitted under 60-455 to raise an inference that he was familiar with the controlled substance and had knowledge of and intended to exercise control over the substance. In State v. Faulkner, 220 Kan. 153, the defendant claimed that, without a showing of the underlying facts and circumstances of the prior offense, the admission of the journal entry of judgment of his prior drug convictions to show intent, knowledge, and absence of mistake was improper. There, we found that the admission of the journal entry of judgment to show intent, knowledge, and absence of mistake, without a showing of the underlying facts and circumstances of the prior offense, was properly within the trial court’s discretion. Here, unlike in Faulkner, sufficient evidence was presented to show the similarity of Graham’s prior offenses. Therefore, the admission of the two certified copies of Graham’s two prior convictions to show intent or knowledge was correct.
Without citations for support, Graham further attempts to distinguish the admission of the certified copies of his prior convictions into evidence under Faulkner by a somewhat convoluted argument that Faulkner only applies to specific intent crimes. We disagree with this argument. K.S.A. 60-455 does not distinguish between specific intent and general intent crimes, but rather provides that other crimes evidence is admissible on the issue of “intent.” In addition, in State v. Crowley, 220 Kan. 532, 552 P.2d 971 (1976), we held admissible a prior conviction for simple possession where the defendant was charged with intent to possess heroin.
The crucial distinction in admitting other crimes evidence under 60-455 on the issue of intent is not whether the crime is a specific or general intent crime, but whether the defendant has claimed that his acts were innocent. Where criminal intent is obviously proved by the mere doing of an act, the introduction of other crimes evidence has no real probative value to prove intent. State v. Bly, 215 Kan. 168, 523 P.2d 397 (1974). In Bly, we reasoned that, where an armed robber extracts money from a store owner at gunpoint, his felonious intent is obvious from the act itself and is not really in dispute. Hence, evidence of other robberies to prove intent should not be admitted since the element of intent is not really at issue in the case. 215 Kan. at 176.
Where illegal possession of drugs is charged, however, intent may be the only issue. In that instance, the similarity of the prior offense to the crime charged is a key factor when determining whether that evidence is relevant. Here, Graham’s intent was the sole issue and the prior crimes evidence was properly admitted under K.S.A. 60-455 to show knowledge, intent, and absence of mistake or accident.
Next, we must determine whether the testimony of the two witnesses about some of the occurrences surrounding the narcotics conviction was erroneously admitted during the State’s case in chief. David Platt, the prosecuting attorney in the 1983 case, testified he was present at the preliminary hearing where Graham testified that the cocaine found in his shirt pocket must have belonged to someone else, since he had been at a party, taken his shirt off, and then presumably put on someone else’s shirt. Platt further testified that, after Graham was bound over for trial, he failed to appear for trial and a bench warrant was issued for Graham’s arrest. Two years later, Graham was arrested and pled guilty to one count of possession of cocaine.
Regarding the 1985 conviction, an Arkansas police officer testified he stopped an automobile in which Graham was a passenger and found cocaine in the car. When the car was stopped, Graham was wearing a leather jacket identical to the one Graham was wearing when arrested by Officer Nixon. The Arkansas police officer further testified that Graham pled guilty to the crime of possession of cocaine with intent to deliver.
The trial court conducted a lengthy pretrial hearing prior to admitting evidence of Graham’s 1983 conviction for possession of cocaine and his 1985 conviction for possession of cocaine with intent to deliver. After hearing the testimony, the trial judge found that the evidence was relevant to prove one of the facts specified in the statute and that the fact was disputed and material. The trial judge did not abuse his discretion by admitting the evidence of the prior crimes to show Graham’s intent and/or absence of mistake or accident.
Graham also claims that the probative value of his prior convictions was not sufficient to overcome the prejudicial effect of their admission. Although evidence of prior crimes is always prejudicial to some extent, this prejudice may be overbalanced by the probative value of the evidence on the crucial issues in the case. After determining that the other crimes evidence is relevant to prove a material fact in issue, the court must then weigh the prejudicial impact of the evidence under K.S.A. GO-445. By exercising its discretion, the court can exclude other crimes evidence if it finds its probative value is substantially outweighed by its prejudicial effect, or if the evidence confuses the issues or misleads the jury. State v. Davis, 213 Kan. 54, 58, 515 P.2d 802 (1973).
Here, the trial court found that the probative value of the evidence was not substantially outweighed by its prejudicial effect. The evidence did not confuse the issues or mislead the jury and the jury was properly instructed to consider the prior crimes evidence only on the issue of Graham’s intent and/or absence of mistake or accident. The trial court did not err by admitting evidence of the two prior drug convictions.
Next, Graham argues the trial judge admitted improper rebuttal testimony of two of the State’s witnesses which he cláims did not refute a fact he placed in evidence or a fact he attempted to prove. We disagree.
Rebuttal evidence is that which contradicts evidence introduced by an opposing party. It may tend to corroborate evidence of a party who first presented evidence on the particular issue, or it may refute or deny some affirmative fact which an opposing party has attempted to prove. It may be used to explain, repel, counteract, or disprove testimony or facts introduced by or on behalf of the adverse party. Such evidence includes not only testimony which contradicts witnesses on the opposite side, but also corroborates previous testimony. The use and extent of rebuttal rests in the sound discretion of the trial court and its ruling will not be reversed unless it appears its discretion has been abused. State v. Willis, 240 Kan. 580, 583, 731 P.2d 287 (1987).
Graham, after waiving his constitutional right not to testify, took the stand and admitted that his prior problems with drugs had resulted in two convictions. Graham stated he was unaware of the presence of the drugs until after Officer Nixon found them. On cross-examination, Graham theorized that the drugs probably belonged to the owner of the jacket. Graham further testified that he could not recall if he had testified during his preliminary examination for the 1983 charge of cocaine possession.
After the defense had rested, the Geary County prosecutor, David Platt, who had previously testified, was called as a rebuttal witness. Over Graham’s objection, Platt related that, during Graham’s 1983 preliminary examination, as in this case, Graham had claimed he did not know there were drugs in the pocket of the shirt he was wearing until the law enforcement officers found them. Platt stated Graham had testified that “the shirt was shared by he and three roommates and that there were a number of people that had been at their apartment that night, and that they’d had a party and the shirt had been laying there at some time and he put it on prior to leaving and being arrested on a traffic offense.”
Platt’s testimony rebutted Graham’s testimony that he did not know the drugs were in the clothes or the car. The testimony created a logical and permissible inference that Graham, having used the defense for a charge to which he ultimately pled guilty, was attempting to utilize that defense again. The rebuttal evidence buttressed the State’s contention that Graham’s possession of the drugs was knowing and intentional. We find no abuse of discretion in the admission of Platt’s testimony.
During its case in chief, the State sought to introduce defendant’s incriminating post-arrest statements made to Officer A. B. Farrow while defendant was in jail. At a Jackson v. Denno hearing outside the presence of the jury, Farrow testified that after Graham’s arrest he spoke to Graham for two and one-half hours at the Geary County jail about an investigation he was conducting regarding Kent Lakin, who had died in a bomb explosion. Farrow stated that in the course of the conversation Graham told him Lakin had been building a bomb to kill Officer Nixon. Farrow testified that later in the conversation Graham stated that, as many times as Officer Nixon had tried to catch him with drugs, sooner or later Nixon was bound to get lucky. Graham also admitted to Farrow he had sold methamphetamine and cocaine and had set up a known local drug dealer in business.
Farrow testified he had not planned to discuss the charges against Graham; that Graham’s statements were not solicited, but voluntary; and that no immunity was promised. The trial judge then ruled that the statements were not admissible in the State’s case in chief because they had been obtained during a custodial interrogation without complying with the Miranda procedure. The judge withheld a ruling on whether the statements would be admitted as rebuttal evidence.
Subsequently, after Graham had testified, the State sought to introduce the statements to rebut Graham’s testimony. The trial judge held Graham’s admissions of drug dealing were inadmissible, but, under Harris v. New York, 401 U.S. 222, 28.L. Ed. 2d 1, 91 S. Ct. 643 (1971), Graham’s statement that Officer Nixon was bound to get lucky and catch him with drugs sooner or later was proper rebuttal testimony and could be used to impeach Graham’s testimony.
In Harris, the United States Supreme Court held that admissions made by the accused to police officers, which were inadmissible in the State’s case in chief to establish guilt due to noncompliance with Miranda rules, could be used for impeachment where (1) such statements are inconsistent with defendant’s trial testimony bearing directly on the crimes charged, and (2) the accused makes no claim that his statements were coerced and involuntary.
We applied Harris in State v. Oshey, 213 Kan. 564, 517 P.2d 141 (1973), where the issue was the admission of the accused’s pretrial written inculpatory statement. Paraphrasing Harris, we held that, although the statement was not admissible in the State’s case in chief since there had been no determination of the voluntariness of the confession, it could be used for impeachment. 213 Kan. at 574. See State v. Boone, 220 Kan. 758, 556 P.2d 864 (1976); State v. Andrews, 218 Kan. 156, 542 P.2d 325 (1975); State v. Greene, 214 Kan. 78, 519 P.2d 651 (1974).
In State v. Roberts, 223 Kan. 49, 574 P.2d 164 (1977), we recognized the constitutional limitation on the admission of confessions or inculpatory statements as impeachment evidence after a trial court has determined the statements were involuntary or coerced. In Roberts, the trial court found that the defendant’s inculpatory statement had been coerced by promises of leniency and ruled them inadmissible in the State’s case in chief. Subsequently, however, the trial court admitted the coerced statement as rebuttal evidence to impeach the defendant’s credibility. We reversed the trial court, finding that the purpose for the distinction made in permitting such a statement or confession in evidence for impeachment purposes and not in the State’s case in chief rests on the different bases for the exclusions. We stated:
“When a statement or confession is found to be involuntary it is excluded from evidence because it is unreliable and not trustworthy. A coerced confession is not based on knowledge and truth for it originates from coercion and a personal desire of the defendant to alleviate existing pressures. On the other hand a statement or confession may be excluded from evidence in the state’s case in chief if Miranda warnings were not given or if no hearing was held to determine its voluntary nature. These reasons for exclusion are not based on the fact the statement is unreliable or untrustworthy. The statements are withheld from evidence in the state’s case in chief as a sanction for failure to warn a defendant or for failure to hold the hearing required. When the defendant who made such a statement takes the stand as a witness the facts surrounding the taking of the statement may be brought out and the reliability and trustworthiness of the prior statement may be fully explored including the effect of a failure to warn. The previous sanction imposed is removed in the interest of truth and justice.” 223 Kan. at 57.
Therefore, when a trial court has determined that a confession is coerced, the statement is untrustworthy and may not be used for any purpose. Roberts, 223 Kan. at 58. Roberts is in agreement with United States Supreme Court cases which have held that coerced confessions or statements, being inherently untrustworthy, are inadmissible for any purpose, including impeachment. See Mincey v. Arizona, 437 U.S. 385, 57 L. Ed. 2d 290, 98 S. Ct. 2408 (1978); Payne v. Arkansas, 356 U.S. 560, 2 L. Ed. 2d 975, 78 S. Ct. 844 (1958). Further, when such evidence is erroneously admitted, the error is of such constitutional magnitude that the courts are precluded from applying the harmless error rule. Such cases require automatic reversal. See Rose v. Clark, 478 U.S. 570, 579-80, 92 L. Ed. 2d 460, 106 S. Ct. 3101 (1986); Chapman v. California, 386 U.S. 18, 23, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967).
In each of these cases, however, the facts demonstrated defendant’s statements to be the product of coercion and/or police trickery. In Mincey v. Arizona, for example, police persisted in interrogating the defendant while he lay in a hospital bed attached to a breathing apparatus, despite defendant’s numerous protestations and requests for counsel. In Payne v. Arkansas, the defendant was held incommunicado for three days by police, who used false threats culminating in a threat of mob violence to obtain a confession. In State v. Roberts, 223 Kan. 49, the defendant’s statements were obtained by promises of leniency. In each case, the issue of voluntariness was determined from the totality of the circumstances with the inquiry focused upon whether the statement in question was the product of free and independent will or whether the defendant was deprived of his free choice to admit, deny, or refuse to answer. See State v. Creekmore, 208 Kan. 933, 495 P.2d 96 (1972).
Graham, as did the defendant in Roberts, argues that, because the trial court made a finding his statement was involuntary, it was inadmissible for any purpose. The State points out that the trial court made no express finding that Graham’s statement was coerced and involuntary; rather, the trial court found that the statement was made in violation of Miranda. The State then distinguishes Roberts, because unlike Pioberts’ statement Graham’s statement was not elicited by any coercion, promises, or threats.
The trial court specifically ruled:
“[T]he State has not in any way shown the relevant factors to voluntariness as required by Jackson versus Denno or any compliance with the Miranda warnings .... There is no evidence that this particular defendant initiated the conversation or wanted to in any way have the conversation.”
Here, the trial court determined that the statements would not be admitted into evidence in the State’s case in chief, but made no specific finding that Graham’s statements were coerced. Officer Farrow entered the defendant’s cell to discuss a crime unrelated to the crime with which Graham was charged. Graham was not a suspect in the unrelated crime. Graham spoke freely and at no time indicated an unwillingness to continue the con versation. There is no evidence to indicate Graham was coerced by promises or that the officer’s acts were deceptive. The mere fact that Farrow visited Graham in his cell and asked questions is not coercive and does not render Graham’s statements inadmissible.
Because Graham’s statements were made without the benefit of a Miranda warning, the trial court correctly determined that they were inadmissible in the State’s case in chief. However, the shield provided by Miranda may not be perverted into a license to use perjury by way of a defense, free from risk of confrontation with prior inconsistent utterances. Harris v. New York, 401 U.S. at 225-26. Since there is no evidence the statement concerning Officer Nixon catching defendant with drugs was involuntary or coerced, the trial court did not abuse its discretion by allowing the statement to be used as rebuttal.
Graham also argues that, even if the statement was voluntary, it could not be used to impeach his testimony since it offered no direct contradiction to his testimony. In State v. Watkins, 219 Kan. 81, 547 P.2d 810 (1976), the defendant argued that the State erred in cross-examining him upon inconsistencies in prior statements because portions of the testimony elicited by the prosecutor were not in direct contradiction to his prior statements. We stated that since all the testimony elicited tended to impeach the defendant, no abuse of discretion or prejudice had been shown. 219 Kan. at 86.
Similarly here, Graham took the stand and testified that the first time he saw the drugs in question was after Officer Nixon stopped the car and began pulling the drugs out of his clothes and from the car. He stated that, prior to Officer Nixon producing the various packages of drugs, he had never laid eyes on them. This testimony tended to contradict his statement to Officer Farrow that, as many times as Officer Nixon had tried to catch him with drugs, sooner or later he was bound to get lucky and catch him with some. Therefore, no abuse of discretion or prejudice is shown.
Graham next claims that the trial judge improperly instructed the jury on possession. Two hours after the jury had retired to deliberate, it submitted the following question to the court:
“Presence of clothing is proven but proof that the defendant had knowledge of the presence, I do not believe can be proven. Must there be a unanimous agreement to finalize case at this point on possession?”
The court, with the agreement of both counsel, directed the jury to the instructions for the answer to the question. The jury then inquired what the “next legal recourse” would be if no unanimous verdict could be reached. The court questioned the jury and, after determining that there was no deadlock, allowed the jury to continue to deliberate.
Approximately two hours later, the court received a third inquiry from the jury which read: “Your honor, will you provide the legal definition of possession in this case.” Both counsel suggested PIK Crim. 2d 53.00, which defines possession as: “[h]aving control over a place or thing with knowledge of and the intent to have such control.” The court believed that its instructions to the jury defined the element of “intent” and that further instruction would be repetitive. The court then responded: “Possession is defined as knowledgeably having control over a place or thing.” A few minutes later, the jury returned a guilty verdict.
The PIK definition is derived from Kansas cases which hold that knowledge of the presence of a controlled substance is not sufficient for a conviction for possession of that substance. In addition .to requiring mere knowledge of the presence of the controlled substance or mere physical control, a conviction for possession requires the jury to find the accused had an intent to exercise control over the substance. See State v. Flinchpaugh, 232 Kan. 831, 659 P.2d 208 (1983); State v. Faulkner, 220 Kan. 153, 551 P.2d 1247 (1976); State v. Metz, 107 Kan. 593, 193 Pac. 177 (1920).
Graham correctly states the definition of “possession” provided by the trial judge is not an exact replica of the definition approved in PIK Crim. 2d 53.00. However, Graham’s argument that the definition allowed the jury to find him guilty without finding the element of intent is without merit. The court instructed that possession was “knowledgeably” having control over the drugs. “Knowledgeably” is a common word which the court used in its everyday meaning: with knowledge, knowingly, or with intent. Thus, the jury was instructed to find that the defendant had to know he had the drugs and that his possession of the drugs was not due to a mistake or accident. This instruction is a clear statement of the law and did not mislead the jury. See generally State v. Lee, 221 Kan. 109, 111-12, 558 P.2d 1096 (1976).
Finally, as the trial judge noted, his other instructions on the elements of the crimes for possession clearly required the jury to find that Graham’s possession was intentional. A trial court has discretion in giving instructions to the jury and, on appeal, the instructions should be approved if, after being considered in their entirety, they properly and fairly state the law as applied to the facts in the case. Further, the court had broad discretion in answering jury questions during deliberations. K.S.A. 1987 Supp. 60-248(e). See State v. Ruebke, 240 Kan. 493, 511, 731 P.2d 842, cert, denied 483 U.S. 1024 (1987). Viewing the instructions and the trial court’s supplemental definition of “possession” in their entirety, the trial court neither erred nor was the defendant prejudiced.
Graham’s final argument is that there was insufficient evidence to convict him of the charge of possession of cocaine. Where there is a challenge to the sufficiency of the evidence to support a conviction, the standard of review on appeal is whether the evidence, viewed in the light most favorable to the prosecution, convinces the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. The appellate court looks only to the evidence in favor of the verdict to determine if the essential elements of the charge are sustained. State v. Dunn, 243 Kan. 414, 429, 758 P.2d 718 (1988). Possession is having control of a thing with the knowledge of, and the intent to have, such control. Possession and intent, like the elements of any other crime, may be proved by circumstantial evidence. State v. Faulkner, 220 Kan. 153, Syl. ¶ 13.
Here, the fact that the drugs were found either on Graham’s person or in the car that he was driving was not disputed. The only issue in this case was whether Graham knew that he had the drugs in his possession. Under the facts submitted to the jury, a rational factfinder could infer intent beyond a reasonable doubt.
Affirmed. | [
-80,
-20,
-4,
30,
26,
96,
59,
-66,
82,
-43,
-9,
114,
-119,
-29,
5,
57,
-38,
127,
116,
-23,
-15,
-78,
55,
35,
-30,
-9,
121,
-58,
-73,
-53,
108,
-108,
29,
112,
-90,
-51,
-26,
-120,
-58,
90,
-50,
5,
-80,
-29,
18,
2,
52,
59,
-121,
-117,
117,
-98,
-93,
14,
24,
-54,
73,
40,
75,
40,
80,
-21,
-88,
53,
-49,
54,
-93,
0,
-104,
5,
-8,
62,
-36,
49,
16,
120,
115,
-122,
-126,
-12,
45,
-119,
-124,
-94,
98,
0,
81,
-19,
-88,
-119,
28,
-81,
-100,
-89,
-104,
107,
97,
69,
-106,
-98,
110,
30,
37,
-8,
75,
87,
69,
108,
38,
-49,
-68,
-111,
77,
32,
-114,
90,
-53,
33,
20,
-15,
-57,
-30,
76,
117,
121,
-101,
-57,
-42
]
|
The opinion of the court was delivered by
McFarland, J.:
This is a medical malpractice action wherein the jury found plaintiffs decedent 60 percent at fault. The plaintiff appeals therefrom.
The first issue is whether the verdict is contrary to the evidence.
When a verdict is challenged for insufficiency of evidence or as being contrary to the evidence, it is not the function of this court to weigh the evidence or pass on the credibility of the witnesses. If the evidence, with all reasonable inferences to be drawn therefrom, when considered in the light most favorable to the prevailing party, supports the verdict, it will not be disturbed on appeal. Tetuan v. A. H. Robins Co., 241 Kan. 441, Syl. ¶ 1, 738 P.2d 1210 (1987). See In re Adoption of F.A.R., 242 Kan. 231, Syl. ¶ 2, 747 P.2d 145 (1987); Long v. Deere & Co., 238 Kan. 766, Syl. ¶ 1, 715 P.2d 1023 (1986).
The evidence considered in the light most favorable to the defendants may be summarized as follows:
Cecil Wisker was injured on Saturday, September 1, 1984, in a three-wheel motorcycle accident at a state recreational park in Waynoka, Oklahoma. He was taken to the E. L. Clapper Memorial Medical Center emergency room in Waynoka, where he was seen by Dr. James M. Moody. After examining Wisker and his x rays, Dr. Moody diagnosed Wisker as having a non-displaced fracture of the ninth rib on the right side with contusion of the abdominis rectus muscle. Wisker was released from the hospital with instructions: (1) to apply an ice pack to the lower right rib; (2) to take Norflex, a muscle relaxant; (3) to take Tylenol as needed for pain; (4) to refrain from alcohol; (5) to do no strenuous activity or lifting; (6) to call Dr. Moody if he had any problems or difficulties, or, if Wisker was at home in Wichita, to call his family doctor.
On Monday, September 3, 1984, Wisker returned to Wichita from Oklahoma and told his wife, Jewell Wisker, of the accident, showing her his bruised side. He told her he had two fractured ribs, and had been given pain medicine and told to see his family doctor. The next morning Jewell telephoned Dr. Ronald Davis, the family physician, to have him see Wisker. Dr. Davis examined Wisker that day, diagnosed his injuries as rib fractures, a chest injury, and liver and lung contusions, with resulting right shoulder pain. Wisker was told not to go to work that day. Blood samples were taken. Dr. Davis requested hemoglobin and he motocrit readings from the lab to confirm his opinion there was no internal bleeding. The lab results were returned to Dr. Davis on Wednesday, September 5, 1984, and the lowered blood counts indicated the presence of internal bleeding. Wisker returned to Dr. Davis’ office. On September 5 his condition appeared to have worsened. Additional blood tests were taken, with orders for immediate processing. After reviewing the results of the latest blood tests and determining Wisker was having internal bleeding, Dr. Davis decided Wisker needed to be hospitalized and that a surgical consultation was necessary. Dr. Davis then consulted with Dr. Dillis Hart, a surgeon, concerning the care and treatment of Wisker.
Dr. Hart examined Wisker that same day, September 5, following Wisker’s admission into St. Joseph Medical Center in Wichita. Dr. Hart diagnosed Wisker as having fractured a rib that punctured his liver, causing a loss of blood. In order to determine whether there was any evidence of active bleeding, Dr. Hart had a peritoneal tap done. A peritoneal tap of the left lower quadrant and the right upper quadrant of the peritoneal (abdominal) cavity indicated no continued internal bleeding. Dr. Hart believed the injury had stabilized. The catheter was left in Wisker until September 6,1984, to determine whether there was any further bleeding. There was not, indicating the blood where Wisker had initially bled had clotted. Dr. Hart saw Wisker several times a day during his hospitalization period, looking for any change which would signal a need to operate. There was none.
On September 7, 1984, Wisker was discharged from the hospital. His condition was, at that time, stable and his liver was not bleeding. Before discharging him, Dr. Hart explained to Wisker that he had undergone a very significant injury to the chest wall, diaphragm, and liver; that he was healing; and that there was no evidence of continuing internal bleeding. Dr. Hart told Wisker he should not involve himself in strenuous activity, and should not be jogging. Neither activity, he said, should be carried out until after a follow-up visit with Dr. Davis or himself in a week or so. Dr. Hart further told Wisker that his injury was the type of injury that could rebleed, and that the healing process could take as long as twelve to eighteen months. Dr. Davis also counselled Wisker at St. Joseph Medical Center before Wisker was dis charged. Dr. Davis told Wisker he should not go to work, do any climbing or sports, or lift anything over fifteen pounds. Dr. Davis further told Wisker that rebleeding would occur if he did not restrict these activities.
Both physicians told Wisker to contact them if his condition changed. Wisker’s wife, Jewell, also knew she was to contact either Dr. Hart or Dr. Davis if there was any change in Wisker’s condition.
Despite the medical admonitions, Cecil Wisker returned to work on Monday, September 10, 1984. He was a mechanic. He worked every workday (September 10-14) of that week. He returned to Dr. Hart’s office on Wednesday, September 12, 1984, for more blood tests. His wife testified Wisker’s physical condition had improved that week, he was feeling pretty good, and he was eating better. On Thursday, Wisker worked overtime, for a total workday of 10 Vz hours.
On Friday, September 14,1984, Wisker went to work as usual. About 2:40 p.m., he was manually tightening axle nuts on a truck, using a 10-inch vise grips. He was tightening the seventh nut on one of the truck wheels when he said “Ouch,” grabbed his side, stood up, and walked over to another part of the shop and put his head down on a bench. A co-worker, Clyde Clarke, asked Wisker what was wrong and told him he should go back to see his doctor. Instead, Wisker sat in the shop for around 30 minutes, then left the shop. Before leaving, Wisker told his supervisor he was not feeling well and wanted to go home. The supervisor granted Wisker permission to leave.
Wisker arrived home about 3:15 p.m. Jewell Wisker noticed a big change in his condition. He was pale, appeared weak, and was bent over and in distress. Jewell was alarmed by his condition and asked him if he would like her to call a doctor. He declined, took a pain pill, and went to bed. At approximately 6:00 p.m., Cecil Wisker came out of the bedroom and fell on the floor. Jewell called Emergency Medical Service for an ambulance. She also called her sister who, when the ambulance had arrived, called Dr. Davis to tell him they were taking Cecil to the emergency room at St. Joseph Medical Center. This was the first call placed to Dr. Davis concerning Cecil Wisker that day. Dr. Davis testified that he told the caller to go to the emergency room, and that he would notify Dr. Hart and the emergency room they were en route. Dr. Hart had not been contacted concerning Wisker since his discharge from the hospital on September 7, 1984.
Wisker arrived at the emergency room at approximately 6:30 p.m. He was in shock, had a weak pulse, and had experienced a massive hemorrhage. A peritoneal tap was performed, showing gross (new) blood. He was immediately taken to surgery in order to find and control the bleeding. After evacuating the blood in the abdominal cavity, active bleeding from a small one-inch laceration in the right lobe of the liver was noted. Dr. Hart estimated Wisker’s blood loss at, initially, 3,500 to 4,000 cc., and approximately 7,000 cc. of blood loss and replacement by conclusion of the surgery. An amount of 7,000 cc. represents more than Wisker’s total body volume of blood. Dr. Hart testified that had Wisker come to the hospital three hours earlier, his chances for survival would have been greatly increased. After several subsequent surgeries necessitated by rebleeding, Wisker died the following day, September 15, 1984. . .
On March 6, 1985, Jewell Wisker filed this medical malpractice action on her own behalf and on behalf of her two children against Dr. Ronald B. Davis, Dr. Dillis Hart, and Mid-America Surgical Group (for whom Hart was alleged to be an agent), alleging their negligence caused Cecil Wisker’s death. There was substantial competent evidence presented at trial that the defendants had not been negligent in their treatment of Mr. Wisker. Contrary evidence was also introduced.
