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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by R. B. Lynch against J. M. Herman to recover $265 received by Herman from Lynch, with which to purchase exchange. The petition alleged, among other things, as follows:
“That about November 25, 1876, this plaintiff was indebted to J. E. Hayner & Co. and to Andrew J. Hodges in large amounts, and that while he was so indebted as aforesaid, he delivered to the defendant herein, J. M. Herman, the sum of $265, for the purpose and under an agreement with the said J. M. Herman, that he, the said J. M. Herman, would take said money to Emporia, Kansas, for the said R. B. Lynch, and then of the First National Bank of Emporia purchase exchange for the said R. B. Lynch and remit said exchange to the parties aforesaid, as follows : To J. E. Hayner & Co., eighty dollars; to Andrew J. Hodges, one hundred and eighty dollars, for the purpose of liquidating the indebtedness of the said R. B. Lynch as aforesaid to the said firms aforesaid.”
The petition further alleged that the defendant, after receiving said money, did not purchase said exchange, but converted the money to his own use. The defendant answered: First, setting up a general denial; second, alleging, in substance, that the debt was not created by the fraud or embezzlement of the defendant; that he did not receive or hold the money in a fiduciary character, and that since receiving it he had been duly discharged from all debts and claims not created by fraud or embezzlement, and which are not of a fiduciary character, under the national bankrupt act of 1867, (14 U. S. Stat. at Large, 529, et seq.; U. S. E. Stat., p. 990, et seq.); third, setting forth a set-off. The plaintiff replied by filing a general denial.
The ease was tried upon these pleadings before the court and a jury, and the jury found a general verdict in favor of the plaintiff and against the defendant for the sum of $176.44, and judgment was rendered accordingly; and from such judgment the defendant now, as plaintiff in error, appeals to this court.
We think that from the record in the case we may assume as true that the defendant received the money, as alleged in the plaintiff's petition, and that afterward he obtained the ordinary discharge by proceedings in bankruptcy. The question then arises: Was he discharged from this claim; or, in other words, was this claim created by the fraud or embezzlement of the defendant, or did he hold the money in a fiduciary character, within the meaning of §33 of said act of congress, (sec. 5117, p. 993, of the U. S. E. Stat.,) so that he could not be so discharged? If the plaintiff's petition is true — that is, if the defendant had no right to use the money received from the plaintiff, except in the purchase of exchange for the plaintiff — then we think we must answer the question first stated in the negative, and all the other questions following in the affirmative. But if the defendant’s answer is true — if the defendant had a right to use the money received from the plaintiff in his (the defendant’s) own business, and to obtain the exchange by some other means — then we think we must answer all the questions in favor of the defendant. Said §33 or 5117 reads as follows: ■
“No debt created by the fraud or embezzlement of the bankrupt, or by bis defalcation as a public officer, or while acting in any fiduciary character, shall be discharged by proceedings in bankruptcy; but the debt may be proved, and the dividend thereon shall be a payment on account of such debt.”
For the present we shall pass over the question whether the debt in the present case was created by the fraud or embezzlement of the defendant; but in passing we might say, that if the defendant held the money received .from the plaintiff in a fiduciary character, then we think that the debt was also created by the fraud and embezzlement of the defendant. (The State v. Bancroft, 22 Kas. 170.)
We now pass to the next question : That the defendant held the money in a fiduciary character, we think is clear beyond all doubt. (Abbott’s Law Die., title “Fiduciary,” and cases there cited.) But the question still remains to be answered, Did he hold it in a fiduciary character within the meaning of said act of congress? 'The defendant claims that he did hot, and cites certain cases (the case of Chapman v. Forsyth, 43 U. S. [2 How.], being the leading case) decided under the act of congress of 1841, relating to bankruptcy. None of these authorities, however, are applicable, as we think, for the reason, among others, that the statute of 1841 differs materially from the present statute, that of 1867. The language of the act of 1841, corresponding to the language of § 33 of the act of 1867, reads as follows:
“All persons whatsoever, residing in any state, district or territory of the United States, owing debts which shall not have been created in consequence of a defalcation as a public officer, or as executor, administrator, guardian or trustee, or while acting in any other fiduciary capacity,” may be discharged by proceedings in bankruptcy. (5 U. S. Stat. at Large, p. 441, § 1.) “Nor shall any person being a merchant, banker, factor, broker, underwriter or marine insurer, be entitled to any such discharge or certificate, who shall become bankrupt, and who shall not have kept proper books of account, after the passing of this act.” (5 U. S. Stat. at Large, p. 444, §4.)
The foregoing authorities cited by the defendant (plaintiff in error) hold that, as the act of 1841 enumerates public offi cera, executors, administrators, guardians and trustees as persons who shall not be discharged, and also mentions factors, brokers, etc., as persons who may or may not be discharged according to circumstances, therefore that the words “other fiduciary capacity ” were not intended to include factors, etc., or any cases of implied trusts, or any trusts resulting merely by operation of law; or, in other words, that the words “other fiduciary capacity” referred only to persons acting in a capacity similar to that of a'public officer, or executor, administrator, guardian, or trustee. The defendant also cites decisions in cases which have been decided since the act of 1867 took effect, construing said act, which decisions follow the previous decisions, holding substantially that the act of 1867 is in effect only a reenactment of the act of 1841, or at most, that it does not preclude persons or debts from being discharged by proceedings in bankruptcy under the act of 1867, if such persons or debts could have been discharged by proceedings in bankruptcy under the act of 1841. We do not think that these decisions are entitled to much weight, for the reason they merely follow previous decisions, without giving the differences between the two acts sufficient consideration. The last act was certainly not intended to be merely a reenactment of the first. If the intention of congress had been merely to reenact the first act, the language of the last act would have been the same as in the first. But by leaving out of the last act the words “ executor, administrator, guardian and trustee,” where these words were included in the first act, and also leaving out of the last act the words “factor, broker,” etc., where these words were included in the first act, and including in the last act only public officers and persons acting in a fiduciary character, congress either intended that all debts created by the defalcations of executors, administrators, guardians and trustees should be discharged as other debts are generally discharged, or intended that no debt created by the defalcation of any person “ while acting in any .fiduciary character” should be discharged. Now if we should construe the act of 1867 with said words left out, in the same manner that some of the authorities cited by the defendant construed the act of 1841, with said words incorporated in the act, then all debts would be discharged except such as are created by defalcation of a public officer, or by the defalcation of some person acting in a like capacity, such as a public agent for the collection and disbursement of money or other property belonging to the public. This would certainly narrow the meaning of the words, “any fiduciary character,” and broaden the provisions of the act for the discharge of fiduciary debts to an extent never contemplated by the framers of the act; and we do not think that it would be a fair or reasonable construction of the act. We think some of the decisions cited by the defendant are correct. But they do not decide this case. And there are some of the decisions referred to by the defendant with which we do not agree. We think that both reason and the weight of authority are against them. We think that the act of 1867 means just what it says. We think that “no debt created by the fraud or embezzlement *be bankrupt, or by his defalcation as a public officer, or while acting in any fiduciary char- , 1111 1*1 ii i* • aoter, snail be discharged by proceedings m bankruptcy;” and construing the act in this manner, the debt of the defendant is not discharged.
The authorities cited by the defendant upon all the foregoing points, including those authorities with which we agree and those with which we do not agree, are as follows: Chapman v. Forsyth, 43 U. S. (2 How.) 202; Phillips v. Russell, 42 Me. 360; Bissell v. Couchaine, 15 O. 58; Owsley v. Cobin, 16 Nat. B’cy Reg. 489; In re Smith, 18 Nat. B’cy Reg. 24; Cronan v. Cotting, 104 Mass. 245; Woodward v. Towne, 127 Mass. 41; McAdoo v. Lummis, 43 Tex. 227; The People v. Clews, 77 N. Y. 39.
We will now refer to the authorities which we think sustain our views of this case: Jones v. Russell, 44 Ga. 460; Meador v. Sharpe, 54 Ga. 125; same case, 14 Nat. B’cy Reg. 492; Treadwell v. Holloway, 12 Nat. B’cy Reg. 61; Lemcke v. Booth, 47 Mo. 385; In re Kimball, 6 Blatch. 292; Matteson v. Kellogg, 15 Ill. 547; White v. Platt, 5 Den. 269; Flagg v. Ely, 1 Edm. Sel. Cases, 206; Stoll v. King, 8 How. Pr. 298; Schudder v. Shiells, 17 How. Pr. 420; Ostell v. Brough, 24 How. Pr. 274; Noble v. Prescott, 4 E. D. Smith, 139; Burhand v. Casey, 4 Sandf. 707; Republic of Mexico v. De Arangoiz, 5 Duer, 634; Wolfe v. Brouwer, 5 Rob. 601; Dunaher v. Meyer, 1 Code Reporter, 87.
We do not think that it makes any difference that the defendant was not to receive any compensation for his services. He accepted the trust and entered upon its performance. He received the plaintiff’s money, and was to apply it in a particular way; and he certainly cannot now, as a defense to an action brought against him for converting the money to his own use, say that there was no consideration for his agreement, and therefore that he had a right to convert the money to his own use. He was not bound to receive the money; but having received it, it was then his duty to apply it as he agreed to apply it, or at least to return it to the plaintiff. He had no right to convert it to his own use.
The defendant, however, claims that the pleadings were not sufficient to permit the plaintiff to introduce evidence showing that the defendant held the money in a fiduciary capacity. There are two answers to this claim of the defendant: First, the pleadings were sufficient; and second, the question was not raised in the court below, but the parties introduced their evidence and the trial was had in every particular as though the pleadings were entirely sufficient to permit every portion of the evidence to be introduced that was introduced by the plaintiff. The petition itself states facts sufficient to show that the defendant received and held the money in a fiduciary capacity, and that it was by his defalcation while acting in such capacity that the cause of action arose. The answer denied this, and stated substantially that the defendant received and held the money in a different capacity when the cause of action arose; that he in fact received the money with the right to use it in his own business, and that the plaintiff’s claim against him was discharged by proceedings in bankruptcy. The plaintiff’s reply denied all the allegations of the defendant’s answer. Now, under these pleadings we think the plaintiff had a right to prove his cause of action, and by proving the same, he showed that the claim was one that could not be discharged by proceedings in bankruptcy. We think the pleadings were sufficient to permit the plaintiff to introduce all the evidence which he did introduce; but as we have stated before, no question was raised in the court below with regard to the sufficiency of the pleadings.
The defendant also claims that the court below erred in excluding certain evidence. The evidence excluded was a portion of the testimony of J. M. Steel, the assistant cashier of the Emporia National Bank, and was as follows: Question — “State whether during the latter part of November and fore part of December, 1876, your bank was not permitting Mr. Herman to overdraw his account?” Answer: “Yes.”
We think this evidence was wholly immáterial. If it was the intention of the parties that the defendent should take the money received from the plaintiff to Emporia, and ^ere with this identical money purchase exchange for the plaintiff, then it was certainly no defense to show that the bank allowed the defendant to overdraw his account; for he would nevertheless be holding the money received from the plaintiff in a fiduciary character; and he failed to use the money as he agreed, failed to discharge his trust, and failed to procure the exchange by any means. But if it was the understanding of the parties that the defendant might use this money in his own business and obtain exchange on his own account, then the defendant would not be holding the money in a fiduciary capacity, whether the bank allowed him to overdraw his account or not; and in such case the claim of the plaintiff would have been wholly discharged by the proceedings in bankruptcy without reference to his dealings with the bank. The case was tried from be ginning to end upon this theory. We think the exclusion of said testimony was not prejudicial to the rights of the defendant.
The judgment of the court below will be affirmed.
Horton, C. J., concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
Higginbotham recovered judgment against Ritchie and Walker, in the district court of Shawnee county. Two other judgments were also recovered against Ritchie, in the same court. Executions were issued on each of these three judgments and placed in the hands of the sheriff, under each of which a levy on a large amount of property belonging to Ritchie was made — the levy in each case being identical. An appraisement of the property was made under the levy in the Higginbotham execution, but not under the levies of the other two. Nothing further was done under these three executions, and upon the return day they were returned by the officer, with the levies undisposed of. On the 17th day of November, 1879, an alias execution was issued on each of these three judgments, and placed in the hands of the officer simultaneously. These executions were ordinary fieri facias executions, and were in the ordinary language used in such executions: “These are therefore to command you, that of the goods and chattels, lands, tenements and chattels real, of the said T. H. Walker and John Ritchie, you cause to be made the debt,” etc. There was no order for the sale of property previously levied upon; no clause of venditioni exponas in any of them, nor indeed any reference whatever to a former levy. Only incidentally and from the statement in respect to costs, does it appear that any prior executions had been issued. The sheriff under these executions made his returns thereon, that he was unable to find any goods, chattels, or personal property of either Walker or Ritchie on which to levy, and to use his exact language, “I did, on the 18th day of November, 1879” — one day after the receipt of these executions by him — “under and by virtue of this execution, and to satisfy the same, the levy made upon a former execution in this case, to which this return has special reference, is hereby continued by virtue of this writ,” etc. He thereupon, without further appraisement, advertised and sold, under each execution, the property levied upon, to Higginbotham. Ritchie tendered in open court the amount of Higginbotham’s bids on one of the tracts of land sold, and moved to set aside the sale of that tract, which motion was overruled, the sales confirmed, and which order and rulings of the court Ritchie now asks may be reviewed and reversed.
The principal question in this case .is, whether the levy made under the prior execution was continued over and sufficient to j ustify a sale under the last execution.1 Counsel contends that the last execution directed the sheriff to levy; that the execution was not in form a vendi; and that to justify a sale under a second writ, without a second levy, there must be a distinct and direct command in the writ to sell the property previously levied upon. We cannot agree with counsel in these views. Section 451, to which he refers, refers solely to a levy upon goods and chattels. If for any reason they are not sold upon the execution under which they were levied upon, that section provides for the issue of a writ, which, while not •called a vendi, is doubtless its equivalent. Section 452 probably refers only to such writs as are named in the previous section; yet if it were held to extend to executions upon which levies upon real estate are made, it would throw little light upon this question, and would simply show that where a vendi was ordered out for the sale of real estate, it would be perfectly proper to include in it the ordinary .command of a fi. fa. to make the debt. Section 463 reads as follows: “If lands or tenements levied on as aforesaid are not sold upon one execution, other executions may be issued to sell the property so levied upon.” Now this language does not name the fi. fa. or vendi as used under the old common-law practice, but speaks of executions, and from the form of the expression evidently contemplates writs, of the same nature. It says when “not sold upon one execution, •other executions may be issued.” The natural inference from such language is, that writs of the same kind and form are referred to. That, we think, is the fair and reasonable construction of the language. When we add to that the fact that under the old common-law practice the vendi ran generally only to personal property, or. was used as a rule only in a levy upon personal property, it is evident that the language of our statute should not be construed as providing for a vendi upon a levy in the case of real estate, unless such de parture is clearly recognized in the statute. In Herman on Executions, §35, it is said that “a venditioni exponas is a writ by which the sheriff’is commanded to sell goods and chattels, and in some cases lands, which he has taken in execution by virtue of a ji. fa., and which remain in his hands unsold. The object of this writ, so far as it regards personal property, is to force the sheriff to sell when he has returned a levy unsold for want of buyers, and to bring him into contempt for not selling it. He cannot therefore again return ‘ Not sold for want of buyers/” To the same effect is the definition given by Bouvier in his Law Dictionary. (2 Bouvier, 633, citing several authorities.) Freeman, in his work on Executions, §57, says: “The officer is bound to return the writ of fi.fa. by the return day thereof, and is liable to suit if he does not return it either executed or with a sufficient excuse for not returning it. In case he returns that he has made a levy and gives sufficient excuse for not selling the property levied upon, then the plaintiff may, by procuring a writ of venditioni exponas, compel him to proceed with the same. This writ is therefore properly defined as the writ which compels an officer to proceed with the sale of property levied upon under a ft. fa.” These citations show that a vendi was usual only when the levy was upon personal property, and that while in some states it was resorted to, even in the case of a levy upon real estate, such is not the true practice unless specifically directed by the statute. As we have seen, our statute nowhere names a vendi, and the only section which in terms provides for anything equivalent thereto, is one which refers to a levy upon personal property, so that whether we rest upon the common law or upon our own statute, it is obvious that a vendi in ease of levies upon real estate is not a necessity for a valid sale after the return of the first execution. It is unnecessary to hold that such a writ is not authorized, and would not be valid even where the levy was made upon real estate. It is enough for the purpose of this case to hold that such a writ is not compulsory; and that an ordinary execution similar to the old fi.fa. is sufficient to support a sale made under a levy upon a previous execution. That a levy under one execution is sufficient to sustain a sale upon a subsequent execution, is in terms provided for by the statute. (Sec. 463, supra; see also Boughton v. Lord, 10 Ohio St. 454.) Indeed, where the statute makes the judgment alien on the real estate, it is difficult to perceive why any levy should be made or required. (Judd v. Houston, 12 Ired. 118; Wood v. Colvin, 5 Hill, 228; Freeman on Executions, § 280.) A judgment binds personal property and real estate without-the county from the time that it is seized in execution, (Code, §444;) but as to real estate within the county, the judgment operates as a lien from the day of its rendition, and in some cases from the first day of the term in which it is rendered. ( Code, § 419.) As to the latter lands, the levy neither makes-nor strengthens the lien, and its particular necessity is not clear; however, as the statute provides for it, doubtless it must be made, but no great stress need be laid upon it as an essential fact in the preservation of defendant’s rights. The levy once made, the statute provides that it is good for a sale under a second execution, and there being nothing naming a different form of the second execution, the same form may properly be resorted to. It follows, therefore, that the sale, so far as this question was concerned, was perfectly regular.