The verdict of the jury found fault as follows:
Cecil Wisker 60%
Dr. Moody and the E.L. Clapper Memorial Medical Center 5%
Dr. Dillis Hart 30%
Dr. Ronald Davis 5%
Rental Exchange (Wisker’s Employer) 0%
Thus, the jury found that 60 percent of the fault was attributable to decedent and 40 percent was the result of medical malpractice. This verdict is not contrary to the evidence under the applicable standard of review previously stated. After suffering a serious injury, decedent ignored the advice of his physicians and engaged in strenuous physical labor. Such activity resulted in a dramatic deterioration of his condition, yet he failed to seek immediate medical attention as directed to do if such occurred. Instead, decedent went home. Three hours later he collapsed. The time so lost was critical and greatly reduced his chance of surviving.
As an additional aspect of this issue, plaintiff contends that the jury’s finding of no damage shows error. The jury had been instructed:
“One whose fault is 50% or more is not entitled to recover damages.
“If you find that the fault of Cecil Wisker is less than 50%, then you shall determine the amount of damages sustained by the plaintiffs . . . .”
Under the instruction the jury was told of the “50 percent rule” and that it need not determine damages if Cecil Wisker was found to be 50 percent or more at fault. We have long held it is not error to advise the jury of the 50 percent rule on comparative negligence cases. Thomas v. Board of Trustees of Salem Township, 224 Kan. 539, Syl. ¶ 2, 582 P.2d 271 (1978).
If a plaintiff cannot recover any damages, it would be pointless for a jury to determine damages. This is consistent with PIK Civ. 2d 20.03.
We conclude this issue, in its entirety, is without merit.
For her next issue, plaintiff contends it was error for the trial court to refuse to instruct the jury on punitive damages.
Punitive damages may be awarded whenever the elements of fraud, malice, gross negligence, or oppression mingle in the controversy. Tetuan v. A. H. Robins Co., 241 Kan. at 481. Punitive damages are awarded to punish the wrongdoer for his malicious, vindictive, or willful and wanton invasion of another’s rights, with the ultimate purpose being to restrain and deter others from the commission of similar wrongs. Folks v. Kansas Power & Light Co., 243 Kan. 57, Syl. ¶ 6, 755 P.2d 1319 (1988); Tetuan v. A. H. Robins Co., 241 Kan. at 481.
However, a verdict for actual damages is essential to the recovery of punitive damages. Stevens v. Jayhawk Realty Co., 236 Kan. 90, 91, 689 P.2d 786 (1984); Lantz v. City of Lawrence, 232 Kan. 492, 499-500, 657 P.2d 539 (1983); Traylor v. Wachter, 227 Kan. 221, Syl. ¶ 4, 607 P.2d 1094 (1980).
In Cox v. Kansas Gas and Elec. Co., 630 F. Supp. 95 (D. Kan. 1986), a similar claim was made, and it was held:
“In any event, we note that the issue of punitive damages is moot. Because the jury found plaintiff to be sixty percent at fault, plaintiff was not entitled to recover actual damages. K.S.A. 60-258a. Kansas law is quite clear that a plaintiff must establish a right to recover actual damages before punitive damages may be awarded. Lantz v. City of Lawrence, 232 Kan. 492, 657 P.2d 539 (1983).” 630 F. Supp. at 101.
Inasmuch as the jury herein found Cecil Wisker to be 60 percent at fault, thereby precluding the award of actual damages under K.S.A. 1987 Supp. 60-258a, it follows, under the cited precedents, that punitive damages could not be awarded, rendering this issue moot. Even if considered on the merits, it would be extremely difficult to find any evidence in the record of more than ordinary negligence on the part of defendant physicians, as opposed to gross negligence, such as to justify submission of a claim for punitive damages.
For her third issue, plaintiff contends the trial court erred in excluding certain hearsay testimony which she contends was a dying declaration under K.S.A. 1987 Supp. 60-460(e).
K.S.A. 1987 Supp. 60-460 is the hearsay statute and provides:
“Evidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated, is hearsay evidence and inadmissible except:
“(e) Dying declarations. A statement by a person unavailable as a witness because of the person’s death if the judge finds that it was made (1) voluntarily and in good faith and (2) while the declarant was conscious of the declarant’s impending death and believed that there was no hope of recovery.”
On September 5,1984, plaintiff was admitted to the hospital for observation and testing. He was discharged on September 7, 1984. He resumed working on September 10, 1984, (against his physician’s advice) and worked until the fatal incident on September 14, 1984. Plaintiff sought to testify to certain statements made by her husband on September 5 on the basis these were dying declarations under 60-460(e). There was no evidence that declarant (decedent) believed at the time of the statement that his death was imminent and that he had no hope of recovery. We conclude this issue is without merit.
For her fourth issue, plaintiff claims error relative to the testimony of Dr. Ernest Schlachter and Dr. Jeffrey Lavigne. The precise issue is difficult to state by virtue of plaintiff s varying designation thereof. In her brief, she claims no error in limiting their testimony but contends the court improperly restricted its consideration thereof by a limiting instruction. In her reply brief, plaintiff contends the trial court improperly restricted their testimony. No ruling of the trial court limiting such evidence, proffer, or other portions of the record of the testimony are cited to show error. The reply brief, again, asserts the error was in the limiting instruction. The burden is upon the party claiming error to demonstrate to the reviewing court that error occurred. No error has been demonstrated relative to any restriction of these two witnesses’ testimony.
We will consider the issue as being confined to whether or not the trial court improperly restricted the jury’s consideration of these witnesses’ testimony.
Instruction No. 7 stated:
“In determining whether Dr. Hart’s learning, skill and conduct fulfill the duties imposed on him by law, you are permitted only to consider the testimony of Dr. Hart, Dr. Charles Jackson and Dr. Jeffrey Lavigne.
“In determining whether Dr. Davis’ learning, skill and conduct fulfill the duties imposed on him by law, you are permitted only to consider the testimony of Dr. Davis, Dr. Mark VinZant and Dr. Ernest Schlachter.”
In so instructing, the trial court was applying its interpretation of K.S.A. 1987 Supp. 60-3412, which provides:
“In any medical malpractice liability action, as defined in K.S.A. 1985 Supp. 60-3401 and amendments thereto, in which the standard of care given by a practitioner of the healing arts is at issue, no person shall qualify as an expert witness on such issue unless at least 50% of such person’s professional time within the two-year period preceding the incident giving rise to the action is devoted to actual clinical practice in the same profession in which the defendant is licensed.”
Dr. Schlachter is a general practitioner of medicine. Dr. Lavigne is a surgeon. The trial court construed K.S.A. 1987 Supp. 60-3412 to preclude a surgeon from testifying as to the standard of care applicable to general practitioners and vice-versa. Hence, it limited the jury’s consideration of Dr. Lavigne’s testimony to the standard of care of defendant Hart, a fellow surgeon, and the jury’s consideration of Dr. Schlachter’s testimony to the standard of care of defendant Davis, a fellow general practitioner.
Plaintiff contends this was an erroneous construction of the statute. We agree. K.S.A. 1987 Supp. 60-3412 is intended to prevent the use of “professional witnesses.” That is, practitioners of healing arts who spend less than 50 percent of their professional time in actual clinical practice in their profession are considered to be “professional witnesses” rather than prac titioners of their profession. The statute was not intended to require that only a surgeon could testify as to the standard of care of another surgeon, etc. The weight afforded the testimony of physicians testifying outside their area of professional specialization is a matter to be determined by the jury.
We conclude the restriction of the jury’s consideration of the Lavigne and Schlachter testimony was error. However, we are satisfied that no reversible error in this regard has been demonstrated. Dr. Lavigne’s testimony as to any deviation of care on the part of Dr. Davis would be cumulative with that of Dr. Schlachter. Dr. Schlachter’s testimony as to any deviation in the standard of care of Dr. Hart would be cumulative with that of Dr. Lavigne. The testimony of plaintiff s expert witness surgeon was allowed to be considered against the defendant surgeon. The testimony of plaintiff s expert witness general practitioner was allowed to be considered against the defendant general practitioner.
The plaintiff s other claims of error in the instructions have been considered and are held to be without merit, although not set forth specifically herein.
We turn now to the final and most serious issue raised herein.
The trial court ruled that the collateral source statute, K.S.A. 1987 Supp. 60-3403, was not constitutionally deficient and permitted evidence to be introduced of Social Security and Workers’ Compensation benefits. Although not admissible under the statute, plaintiff testified upon direct examination by her own counsel that certain life insurance proceeds had been received. This latter testimony, of course, is not claimed as error.
K.S.A. 1987 Supp. 60-3403 (repealed L. 1988, ch. 222, § 8) provided:
“(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.
“(b) When evidence of reimbursement or indemnification of a claimant is admitted pursuant to subsection (a), the claimant may present evidence of any amounts paid to secure the right to such reimbursement or indemnification and the extent to which the right to recovery is subject to a lien or subrogation right.
“(c) In determining damages in a medical malpractice action, the trier of fact shall consider: (1) the extent to which damages awarded will duplicate reim bursement or indemnification specified in subsection (a); and (2) the extent to which such reimbursement or indemnification is offset by amounts or rights specified in subsection (b).
“(d) the provisions of this section shall apply to any action pending or brought on or after July 1, 1985, regardless of when the cause of action accrued.”
The case herein was tried in May of 1987. On July 17, 1987, our opinion in Farley v. Engelken, 241 Kan. 663, 740 P.2d 1058 (1987), was filed, holding, in a four to three decision, that said statute was unconstitutional.
In Harrier v. Gendel, 242 Kan. 798, 751 P.2d 1038 (1988), evidence of collateral sources was introduced in a medical malpractice action tried prior to the Farley decision. In Gendel, the jury found no malpractice on the part of the defendants. The majority of this court held that the introduction of such evidence was akin to the introduction of evidence of liability insurance owned by a defendant and hence inherently prejudicial. The judgment was reversed and the case was remanded for a new trial. On the basis of Gendel, plaintiff seeks reversal of the judgment and remand of the case.
The Gendel defendants argued that, inasmuch as the collateral source evidence went only to determination of damages, any error in the admission of such evidence was harmless as no damages were awarded. The same argument is presented herein. While it is true no fault was found in Gendel on the part of defendants and, here, an aggregate 40 percent fault was found on the part of those compared other than the decedent, we do not see this as a legitimate basis of distinction between the two cases as to the result of the introduction of the collateral source evidence. Either the majority opinion in Gendel must be applied, which requires a reversal of the judgment herein, or Gendel must be overruled.
In Patterson v. Burt, 213 Kan. 463, 468, 516 P.2d 975 (1973), we held:
“Where the plaintiff in a personal injury action fails to convince the trier of fact that the defendant is liable, it becomes unnecessary for the trier of fact to resolve the question of damages. Accordingly, it would follow that error, if any, in the manner in which the issue of damages was submitted to the trier of fact becomes immaterial.”
Justice Tyler Lockett’s dissent in Gendel stated:
“I agree with the majority’s statement that evidence that a party received collateral source benefits is not admissible in a trial. Farley v. Engelken, 241 Kan. 663, 740 P.2d 1058 (1987). Under the instructions, however, the jury was not required to determine the collateral source issue. First, the jury was instructed to determine whether the defendant, Dr. Gendel, was negligent in his treatment of the plaintiff. If the jury found that the defendant was negligent, only then could it consider the fact that the plaintiff received collateral benefits while determining the compensation due the plaintiff.
“The burden is upon the plaintiff to show that jurors disregarded their oath, not as a matter of speculation, but as a demonstrable reality. There must be more than speculation that it was reasonably certain defendant did not receive a fair trial. State v. Ruebke, 240 Kan. 493, 498-99, 731 P.2d 842 (1987). Where a party claims error in the admission of certain evidence, there is no presumption of prejudice from the introduction of evidence alone; in addition, the party claiming error must also prove that the error prejudiced the party. Walters v. Hitchcock, 237 Kan. 31, 35, 697 P.2d 847 (1985).
“Unlike the majority, I cannot find that as a matter of law the improper introduction of evidence of collateral source benefits into the trial was so inherently prejudicial that it caused the jurors to disregard their oath and the judge’s instructions and to decide the case on an improper ground. It is true the plaintiff did not receive a perfect trial, but he did receive a fair trial. I would affirm the judgment.” 242 Kan. at 802.
Upon further reflection, we do not believe the analogy between evidence of a defendant’s insurance and evidence of collateral sources paid to a plaintiff relied on by the majority in Gendel is a valid one. Evidence of a tortfeasor’s insurance is excluded by K.S.A. 60-454, which provides:
“Evidence that a person was, at the time a harm was suffered by another, insured wholly or partially against loss arising from liability for that harm is inadmissible as tending to prove negligence or other wrongdoing.”
The theory behind the general rule of reversal when a defendant’s liability insurance is mentioned is that it distorts the question of liability. The jury is presumed not to view the defendant as the payor of a judgment—but rather the payor is some corporate titan who is in the business of paying judgments in exchange for receiving premiums. Whether this is a valid theory in the modern world where automobile liability insurance is mandatory, broad coverage is common in homeowners’ policies, and health care providers are required to be insured is not before us. In any event, that is the basis for reversing when evidence of a defendant’s liability insurance is introduced.
Fault was hotly contested throughout the trial herein. The jury apportioned percentage of fault 60-30-5-5-0 among the five parties compared. The jury was instructed that damages were to be determined only if decedent was less than 50 percent at fault. We have absolutely no basis from which to conclude the jurors disregarded their oaths and the instructions herein. The erroneous admission of the collateral source evidence could have reduced the damages had the jury reached the point of determining damages. It did not reach this point and hence, as in Patterson v. Burt, 213 Kan. 463, the error in admitting the collateral source evidence on damages becomes immaterial.
We conclude our contrary holding in Harrier v. Gendel, 242 Kan. 798, must be and the same is hereby overruled.
The judgment is affirmed. | [
-111,
-24,
-11,
46,
9,
96,
50,
26,
81,
-123,
55,
115,
47,
-21,
13,
47,
-26,
127,
-59,
99,
-41,
-77,
22,
1,
-30,
-13,
-6,
-41,
-79,
78,
-28,
-7,
77,
56,
-126,
-59,
102,
-117,
-59,
80,
-114,
-106,
-87,
-52,
89,
34,
-8,
110,
-44,
7,
-80,
-97,
-29,
42,
62,
-57,
105,
40,
11,
45,
-35,
-80,
-120,
13,
79,
0,
-93,
20,
28,
39,
-40,
60,
-104,
49,
9,
-20,
113,
-74,
-126,
116,
109,
-103,
12,
102,
103,
49,
29,
-23,
40,
-72,
15,
15,
-115,
-89,
-102,
25,
-119,
-95,
-105,
-67,
102,
54,
14,
108,
-20,
93,
95,
108,
3,
-113,
-108,
-79,
-97,
52,
-68,
98,
-17,
-89,
18,
113,
-51,
114,
93,
69,
91,
-101,
-98,
-74
]
|
The opinion of the court was delivered by
Six, J.;
Duke D. Norris appeals from his convictions for first-degree felony murder and aggravated robbery.
Norris claims: (1) his statements made to Wichita police detectives should have been suppressed; (2) the trial court erred in instructing the jury; (3) his counsel should have been allowed to examine the victim’s psychiatric records; (4) evidence as to comparison and identification of shoe prints should have been excluded; and (5) the prosecutor’s remarks during closing argument constituted prejudicial error.
We find no error and affirm.
FACTS
On the morning of March 17, 1987, Duke Norris and Bobby Grimes applied for jobs in Wichita. After filing their applications, they secured a ride to the house of the victim, Dean Harness. Grimes and Harness had met at church in 1985. Grimes began spending time at the Harness home, discussing the Bible and helping Harness with household chores. Harness gave Grimes presents, including clothes and jewelry, loaned him money, and gave him rides. According to Anna Harness, Grimes encouraged her husband to drink, took advantage of him, and harassed both herself and her husband. At one point, Grimes and Harness had a telephone conversation that upset Harness so much his wife hospitalized him for psychiatric care.
Norris and Grimes arrived at Harness’ house at approximately 10:30 a.m. They occupied the morning and early afternoon by drinking beer and whiskey, playing games, and shopping at a liquor store. Norris told Grimes that he wanted to “roll” Harness to get his money. Grimes testified he told Norris not to do it. Norris testified that Grimes said Norris had better do it before Anna Harness came home from work; Harness had asked Grimes and Norris to leave before his wife returned home.
As the visitors were preparing to leave, Norris jumped Harness and hit him over the head with a lamp. When he first approached Harness, Norris had a lock-blade knife in his hand.- Grimes was scared and ran out of the house. After Harness fell to the floor, Norris checked Harness’ wallet and searched the house for valuables. He also changed into a pair of Harness’ pants because his were bloody.
Norris testified that he did not stab Harness; he stated he entered the kitchen to find something to wrap around his bleeding hands, which had been cut when he broke the lamp in the attack on Harness. He then left the house and walked to Grimes’ apartment.
Grimes testified that, after running a few blocks, he decided to return to the Harness house. Grimes saw Harness lying in a pool of blood on the living room floor.
A next-door neighbor testified she was talking on the phone while looking out her living room window when she saw a man fitting Grimes’ description walking to the south at approximately 2:30 p.m. on the day of the murder. About ten minutes later, she saw him walking back north. About fifteen minutes later, she saw him walking south again. After she saw Grimes walk south the second time, she saw a man fitting Norris’ description also walking to the south. Another neighbor testified she saw a man fitting Grimes’ description running through the grass to the south between 2:00 and 3:00 p.m. the day of the murder. This second neighbor said the man went about two doors down, then turned around and came back.
Tina Grimes, Bobby Grimes’ wife, testified that Bobby arrived home at approximately 4:00 p.m. that day. Norris arrived at the apartment about one-half hour later. His hands were cut. Norris told her he had been in a fight at South High School.
Dennis Grimes, Bobby’s brother, testified that when Bobby arrived at Dennis’ house Bobby asked to speak to Dennis privately. He told Dennis what had happened and that Norris had “screwed up.” Dennis called the Harness home. A police officer answered the phone. The police came to Dennis’ house and picked up Bobby for questioning.
Anna Harness testified she arrived home at approximately 4:00 p.m. on the day of the murder. She found her husband lying in the living room. Blood was everywhere. Furniture and knickknacks were broken. She ran to a neighbor’s house and called an ambulance and the police.
The attending emergency room physician testified that Harness had bled to death at the scene. She noted Harness had severe facial injuries and several stab wounds in his back. The most severe wound was in the right flank. The cause of death was severe hemorrhaging.
Norris’ grandmother took him to the Minor Emergency Center at approximately 6:00 p.m. the evening of the crime. While his hands were being treated, a Wichita police officer and a detec tive arrived. They told Norris that they wished to speak to him about how he injured his hands. A uniformed officer was also present. They waited for approximately two hours while Norris was being treated. Although they did not attempt to initiate any conversation with Norris, Norris did volunteer the information that he had been assaulted by several males and stabbed with a knife. After Norris was released, he was placed under arrest and advised of his rights pursuant to Miranda; he did not make a statement at this time. He was taken to St. Francis Medical Center for further medical attention and was then transported to the City Building.
Norris was taken into an interview room at the police station at 11:05 p.m. and handcuffed to a table. Shortly before midnight, a detective took him to the bathroom. Norris was given crackers and a soft drink. The detectives began their interrogation. They filled out a personal history sheet and again advised Norris of his Miranda rights. In the course of the interrogation, Norris made statements to the detectives about his involvement in the crime.
A pocket knife and a bracelet which were identified as belonging to Harness were found on Norris when he was taken into custody. Two bloody knives were found at the Harness house; a kitchen knife on the organ in the living room and a lock-blade knife on one of the bedroom floors. A bloody pair of pants was found in the Harness bedroom. Hair samples found on the pants were consistent with Harness’ hair. Blood samples taken at the scene were consistent with both Harness’ and Norris’ blood. Blood found on the kitchen knife was consistent with both the victim’s and Norris’ blood. The police were unable to identify any fingerprints from either of the knives.
A jury found Norris guilty of first-degree murder during the commission of a felony and of aggravated robbery.
1. THE NORRIS STATEMENTS
Prior to trial, defense counsel moved to suppress statements made by Norris to Wichita detectives on March 17 and 18, 1987. The trial court overruled the motion, except as to Norris’ remarks in the emergency room prior to the first time he received Miranda warnings.
Norris contends that all of his statements should have been suppressed for three reasons: (1) his Fifth Amendment right to counsel was violated; (2) he did not adequately understand his rights when they were recited to him; and (3) he did not voluntarily and intelligently relinquish his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966).
Right to Counsel
At the time of his arrest, Norris was represented by a court-appointed attorney in an unrelated criminal matter. The trial court took judicial notice of this unrelated action during the hearing on the motion to suppress. Norris argues that the Fifth and Sixth Amendments barred the interrogation at issue because he had already invoked his right to counsel in the other case.
In Edwards v. Arizona, 451 U.S. 477, 68 L. Ed. 2d 378, 101 S. Ct. 1880 (1981), the United States Supreme Court held that, once a criminal defendant has invoked the right to counsel during police interrogation, the police are prohibited from further interrogation until counsel has been supplied or until the defendant initiates further conversation. 451 U.S. at 484-85. As Edwards had remained in custody between the two interrogations, the court held that use of the statements made after he had requested counsel was a violation of his Fifth Amendment right to counsel. 451 U.S. at 485-87.
In Michigan v. Jackson, 475 U.S. 625, 89 L. Ed. 2d 631, 106 S. Ct. 1404 (1986), the United States Supreme Court held that, once the right to counsel has been asserted at the arraignment, the police may not conduct further interrogation without counsel present and any waiver of defendant’s right to counsel is invalid if made in response to police-initiated interrogation. 475 U.S. at 629-36. The defendants in Jackson were in continuous police custody prior to and after invoking their right to counsel at arraignment. The police were aware that counsel had been appointed. As in Edwards, the questioning both before and after the arraignment concerned the same charges.
The Supreme Court addressed the issue of interrogation of a defendant who had invoked his right to counsel upon interrogation for another unrelated criminal charge in Arizona v. Roberson, 486 U.S.__, 100 L. Ed. 2d 704, 108 S. Ct. 2093 (1988). The defendant in Roberson was arrested at the scene of a burglary. When taken into custody, he stated that he did not want to answer any questions without an attorney. He remained in custody, and three days later, another officer interrogated him about a different burglary. The officer informed Roberson of his rights and obtained an incriminating statement concerning the second burglary. The Court said: “Whether a contemplated reinterrogatiori concerns the same or a different offense, or whether the same or different law enforcement authorities are involved in the second investigation, the same need to determine whether the suspect has requested counsel exists.” 100 L. Ed. 2d at 717.
Both the State and Norris cite U.S. ex rel. Espinoza v. Fairman, 813 F.2d 117 (7th Cir. 1987). In Espinoza, the defendant was arrested and arraigned on a weapons charge. He was represented by counsel at the arraignment. After the arraignment, Espinoza remained in custody. The police interrogated him concerning a murder, after reading him the Miranda warnings. Espinoza confessed to the murder. The court held that, because the State had not yet begun to prosecute Espinoza for the murder when he confessed, his Sixth Amendment right to counsel had not attached. 813 F.2d at 120-21. The court, however, did find that the Fifth Amendment was applicable:
“We conclude that Espinoza invoked his Fifth Amendment right to counsel; that this invocation remained in effect because the custodial interrogation occurred while he remained in continuous police custody, and that because the state initiated the interrogation, Espinoza was incapable of waiving his right to counsel. We therefore conclude that the state violated Espinoza’s Fifth Amendment right to counsel and that, as a result, his confession was inadmissible.” (Emphasis added.) 813 F.2d at 122.
Edwards, Jackson, and Espinoza are all distinguishable from the case at bar by one cardinal fact. The defendant in each remained in custody between the time the right to counsel was invoked and the interrogation at issue. Here, Norris invoked his right to counsel at his arraignment on.the unrelated charge. He was released on bond and while free was arrested for the crime which is the subject of this appeal.
In United States v. Skinner, 667 F.2d 1306 (9th Cir. 1982), cert, denied 463 U.S. 1229 (1983), the defendant was brought to a police station for questioning concerning a murder investigation. After a brief interrogation, the defendant stated that he wanted to speak with an attorney. He was not yet under arrest. He left the station. The next day, he was arrested for the murder. Although he previously had been read his Miranda rights, he was again advised of his rights; nevertheless, he agreed to speak with the police and subsequently confessed to the crime. The Ninth Circuit Court of Appeals distinguished Skinner from Edwards because Skinner was not in continuous police custody. 667 F.2d at 1309. The second interrogation was not a violation of his Fifth Amendment rights.
In United States v. Geittman, 733 F.2d 1419 (10th Cir. 1984), Geittman was indicted and arraigned for conspiracy to import a controlled substance. The government taped phone conversations between Geittman and a codefendant after Geittman’s arraignment, while he was out on bond. The Tenth Circuit Court of Appeals found that the taping of the conversations did violate Geittman’s Sixth Amendment right to counsel invoked at arraignment, but did not violate his Fifth Amendment right to counsel invoked when he was taken into custody.
Although Skinner and Geittman involve factual situations different than Norris’ case, they indicate that a defendant’s Fifth Amendment right to counsel terminates when he is released from custody. Norris’ Fifth Amendment right to counsel terminated when he was released on bond for the first offense and would only vest again upon his request for counsel when he was arrested on the murder and aggravated robbery charges. At the time of the interrogation, his Sixth Amendment right to counsel as to the murder and aggravated robbery charges had not yet vested because adversarial proceedings on those charges had not yet been initiated.
Norris was properly advised of his right to counsel. A review of the transcript of his interrogation persuades us that he understood that right. He chose not to inform the detectives that he already had appointed counsel in another case.
Voluntariness of the Statement
Norris argues that he did not voluntarily waive his rights. He asserts that, at the time the Miranda warnings were given, he was: (1) in pain due to the injuries to his hands; (2) intoxicated; and (3) tired from lack of sleep. In addition, Norris claims a learning disability also affected his ability to understand the warnings.
“When a trial court conducts a full pretrial hearing on the admissibility of an extrajudicial statement by an accused, determines the statement was freely, voluntarily and knowingly given and admits the statement into evidence at the trial, the appellate court should accept that determination if it is supported by substantial competent evidence. [Citations omitted.]” State v. Brown, 235 Kan. 688, 691, 681 P.2d 1071 (1984).
The testimony indicated that Norris had consumed well over half a case of beer and some whiskey between 10:30 a.m. and 3:30 p.m. on the day of the murder. Norris testified that he arose at 7:30 that morning, did not have anything to eat the entire day, was drunk the entire day, and was drunk and in pain at the time of the interrogation.
The doctor that treated Norris at the Minor Emergency Center did not notice any odor of alcohol or any behavior that would indicate Norris was intoxicated. The doctor also said that the cuts on Norris’ hands would give him “minimal” discomfort. Both the doctor at St. Francis Medical Center and one of the detectives who took Norris into custody noticed an odor of alcohol. They did not notice any behavior indicating that Norris was intoxicated. A detective testified that Norris did not appear to be sleepy or to have any difficulty walking. One of the detectives who conducted the interrogation said that he noticed an odor of alcohol but that there was nothing unusual about Norris’ speech or mannerisms. The other detective did not notice any odor of alcohol. Norris did not appear to have any trouble responding to their questions.