A second proposition of counsel is, that as there were executions issued under three separate judgments, and a levy made upon the property under each execution, and a sale in the same way, there should be a separate appraisement under each execution, or the sale must be adjudged irregular. It may be sufficient to say, that if the sale is good under one execution, it ought to be sustained; that if there is one valid writ properly executed, a purchaser ought to be enabled to rely upon that; but beyond that, where there are three separate writs placed in the hands of the officer at the same time, commanding the same thing', and under these three writs a levy is made upon the same property, we think it a useless expense and an unnecessary burden upon the defendant to compel him to pay the costs of three'several appraisements. (Doug las v. McCoy, 5 Ohio, 522.) We think this objection must also fail. And finally, we remark that the court has not the same discretion that the chancellor had in approving or disapproving a sale. The party who bids and is awarded the purchase at a sheriff’s sale upon an ordinary execution, has rights, and this whether he be a plaintiff in the execution, or a stranger. If he bids in good faith and the proceedings are regular, he is entitled to the property, and the court may not refuse him a confirmation of the sale and deed. In this case we can but think the proceedings were regular, and the sale should therefore be confirmed. The plaintiff has waited for years. His judgment was in 1875, and in 1879 this sale; and after this long delay we think the defendant is not in a position to make any great claim upon the equitable consideration of the court.
The ruling of the district court was correct, and must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This case has been to this court once before, and is reported in 25 Kas. 25. As it then came to this court, it was an action of ejectment. The district court had found in favor of the defendant. Upon the facts, however, this court differed with the district court, reversed its judgment, and remanded the case, with instructions to enter judgment for the plaintiff. Thereupon, the defendant applied for the benefit of the occupying-claimant law. This application was submitted to the court under the following statement of facts:
Sometime in the year 1870, John Newland, now deceased, and his wife, Rachel Newland, defendant in this action, settled upon the tract of land in controversy, to wit, the east half of the southwest quarter, and the west half of the southeast quarter, of section sixteen, in township twenty-nine, south, of range seventeen, east, in Wilson county, state of Kansas, and proceeded to improve the same. Soon thereafter, in the same year, Newland filed in the local land office, then situated at Humboldt, Kansas, his declaratory statement under sec. 12, act of July 15, 1870, an act of congress providing for the sale of lands formerly occupied by the Great and Little Osage Indians, to actual settlers. Newland tendered the local land office the amount of money necessary under the act of congress aforesaid, and offered to make the necessary proofs, and demanded his certificate of entry, which was, by the local land office, refused, for the reason that the lands sought to be purchased were included within the grant to the state of Kansas for the use of schools. Afterward, on the 20th day of June, 1871, John Newland contracted with the state of Kansas to purchase the lands mentioned, under the law making provision for the sale of school lands in the state of Kansas, and then and there made his first annual payment under said contract, and on the 20th day of June, 1872, made his second annual payment, and made no further payment under said contract thereafter. In the year 1873 the tract of land in dispute was assessed for taxation, and, being delinquent, was, on the 4th day of September, 1875, sold for the tax of 1874, and was bid in by the county treasurer for the county of Wilson. The land was also assessed for the years 1875 and 1876. Sometime in the year 1875 John Newland died, leaving his wife, Eachel, in possession of the premises in dispute. In the year 1876, Eachel New-land filed her declaratory statement under sec. 12, act of July 15, 1870, aforesaid, at the local land office at Independence, Kansas, and afterward' tendered to the local land office the amount necessary to enter the land under the act of congress aforesaid. The local land office refused to accept her money, for the same reason that John Newland’s money was refused at the local land office at Humboldt. On the 18th day of July, 1877, the plaintiff, E. P. Baker, a resident of the state of Iowa, paid to the treasurer of Wilson county the taxes levied on said land for the years aforesaid, with interest, penalties and costs, and took an assignment of the lands in dispute, and on the same day paid to the treasurer of Wilson county the principal and interest due the state on the contract of John Newland. Upon this payment being duly certified to the proper officers, a patent was issued to plaintiff by the state. And thereupon, defendant refusing to surrender possession, this action was brought. ■
The question now before us is, whether upon these facts defendant has any right under the occupying-claimant act. The district court held that she had not, and we think its ruling was correct. It will be borne in mind that at common law the owner of the title took all the improvements made upon the estate. When he established his right to possession, it mattered not what improvements were made or upon what claim or color of title, they all belonged to him. Whenever it was adjudged that the title was in one party, it took not merely the land, but also all improvements by whomsoever put thereon. So, but for the occupying-claimant act, the moment title was adjudged in the plaintiff, that moment it carried to her not merely the land, but all improvements put upon it. The occupying-claimant act is an act in mitigation of the harsh rule of the common law, and being in the interests of equity, and not merely a statement but also an enlargement of the old rules of equity, it is, as counsel claims, to be liberally construed; but if when thus liberally construed, its provisions do not reach to the case at bar, there is no basis for any claim of the defendant for compensation for improvements. Now upon the facts stated, this land was school land; defendant’s husband entered upon it believing it Indian land, and subject to sale; he attempted to purchase it from the United States; when informed that the United States did not have it for sale, but that it belonged to the state, he contracted for- its purchase from the state; purchasing upon a contract for the payment at intervals, he made two annual payments, and then ceased to pay. Upon the basis of this contract for purchase, and the rights acquired thereby, his default in the payment of purchase-money, as well as in the payment of taxes, plaintiff’s title rests. This may be looked at in one or two lights. In the one aspect the plaintiff’s title is this: The defendant being in possession of school land, and having defaulted in payment, thereby forfeited to the state both land and all improvements thereon. (The State v. Emmert, 19 Kas. 546.) This right of the state to the land and improvements was transferred to the plaintiff, and in this aspect plaintiff’s title was a derivative title, taking from the state that which it then had, the absolute right to the land and improvements. She took the same title that a voluntary grantee would, or a purchaser at a sheriff’s sale. In another aspect of the case, she was a purchaser at a tax sale, and the purchaser at a tax sale buys not merely the land, but all improvements upon it. Whatever is part of the realty is assessed as such, is taxed as such, and upon a sale for non-payment of taxes, is all sold as such. So that in whichever aspect of the case we may regard it, plaintiff had the right not merely to the land itself, but to all improvements on it. She was either subrogated to the state’s right to all improvements made by a defaulting purchaser of school lands, or she was a purchaser at a tax sale, taking under such purchase both land and improvements. Under neither aspect can defendant find any relief in the occupying-claimant law, and hence the ruling of the district court must be affirmed. •
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action of replevin. The defendant J. L. Smith, a constable of Reno county, by virtue of an execution issued in favor of the defendant the Denver Leather, Whip and Collar Company, and against James Rozell, levied upon a certain stock of goods and two stacks of wheat, as the property of said James Rozell. All of this property, so levied upon, was replevied from the constable by the plaintiff, Charles Rozell, he claiming to be the absolute and unqualified owner thereof. On the trial of the case in the district court, which trial was before the court and a jury, the plaintiff claimed only a special ownership in the wheat. He claimed that prior to the levy of the execution he had purchased the stock of goods from James Rozell, and that he had a special ownership and right of possession in and to the wheat, by virtue of a chattel mortgage given him by James Rozell, to secure a debt due him from James Rozell, which chattel mortgage he claimed had been duly filed in the proper office for record. The defendants on the trial claimed that both the sale of the goods and the execution of the chattel mortgage were consummated for the purpose of hindering, delaying and defrauding the creditors of James Rozell, and especially of defrauding the Denver Leather, Whip and Collar Company. The verdict and judgment in the court below were in favor of the defendants; and the plaintiff, as plaintiff in error, now brings the ease to this court.
The only ground for error urged in this court is, that the verdict of the jury with regard to the plaintiff’s claim to the wheat stacks is not sustained by sufficient evidence. It seems to be admitted that the evidence is sufficient to sustain the verdict of the jury with regard to the stock of goods; but it is claimed by the plaintiff that all the evidence upon the subject tends to prove the execution of said chattel mortgage, and that there is no evidence tending to show that it was executed for the purpose of hindering, delaying or defrauding creditors; or that it is void for any other, reason; and therefore it is claimed by the plaintiff that his claim to the wheat is made out beyond all doubt. The proof of plaintiff’s claim to the wheat rests, however, wholly and entirely upon his own testimony in the case; and if his testimony is sufficiently overcome by the other evidence in the case, or by the circumstances of the case, then the verdict of the jury upon that question, as well as upon the other questions, is correct.
In the first place, when the plaintiff commenced his action of replevin, he filed an affidavit setting forth substantially that he was the absolute owner of the wheat. Afterward, and on the trial, he claimed only to have a special interest therein. He there admitted that the wheat belonged to his father, James Rozell, but claimed that he had a chattel mortgage on the wheat, executed by his father to himself. He claimed that his father executed the chattel mortgage to secure a debt of $300, due from his father to himself; and also claimed and testified that this chattel mortgage was executed on December 3, 1878, and that it was filed in the proper office for record on December 9, 1878.
Now that such achattel was executed, is probably sufficiently proved; but when it was executed, or when it was recorded, or whether James Rozell owed the plaintiff $300 or not, rests wholly and entirely upon the testimony of the plaintiff himself. The plaintiff did not introduce the testimony of his father to show any of these things, although his father testified in the case; nor did he introduce any certificate or other evidence of the register of deeds, or the testimony of any other person, except himself, to show when the mortgage was filed for record; nor did he introduce the testimony of any other person, except himself, to show that his father owed him $300. It is shown that the plaintiff resided at Great Bend, and that his father resided at Hutchinson, during all the time that the transactions were occurring which were testified to by the plaintiff and the other witnesses who testified in the case. The plaintiff testified that he “received” this chattel mortgage from his father; but where he was when he received it, or where his father was, is not shown.
Probably he was at Great Bend, and probably his father, was at Hutchinson, and probably he received it through the United States mail; but the evidence does not show these things, and there is nothing in the evidence to show that the plaintiff ever had the wheat in his possession, and in all probability he did not. In all probability it remained in the possession of his father. He probably never saw it. The plaintiff also testified that in October, 1878, he purchased his father’s stock of goods, which were at that time in Hutchinson ; that he allowed his father to continue in the possession of the goods at Hutchinson, and to continue in charge of the business carried on by means of them, at that place, up to the time when the goods were levied on by the constable, in June, 1879; and that in the meantime he continued to furnish his father with other goods to carry on the business at Hutchinson. It was shown, however, by the other evidence, and was found by the jury, that this was all false; that his father continued to carry on the business in Hutchinson in the name of Rozell & Buhler — his father being one of the partners, and John Buhler being the other. It was also shown that his father was considerably in debt. It was also shown that in May, 1879, he, the plaintiff, told a man by the name of Aller, who was a traveling agent and salesman for the Denver Leather, Whip and Collar Company, “ that his father was getting along very well, and he thought he would be able to pay his debts soon; that he had the best prospects for a good wheat crop he had seen in Reno county.” It does not appear that his father owned any other wheat than that which was mortgaged ; it does not appear that the son ever had possession of the wheat; and the plaintiff himself testified that the wheat was worth scarcely more than enough to pay for harvesting, threshing and marketing the' same.
Now the jury probably connected together all the transactions between the father and son concerning said stock of goods and concerning the wheat, and found that they were all fraudulent, (as the sale of the goods undoubtedly was,) and found that they were all entered into as one comprehensive transaction for the common purpose of hindering, delaying and defrauding the creditors of the plaintiff’s father; and as the evidence tended to show, and as the jury found, that the plaintiff testified falsely as to one thing, they may have also found that he testified falsely as to all. They may have applied the maxim, Falsus in uno, falsus in omnibus, to the plaintiff’s testimony. We think that there were some grounds, at least, and probably sufficient grounds, for them to apply such maxim to his testimony; and if they did, and if they excluded his evidence; then there was no sufficient legal evidence left in the case tending to show that he had any claim to the wheat in controversy, to authorize a verdict in his favor; and if the plaintiff’s claim to the wheat was not good, then the verdict of the jury is unquestionably correct.
We think there was sufficient evidence under the rules often enunciated by this court to sustain the verdict of the jury, and therefore the judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
On October 6, 1874, Gates & Kendall filed their bill of particulars before B. E. Smith, a justice of the peace in McPherson township, McPherson county, against S. P. Lindgren and F. O. Lindgren, late partners as Lindgren Bros. On October 29, 1874, judgment was rendered by the justice for the plaintiffs against the defendants for $300 debt, and $25.30 costs. When the bill of particulars was filed, an order of attachment was issued to the sheriff of the county, by whom sufficient goods to satisfy the judgment belonging to the defendants were levied upon under that attachment. At the date of the attachment the goods so levied upon, and all other property of defendants, had been assigned to one L. M. Holmberg for the benefit of creditors. On the 4th day of November, 1874, Holmburg as such assignee replevied the goods from the sheriff. The action of replevin was brought in the district court of the county, and judgment rendered therein, September 17, 1875, in favor of the sheriff for the possession of the property. From this judgment Holmberg prosecuted proceedings in error to this court. The judgment of the district court was affirmed at our July term, 1878. No execution was issued on the judgment before the justice of the peace. An order of sale was issued at the time of the rendition of the judgment, directing a sale of the attached property, but nothing was done under it on account of the replevy of the goods by Holmberg. About the time the case was taken on.error to the supreme court, defendants and Holmberg tendered the goods to the attorney for Gates & Kendall, at Salina, and notified him they would not be responsible for them any longer. At this time the goods were at or near Lindsburg, in McPherson county, and Gates & Kendall were not within the state of Kansas, neither were they residents of the state. After the judgment in the replevin action, Lindgren Bros, never had any possession or interest in or benefit of the goods. On the 17th day of February, 1880, an abstract of the judgment rendered before the justice of the peace on October 29, 1874, was filed and docketed in the district court of McPherson county. On the 29th of March, 1880, Gates & Kendall filed their motion in the district court to revive the judgment. On the 13th day of April, 1880, Lindgren Bros, filed their motion to dismiss the proceeding of Gates & Kendall. At the October term of the court for 1880 a hearing was had, the motion of Gates & Kendall was sustained, and the judgment revived. The motion of Lindgren Bros, was denied; the latter parties excepted, and bring the case here.
The question before us is, Did the district court have jurisdiction to revive the judgment? At the time the abstract was filed with the clerk of the district court, the judgment of the justice had become dormant, more than five years having elapsed since its rendition without the issuance of execution. So long as a judgment is dormant, the law will not permit the judgment debtor to be disturbed by execution. This is upon the theory that the law presumes the judgment satisfied. (State v. McArthur, 5 Kas. 280.) Now while § 518 of the code authorizes a transcript of the judgment to be filed in the office of the clerk of the district court, yet within the spirit of that section and the sections immediately following, it is apparent that the object of filing such an abstract is to give the judgment creditor a lien upon the real estate of the judgment debtor, and to permit him to issue execution out of the district court; ,but as the filing of the transcript or abstract of a dormant judgment does not give any lien upon any real estate, or authorize the issuance of any execution until further or additional steps are taken, § 518 does not apply where the judgment is dormant. If a dormant judgment cannot be revived before a justice of the peace, certainly a revivor cannot be obtained by taking an abstract of such a judgment and having proceedings thereon under § 522 of the code. If the judgment may be revived by the justice, such revivor ought to have been had prior to filing a transcript in the district court. (State v. McArthur, supra; Angell v. Martin, 24 Kas. 334.) Counsel suggests that as an order of sale was issued by the justice, and afterward stayed by the replevy of the goods, the time the order of sale was in existence should be excluded from the computation of the time, and upon this theory claims that the judgment was not dormant. We do not perceive anything in the suggestion. The order of sale was returnable in sixty days, and deducting this time, more than five years had elapsed before filing any abstract. (Sec. 137, Justices’ Code.)
The judgment of the district court must be reversed, and case remanded with order to sustain motion of plaintiffs in error.
All the Justices concurring. | [
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The opinion of the court was delivered by
"Valentine, J.:
This was an action brought by the plaintiff in error, H. S. Campbell, to enjoin the defendants in error, David Coonradt and T. M. Hobson, from committing waste upon a certain lot in the city of Paola, Kansas. The amended petition alleges that the plaintiff is the owner of the lot, and has been ever since the month of August, 1878; that in the month of August or September, 1878, the plaintiff took actual possession of the lot and inclosed it with a fence; that soon afterward the defendant Coonradt unlawfully and forcibly took possession of the lot and erected a dwelling house and other improvements thereon, after being warned by the plaintiff not to intermeddle with the premises; that the dwelling house is attached to the lot, and stands upon a substantial foundation; that the chief value of the lot consists in the improvements; that upon the first day of November, 1878, the plaintiff commenced an action under the forcible entry and detainer laws of the state of Kansas, before a justice of the peace, for restitution of the property, and upon the 12th day of December, 1878, obtained a judgment for restitution, from which judgment the defendant Coonradt appealed to the district court, and there obtained a judgment against the plaintiff; that the judgment of the district court was afterward reversed by the supreme court, (22 Kas. 704,) that the cause is now pending in the district court; that the defendants threaten to and are about to remove from the lot the dwelling house, fencing and other improvements, and place them upon another lot held by the defendant Coonradt under a tax deed; and that neither of the defendants has any interest in, or title to the premises. The plaintiff prays for a temporary injunction, and that it may be made perpetual upon the final hearing.
The defendant Hobson made default. The defendant Coonradt filed his answer, which did not specifically controvert the allegations of the plaintiff’s petition, but alleged that Coonradt had a tax deed on the property; that he was advised and believed that he had a good and legal right to take possession of the premises in the manner in which he did; that, acting upon this advice and belief, he entered upon the premises, and erected a dwelling house thereon, and made other improvements thereon, to the value of six hundred dollars; that when the decision of the supreme court of the state of Kansas in the case of Campbell v. Coonradt, (22 Kas. 704,) was made, he was of the opinion that he would have to surrender the possession of the premises to the plaintiff; that he was making arrangements to place the premises in exactly the same condition they were in when he took possession, or as nearly as could be done; and that the improvements he sought to remove were made at his own expense. To this answer the plaintiff' demurred, upon the ground that it did not state facts sufficient to constitute a defense. Upon the hearing of this demurrer, the court held that the amended petition did not state facts sufficient to entitle plaintiff to an injunction, and dissolved the temporary injunction which had been granted at the commencement of the suit, and granted a suspension of the order under §567 of the civil code, and gave judgment in favor of the defendants and against the plaintiff for costs. Plaintiff excepted, and now brings the ease to this court for review.