The defense presented the testimony of two employees of the Wichita Counseling Center who assessed Norris’ mental abilities. Susan Alberts testified as to the results of tests she administered to Norris. Although Norris did poorly on the tests, the testimony indicated that he was not given an opportunity to answer all the questions. Robert Mead, Ph.D. evaluated Norris’ mental abilities based on the test results. Dr. Mead testified that the test results are translated into an IQ. Ninety to 100 is considered a normal range; Norris’ full scale score was 89. In Mead’s opinion, Norris has a learning disability and did not understand the Miranda rights read to him.
Although Norris experienced slight difficulty in reading the warnings out loud to the detectives, he was able to state what they meant in his own words; “I got have the right to just sit here and not say nothin’ just—you know—I can just get a lawyer or appoint a lawyer.” When listening to the tape recording of the interrogation, one is not given the impression that Norris had any difficulty understanding the questions. His speech sounded normal and clear, and was not slurred.
“The fact that an accused had been drinking and using drugs does not per se establish involuntariness.” State v. Baker, 4 Kan. App. 2d 340, 343, 606 P.2d 120 (1980). The trial court’s determination that Norris’ statement was admissible was supported by substantial competent evidence. There was overwhelming physical and eyewitness evidence connecting Norris to the crime and his trial testimony did not significantly deviate from his statements to the police after his arrest. See State v. Newfield, 229 Kan. 347, 360, 623 P.2d 1349 (1981).
Norris alleges that the detectives resorted to physical and psychological pressure by conducting the interrogation when he was tired, hungry, intoxicated, and in pain. Where a confession/statement is challenged as involuntary, the prosecution must prove by a preponderance of the evidence that the confession was voluntary. Lego v. Twomey, 404 U.S. 477, 489, 30 L. Ed. 2d 618, 92 S. Ct. 619 (1972).
Much of Norris’ argument as to the pressure used to obtain his statements is a reiteration of the argument that he was impared by pain, intoxication, fatigue, and mental disability. Norris contends that the detective’s statements about “cutting losses” were improper. The statements in question were as follows:
“Bobby told us that you were at Dean’s house today. . . . Sometimes in a split second we do something that we wish we could take back forever—but sometimes all we can do is go forward. . . . And cut our losses. What I’d like for you to do is to be ready to accept the fact it’s time to cut your losses. . . . Why don’t you tell me what happened so we can step forward and take care of this. ... I just want you to know that I’m not one of those guys that goes around and lies or bluffs people and tries to make people say stuff that they didn’t do but I am somebody that records facts and I’ve recorded a lot .of facts today. I am ready to record your facts.”
There is no indication that the detectives made any promises of leniency or other benefit if Norris confessed. There was no indication that the detectives threatened Norris in any way. They merely requested that he tell the truth. There was evidence that Norris had previously been arrested on other criminal charges, so he was not unfamiliar with Miranda warnings and the police interrogation process.
“To render such a confession involuntary it is generally held that the promise must concern action to be taken by a public official, that the promised action must be such as would likely cause the accused to make a false statement to obtain the benefits of the promise and the promise must be made by a person whom the accused reasonably believed to have the power or authority to execute the same.” State v. Kanive, 221 Kan. 34, 37, 558 P.2d 1075 (1976).
Norris’ argument that he was overcome by physical and psychological pressure is not persuasive.
A defendant’s Fifth Amendment right to counsel, which attached upon custodial interrogation for an earlier offense, terminates upon defendant’s release from custody for that offense. When defendant has not remained in continuous police custody, and interrogation begins concerning a later unrelated offense, the right to counsel will only vest again upon request by defendant.
It was not error to admit into evidence the statements Norris made to the Wichita police detectives.
2. THE JURY INSTRUCTIONS
Norris objects to three of the jury instructions given by the trial court. He also objects to the omission of one jury instruction which was requested by defense counsel.
PIK Grim. 2d 52.09 is an instruction on the credibility of witnesses. The instruction is 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 “Notes on Use” following the instruction recommend that this instruction should be given in every criminal case.
During Norris’ trial, the jury was instructed as follows:
“It is for you to determine the weight and credit to be given the testimony of each witness. You may take into account each witnesses [sic] ability and opportunity to observe and know the things about which they have testified, their memory, manner and conduct while testifying, any interest they may have in the result of this trial, and the reasonableness of their testimony considered in the light of all the evidence in this case. You have a right to use that knowledge and experience in regard to the matter about which a witness has testified, and you may, of course, utilize your common sense.” (Emphasis added.)
Defense counsel objected particularly to the statement about the witnesses’ interest in the trial. At trial, Norris claimed the instruction improperly focused attention on his testimony. On appeal, Norris argues that the instruction focused too much attention on the testimony of Bobby Grimes and Anna Harness. Norris did not object to the instruction at trial on the specific ground he raises in this appeal.
In State v. Willis, 240 Kan. 580, 586, 731 P.2d 287 (1987), the trial court gave an expanded version of PIK Grim. 2d 52.09, which was similar to the one given in this case. The defendant in Willis had not objected to the instruction at trial; consequently, the standard of review on appeal was whether the instruction was clearly erroneous. 240 Kan. at 587. We held that, although PIK Crim. 2d 52.09 was preferable, the instruction given was not clearly erroneous.. 240 Kan. at 587. “[T]he fact defendant objected to the giving of a[n] . . . instruction does not, of itself, preclude the giving of such an instruction when proper.” 240 Kan. at 583. The defense theory was that Bobby Grimes, not Norris, stabbed and killed Harness. Therefore, it was important to the defense that the jury understand that Grimes had an interest in seeing Norris convicted.
Norris objected to instructions No. 8 and No. 9 because, in his view, they shifted the burden of proof. The Due Process Clause of the United States Constitution requires that the State carry the burden of proof in criminal cases. An accused may only be convicted on proof beyond a reasonable doubt. In re Winship, 397 U.S. 358, 363-64, 25 L. Ed. 2d 368, 90 S. Ct. 1068 (1970).
Instruction No. 8 stated:
“The element of malice may be inferred from the fact of a killing effected by a deadly weapon.”
Norris argues that instruction No. 8 was improper because it created a presumption that shifts the burden of proof to the defendant. Malice is an essential element of first-degree murder. Norris’ theory of defense was that, although he committed robbery and battery, he did not stab the victim. An absence of malice was not part of his defense. In previous cases we have stated that malice may be inferred by the fact that a homicide was committed with a deadly weapon. See State v. Shultz, 225 Kan. 135, 140, 587 P.2d 901 (1978) (sledgehammer); State v. Stafford, 223 Kan. 62, 65, 573 P.2d 970 (1977) (gun); State v. Ritchey, 223 Kan. 99, 101, 573 P.2d 973 (1977) (pool cue).
Norris’ arguments regarding instruction No. 8 are without merit. The court merely instructed the jurors that they may infer malice, not that a presumption of malice was created by the use of a deadly weapon.
However, we recently observed in State v. Beebe, 244 Kan. 48, 766 P.2d 158 (1988):
“In recent years, we have observed a growing trend toward the simplification of instructions in criminal cases and the elimination of many instructions which emphasize particular portions of the evidence. Although we do not consider the instruction on malice to, constitute reversible error herein, we discourage the giving of this type of instruction. The use of a deadly weapon is one of the evidentiary facts from which the jury could infer malice, but we conclude it is the better practice not to give a separate instruction thereon.”
The jury was fully instructed on the burden of proof by instruction No. 12. The jury was told that the defendant must be found not guilty if the State failed to prove any of the elements of the offense beyond a reasonable doubt.
Instruction No. 9 was PIK Crim. 2d 54.01. A finding that instruction No. 9 was error would require us to overrule State v. Ransom, 239 Kan. 594, 722 P.2d 540 (1986). Instruction No. 9, PIK Crim. 2d 54.01, was recently endorsed in Beebe, 244 Kan. at 58. Norris fails to advance a compelling reason to overrule Ransom.
Defense counsel requested the following instruction:
“If you find from the evidence that the defendant committed the offense of aggravated robbery, but can not conclude beyond a reasonable doubt that the defendant stabbed Geraldean Harness, intended he be stabbed, or believed that he might be stabbed by another person or persons, then you should find him not guilty of the offense of murder.”
The general rule on jury instructions is that the trial court must instruct on the law applicable to all theories of the parties that are supported by the evidence. State v. Davis, 236 Kan. 538, 542, 694 P.2d 418 (1985). “However, evidence merely tending to refute or deny one of the elements of the crime does not necessarily constitute an affirmative defense entitled to separate instruction.” 236 Kan. at 542. The defense theory in this case was that Bobby Grimes stabbed Harness.
The jury was instructed on the elements of premeditated first-degree murder, felony first-degree murder, second-degree murder, and voluntary manslaughter. An element of each of these crimes is that the defendant killed the victim. Norris’ theory of defense tended to refute the contention that he had done the killing.
The trial court refused to give the instruction because it was “completely argument.” Instructions should be general in nature and should not be argumentative or overemphasize one particular part of the case. State v. Rambo, 10 Kan. App. 2d 418, 425-26, 699 P.2d 542, rev. denied 237 Kan. 888 (1985). The trial court did not err in refusing to give the requested instruction.
3. THE VICTIM’S PSYCHIATRIC RECORDS
Norris claims it was error for the trial court to refuse his counsel access to psychiatric records of the victim. Defense counsel requested permission of the court to review the records for exculpatory material regarding the relationship between Grimes and Harness. An employee of the hospital where Harness received psychiatric care brought the records to the courtroom. The court reviewed the reports in camera and determined that Harness’ psychiatric care arose out of marital conflicts with his wife. There was no mention of threat from Grimes or conflict with Grimes in the report.
The record on appeal neither includes the psychiatric reports nor contains any indication that Norris requested the reports be included in the record on appeal. “An appellant has the burden of furnishing a record which affirmatively shows that prejudicial error occurred in the trial court. In the absence of such a record, we presume that the action of the trial court was proper.)” State v. Bright, 229 Kan. 185, Syl. ¶ 6, 623 P.2d 917 (1981).
4. EVIDENCE AS TO COMPARISON AND
IDENTIFICATION OF SHOE PRINTS
Defense counsel objected to the testimony of Detective Gary Miller on the basis that: (1) shoe print identification has not been established as having scientific validity; and (2) Detective Miller was not qualified as an expert in the area.
In State v. Jackson, 220 Kan. 675, 677-78, 556 P.2d 885 (1976), we permitted footprint identification testimony by a lay person and indicated that expert testimony is not required for footprint testimony. Kansas has long recognized that lay testimony of the description and measurement of tracks at the scene of the crime which correspond with shoes worn by a defendant may be introduced into evidence. State v. Adams, 85 Kan. 435, Syl. ¶ 2, 116 Pac. 608 (1911); State v. Christon, 3 Kan. App. 2d 372, 374, 595 P.2d 356 (1979). Such testimony is allowed as long as the conclusions are based on measurements or peculiarities of the tracks. Jackson, 220 Kan. at 678.
Miller testified in detail concerning his procedure in comparing the prints found at the scene with the shoes of both Norris and Grimes. He explained that shoes have both general or family characteristics and individual characteristics. The general and individual characteristics of Norris’ shoes matched the bloody footprints found in the victim’s living room.
Norris did not deny being in the victim’s living room on the day of the crime. The evidence indicated that his hands were bleeding profusely. Therefore, it is no surprise that the bloody footprints found in the victim’s living room matched the shoes worn by Norris on that day.
5, THE PROSECUTOR’S REMARKS DURING CLOSING ARGUMENT
The defense theory focused on the relationship between Bobby Grimes and the victim (indicating that Grimes had a motive for killing Harness) and the inconsistencies in Grimes’ testimony. In her closing argument, the prosecutor downplayed the defense theory. She discussed the relationship between Grimes and Harness, stating: “There’s some innuendoes by the witnesses, and I submit to you by defense counsel, that there was something more than this. I think that all of this evidence about whatever their relationship was, as if that makes a lot of difference, cheapens and minimized . . . .” Defense counsel interrupted with an objection. The trial court advised the jury to disregard any statements that were not evidence. The prosecutor went on to tell the jury that innuendoes of a homosexual relationship cheapened the victim’s actions and intentions and drew attention away from Norris’ actions. No further objections were made by defense counsel.
In State v. Thompson, 221 Kan. 176, 183, 558 P.2d 93 (1976), this court said: “We have stated we will not require the granting of a new trial in the absence of a showing that the objectionable statements by the prosecutor were injurious to the defendant and likely to affect the jurors to his prejudice.”
In State v. Robinson, 219 Kan. 218, 221, 547 P.2d 335 (1976), we commented: “The prosecutor is entitled to considerable latitude in arguing the case to a jury. [Citation omitted.] There is no prejudicial error where the questionable statements of a prosecuting attorney are provoked and made in response to previous arguments or statements of defense counsel.”
Here, defense counsel commented in detail on the relationship between Grimes and the victim in his closing argument. He also elicited testimony concerning the relationship between the two men. The statements by the prosecutor were in response to testimony presented by the defense which indicated that there may have been a homosexual relationship between Grimes and the victim. The defense theory was that Bobby Grimes, not Norris, stabbed the victim. There was overwhelming physical evidence connecting Norris to the murder. The prosecutor’s remarks during closing argument were not improper.
Affirmed. | [
48,
-20,
-7,
-66,
9,
-32,
42,
24,
112,
-127,
-80,
-13,
-83,
-53,
9,
105,
-8,
-99,
84,
105,
87,
-73,
21,
97,
-86,
-13,
122,
-43,
-77,
-50,
-10,
-42,
9,
96,
10,
93,
-26,
74,
69,
92,
-118,
5,
-88,
-12,
-30,
16,
52,
123,
-124,
15,
49,
29,
-13,
106,
20,
-54,
104,
41,
90,
-68,
80,
-71,
78,
-97,
-51,
16,
-93,
-94,
-102,
-91,
122,
46,
-39,
57,
0,
-8,
115,
-122,
-122,
116,
109,
-120,
12,
-26,
99,
48,
93,
-18,
120,
-119,
47,
126,
-107,
-89,
-104,
73,
65,
5,
-74,
-65,
106,
116,
15,
84,
-25,
92,
-39,
-20,
-115,
-33,
-44,
-109,
-51,
56,
18,
-70,
-53,
37,
0,
97,
-51,
-94,
93,
85,
88,
-45,
31,
-106
]
|
On December 2, 1985, the eight sitting United States District Court Judges for the District of Kansas filed with the Disciplinary Administrator of this Court a complaint against Fred W. Phelps, Jr. alleging serious violations of the Code of Professional Responsibility and the Respondent’s oath as an attorney. Said complaint was also lodged in the United States District Court for the District of Kansas as Case No. 85-2632.
The Disciplinary Administrator subsequently put this complaint on “hold” pending the resolution of the ethical complaints within the Federal Court System. On February 6, 1989, a Consent Order was filed in Civil Action No. 85-2632 which reads as follows:
“This disciplinary action comes before the Panel for a settlement hearing on February 3, 1989. Present before the Panel, consisting of United States Circuit Court Judges Monroe G. McKay, Stephanie K. Seymour, and Stephen H. Anderson, are the following: Margie Jean Phelps, pro se and as counsel for all Respondents; all Respondents except Fred W. Phelps, Sr.; Michael J. Davis, Emil A. Tonkovich, and Stanley D. Davis, investigative counsel.
I. Background of the Action
“On December 16, 1985, a disciplinary complaint was filed against the seven Respondents by all active and senior United States District Judges for the District of Kansas. On January 10, 1986, this Panel was specially constituted and appointed to hear this complaint by Chief Circuit Court Judge William J. Holloway, Jr. On March 18, 1987, the Panel appointed investigative counsel. On May 4,1987, the Panel entered an Order placing the file in this investigation under seal.
“On October 19, 1988, investigative counsel presented their Report to the Panel recommending a Show Cause Order issue against all séven Respondents based upon findings that there was probable cause to believe that clear and convincing evidence existed to prove violations of Canons 1, 5, 7, and 8 of the Code of Professional Responsibility. The Report also found that Respondents Fred W. Phelps, Sr.; Margie Jean Phelps; and Fred W. Phelps, Jr. should bear particular responsibility for the most serious violations of these Canons.
“At Respondents’ suggestion, investigative counsel in case number 85-2632 requested permission from the Panel to attempt to conclude that matter prior to the issuance of a Show Cause Order. Case number 88-2206-M, a disciplinary complaint brought by Ronald M. Davis upon which an Order to Show Cause had previously issued, was also brought within the ambit of that effort. Respondents were personally briefed by investigative counsel on their findings and recommendations. Under the guidance of the Panel, Respondents and investigative counsel mutually agreed that this action should be concluded by this Consent Order in lieu of the issuance of an Order to Show Cause and subsequent litigation.
II. Summary of Certain Findings of Investigative Counsel
“A principal component of the complaint in 85-2632 was the charge that Respondents had made false accusations against the federal judiciary. Respondents had publicly accused United States District Judge Earl E. O’Connor of racial prejudice, religious prejudice, and conspiracy to violate the civil rights of respondents and others. Respondents had also publicly accused United States District Judge Richard Rogers of racial prejudice, dislike of civil rights cases, engaging in a racially-motivated vendetta against respondents, and engaging in a conspiracy with Judge O’Connor. Finally, Respondents had made charges against the federal court system, claiming, inter alia, that Blacks and minorities felt they could not get a fair trial in federal court in Kansas.
“Investigative counsel found Respondents’ charges against the federal judiciary to be false. Investigative counsel found no evidence that any member of the federal judiciary in Kansas had exercised judicial authority in any way based on motives arising from racial or religious prejudice, from bias against minorities, or from collusion or prejudice against Respondents.
III. Sanctions by Consent
“The Panel hereby approves the following sanctions agreed to by Respondents:
“1. Effective this date, Fred W. Phelps, Sr., voluntarily and permanently relinquishes his license to practice law in this court.
“2. Margie Jean Phelps shall be suspended from practice in this court for a period of one year. This suspension shall begin on March 15, 1989 and run until March 15, 1990.
“3. Fred W. Phelps, Jr., shall be suspended from practice in this court for a period of six months. This suspension shall begin on March 15, 1989 and run until September 15, 1989.
“4. Margie Jean Phelps and Fred W. Phelps, Jr., shall be readmitted to federal practice at the conclusion of their respective suspension periods upon their filing with this Panel a Certificate of Compliance with the terms of this Consent Order.
“5. The costs to date of these actions is assessed against Respondents.
IV. Other Matters
“1. This Consent Order shall be a matter of public record.
“2. The file in this action, No. 85-2632, shall otherwise remain sealed and be opened only upon Order of this Panel.
“The Panel concludes that the sanctions accepted by Respondents form a fair and final resolution of all charges pending in Case No. 88-2206-M and Case No. 85-2632.
“It is so Ordered.”
Subsequent to the issuance of the above Consent Order Respondent Fred W. Phelps, Jr. approached this court for resolution of the ethical complaints contained in the Disciplinary Administrator’s file numbered W3716. Respondent Fred W. Phelps, Jr. voluntarily accepts this order and findings hereinafter set out as a correct and final resolution of the ethical complaints pending against him in file W3716 and waives any and all further substantive or procedural rights arising out of these complaints which he may be entitled to by law or under the rules of this Court.
This Court finds that Respondent Fred W. Phelps, Jr. made false allegations against both individual judges of the federal judiciary and the federal court system and that such conduct violates DR 8-102(B) (1988 Kan. Ct. R. Annot. 178) and DR 1-102(A)(1), (4), (5) and (6) (1988 Kan. Ct. R. Annot. 143) of the Code of Professional Responsibility and the Respondent’s oath as an attorney.
The Court further finds that it should impose the same sane Rons as were ordered by the United States District Court in Civil Action No. 85-2632.
Dated this 14th day of April, 1989.
It is Therefore Ordered, Adjudged, and Decreed that Respondent Fred W. Phelps, Jr. be and he is hereby suspended from the practice of the law in the State of Kansas for six (6) months from this date, and that he pay the costs herein. At the end of six months Respondent Fred W. Phelps, Jr. will be reinstated upon furnishing proof of compliance with Rule 218 (1988 Kan. Ct. R. Annot. 134) to the Clerk of the Appellate Courts.
It is Further Ordered that this Order of Suspension be published in the official Kansas Reports.
For the Court
/s/Robert H. Miller
Robert H. Miller
Chief Justice of the Kansas Supreme Court
Approved by:
/s/Fred W. Phelps, Jr.
Fred W. Phelps, Jr.
Respondent
/s/Margie J. Phelps
Margie J. Phelps
Counsel for Respondent
/s/Bruce E. Miller
Bruce E. Miller
Disciplinary Administrator | [
-80,
-18,
-19,
77,
8,
99,
56,
-86,
87,
-29,
119,
83,
-19,
-29,
-124,
126,
-47,
61,
-111,
107,
-61,
-74,
91,
-63,
-10,
-73,
-8,
-41,
-79,
125,
-12,
-65,
88,
-112,
-126,
-59,
-58,
-126,
-45,
84,
-122,
19,
-39,
-32,
-39,
-128,
48,
115,
-109,
15,
1,
46,
-77,
42,
57,
99,
109,
110,
-6,
-17,
64,
-111,
-67,
29,
124,
18,
-95,
-93,
30,
5,
-48,
111,
-40,
56,
33,
-7,
-125,
-78,
-102,
117,
67,
-87,
0,
102,
98,
35,
-51,
-87,
-68,
-120,
47,
59,
-116,
38,
-103,
65,
65,
-127,
-74,
-99,
116,
-42,
39,
120,
103,
-51,
95,
-20,
-61,
-113,
-106,
-111,
14,
119,
-50,
-102,
-21,
-125,
16,
117,
-40,
-26,
92,
83,
58,
31,
-114,
-91
]
|
The opinion of the court was delivered by
Herd, J.:
Ronald E. Switzer appeals his jury convictions of one count of rape and two counts of aggravated criminal sodomy. He was sentenced to fifteen years to life imprisonment for each count, to run concurrently.
Switzer contends his convictions should be reversed because there was not sufficient evidence at trial to convince a rational factfinder of his guilt beyond a reasonable doubt. Under the Due Process clause of the 14th Amendment, no person may be convicted of a crime unless every fact necessary to establish the crime with which he is charged is proven beyond a reasonable doubt. In re Winship, 397 U.S. 358, 368, 25 L. Ed. 2d 368, 90 S. Ct. 1068 (1970).
In State v. Voiles, 226 Kan. 469, 601 P.2d 1121 (1979), we adopted the scope of appellate review set forth in Jackson v. Virginia, 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781, reh. denied 444 U.S. 890 (1979). Under this scope of review, we are required to review all the evidence in the light most favorable to the prosecution in order to determine whether a rational fact-finder could have found the defendant guilty beyond a reasonable doubt.
The facts are as follows. The victim was attacked as she was returning to her apartment at approximately 8:00 p.m. on November 18, 1986. Her assailant put his hand over her mouth and pushed her into a back bedroom. The assailant struck the victim and forced her to perform oral sex. He raped her, rolled her over and inserted his fingers into her vagina and anus, raped her a second time, and again forced her to have oral sex with him. The victim estimated the entire ordeal lasted about an hour. The room was not directly lit, but she could see the man because lights were on in the living room and another bedroom. She saw his face at least half the time he was there. The assailant told her that because she could identify him he would come back and kill her if she told anyone what had happened.
After the assailant left, the victim lay huddled on her bed for at least an hour in fear her attacker was still in the house and would kill her if she took any action. When her fears subsided, she attempted to contact her boyfriend, a police officer. At first she could not reach him so she called a friend, who arrived at approximately 10:45 p.m. Her boyfriend arrived about 20 minutes later and called the police station.
The victim was examined at a hospital, where she gave a statement to the police. She gave a more complete statement later when she assisted in making a composite picture of the rapist. She described hjm to the police as a man in his mid-to-upper 30’s, 6 feet tall, weighing approximately 220 pounds with a potbelly and heavy jowls. She said he had dark hair, a mustache, and a hairy chest. He did not wear glasses. She described his voice as calm and commanding. She said the man had a very offensive body odor, as of one who did not bathe often, which she noticed as soon as he came up behind her and put a hand over her mouth. She thought he must have been wearing slip-on shoes, because he was able to get out of them quickly. Although of normal hearing, she did not hear his approach at all. She looked at photographs of possible suspects, but found no one who resembled the assailant.
Nearly four months went by with no arrests. Then, on March 10, Ronald Switzer was seen by the victim at an Alcoholics Anonymous (AA) meeting in Silver Lake. Switzer had previously attended AA meetings elsewhere. This was the first time he had attended such a meeting in Silver Lake. Switzer sat down next to the victim, who became positive he was her assailant. She spent 30 minutes frozen to. her chair trying to discover a feature or characteristic of Switzer which would prove her wrong. Switzer wore glasses, did not have a mustache, and had shorter hair. Other than that, she testified he matched her memory of the assailant in every way. She left the meeting and called her boyfriend, who advised her to get Switzer’s license tag number from his car when he left, which she did. Upon returning to the meeting, she asked Switzer his telephone number, saying she needed to reach him if the place for the meetings had to be changed. Switzer gave her his correct number, and from this and his license tag, his full identity was discovered.
After the meeting, the victim moved to a different apartment because her fears were renewed by having seen her alleged assailant again. At the victim’s next AA meeting, Switzer was again present. The victim became so frightened she went into the bathroom and was physically ill. She testified that, later in the meeting, Switzer made a general comment that he worked for the postal service and could find anybody’s address information.
Switzer testified he only mentioned he worked for the postal service and denied stating he had access to change of address information. He testified he used to attend AA meetings years ago, and began attending again on his counselor’s advice because of the difficulties he was experiencing with his marriage. He explained he attended the meetings at Silver Lake because he lived there.
On Saturday morning, March 28, at approximately 10:00 a.m., the victim found a cassette in her mailbox. The cassette had not been mailed—it was not in an envelope or container of any sort. The cassette contained only one song, the words to which were, “[Sjomeone is watching you and he’s going to get you, and you can’t escape the voice.” The victim testified at the preliminary hearing she was certain she had checked her mail at noon on Friday. Thus, the tape would have had to have been deposited in her mailbox between noon Friday and 10:00 a.m. Saturday.
Michelle Gomez, a friend of Switzer’s, testified she and Switzer met at 9:00 a.m. on Friday, March 27, and drove to Lincoln, Nebraska, to attend a cat show. They did not return until Monday due to snowy roads. Glenn Floerke of Lincoln testified he and his wife spent Friday evening with Switzer and Gomez until after midnight. Gomez testified it would not have been possible for Switzer to return to Topeka before Monday without her knowledge. She and Switzer were not apart for any significant amount of time and they had traveled to Lincoln in her car, to which she kept the keys. This scenario, coupled with the times established by the victim, would eliminate Switzer from blame for the tape and inferentially from being the rapist.
At trial, the victim changed her testimony from that at the preliminary hearing and said she could not remember whether she had checked the mail on Friday. This would allow for the possibility that Switzer put the tape in her mailbox before he left for Lincoln with Gomez.
Two weeks after the preliminary hearing, at which she identified Switzer as her assailant, the victim found the words “Your [sic] Dead” painted on her door.
The evidence against Switzer at trial was as follows: The victim testified she was certain of her identification. She said she recognized Switzer by his height, weight, potbelly, heavy jowls; his hair color, texture, and hairline; and his voice in terms of calmness, volume, pitch, and timbre. Male chest hair and animal hair were found in the bedroom; the victim kept no pets. Switzer had hair on his chest and spent a lot of time at the home of Gomez, who kept nine cats. The victim’s address was among those for which Switzer was responsible as a letter sorter at the postal service.
There was evidence, on the other hand, in Switzer’s favor: Hair and seminal fluid analysis provided no evidence Switzer was the assailant. He had never before been accused of any sort of crime. Switzer testified he did not commit the crimes for which he was charged, or the harassing acts which followed. He testified he was with his estranged wife, Carol Switzer, on the night of November 18 until 9:30, when he went to work. He began work that night at 10:05 p.m. Switzer testified he had worn glasses since he was five years old and was never without them. He said he had never worn contact lenses. He testified he always wore cowboy boots which he could not remove while standing up. He said he had tried jogging shoes once or twice but did not like the way they felt. He said he had been told “more times than I can count” that he had a noisy, shuffling gait. He testified personal hygiene was important to him, and that he bathed once or twice a day.
Carol Switzer testified she specifically remembered having dinner at Hunam’s Restaurant with Switzer the night of November 18 because they were celebrating her birthday. She testified Switzer did not leave for work until 9:30 p.m. She testified he did not have an offensive odor and was, as always, wearing his glasses.
Switzer’s optometrist testified Switzer’s vision required him to wear eyeglasses, and he had no knowledge that Switzer had ever worn contacts. Several people, including Switzer’s former coworkers and his stepdaughters, testified Switzer did not have offensive body odor.
Former co-workers testified they could always tell when Switzer was approaching because he shuffled his boots when he walked. They also testified Switzer would not have access to change of address information. They further testified letter sorters handle 50 letters per minute. The letter stops for an instant in front of the sorter via an arm on the sorting machine. In that instant the sorter must read the address and key the letter to the correct carrier before the letter disappears into another section of the machine outside the sorter’s area. It would thus be difficult to recognize and memorize a specific address.
Switzer himself, however, said that although he did not have access to change of address information, if someone in his area had moved but was still within his zone, he could recognize that fact by the yellow change-of-address sticker on the envelope. There was also evidence the employees sometimes hand-sorted mail, at which time they could pause to note a new address if it happened to come through and they were interested.
The court denied Switzer’s post-conviction motion for a new trial where he claimed insufficient evidence to support his convictions.
Switzer argues the prosecution’s evidence was insufficient because it primarily consisted of the victim’s eyewitness identification. In State v. Warren, 230 Kan. 385, 389, 635 P.2d 1236 (1981), we acknowledged that “the unreliability of eyewitness identification and the conviction of innocent people as a result thereof has been a matter of concern for the judiciary.” Switzer cites some of the sources used in our discussion in Warren, in which we held refusal to accept expert testimony on the unreliability of eyewitness identification is within the trial court’s discretion, but a cautionary instruction may be required where eyewitness identification is critical and there is a serious question as to the identification.
The hazards of eyewitness identification of a stranger have been recognized by the United States Supreme Court. See United States v. Wade, 388 U.S. 218, 228, 18 L. Ed. 2d 1149, 87 S. Ct. 1926 (1967). Fishman and Loftus, in their article, Expert Psychological Testimony on Eyewitness Identification, 4 Law & Psychology Rev. 87, 92 (1978), state that extreme stress decreases the reliability of eyewitness testimony.
Fishman and Loftus also find that, once a person has committed himself or herself to a description, the person is likely to adhere to it, and the more often he or she repeats it, the less likely he or she is to doubt it. 4 Law & Psychology Rev. at 92. The degree of certainty demonstrated by a witness has been statistically shown to have no correlation with the accuracy of the identification. See studies cited in People v. McDonald, 37 Cal. 3d 351, 369, 208 Cal. Rptr. 236, 690 P.2d 709 (1984). In contradiction, Warren, 230 Kan. at 390, suggests certainty as one of five factors to be considered in testing reliability of eyewitness identification.
Switzer argues the victim’s memory of her attacker was distorted by the horrible conditions under which she saw the attacker in the unlit room. He also argues the lapse of time between the crime and the victim’s identification of him as her attacker also militates against accuracy. See the fifth factor in Warren, 230 Kan. at 390. He theorizes that when the victim saw someone who resembled her memory of the assailant she became so frightened that her very fear convinced her of the accuracy of her identification. This fear led her to believe Switzer was directing a threat to her when he mentioned at an AA meeting that he worked for the postal service.
While acknowledging that caution is required in considering a case in which a conviction is supported primarily by eyewitness testimony, we note that the jury was instructed as to six factors affecting reliability of eyewitness testimony and was also instructed it could consider any other circumstances it found may have affected the accuracy of the identification. Viewing all the evidence in the light most favorable to the prosecution, we find the evidence, though strongly controverted, is such that a rational factfinder could find Switzer guilty beyond a reasonable doubt.
The final issue is whether one count of Switzer’s convictions for aggravated criminal sodomy must be reversed because the evidence does not support count two of the complaint.
Count two of the complaint filed against Switzer alleged he “unlawfully, feloniously and willfully engagefd] in anal copulation” with the victim while she was overcome by force or fear. The evidence was that Switzer had inserted his fingers into the victim’s anus. Switzer charges this evidence is insufficient to prove he forcefully engaged the victim in anal copulation.
Sodomy is defined in K.S:A. 21-3501(2) as “oral or anal copulation; oral or anal copulation or sexual intercourse between a person and an animal; or any penetration of the anal opening by any body part or object.” (Emphasis supplied.)
The prosecution had the option of charging the commission of sodomy in three different ways to conform to the evidence. See State v. Saylor, 228 Kan. 498, 503, 618 P.2d 1166 (1980). The State failed to amend its complaint to conform, leaving only an allegation of “anal copulation” where the evidence showed Switzer penetrated the victim’s anus with his fingers.
We first consider the prosecution’s argument that Switzer’s penetration of the victim’s anus with his fingers can be construed to be “anal copulation,” as alleged in the complaint. The State is incorrect in its argument that there is no substantive difference between the first and third phrases of K.S.A. 21-3501(2). The first phrase prohibits nonconsensual penetration by the male sex organ into a mouth or anus. The third phrase prohibits nonconsensual penetration of the anus by any object or body part other than the male sex organ. •
In construing a statute, effect must be given, if possible, to every part of the statute. State v. Adee, 241 Kan. 825, 829, 740 P.2d 611 (1987). Where a criminal statute is questioned, we are required to strictly construe the statute in favor of the accused. State v. Magness, 240 Kan. 719, 721, 732 P.2d 747 (1987). We thus hold the evidence does not support the complaint as originally drawn.
We must therefore consider whether the complaint was validly amended. Toward the end of trial, the prosecutor moved the court to amend count two, saying:
“I note that oral or anal copulation is set off in the alternative by an ‘or/ with the section,'. . . or any penetration of the anal opening by any body part . . . .’In a sense, it is set out in the alternative.
“I would like to amend the language to read ‘That on or about the 18th day of November, 1986, in the County of Shawnee, State of Kansas, Ronald E. Switzer did then and there, unlawfully, feloniously, and willfully, penetrate the anal opening of [name withheld] by a body part; to-wit: a finger, when the person did not consent and when [name withheld] was overcome by force or fear.
“I think the Court’s instruction, as it’s proposed, does very accurately reflect exactly the nature of the testimony that’s been adduced at trial, and I think that amendment would bring the charging document into very strict conformity with exactly the evidence that’s been adduced.”
The prosecutor was granted leave to amend the complaint. Defense counsel did not object, but requested the oral amendment be reduced to written form.
Where leave is granted by the court for the prosecution to amend a complaint, the prosecution has the duty to memorialize the amendment by filing an amended complaint, by interlineation upon the original document, or by journal entry stating the amendment to the complaint. State v. Rasch, 243 Kan. 495, 501, 758 P.2d 214 (1988). In State v. Nunn, 244 Kan. 207, Syl. ¶ 18, 768 P.2d 268 (1989), we held that, where an oral motion to amend is sustained on the record before the verdict is rendered, the amendment is effective, absent prejudice to the defendant, even where the prosecution does not memorialize the amendment by journal entry until after trial.
In the case at bar, we have a situation similar to that in Nunn, except here the prosecution failed to amend in writing the complaint after leave to do so was granted, even by journal entry filed after the verdict. Thus, the issue is whether the omission invalidates the verdict. We hold it does not. Switzer has not been prejudiced by the prosecution’s failure to properly memorialize the amendment. He had notice of the amendment having been made on the record. See State v. Dodd, 11 Kan. App. 2d 513, 515, 728 P.2d 402 (1986). The omission is thus not reversible error, although this finding does not excuse the prosecution from fulfilling its duty of memorializing the amendment.
The judgment is affirmed. The State is ordered to amend the journal entry nunc pro tunc showing the corrected complaint. | [
-112,
-30,
-51,
-66,
9,
96,
42,
-4,
-30,
-93,
-77,
115,
47,
-30,
4,
127,
-74,
127,
85,
97,
-45,
-89,
39,
97,
-78,
123,
-13,
-44,
-77,
-50,
-28,
-4,
4,
112,
66,
-15,
34,
-54,
-63,
92,
-122,
-121,
-72,
-23,
-110,
-46,
32,
58,
64,
11,
49,
-99,
-29,
40,
22,
-61,
73,
40,
75,
-67,
74,
-71,
-38,
7,
-53,
52,
-77,
-126,
60,
2,
-16,
52,
-100,
49,
0,
-24,
123,
-106,
-128,
117,
109,
-103,
36,
96,
99,
4,
13,
109,
-88,
-127,
-81,
110,
-84,
-89,
24,
33,
73,
109,
-65,
-97,
102,
117,
45,
-24,
-21,
-36,
93,
108,
34,
-33,
-106,
-79,
-55,
120,
18,
-16,
-29,
35,
16,
113,
-49,
-16,
76,
85,
123,
-33,
-98,
-74
]
|
The opinion of the court was delivered by
McFarland, J.:
This is an appeal by the garnishee, Metropolitan Property and Liability Insurance Company (Metropolitan), from a summary judgment entered in favor of plaintiff-garnishor Michael Allen Heinson in the amount of $500,000. Liability arises from a $100,000 homeowner’s policy issued by Metropolitan to defendant Patti Porter.
The facts underlying this litigation are presented as a confusing maze of narrow passages, twisting streets, and cul-de-sacs. However, once a thoroughfare has been established, resolution of the issues presents no great difficulty. Although numerous issues are designated by Metropolitan, they may be categorized as challenges to the propriety of the trial court’s award to the plaintiff-garnishor of: (1) the $100,000 limits of the homeowner’s policy; (2) the $400,000 difference between the policy limits and the $500,000 judgment the plaintiff-garnishor obtained against defendant-insured Porter; and (3) “pre-garnishment” interest.
THE $100,000 POLICY LIMITS
The trial court based its award of the policy limits on: (1) construing the policy in favor of the insured where provisions thereof are capable of more than one construction; and (2) estoppel by Metropolitan to deny coverage as a result of its conduct toward its insured.
The pertinent policy provisions are as follows:
“COVERAGE F—PERSONAL LIABILITY
“Metropolitan will pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as damages because of bodily injury sustained by other persons or property damage, to which this insurance applies, caused by an occurrence. Metropolitan shall have the right and duty, at its own expense, to defend with attorneys selected by and compensated by Metropolitan, any suit against the Insured seeking damages on account of such bodily injury or property damage even if any of the allegations of the suit are groundless, false or fraudulent. Metropolitan may make such investigation and settlement of any claim or suit as it deems expedient. METROPOLITAN SHALL NOT BE OBLIGATED TO PAY ANY CLAIM OR JUDGMENT OR TO DEFEND ANY SUIT AFTER THE APPLICABLE LIMIT OF METROPOLITAN’S LIABILITY HAS BEEN EXHAUSTED BY PAYMENT OF JUDGMENTS OR SETTLEMENTS.
“EXCLUSIONS APPLICABLE TO SECTION II
“METROPOLITAN DOES NOT INSURE:
1. UNDER COVERAGE F—PERSONAL LIABILITY AND COVERAGE G— MEDICAL PAYMENTS TO OTHERS:
d. BODILY INJURY OR PROPERTY DAMAGE ARISING OUT OF BUSINESS PURSUITS OF ANY INSURED EXCEPT ACTIVITIES THEREIN WHICH ARE ORDINARILY INCIDENT TO NON-BUSINESS PURSUITS
There was evidence before the court that defendant Mrs. Porter advised the Metropolitan agent at the time she was seeking to purchase the homeowner’s policy that she was operating a children’s day care business in her home and wanted to know if she needed to purchase additional insurance to cover this activity. The agent advised her she would have such coverage in the homeowner’s policy. Enough information was contained in the application relative to the day care business that one of Metropolitan’s regional representatives telephoned Mrs. Porter prior to issuance of the policy to learn the full particulars of the business. Mrs. Porter answered all questions truthfully and, despite some doubts about issuing the policy, Metropolitan did issue the policy.
On October 8, 1979, plaintiff, who was age 10 months and one of Mrs. Porter’s day care charges, fell from ahighchair during his regular stay in her home and received serious head injuries. As a result thereof, plaintiff suffered permanent impairment of his gross and fine motor and cognitive skills, which requires ongoing occupational, physical, and speech therapy.
Mrs. Porter reported the incident to Metropolitan. On June 29, 1982, thirty-two months later, plaintiff brought suit against Mrs. Porter, alleging her negligence had caused plaintiffs injuries. Mrs. Porter notified Metropolitan of the lawsuit on August 13, 1982. Metropolitan then commenced a line of action involving many changes of position. This may be summarized as follows:
August 17, 1982—Reservations of rights letter denying coverage based upon: (1) late notice; (2) business pursuits exclusion; and (3) liability assumed by contract.
Early September 1982—Coverage reviewed and determination made loss was covered. This determination was made based upon inaccurate information in Metropolitan’s computer as to coverage purchased. Reservation of rights letter was withdrawn. Independent counsel hired for Mrs. Porter.
September 16, 1982—File again reviewed and determination made withdrawal of reservation of rights letter was too broad. New reservation of rights letter was sent based on late notice only—mailgram to same effect also sent.
September 24, 1982—Internal memo written expressing concern over why policy was issued when company knew risks of day care operation were involved.
September 28,1982—File reviewed and computer error noticed. Much internal conferring proceeded as to the situation.
September 29, 1982—Telephoned Mrs. Porter and explained a new reservation of rights letter would be sent. Internally, company expressed concern about estoppel to deny coverage.
November 4, 1982—New reservation of rights letter sent raising all three original grounds.
Internal memoranda reflect that Metropolitan continued to be concerned that events had proceeded too far and that it would be estopped to deny coverage. Nevertheless, on April 6, 1983, Metropolitan brought a declaratory judgment action against Mrs. Porter to determine whether or not there was coverage. Plaintiff Heinson was not a party thereto and had no knowledge of same during its pendency. This case was settled on the basis that Metropolitan would pay Mrs. Porter $500, which would cover Mrs. Porter’s attorney fees for defending the declaratory judgment action and taking her through bankruptcy proceedings.
In the Release and Agreement signed June 6, 1983, in the declaratory judgment action, Mrs. Porter specifically agreed to:
“FOREVER RELEASE AND DISCHARGE Metropolitan, its agents and servants and all other persons, agents, firms, entities and corporations of and from any and all liability, actions, claims, demands, right or interest which the undersigned now has or may hereafter have in connection with the aforesaid policy of insurance in regard to the claims asserted by Heinson as above recited, it being expressly understood and stated by the undersigned that she has no coverage in regard to the Heinson allegations nor has she a right of defense under the aforesaid policy of insurance by virtue of the foregoing and that the consideration hereby paid is paid solely by Metropolitan Insurance Company to avoid expense and delay in connection with the aforesaid matters and to obtain final judicial resolution hereof.”
The journal entry in the declaratory judgment action was filed June 2, 1983. Judgment was entered in favor of Metropolitan against Mrs. Porter and decreed that: (1) Metropolitan was not obligated to defend Mrs. Porter in the Heinson suit; (2) Mrs. Porter had no coverage under her insurance policy with Metropolitan; and (3) the policy excluded any coverage for Mrs. Porter for the Heinson lawsuit.
On August 19,1983, Metropolitan withdrew its defense of Mrs. Porter in the Heinson action. On August 22, 1983, Mrs. Porter filed proceedings in bankruptcy. On January 19, 1984, Mrs. Porter was discharged in bankruptcy. The Heinson claim continued only to the extent of any insurance coverage. On September 24, 1984, plaintiff Heinson and Mrs. Porter settled their action. The district court approving the settlement had no knowledge of the declaratory judgment action and the Porter-Metropolitan settlement. The judgment in the settlement was for $500,000. One of the terms of the settlement was that plaintiff would look only to Metropolitan for payment and would never seek collection of the judgment from Mrs. Porter. This aspect of the facts will be discussed in more depth in the next issue.
The trial court held that the determination of no coverage in the declaratory judgment action was not binding upon the plaintiff. Metropolitan challenges this determination.
Plaintiff argues that he should have been named in the declaratory judgment action as an injured claimant in a personal injury action as a jurisdictionally necessary party in any declaratory judgment proceeding brought by the insurer seeking a declaration of noncoverage.
Declaratory judgments are governed by K.S.A. 60-1701, which authorizes courts of record to make binding adjudications of rights in cases of actual controversy. While K.S.A. 60-219 is silent on the parties necessary to such adjudications of rights, the statute provides that a “contingently necessary” person, if subject to service of process, “shall be joined in the action.” Under K.S.A. 60-219 a person is contingently necessary if:
“(1) complete relief cannot be accorded in his absence among those already parties, or (2) he claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action in his absence may (i) as a practical matter substantially impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest.”
In 20 Appleman, Insurance Law and Practice § 11371 (1980), it is said:
“All persons interested in a [declaratory judgment] controversy should ordinarily be brought into court, although this does not require persons to be brought in with whom the plaintiff has no controversy. Where all interested parties have not been brought before the tribunal, the court ordinarily will dismiss the action without prejudice.
“The indispensability of parties is determined on practical considerations. . . . Persons who have been injured in an automobile accident are certainly proper parties to a suit by the liability insurer to determine the coverage of its policy, and the better rule would seem to be that they are both proper and necessary parties to the maintenance of the suit. Hence, it would be error to dismiss such persons from the declaratory judgment suit. In fact, one case was reversed upon appeal where it refused the right to interested parties to attack a default judgment. However, if the court does not or cannot secure jurisdiction over them, their rights cannot be destroyed by their nonappearance; nor can such rights be determined where they are not made parties to the suit.
“It is clear in such cases that both the insured and such injured persons should be made parties defendant to the action.”
In Franklin Life Ins. Co. v. Johnson, 157 F.2d 653, 658 (10th Cir. 1946), it was held:
“The purpose of the declaratory judgment action is to settle actual controversies before they have ripened into violations of law or legal duty or breach of contractual obligations. In declaratory actions brought to determine coverage under insurance policies issued to protect the insured against liability to third persons, third persons asserting such liability have been held to be proper parties to a declaratory judgment proceeding, although their claims against the insurer are contingent upon recovery of a judgment against the insured. [Citations omitted.]”
In the case before us the primary basis for Metropolitan’s denial of coverage was the nature and circumstances of the alleged negligent act causing the injury. In such a situation it is even more appropriate to include the injured person in the declaratory judgment action than where the basis of denial of coverage is a matter essentially between the insured and insurer, such as cancellation for nonpayment of premium. Here, Metropolitan paid Mrs. Porter $500 to settle the declaratory judgment action. Both parties were aware Mrs. Porter would shortly be filing for bankruptcy. The risk of collusion to exclude coverage for the injured party’s damages is great under such circumstances.
We conclude the district court did not err in holding the declaratory judgment action was not binding upon plaintiff-garnishor.
The district court further held that the language of the policy was capable of more than one construction and should, accordingly, be construed in favor of coverage. The rule of law applied is well established contract law. Ambiguous language in a contract is construed against the scrivener. See Central Security Mut. Ins. Co. v. DePinto, 235 Kan. 331, 333-34, 681 P.2d 15 (1984); Foltz v. Begnoche, 222 Kan. 383, Syl. ¶ 4, 565 P.2d 592 (1977); Desbien v. Penokee Farmers Union Cooperative Association, 220 Kan. 358, 363, 552 P.2d 917 (1976). However, the rule was misapplied in this case. The exclusion in the policy clearly excluded business activities and the day care operation was a business endeavor. The district court then proceeded upon a tortured path to hold that, while the day care operation was a business activity, the specific act of negligence claimed arose from a nonbusiness pursuit (checking on her barking dog and leaving the child unattended while so checking). This reasoning is inappropriate. Presumably, if an automobile rolls off a hoist at a repair shop and injures someone while the serviceman is tying his shoelace, the accident occurred as a result of a nonbusiness pursuit. Mrs. Porter was being paid to care for the child—this was her business. It matters not for coverage purposes whether Mrs. Porter left the child unattended to check on her barking dog or to get a clean diaper for the child.
The district court further held Metropolitan unable, under the totality of the circumstances, to deny coverage. We find no error in this conclusion. There are really two areas for application of the doctrine of estoppel—Metropolitan’s actions prior to issuance of the policy, and its actions after the child was injured. The district court concentrated on the former area, but the totality of the circumstances must be considered. Facts in favor of the application of estoppel may be summarized as follows. Metropolitan knew Mrs. Porter was operating a day care business in her home. Its agent told her the policy would cover the business. The application filed showed the business endeavor. Metropolitan was sufficiently concerned to telephone her for the full particulars of the business operation. With reluctance not expressed to Mrs. Porter, the policy was issued. No specific language was included expressly excluding the day care activity. After the loss, we have a long series of conflicting and confusing reservation of rights letters. Much of the time Metropolitan believed the loss was not excluded from the policy. Metropolitan had many internal concerns after the loss that it had gone too far to deny coverage. Under the totality of the extant circumstances, we believe there is ample evidence upon which the district court could conclude Metropolitan is estopped to deny coverage under the policy.
We, therefore, conclude that the district court did not err in holding Metropolitan had liability in the amount of its policy limits of $100,000.
THE $400,000 JUDGMENT IN EXCESS OF POLICY LIMITS
In his settlement with Mrs. Porter, plaintiff took an assignment of all of Mrs. Porter’s claims against Metropolitan. The trial court based its judgment above the policy limits on bad faith and breach of fiduciary duty. These are tort claims. Kansas has long followed the common-law rule that tort claims are not assignable, although there are no recent cases involving the question. In Star Mfg. Co., Inc. v. Mancuso, 680 F. Supp. 1496 (D. Kan. 1988), Judge Patrick F. Kelly summarized the existing Kansas law on the subject as follows:
“Kansas has traditionally adhered to the common law rale that a right of action for damages resulting from a tort is not assignable. Alldritt v. Kansas Centennial Global Exposition, 189 Kan. 649, 657, 371 P.2d 181 (1962); Redmon v. Salisbury Co., 178 Kan. 639, 641, 290 P.2d 809 (1955); Howe v. Mohl, 168 Kan. 445, 448, 214 P.2d 298 (1950). In City of New York Ins. Co. v. Tice, 159 Kan. 176, 180, 152 P.2d 836 (1944), the Kansas Supreme Court stated that the basis for such a prohibition was an attempt to restrain ‘the traffic of merchandising in quarrels, of huckstering in litigious discord.’
“Plaintiff argues the traditional prohibition against the assignment of tort actions is no longer valid, because the statute which prohibited such assignment was repealed in 1963.
“Until 1963, Kansas law provided:
“ ‘Every action must be prosecuted in the name of the real party in interest, except as otherwise provided in section twenty-eight; but this section shall not be deemed to authorize the assignment of a thing in action, not arising out of contract.’
G.S. 1949, 60-401.
“In 1963, the legislature repealed the former code of civil procedure and the above-cited section was incorporated into what is now K.S.A. 1987 Supp. 60-217(a), which provides in relevant part:
/"Every action shall be prosecuted in the name of the real party in interest; but an rexecutor, administrator, guardian, conservator, trustee of an express trust, receiver, a party with whom or in whose name a contract has been made for the benefit of another, or a party authorized by statute may sue in the party’s own name without joining the party for whose benefit the action is brought.’
Plaintiff contends that as a result of the repeal of G.S. 1949, 60-401, and the enactment of K.S.A. 60-217(a), tort claims are now assignable in Kansas. Plaintiff concedes that the Kansas Supreme Court has not specifically ruled on the issue of assignability of torts since 1963, but plaintiff contends that given the opportunity, the court would find that tort claims are now assignable.
“The court does not find plaintiff s argument persuasive for a number of reasons. First, a quick review of K.S.A. 1987 Supp. 60-217(a), does not reveal any language which specifically permits the assignability of a cause of action in tort. Second, the Kansas Supreme Court has never indicated that the rule prohibiting the assignment of tort actions has been repealed or overruled. In fact, in at least two cases, the court has indicated that the rule still prevails.
“In the recent case oí Newell v. Krause, 239 Kan. 550, 722 P.2d 530 (1986), the court was faced with the same argument presented here—e.g., that the repeal of G.S. 1949, 60-401, marked the end of the prohibition against the assignment of tort actions. While the court in Newell declined to discuss the status of the law on assignability of torts because the case was ‘an inappropriate vehicle’ for such an in-depth discussion, the court did observe that ‘[t]he broad public policy con siderations inherent in this area of the law are wholly absent from the case before us.’ 239 Kan. at 556, 722 P.2d 530. Thus, the court in Newell recognized the continued existence of the public policy considerations underlying the rule against assignment of tort actions.
“Moreover, in a case decided some 10 years after the repeal of G.S. 1949, 60-401, the Kansas Supreme Court cited and applied the doctrine prohibiting the assignment of a tort claim. See Cullen v. Atchison, Topeka & Santa Fe Railway Co., 211 Kan. 368, 374, 507 P.2d 353 (1973).
“Plaintiff further alleges that even if tort claims are generally not assignable, an exception exists when the tortfeasor has benefited from his wrongdoing. This argument lacks merit. Each of the.cases cited by plaintiff involves a situation in which the court implied or presumed a contract on the part of the wrongdoer to pay to the party injured the full value of the benefits resulting to such wrongdoer. See, e.g., Hewey v. Fonts, 91 Kan. 680; 683, 139 P. 407 (1914). Thus, the assignee was actually bringing the action on an implied contract, rather than tort theory. Such is not the case here.
“The court therefore finds that the' assignment of a cause of action in tort is still prohibited in Kansas. Accordingly, the court must find that Star Manufacturing does not ‘own’ the cause of action in this case and is not the ‘real party in interest’ as required by Fed. R. Civ, P. 17(a).” 680 F. Supp. at 1498-99.
We agree that tort claims remain unassignable in Kansas. There are sound continuing policy reasons for this common-law rule. Tort claims are personal in nature and third parties should not be permitted to buy claims for personal injuries and losses.
Inasmuch as tort claims are not assignable, plaintiff acquired no rights thereto from the invalid assignment. Further, we do not recognize bad faith as an independent tort in Kansas. See Spencer v. Aetna Life & Casualty Ins. Co., 227 Kan. 914, 611 P.2d 149 (1980).
The question remains whether the circumstances herein support liability to the insured Mrs. Porter of $400,000 above the policy limits. It is well established that actions of an insurer to its insured can result in liability of the insurer for amounts in excess of the policy limits. The common thread in such cases is that the wrongful conduct of the insurer has caused liability of the insured to a third party which he or she would not have had but for the wrongful conduct of the insurer. Typical of such cases is where the insurer unreasonably refuses to settle with the injured party within the policy limits, and the insured is ultimately faced with a judgment in excess of the policy limits. Illustrative thereof is Farmers Ins. Exchange v. Schropp, 222 Kan. 612, 567 P.2d 1359 (1977), wherein we held:
“A liability insurer, having assumed control of the right of settlement of claims against the insured, may become liable in excess of its undertaking under the policy provisions if it fails to exercise diligence and good faith in considering offers to compromise the claim for an amount within the policy limits.” Syl. ¶ 1.