The statute under which the defendant Coonradt took his appeal from the justice of the peace to the district court reads as follows:
“Sec. 11. In appeals taken by the defendant in actions for the forcible entry and detention, or forcible and unlawful detention of real property, the undertaking on appeal shall be conditioned that the appellant will not commit or suffer waste to be committed on the premises in controversy; and if, upon the further trial of the cause, judgment be rendered against him, he will pay double the value of the use and occupation of the property from the date of the undertaking until the delivery of the property pursuant to the judgment, and all damages and costs that may be awarded against him.” (Laws of 1870, ch. 88, §11; Comp. Laws 1879, p. 721.)
There is no pretense that the appeal bond given by the defendant Coonradt was not amply sufficient in every particular, and no pretense that the defendant Coonradt, or either of his sureties, was not amply able to respond to any amount of damages that might be adjudged against them. There is no pretense that the defendant Coonradt, or either of his sureties, was or is insolvent. The only question then is this: Can the plaintiff maintain an action for an injunction, where he has an adequate remedy for damages, provided he has any remedy? And the recovery of damages for the removal of the improvements would certainly be an adequate remedy, for the improvements were never in the possession of the plaintiff, or in the possession of any of his grantors or ancestors ; and neither he nor any of his grantors or ancestors ever expended any money for their construction, and the removal of the same would not leave the estate in any worse condition than it was when the defendant took the possession thereof. There is no ground upon which the plaintiff could entertain any tender sentiment of love or affection or attachment for the improvements; and hence, as a mere matter of sentiment, he cannot ask for an injunction to prevent their removal. Complete damages for their removal would cer tainly be as full a satisfaction to any sentiments which he entertains, as an injunction to prevent their removal. Besides, it would be better for him to first obtain his judgment in the suit for forcible entry and detainer, and obtain all the relief he can in that suit, and then commence an action for any additional relief to which he may be entitled. Such a course would tend to avoid a multiplicity of suits.
The question presented for our consideration, stated more at length and in more exact terms, we think, is substantially as follows: Where A. owns, and is in the possession of certain real estate, and B., believing himself to be the owner and entitled to the possession thereof, forcibly dispossesses A., and takes possession of the property himself, and then makes valuable and lasting improvements thereon, and A. then commences an action of forcible entry and detainer against B., obtains a judgment before the justice, and B. appeals to the district court, giving a sufficient bond, with ample security, that he will not commit or suffer waste to be committed on the premises, and that he will pay double the value of the use of the property, and all damages and costs, if judgment should be rendered against him; and B. and his sureties are perfectly solvent, and B., expecting judgment to be rendered against him in the forcible entry and detainer case, threatens to remove the improvements made by him from the premises: can A. maintain an action for an injunction to restrain B. from removing such improvements? We think; under the circumstances of this case, that he cannot; and therefore the'judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action on a promissory note, brought by Hargus and Sommers against Snyder. The defendant answered, setting up that the note was given for nursery stock which was shipped in the spring of 1876 by the plaintiffs, from Quincy, Illinois, to the defendant, in Doniphan county, Kansas; that by the agreement between the plaintiffs and defendant, the nursery stock was to be of particular kinds, of good quality, in good condition, and shipped in good condition, in box oars; but that in fact it was not of the quality agreed upon, was not in good condition, was not shipped in good condition, and was not shipped in box ears; but was shipped in open cars, and that it was wholly worthless and valueless when received by the defendant; that afterward, on the 26th day of August, 1876, the plaintiffs represented to the defendant that the nursery stock when shipped was of the quality agreed upon, and in the condition agreed upon, and that it was shipped in good condition, and in box cars, as agreed upon; but that the railroad company did not do its duty; that there had been an accident on the road, and that the nursery stock had been changed from box cars to open cars, and that the injury to the nursery stock which rendered it worthless and valueless had occurred while it was being shipped from Illinois to Kansas, and because of the fault of the railroad company, and that the defendant’s remedy was against the railroad company, and not against the plaintiffs; and the defendant, believing the plaintiffs, then gave them said promissory note; but that the representations made by the plaintiffs were wholly false; that the nursery stock had not been injured from any fault of the railroad company, but that its worthlessness was due entirely to the fault of the plaintiffs. This is the substance of the answer, though we have not used the words of the defendant. The defendant states the facts in greater detail than we have stated them. •
The plaintiffs demurred to this answer, on the ground that it did not state facts.sufficient to constitute a defense to the plaintiffs’ cause of action; and the court below sustained the demurrer, and rendered judgment in favor of the plaintiffs and against the defendant for the amount of the promissory note. The defendant then brought the case to this court.
The only question presented in this court is, whether the said answer of the defendant stated facts sufficient to constitute a defense to the plaintiffs’ cause of action. We think it did. If the answer of the. defendant stated the facts correctly, and the plaintiffs by their demurrer admit that it did, then there was no consideration for the promissory note. It seems strange that the defendant, after receiving the nursery stock in the spring, should not have been better informed on August 26, afterward • but still, as he was not informed, and gave his note ignorantly, and because of the false representations of the plaintiffs, we do not think that the plaintiffs have any just right to recover. That does not give them any right to recover something for nothing. (6 Wait’s Actions and Defenses, 567 to 579, and cases there cited.)
The judgment of the court below will be reversed, and cause remanded for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This is an application for an injunction, filed in the district court of Shawnee county. But one question is presented in the record, and that is, whether upon the allegations in the petition the plaintiff is entitled to an injunction? The district court held that he is not, and from such ruling the plaintiff alleges error. The petition, in brief, states these facts: The plaintiff, as was well known to the defendant, is an eminent Congregational clergyman of pronounced opinions on all moral questions of the day. He was an early settler in Topeka, for some years pastor of the Congregational church in that place, and his reputation there was fixed as a man who believed in the pernicious effects of theaters. For some time past he has resided in the state of New York, but.still owning real estate in Topeka, which from time to time he leased to various parties through special contracts executed by himself. In looking after his business and collecting rents, he employed as agents, Ross & Still-son, who had, however, no authority to lease or to bind the plaintiff by any new contracts. These agents attempted to lease lots of plaintiff’s, on which was erected a building known as the “ Tabernacle,” to the defendant for the purpose of general amusements, including theatrical performances. Plaintiff’s repugnance to such amusements was well known to his agents, and should have been known by defendant. As soon as plaintiff heard of this transaction, which he did in a very few days by seeing a notice of it in the paper, he repudiated the same by telegraph to the parties, demanding the abrogation of the pretended lease and the cessation of the use of his property for the purposes mentioned, but the defendant declined to abandon the property or discontinue the use. Hence, this action was brought.
Do these facts show a case for the interference of a court of equity by the remedy of an injunction? It is clear that the plaintiff, having never leased the lot or authorized its lease, is entitled to his legal action to recover possession. The defendant has taken possession without authority from the owner, and he has' no right to such possession. In all such cases of the unauthorized taking possession of real estate, the ordinary remedy is an action at law for the recovery of possession. Under some circumstances the owner may maintain forcible entry and detainer, and in all he may maintain ejectment. Both are actions at law. Has he the further remedy of injunction? Counsel for plaintiff concede that this is a case of first impression, and that a careful examination of the authorities discloses no precedent for such an action. They insist, however, that our statute concerning injunctions is very broad — broad enough to cover such a case as this — and that unless equity will interfere there is no adequate remedy. Section 238 of the code authorizes “restraining the commission or continuance of an act, the commission or continuance of which, during the litigation, would produce injury to the plaintiff.” The unauthorized possession by defendant is of course an injury to plaintiff’s rights, and entitles him to relief; but no one will contend that a mere unlawful possession gives occasion for the interference of a court of equity. The reasons for this are familiar to every lawyer. In equity neither party is of right entitled to a jury, but the constitution preserves inviolate the right of trial by jury as it exists at the common law, and an action for the recovery of real estate is one in which at common law parties are entitled to a trial by jury. They have a right to the verdict of a jury upon the questions whether plaintiff was owner, whether the defendant was in possession, and whether if so the possession was unlawful. In this very case defendant has a right to the verdict of a jury upon the questions whether Ross & Stillson were general agents of plaintiff and generally authorized to bind him by leases, or were specially authorized to make a lease of these lots without any limitations as to the purposes for which they should be used, and indeed upon every fact essential to plaintiff’s right to the possession of the premises. The legislature has not the power, even if it should attempt it, to deprive a party of this right of trial by jury by simply changing the form of the action; for if it could in respect to the recovery of real estate, it could in respect to any other common-law action, and so by simply legislating as to forms, set at naught the constitutional guaranty. Does the fact that the defendant, having an unlawful possession, is using the property for purposes abhorrent to the plaintiff’s convictions, justify the interference of a court of equity? It must be borne in mind that the use to which this property was put by defendant, however obnoxious to the plaintiff, is not illegal. The defendant violates no law in running a theater, and whatever may be the opinions of the plaintiff or others as to the immoral tendencies of the theater, the law does not condemn its existence. Doubtless the plaintiff feels outraged by having his property used for such purposes, but can it be said that his legal rights are infringed by use for any purpose which the law does not condemn? Careful reflection convinces us that equity will be permitted to interfere to restrain a use, if at all, only when the use is illegal; for there are vast numbers of uses to which property may be put which are sanctioned by law, yet which are immoral in their tendencies in the judgment of many, and obnoxious to their convictions of what is right, as well as what is useful and best for society. One may disbelieve in theaters, another in public ball-rooms, and a third in rooms where brokers gamble in stocks, provisions, etc., while still another in lecture-rooms which are open to Spiritualists, Universalists, and infidels. Political convictions are intense in some, and the use of their property by the adherents of another political party, or for the dissemination of opposite political opinions, would be felt to be an outrage and trespass upon their convictions. Indeed, the diversity of belief is so great that a vast number of the uses to which property may legally be put, would be found wrong in the judgment of some. In all such cases can equity be permitted to interfere and restrain the use because of the honest convictions of the owner of the impropriety or immorality of such use? The very great number of cases which in such event would be transferred from the domain of law to that of equity, and thus be relieved from the constitutional guaranty of a trial by jury, compels the conclusion that no precedent can be found, because none can constitutionally be made. Counsel refer to cases in which a lessor has obtained an injunction to restrain the lessee from putting property to uses forbidden by the lease, but those cases are not in point; the principle which underlies them is very different. The lessor has a right to the continuance of the lease, to the benefits of the rent; in affirming the contract he is simply insisting that the lessee shall also conform to the contract. • True, he may perhaps declare the lease forfeited and recover the property, but he may not desire to do this; he may not be able to lease for the same rent or to an equally responsible tenant, and the lessee ought not to be permitted to compel the lessor either to take back the property or tolerate a forbidden use. But here the unauthorized lease was for theatrical purposes; the plaintiff cannot affirm it in part and disavow it in part. He cannot compel the defendant to retain the property and pay rent and at the same time discontinue the purpose for which he attempted to lease it. By his suit he disavows this act of his agents — this unauthorized lease — and must therefore repudiate it in toto. It is simply the case of the defendant unlawfully taking possession of the plaintiff’s property. The relation of landlord and tenant never existed. There is no contract relation between the parties. Defendant by his possession and use has violated no contract, and by his use violates no law. In such case the only remedy is the ordinary common-law action for the recovery of possession.
So far as the reputation of the plaintiff is concerned in the community where he once lived, where he is now well known and honored, that reputation is sustained by his prompt disavowal of the unauthorized lease and an action at law for the recovery of possession, as fully as it would be by a suit in equity. He stands before the community proclaiming his continued adherance to his old-time convictions, and cannot for a moment be thought to have dallied with what he be lieves to be wrong. Those convictions the law will respect; it will protect defendant in his adherance to them, and will give to the fullest extent all its ordinary processes and remedies for their protection.
Counsel, conceding that there is no precedent to sustain this action, intimate that this court should establish one; but it is the duty of courts to stand by the ancient landmarks, to walk super antiguas vias. Additional remedies must be established by other bodies and in otherways.
The conclusion therefore to which we are necessarily led is, that the facts stated by plaintiff in his petition are not such as will entitle him to the interference of a court of equity, or take away the constitutional guaranty of trial by jury.
The judgment of the district court will therefore be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This case is a correlate to the case of Walkenhorst v. Lewis, 24 Kas. 420. It was an action of forcible entry and detainer, commenced before a justice of the peace and certified to the district court upon a plea of title. After judg ment for the plaintiff, a motion for a new trial was made, and then it was stipulated that such motion should be continued until the decision of the case above named in the supreme ■court. The stipulation further provided that if, taking all the records in that case, title was in the heirs or any one of them, that a new trial should be granted. That case was the foreclosure of an equitable mortgage, in which service was made by publication upon the defendants, who were non-residents and some of them minors. Long after judgment and sale the defendants appeared and filed a motion to vacate the judgment, which was overruled by the district court. To review this ruling that case was brought to the supreme court, and thereafter the ruling of the district court was affirmed. Now it is claimed that one of the defendants was not named in the publication notice, and therefore was not concluded by that judgment, and that her title to the property was not thereby extinguished. The single question now is, whether upon the •entire record, that defendant retains any title to the property. The record discloses that her name was not in the publication notice. She was therefore not brought into court prior to the judgment, and so far as the judgment then stood it did not •divest or affect her title. But it is insisted that by the motion she entered an appearance, submitted herself to the jurisdiction of the court, and cannot now be heard to say that the judgment was void. It is insisted on the other side that this court virtually decided the question by the opinion filed in 24 Kas., supra. The facts in reference to that motion more particularly are as follows: There were several defendants, some of them minors. The motion to vacate the judgment recited that the parties specially appeared, and moved to set aside the judgment as void for several reasons — among them, that the petition of the plaintiff did not state facts sufficient to uphold the judgment; that no guardian ad litem, was .appointed for the minor defendants; and because no service was made upon the minor defendants, as required by law. At the time the motion -was filed, it was supposed that the names of all the defendants appeared in the publication no tice; but after the ruling of the district court upon the motion it was discovered that in some way the name of one ■of the minor defendants had been omitted, so that she in fact had not been served, and when the record was presented to this court for review an attempt was made to raise the question for the first time here. In disposing of the matter we said: “We are not at liberty to consider objections to the service not presented to the district court in the motion whose review is sought in this proceeding in error. Of course if any defendant was not named in the publication notice, and not otherwise served, the judgment has no effect upon his rights or interests in the property.” We see no reason to doubt the correctness of that proposition of law, but did not intend to anticipate or decide any questions not then involved in the case. The question now is, not whether this defendant was originally served or concluded by the judgment at the time it was rendered, but whether her subsequent action has not shut her off from any remedy. This question has never been before us, and must be decided upon the record as it now stands. In the first place, we remark that this appearance by the motion, though called special, was fact a general appearance, and by it this defendant appeared so far as she could appear. The motion challenged the judgment not merely on jurisdictional but also on non-jurisdictional grounds, and whenever such a motion is made the appearance is general, no matter what the parties may call it in their motion. (Cohen v. Trowbridge, 6 Kas. 385; Fee v. B. S. Iron Co., 13 Ohio St. 563; Grantier v. Rosecrance, 27 Wis. 491; Alderson v. White, 32 Wis. 309.) Such a general appearance to contest a judgment on account of irregularities will, if the grounds therefor are not sustained, conclude the parties as to any further questioning of the judgment. A party cannot come into court, challenge its proceedings on account of irregularities, and after being overruled be heard to say that he never was a party in court, or bound by those proceedings. If he was not in fact a party, and had not been properly served, he can have the proceedings set aside on the ground of want of jurisdiction, but he must challenge the proceedings on that single ground. This is familiar doctrine. See the cases last cited.
But it is further insisted, that being still a minor she could' not enter an appearance by an attorney, and was never served. Authorities are cited to show that a minor cannot enter her appearance by an attorney. Section 33 of the code is referred to, which provides that the defense of an infant must be made by the guardian for the suit, who cannot be appointed till after service of the summons. She was never served, and no1 guardian was ever appointed. The motion which was filed shows that this minor appeared by her next friend, and as that is the form in which an action by a minor is to be brought,. (Code, § 31,) it is insisted on the other hand that she can in the same way appear in the court whenever she is seeking affirmative relief, as in the case at bar. This we think is the true construction of the statute, for otherwise, as is well said by counsel, a minor’s interests might be prejudiced by a judgment in fact void, but apparently regular and valid, without-any opportunity to the minor to obtain relief by having it set aside. Of course the other side would not be interested to bring her in, and if she could in no way come in voluntarily, the judgment, apparently regular, might work great hardship to her interests without possibility of relief. The true rule seems to be, that whenever a minor not in court seeks affirmative relief such minor has a right to institute any action or proceeding, appearing therefor by her next friend or guardian ; such appearance, while not wholly within the strict letter of the statute, is clearly within its spirit, and is necessary for the rights of a minor. We conclude, therefore, that this appearance of the minor by the motion was legal and valid,. and that having thereby entered a general appearance and challenged the judgment on non-jurisdictional grounds, she cannot, after filing such motion,, now be permitted to say that she was never in court, and is not concluded by that judgment.
The case being submitted to us upon this single question,. and it appearing that the court erred in its ruling, the order must be reversed, and the case remanded with instructions to overrule the motion for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by Edward Arn against Frederick Hoerseman, Frederick Jansen, Joseph Hoerseman, and E. L. Buesche, to set aside certain deeds of conveyance, claimed to have been executed for the purpose of hindering, delaying and defrauding the creditors of Frederick Hoerseman. A trial was had before the court, without a jury, and the court found generally in favor of the defendants and against the plaintiff, and rendered judgment accordingly. No special findings were made by the court below. The plaintiff now brings the case to this court, and asks that the j udgment of the court below shall be reversed, on the ground that it is not sustained by sufficient evidence,' and is against the evidence.
The evidence showed that Edward Arn was a creditor of Frederick Hoerseman. It also showed that Frederick Hoerseman executed certain deeds of conveyance which had the effect to hinder and delay, and possibly to defeat, Edward Arn in the collection of his debt. But it is claimed by the defendants that the evidence does not show that these deeds were executed with any intention on the part of Hoerseman of hindering or delaying Edward Arn, or any other creditor, in the collection of his debt. The evidence also tended to show that these deeds of conveyance were executed by Frederick Hoerseman for the purpose of paying other creditors, and that while Frederick Hoerseman may possibly have intended to hinder and delay Edward Arn in the collection of his debt, yet that his principal intention was to pay other creditors — or in other words, that Frederick Hoerseman simply intended to prefer other creditors to Edward Arn.
We do not think that the plaintiff sufficiently proved his case; for while he probably introduced sufficient evidence to show that Frederick Hoerseman executed the deeds of conveyance with the intention of hindering, delaying, and possibly defrauding Edward Arn, yef the evidence does not sufficiently show that the parties accepting such conveyance had any knowledge of Frederick Hoerseman’s supposed fraudulent intent, or that they participated in the supposed fraud. There was perhaps sufficient evidence introduced as against Joseph Hoerseman to raise a suspicion that he might possibly have had knowledge of Frederick Hoerseman’s intent, and that he participated therein; but there was not sufficient evidence to prove the same, and there was sufficient countervailing evidence, if taken alone, to prove directly the reverse. And there was really no evidence against the other defendants, Frederick Jansen and E. L. Buesche.
We cannot reverse the general finding of the court below. We cannot reverse it even with reference to Frederick Hoerseman; for, as we have said in other cases, “Where a case is tl^e^ by the court without a jury, and a general finding of facts is made upon oral testimony, such pt • p-i* r* finding is a finding or every special thing necessary to be found to sustain the general finding, and is conclusive in the supreme court upon all doubtful and disputed questions of fact.” (Winstead v. Standeford, 21 Kas. 270.) But even if we could reverse the general finding of the court below with regard to Frederick Hoerseman, still we could not reverse the finding as to the other defendants, and therefore we could not reverse the judgment. The instruments of conveyance more particularly complained of were a deed and a mortgage executed by Frederick Hoerseman to his brother, Joseph Hoerseman, but the evidence shows that this deed and mortgage were executed for the purpose of paying and securing debts to Joseph Hoerseman, and that Joseph Hoerseman had no intention of defrauding any creditor of Frederick Hoerseman, but only to procure payment and security of his own debt; and although this deed and mortgage had the effect to hinder and delay, and possibly to defeat the collection of the debt from Frederick Hoerseman to Edward Arn, yet it is not such a hindering or delaying of creditors as renders the deed or mortgage invalid. They simply have the effect to give Joseph Hoerseman priority in the collection of his debt, and do not deprive Edward Arn of any legal right that he may have, for no creditor has a legal right, independent of a specific lien, to any priority over the other creditors, and the debtor has a right, even when financially embarrassed, even when in failing circumstances, to prefer one creditor over another, if he'chooses to do so. This is necessarily so, for if he could not prefer one creditor over another, it would be difficult for him to pay any creditor. Of course the preferred creditor must act in good faith, and must not obtain more than is honestly and justly due him; and if he does so act in good faith he does not become liable to any other creditor, although his act, with that of the debtor, may have the effect to wholly defeat the collection of all the other creditors’ claims. He is not obliged to look out for the welfare of other creditors, nor to consider whether their claims shall be collected or not, and he does not violate any statute or any principle of ethics or morals by simply obtaining payment of his own debt. The finding of the court below is a virtual finding that all the parties acted in good faith.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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Per Ouriam:
The plaintiff and defendant, prior to April 10, 1§78, were partners in the mercantile business at Great Bend. 'On the 3d day of April, 1878, the defendant brought suit against the plaintiff, alleging that the plaintiff had ap propriated partnership property to his own use in excess of. his interest in the firm, and praying for a dissolution of the firm, an accounting of their business, and a division of the assets. On April 10, 1878, by mutual agreement, a dissolution of the firm was effected, a division of the assets made, and the suit dismissed, the plaintiff receiving as his share of the effects the notes and book accounts owing to the firm on account of the sales of merchandise sold by the firm to parties on time up to and including the 9th day of April, 1878. On July 22, 1878, the plaintiff filed his petition in this action,' alleging that some days prior to the 10th of April, 1878, the defendant collected and converted to his own use two accounts' then due the firm, amounting in the aggregate to $409.90; that defendant made no credit on the partnership books to the parties from whom the accounts were collected; that he did. not inform the plaintiff of the collections; that the defendant collected said accounts and converted them to his own use without making any entry on the books, or giving any information to the plaintiff, for the purpose of defrauding said, plaintiff* and concealing from him the collections. Plaintiff further alleged that he accepted the book accounts and notes of the firm as his portion of the assets, upon the belief that the said accounts were still due the firm, and that by the settlement he would be the owner thereof; that the settlement was obtained by fraud' and concealment of the defendant. The petition contained a prayer that plaintiff recover from the defendant his damages of $409.90, with interest from April 10, 1878. Defendant filed an answer, alleging that plaintiff had appropriated to his own use profits of the business without the knowledge or consent of defendant; and that he gave to one James McGee, improperly and unlawfully, the sum of $700 in excess of any indebtedness of the firm to said McGee. ‘ To this answer a general denial was filed. The case was submitted to the court without a jury, and the court rendered judgment in favor of plaintiff for the sum of $48.24, together with all costs in the case. Plaintiff excepted to the judgment, and brings the case here, and claims that he is entitled to judgment for $409.90.
It appears from the record before us that each party asked special findings of the court, but the court was not asked to make findings as to all the facts in the case, and the record does not purport to contain all the evidence. While the petition of plaintiff and 'the special findings asked by him and found in his favor by the court would fully justify a judgment in his favor of the amount sued for, yet the special findings asked for by defendant, and found in his favor, fully support the claim of defendant that several hundred dollars were paid to McGee, a brother-in-law of plaintiff, by plaintiff out of the moneys of the firm, without any consideration therefor, and without the knowledge and consent of defendant. On account of these payments or gifts, the claim of plaintiff was reduced by the court to the amount of the judgment. The questions of fact at issue between the parties rested mainly upon the credibility of the witnesses, and we perceive no reason upon the record as presented to us, for reversing the general finding.
The judgment of the court below must therefore be affirmed. | [
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The opinion of the court was delivered by
Brewer, J.:
The facts in this case are briefly as follows: The Wellington & Western Railroad Co. commenced proceedings before the county commissioners for the condemnation of the right of way; the road ran through plaintiff’s land; damages were awarded to him by the county commissioners, but, dissatisfied with the award made by them, he determined to appeal to vthe district court. In pursuance of this intention, he filed with the county clerk a bond running to the Cowley, Sumner & Fort Smith Railroad Co. The mistake arose, as appears from the affidavit of the attorney for plaintiff', from the fact that the two roads made application to the commissioners for the condemnation of the right of way at about the same time; that he, as attorney, was employed by parties along the line of both roads to appeal from the award of damages, and that from mistake and oversight he prepared the bond as running to the wrong road. Upon the strength of the bond filed by defendant, he applied for leave to file a new bond running to the right road, which motion was overruled by the district court, and upon motion of the defendant the appeal was dismissed. The single question therefore arises, whether upon a judgment in favor of A., and an appeal attempted by giving a bond in favor of B., the district court has the power or ought to permit the perfecting of the appeal by the filing of a new bond running to A. Doubtless where an appeal bond is simply irregular or defective, under §§ 139 and 140 of the code, and 131 of the justices’ act, the appellant should be permitted to supply a new in place of the defective bond; but the bond as filed in this case was an absolute nullity. It was not a bond to the party in interest, but one running to a stranger; not a bond to a trustee or one interested in or affected by these proceedings, but a bond to an absolute stranger to the record. The bond was not simply defective or irregular, or insufficient in amount, or insufficient in security, but a bond which, running to a party entirely a stranger to the record, was a perfect nullity. The bond was nothing; it was like a blank piece of paper filed in the case. The district court refused to permit the filing of a new bond, or the perfecting of the old one, and in this we think its ruling was correct. The ease comes down to this: Upon a judgment in favor of A., an appeal bond is filed running to B., and there is no connection or relation of any kind between A. and B.; one has nothing to-do with the suit of the other, and no special equities áre shown. The bond given is not irregular, or defective; it is void, amounts to nothing, and furnishes no basis sufficient to compel an amendment. (Gates v. Sanders, 13 Kas. 411.)
We see no error in the ruling of the district court, and it must be affirmed.
All the Justices concurring. | [
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Pierron, J.:
Brian L. Brown, Sr., appeals the district court’s dismissal of his motion to abate child support payments and motion for writ of habeas corpus ad testificandum. The appellees have filed no brief.
In 1991, Barbara Maloney was granted a divorce from Brown. The court ordered him to pay $111 per month in support. The record is unclear whether the support was for alimony or child support. In September 1993, the court ordered Brown to pay the current support and arrearages in excess of $2,100. In November 1993, Brown was incarcerated in the Hutchinson Correctional Facility. The record does not indicate what crime Brown had committed.
In September 1994, Brown filed a motion for modification of child support, a petition for writ of habeas corpus ad testificandum, and a motion to transport. The district court denied all three motions.
In December 1994, Brown filed a motion for the abatement of his support order and a motion for temporary visitation of a con fined person. After a continuance, the district court denied the motions in May 1995.
On March 22,1996, Brown filed a motion to abate child support payments because he had no wages or employment and an income level of zero. Attached to his motion, Brown filed a domestic relations affidavit explaining his income situation as a result of incarceration. After the motion was set for hearing, Brown filed a motion for writ of habeas corpus ad testificandum and a motion to transport. In a letter dated May 29, 1996, the district court informed Brown his motions had been placed on the dismissal docket and the court knew of no statutory authority or case law which gave it the authority to transport him to the court for a hearing on his motion to reduce child support. The court directed Brown to provide authority, or the motion would be dismissed.
On June 6, 1996, the district court considered Brown’s motion to reduce child support on its dismissal docket. The court entered an order dated June 28, 1996, finding that Brown had failed to appear and had failed to provide any authority obligating the court to transport him to the hearing. As a result, the district court dismissed the motion for failure to prosecute.
Brown argues the district court erred in failing to grant his motion to transport. He cites Price v. Johnston, 334 U.S. 266, 92 L. Ed. 1356, 68 S. Ct. 1049 (1948), for authority that a court may, in its discretion, command that a prisoner be brought before it to argue his own appeal in a case involving his fife or liberty. The Price court found it had such authority based on its ability to issue all writs not specifically provided for by statute which are necessary for the exercise of jurisdiction and agreeable to the usages and principles of law. 334 U.S. at 278-79.
Price does not require a court to grant such relief, it simply acknowledges the court’s discretion to do so. Here, the court declined. We see nothing in Price which requires the court to grant such relief.
There are, of course, many disadvantages which can be imposed on a convicted felon. One is the severe limitation on the ability to conduct personal business as a result of incarceration. On these facts, we see no right of the petitioner to be present for a hearing on this motion.
However, we do find it was not appropriate for the trial court to simply dismiss the motion without consideration. The court was aware Brown could not attend in person. The issue raised by Brown was properly before the court. A hearing was not necessary if the court wished to rule on the basis of what was before it, after giving the opposing party an opportunity to respond.
We therefore reverse the summary dismissal of the motion and remand this matter for further consideration.
Brown contends he is not earning any money in jail except minimal “incentive pay” and that his child support should be reduced accordingly. He argues the effect of a denial of his motion was that an order of child support was entered without complying with the child support guidelines. See In re Marriage of Schletzbaum, 15 Kan. App. 2d 504, 506-7, 809 P.2d 1251 (1991) (trial court must follow child support guidelines).
The trial court has yet to rule on this matter. Although we have found no Kansas authority concerning this issue, we note the cases of Brockmeier v. Brockmeier, 91 Ohio App. 3d 689, 633 N.E. 2d 584 (1993), and In re Marriage of Phillips, 493 N.W.2d 872 (Iowa App. 1992), which have generally discussed the issue.
Reversed and remanded for further proceedings. | [
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Smith, J.:
The defendant, Rafael Hernandez, appeals his convictions of sale of marijuana, conspiracy to sell marijuana, and no drug tax stamp. We affirm in part and remand the cause to the district court for resentencing.
A jury convicted the defendant of offering to sell marijuana, conspiracy to sell marijuana, and no drug tax stamp. Defendant’s convictions stemmed from an undercover marijuana buy which occurred in Dodge City, Kansas. The State’s primary witness was Officer Ray Riniker, an undercover police officer from the Wichita Police Department. Officer Riniker had telephone contact with defendant and Pedro Rivera on several occasions, arranging a purchase of controlled substances. Defendant made arrangements with Riniker over the telephone for a meeting at which defendant and Rivera would deliver marijuana to Dodge City. These telephone contacts were initiated through a confidential informant. Both Rivera and defendant were communicating with Officer Riniker from Truth or Consequences, New Mexico.
Officer Riniker and another undercover officer met defendant and Rivera at a restaurant in Dodge City. Eventually, several kinds of drugs and possible transactions were discussed. Later, the four men went to a motel room where defendant and Rivera produced seven packages of plastic-wrapped marijuana. Defendant told Officer Riniker to open one of the packages and see how he liked the marijuana. Once the details of the buy were agreed upon, Officer Riniker signaled the surveillance officers to come in and arrest defendant and Rivera.
At sentencing, the State moved for an upward durational departure, which the trial court granted. Defendant was sentenced to 59 months’ imprisonment on the offer to sell marijuana conviction, 52 months’ imprisonment on the conspiracy to sell marijuana conviction, and 7 months’ imprisonment on the no drug tax stamp conviction. The two marijuana sentences were ordered to run consecutively and the tax stamp sentence was ordered to run concurrently.
MILITARY CONVICTIONS
Defendant’s criminal history includes three military convictions. In 1983, he was convicted of one count of wrongful distribution of mefhamphetamine and two counts of wrongful distribution of marijuana. The trial court found in the present case that these convictions should be counted as three previous felony convictions for criminal history purposes. Defendant argues the Kansas Sentencing Guidelines Act (KSGA) is silent as to how military convictions are to be scored; therefore, they must be scored as misdemeanors.
K.S.A. 21-4711(e) requires the sentencing court to include military convictions in criminal history: “Convictions or adjudications occurring within the federal system, or other state systems, the District of Columbia, foreign, tribal or military courts are considered out-of-state convictions or adjudications.”
In determining criminal history, the sentencing court looks to the state in which the conviction occurred to determine if the crime is classified as a felony or misdemeanor. The court looks to the most comparable Kansas offense to determine whether the conviction is classified as a person or nonperson crime. K.S.A. 21-4711(e). This issue arises from the fact that military convictions are not designated as either felony or misdemeanor. See Uniform Code of Military Justice, 10 U.S.C. §§ 877-934 (1994).
The KSGA does not provide how to classify prior convictions when the convicting jurisdiction does not classify the crime as either felony or misdemeanor. How to so classify represents a question of first impression for this court.
The applicable rules of statutory construction are well settled:
“The 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.”
“In determining legislative intent, courts are not limited to a mere consideration of the language used but look to the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have under the various constructions suggested.”
“In order to ascertain the legislative intent, courts are not permitted to consider only a certain isolated part of parts of an act but are required to consider and construe together all parts thereof in pari materia. When the interpretation of some one section of an act according to the exact and literal import of its words would contravene the manifest purpose of the legislature, the entire act should be construed according to its spirit and reason, disregarding so far as may be necessary the literal import of words or phrases which conflict with the manifest purpose of the legislature.” State v. Gonzales, 255 Kan. 243, Syl. ¶¶ 2, 3, and 4, 874 P.2d 612 (1994).
While criminal statutes are generally strictly construed against the State, this principle is subordinate to the rule that judicial interpretations must be reasonable and sensible to effectuate the legislative design and true intent of the legislature. State v. Schlein, 253 Kan. 205, Syl. ¶ 2, 854 P.2d 296 (1993). The legislature is presumed to intend that a statute be construed reasonably so as to avoid absurd or unreasonable results. Todd v. Kelly, 251 Kan. 512, 515, 837 P.2d 381 (1992).
Defendant argues that criminal statutes must be strictly construed and because the legislature provided no specific guidance when the convicting jurisdiction does not classify crimes as either misdemeanor or felony, the crime must then be scored as a misdemeanor. Under such analysis a conviction for murder, rape, or a similar crime would be scored as a misdemeanor.
A similar problem interpreting the KSGA was addressed in State v. Fifer, 20 Kan. App. 2d 12, 881 P.2d 589, rev. denied 256 Kan. 996 (1994). Fifer addressed the legislature’s failure to specifically address how to classify “attempts” as either person or nonperson crimes. This court discussed the philosophy of the KSGA and reached a result based upon the obvious intent of the legislature and a desire to avoid a clearly unreasonable result. 20 Kan. App. 2d at 15-16.
We conclude that the rationale applied in Fifer is equally applicable here. The legislature knows that under general principles of criminal jurisprudence, states generally divide the seriousness of crimes into two basic categories, felonies and misdemeanors. It is equally clear that the two most important factors for the court to consider in determining a sentence under the KSGA is the criminal history of the defendant and the severity of the crime committed. The specific intent of the legislature is that all prior adult felony convictions, including expungements, be considered and scored in determining a defendant’s criminal history. See K.S.A. 21-4710(d)(2).
We conclude the legislature intended the sentencing court to compare a prior conviction to the most comparable Kansas offense to make a felony or misdemeanor determination when such conviction occurred in a jurisdiction that does not distinguish between felonies and misdemeanors. We are convinced such intent is clear when the pertinent parts of the KSGA are construed in pari materia. For us to conclude otherwise would effect an unreasonable result at odds with the legislature’s manifest intent.