Generally speaking, no matter how miserably an insurance company has treated its insured in handling a third party’s claim against the insured, its liability is limited to the actual damage suffered by the insured as a result of the insurer’s conduct. Therefore, if an insurance company wholly abandons its insured and through his or her own endeavors the insured receives a verdict in his favor, his or her claim against the insurance company would be limited to attorney fees and other costs the insured has incurred in defending the action. Under circumstances specified in particular statutes, an insured may recover attorney fees incurred by the insured in an action against its insurer. For example, see K.S.A. 40-256. Additionally, insurance companies which are found to make a “general business practice” of unfair claim settlements (K.S.A. 1988 Supp. 40-2404[9]) may be fined and subjected to other remedial penalties by the Kansas Department of Insurance pursuant to K.S.A. 40-2407.
In the action before us, no attorney fees or other litigation costs of Mrs. Porter are involved. Rather, the plaintiff-garnishor is seeking to collect the entire $500,000 judgment it negotiated with Mrs. Porter—but under plaintiff s agreement with insured Mrs. Porter, the insured can never have any liability for payment thereof. The trial court was impressed by the fact that plaintiff offered to settle for the $100,000 limits, which offer was rejected by Metropolitan. But this offer was made on July 25, 1985—dur-ing the pendency of the garnishment and almost a year after the Heinson-Porter settlement judgment was entered. So the refusal to settle was not a factor in the $500,000 judgment being entered. The refusal to settle then caused no damage to the insured, who has no liability to pay the excess.
It should be noted that the Heinson-Porter settlement states that it is patterned after the one approved in Shelman v. Western Casualty & Surety Co., 1 Kan. App. 2d 44, 562 P.2d 453, rev. denied 225 Kan. 845 (1977). Shelman involved application of a Missouri statute which permits an abandoned insured to settle with an injured party on a no personal liability basis, and it permits the injured party to proceed against the insurer to collect the judgment. No amount in excess of the policy limits was involved in Shelman. Plaintiff s reliance on Shelman is misplaced.
Under the circumstances, even assuming wrongful conduct by Metropolitan herein, Mrs. Porter had no liability to plaintiff for the $400,000 excess judgment and, hence, Metropolitan has no liability to Mrs. Porter to pay such excess to Heinson in this garnishment action. We conclude the district court erred in entering judgment for the $400,000 excess.
It is clear that the district court was irritated by what it viewed as Metropolitan’s clandestine procurement of the declaratory judgment, but the remedy for that was to declare it a nullity as to Heinson (as the trial court did)—not to penalize Metropolitan further through the award of the excess judgment.
THE AWARD OF INTEREST
By virtue of our decision on the preceding issue, this issue is limited to the trial court’s award of interest on the $100,000 policy limits from the date of the Heinson-Porter judgment (September 24, 1984). The bulk of the argument presented relates to the award of interest on the $400,000 excess judgment.
Under the totality of the circumstances herein, we conclude the district court did not err or abuse its discretion in the award of interest on the $100,000 from September 24, 1984.
The judgment is affirmed in part and reversed in part. | [
-46,
124,
-40,
-65,
8,
32,
42,
-38,
121,
-13,
-91,
83,
-1,
-58,
21,
43,
-9,
125,
-64,
34,
-15,
-93,
23,
-126,
-34,
-109,
-77,
-59,
-128,
93,
-27,
78,
76,
97,
-29,
21,
102,
-118,
69,
26,
10,
14,
-118,
-3,
-39,
64,
48,
123,
0,
71,
113,
-113,
-85,
44,
25,
-17,
-87,
40,
123,
-79,
-47,
-72,
-113,
-123,
122,
16,
-127,
36,
-104,
35,
122,
0,
-112,
113,
0,
-24,
114,
-90,
-122,
116,
103,
-101,
72,
38,
98,
-111,
9,
-59,
-24,
-100,
47,
-52,
15,
-91,
-78,
56,
25,
14,
-97,
-99,
100,
13,
5,
-36,
-12,
20,
95,
109,
5,
-89,
-48,
-93,
-117,
-14,
-36,
-110,
-18,
7,
51,
112,
-49,
-96,
93,
71,
119,
75,
30,
-120
]
|
The opinion of the court was delivered by
Herd, J:
This is a civil action brought by Laird Noller (Noller) against GMC Truck and Coach Division, General Motors Corporation (GMC). Noller contends he is a third-party beneficiary of a franchise agreement between GMC and Jay Beard Trucks, Inc. (Beard). The district court granted GMC summary judgment. The Court of Appeals reversed and remanded the case for trial on two of three Noller claims. Noller v. General Motors Corp., 13 Kan. App. 2d 13, 760 P.2d 688 (1988). We granted review and affirm the' district court.
Beard approached Noller in January of 1982 about Noller buying Beard’s dealership. Noller has been a Ford dealer in Topeka since 1974 and also owns two other automobile dealerships. Noller was interested in buying Beard’s assets only if he could also acquire the GMC truck franchise. Beard’s sale of his assets would terminate his Dealer Sales and Service Agreement (Dealership Agreement) with GMC, but GMC had contracted not to arbitrarily refuse to grant a new owner a franchise.
The fourth paragraph of the Dealership Agreement states:
“Changes in Management and Ownership
“If Dealer desires to make a change in its Dealer Operator(s) or ownership or sell its principal assets to a party that wishes to become an authorized dealer, Dealer will give General Motors prior written notice of the proposed change or sale. General Motors shall not arbitrarily refuse to agree to such proposed change or sale.
“Dealer agrees to provide in the form requested and in a timely manner all applications and information customarily requested by General Motors to evaluate the proposed change or sale. General Motors agrees to consider all factors requested by Dealer and base its decision on whether the proposed change is likely to result in a successful dealership operation with acceptable management and ownership which will provide satisfactory sales and service for GMC Truck customers at the approved location.”
The second paragraph of the Dealership Agreement incorporates by reference certain additional provisions:
“ARTICLE III. SUCCESSOR AND REPLACEMENT DEALERS “(A) Rights of General Motors
“(1) Selection of Dealers
“The parties recognize that Motor Vehicles are marketed through a system of authorized dealers developed by General Motors and that customers and authorized dealers, as well as shareholders and employees of General Motors, have a vital interest in the preservation and efficient operation of the system. General Motors has the responsibility of continuing to administer the system and selecting the most suitable dealer candidate in each circumstance.
“Accordingly, General Motors has the right to select each successor and replacement dealer and to approve its owners and principal management and the location of its dealership facilities. General Motors shall perform such responsibility as set forth in Paragraph FOURTH on the basis of evaluating each candidate’s qualifications and proposal for the conduct of dealership operations against the standards set forth in this Agreement.
“(2) Review of Applications
“In selecting replacement dealers, General Motors may process applications for a replacement dealer agreement, and may consult with applicants on any aspect of their proposals or General Motors requirements, at any time after a notice of termination or expiration has been served or Dealer has proposed a sale of assets or change of ownership or management. Any such replacement dealer agreement shall not become effective prior to the effective date of termination or expiration of this Agreement.
“C. Other Changes in Management and Ownership or Sale of Assets
“In order for General Motors to effectively perform its responsibility to administer the authorized dealer system,-Dealer agrees in Paragraph FOURTH to give General Motors prior written notice of any proposed change in its Dealer Operator(s) or ownership or any proposed disposition of its principal assets. In turn, General Motors agrees to consider Dealer’s proposal under the standards identified in Paragraph FOURTH and not to arbitrarily refuse to agree to such proposal. In determining whether the proposal is acceptable to it, General Motors will take into account the qualifications, personal and business reputation and financial standing of the proposed dealer operator and owners, as well as General Motors’ interest in promoting and preserving competition among General Motors dealerships, and between those dealerships and dealerships representing competing motor vehicle manufacturers.
“Dealer shall be notified in writing of General Motors’ agreement or disagreement to Dealer’s proposal within sixty days after Dealer has furnished all applications and information reasonably requested by General Motors to evaluate such proposals.”
Beard had notified GMC in 1981 that he was going to attempt to sell his company. GMC offered the following guidance in a letter to Beard:
“1. You have the right to sell the physical assets of your company at any time to anyone you wish on whatever basis you may negotiate.
“2. The sale of the assets of your company will necessarily result in the termination of the Dealer Sales and Service Agreement for GMC Truck Motor Vehicles in effect between us.
“3. The Dealer Agreement by its own terms is not transferable, assignable or saleable by a Dealer and conveys no property right to your company. GMC Truck retains the right to select and appoint each Dealer, to approve its owners and principal management, and to do so on the basis of evaluating the candidate’s qualifications and proposal.
“4. General Motors has a policy that before prospective replacement dealer representation is considered, a review is made through the appropriate Divisional and Corporate levels of the continued viability of the particular dealer location, and the desirability of continuing dealer representation there. In your case, we anticipate completing that review in the near future and will advise you of our intentions with respect to our future representation at your location at that time. GMC Truck does not assume responsibility for locating individuals with whom you or your representatives may negotiate a sale of your assets. However, as a courtesy to you, GMC Truck will be pleased to refer to you any individuals whom we believe might be interested in discussing this matter with you. Any such referral shall not be construed by either you or such individuals as indicating that GMC Truck has made, or will make, a commitment to such individuals to execute a Dealer Agreement with them until the negotiations between the parties have been completed and the proposal of the franchise applicant has been reviewed and found acceptable to GMC Truck.
“6. GMC Truck does not become involved in negotiations between parties for the purchase and sale of physical assets of a Dealer. Our interest in this aspect of proposals submitted to us by otherwise acceptable franchise applicants is limited to an evaluation of the projected effect of proposed investments on the capital position of the proposed dealership, and on the projected return on investment.
“7. We recommend any agreement which you make for the sale of your company’s assets should be conditioned upon the approval by GMC Truck of such party and his or her proposal for a Dealer Agreement.”
On February 19, 1982, after GMC’s district manager had visited Noller’s truck dealership on U.S. Highway 24 in North Topeka with Beard, he and GMC’s zone manager met with Beard and told him to forward an agreement with Noller for processing. On February 24, 1982, Noller agreed to buy, and Beard to sell, the dealership assets. Paragraph 11(a) of the agreement specifically stated the agreement was conditioned on GMC’s approval, as Noller was not interested in Beard’s assets without the GMC Truck franchise.
On May 6, 1982, GMC informed Beard by letter of its decision to refuse a franchise to Noller. No reason was given for the decision. GMC had not contacted Noller or conducted any investigation of his qualifications to operate a GMC truck dealership. Neither Beard nor Noller had attempted to provide GMC with such information.
During discovery, GMC officials testified they refused to recommend approval of the agreement because they believed Noller intended to locate the truck franchise on Highway 24 in North Topeka. Noller testified he was flexible in his plans and would have done whatever was necessary to obtain a GMC franchise. He had planned, however, to locate the heavy and medium trucks at the Highway 24 location but place the light GMC trucks at 21st Street and Topeka Boulevard. He estimated he would receive at least $201,000 net profit per year from the total GMC franchise. He estimated he would sell at least 25% of the number of light GMC trucks as he did Ford trucks at a location a block away from the 21st and Topeka location. Beard testified he believed the transaction was not approved because Noller was a Ford dealer. On March 11, 1982, the regional manager had recommended to GMC management: “I do not recommend dualing with Ford.”
After GMC’s refusal to grant Noller a franchise, Noller can-celled his contract with Beard. Beard then sold his business to Maurice Lombardo, an International Harvester dealer. GMC approved Lombardo for a franchise after receiving his application, financial information, a proposed dealer balance sheet, and plans for location of the dealership. In May of 1983, GMC approved Lombardo’s sale of the light truck line to Bill Kobach Buick, Inc. Kobach located the franchise at 21st and Topeka Boulevard, across the street from the location contemplated by Noller.
Noller filed this suit on May 4,1984. Beard’s suit against GMC, filed in the United States District Court, was dismissed with prejudice on August 17, 1988.
The Noller suit alleged breach of contract, tortious interference with prospective business advantage, and tortious interference with contract. The breach of contract claim was based on the Dealership Agreement between GMC and Beard in which GMC promised Beard not to arbitrarily refuse to agree to a proposed sale and to take into account the proposed operator’s qualifications. Noller claimed he was a third party beneficiary of this promise.
The district court granted GMC’s motion for summary judgment on all counts. The court held Noller was an incidental rather than an intended beneficiary of the Dealership Agreement and therefore had no standing to sue for breach of contract. The court also held Noller failed to allege or prove elements of his tort claims.
A majority of the Court of Appeals panel agreed with the district court that there was no tortious interference with contract, but reversed and remanded for a jury trial on the claims of interference with prospective business advantage and breach of contract. The court found Noller to be an intended beneficiary of the Dealership Agreement between GMC and Beard. This appeal followed.
Let us first review the law pertaining to the granting of summary judgment. K.S.A. 1988 Supp. 60-256(c) authorizes summary judgment only when there is no genuine issue of fact and the moving party is entitled to judgment as a matter of law. The party against whom the motion is directed must be given the benefit of all reasonable inferences and doubts which may be drawn from the facts. Lantz v. City of Lawrence, 232 Kan. 492, 497, 657 P.2d 539 (1983).
We recognize courts should be cautious in granting summary judgment where the issues in the case, as here, involve questions of the intent of the parties. Summary judgment is nevertheless proper where the intent, as here, is clearly expressed in the contract and the court finds no question presented. Knowledge that a contract will benefit a third party is not intent to benefit the third party. See Corrugated Paper. Products v. Longview Fibre Co., 868 F.2d 908, 912 (7th Cir. 1989).
Let us now turn to the first issue of the case, whether Noller was an intended beneficiary of the Dealership Agreement between GMC and Beard. The facts support the finding by the Court of Appeals that GMC breached its agreement with Beard to take into account the qualifications of a proposed buyer and not arbitrarily refuse to agree to a sale of its franchise. However, it is important to remember Noller was not a party to that contract.
We have long held: “Contracting parties are presumed to act for themselves and therefore an intent to benefit a third person must be clearly expressed in the contract.” Cornwell v. Jespersen, 238 Kan. 110, 115-16, 708 P.2d 515 (1985). There is no expression of an intent to benefit a third party in the Dealership Agreement. Instead, the provisions of the Dealership Agreement indicate GMC and Beard did not have an intention to benefit a third party. The Dealership Agreement provided that it was a personal service contract and that no right or responsibility under the agreement could be transferred. The intention of the parties is to be determined from the instrument itself where the terms are plain and unambiguous. Fasse v. Lower Heating & Air Conditioning, Inc., 241 Kan. 387, 391, 736 P.2d 930 (1987).
We further note there was no detrimental reliance by Noller on the agreement. “The right of a third-party beneficiary rests chiefly upon the fact that the contract will create reasonable expectations on his part and will induce him to change his position in reliance.” 4 Corbin on Contracts § 775 (1951). See Restatement (Second) of Contracts § 90 (1979).
There are three traditional categories of third-party beneficiaries: donee, creditor, and incidental. Donee and creditor beneficiaries are intended beneficiaries and may sue to enforce a contract; incidental beneficiaries may not. Cornwell v. Jespersen, 238 Kan. at 115; Martin v. Edwards, 219 Kan. 466, 472, 548 P.2d 779 (1976). As the district court correctly held, Noller is “not a donee beneficiary, as the purpose of the DSSA was not to make a gift to Noller. Nor is Noller a creditor beneficiary, as no duty was owed to Noller by GMC under the DSSA. Rather, the benefits to Noller under the agreement are merely incidental to performance of the DSSA.” Therefore, Noller’s third-party beneficiary claim fails as a matter of law and is subject to summary judgment.
In Fasse, 241 Kan. at 389, we noted that more recent analyses of third-party beneficiary laws have divided beneficiaries into two general classes—intended beneficiaries and incidental beneficiaries. Only the intended class of beneficiaries may sue to enforce a contract. We found the plaintiff construction workers in Fasse had been intended beneficiaries in a contract between their employer and Washburn University. The parties to the contract clearly intended that an addendum to the contract would benefit the employees. The facts showed that Washburn University owed the employees a duty to stipulate in the contract that adequate statutory wages would be paid to the contractor’s employees, pursuant to K.S.A. 44-201 and 44-202.
Fasse does not stand for a change in third-party beneficiary law, as Noller contends. Rather, it emphasizes that, where the contract expressly designates an intended beneficiary, that beneficiary becomes a protected party to the agreement. K.S.A. 1988 Supp. 8-2416, cited by Noller, differs from the statutes cited in Fasse. K.S.A. 1988 Supp. 8-2416 provides protection only to a party to the contract, the dealer. No protection is provided to a third-party beneficiary. Noller was not an intended beneficiary to the contract between Beard and GMC and is thus not entitled to sue for contractual benefits.
The second issue is whether the district court erred in granting GMC’s motion for summary judgment on Noller’s claim of tortious interference with prospective business advantage and tor tious interference with contract. The district court distinguished the claim of tortious interference with prospective business advantage from the claim of tortious interference with contract. The advantage claim involves Noller’s potential dealer agreement with GMC. The contract claim involves the buy/sell agreement between Noller and Beard. Count one of Noller’s petition alleges:
“Because of defendant’s intentional, arbitrary, unjustified, and wrongful refusal to permit transfer of the GMC dealership to plaintiff, defendant has tortiously interfered with prospective advantages which would have been acquired by plaintiff had he been permitted to buy and operate the GMC dealership.”
Count three alleges:
“As a result of defendant’s failure to consider the sale and transfer of the GMC dealership in good faith and in accordance with contractual obligations owing Jay Beard, defendant has intentionally and unjustifiably interfered with the contractual relationship existing between Jay Beard and plaintiff.”
The Court of Appeals agreed with the district court’s conclusion that the contract interference claim must fail. The agreement by its very terms recognized GMC’s right to refuse approval. Noller voluntarily rescinded the contract under the contingency provided in the agreement. He could have retained his agreement with Beard had he so desired, but he deemed it not to his advantage to do so.
In a recent decision by the New York Supreme Court, summary judgment was granted on identical circumstances. A prospective buyer of a dealership brought suit against GMC for tortious interference with contract when GMC failed to approve him for a franchise. As in the case at bar, the buy/sell agreement was contingent upon GMC’s approval of the plaintiff as a franchisee. The court held GMC had not induced a breach of contract between the plaintiff and the dealer, but simply exercised its right to refuse to enter into a franchise agreement with the plaintiff. Morse v. Ted Cadillac, Inc., 146 App. Div. 2d 756, 537 N.Y.S.2d 239 (1989).
Here, the Court of Appeals did not agree with the district court’s analysis of Noller’s claim of tortious interference with a prospective business advantage. We recognized the tort in Turner v. Halliburton Co., 240 Kan. 1, 12, 722 P.2d 1106 (1986), where we held the plaintiff must establish the following to state a cause of action:
“(1) the existence of a business relationship or expectancy with the probability of future economic benefit to the plaintiff; (2) knowledge of the relationship or expectancy by the defendant; (3) that, except for the conduct of the defendant, plaintiff was reasonably certain to have continued the relationship or realized the expectancy; (4) intentional misconduct by defendant; and (5) damages suffered by plaintiff as a direct or proximate result of defendant’s misconduct.”
Maxwell v. Southwest Nat. Bank, Wichita, Kan., 593 F. Supp. 250, 253 (D. Kan. 1984); see Restatement (Second) of Torts § 766B (1977).
As the district court correctly held, the tort of interference with a prospective business advantage occurs where a party improperly interferes with a prospective business advantage of a third person. See Restatement (Second) of Torts § 766B, which provides:
“One who intentionally and improperly interferes with another’s prospective contractual relation (except a contract to marry) is subject to liability to the other for the pecuniary harm resulting from loss of the benefits of the relation, whether the interference consists of
“(a) inducing or otherwise causing a third person not to enter into or continue the prospective relation or
“(b) preventing the other from acquiring or continuing the prospective relation.”
The district court granted summary judgment because the alleged interference did not arise from a relationship between Noller and a third person, but from Noller’s potential relationship with GMC via the prospective franchise agreement.
Noller argues on appeal that he does not claim that GMC interfered with their expected relationship from the franchise agreement, but with his expected advantage with Beard and potential GMC truck purchasers. We have already noted that it was Noller’s decision to end his relationship with Beard. As to the advantage to be gained through potential GMC truck purchasers, this was only to be gained through GMC’s approval of a franchise agreement. As Noller was merely an incidental beneficiary under GMC’s agreement with Beard not to arbitrarily refuse to approve sale of the franchise, GMC had no duty to Noller to grant him a franchise.
We affirm in part and reverse in part tire judgment of the Court of Appeals and affirm the judgment of the district court.
Six., J., not participating. | [
115,
-2,
73,
-52,
24,
96,
48,
26,
40,
-23,
55,
87,
-21,
-53,
7,
107,
-18,
21,
101,
122,
-73,
-77,
71,
-95,
18,
-46,
-39,
-35,
-78,
-53,
37,
126,
77,
-96,
74,
-99,
-122,
-62,
-124,
94,
-114,
-122,
57,
96,
-55,
1,
52,
-86,
86,
79,
1,
12,
-63,
44,
57,
-61,
41,
40,
109,
41,
-48,
-72,
-23,
-123,
79,
23,
51,
0,
-104,
39,
-8,
14,
-110,
113,
24,
-8,
82,
-74,
-124,
116,
41,
-103,
8,
38,
119,
-127,
49,
-49,
-36,
-72,
14,
-37,
31,
-121,
-40,
24,
-96,
97,
-73,
-98,
121,
2,
12,
-2,
-50,
21,
23,
109,
15,
-81,
-74,
-109,
79,
112,
94,
9,
-5,
-121,
32,
97,
-55,
102,
93,
71,
122,
-123,
6,
-16
]
|
The opinion of the court was delivered by
Horton, C. J.:
The question presented for our consideration is, whether the husband may, without the consent of his wife, execute a lease of a homestead, the title of which is in his own name, and give possession thereof to a tenant, when the lease interferes with the possession and enjoyment of the premises by the wife as a homestead. Sec. 9 of art. 15 of the constitution of the state ordains : “ That 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 consent of both husband and wife. ” Sec. 1 of ch. 38, Comp. Laws of 1879, is identical with this provision of the state, constitution. These provisions of our constitution and statute have already been decided to be entitled to a liberal interpretation, so as to accomplish their object and carry out their spirit. Thus, no incumbrance, or lien, or interest, can ever attach to or affect the homestead, except the one specifically mentioned in the constitution. No alienation of the homestead by the husband alone, in whatever way it may be effected, is of any validity. Nothing that he alone can do, or suffer to be done, can cast the slightest cloud upon the title of the homestead. It remains absolutely free from all liens and incumbrances, except those mentioned in the constitution. (Morris v. Ward, 5 Kas. 239.) Again, money resulting from the proceeds of a forced sale of a homestead has been held exempt. from execution, when the money is to be used in purchasing another homestead, or. to redeem the homestead from sale. (Mitchell v. Milhoan, 11 Kas. 617.) It has also been held under the provisions of our constitution, that the wife’s interest in a homestead is an existing one; that the occupation and enjoyment of the estate are secured to her against any act of her husband without her consent. If her husband abandons her, the use thereof remains to her and the family. With or without her husband, the law has set this property apart as her home. It may be difficult to define the estate, but it is one, nevertheless. (Helm v. Helm, 11 Kas. 19.) Now, as it is conceded that the husband cannot sell, mortgage or incumber the homestead without the consent of the wife, and as it is conceded she has a certain estate therein, clearly the husband cannot deprive the wife of such estate and of her possession, by a lease to which she refuses to give her assent. If he may do so for a period of five years, as attempted in this case, he may continue to lease the premises for a longer and even for an indefinite period. If we acknowledge the authority of the husband to lease the homestead without the consent of the wife, her interest and estate are not secured to her against the acts of her husband, and she may be deprived of the homestead without her consent. “The homestead was not intended for the play and sport of capricious husbands merely, nor can it be made liable for his weaknesses or misfortunes. It was not established for the benefit of the husband alone, but for the benefit of the family and of society — to protect the family from destitution, and society from the danger of her citizens becoming paupers.” (Morris v. Ward, supra.)
Again, the constitution and the statute inhibit the alienation of the homestead without the joint consent of husband and wife. Now alienation is an act whereby one person transfers the property and possession of lands, tenements or other things to another. It is commonly applied to lands or tenements as “to alien” (that is, convey) land in fee, in mortmain, (see Co. Litt. 1186,) but it has been held that under a prohibition to alienate, long leases are comprehended. (2 Dow’s Rep. 210.) As the execution of a lease to real estate and the transfer of possession thereunder is a species of conveyance, a liberal construction forbids such disposition and transfer of a homestead without the joint consent of husband and wife. We are of the opinion, therefore, under a fair construction of the provisions of our constitution and statutes, that whenever the lease of a homestead, although the title thereto is held by the husband, attempts to interfere with the use and occupancy of the homestead, that the assent of the wife is necessary to the validity of such lease or transfer. Without her consent thereto, the lease is void, and the party claiming thereunder acquires no right of possession or any estate in the homestead.
It is not necessary to comment upon the failure of the defendant in error to introduce evidence in the court below. It is clearly apparent from the affidavits presented by the plaintiffs in error, that the husband attempted to lease and dispose of the homestead for the period of five years, without the consent of his wife; and upon this showing, the order of the district court restraining the husband and the claimant under the lease, from interfering with the wife in the use, occupation and enjoyment of the dwelling house situated on the homestead, was properly granted. Had the order been broader in its scope, it would be fully justified upon the facts of the case.
The order and judgment of the district court will therefore be affirmed.
All the Justices concurring. | [
-43,
124,
-39,
-67,
74,
96,
-86,
-104,
123,
-76,
-89,
83,
-17,
-38,
4,
41,
48,
111,
81,
107,
-58,
-77,
119,
-29,
112,
-13,
-109,
93,
-79,
77,
-25,
87,
76,
36,
-54,
85,
-26,
-117,
65,
-44,
-118,
-121,
-117,
101,
-39,
70,
52,
107,
82,
75,
1,
-113,
-77,
46,
29,
66,
40,
42,
75,
53,
-63,
-72,
-65,
14,
91,
15,
51,
37,
-72,
-91,
-24,
-114,
-112,
17,
0,
-24,
123,
-92,
-106,
118,
79,
-101,
9,
102,
103,
0,
-19,
-1,
80,
-104,
14,
-2,
13,
-89,
-112,
88,
42,
8,
-67,
-99,
125,
100,
42,
-10,
-30,
12,
28,
108,
28,
-113,
-44,
-75,
-123,
120,
-110,
64,
-42,
103,
-79,
113,
-51,
-88,
85,
97,
115,
-101,
-114,
-7
]
|
The opinion of the court was delivered by
Horton, C. J.:
The defendant in error filed his petition in the district court of Montgomery county, against the plaintiffs in error, (two of whom, Yalinta and Ida Mays, are minors,) and alleged among other things, that during the lifetime of George L. Foster and William L. Mays, the latter, about the 19th day of February, 1875, became indebted to the former in the sum of $1,000; that at the time of obtaining this money, William L. Mays made, executed and delivered unto George L. Foster, his certain written obligation of about that date, whereby he promised, for value received, to pay to George L. Foster, on the 19th day of February, 1880, $1,000, with interest thereon at the rate of twelve per cent, per annum, which sum and interest are now due and owing; that the written obligation was wholly lost or destroyed, and therofore he was unable to attach or file a copy of it with the pleading. The petition also alleged that William L. Mays and Susannah R. Mays, on the 6th day of March, 1875, executed a conveyance of certain real estate, absolute upon its face, but given and accepted as a mortgage security for said sum and interest; that the plaintiffs in error (defendants below) were all, and the only heirs of the said William L. Mays. The prayer of the petition asked judgment for the sum of $1,000 and interest, together with attorney’s fees and costs; that the judgment should be declared a lien upon the real estate described in the mortgage; that defendants below be foreclosed of any and all rights to the real estate, and forever barred and enjoined from setting up any claim, lien, title, or interest thereto. Afterward, the defendants, except the infants, filed a joint answer alleging, first, a general denial; second, that there never was any note or memorandum in writing executed at the time of the loan, or at any other time thereafter, and that there was no specified time agreed upon for the payment thereof, also alleging payment; third, statute of limitation; fourth, setting out a bond from Foster to Mays, asking for affirmative relief. The answer was not verified by affidavit. To this answer, plaintiff below filed a reply. The infant defendants appeared by B. S. Henderson, their guardian ad litem, and filed a general denial. The'action was tried to the court with a jury, at the March term, 1881. The jury returned a general verdict in favor of the plaintiff in the action, for the sum of $1,680, and also made the following findings of facts:
“1. Were the deed and bond introduced in evidence, delivered at the same time? Yes.
“2. Was the deed in question executed at the time the contract was made between G. L. Foster and W. L. Mays for the loan of $1,000? No.
“3. At the time W. L. Mays obtained this loan of the $1,000, was there any note or promise in writing executed by him to G. L. Foster, and if so, when did it become due? No.
“4. If there was no note or promise in writing, signed by W. L. Mays in favor of G. L. Foster, at the time of obtaining $1,000, what was the contract, and when was it to be performed ? $1,000; payable in five years, at twenty per cent. mterGSt
“5. When did the indebtedness of W. L. Mays to G. L. Foster become due and payable? February 20, 1880.
“6. If your answer to question No. 2 should be ‘No,’ how long after the payment of the money by Foster to Mays was it until the deed in evidence was executed and delivered to G. L. Foster? Fourteen days after.
“7. What was the consideration of the deed from Mays to Foster, and for what purpose was it given ? One thousand dollars, for the security of the payment of one thousand dollars and interest thereon.”
Defendants below filed a motion for judgment upon the special findings of the jury. This was overruled. The court rendered judgment in favor of the plaintiff below, and entered a decree that the mortgaged premises be charged with the payment of the judgment and costs, and also that the defendants be barred and foreclosed, after sale, of all right, title, or interest therein. Exceptions were taken to the rendition of the judgment, and plaintiffs in error bring the case here.
A very elaborate' and able brief has been filed by their counsel, mainly upon the question, that as the jury found no note or promise in writing was executed by W. L. Mays at the time he obtained the loan of $1,000, the statute of frauds applies in the case, and bars any recovery. It would serve no useful purpose to review the authorities cited and commented upon, as in our view, with the adult defendants there was no controversy about the execution of the written obligation; and as to the infant defendants, the special findings of the jury are not clearly inconsistent with the general verdict, because there is not any finding that no note or promise in writing was ever executed. The petition clearly alleged the execution of the written instrument sued on, and also set forth the reason why a copy was not attached and filed with the pleading. The answer of the adults was not verified, and therefore the allegation of the execution of the obligation sued on must be taken as having been admitted. Every pleading controverting the execution of a written instrument must be verified by affidavit; otherwise, the allegation shall be taken as true. (Code, § 108.) Therefore there was no issue of fact as to the adult defendants with refererence to the execution of the instrument upon which any finding was pertinent. If any finding of the jury controverts any of the allegations of the petition admitted by the answer, such finding cannot control the general verdict. The third interrogatory to the jury was answered, that no note or promise in writing was executed by Mays at the time he obtained the loan of the $1,000. But a further finding of the jury shows that the mortgage conveyance was not executed at the time the contract was made between Foster and Mays for the loan, but was executed fourteen days after. Therefore the answer to the third interrogatory is not conclusive that no note or promise in writing was ever executed. It is simply a finding that the writing was not executed at the time of the loan. As the mortgage deed was not executed until fourteen days after the loan, it may well be inferred from all the findings, that the written obligation sued on was executed at the same time, or at least at a time subsequent to the loan. We cannot, therefore, say that the special findings of fact are inconsistent with the general verdict. We therefore perceive no error in the court giving judgment upon the general verdict. The question of the statute of frauds upon a promise not in writing, is not properly before us.
The judgment of the district court must be affirmed.
All the Justices concurring. | [
-15,
110,
-40,
62,
74,
96,
42,
10,
-117,
-96,
-79,
83,
-23,
-50,
20,
109,
-26,
41,
-27,
105,
67,
-77,
87,
99,
-46,
-13,
-13,
-43,
-79,
93,
-28,
-33,
8,
32,
-54,
29,
102,
-56,
-59,
84,
-114,
-83,
41,
-28,
-39,
64,
52,
63,
82,
75,
113,
62,
-77,
47,
61,
74,
108,
44,
121,
57,
-48,
-7,
-97,
-123,
79,
23,
-111,
86,
-98,
1,
-22,
-86,
-112,
53,
0,
-24,
115,
-90,
-122,
116,
69,
11,
13,
116,
102,
1,
-27,
-19,
-8,
-100,
14,
-34,
-115,
-89,
-93,
81,
11,
8,
54,
-99,
124,
16,
39,
118,
110,
4,
29,
108,
-127,
-53,
-74,
-109,
-113,
56,
-102,
-101,
-29,
-113,
-80,
97,
-52,
32,
93,
103,
113,
-103,
-114,
-8
]
|
The opinion of the court was delivered by
Valentine, J.:
On the 13th day of September, 1878, the defendant in error, R. S. Andrews, filed his petition in the district court of Atchison county, alleging in substance that the' plaintiff in error, the Central Branch Union Pacific railroad company, is a railroad corporation incorporated under the laws of the state of Kansas; that the city of Atchison is a city of the second class, in such state; that the plaintiff is and for many years had been, the owner and in the possession of lots numbered 16, 17, 18, 19, 20 and 21, in block 23, in Challiss’s addition to said city; that immediately south of and next adjoining these lots, is an alley 15 feet wide, which alley had been duly set apart and dedicated to the use of the public, and for the use and benefit of adjoining lot-owners, and for all proper uses as a street or alley in said city; that for many years previous to the 1st day of August, 1877, the alley had been open to the use of the public in the same manner as other alleys and streets in said city; that the plaintiff had long been accustomed to, and had and has a right to use the alley, and that the alley was and is the only way by which the plaintiff can have ingress to and egress from the south end of his lots; that on or about the 1st day of August, 1877, the defendant illegally, wrongfully and improperly obstructed the alley, by illegally, wrongfully and improperly digging ditches therein and laying down and building its railroad track therein, and since about the 1st day of August, 1877, has kept its railway cars and coaches continually and at all times standing upon its track in said alley; and has kept the ditches and the track in such condition as to illegally, wrongfully and improperly obstruct the alley during all the time since about the 1st day of August, 1877, and has since that time illegally, improperly and wrongfully deprived this plaintiff of all use and benefit of the alley; that at that time, and before and since, and at this time, the plaintiff had and has upon his lots lasting and valuable improvements, consisting of two large and commodious dwelling houses, together with barns, stables, etc., used as residence property, and that by reason of the acts aforesaid the plaintiff has sustained damages in the sum of $5,000. On the 4th day of October, 1878, the defendant railroad company filed its answer, containing in substance a denial of the allegations of plaintiff’s petition. The defendant also set up the act of the legislature of the territory of Kansas, under which it was incorporated; also a copy of an ordinance of the city of Atchison, granting to it the right of way on and over said alley, which ordinance was passed and approved June 22, 1864; and also another ordinance of the city of Atchison, passed and approved December 13, 1870, amendatory of the first-mentioned ordinance; and further alleging that said track along and over said alley was laid down and constructed under and by virtue of the laws of the territory and of the state of Kansas, and in pursuance of and in strict conformity to the terms and provisions of said ordinances of the city of Atchison. After the disposition of several motions filed by the plaintiff, on the 29 th day of January, 1879, the plaintiff filed his reply to defendant’s answer, .which was in effect a denial of the allegations of the answer. On the 29th day of April, 1879, the plaintiff verified his reply by attaching thereto his affidavit. The defendant filed a motion to strike out the verification to the reply, which motion was overruled, and defendant excepted. On March 4, 1879, the railroad company filed its motion for judgment on the pleadings. This motion was overruled, defendant duly excepting, and on June 29, 1879, the railroad company filed its motion to have the city of Atchison made a party to the action. This motion was also overruled, defendant duly excepting. The case was tried at the November term of the court in 1880, before the court and a jury. The trial resulted in a general verdict for the plaintiff against the railroad company for $2,000. A motion for a new trial was made by the defendant, and overruled by the court; also a motion for judgment on the findings of fact; and judgment was rendered on the verdict against the railroad company, and in favor of the plaintiff, for $2,000. The railroad company duly excepted, and now brings the case to this court for review. In addition to the general verdict, particular questions of fact were submitted to and answered by the jury. The record contains all the evidence and instructions, and is a full and complete transcript and history of the case and all the proceedings therein.
The wrong committed by the defendant, and for which the plaintiff claims damages, was in constructing one of the sidetracks of its road through the alley south of the plaintiff’s lots, and thereby so obstructing the alley that it could not any longer be used as an alley. This side-track was constructed about August 1, 1877. This suit was commenced September 13,1878, and the trial of this case was commenced November 23, 1880. The jury allowed the plaintiff $2,000 damages; and this was upon the principle that the plaintiff’s lots were worth, at the time of the trial, $8,000, and that they would have been worth, at that time, $10,000, if the alley had not been obstructed by the railroad company. Some of the special findings of the jury do not seem to be entirely harmonious with their general verdict, or with their other special findings. Among their special findings are the following :
“4; Was said track through said alley constructed in a proper manner?
“A. In usual manner for railroad purposes.
“ 6. Since the laying down and construction of said track in said alley, has the defendant permitted cars to remain unreasonably and unnecessarily on said track ?
“A. We don’t know.
“8. If the plaintiff is entitled to recover herein, what damage is he entitled to as compensation for the use of the ground over which said track is located ?
“A. None.
“9. If the jury find a general verdict for the plaintiff, what portion of the amount allowed to the plaintiff is awarded as compensation for the use of the ground over which said track is located ?
“A. None.
“10. What amount of damage has the plaintiff sustained by reason of the defendant’s permitting cars to remain unreasonably and unnecessarily on said track, since the 13th day of September, 1878, the date of the commencement of this suit?
“A. No damage.
“12. If the plaintiff has sustained any damage by reason solely of the laying down and construction of said track in said alley, did such damage accrue to the plaintiff by reason of his inability to use said alley for the purposes it had been used previous to the construction of said track ?
“A. No.
“13. What was the value of the use of said alley to the property in controversy, just prior to the laying down and construction of said track therein ?
“A. We don’t know.
“14. If the jury find a general verdict for the plaintiff, what portion of said verdict is allowed plaintiff as the value of the use of said alley to the property in controversy ?
“A. None.
“15. What amount of damage did plaintiff sustain prior and up to the 13th day of September, 1878, by reason of the construction of said track, so far as the same had been constructed in a legal and proper manner ?
“A. No definite amount.
“16. What amount of damage did plaintiff sustain prior and up to the 13th day of September, 1878, by reason of the reasonable and necessary use of said track by the defendant?
“A. None.
“17. What amount of damage has plaintiff sustained since the 13th day of September, 1878, by reason of any unreasonable and unnecessary use of said track by defendant?
“A. None.
“19. What was the market value of the property in question just before the track was laid down in said alley in 1877 ?
“A. We don’t know.
“23. Eegardless of the fact whether said alley is obstructed or not, is the property of plaintiff as suitable and valuable for residence property as for other purposes?
“A. We do not know.
“29. Has the market value of plaintiff’s property been affected by the running and operation of cars, engines and trains along and over said track?
“A. No.
“30. For several months previous to this date has defendant company in any manner used and operated said side-track?
“A. No.
“31. On or about January 1,1880, did the defendant company cease to use and operate said side-track for any purpose?
"A. Yes.
“32. What railroad company has used and operated said side-track since about January 1, 1878?
“A. Missouri Pacific railway.”
There were several errors committed in this case, which we think will require a reversal of the judgment of the court below; for instance, evidence was admitted that ought to have been excluded, and evidence was excluded that ought to have been admitted. Sufficient latitude was not allowed the defendant on the cross-examination of the plaintiff’s witnesses, and the court tried the case upon a wrong theory as to the measure of damages. The court refused to give the following instruction, which we think is good law, and applicable to the case:
“21. The jury are instructed that in estimating the value of plaintiff’s property, their estimate must not be made upon the basis that it is residence property alone, but they must take into consideration the true market value of said property with reference to its capabilities.”
See authorities cited in brief of counsel for plaintiff in error.
And the case was tried by the court below from beginning to end upon the erroneous theory, as we think, that the damages sustained by the plaintiff below are to be estimated upon the basis of the consequent diminution of the value of the plaintiff’s property, caused by obstruction of the alley at the time of the trial, and not upon any theory of the reduction of the value of his property, or of any injury thereto at any previous time.
This last-mentioned error is probably the most material one committed in the case; and it is the only one to which we shall give any further consideration. The plaintiff has chosen to consider the obstruction of the alley as a permanent injury to his lots, as a quasi condemnation and permanent taking and appropriation of a certain interest in his property; and he can therefore recover merely for the consequent depreciation in value of his property by reason of such permanent injury, by reason of such permanent taking and appropriation, by reason of such quasi condemnation. He had the privilege to consider the obstruction of the alley as only a temporary injury, and to have sued for any special or temporary damage which might have occured at any time by reason of the obstruction. But it seems he did not choose to so consider the obstruction; he chose to consider it as permanent; and, as he has chosen to consider it as permanent, and amounting to a permanent taking and appropriation of an interest in his property, he must be governed by the rules generally governing condemnation proceedings. He must go back to the time when the property was actually taken and appropriated, and ascertain the amount of the injury which his property then sustained by reason of such taking and appropriation. This we think is the universal rule applied in condemnation proceedings. (St. J. & D. C. Rld. Co. v. Orr, 8 Kas. 420; Gulf Rld. Co. v. Owen, 8 Kas. 410; Sherwood v. St. P. & C. Rly. Co., 21 Minn. 122, and cases cited; Warren v. First Div. of St. P. & P. Rld. Co., 21 Minn. 424; Old Colony Rld. Co. v. Miller, 125 Mass. 1; Pitkin v. City of Springfield, 112 Mass. 509; Cobb v. Boston, 109 Mass. 438; S. R. & D. Rld. Co. v. Keith, 53 Ga. 178; Stafford v. The City of Providence, 10 R. I. 567.)
The defendant in error, plaintiff below, seems to admit that the damages should be estimated in cases like this, as of the time when the plaintiff consents that his property shall be permanently appropriated by the railroad company; but he claims that he does not consent to any such appropriation until the judgment for such damages is rendered in his favor. It seems to us that he gives his consent when he brings the action for such damages. It seems to us that he then consents that the railroad company shall permanently appropriate his property in the alley, for he then brings his action for damages, because of such appropriation; and it seems to us that when he gives such consent, the consent must be considered as relating back to. the time when the railroad company originally took the property. If it does not, then the plaintiff would have an action for every special damage that he may have suffered during the intermediate space of time between the taking of the property and the giving of his consent. If his consent does not relate back, so that the bringing of the action for the permanent injury to his property does not cover all intermediate special injuries, sustained after the property is taken and before he gives his consent, then he might have a large number of actions for special injuries, although he may have already sued and recovered for the general injury resulting from the original taking and appropriation. Besides, if the plaintiff should be allowed to have his damages estimated as though they had accrued at the time of the trial, he might recover more than his lots were actually worth at the time the alley was appropriated. Suppose that his lots were worth only $1,000 at the time the alley was appropriated, and suppose that the obstruction of the alley would injure the value of his lots at that time just one-fifth, thereby reducing their value to just $800; and suppose that the improvements made then and afterward by the railroad company and others should so enhance the value of the lots that at the time of the trial the lots would be worth $10,000' provided the alley was not obstructed; and suppose that the obstruction of the alley would still reduce the value of the lots just one-fifth, thereby reducing their value to just $8,000: his damages then would seem to be at the time of the trial just $2,000. Now if he should be allowed to recover this $2,000, he would recover twice as much as his lots were actually worth at the-time the alley was first appropriated. This would not seem to be right. Can property worth only $1,000 be injured by a wrongful act to the extent of $2,000 ? The plaintiff in this case owned six lots, and the alley is only fifteen feet wide. Now when the alley was obstructed, he might have made a road-way fifteen feet wide all around his lots, except in front, where the street is located, and made his lots, except for the amount of land thus appropriated for his road-way, about as valuable as they were before the alley was appropriated; hence, it would seem that the plaintiff should not have the power to recover at anytime for the obstruction of the alley twice the amount that his property was worth at the time of the obstruction. Whether the plaintiff’s lots have been increasd in value, or not, by the improvements-made by therailroad company, we do not know. It would seem,, however, that there are now eight or ten railroad tracks in the vicinity of the track that passes through the alley. And from this we might infer that the improvements made by the railroad company, and the improvements induced to be made by it, have materially enhanced the value of the plaintiff’s property. And suppose further, that after the railroad company had appropriated the alley, the plaintiff should put costly improvements on his property which would not be of any value-unless he could use the alley: then should he be allowed to recover damages as of the time of the trial, and for the full value-of these costly improvements?
But it is not necessary to multiply arguments, nor to make-suggestions, to show that the plaintiff should not recover damages as of the time of the trial; for, unless very strong reasons-can be shown that he should recover damages as of that time,, the rule governing as to the measure of damages in condemnation proceedings should prevail. It would not be justifiable to make distinctions or multiply rules for the measure of damages, where no sufficient reasons therefor exist. The defendant in error, plaintiff below, has not furnished us with any sufficient reason why the rule governing in condemnation proceedings should not govern in this case; and no sufficient reason has occurred to us. One of the principal differences between the ordinary condemnation proceedings and this is, that in the ordinary condemnation proceedings the permanent interest in the property is taken by the other party without the consent of the owner, while in this case the owner consents that the permanent interest in his property may be taken.
We think that the plaintiff can recover only such damages as he sustained at the time the alley was taken and appropriated by the railroad company.
The judgment of the court below will be reversed, and the cause remanded for further proceedings.
All the Justices concurring. | [
-16,
110,
-48,
31,
58,
-64,
34,
-120,
9,
-95,
-92,
119,
-119,
-53,
1,
119,
-6,
63,
-108,
123,
-26,
-73,
7,
-30,
-110,
-13,
103,
-59,
-77,
73,
-26,
-58,
72,
49,
74,
-107,
70,
72,
65,
92,
-114,
-92,
-87,
-32,
-47,
72,
38,
121,
0,
79,
113,
14,
-13,
43,
28,
-61,
40,
44,
-39,
40,
-109,
-15,
-90,
85,
92,
6,
33,
100,
-108,
-121,
-24,
59,
-104,
53,
64,
-72,
115,
-92,
-106,
118,
101,
-101,
12,
38,
103,
33,
85,
-81,
104,
-100,
15,
-6,
-115,
-26,
-90,
9,
107,
13,
-106,
-99,
84,
22,
7,
126,
-26,
4,
25,
60,
-118,
-117,
-80,
-109,
-33,
48,
-110,
19,
-53,
-91,
48,
97,
-51,
-90,
95,
71,
18,
-101,
-97,
-12
]
|
The opinion of the court was delivered by
Horton, C. J.:
On July 19, 1875, Edmund P. Koons brought his action in the district court of Douglas ^county, against the -ZEtna Life Insurance Company, to recover $300, and interest from December 1,1874. He alleged in his petition, among other things, that the defendant was a corporation organized under the laws of the state of Connecticut, with its principal office in the city of Hartford, in that state, but duly empowered by law to do business in this state, and having an office therein; that on the 1st of December, 1874, at Lawrence, in consideration of the payment of $79.34, and the annual premium of $79.34, to be paid on or before the 1st day of December in every year, the insurance company executed a policy of insurance in writing, to him, and thereby insured his life in the sum of $1500, payable to the assured, his executors, administrators or assigns; that he was the owner and holder of the policy; that he had not violated any of its conditions; that by the terms of the policy, the insurance company agreed in the event the policy of insurance should lapse from the non-payment of premiums after two payments of premiums had been made, it would issue a paid-up policy to the assured for two-tenths of the amount insured; that the first two premiums were fully paid at the time specified, and that the insurance company refused to issue a paid-up policy for two-tenths of $1500, as it had agreed, and refused to pay plaintiff any money. A copy of the policy of insurance was attached to the petition. On September 1, 1879, the insurance company filed its answer, alleging that on December 1, 1874, it executed to Sarah P. Noons, the wife of the plaintiff, an insurance on his life in the sum of $1500, payable to the wife, her heirs, or assigns, upon the death of her husband; but it denied that it had at any time or place insured the plaintiff in any sum, for his benefit. It denied that any premium had been fully paid, or that any demand for a paid-up policy had been made, or that the plaintiff was the owner or holder of the policy. The answer admitted, however, that the beneficiary named in the policy was entitled to a paid-up policy for $300, less the amount of the insurance that the deferred payments at their present value would purchase under the single-premium plan. On the 13th of December, 1879, plaintiff filed an amendment to the petition, setting forth the dividends the insurance company had declared on account of its policy, which he alleged the co.mpany failed and neglected to pay or credit him with. On the 22d day of April, 1880, the insurance company filed an amended answer in the form of a general denial, duly verified. The cause was tried at the April term for 1880, by the court, without the intervention of a jury. Judgment was rendered in favor of the plaintiff for $119. The insurance company excepted, and brings the case here.
On the part of defendant in error, it is urged that we cannot pass upon the objections presented, because of the irregularity in the signing and settlement of the case-made. The objection is well taken as to all errors occurring on the trial. The motion for a new trial was overruled on April 29, 1880. Thereupon the court extended the time for making and serving the case sixty days. No other extension was applied for, or obtained from the court or judge. On the 1st day of October, 1880, the case was settled, and signed by the judge, with the consent of the parties, under a stipulation executed June 25, 1880, that the time for making and serving the case should be extended to October 11, 1880. If the judge had power to extend the time for making a case after the time fixed by law or the order of the court had elapsed, we might treat the signing of the case on October 1, 1880, as a ratification by the judge of the extension of the time to make the case agreed to by the parties; but it has already been decided by this court, that the judge has no power to extend the time for making a case after the time fixed by law, or the order of the court or judge has once elapsed. (Ingersoll v. Yates, 21 Kas. 90, 94.) A ease-made cannot be properly signed and settled after the time fixed by the statute has passed, in absence of an order from the court or judge, merely upon the stipulation of the parties; nor can the parties to a record extend the time for making the case, in the absence of any order of the court or judge. (Cohen v. Trowbridge, 6 Kas. 388; Hodgden v. Comm’rs of Ellsworth Co., 10 Kas. 637; Couse v. Phelps, 11 Kas. 455; Weeks v. Medler, 18 Kas. 425.)
The only question remaining is, the matter of the statute of limitations, which is raised here for the first time in the case. It is urged that the petition upon its face shows that the cause of action, if any existed in favor of the plaintiff, was long since barred by the statute. We do not think the point well taken. The defendant is a foreign insurance company, and is a non-resident of the state, and service was had thereon by a summons directed to the superintendent of insurance, under the provisions of §41, ch. 50, p. 493, Comp. Laws of 1879. And § 21 of the code provides: “After the cause of action accrues, the time of absence of a defendant from the state shall not be computed as any part of the period in which the action must be brought.” The statute does not begin to run in favor of a non-resident until he comes into the state. The insurance company in this case has never been present in the state, by anything that appears in the petition. Where the petition does not show upon its face that a plaintiff’s claim is barred, the only way in which a question of statutory power can be raised is by a special plea; a general denial will not raise it. No special plea was filed, and if one had been filed, we do not see how it could have availed anything, because, as a matter of fact, the insurance company had no presence in the state, although it is permitted to transact business under the rules and regulations provided by the legislature, and is permitted to be sued in this state, by service of summons upon the superintendent of the insurance department. The insurance company is not only a non-resident of Kansas, but under the allegations of the petition, its residence and presence have always been at Hartford, Connecticut. (Bonifant v. Doniphan, 3 Kas. 26; N. M. R. Co. v. Akers, 4 Kas. 453.)
The judgment of the district court will be affirmed.
All the Justices concurring. | [
-80,
125,
-36,
-67,
24,
96,
58,
-102,
123,
-96,
-91,
83,
-39,
-61,
21,
61,
-18,
45,
-47,
106,
-44,
-9,
23,
-94,
-42,
-109,
-5,
-59,
-79,
-35,
-18,
-33,
76,
40,
10,
21,
-58,
0,
65,
20,
-58,
-116,
-87,
-23,
-103,
66,
48,
125,
114,
75,
53,
-118,
-77,
42,
25,
-61,
45,
44,
91,
-95,
-112,
-8,
-117,
-122,
127,
23,
51,
2,
-104,
-93,
-40,
12,
-112,
-111,
8,
-24,
91,
-90,
-122,
116,
99,
-103,
8,
98,
103,
32,
53,
-19,
-32,
-103,
46,
-6,
15,
-25,
-110,
112,
58,
12,
-66,
29,
116,
20,
-89,
126,
-4,
84,
28,
44,
1,
-101,
-10,
-77,
-49,
124,
-99,
-109,
-25,
-117,
50,
97,
-50,
-96,
93,
-59,
123,
59,
-98,
-68
]
|
The opinion of the court was delivered by
Horton, C. J.:
On January 27, 1881, plaintiff in error filed its petition in the district court of Harvey county, to recover of defendants in error $572.20, and interest, on a promissory note, a copy of which is as follows:
“$572.20. Newton, Kansas, January 20th, 1880.
“ One year after date, I promise to pay to the order of Chicago Lumber Co. five hundred and seventy-two dollars, payable at Newton, Kansas, with' interest at the rate of 10 per cent, per annum from date until paid. Value received.
“Edmund Ashworth.”