THE DEPARTURE SENTENCE
Defendant contends the upward durational departure sentence imposed here was not justified by the evidence in the record. The role of this court in reviewing this issue was set forth in State v. Richardson, 20 Kan. App. 2d 932, Syl. ¶ 1, 901 P.2d 1 (1995):
“In an appeal from a departure sentence an appellate court must determine pursuant to K.S.A. [1994] Supp. 21-4721(d) whether the sentencing court’s findings of fact and reasons justifying departure (1) are supported by substantial competent evidence and (2) constitute substantial and compelling reasons for departure as a matter of law.’’
Here, the departure was granted on a motion of the State alleging defendant’s crimes were part of a major organized drug manufacturing, production, cultivation, or delivery activity contrary to K.S.A. 21-4717(a), which provides in relevant part:
“The following aggravating factors, which apply to drug crimes committed on or after July 1, 1993, under the sentencing guidelines system, may be considered in determining whether substantial and compelling reasons for departure exist:
“(1) The crime was committed as part of a major organized drug manufacture, production, cultivation or delivery activity. Two or more of the following nonexclusive factors constitute evidence of major organized drug manufacture, production, cultivation or delivery activity:
(D) The presence of manufacturing or distribution materials such as, but not limited to, drug recipes, precursor chemicals, laboratory equipment, lighting, irrigation systems, ventilation, power-generation, scales or packing material.
(F) Possession of large amounts of illegal drugs or substantial quantities of controlled substances.
(G) A showing that the offender has engaged in repeated criminal acts associated with, the manufacture, production, cultivation or delivery of controlled substances." (Emphasis supplied).
Because the sentencing court relied on aggravating factors specifically set out in the KSGA, such factors are substantial and compelling as a matter of law. Further, there is substantial competent evidence supporting each of the three aggravating factors upon which the court relied. The court based its finding related to the packaging materials on the fact that the marijuana was carefully wrapped in layers of plastic and taped to prevent a drug-sniffing dog from detecting the presence of marijuana in the packages. Regarding the large amount factor, the court found that seven bricks of marijuana which weighed approximately 8.36 pounds was a large amount. Finally, the trial court found that defendant’s history of drug convictions during his military service illustrated his repeated involvement with controlled substances. We are convinced the findings of fact and reasons justifying defendant’s departure sentence were supported by substantial competent evidence and were reasons that constitute a substantial compelling reason for imposing a departure sentence.
THE NONBASE SENTENCE AND POSTRELEASE SUPERVISION PERIOD
Defendant raises two additional issues concerning the sentence imposed by the trial court. First, defendant contends the trial court erred in its calculation of the departure sentence as to the nonbase conspiracy conviction. Secondly, defendant contends the trial court erred in setting the postrelease supervision at 36 months.
Under K.S.A. 21-4720(b)(5), when the trial court imposes sentence for multiple crimes, the court must establish a base sentence for the primary crime using the full criminal history score. The primary crime is generally the crime with the highest severity level. The remaining crimes are scored using a criminal history score of I.
Under the facts presented, defendant’s conviction of offering to sell marijuana is the primary crime, and defendant’s full criminal history score is applied to that crime to establish the base sentence. Thus, the conspiracy conviction, a severity level 3 offense, is scored using a criminal history score of I. Under K.S.A. 21-3302(d), K.S.A. 1994 Supp. 65-4163(3), and K.S.A. 21-4705, the presumptive sentence for the conspiracy conviction is anywhere from 8 to 10 months. Pursuant to K.S.A. 21-4719(b)(2), the maximum upward durational departure can be no more than double the presumptive sentence, which here would be 20 months. Thus, it was error for the sentencing court to impose a departure sentence of 52 months on the conspiracy conviction.
Defendant further contends the trial court erred in calculating his postrelease supervision period. Without comment, the court imposed a 36-month postrelease supervision period when K.S.A. 1994 Supp. 22-3717(d)(l)(A) provides for a 24-month postrelease supervision period. The 1995 amendment to 22-3717, which prescribed a presumptive 36-month postrelease supervision period, did not become effective until April 20, 1995.
Although the defendant’s period of postrelease supervision may have been the subject of a departure, the record is silent as to whether the court intended to apply a departure analysis in establishing the postrelease period. Because reversal of the sentence on the conspiracy conviction requires that the cause be remanded to the trial court for resentencing, the postrelease supervision period should be revisited in accordance with this opinion.
SUFFICIENCY OF EVIDENCE
Defendant complains the evidence presented at trial was insufficient to support a conviction of conspiracy to sell marijuana. When sufficiency of the evidence to sustain a conviction is questioned, this court reviews all the evidence, viewed in a light most favorable to the prosecution, to determine if a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Knighten, 260 Kan. 47, Syl. ¶ 1, 917 P.2d 1324 (1996).
“To establish a conspiracy it is not necessary that there be any formal agreement manifested by formal words, written or spoken; it is enough if the parties tacitly come to an understanding in regard to the unlawful purpose and this may be inferred from sufficiently significant circumstances.” State v. Small, 5 Kan. App. 2d 760, Syl. ¶ 2, 625 P.2d 1, rev. denied 229 Kan. 671 (1981).
Further, “while an agreement is a necessary element of a conspiracy, the existence of the agreement does not need to be proved directly but may be inferred from other facts proved.” 5 Kan. App. 2d 760, Syl. ¶ 3.
Here, the evidence showed that on different occasions, both the defendant and Rivera called Officer Riniker to discuss and make arrangements for the marijuana sale. Defendant and Rivera re ferred to each other during these telephone conversations. Defendant and Rivera drove together from New Mexico to Dodge City, produced the marijuana from the car they drove together, and jointly presented the marijuana to the undercover officers. There is sufficient evidence in this record to support the defendant’s conspiracy conviction.
MULTIPLICITOUS CHARGES
This court’s standard of review on questions of multiplicity is plenary. State v. Perry, 16 Kan. App. 2d 150, 151, 823 P.2d 804 (1991).
“The test to determine whether the charges in a complaint or information are multiplicitous is whether one offense requires proof of an element not necessary to prove the other offense. If so, the charges stemming from a single act are not multiplicitous.” State v. Utterback, 256 Kan. 340, Syl. ¶ 2, 886 P.2d 808 (1994). The conspiracy to sell marijuana charge required proof of an agreement between defendant and Rivera to sell the marijuana. Proof of that agreement was not a required element of the offer to sell marijuana charge; therefore,, the charges are not multiplicitous.
PROSECUTIONAL MISCONDUCT
During closing arguments the prosecutor made the following statement:
“It is absolutely correct that the Defendant does not have to testify. The Defendant does not have to put on any case at all. When we walked in, I bore the burden of proof to you. And if I can’t prove it, she’s right, he’s not guilty. But once the Defendant elects to make a defense and put on a defense, you get to evaluate it just as critically as you evaluate mine. It’s not a one-sided deal. Everybody has choices and with those choices come responsibilities.”
Defendant objected, claiming this argument shifted the burden of proof from the State to the defendant. The trial court overruled the objection. Defendant now argues this statement constitutes an improper remark requiring reversal of his convictions.
“The prosecution is given wide latitude in language and in manner or presentation of closing argument as long as it is consistent with the evidence adduced. Improper remarks made by the prosecutor in closing argument are grounds for reversal only when they are so gross and flagrant as to prejudice the jury against the defendant and to deny the defendant a fair trial.” State v. Easthridge, 20 Kan. App. 2d 973, Syl. ¶ 3, 894 P.2d 243 (1995).
The prosecutor’s remarks related to the jury’s evaluation of defendant’s evidence, not a statement that the burden of proof had changed. While such argument may be improper, it was not so gross or flagrant as to prejudice the jury against defendant and to deny him a fair trial.
Affirmed in part, reversed in part, and remanded to the district court for resentencing consistent with this opinion. | [
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Gernon, J.:
This is an appeal by a conservator from a district court order which denied the establishment of irrevocable trusts for two conservatees.
The issue on appeal is whether Kansas conservatorship law, which prohibits a conservator from making decisions regarding the distribution of a conservatee’s property after death, conflicts with 42 U.S.C. § 1396p(d)(4)(A) (1994), which provides that an irrevocable trust established in compliance with the statute must provide that upon the death of the recipient/beneficiary, the remaining trust assets, if any, be used to reimburse the State to the extent the beneficiary had received Medicaid benefits.
The conservator, Holly Potelle, sought to provide in each trust that upon a beneficiary’s death, any remaining trust assets would be used to reimburse fhe State of Kansas to the extent that a beneficiary had received Medicaid funds. We note that current rules permit the retention of some funds of a conservatee for personal and other like expenses.
The district court ruled that Kansas law prohibits a conservator from disposing of a conservatee’s assets after the death of a beneficiary/conservatee.
Potelle contends that recent federal law preempts state law on this issue and allows her to do what the court did not. Hence, this appeal followed.
The conservatees, James Richard Watkins and Robert Virgil Watkins, are adult individuals under age 65 and are disabled as defined in 42 U.S.C. § 1382c(a)(3) (1994). As such, they are eligible for Medicaid assistance.
In January 1995, Potelle established two irrevocable trusts, one for the benefit of each conservatee, each funded with $28,000 inherited from their deceased father. The monies funding the trusts were received by Potelle in her capacity as conservator. The provisions of each trust are identical.
The Department of Social and Rehabilitation Services (SRS) became aware of the James Richard Watkins trust in the summer of 1995 and denied James further benefits because the trust assets represented “available” resources in excess of the maximum amount allowed under the Kansas Medicaid eligibility requirements. SRS reinstated James’ Medicaid benefits after the conservator revised the trust instrument to include a provision, in accordance with 42 U.S.C. § 1396p(d)(4)(A), that provides for reimbursement to the State after James’ death for any Medicaid benefits paid on his behalf during his lifetime.
The conservator filed petitions with the Probate Department of fhe Sedgwick County District Court, requesting approval of the establishment and funding of each trust and an accounting reflecting the transfer of fhe conservatorship funds into each trust.
The district court denied the petitions on the ground that a Kansas conservator has no authority to establish such a trust. The district court relied on In re Estate of Briley, 16 Kan. App. 2d 546, 825 P.2d 1181 (1992). The court found that the federal amendment was “nothing more than recognition legislation at best.” The court noted that “an irrevocable trust would deny a Conservatee access to his or her funds in the event of a restoration to capacity — a not uncommon occurrence.” The court ordered the conservator to transfer the “trust” funds back into the original conservatorship accounts.
Potelle contends that the rule in Briley has been preempted by federal law.
Justice Abbott, writing in Williams v. Kansas Dept. of SRS, 258 Kan. 161, 164-65, 899 P.2d 452 (1995), stated:
“ ‘The Medicaid program was enacted in 1965 as Title XIX of the Social Security Act, 42 U.S.C., §§ 1396, 1396a-u (1988) (“Medicaid Act” or “the Act”), as a cooperative federal-state program designed to provide health care to needy individuals. Although a state is not required to participate in the Medicaid program, once it chooses to do so it must develop a plan that complies with the Medicaid statute and the Secretary’s regulations. [Citation omitted.]
“ ‘A state, in administering its Medicaid program, must set reasonable standards for assessing an individual’s income and resources in determining eligibility for, and the extent of, medical assistance under the program. See 42 U.S.C. § 1396a(a)(17). Those standards must take into account “only such income and resources as are, as determined in accordance with standards prescribed by the Secretary, available to the applicant or recipient.” 42 U.S.C. §1396a(a)(17)(B).’ [quoting Himes v. Shalala, 999 F.2d 684, 686 (2d Cir. 1993)].
“See Clark v. Commissioner, 209 Conn. 390, 394-96, 551 A.2d 729 (1988).
“Kansas has elected to participate in the Medicaid program. K.S.A. 39-708c gives the Secretary of SRS the power and duty to determine general policies relating to all forms of social welfare and to adopt rules and regulations therefor. K.S.A. 39-708c(s) requires the Secretary of SRS to develop plans financed by federal funds and/or state funds for providing medical care for needy persons. Pursuant to that statute, the Secretary of SRS adopted regulations found at K. A.R. 30-6-34 et seq. SRS has also published the Kansas Public Assistance Manual (KPAM) detailing Medicaid eligibility and benefits.
“Only ‘available’ resources are considered in evaluating a Medicaid applicant’s eligibility. 42 U.S.C. § 1396a(a)(17)(B).”
In 1985, Congress enacted 42 U.S.C. § 1396a(k) (Supp. V1987), which closed a “loophole” in Medicaid that allowed individuals to set up certain trusts to preserve assets and at the same time still be eligible for Medicaid benefits. Section 1396a(k) stated that trust assets were available to the extent the trustee had the discretion to distribute the trust assets, regardless of whether any such distributions were made. Such a trust was called a “Medicaid qualifying trust” (MQT). Contrary to what the name implies, the assets contained in an MQT disqualified the individual for benefits to the extent the trust assets exceeded eligibility limits. See Williams, 258 Kan. at 164-66.
In 1993, Congress enacted the Omnibus Budget Reconciliation Act of 1993 (“OBRA 93”) which repealed 42 U.S.C. § 1396a(k). Williams, 258 Kan. at 173. The MQT statute, as it now appears at 42 U.S.C. § 1396p(d), provides in pertinent part:
“(1) For purposes of determining an individual’s eligibility for, or amount of, benefits under a State plan under this subchapter, subject to paragraph (4), the rules specified in paragraph (3) shall apply to a trust established by such individual.
“(2)(A) For purposes of this subsection, an individual shall be considered to have established a trust if assets of the individual were used to form all or part of the corpus of the trust and if any of the following individuals established such trust other than by will:
(i) The individual.
(ii) The individual’s spouse.
(iii) A person, including any court or administrative body, with legal authority to act in place of or on behalf of the individual or the individual’s spouse.
(iv) A person, including any court or administrative body, acting at the direction or upon the request of the individual or the individual’s spouse.
“[3](B) In the case of an irrevocable trust—
(i) if there are any circumstances under which payment from the trust could be made to or for the benefit of the individual, the portion of the corpus from which, or the income on the corpus from which, payment to the individual could be made shall be considered resources available to the individual, and payments from that portion of the corpus or income—
(I) to or for the benefit of the individual, shall be considered income of the individual, and
(II) for any other purpose, shall be considered a transfer of assets by the individual subject to subsection (c) of this section; and
(ii) any portion of the trust from which, or any income on the corpus from which, no payment could under any circumstances be made to the individual shall be considered, as of the date of establishment of the trust (or, if later, the date on which payment to the individual was foreclosed) to be assets disposed by the individual for purposes of subsection (c) of this section, and the value of the trust shall be determined for purposes of such subsection by including the amount of any payments made from such portion of the trust after such date.
“(4) This subsection shall not apply to any of the following trusts:
(A) A trust containing the assets of an individual under age 65 who is disabled (as defined in section 1382c(a)(3) of this title) and which is established for the benefit of such individual by a parent, grandparent, legal guardian of the individual, or a court if the State will receive all amounts remaining in the trust upon the death of such individual up to an amount equal to the total medical assistance paid on behalf of the individual under a State plan under this subchapter.” (Emphasis added.)
The statutory language recognizes and excepts the type of trust funds at issue in this case from consideration when determining the resources available to a Medicaid recipient. However, to qualify for the exception, the trust instrument presumably must contain language providing that the State will be reimbursed upon the beneficiary’s death for all Medicaid benefits received. Under Kansas common law, a conservator has no power or authority to dispose of a conservatee’s property after death. See In re Estate of Briley, 16 Kan. App. 2d 546, Syl. ¶ 3.
We note that the funds involved are distributions from the estate of the father of the conservatees. We note further that SRS approved the trusts and ruled the assets exempt for the purpose of determining Medicaid eligibility.
Obviously, the intent here, by establishing the trusts, was to shelter the inheritance for the purpose of Medicaid eligibility.
Each trust contains a provision for termination upon the death of the beneficiary and for Medicaid reimbursement.
To date, the only reported decision to interpret the 1993 amendment at issue in this case is Matter of Moretti, 159 Misc. 2d 654, 606 N.Y.S.2d 543 (1993). In Moretti, the mother and conservator of Michael Moretti filed a petition for reargument with the New York Superior Court after her petition to establish an irrevocable trust on behalf of her disabled minor son was denied on the grounds that such a trust was an MQT and could not be used to shelter funds from consideration when determining Michael’s eligibility for benefits. Upon reargument, the court vacated its prior decision in light of the 1993 amendment, finding that "OBRA '93 now makes clear that the disabled person’s assets may be transferred to a supplemental needs trust for his or her own benefit where the requisites of 42 U.S.C. § 1396p(d)(4)(A) are met.” 159 Misc. 2d at 661.
We do not disagree with the trial court’s interpretation of Briley. We simply conclude that the facts in Briley and the facts here are so different as to render Briley irrelevant for the purposes of this case.
The term “legal guardian” as set forth in 42 U.S.C. § 1396p (d)(4)(A) includes both conservators and guardians under the facts of this case.
We further conclude that the reasoning in Moretti is sound and that the trusts sought to be established here are contemplated both under federal law and state law.
We recognize the added responsibility placed on Kansas courts, given this ruling, to both scrutinize a trust to insure compliance with both state and federal law and to require accountings to insure that the trust assets are not wasted or dissipated contrary to law. For example, in the case before us, certain contributions to charitable organizations would certainly be questionable.
Reversed and remanded with directions to establish the irrevocable trusts. | [
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Gernon, J.:
In this appeal Karen Wheat, widow of John Edward Wheat, appeals from the district court’s decision to not award a family allowance to her and decedent’s minor children.
When John Edward Wheat died, his surviving spouse, Karen Wheat, received approximately $120,000 from his life insurance policy, and each of his minor children received approximately $180,000 from the policy. The minor children reside with Christina Wheat, the children’s mother, who is responsible for their support and maintenance.
On March 13, 1996, the district court issued an opinion denying an allowance from decedent’s estate pursuant to K.S.A. 59-403(b) for Karen Wheat and John Wheat’s minor children.
Karen filed a motion to reconsider the court’s ruling. The district court denied the motion. It also authorized the judgment as a final judgment pursuant to K.S.A. 1997 Supp. 60-254(b). Karen appeals.
We are somewhat hindered in our examination of this appeal by the fact that the appellees did not file a brief and that the record on appeal included only the journal entries and the judge’s memorandum decision.