And also to foreclose a mortgage upon certain real estate situate in the city of Newton, given by Edmund Ashworth, one of the defendants, to secure the note. Plaintiff’s petition is in the ordinary form, stating that M. T. Green and Eox Winnie are partners, doing business under the firm-name of “The Chicago Lumber Co.” The defendants, although personally served, did not answer or demur to the petition, and were therefore in default when the case was called for trial. To the demand for a decree foreclosing the mortgage the defendants objected, on the ground that, as the note and mortgage were executed to “The Chicago Lumber Co.,” the petition was fatally defective, and did not authorize the entry of a decree of foreclosure. The court sustained the objection, and held the mortgage absolutely void. The only question, therefore, presented for our consideration is, whether the ruling of the court upon this point was correct. Is the mortgage void? “The Chicago Lumber Co.” was the name and style under which Green and Winnie carried on their business. The note was taken payable to the Chicago Lumber Co. Neither a note, nor a bill of exchange payable to a fictitious payee, is void. In the case of Gibson v. Minet, 1 H. Bl. 569, 614, a majority of the judges held that a bill of exchange thus payable, and purporting to be indorsed by the payee, would be construed as a bill payable to bearer. The chief judge held, however, such a bill payable to order. No one questioned the validity of the bill. In this case, the court below rendered judgment upon the note for the full amount claimed, and therefore held the note valid for all purposes. Now a mortgage is a mere security, and although in the form of a conditional conveyance creating a lien upon property, vests no title and gives no right of possession whatever. The note, therefore, is the evidence of the debt, and the mortgage is merely ancillary thereto. The mortgage follows the note. Whoever owns the note, owns the mortgage. When the.note is paid, the mortgage is paid. When the action on the note is barred by the statute of limitations, the action on the mortgage is also barred. The note may be transferred from one person to another by assignment, or by indorsement, or by a mere delivery, and whoever holds the note takes the mortgage. Within the meaning of our tax law, notes and mortgages are goods and chattels, which may be levied upon and sold by a sheriff holding a tax warrant, if the sheriff can get possession of them. (Blain v. Irby, 25 Kas. 499.) Therefore we think that, as the note is valid, the mortgage which follows the note, and was executed to the payee of the note, if complete in all other respects, is likewise valid. Certainly in an equitable action, brought to enforce the security for the debt, partners may show that the note taken by them, under the name in which they carried on their partnership, is the property of the partners composing the firm, and that a mortgage given to the same payee is likewise the property of the firm, and that the real estate therein named is subject to the payment of the debt evidenced by the note.
Counsel for defendants says .that there was no grantee in the mortgage, and treats the mortgage as if the Chicago Lumber Co. represents nothing, and is a mere fiction. He refers particularly to Tidd v. Rines, 10 C. L. J. 102, and to McMurry v. Fletcher, 24 Kas. 574. In the former case the court decided that the legal title to real property can only be held by a person or a corporate entity, and that a partnership is not recognized in law as a person. It was conceded by the court, however, that the title in that case was held by the grantor in trust for the benefit and sole use of the firm. In the latter case, this court held the rule to be, that conveyances of real estate for the use and benefit of a partnership should run to the individual partners jointly as tenants-in-eommon; yet, we also stated that if the deed had been executed in the firm-name and no subsequent contract had been made, such deed would be sufficient; the rule being, that if the title is taken in the name of one partner, or in the name of the partnership, such conveyance is held in equity as a trust for all the partners, and if the real estate is in fact partnership property, it matters not that the legal title is in one or in all the parties, or in a third person. Equity will regard it as held in trust for the partnership, and the trust can be enforced by the interested parties, whether partners or creditors. Here the grantee was the name of the firm under which Green and Winnie transacted their business as partners. It was the firm-name, and represented the partnership. Ashworth was cognizant of the name and style under which the partners transacted their business, and executed the mortgage to the Chicago Lumber Co. for the benefit of the partners composing the partnership, transacting business in that name. The mortgage was therefore taken in the name of the partnership; hence there was an actual grantee in the mortgage, although such grantee was merely the name and style of the partnership. This case bears no resemblance to Ayres v. Probasco, 14 Kas. 175, for in that case the mortgage was in blank as to the land itself, the amount loaned, the rate of interest, date of the note, and day of payment, as well as to the name of the mortgagee, when signed by Ayres and wife. The land afterward inserted in the mortgage was the homestead of the parties signing the blank mortgage.
The judgment of the district court will be reversed, and the case remanded with directions that judgment be entered decreeing a foreclosure and sale of the real estate described in the mortgage.
All the Justices concurring. | [
-108,
107,
-71,
-83,
74,
-32,
40,
-102,
25,
-80,
-89,
87,
-51,
-110,
20,
101,
118,
93,
85,
104,
101,
-73,
7,
-53,
-46,
-77,
-45,
-115,
-79,
90,
-28,
-41,
76,
48,
74,
-107,
-25,
-62,
-61,
92,
-114,
-123,
41,
-28,
-39,
72,
48,
-21,
96,
75,
113,
46,
-13,
42,
28,
-61,
105,
46,
123,
-87,
-48,
-16,
-69,
7,
95,
23,
-109,
6,
-100,
7,
72,
46,
-112,
17,
9,
-24,
123,
-74,
-122,
84,
79,
-117,
9,
102,
98,
33,
-91,
-17,
-8,
-104,
46,
-42,
-115,
-89,
-78,
24,
50,
40,
-74,
-99,
124,
22,
7,
124,
-26,
5,
-99,
108,
9,
-113,
-76,
-45,
-113,
54,
-98,
27,
-17,
-121,
-95,
97,
-49,
-76,
93,
-58,
56,
27,
-114,
-8
]
|
The opinion of the court was delivered by
Brewer, J.:
The appellant in this case was convicted in the district court of Montgomery county of the crime of manslaughter in the first degree, and sentenced to hard labor in the state penitentiary for a term of twenty years, and from this conviction and sentence has brought this appeal to this court. As a preliminary question the state challenges the record presented by defendant, and this challenge must be sustained.
It appears that the defendant was tried at the September term, 1880; that a bill of exceptions was signed on the 23d day of September, 1880, but never presented to or filed with the clerk till July 5th, 1881. This was more than nine months after it was allowed and signed, and after two regular terms of the district court of that county had intervened. Such a bill of exceptions never became a part of the record, and presents nothing calling for our examination. This is a matter settled by one of the early decisions of this court, (Brown v. Rhodes, 1 Kas. 364,) a decision in harmony with the rulings elsewhere, and one repeatedly followed by this court in many cases thereafter. (The State v. Montgomery, 8 Kas. 351; Lownsberry v. Rakestraw, 14 Kas. 151; Jackson v. Stoner, 17 Kas. 605; The State v. Bohan, 19 Kas. 28.) In the case cited from 1 Kas. the second paragraph in the syllabus reads: “ The records of a term of court are made up under its direction during the term. A bill of exceptions filed out of term is no part of the record.” And in the opinion it is further stated, that “No language could make it more clear that the bill must be allowed and signed within the term at which the exceptions were taken; and the language immediately following that last cited, ‘ whereupon it shall be filed with the pleadings, as a part of the record,’ can mean nothing else than that it shall then be filed and become a part of the record. The statute does not declare the bill a part of the record before it is filed, and the filing is therefore necessary to make it such. The records of a term of court are made during the term, and under the direction of the court.”
This, it is true, was a civil case, but the statute provides that the same rule holds in.criminal as in civil cases, (Cr. Code, § 219,) and its validity has been recognized in several criminal cases as above cited. There is therefore no record before us, nothing which we can examine or upon which we can predicate a decision. It may further be noticed, that the original bill of exceptions was filed with us, and not a transcript; this, too, is unauthorized. (Jackson v. Stoner, 17 Kas. 605.) These are not mere technicalities or irregularities, which may be disregarded, but they are matters of substance, going to the rights of parties and essential to guard each against any wrong on the part of the other. The reason for this has been stated over and over again, and need not now be repeated; the rule is settled, and may not be disregarded. This compels us to dismiss the appeal. Notwithstanding this, we have examined the record, and are satisfied that while in one respect there may have been a technical disregard of the requirements of the statute, there was nothing on the whole of which the defendant and appellant can fairly complain. It is very evident to us that the defendant is guilty of the offense charged against'him, and therefore ought to suffer his punishment as adjudged by the court.
Without going into details, we may notice a few of the points presented. We cannot see that the plea in abatement was im properly overruled, because it does not appear that all the testimony offered upon that plea was incorporated in the bill of exceptions. The application for a change of venue was properly overruled. The single affidavit of the defendant, stating but little more than his own conclusions, ought not to outweigh the affidavits of'three or four of the respectable citizens of the county. The ruling in respeet to the application for a continuance is sustained by several decisions of this court. (Thompson v. The State, 5 Kas. 159; The State v. Adams, 20 Kas. 311.) We see no error in admitting the testimony objected to by defendant. It was in reference to matters which occurred at the time of the homicide, which were a part of the res gestee. While the wound inflicted by the defendant on the deceased may not have been a wound necessarily fatal, yet the jury were justified in finding that the wound did kill him. The deceased was shot in the arm, and died within six or eight days thereafter. While it is possible that the treatment which he received was not the best, yet there is no reason to doubt that the physician in attendance acted according to his best judgment, and that the party would not have died but for the wound. It does not lie in the mouth of the defendant to complain very seriously of the character of the medical attendance furnished the deceased. (The State v. Kearley, ante, p. 77.) The other matter that we shall notice, in which perhaps the court was guilty of some slight error, is in the matter of the instructions. The court charged the jury in writing, fully, and, so far as we can see, correctly; and then, on application of defendant, gave an instruction or two in writing, but qualified one of the written instructions thus given by orally stating: “That this instruction should be taken in connection with the instructions before given by the court, and there should be added, ‘ unless the jury find that the defendant and the said Williams confederated together in the commission of the crime.’ ” It is possible that, in this oral qualification of the instruction, the court did not keep fully within the limits of the statute, (The State v. Potter, 15 Kas. 302,) and yet the departure is so slight that we cannot think the material and substantial rights of the defendant were seriously affected. Even if the record was fully and fairly before us, we should hesitate, upon so slight a ground, to disturb a verdict apparently just, or to set aside proceedings otherwise regular and fair. This is the only matter which, looking through the bill of exceptions, would raise any serious doubt in our minds; yet, for the reasons heretofore stated, there is no proper record before us, and therefore the appeal must be dismissed.
All the Justices concurring. | [
-80,
-5,
-36,
-98,
-85,
97,
2,
-98,
67,
-93,
-91,
83,
-83,
82,
1,
113,
115,
73,
85,
105,
-52,
-105,
6,
-45,
-78,
-13,
-104,
-41,
55,
77,
-18,
119,
8,
32,
74,
117,
-57,
-54,
-27,
22,
-114,
-115,
-71,
-52,
-15,
-128,
52,
107,
110,
15,
53,
-49,
-29,
46,
92,
-57,
105,
41,
72,
41,
-48,
-95,
-125,
13,
111,
16,
-77,
-26,
-100,
-123,
120,
62,
-100,
49,
35,
-8,
48,
-122,
6,
-12,
111,
25,
9,
102,
102,
3,
61,
-49,
-120,
-120,
7,
62,
-99,
-89,
-104,
121,
75,
-52,
-74,
-99,
125,
80,
39,
126,
-28,
-107,
80,
44,
0,
-113,
-76,
-79,
-113,
110,
-122,
43,
-21,
35,
112,
117,
-52,
-58,
92,
71,
113,
-103,
-97,
-43
]
|
The opinion of the court was delivered by
Valentine, J.:
This is a prosecution brought in the name of the city of Leavenworth against George H. Weaver, before the police judge of the city of Leavenworth, a city of the first class, for an alleged violation of an ordinance of such city, passed in pursuance of the power conferred upon cities of the first class by the act of March 4,1881, (Laws of 1881, art. 3, sec. 11, sub-div. 3,) which ordinance provides for the levy and collection of license taxes upon merchants and others. The defendant appeared before the police judge and moved the court to quash the complaint, for the reason that the ordinance under which the complaint was drawn was not in conformity with the charter for cities of the first class, or with the state constitution. The motion was sustained by the police judge, and the defendant was discharged. The plaintiff now brings the case to this court on appeal.
The first question arising in this case is, whether a prosecution for the violation of a city ordinance can be appealed directly from the police judge of such city to the supreme court. We think we shall have to answer this question in the negative. Under the constitution of the state, the supreme court has no appellate jurisdiction, except such as may be provided by law, (Const., art. 3, sec. 3,) and there is no law anywhere to be found conferring any appellate jurisdiction upon the supreme court, except in cases appealed from the district court; and all laws giving any appeal from the police judge to any court, give such appeal to the district court. Secs. 51, 60 and 65 of the act relating to cities of the first class read as follows:
“Sec. 51. The police judge shall have exclusive jurisdic tion to hear and determine all cases for offenses against the ordinances of the city, and concurrent jurisdiction with justices of the peace and district courts for the trial of all misdemeanors arising within the limits of the city where the fine does not exceed five hundred dollars or imprisonment not exceeding one year. The police judge shall also have concurrent jurisdiction for the examination of all offenders against the law of the state arising within the city limits: Provided, That the penalty imposed by any ordinance shall in no event be less than that fixed by the state law for the same offense.”
“Sec. 60. In all cases before the police judge wherein the fine assessed exceeds twenty dollars, or the imprisonment one month, an appeal may be taken by the defendant to the district court in and for the county in which said city is situated; but no such appeal shall be allowed unless such defendant shall within ten days after such conviction enter into recognizance, with sufficient security to be approved by the judge, conditioned for his appearance at the district court of the county, at the next term thereof, to answer the complaint against him, and for the payment of the fine and costs of appeal, if it should be determined against the appellant.”
“Sec. 65. In all cases not herein specifically provided for, the process and proceedings shall be governed by the laws regulating proceedings in justices’ courts in criminal cases; and it shall be his duty to keep a complete record of his proceedings in each case, in like manner as justices of the peace are required to do in criminal cases.” (Laws of 1881, pp. 98, 100, 101.)
All appeals from justices of the peace are to the district court (Comp. Laws of 1879, p. 776, §§21, 22 and 23; also p. 720, §120); and no appeal can be taken directly from a justice of the peace to the supreme court. (The State v. Harpster, 15 Kas. 322.)
We think we have no authority to review the decision of the police judge, or to render any decision in the case upon its merits. The case will therefore be dismissed.
All the Justices concurring. | [
-16,
-30,
-16,
-66,
58,
64,
-78,
-68,
72,
-79,
-27,
123,
-23,
-38,
5,
125,
-37,
125,
85,
107,
-64,
-74,
6,
2,
-78,
-13,
-37,
-36,
-65,
-35,
-28,
-4,
14,
49,
-53,
-99,
70,
-54,
-123,
-44,
-50,
5,
-87,
-35,
-48,
64,
52,
120,
51,
11,
-15,
-114,
-1,
42,
29,
-61,
-87,
45,
-37,
-87,
-8,
-7,
-116,
-107,
126,
6,
-109,
34,
-100,
-121,
-42,
46,
-104,
57,
76,
-8,
123,
-94,
-122,
124,
101,
-69,
-116,
102,
66,
33,
65,
-18,
-72,
-115,
46,
123,
-115,
-89,
-112,
56,
106,
-128,
-106,
-107,
101,
18,
7,
124,
-29,
21,
95,
108,
15,
-58,
-76,
-77,
-49,
112,
-94,
-46,
-17,
-93,
-80,
65,
-58,
-66,
95,
100,
51,
91,
-98,
-36
]
|
The opinion of the court was delivered by
"Valentine, J.:
This was an action of ejectment, brought by J. C. Guffin and S. C. Guffin, his wife, against Edward Linney, to recover certain lots in the city of Concordia. These lots were originally a part of the southwest quarter of the southwest quarter of section thirty-three, in township five, of range three. On July 29, 1871, the probate judge of Cloud county filed in the United States land office a declaratory statement, under the act of congress of March 2, 1867, (14 U. S. Stat. at Large, p. 541,) claiming this land, along with other land, as a town site. At this time the forty-acre piece of land above mentioned was vacant and unoccupied, but a portion of the other land included in the declaratory statement was settled upon and occupied as a town site; and the town was named “Concordia.” On August 7, 1872, the town of Concordia was incorporated as a city of the third class. On June 3, 1873, the defendant entered upon said forty acres of land, and claimed the same as a homestead, and on the next day thereafter entered the same as a homestead at the United States land office. At this time it does not appear that any portion of the land was occupied by any other person. On June 17,1873, the mayor of Concordia attempted to enter at the United States land office the whole of said town site, including said forty acres of land; but the local officers refused to permit such entry, and the mayor took an appeal to the commissioner of the general land office. The commissioner of the general land office decided in favor of the mayor, reversing the decision of the local land officers, and the secretary of the interior affirmed the decision of the commissioner. This was done on June 5, 1876; and on June 22, 1876, the local land officers canceled the homestead entry of the defendant, and permitted the mayor of Concordia to enter all the property claimed as a town site. Afterward, and on September 19, 1877, a patent was issued by the United States, under the said act of congress of March 2, 1867, to the said mayor, in trust for the several use and benefit of the occupants of the city of Concordia. On June 4,1879, the mayor executed a deed for the property in controversy to Henry L. Guffin. Afterward Guffin died, and his interests in the property descended to the plaintiffs in this action, J. C. Guffin and S. C. Guffin, and on July 5, 1879, the plaintiffs commenced this action.
From the foregoing facts it will be seen that the plaintiffs hold the legal title to the property in controversy; but the defendant claims that he holds the paramount equitable title thereto.
At the time that the probate judge filed his declaratory statement, as aforesaid, the said forty acres of land were vacant and unoccupied ; and it does not appear that at that time either the plaintiffs or defendant, or Henry L. Guffin, resided thereon, or upon any portion of the town site. And at the time that the defendant took possession of said forty acres of land, it does not appear that any portion of the same was occupied by any other person; and the decision of the secretary of the interior was founded upon the theory that it was not necessary in order to include it in the town site that it should be so occupied. His theory is: That in order to include several forty-acre tracts of land in a town site under said act of congress, it is not necessary that they should each and all be occupied by settlers or inhabitants; and upon this theory he decided the case against the defendant and in favor of the mayor of said city; that is, he decided that this forty-acre tract of land, notwithstanding the fact that it was not occupied by any person except the defendant, had nevertheless already been appropriated as a part of a town site under said act of congress, when the defendant made his homestead entry; and therefore that the homestead entry was void.
At the time the mayor attempted to enter the town site, Henry L. Guffin resided upon the town site; but not upon any portion of said forty-acre tract of land. The defendant has continuously been in possession of the property in controversy ever since he first took possession thereof in June, 1873, up to the present time, and neither Henry L. Guffin, •nor the plaintiffs, nor any other person, has ever been in the possession thereof.
The defendant now claims the property by virtue of being .an occupant thereof under the said act of congress of March 2, 1867, and he has claimed the property in that manner ■ever since the secretary of the interior declared against his homestead entry.
The court below decided in favor of the defendant’s claim to the property, and we think such decision is correct; and •.therefore the judgment of the court below will be affirmed.
All the Justices concurring. | [
-12,
106,
-112,
62,
-70,
-28,
94,
-80,
72,
-96,
-80,
87,
105,
-101,
20,
41,
106,
109,
85,
121,
-58,
-78,
22,
-77,
16,
-13,
123,
-51,
-73,
108,
-10,
-42,
8,
32,
66,
-107,
-58,
104,
-59,
92,
-58,
-91,
-119,
-36,
-47,
96,
52,
59,
20,
-85,
117,
46,
-13,
46,
25,
-53,
41,
44,
89,
45,
9,
-72,
-65,
-107,
-4,
19,
17,
103,
-102,
3,
72,
90,
-112,
49,
-124,
-8,
119,
-90,
-122,
-10,
71,
-69,
44,
34,
103,
65,
-3,
-49,
-24,
8,
7,
-5,
21,
102,
-74,
17,
-30,
64,
-74,
-99,
-11,
80,
7,
-10,
-25,
-35,
29,
44,
-121,
-114,
-122,
-73,
15,
124,
-98,
65,
-45,
-89,
32,
97,
-115,
46,
92,
71,
48,
-101,
15,
-16
]
|
The opinion of the court was delivered by
Brewer, J.:
This is an action brought in the district court of Cherokee county, by defendants in error, Beers and Sovereen, to recover from plaintiffs in error, Hobart and Con-don, for railroad ties and bridge timber, which they allege were converted by said Hobart and Condon. To this petition a general denial was filed; the case was tried before a jury, and verdict rendered for plaintiffs; $300 of such verdict having been remitted, judgment was entered upon the verdict, and from such judgment defendants bring error.
In a general way, the facts may be thus stated: In 1872, plaintiffs contracted with the M. C. & N. W. Rid. Co. to furnish ties and timber for the construction of the road between Minersville, Missouri, and Oswego, Kansas. In pursuance of such contract, they did deliver a large amount of ties and timber. Shortly after the work was completed from Miners-ville to Brownsville, Kansas, the work ceased, on account of inability on the part of the company to complete the road. At that time, west of Brownsville, along the line of the road, plaintiffs had placed a certain amount of ties and timber. Thereafter plaintiffs brought suit against the railroad company for ties delivered and accepted, and recovered judgment, and sought to assert a mechanics’ lien. During all this time, these ties and timber not used in the tracjs; remained piled along the line of the road at or near what is called by the witnesses, the Schnier place. In 1876, Seligman & Macy, the trustees of the bond-holders of said company, contracted with defendants, Hobart and Condon, to complete the road west to Oswego. In executing this contract, the defendants took pos session of and used certain or all of the ties and timber found at or near the Sehnier place. For the value of these ties and timber thus appropriated by defendants, plaintiffs brought this action.
Evidently three questions stand out as vital: First, did the ties and timber placed at and near the Sehnier place along the line of this road belong to plaintiffs? Second, if they did so belong to plaintiffs, what amount was appropriated by defendants to their use? Third, what was the value of the amount thus appropriated? That these ties and timber originally belonged to the plaintiffs, is not disputed. But the contention on the part of the defendants is, that they had been delivered to and accepted by the railroad company; that therefore they belonged to the railroad company, whether paid for or not by said company; and that in using them defendants were responsible only to the railroad company, and not to plaintiffs. Secondly, they insist that for these ties and timber, plaintiffs, affirming a delivery to the railroad company, sued and recovered judgment in the action above referred to, to foreclose a mechanics’ lien, and are therefore now estopped to assert that they are still the owners. Thirdly, they insist that they did not take the amount of ties and timber which plaintiffs allege; and finally, that what they did take was not of the value charged. It will be obvious from this general statement, that a pivotal question is, whether the plaintiffs, having sued and recovered judgment against the railroad company for ties and timber delivered and accepted, were concluded thereby from showing that the ties and timber for which this action was brought were not included in such action and judgment, and were still the property of these plaintiffs, such proceedings to the contrary notwithstanding. Stating the facts a little more in detail, they are as follows: The contract of the plaintiffs with the railroad company was to furnish ties and timber along the line of the railroad between Minersville, Missouri, and Oswego, Kansas. The road was not then completed by the company to Oswego, but its construction stopped at'Brownsville, Kan sas. In pursuance of their contract, plaintiffs delivered, both in Missouri and Kansas, an amount of ties and timber which went into the road-bed, and ivhich were so used by the railroad company. In addition, they placed along the line of the railroad between Brownsville and Oswego, at and near the Schnier farm, an amount of ties and timber which were not in fact used in the construction of the road at that time. Believing that they had a right to a mechanics’ lien by the laws of the state, plaintiffs filed a statement by which they claimed for over 20,000 ties furnished in this state, as well as for bridge timbers, and brought suit to foreclose this attempted mechanics’ lien. The statement for this lien, filed by plaintiffs and verified by one of them, recited that these ties and timber were delivered in Kansas, and for the construction of the road through this state.. This action against the railroad company went to trial, and judgment was rendered against the company for the amount claimed; but the lien was denied, under the authority of Burgess v. Railroad Co., 18 Kas. 53. Now it is claimed by defendants that plaintiffs are concluded by this judgment — that it must be held to cover all ties which they had furnished to the company; and further, that as by their own showing they had not within this state delivered ties and timber to the amount of those sued for exclusive of these ties and timber in controversy, it must be conclusively presumed that these ties and timbers were included in that suit, and that thereby they are estopped to deny a complete delivery, or to question the title to the ties and timber thereby delivered to the company. This claim of defendants cannot be sustained. Where a petition is filed resting upon such general allegations as those in the mechanics’-lien suit, parol testimony is thereafter admissible to show what was in fact embraced within such action. That action was forties and timber delivered and accepted. It did not purport to embrace ties and timber not accepted by the company and for which the company was not in fact responsible. As a question of fact, parol testimony is admissible to show what ties and timber had been delivered and accepted, and that the ties and timber in controversy in this suit were neither embraced nor intended to be embraced within the allegations of said petition. That suit was for ties and timber delivered and accepted. If these ties and timber had not been delivered and accepted, prima facie they were not within the scope of that petition; for it cannot be presumed that a party is wrongfully seeking to charge another with the price of property he has never fully delivered, and which is in fact still his own and under his control; and therefore, upon the general allegations of such petition, it cannot be affirmatively said that the ties and timber in controversy were included. If these ties and timber had been simply hewn and prepared and were remaining upon the lands of plaintiffs without any pretense of delivery, without any testimony that they had been hauled to and placed along the line of the road, very clearly they would not have been embraced within the scope of that petition. Under the terms of the contract between the plaintiffs and the company, the mere fact that these ties were hauled to and placed along the line of the road would not necessarily cause such a delivery and acceptance as to bind the road. The contract did not provide that the company should pay for all ties placed along the line of the road, but only for such ties as, being so placed, were after inspection accepted. Until inspection and acceptance, or something which was equivalent to a waiver thereof, the title did not pass to the company, but remained in the plaintiffs. Now if as a matter of fact these ties and timber were never inspected and accepted, and no waiver thereof was made by the company, it cannot be asserted that they were necessarily included in an action brought to recover for ties and timber delivered and accepted. It will not do to say that plaintiffs, by suing for material delivered and accepted and for which the company was bound to pay, necessarily sued for material not delivered and accepted, and for which the company was under no legal obligation to pay. It cannot be presumed that plaintiffs charged the company with anything it was under no obligations to pay for, or attempted to sue for and recover that which it had never accepted, and which was in law and fact still the property of the plaintiffs. To state the proposition in another form: Supposing the plaintiffs had delivered ties and they alone had been accepted, and had also delivered timber which had not been accepted, and had thereafter sued for the ties so delivered and accepted, no one for a moment would contend that the title to the timber had passed to the defendants, or that the bringing of such an action affirms the title of the defendants to the timber, or that the plaintiffs might not show in a subsequent action that the timber had not in fact been accepted or was not still the property of the plaintiffs. The same principle controls here: Plaintiffs sued for ties and timber delivered and accepted; and they now say that these ties and timber were never accepted, that they had no claim therefor against the company, that they did not sue therefor in that suit; and we think parol testimony is competent to establish that fact. It is true, that in that suit there was a misstatement; plaintiffs then sought to foreclose a mechanics’ lien on the railroad, believing that one was authorized by the laws of this state; and while the ties and timber which they had delivered were delivered and used both in Missouri and Kansas, their lien statement shows that all were so delivered and used in Kansas. The amount of ties and timber sued for in that action exceeded the amount delivered and sued in Kansas, together with the amount in controversy in this suit. Hence defendants contend that that petition must be held necessarily to include not only all the ties and timber used in Kansas, but also all the ties and timber placed along the line of the road and not accepted by the company. This is neither logical nor correct. Because in that suit plaintiffs claimed more than they were legally entitled to, it does not follow that they sought to recover for things outside the scope of that petition. They sought to recover for ties and timber delivered and used in Kansas, and while they erred in seeking to establish a lien for material delivered and used in Missouri; and in so doing misstated the facts, it does not follow that such error and misstatement legally compel an affirmation that they were suing not only for property delivered and used in Kansas, but also for property which, though placed along the line of the track, had never been accepted by the company and for which the company was under no legal obligation to pay. Plaintiffs had never placed along the line of the track for purposes of delivery within the limits of the state, as many ties or as much timber as they sued for in that action. It might as well be affirmed from the mere amount of the sum sued for, that they conceded a delivery of ties never placed along the line of the track still remaining in their own fields, and never removed from the place in which they were hewn, as to say that from such mere amount they necessarily affirmed the acceptance of the ties in controversy. In short and to conclude: Wherever a petition is general in its statements, and contains no absolute identification of specific articles, it is always competent to show by parol testimony, that articles answering in some respects to those sued for were not fully within the description of such articles, and were not in fact included or intended to be included within the scope of such action. As a matter of law it cannot therefore be affirmed that the district court erred in holding that the rights of the plainiffs were not concluded by such prior action. They may show, as they attempted to show by parol, that the property in controversy here was not embraced or intended to be embraced within the scope of said action. While it must be conceded, that as a proposition of law this is correct, we are not as a matter of fact satisfied with the explanation given by plaintiffs. It is very natural that, believing they could enforce a mechanics’ lien in this state, they should seek to include within the scope of that lien, material furnished in Missouri; and while their verified misstatement throws suspicion on their entire conduct, the natural desire of a party for compensation for his material and labor, may be conceded as a satisfactory explanation of such misstatement. But the conduct of the plaintiffs in regard to the attempted levy upon that property as though it were the property of the company, and their proposition to give an indemnifying bond to the sheriff, is not fully and satisfactorily explained to our minds. If it was plaintiffs’ property, the thought of a levy upon it as the property of the company should not for a moment have been tolerated by them. The levy was of value only as it touched the property of the company, and we think there ought to be some fuller explanation of the purpose of such levy. We do not mean to assert that such levy was not susceptible of explanation, for it can well be that plaintiffs, fearing a conflict as to the title to this property, ignorant as to what testimony the company might thereafter produce with respect to inspection and acceptance, and having a judgment of large amount, whose collection was uncertain, preferred to shut off all doubt by purchasing under the execution any title that the company might claim to have. If such explanation be correct, it should be shown, for without such explanation, the conduct of the plaintiffs, speaking louder than their words, shows that this property was the property of the company, and that they did not then question the fact of its delivery, inspection and acceptance. In the rulings of the district court, in reference to this judgment and its effect upon the rights of the parties, we see no error. We refer to the matter thus at length, affirming the law as stated by the court, and indicating wherein we think the testimony deficient, because, for reasons hereafter to be stated, the judgment must be reversed and a new trial ordered, and it is fair to the trial court to indicate wherein we think its rulings were correct and wherein it erred.