The issue on appeal is whether the court erred in not awarding a statutory allowance pursuant to K.S.A. 59-403(b).
K.S.A. 59-403 states in pertinent part:
“When a resident of the state dies, testate or intestate, the surviving spouse shall be allowed, for the benefit of such spouse and the decedent’s minor children during the period of their minority, from the personal or real property of which the decedent was possessed or to which the decedent was entitled at the time of death, the following:
“(b) A reasonable allowance of not more than $25,000 in money or other personal or real property at its appraised value in full or part payment thereof, with the exact amount of such allowance to be determined and ordered bij the court, after taking into account the condition of the estate of the decedent.
“The property shall not be liable for the payment of any of decedent’s debts or other demands against the decedent’s estate, except hens thereon existing at the time of the decedent’s death. If there are no minor children, the property shall belong to the spouse; if there are minor children and no spouse, it shall belong to the minor children. The selection shall be made by the spouse, if living, otherwise by the guardian of the minor children. In case any of the decedent’s minor children are not living with the surviving spouse, the court may make such division as the court deems equitable.” (Emphasis added.)
The district court made the following finding regarding an allowance:
“There appears to be uniformity in the view that this estate is insolvent. Assets of the estate will not be sufficient to satisfy the demands of all creditors. Since that leaves nothing for those that would otherwise take under the will, this suggests that a monetary allowance should be made for the widow and minor children who will receive nothing from the estate. However, it was pointed out at the pretrial conference in this matter that the decedent left life insurance proceeds of approximately $1 million for his family. His surviving spouse received approximately $120,000. The minor children received approximately $180,000 each. Karen Wheat, the surviving spouse, succeeded to the interest of the decedent in the residence at 10800 West 115th Place, Overland Park, Kansas. The minor children reside with their mother, Christina Wheat, in Kansas City, Missouri, who is responsible for their support and maintenance.
“It does not appear that the surviving spouse and minor children of the decedent are in the circumstances for which the legislature anticipated an allowance under K.S.A. 59-403(b). Those portions of the petitions are denied. The court will consider at a later date the requests under K.S.A. 59-403(a).”
Karen claims that the use of the word “shall” in K.S.A. 59-403 required the district court to order a family allowance and, pursuant to the statute, the only consideration the court could take into account was the condition of the decedent’s estate. She argues the statute does not contain a provision for considering the surviving spouse or minor children’s financial condition and, therefore, the district court erred because it considered her financial condition.
The inquiry by this court is a question of whether, pursuant to K.S.A. 59-403(b), the court can take into account the financial condition of decedent’s spouse and minor children when determining what amount of family allowance to award.
“[I]t is the function of a court to interpret a statute to give it the effect intended by the legislature.” In re Application of Zivanovic, 261 Kan. 191, 192, 929 P.2d 1377 (1996). In In re Estate of Carriger, 4 Kan. App. 2d 594, 595, 609 P.2d 685, rev. denied 228 Kan. 806 (1980), this court noted:
“[I]t has been made clear that the purpose of K.S.A. 59-403 is to make provision for the immediate needs of the surviving spouse and the decedent’s minor children, if any, during a most difficult period of readjustment. In re Estate of Barnett, 207 Kan. 484, 487, 485 P.2d 1290 (1971). As stated in O’Dell v. O’Dell, 157 Kan. 351, 353, 139 P.2d 376 (1943):
‘The underlying purpose and intent of the lawmakers was to provide an allowance for the benefit of the surviving spouse alone in the event there are no minor children, and to the minor children alone in the event there is no surviving spouse, and to the surviving spouse and the minor children during the minority of the latter when there are both minor children and a surviving spouse. The purpose was that they should not he left entirely destitute.’ ” (Emphasis added.)
The legislature intended that no surviving spouse or child of a decedent be left destitute. A surviving spouse’s allowance is generally favored under the law. In re Estate of Taylor, 205 Kan. 347, 359, 469 P.2d 437 (1970).
K.S.A. 59-403(b) sets a maximum allowance but sets no specific minimum. The language of the statute is broad enough to allow a judge to consider many factors in deciding whether to set an allowance.
A court may use its discretion and take into consideration various factors, such as the financial condition of the decedent’s spouse and minor children, when determining the amount of allowance to award.
It follows that the district court could, in its discretion, decide to award no allowance based on the given set of facts, especially where the purpose of the statute is to help the survivors get through a difficult period of readjustment and not be left entirely destitute.
In the present case, the district court determined that Karen and the minor children would be receiving money from decedent’s life insurance, that she succeeded to the interest of the decedent in the residence, and that the minor children reside with their natural mother, who provides their support and maintenance. We conclude that the district court’s ruling was consistent with the legislative intent behind K.S.A. 59-403.
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Marquardt, J.:
Dwight W. Stoskopf appeals the district court’s decision to remove him as executor of the estates of W. Walter Stoskopf and Aleen F. Stoskopf.
The Stoskopfs owned and operated a farm in Barton County. The Stoskopfs had three sons — Dwight, Darrel, and Morris. On January 11, 1991, the Stoskopfs gave Dwight a durable power of attorney. Aleen died on December 4, 1994, and Walter died on December 11, 1994. Both Aleen and Walter appointed Dwight as executor in their wills.
On January 3, 1995, Darrel and Morris petitioned the district court for probate of their parents’ wills, requesting that the court deny the appointment of Dwight as executor. The petition alleged that during the period of time Dwight possessed his parents’ durable powers of attorney, he
“disposed of [their] assets, purchased land and machinery belonging to [them] at unspecified considerations and never gave an accounting to the petitioners, his brothers. Dwight W. Stoskopf has consistently refused to keep the petitioners informed of his activities as related to managing the assets of [the Stoskopfs]; and . . . recently . . . gave himself a ten year lease on pasture land belonging to petitioner, Morris L. Stoskopf, without Morris L. Stoskopf’s consent or knowledge.”
Darrel and Morris further alleged that after the district court appointed Dwight as guardian and conservator for the Stoskopfs in 94-GC-23, Dwight was ordered to file with the court a “complete accounting of the financial affairs of the [Stoskopfs] from January 11, 1991, to October 6, 1994” and that Dwight “has bragged to petitioners that he will not provide any accounting regarding his management of the [Stoskopfs’] financial affairs and that they cannot make him do so.” On February 2,1995, the wills were admitted to probate and Dwight was appointed as executor.
On May 18, 1995, Darrel and Morris filed a petition in both estates to remove Dwight as executor, alleging that Dwight “has failed to perform the duties imposed upon him by law and has violated his fiduciary duty to exercise the utmost good faith, honesty and fair dealing in all of his transactions affecting the estates.”
On July 13,1995, a pretrial hearing was held at which the motion to remove Dwight as executor was heard. At that time, Dwight was questioned about his activities in handling the Stoskopfs’ affairs before and after their deaths.
Dwight testified that after Walter’s death, he stopped making monthly rental payments of $720 to the estate account “[b]ecause [his] dad was dead.” In 1992, while acting under the durable powers of attorney, Dwight purchased land from his parents. Dwight told his brothers that he purchased the land for $45,000; however, the affidavit that Dwight filed with the register of deeds stated that he paid $30,000 for the land, and Dwight testified at the pretrial hearing that the land was a gift.
Dwight testified that his parents loaned him $71,000 in 1986 and that he repaid it, plus $28,000 in interest. However, Dwight does not have any records of the payments made on the loan and does not recall whether the loan payments were made by check or cash. The only indication that payments had been made on the loan is on the Stoskopfs’ tax returns from 1986 to 1990, which show that a total of $28,000 in interest was paid. Dwight contends that he made four payments of $11,000 over 4 years and a balloon payment of an unspecified amount in 1990.
During the 4 years that Dwight served as conservator for his parents, he spent $250,000 of their money — checks made payable to Dwight made up approximately $114,000 of that amount. Dwight testified that he used some of this money to pay his parents’ caretakers in cash; however, he also testified that some of the caretakers were paid with checks.
In response to an interrogatory requesting information as to what accounts the Stoskopfs had as of January 11, 1991, Dwight stated that his parents maintained accounts at three financial institutions. However, Darrel testified that according to his parents’ tax records, they had accounts at five institutions at that time. In another interrogatory response, Dwight stated that all of Walter’s farm equipment— three tractors, a couple of fairly large discs, an earth mover, mowing equipment, a grain drill, portable cattle corrals, and a couple of trucks — was disposed of in 1988. Dwight later testified that he purchased the equipment for $10,000 in 1988. However, the Stoskopfs’ tax returns contained deductions for equipment repairs in 1989 and tractor repairs in 1990 which were based upon information that Dwight provided to the accountant.
On July 21, 1995, the district court found:
“Because of the serious nature of the allegations and due to the fact that there are some indications and evidence that there were assets available to the estate that are not at this time available to the estate, the Court believes a full and final hearing will need to be held prior to the finalization of the estate.”
The district court ordered John Cross to perform a complete accounting of all the bank accounts, stock accounts, equipment, and real and personal property owned by the Stoskopfs since January 1991 so that the court could “make a fair determination as to what should or should not be included within the estate.”
On August 14, 1996, a second hearing was held on the motion to remove Dwight as executor. Dwight’s counsel objected, stating that he did not know that the motion was to be heard that day. Following a discussion, Dwight’s counsel stated, “That’s my mistake. Just from reviewing the pleadings, I couldn’t tell what date exactly it was supposed to be, and I know we had conversations about it.” Dwight’s counsel requested a continuance to allow him time to “get copies of all [Cross’] documentation, provide them to [his] own CPA, and be able to go expert to expert against Mr. Cross and come up with some reasonable answers to what’s going on here.”
The district judge did not continue the hearing and ordered the removal of Dwight as executor, stating:
“I don’t think it’s decided here at this point and it can’t be decided here at this point, without having all the evidence presented, as to whether or not there has been a misappropriation of funds. However, I think there has been raised enough issues that diere are some peculiar transactions that have been listed — not peculiar, but transactions diat have been listed that are unexplained, and perhaps, most importantly, [Dwight] is unable to explain several records through his statements on the deposition. He is unable to show or provide any documentation, and at this point, I think that there is sufficient enough questions raised that there is a conflict, and I, at this point, am going to remove [Dwight] . . .
Dwight appeals, contending that his due process rights were denied because the district court refused to continue the hearing so that a full evidentiary hearing on all issues could be held before he was removed as executor.
The only direction that the Kansas Legislature has given the courts to determine when and how an executor should be removed is set forth in K.S.A. 59-1711:
“Whenever a fiduciary is or becomes an incapacitated person or otherwise incapable of performing the duties of his or her trust, he or she may be removed. Whenever a fiduciaiy fails or refuses to perform any of the duties imposed upon him or her by law or by any lawful order of the court, he or she may be removed and his or her compensation may be reduced or forfeited, in the discretion of the court.”
The specific due process requirements afforded to an executor prior to removal is an issue of first impression in Kansas. Generally, because removal of an executor is designed to protect the estate, not to punish the executor, the court may proceed in a summary manner. 33 C.J.S., Executors and Administrators § 91, p. 1039. The notice requirements are simply that removal cannot take place until the executor receives notice of the petition to remove and has been given an opportunity to show cause why he or she should not be removed. 31 Am. Jur. 2d, Executors and Administrators § 300. The removal of an executor must be predicated upon facts that are before the court. 31 Am. Jur. 2d, Executors and Administrators § 302.
In the case at bar, two hearings were held. The first hearing was a full evidentiary hearing at which Dwight was given an opportunity to rebut all allegations and evidence presented against him. At the second hearing, additional evidence was presented which tended to support Darrel and Morris’ allegations that Dwight had misappropriated the Stoskopfs’ assets between 1991 and 1994. Although Dwight was given access to Cross’ report and was afforded time to review it prior to the second hearing, his counsel repeatedly objected to its admission, stating that he needed additional time to procure rebuttal expert testimony and to provide “some reasonable answers to what’s going on here.”
The district court held that additional rebuttal evidence was not necessary because there was sufficient evidence to establish that a genuine conflict existed between Dwight and his brothers. Relying on In re Estate of Petty, 227 Kan. 697, 709, 608 P.2d 987 (1980), the district court also held that “sufficient peculiar and abnormal facts [had been] disclosed by the evidence to make it clear that [Dwight] was not a suitable person to handle the estate.” The district court did not find it necessary to determine that Dwight had actually misappropriated funds prior to removing him as executor.
Dwight’s removal as executor was predicated upon facts legitimately before the court, and Dwight was afforded an opportunity to be heard at both hearings. The district court’s decision to remove Dwight was not based on the issue of whether Dwight had actually misappropriated funds. Therefore, the district court did not abuse its discretion in denying Dwight’s request for a continuance to allow him time to procure rebuttal evidence on this issue.
In support of his violation of due process claim, Dwight relies upon Estate of Wolongavich, 339 Pa. Super. 452, 489 A.2d 248 (1985), to establish that due process required that he be afforded a full evidentiaiy hearing at the second hearing. Dwight’s reliance upon Wolongavich is misplaced.
In Wolongavich, the district court removed the executor named in the will following oral argument on the petition and answer. The Wolongavich court found that the district court had abused its discretion by failing to hold an evidentiary hearing with sworn testimony. 339 Pa. Super at 457.
Here, the district court did hold an evidentiary hearing with sworn testimony, and Dwight was afforded an opportunity to present rebuttal evidence. Dwight was afforded the due process safeguards set forth in Wolongavich. Therefore, the district court’s decision to deny Dwight’s request for a continuance did not violate his right of due process.
A ruling on a motion for continuance will not be disturbed on appeal unless there is a clear showing of an abuse of discretion. Wilson v. American Fidelity Ins. Co., 229 Kan. 416, 422, 625 P.2d 1117 (1981). “Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable person would take the view adopted by the trial court.” Simon v. Simon, 260 Kan. 731, Syl. ¶ 2, 924 P.2d 1255 (1996).
In Petty, 227 Kan. at 707, which the district court relied upon in removing Dwight as executor, the Kansas Supreme Court held that
“the mere fact the heirs of the testator have a feeling of hostility toward the designated executor and do not want him appointed is not alone a sufficient reason for a district court to refuse to appoint die designated person. . . . Where, however, die designated person is in a position or has acted in a manner antagonistic toward the interests of the estate or the heirs in a way indicating that his admin istration of the estate would probably result in prolonged and unnecessary difficulty or expense, then such a person should not be appointed as executor. The courts have a duty to see that estates are administered in such a way as to secure a just, speedy, and inexpensive determination of the proceeding.” (Emphasis added.)
Dwight argues that Petty is distinguishable because Petty involved the issue of whether a designated executor should have been appointed, not whether an appointed designated executor should be removed.
Dwight correctly points out that Petty has not yet been applied to cases involving the removal of an executor. In In re Estate of Brecklein, 6 Kan. App. 2d 1001, 637 P.2d 444 (1981), the issue was whether the district court had erred in refusing to appoint a named testamentaiy trustee. The Brecklein court found that it did not need to reach the issue of removal; however, it expressly held that “[a] district court may refuse to appoint or may remove a testamentary trustee under exceptional circumstances where friction and controversy have existed and probably would continue to exist between the trustee and the beneficiary.” (Emphasis added.) 6 Kan. App. 2d 1001, Syl. ¶ 4.
Brecklein also considered the applicability of the holding in Petty that
“where a person designated to serve as executor of a will is in a position antagonistic toward the interests of the estate or heirs in a way indicating that his administration of the estate would probably result in prolonged and unnecessary difficulty or expense, then such a person should not be appointed as executor.” 6 Kan. App. 2d at 1012.
We hold that Petty applies to cases involving the removal as well as the appointment of an executor.
K.S.A. 59-1703 specifies the duties of a fiduciary and states that a fiduciary should not profit from the estate. The evidence presented raises the question of whether Dwight has profited from his parents’ estates. At least an appearance of impropriety has been raised by Dwight’s failure to maintain records of his financial dealings and to file a court-ordered accounting during the period of time that he was guardian and conservator for his parents. As a result, a conflict has arisen between Dwight and the other heirs which is likely to continue, thereby causing the administration of the estates to be prolonged and more expensive. Therefore, the district court did not abuse its discretion in removing Dwight as executor prior to determining whether he had actually misappropriated any funds.
Dwight correctly points out that K.S.A. 59-1711, which sets forth the justification for removing or appointing a designated executor, is very limited in its reasons for removing an executor. K.S.A. 59-1711 provides for removal (1) when an executor becomes incapacitated or is otherwise incapable of performing his or her duties or (2) when an executor either fails or refuses to perform any of the duties imposed by law or by order of the court.
Dwight correctly states that the district court did not find that he should be removed as executor pursuant to K.S.A. 59-1711. Dwight argues, therefore, that the district court abused its discretion in removing him as executor.
K.S.A. 59-1711 has not been amended since 1966. Petty was decided in 1980 under the same version of K.S.A. 59-1711 as that in effect today. In Petty, as in this case, there was no finding that the executor had violated any of the criteria set forth in K.S.A. 59-1711; however, the Kansas Supreme Court still found that the district court had abused its discretion in appointing the designated executor because the appointment resulted in the district court breaching its own duty to “see that estates are administered in such a way as to secure a just, speedy, and inexpensive determination of the proceeding.” Petty, 227 Kan. at 707.
In light of Petty, Dwight’s argument that the district court abused its discretion in removing him as executor without first finding that he had failed or refused to perform his duties or the orders of the court is without merit.
Affirmed. | [
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Hill, J.:
Atchison Homeless Shelters, Inc., is a corporation which has filed this appeal from an order awarding sanctions against it for filing a frivolous claim in the district court of Atchison County. No attorney has entered an appearance for the appellants in this appeal.
Except for out-of-state attorneys, the Supreme Court recognizes only four categories of individuals who may appear in the courts of this state: (1) members of the bar who have licenses to practice law; (2) individuals who have graduated from an accredited law school and have a temporary permit to practice law; (3) legal interns, who are law students supervised by members of the bar responsible for the interns’ activities; and (4) nonlawyers, who may represent only themselves and not others. State ex rel. Stephan v. Adam, 243 Kan. 619, 623, 760 P.2d 683 (1988); see State ex rel. Stephan v. Williams, 246 Kan. 681, 690-91, 793 P.2d 234 (1990).
This means, therefore, that corporations can only be represented in Kansas courts by an attorney duly licensed to practice law in Kansas. Kansas follows the common-law rule that an appearance in court of a corporation by an agent other than a licensed attorney is not proper since a corporation is an artificial entity without the right of self-representation. Such a rule helps to maintain a distinction between the corporation and its directors and employees. See 8 A.L.R.5th 653, § 3. This rule was tacitly acknowledged in dicta in U.P. Railway Co. v. McCarty, 8 Kan. 125, 131 (1871), and U.P.R.W. Co. v. Horney, 5 Kan. 340, 347 (1870).
Since Atchison Homeless Shelters, Inc., does not lawfully appear in this proceeding, its appeal is not properly before this court, and this appeal is dismissed.
Appeal dismissed. | [
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The opinion of the court was delivered by
Hopkins, J.:
The action was one to recover damages for the death of plaintiff’s husband alleged to have occurred during an operation through the negligent administration of an ansesthetic. The plaintiff was defeated and appeals.
The plaintiff’s husband was seriously injured in his left forearm by being thrown on the sharp edge of a metal casing in a well. The accident happened about seven o’clock in the evening, some four and one-half miles east of Hutchinson. Plaintiff administered first aid by putting turpentine on the wound and tying it with a bandage. The injured man then drove his car to the defendant’s office in Hutchinson where he met one of the doctors who, after calling an associate surgeon, administered a hypodermic of atropine. The patient was taken to a hospital where preparations were made to operate. The operation began at 7:50, was completed at 8:15. Apparently, at the very time the surgeon finished his work of sewing up the wounded parts, the patient died. The surgeon stated to the anaesthetist that he was through, and immediately, almost simultaneously, the anaesthetist said, “He has stopped.” Efforts were made to revive the patient. Oxygen was forced into the lungs; artificial respiration was resorted to, but without avail.
The plaintiff contends that the doctors, and especially the anaesthetist, did not make the proper preoperative examination of the patient; that the patient would .not have died except for. negligence in the administration of the anaesthetic; that a hypothetical question asked of various doctors during the trial did not correctly assume the facts; that the question was wholly unnecessary, invaded the province of the jury, and that the trial court misdirected the jury-
The hypothetical question, which appears to fairly state the facts of the case and to which the objection is made, reads:
“Q. I want to read a question to you, and I would like to read it just onee, if your honor please, in the interest of time, so all these doctors may hear it, because I intend to ask them the same question. Doctor Francisco, in answering this question, you will assume the following facts: On the 18th day of June, 1926, a man about 34 years old, five feet and five inches in height, weighing about 165 pounds and in apparent good health, was injured by being thrown forward onto a sharp edge of a metal casing in a well and injured, and was cut on the left arm about midway between the elbow and the wrist; this cut was in the shape of a ‘V’ with the apex pointing down towards the wrist; the wound was over the ulnar portion of the arm; the sides of the ‘V’ were about two and a half to three inches long; this accident happened sometime before seven o’clock in the evening at the residence of the injured man about four and a half miles east of Hutchinson; the wife of the injured man administered first aid by putting turpentine on the wound and by applying a bandage; the injured man then drove his car to the office maintained by several physicians in the city of Hutchinson, where he met one of the doctors, who, after calling an associate surgeon, administered a hypodermic of one-fourth of a grain of morphine and 1-150 of a grain of atropine; the surgeon so called went to the office and upon an examination of the injured arm found that the flexor and extensior muscles had been severed and the ulnar vein had been cut, and a clot had, been organized between the outer edges of the severed muscles and veins; the surgeon advised that the patient be taken to the hospital, and called an anaesthetist to assist him; that when the surgeon and patient arrived at the hospital they met this anaesthetist who had been called; there was a delay of some fifteen to twenty minutes while the operating room was being put in order and the necessary instruments were being sterilized; the anaesthetist was advised of the hypodermic which had been given, and he and also the surgeon made an examination of the patient’s heart by placing their ear to the patient’s chest, and the anaesthetist also examined the pulse; when the operating room was ready, the anaesthetist started the anaesthetic, using nitrous oxid administered through the use of what is known as the McKesson machine; the surgeon carried out the operation by cleaning the wound and sewing the muscles and tying off the severed veins; the operation was commenced at about 7:50 and completed at about 8:15. During the operation the anaesthetist maintained his position by the patient’s head, observing the patient’s color, taking his pulse, counting his respirations and noticing the general condition of the patient; the pulse rate was never lower than 84 nor higher than 95; the respiration was between 20 and 24, and there was no unusual cyanosis of the patient; at the conclusion of the operation the patient was breathing normally, when the anaesthetist noticed a sudden failure of respiration; he immediately felt for the pulse in front of the ear and found none; he also felt for the pulse in the neck and found none; he then forced oxygen to the lungs of the patient and notified the surgeon, the surgeon listened to the patient’s heart with his ear but was unable to distinguish any heart sound; the surgeon thereupon turned the patient’s head to the right and grasped the tongue with forceps and pulled the tongue out, while the anaesthetist wiped out the mucous which was bubbling from the mouth; the mucous continued from the mouth for several minutes; the mask was replaced and oxygen again forced into the patient’s lungs by the machine ; a hypodermic of adrenalin of fifteen drops was injected directly into the heart muscle; the rectum was dilated; that during all the time which I have mentioned, from the discovery on the part of the anaesthetist that the respiration had stopped, he was using forced oxygen through the machine. Do you have an opinion as to whether or not the treatment of the patient by the doctors mentioned would constitute skillful practice and proper practice in Hutchinson, Kan., or similar communities?”
The doctors answered that they had an opinion.
“And what is that opinion? A. My opinion is that that would be good treatment for such an injury in any community. That is an established recognized treatment for emergency injuries such as this was.”
We have given careful consideration to the contentions of the plaintiff, have considered the evidence, the hypothetical question propounded to the doctors, and are unable to say that the trial court committed reversible error. The evidence shows that the patient undoubtedly died from an embolism rather than from having been smothered to death or asphyxiated by the gas administered as the anaesthetic. If the testimony of the various doctors is to be given credence at all (and under the circumstances it was proper), there is an abundance of evidence to sustain the verdict of the jury. It was not only not shown that the gas caused the patient’s death, but the reasonable indications from the evidence were that the death was caused by an embolism.
“What is the proper treatment to be used in a particular case is a medical question to be testified to by physicians, as expert witnesses; laymen, even jurors and courts, are not permitted to say what is the proper treatment for a disease or how a specific surgical operation should be handled.” (James v. Grigsby, 114 Kan. 627, 632, 220 Pac. 267.)
“This evidence must, from the very nature of the case, come from experts, as other witnesses are not competent to give it, nor are juries supposed to be conversant with what is peculiar to the science and practice of the professions of medicine and surgery to that degree which will enable them to dispense with all explanations.” (Tefft v. Wilcox, 6 Kan. 46, 59.)
This court, in Pettigrew v. Lewis, 46 Kan. 78, 26 Pac. 458, quoted from McClelland, Civil Malpractice, p. 304, as follows:
“ ‘The question whether a surgical operation has been unskillfully performed or not is one of science, and is to be determined by the testimony of skillful surgeons as to their opinion, founded either wholly on an examination of the part operated upon, or partly on such examination and partly on information derived from the patient; or partly on such examination, partly on such information, and partly on facts conceded or proved at the trial.’ ” (p. 81. See, also, Sly v. Powell, 87 Kan. 142, 123 Pac. 881.)
There was testimony that immediately or soon after the patient’s death Doctor Hall stated to the plaintiff or some other member of the family that it was “just a case of gas.” This testimony, however, was disputed by Doctor Hall, who performed the operation, and by Doctor Fowler, who administered the anaesthetic. The testimony of the physicians was that in emergency cases, before giving an anaesthetic, it is necessary onfy to examine the heart and lungs, which can be done by listening to the heart with the ear, and feeling the pulse, which was done in this case. Also the giving of a hypodermic consisting of one-fourth of a grain of morphine and 1-150 of a grain of atropine thirty minutes before the anaesthetic is sufficient. They also testified that a blood pressure and breathing test is not necessary, and that a urine analysis and blood-pressure test is not necessary in case of an emergency.
There was no evidence of any unusual condition of the patient nor that a preexamination would have disclosed any contra indication of nitrous oxygen and oxygen anaesthesia at or before the time of the giving of the anaesthetic, or that any test other than was given would have disclosed anything to have made the giving of the anaesthetic improper. The plaintiff failed to show any negligence either in the failure to make a preexamination of the patient or in the administration of the anaesthetic. On the other hand, there was the expert evidence of a number of doctors to the effect that the operation and the handling of the patient was done in- a skillful manner.
For instance, Dr. Frank J. Hall (not related to the defendant), a graduate (1900) of the medical college of the University of Kansas, a specialist, a pathologist, who limits his work to the investigation of the causes, progress and result of diseases to the exclusion of a practice, who had done postgraduate work in his line at the University of Chicago, now practicing in Kansas City, Mo., associated with General Hospital and Mercy Hospital, testified that for 27 years it had been part of his work to conduct post mortem, examinations on the cause of death, and particularly as to the cause of death of those dying on the operating table; that he heard the question read to Doctor Francisco and particularly that portion of it as to the pathological indication of the death of the patient. Had an opinion that the death was caused by the blocking of the artery that supplied the lung with blood. Technically the name is pulmonary embolism.
“Embolism is the name of the condition or process. The thing that caused it is known as an embolus. Some of the things that cause death from this source might be embolism caused by a clot of blood or by air or by fat or even by tissue fragments. . . . Pulmonary embolism causes death by cutting off the blood supply and the blood tissue to the lung. In that case death is. more or less instantaneous. The particular portion of the statement of facts which was stated in the hypothetical question, and which I rely upon as showing that this death was caused by embolism, was the sudden cessation of the respiration and the cardiac action; the simultaneous arrest of both functions and the frothy material that emerged from the mouth of the patient. That frothy material that emerged from the mouth is a symptom of embolism. When the arterial blood is shut off from the lung and the venous blood remains in the vessels of the lung, there is immediately great quantities of mucous collected in the bronchial tubes, on account of no pressure on one side and the normal pressure on the other, and that is what causes this saliva, this substance, to come out of the mouth.”
Dr. Ralph M..Waters, a specialist in anaesthesia, among other things testified:
“I heard the testimony of Doctor Hall with regard to the mucous found in the mouth at the time of the death and immediately preceding. That is not a characteristic of nitrous oxid asphyxiation, or of death from any cause from nitrous oxid. It struck me when I heard that testimony that the nitrous oxid anaesthesia, as the cause of his death, was impossible for that reason, because with the dose of atropine previous to the dose of nitrous oxid anaesthesia, the mouth would be decidedly dry, as I think any of you will recognize the fact that with a dose of atropine your mouth would be so dry you would spit cotton. In my work as an anaesthetist and in my preparation to become such, I had occasion to familiarize myself with the conditions surrounding the patient during the course of an anaesthetic, and I have had a good deal of education in it since. I have had occasion since I took up this specialty to see cases where there was mucous in the mouth such as was described in this case; there is a great deal of mucous in the mouth in some sorts of anesthesia, but not with nitrous oxid.”
A contention that the hypothetical question invaded the province of the jury cannot be sustained. The question asked was properly hypothetical. It propounded the query whether or not certain specified treatment of the patient by the doctors would constitute skillful and proper practice in Hutchinson or similar communities. The answer was in the affirmative. It was for the jury to conclude whether or not the treatment administered to the patient in the instant case was skillful and proper. It was within the province of plaintiff’s counsel to have propounded a hypothetical question covering the facts in issue, according to his theory, if the question propounded by his opponent did not do so.
Complaint is made of the instructions. It is unnecessary to set them out or discuss them in detail. We have considered them and are of the opinion that they fairly covered the issues in the case. Various other complaints have all been considered, but we find no error which would warrant a reversal.
The judgment is affirmed. | [
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The opinion of the court 'was delivered by
Dawson, J.:
Plaintiff sued defendants for 12,000 on account of money and property obtained from her by defendants through fraudulent representations and without consideration. The pleadings were stated with sufficient detail when the case was here before (118 Kan. 761, 236 Pac. 658) and need not be repeated.
On the new trial-the evidence quite largely followed the trend of the former trial, and at the conclusion of plaintiffs evidence defendants demurred thereto. During the argument on the demurrer counsel for the plaintiff stated that he was willing to waive the tor.t and elect to recover on the theory that the defendants received plaintiff’s money without consideration. Thereupon the court announced that it would sustain the demurrer on that ground, and judgment was accordingly entered for defendants.
Hence this appeal, and the principal error assigned pertains to the ruling on the demurrer. To justify it, appellees invoke the doctrine of election of remedies which holds that when an aggrieved party has alternative courses of procedure open to him, either of which will afford him redress but which are inconsistent with each other, and one of these courses is adopted and-pursued, he is precluded from abandoning that course and adopting the other. C'But plaintiff did not prosecute alternative courses of procedure, nor seek to exact alternative or inconsistent remedies. True, her petition contains ample recitals to state a cause of action in tort, but it also did state a cause of action for money had and received, and no objection was raised to her pleading. Plaintiff’s cause of action was founded on two quite consistent theories of defendants’ liability — one, that the defendants were liable to her for money and money’s worth as joint wrongdoers, and the other, that defendants were liable to her for money and money’s worth had and received without consideration. All the essential facts to recover on either theory of defendants’ liability were pleaded; the relief prayed for was single and identical —$2,000; there was no change of pleading or proof suggested by plaintiff; and the rule of this jurisdiction is that where a cause of action is sufficiently stated and sufficiently proved the court will adjudge and decree the proper legal redress, however that may differ from the pleader’s conception of it. (Bank v. Bank, 103 Kan. 865, 867, 176 Pac. 658; Ruf v. Grimes, 104 Kan. 335, 338, 179 Pac. 378; Wellington v. Insurance Co., 112 Kan. 687, 212 Pac. 892.) Nothing at variance with this is said in Ireland v. Waymire, 107 Kan. 384, 191 Pac. 304, or any of the cases treating of election of remedies cited by appellees.
When the demurrer to plaintiff’s evidence was being argued the trial court remarked:
“I don’t see yet where Giles is liable. I can see from the supreme court decision where Barrett and Glancy are liable.”
Apparently it was merely to simplify matters that counsel for plaintiff then said that he would waive all consideration of the tort and stand on the proposition that defendants had received plaintiff’s money and property without consideration. This was proper and not unusual practice. It is the law that if two men obtain the money of a third without consideration, the latter has a cause of action for its recovery, and the question whether they obtained-the money by fraud is frequently immaterial. It was immaterial to a recovery in this case. According to the evidence, the truth of which was conceded by defendant’s demurrer, defendants Giles, Barrett, Glancy and others undertook to form a corporation or common-law trust, and contracted with plaintiff through their agent Glancy on that basis. By that contract, whether made by Glancy in innocence or fraud, a liability accrued when there was a total failure of consideration for plaintiff’s money and money’s worth. If it was an ordinary corporation which defendants undertook to organize, but failed to do so, defendants are liable as partners for the obligations incurred on behalf of the abortive corporation. (Lithographing Co. v. Crist, 98 Kan. 723, 160 Pac. 198; Bank v. Niquette, 103 Kan. 410, 179 Pac. 360.) If it was a common-law trust, they were liable individually. (Linn v. Houston, 123 Kan. 409, 255 Pac. 1105.)
Giles’ relationship to the transaction whereby plaintiff parted with her money and money’s wo,rth was shown by the minutes of the abortive corporation, Las Crusadas Mining Company. He admitted that he participated in all its deliberations as shown by those minutes. He served as director, voted to elect Barrett as president and Corp as secretary-treasurer. Giles himself was elected- vice president, and voted in favor of a resolution “creating and delegating A. N. Glancy to act as fiscal agent for this company;” and voted to authorize Barrett to “proceed in any manner he decreed best to finance the corporation.” Such a course of conduct on Giles’ part renders him liable if there is any liability resting on any of these defendants for the receipt of plaintiff’s money and property. Looking again at the petition, while many of its details concerning fraud must be regarded as waived — just as if she had failed to prove those details, it did allege that plaintiff delivered to Glancy, fiscal agent of defendants’ abortive corporation or trust, the sum of $805 in cash and assigned to him a contract note or due bill for $1,195, which was subsequently collected and retained by defendants.
“And the said A. N. Glancy did thereupon deliver the said contract and said check and note to the defendant W. W. Barrett for the use and benefit of the defendants and the defendants did thereby receive said sum of $2,000. . . .
“. . . That the only money paid into the said corporation was paid by the plaintiff and her husband and the same was received by the defendants, B. E. Giles and W. W. Barrett, and wholly converted to their own use.”
It was shown that Glancy received plaintiff’s money and contract note as alleged and that he delivered the same to Barrett. And since Giles and the others had conferred a fiscal agency on Glancy and an agency with plenary powers on Barrett, a delivery of plaintiff’s money and contract to Barrett was a delivery to all concerned, which of course included Giles. It is therefore clear that the trial court’s ruling on the demurrer to plaintiff’s evidence was erroneous and cannot stand.
We have also a cross appeal in this case. After this court decided that plaintiff’s cause of action was sufficiently pleaded and proved against a demurrer to her evidence and remanded the cause for a new trial, plaintiff filed an action against the executor of the estate of her late husband, William Bolinger, in which she charged that her husband had been an agent of Barrett, Giles, Glancy and others, and that he induced her to invest $2,000 in defendants’ abortive “Las Crusadas Mining Company,” and that she received no consideration therefor except. certain worthless certificates purporting to be the obligations of a common-law trust. In this action, also, she alleged that relying implicitly on certain false statements of her husband and another she had been induced to invest $5,000 in another worthless concern, the Uhls Clinic Corporation. Another matter also involved in that litigation was an antenuptial contract which she sought to set aside. The action was compromised and settled by the payment of $9,000 to Mrs. Bolinger by her husband’s executor, and a stipulation to that effect was filed, together with a motion by plaintiff for a dismissal with prejudice which, however, provided that—
• “Plaintiff expressly reserved her right of action against all the other parties ■mentioned in the petition herein, to wit:- William Barrett, B. E. Giles, A. N. Glancy and W. Corp.”