Passing on to the other questions in this case, it is insisted that the court erred in admitting as evidence the following memorandum of agreement between plaintiffs and the railroad company, signed by the superintendent of the railroad 1 company, under which plaintiffs delivered their ties and timber to the company:
“Carthage, Mo., Oct. 10th, 1872.
“ This agreement, made this day between H. R. Beers and S. M. Sovereen, and the Memphis, Carthage & Northwestern Railroad Co., witnesseth: That the said Beers and Sovereen are to receive thirty-five dollars per thousand, B. M., for all culvert and bridge timbers delivered on line of said road from Minersville to the town of Oswego, 50 cents per tie, and for second class 25 cents each, subject to the inspection and acceptance of the chief engineer of the company.
(Signed) E. H. Brown,
Supt. M. G. & N. W. R. R.”
We see no error in this ruling. The price named therein for ties and timber in 1872 did not control as to the price of such ties and timber appropriated in 1876, but the memorandum was competent for the purpose of showing under what arrangement plaintiffs were hauling ties to the line of the road in 1872, and whether the fact that the ties and timber were so placed along the line of the road was a full and complete delivery of them to the company. The court, therefore, did not err in permitting that memorandum of agreement to go to the jury.
Again, some testimony was admitted over the objections of defendants referring alone to the value of the ties and timber in 1872, the time they were originally placed along the line of the road. This we think was erroneous; defendants if chargeable at all were chargeable with the value of the property they took only at the time they took it. Beyond question their appropriation of the property was in 1876, and the only testimony as to value should have been limited to that time.
Again, counsel earnestly challenges the verdict of the jury both as to the amount of property appropriated by defendants, its value, and also as to the question whether title was in plaintiffs or not. Upon these questions of fact thus challenged, we remark that they must be settled by the triers of fact, the tribunal before which the witnesses appear. Secondly, that as we read the testimony the preponderance was with the defendants, and that conceding the right of plaintiffs to recover for some property appropriated by defendants, they have obtained a judgment for more than in fact they were entitled to. Still, we repeat that upon the testimony as it appears in the record, there is that upon which the verdict of the jury as finally sustained, may fairly rest, and that upon a mere question of fact we may not disturb the verdict, although our impressions'are that the jury gave undue weight to the testimony offered by the plaintiffs. We did not see the witnesses, and if the jury and the trial court agree as to what facts are proved by the testimony, it is only, as we have often said, in an extreme case that we shall feel warranted in interfering.
One further question we shall notice — one in which we are constrained to think that the court erred, and that the error is of a nature to wrong plaintiffs in error of substantial rights. A vital question, as we have heretofore intimated, is whether the ties and timber in controversy had been in fact delivered to and accepted by the company. We have shown that the proceedings in the mechanics’-lien action were not- necessarily conclusive upon this question. Now putting the record of such proceedings out of consideration, does the other testimony show that the delivery by the plaintiffs of the ties and timber along and near the line of the road, and the action of the company, whatever it was, completed a transfer of the title to the ties and timber to the company? The contract between plaintiffs and the company is in evidence. It provided that the plaintiffs were to receive a certain amount for ties and timber delivered along the line of the road, subject to the inspection and acceptance of the chief engineer. The question then is, under what circumstances title to the ties and timber so placed by plaintiffs would pass to the company. The ruling of the district court, as we understand the instructions, was to the effect that no title would pass to the company until after a personal inspection and acceptance by its chief engineer, unless both plaintiffs and the company waived such inspection and acceptance, and consented to inspection and acceptance by some other officer. Eecurring to the testimony, it will be noticed that some of it tends to show that no inspection marks were on these ties and timber; some of it that these ties and timber were inspected and accepted by the chief engineer and as expressly stated in the contract; and some of it that they were inspected and accepted by an assistant to the chief engineer, one acting under his direction, and whose actions were approved and ratified by him. Now by the instructions of the district court a personal inspection and acceptance by the chief engineer was declared essential to the transfer of title, unless both plaintiffs and the company expressly consented to the inspection and acceptance by a different officer. In view of the testimony offered in this case, we think this ruling erroneous, and we are constrained to believe that it was prejudicial to the substantial rights of the plaintiffs in error. The contract provides that the plaintiffs were to deliver ties and timber along the line of the road; that such ties and timber were to be delivered subject to the inspection and acceptance of the chief engineer of the company. That provision as to inspection and acceptance was one for the benefit of the company, and might be waived by it. If it took and used the ties and timber without inspection by anybody, it became the owner, and responsible for the contract price; and if under its orders any other officer-than the chief engineer inspected and accepted, it was bound by such inspection and acceptance as fully as though the chief engineer himself had examined them. Not only was it bound, but the plaintiffs were also bound. Their action was completed by the delivery along the line of the road. They thereby assented to the company’s taking possession, and any act by which the company accepted the ties, perfected the transfer of title. A different question might arise as to the rights of the parties, in case some officer other than the chief engineer inspected and rejected the ties. But any acceptance binds the company, and transfers the title. In other words, such stipulation was for the benefit of the company, which might be waived by the company, and whenever waived by the company was conclusive on -both parties, although such waiver was not expressly consented to by the plaintiffs. Doubtless, as the district court ruled, inspection and acceptance, or something equivalent thereto, was a condition precedent to the transfer of title; but the court erred in holding that ex press consent to a different inspector was essential to a transfer of title.
Whenever in a contract there is inserted a stipulation for the benefit of one party, as a general rule such stipulation may be waived by that party, and it is error to say to the jury that a waiver of such stipulation must be consented to by both parties, or is binding on neither. The rule is, that if the party benefited thereby waives it, the other may not complain. So in this case, if plaintiffs, in pursuance of their contract, did all they could do to effectuate a delivery, and the company by any officer in fact inspected and accepted the ties and timber, the company by its act has waived that stipulation which was inserted for its benefit, and the plaintiffs cannot complain because it has so waived it. We think, in view of the scope of the testimony, that this ruling of the district court was not only erroneous, but probably wrought substantial injury to the material rights of the defendants. For this error, as well as for that respecting a sufficient explanation of the circumstances concerning the levy as heretofore stated, the judgment of the district court must be reversed, and the case remanded for a new trial.
All the Justices concurring. | [
-16,
106,
-8,
-97,
-118,
66,
34,
-104,
49,
-95,
-91,
83,
-23,
-62,
1,
51,
-29,
93,
81,
122,
68,
-77,
19,
-5,
-110,
-77,
-13,
-59,
-80,
73,
100,
-57,
77,
48,
74,
-99,
-58,
-62,
-59,
28,
-114,
-124,
-119,
-24,
91,
97,
52,
-97,
6,
75,
49,
-82,
-5,
40,
24,
-29,
40,
44,
-17,
41,
-48,
-8,
-72,
-105,
93,
4,
1,
6,
-104,
3,
72,
58,
-112,
-75,
13,
-20,
119,
-76,
-58,
-12,
5,
-103,
8,
-26,
103,
33,
21,
-57,
-24,
-120,
14,
-6,
-115,
-89,
-94,
24,
67,
73,
-66,
-99,
84,
86,
7,
126,
-20,
5,
29,
124,
3,
-113,
-10,
32,
15,
60,
-100,
3,
-53,
1,
48,
97,
-59,
16,
93,
7,
48,
-101,
-113,
-72
]
|
The opinion of the court was delivered by
Valentine J.:
This was a criminal prosecution for the larceny of “ one light bay horse.” The prosecution was had under §78 of the act relating to crimes and punishments. ( Comp. Laws 1879, p. 337.) Said section, so far as it is necessary to quote it, reads as follows :
“Every person who shall be convicted of feloniously stealing, taking and carrying away . . . any horse, mare, gelding, colt, filly, ass, mule, neat cattle, sheep, or hog, belonging to another, shall be deemed guilty of grand larceny.”
This section was first enacted in 1855, and has been the law of Kansas ever since. On the trial of the case, it was proved and admitted that the animal alleged to have been stolen was in fact a gelding; and there was no evidence introduced tending to show that the animal was anything else but a gelding. The defendant asked the court below to instruct the jury among other things, as follows:
“Proof that the property alleged to have been stolen was a ‘gelding’ does not support the information that the property stolen was a ‘ horse.’
“If the jury find from the evidence that the defendant did not take, steal and carry away one light bay horse, the property of said Robert P. Johnson, in manner and form as alleged in the information, but that he did feloniously take, steal and carry away one light bay ‘gelding,’ the property of said Rob crt P. Johnson, such finding will not support the allegations of the information, or warrant a verdict of guilty.”
But the court below refused to give these-instructions, and did not give any instructions embodying the propositions of law contained therein; to which refusal the defendant duly excepted. The jury found defendant guilty as charged in the information. The defendant then moved for a new trial, and in arrest of judgment, which motions the court below overruled, and then rendered judgment against the defendant, sentencing him to imprisonment in the penitentiary for the term of four years; to all of which the defendant duly excepted. The defendant now appeals to this court.
Upon authority, and the statutes of this state, we think the judgment of the court below must be reversed. (Hooker v. The State, 4 Ohio, 348; Banks v. The State, 28 Tex. 644; Lunsford v. The State, 1 Tex. Ct. App. 448; The State v. Plunkett, 2 Stewart [Ala.], 11, 12; Bush v. The State, 18 Ala. 415, 416; Turley v. The State, 3 Humph. 323; The State v. Ingram, 16 Kas. 19; Whar. Cr. Ev., § 124; 1 Bish. Cr. Pro., §§365, 366; Chitty’s Cr. L., p. 283; 2 Arch. Cr. L., p. 399; and authorities cited in defendant’s brief.)
It is true that the word “ horse ” is generally used as a generic term, including all animals of the horse kind — including stallions, mares, geldings, colts, and fillies; but it is not so used in the statute. In the statute it is simply used in the sense of stallion. An indictment or information, therefore, which merely charges the larceny of a horse, does not charge the larceny of any animal except a stallion, and therefore is not sustained by proof showing the larceny of a gelding. Where an indictment or information charges larceny of one of the specific animals mentioned in the statute, the charge is not sustained by proof of the larceny of any one of the other specific animals mentioned in the statute. If the statute had simply used the word “horse,” and not used the words “mare, gelding, colt and filly,” then we think that proof of the larceny of a gelding would be sufficient; but under the statute which specifically mentions the different kinds of animals of the horse kind, and under the authorities, we cannot say that proof of the larceny of a gelding will support a charge of the larceny of a horse.
There are two authorities seemingly against this view,— one in Illinois, (Baldwin v. The People, 2 Ill. 304,) and one in Missouri, (The State v. Donnegan, 34 Mo. 67.) But we do-not think that the Illinois decision is, in fact, against the view we have expressed, for it does not appear that they had any statutes in Illinois, at the time that case was decided, (1836,) similar to ours; and it can hardly be said that the decision in Missouri is against the views we have expressed, for although they have a statute in Missouri the same as ours, yet it does-not appear that the attention of the court was called to the statute. The whole of the decision in the Missouri case with reference to this question, reads as follows; “At the-trial, evidence was given of the larceny of a gelding, and ob-, jection was made that it did not support the indictment for stealing a horse. There is no force in the objection.” It would seem that the Missouri case was decided with but)very little consideration; and while we think that the law ought to-be as it was decided to be in Missouri, yet we think the decision is against all authority.
The judgment of the court below will be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
-77,
-26,
-39,
61,
44,
-32,
34,
-72,
67,
-125,
50,
82,
9,
-126,
4,
57,
114,
-3,
85,
113,
-58,
-106,
31,
-13,
-110,
-6,
-47,
-59,
53,
73,
-26,
-41,
8,
48,
-54,
85,
-58,
74,
-127,
84,
-114,
37,
40,
-60,
82,
104,
44,
105,
54,
10,
113,
46,
-25,
42,
30,
83,
105,
60,
11,
45,
-104,
-15,
-69,
103,
105,
6,
-78,
36,
-114,
3,
88,
110,
-104,
113,
1,
-39,
123,
-76,
-118,
-44,
13,
-101,
77,
102,
106,
33,
29,
15,
36,
-52,
47,
118,
-115,
-89,
-112,
88,
98,
8,
-106,
-103,
116,
82,
7,
-4,
-29,
-100,
-99,
96,
1,
-49,
-108,
-77,
47,
46,
-110,
125,
-13,
-75,
19,
101,
-60,
-30,
93,
101,
120,
-101,
-113,
-9
]
|
The opinion of the court was delivered by
Brewer, J.:
On the 24th day of March, 1881, the defendant company applied to the district judge for the appointment of three commissioners for the purpose of laying off and condemning certain lands and town lots in the city of Atchison, being the property of the plaintiff, which application being presented on said day, the district judge appointed certain commissioners in pursuance of the request so made in defendant company’s application. Thereafter the commissioners so appointed published notice that on the 27th day of April, 1881, they would meet to discharge the duties of such appointment. On April 25th, the plaintiff presented and filed its petition in writing, duly verified, together with a bond and affidavits, and obtained an injunction against defendant company and said commissioners, restraining them from further action under such condemnation proceedings, which was duly served upon all of the defendants. On April 30th, defendant company filed its motion to dissolve said injunction. On May 14th, said motion came on for hearing before the judge at chambers, and affidavits and evidence were presented by the parties respectively, and the same were argued by counsel and taken under advisement by the court until May 18th, 1881, at which date the court dissolved said injunction, and the plaintiff now brings the case here for review.
Two principal questions arise • the first is this: Years ago the defendant exercised the right of eminent domain, condemned land for its line of road and for terminal facilities at the city of Atchison, built depots, side-tracks, etc., at Atchison, and completed its entire line of road. Now the contention of plaintiff is, that defendant’s road being a completed road, and defendant having once exercised the right of eminent domain, its power in that respect is exhausted, and that without further legislative authority its right to take lands in inmiurn is lost. This question must be resolved by reference to the statutes; for, that the legislature can give to railroad corporations a right of eminent domain as continuous as their necessities, is not doubted. The sections of the statute providing for the exercise of this power are two in number— sections 81 and 87, pp. 230, 231, Compiled Laws of 1879. Section 81 reads:
“Any duly chartered and organized railway corporation may apply to the board of county commissioners of any county through which such corporation proposes to construct its road, to lay off, along the line of such proposed railroad, as located by such company, a route for such proposed railroad, not exceeding one hundred feet in width, except for the purposes of cuttings and embankments it shall be necessary to take more for the proper construction and security of the road, through as much of said county as may be desired by such company; and also such land as may be deemed necessary for side-tracks, depots, and workshops, and water stations, materials for construction, except timber, a right of way over adjacent lands sufficient to enable such company to construct and repair its road and stations, and a right to conduct water by aqueducts, and the right of making proper drains.”
Section 87 as it stood originally in the laws of 1868 simply provided for the appointment of commissioners by the district judge, who were to make the assessment instead of the county commissioners; otherwise, and so far as any question involved in this case is concerned, the section was similar to § 81. In 1870, the section was changed to read as follows:
“That any railway corporation, instead of applying to the board of county commissioners, as hereinbefore provided, or any person or persons through whose land or premises any railroad has been or is being constructed, may apply to the judge of the district court of the county through which any railroad is, or is to be built, for the appointment of three commissioners to make the appraisement and assessment of damages instead of the county commissioners; said commissioners shall be freeholders and residents of the county through which such railroad is, or is to be built.....Such commissioners shall be sworn to honestly and faithfully discharge their duties as¿ such commissioners, and they shall do and perform all things in the manner and under the same regulations and restrictions as are provided in case such duties were performed by the county commissioners; and the subsequent and other proceedings, including appeal, shall be done and performed in the same manner; and the railroad company shall pay all costs accruing under any application under this section.”
Now the argument of plaintiff is, that § 81 refers alone to a proposed, and not to a completed, railroad, and that in the first instance the corporation must condemn not only the land needed for its line of road, but also all that will be'necessary in the future for its terminal facilities; or, failing to do that, it must acquire the latter by voluntary purchase alone. It is urged that a grant like this being in derogation of private right, must be strictly construed; that nothing passes by intendment or implication, and that only so far as the power to condemn lands is expressly granted, can it be exercised by any corporation; that all doubts are to be resolved against the grant; and in support of these views are cited the cases of Morehead v. Rld. Co., 17 Ohio, 340; M. & E. Rld. Co. v. C. Rld. Co., 31 N. J. Law, 205. It is further urged that § 87 was simply intended to give to the land-owner a right to initiate proceedings for the appraisement of his land taken by the company, and was not intended to give to the railroad company any increase of its right to condemn lands; or, secondly, that if it does give it a right to initiate proceedings after the completion of its line of road, it is a grant of power which, whenever once exercised, either before or after the completion of the road, is exhausted.
On the other hand, it is contended that any limitation imposed by the phrase, “ proposed railroad,” in § 81, applies only to the mere line of road; that that section gives authority to condemn such land for side-tracks, depots, etc., as may be necessary, which implies that it is to be condemned when it is in fact necessary or deemed necessary, and therefore as often as it is deemed necessary; and that the true grammatical construction of this section makes a distinction between land for the right of way, and land for depots, etc. It is further contended, that while §87 as it originally stood simply provided for other commissioners than the county board, the amendment in 1870 enlarged the power of the corporation in respect to this matter of eminent domain, and gave to it both before and after the completion of its road the right to condemn lands. The language of the section reads, “ is, or is to be built,” and the right is given to the corporation, as well as to the land-owner, to apply for commissioners; and the closing clause of the section which gives to these commissioners all the powers granted in § 81, grants the power of condemning land for depots, etc., after the completion of the road, and such land as may be then deemed necessary therefor. And in support of these views the following cases are cited: T. & W. Rld. Co. v. Daniels, 16 Ohio St. 390; C. B. & Q. Rld. Co. v. Wilson, 17 Ill. 127; M. & T. Rld. Co. v. DeVaney, 42 Miss. 555.
While the question may not be perfectly clear, we think the views expressed by the defendant are correct, and that its power of eminent domain was not, as respects 1 A needed for terminal facilities, exhausted by a single exercise of the power either before or after the completion of the road. All legislation must be construed in the light of existing facts, and while a grant like this is doubtless to be strictly construed, yet such rule of construction does not forbid giving just and reasonable force to all the separate provisions of the statute, nor prevent its being interpreted by the actual experiences and necessities of life. Now it is perfectly plain, whatever may be the true interpretation of §81, that § 87 gives to a railroad corporation power to condemn lands after the completion of its road. Doubtless this embraces cases in which the corporation has in the first instance occupied lands without legal right and seeks to perfect title thereto; but we think it also includes cases where the road, having been completed, the corporation as here needs enlarged terminal facilities. Section 87 refers to and partially adopts and incorporates §81, and putting the two sections together and writing out in one sentence a statement of the grant so far as this question is concerned, it would read about thus: “Any railway corporation may apply to the judge of the district court of the county through which its road is, or is to be built, for the appointment of three commissioners to lay off a route for such road, and also such land as may be deemed necessary for side-tracks, depots,” etc. Reading the grant in that way, it would seem that the power is given to condemn land for terminal facilities whenever deemed necessary, and that one exercise of the power did not exhaust it. Railroads, as all know, are things of growth; they enlarge with the development of the country. Starting as small enterprises doing a trifling business, as the country develops they extend — their business expands — that which in the inception afforded ample facilities becomes* inadequate for the increasing business, and the company stands between two difficulties. It must either imperfectly discharge its duties to the public, and thereby expose itself to liability for damages, or must enlarge its facilities, which, if it cannot be done by the power of eminent domain, will expose it to any exorbitant demands for land which business rivals or avaricious individuals may see fit to exact. This defendant’s history fully illustrates this fact. It is but a few years since it commenced building its road. At first it was but a feeble corporation with but a few miles of track, and one whose business needed little rolling stock and very slight terminal facilities. Now it has become a gigantic corporation, owning hundreds of miles of road and part of a transcontinental line. Either in the infancy of the corporation the promoters must have had the foresight to anticipate its future development, and upon the first application condemn for its use all the land at the, various stations which such future development would ever require, or else it must stand now at the mercy of any rival or individual owning land at the place where its business necessities compel it to have more room. All this, which is but a part of the common experience and history of the country, must have been before the legislature at the time of .these enactments, and such legislation must be interpreted in the light thereof.
Now, is it not reasonable to suppose that it would legislate in harmony with rather than countér 16 this law of railroad growth? Is it not more reasonable to believe that it intended to give the power to take such land as might be needed, when it should be needed, and thus enable the company fairly and fully to discharge its duties to the public, rather than that it intended that in its inception the corporation should condemn an unreasonable, apparently unnecessary amount of land, or else be thereafter at the mercy of any who should happen to own land where its increasing business compelled it to have more room ? It was well said by the supreme court of Illinois, in the case cited from 17 111.: “We cannot suppose that it was the intention of the legislature to oblige the company to acquire all the land in the first instance which in any event it should ever want, to do the largest amount of business it may ever hope to attain. The greatest degree of sagacity could hardly determine precisely what conveniences the future might demonstrate to be necessary to do its business with facility.” It must be borne in mind that our railroad corporations are now organized under a general law; that a general law makes all the provision for exercising the right of eminent domain; that no special charters and no special corporate powers are granted. The legislature in its enactments is not determining as to the necessities or probabilities of any particular road, but is laying down a general law for the regulation and control of all railroad companies. Such a general law should be in harmony with the experience of the country as to the necessities and growth of railroad corporations. Again, it may be fairly doubted whether in the first instance the road could condemn for depots, side-tracks, etc.'1, any more land than its then prospect of business would adjudge necessary. It is given power to condemn as much land as may be “ deemed necessary.”
Could it under this grant condemn any more land than was deemed necessary ? And could any land be deemed necessary which was not in fact required for the company’s present business, and which would not^be needed in the future ■except through some unexpected and rapid growth of the company’s business ? The supreme court of Ohio, in the case from 16 Ohio, supra, say: “The power to make ‘necessary sidetracks,’ prima facie is the power to make them when they are necessary. Otherwise it would be the power to make unnecessary side-tracks. Prima facie power to do any act, is power to do it in such manner and at such time as is usual, convenient and reasonable, in such way as prudent men manage their own concerns.” See in addition to authorities heretofore cited, the following, which support the conclusions reached by us: Hamilton v. Annapolis Rld. Co., 1 Md. 553; S. Car. Rld. Co., Ex parte, 2 Rich. 434; S. Car. Rld. Co. v. Blake, 9 Rich. 229; Rld. Co. v. Lovejoy, 8 Nev. 100; Rld. Co. v. Speer, 56 Pa. St. 325.
One other matter may be mentioned in this connection as strengthening the right of this particular defendant. It is one of the few corporations in the state created by specia charter; this was granted by the territorial legislature of 1859. (Special Laws 1859, p. 57.) Such special charter, § 3, provides that the company, “ for the purposes of depots, sidetracks, . . . may take more land, earth or material, as may be necessary for the construction or completion, operation, preserving, maintaining said road;” so that if this extra room is needed for the operation of the road, the company may under this section take it.
We do not rest our conclusions upon this section, however, but upon the provisions of the general law heretofore cited, and refer to this simply as strengthening the conclusions otherwise reached.
The other principal question is this: The special charter above referred to made certain provisions for exercising the right of eminent domain. These proceedings differ slightly from the proceedings established by the general law; and the contention is, that the company can proceed alone in accordance with the provisions of its charter, and cannot proceed under the general railroad law. This is a mistake. The general railroad law applies to all corporations. Section 81 commences, “Any duly chartered and organized railway cor poration;” and § 87, “Any •railway corporation.” It does not refer simply to organizations organized under that statute, but includes all. No language could be used more general, more comprehensive. There is nothing in the nature of the thing to prevent a legislature from granting this power to corporations organized before the admission of the state, and by special charter from the territorial legislature. If the company had no right of eminent domain given by its special charter, the state legis lature could, by general law, endow it with such right; and if it had the right, the legislature could, by a similar law, enlarge its modes of proceeding. The question simply is, whether a special chartered corporation can avail itself of the general procedure established by law for all railway corporations; and that question must be answered in the affirmative.
These are the only questions which we deem of importance in this case, and in them appearing no error in the rulings of the district court, its order will be affirmed.
All the Justices concurring. | [
-80,
106,
-8,
-116,
10,
98,
-70,
-104,
121,
-21,
-91,
83,
-83,
-102,
-127,
49,
-21,
61,
-44,
122,
-28,
-73,
69,
-29,
-105,
-45,
-37,
-51,
-77,
77,
102,
-58,
77,
32,
74,
-43,
-26,
-56,
65,
28,
-114,
36,
-87,
-24,
-47,
-24,
52,
123,
70,
79,
17,
-114,
-13,
44,
28,
-29,
-23,
44,
-5,
45,
-111,
112,
-104,
-59,
125,
2,
1,
36,
-104,
-125,
-56,
62,
-112,
49,
-103,
-24,
119,
-90,
7,
-10,
15,
-69,
8,
38,
99,
33,
53,
-17,
-20,
-120,
14,
-70,
-113,
-25,
-30,
25,
-22,
67,
-106,
-99,
84,
22,
-121,
126,
-18,
5,
95,
108,
5,
-117,
-74,
-89,
87,
118,
-102,
75,
-21,
-95,
33,
97,
-51,
54,
93,
71,
62,
-103,
-113,
-72
]
|
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.