Judgment of dismissal with prejudice was accordingly entered in Bolinger v. Bolinger’s Executor, but plaintiff’s reservation of her rights against these defendants was expressly included therein.
By a supplemental answer, defendants pleaded the action, settlement and dismissal with prejudice of the case of Mrs. Bolinger against Bolinger’s executor as a defense to the present action. Evidence was introduced by defendants which tended to impeach the accuracy of the terms of the settlement and dismissal of the action of Mrs. Bolinger against the executor, and to show that it was intended to release hér claim against these defendants. But the trial court decided that there was no settlement and no release of any of the defendants by reason of plaintiff’s settlement with the executor; and it is against this ruling that the appellees bring their cross appeal. Under our simplified practice a cross appeal may be taken quite informally — by notice to the adverse party any time before the cause is assigned for review (R. S. 60-3314), and the questions sought to be reviewed may be presented with other matters discussed in the briefs. But to get a review of a ruling on the sufficiency of evidence to maintain an action or defense, a motion for a new trial is just as much a prerequisite in a cross appeal as in any other appeal. Here there was no motion for a new trial by the cross apjoellants, so they are concluded by the trial court’s ruling on the issue of fact decided adversely to their contention. (King v. Stephens, 113 Kan. 558, 563, 215 Pac. 311.)
Where do these conclusions leave this lawsuit? Manifestly the judgment of the trial court cannot stand as against the plaintiff. Is there anything left to try anew? It is no favor to defendants to prolong this litigation unless there is some way apparent by which they can escape their liability to plaintiff. (Manufacturing Co. v. Porter, 103 Kan. 84, 172 Pac. 1018.) The code provides that in any proper case, “the court shall render such final judgment as it deems that justice requires, or direct such judgment to be rendered by the court from which the appeal was taken, without regard to technical errors and irregularities in the proceedings of the trial court.” (R. S. 60-3317.)
In Mitchell v. Derby Oil Co., 117 Kan. 520, 531, 232 Pac. 224, it was said:
“Under authority of this code provision, judgments for defendants on jury verdicts have been reversed and money judgments for plaintiffs directed by this court. (Bank v. City of Rosedale, 108 Kan. 474, syl. ¶ 2, 196 Pac. 770.) Judgments for defendants on jury verdicts in ejectment actions have been reversed and judgments decreeing possession to plaintiffs have been ordered (Charpie v. Stout, 88 Kan. 318, 128 Pac. 396; id. 682, 129 Pac. 1166), and nothing is more common than directed judgments of this court non obstante veredicto in actions on promissory notes (State Bank v. Grennan, 116 Kan. 442, 227 Pac. 530), in. actions for damages (Martin v. City of Columbus, 96 Kan. 803, 153 Pac. 518; Tache v. Railway Co., 97 Kan. 571, 155 Pac. 922), in actions on wills (Wisner v. Chandler, 95 Kan. 36, 147 Pac. 849), where special findings of the trial court or jury clearly demonstrated that justice so required. See, also, City of Washington v. Investment Co., 117 Kan. 15, 230 Pac. 311.”
And so here. It is no longer a disputable question of fact whether defendants obtained $805 of plaintiff’s money. They did receive it. They also received her contract note for $1,195 on which they eventually received the cash. They gave her nothing in return. They are therefore liable to her for $2,000 and interest thereon and she is entitled to judgment therefor. It follows that on defendants’ cross appeal the judgment must be affirmed and on plaintiff’s appeal the judgment must be reversed and the cause remanded with instructions to enter judgment in her behalf.
It is so ordered.
Hutchison, J., dissents from the fourth section of the syllabus and the corresponding portion of the opinion. | [
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|
The opinion of the court was delivered by
Harvey, J.:
These cases involve a claim for $2,585.09 filed in the probate court of Franklin county by the administrators of the estate of C. W. Goodin, deceased, against the estate of Anna B. Walsh, deceased, for taxes paid by plaintiffs on real property alleged to have been jointly owned by C. W. Goodin, owning two-thirds,'and Anna B. Walsh one-third. The probate court allowed the claim in the sum of $833.90, and decreed that the amount allowed should be set off against a claim previously allowed in favor of the administrator of the estate of Anna B. Walsh against the C. W. Goodin estate. The administrator of the estate of Anna B. Walsh took separate appeals: (1) from the order allowing the claim, and (2) from the decree allowing the set-off. These appeals, although not consolidated, were tried together in the district court. The court made findings of fact and conclusions of law, held that the claim should not have been allowed in any sum, and reversed both orders of the probate court. From these judgments the claimants have appealed.
We shall first consider whether the district court correctly ruled that the claim should not have been allowed in any sum, for if that be true there was nothing to set off.'
For several years prior to his death July 28, 1922, C. W. Goodin had been the agent for' investing funds and securities of Anna B. Walsh, who died February 8, 1924. In an action previously before this court (Walsh v. Hill, 121 Kan. 246, 246 Pac. 997) the administrator of the Walsh estate sought to recover from the Goodin estate the amount of investments alleged to have been wrongfully mad.e by Goodin. In that case recovery was allowed for loss sustained in a transaction known as the Schone matter, but recovery was denied for loss alleged to have been sustained in a transaction known as the Wimmer matter, for the reason that the trial court had found that Goodin had exchanged-securities of doubtful value owned by Mrs. Walsh for the purpose of obtaining securities of greater value, and that what he obtained was of as- much value, at least, as what he gave up, and that the exchange had been made in good faith with no intention of wrong and no actual loss. The Wimmer transaction, as found by the court in this case, may be stated as follows: On April 1, 1922, C. D. Damall, being the owner of 52% vacant lots in the Industrial addition to Kansas City, Kan., entered into a written option agreement with John W. Wimmer, wherein Wimmer agreed to purchase the lots for the sum of $31,000, payable $5,000 each year. On April 10,1922, Darnall assigned to C. W. Goodin his interest in this contract and the notes connected therewith, and on the same day Damall and wife executed to Goodin a warranty deed for such lots. On April 25, 1922, Goodin invested securities of Mrs! Walsh, then in his possession, in two of the $5,000 notes given by Wimmer in connection with this contract. It later developed that Wimmer did not carry out his contract to purchase, and the notes, became of no value. Neither Mrs. Walsh nor her administrator in the previous litigation made any claim to the real property described in this Wimmer contract, the sole contention being that Goodin had wrongfully invested her money or securities in the Wimmer notes! On October 18, 1923, the administrators of the Goodin estate made-application and procured permission of the probate court to pay the taxes for the years 1921 and 1922 on 44 of the lots deeded by Darnall to Goodin, representing that the same would be to the best interests-of the-Goodin estate, and did pay such taxes in-the sum of $2,585.09!” No attempt was made to pay the taxes on the other 8% lots for those years, nor to pay the taxes on any of the lots for other years. On August 31, 1926, the administrators of the Goodin estate filed their claim against the Walsh estate seeking to recover the taxes so paid.
Several questions are argued by the parties, but it will be necessary for us to discuss but one of them. The trial court found that Anna B. Walsh never acquired any title to the real property in question. The deed was made from Darnall and wife to Goodin and remained in his name. The only thing attempted to be set off to Mrs. Walsh by Goodin was certain of the notes given by Wimmer in connection with his contract to purchase. No contention appears to have been made either by Goodin or his administrators, or by Mrs. Walsh or her administrator, that she had any interest in the title to these lots until this claim was filed August 31, 1926. The evidence is not before us. The findings made by the trial court, as amended, are conceded by appellants to be correct. Since Anna B. Walsh never had any interest in the title to the real property, the payment of taxes thereon by Goodin, or by his administrators, created no claim against her or her estate.
The judgment of the court below is affirmed in both cases. | [
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|
BOUKER, J.:
The State brings this interlocutory appeal challenging the district court’s decision to grant the motions of Randolph S. Gilbert and Poppy Joleen Gilbert to suppress evidence obtained during a search of their residence.
Randolph and Poppy were each charged with three counts of endangering a child, contrary to K.S.A. 21-3608; one count of possession of marijuana, contrary to K.S.A. 1995 Supp. 65-4162(a)(3); one count of possession of paraphernalia, contrary to K.S.A. 65-4152; and one count of possession of cocaine, contrary to K.S.A. 1995 Supp. 65-4160. Randolph was also charged with two counts of battery, contrary to K.S.A. 1994 Supp. 21-3412(a).
Prior to trial, Randolph and Poppy filed separate motions to suppress. On July 1, 1996, a hearing was held, and the trial court granted the motions. The State appeals.
On January 24, 1996, police officers Patrik W. Goss and Shari Lanham responded to a report of a domestic dispute. Christina Marie Simms, who had made the report, appeared to be very upset, nervous, and worried about getting the police officers to go to the Gilberts’ trailer, which was about a half a block away.
Simms told the police that while she was at the Gilberts, Randolph had hit both her and Poppy. Both officers testified that Simms had a big red mark and a scratch on her neck. Officer Goss testified that initially Simms told the police that Poppy had been hit, but that it was later determined that Randolph had slapped Poppy.
Upon arriving at the trailer, it was clear to Officer Goss that some sort of disturbance had taken place as there were several broken beer bottles in the street and driveway and a trash dumpster had been overturned. Officer Goss testified that the beer bottles had to have been broken recently because the spilled beer had not yet frozen, even though the temperature that night was well below freezing. Officer Lanham testified that the trailer had a window that was broken.
As Officer Goss approached the Gilberts’ trailer, Poppy came to the front door, saying, “He’s not here, he’s not here.” Officer Goss testified that it was obvious that Poppy was extremely upset and had been crying. When Officer Goss asked Poppy if Randolph was in the trailer, she replied, “You’re not coming in here.”
Officer Goss then placed his hand on Poppy’s shoulder and moved her aside, entering the trailer. Officer Goss admitted that he went into the trailer against Poppy’s will.
Officer Goss testified regarding why he went into the trailer:
“Based on the information from Ms. Simms, Ms. Gilbert’s reactions before I even asked her anything was ‘He’s not here, you’re not coming in here.’ All that, the demeanor, her — it was obvious that a domestic violence had taken place. Based on the information I had received from my original reporting party, there was no doubt in my mind I was going in there to make sure everything was okay and check the welfare before I left.”
Officer Goss also testified that he went into the trailer to make sure that Randolph was no longer inside and that everyone was all right.
During cross-examination, Officer Goss admitted to testifying at the preliminary hearing that his sole purpose for going into the trailer was to look for Randolph. Officer Goss also admitted that Poppy had not given him any indication that Randolph was inside the trailer other than her defensiveness. Officer Goss also testified that he has been involved in domestic violence situations in which the victim would not allow him to enter the residence because he or she was hiding the abuser.
When Officer Goss went into the master bedroom, he noticed that there was a light coming out from underneath the closet door. Believing that Randolph was hiding in the closet, Officer Goss drew his gun and opened the closet door. Instead of finding Randolph, Officer Goss found marijuana plants, which were being grown in the closet.
After checking the rest of the trailer for Randolph, Officer Goss completed the domestic violence investigation. Officer Goss testified that when he saw Poppy in a better light, he noticed that she had a swollen lip and blood on her shirt. At first, Poppy told Officer Goss that Randolph had hit her, but then she changed her story and told him that she had bitten her lip during the argument.
The drug task force was called and a search warrant was obtained.
At the suppression hearing, the State presented the testimony of Nicky Ludes and Sandra Wilcox, employees of the Domestic Violence Association of Central Kansas, who both testified that many victims of domestic violence are dependent upon the abuser both emotionally and financially and, therefore, often attempt to protect the abuser.
Lieutenant Carson Mansfield of the Salina police department testified that concerning domestic violence situations, police officers are generally trained to identify and separate the parties involved and to check out the location to see if anyone has been hurt. Lieutenant Mansfield also testified that police officers are trained to check a residence without a warrant, if they have cause to believe that a domestic violence situation exists.
In a domestic violence situation, safety is the primary concern; therefore, police officers are trained to go inside a residence to rule out that there is another injured party inside the house or that the perpetrator is inside, threatening the victim to get rid of the police. Mansfield testified that police officers are also trained to check a residence because it is sometimes difficult to identify the victim.
After hearing extensive closing arguments, the trial court took the matter under advisement. More than a week later, the trial court issued a memorandum decision, which stated, in part:
“The Court finds that Officer Goss’s entry into the defendants’ home without a warrant for arrest to be in violation of those rights guaranteed [them] by the Fourth Amendment of the Constitution of the United States and the laws of Kansas. On balance, Fourth Amendment protection must prevail over the State’s argument that exigent circumstances exist per se in domestic violence cases. This Court acknowledges and appreciates the difficulty and dangers encountered by law enforcement officers investigating domestic violence. However, this Court sees no justification in abridging Fourth Amendment rights regardless of the kind of violation which takes place.”
Our standard of review is set forth in State v. Webber, 260 Kan. 263, Syl ¶ 3, 918 P.2d 609 (1996), cert. denied 519 U.S. 1090 (1997):
“In reviewing a trial court decision regarding the suppression of evidence, we review the factual underpinnings of the decision by a substantial competent evidence standard of review and review the ultimate legal decision drawn from those facts de novo with independent judgment.”
In the present case, the police officers initially entered the Gilberts’ home without a warrant.
“Searches conducted by the State outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the 4th Amendment — subject only to a few specifically established and well-delineated exceptions. Absent one of these exceptions the seizure of items not particularly described in a search warrant is unconstitutional.” State v. Galloway, 232 Kan. 87, Syl. ¶ 1, 652 P.2d 673, cert. denied 475 U.S. 1052 (1982).
See State v. Flatten, 225 Kan. 764, Syl. ¶¶ 3 and 4, 594 P.2d 201 (1979).
In Monroe v. Darr, 221 Kan. 281, 287, 559 P.2d 322 (1977), the Kansas Supreme Court stated: “Probable cause alone is not sufficient to justify a warrantless search or entry into a private residence. In addition to probable cause it is necessary for the police officer to show exigent circumstances which make an immediate warrantless search imperative.”
In determining whether exigent circumstances existed, the Plat-ten court relied upon the nonexclusive list of factors set forth in United States v. Reed, 572 F.2d 412, 424 (2d Cir.), cert. denied 439 U.S. 913 (1978):
“(1) the gravity or violent nature of the offense with which the suspect is to be charged; (2) whether the suspect is reasonably believed to be armed; (3) a clear showing of probable cause; (4) strong reasons to believe that the suspect is in the premises; (5) a likelihood that the suspect will escape if not swiftly apprehended [;] and (6) the peaceful circumstances of the entry. It is also recognized that the possible loss or destruction of evidence is a factor to be considered. [Citations omitted.]” 255 Kan. at 770.
Whether a domestic violence situation creates an exigent circumstance justifying the warrantless search of a private residence is a question of first impression in Kansas, although the issue was briefly considered in U.S. v. Warden, 886 F. Supp. 813 (D. Kan. 1995).
In Warden, two officers were dispatched to the defendant’s residence on a domestic disturbance call, which had been placed by the defendant’s 11-year-old daughter. The daughter ushered the officers into the home, where they found the girl’s mother crying in the kitchen. Although the mother had a pronounced red mark on the side of her face, she denied that the defendant had hit her, but admitted that he had pushed her. The officers then entered a bedroom, and upon finding the defendant, arrested him for domestic violence.
One of the deputies searched the defendant and found $5,800 in currency in his pockets. The officer also observed a gun and a tin, which contained cocaine, in an open drawer, and an open purse, which contained a baggie of marijuana, on the bed. The daughter told the officers that she believed that her parents were dealing drugs. A search warrant was later obtained.
The defendant had appealed the denial of his motion to suppress the evidence based upon an illegal entry. The Warden court found that although the daughter may have lacked the ability to consent to the officers’ entry, “the court has no concern about the validity of the initial entry into the home. The officers were responding to a 911 call reporting a beating. The officers were justified in entering the home to investigate the complaint.” 886 F. Supp. at 817.
Outside jurisdictions have generally recognized that die “emergency doctrine” exception to the warrant requirement, when applied to domestic violence situations, is an example of an exigent circumstance. People v. Thompson, 770 P.2d 1282, 1285 (Colo. 1989); see State v. Menz, 75 Wash. App. 351, 353, 880 P.2d 48 (1994), rev. denied 125 Wash. 2d 1021 (1995). The exception applies when:
“(1) the officer subjectively believed that someone likely needed assistance for health or safety reasons; (2) a reasonable person in the same situation would similarly believe that there was a need for assistance; and (3) there was a reasonable basis to associate the need for assistance with the place searched.” Menz, 75 Wash. App. at 354.
In Menz, the police responded to a domestic violence call at the defendant’s residence. Upon their arrival, the officers found the front door to the home standing open and the household lights on. Although no one responded to the officers’ announcement of their presence, they could hear a television playing inside. The officers testified that they then entered the home because they were concerned that an injured person might be hiding inside or that there might be someone inside who was unable to respond due to his or her injuries or because he or she was being threatened with violence. While searching a bedroom, the police discovered marijuana plants that were being grown.
The defendant in Menz moved to suppress the evidence of the marijuana on grounds that the search was illegal. The trial court denied the motion, and the Washington Court of Appeals affirmed. 75 Wash. App. at 356.
Concerning domestic violence situations, the Menz court stated:
“We recognize that two important policies are competing in this case. The first is to allow the police to assist those who are injured and need assistance; as stated in State v. Raines, 55 Wn. App. 459, 465, 778 P.2d 538 (1989), review denied 113 Wn. 2d 1036 (1990), ‘[p]olice officers responding to a domestic violence report have a duty to ensure the present and continued safety and well-being of the occupants’ of a home. The other policy is to protect citizens against warrantless searches not based on probable cause. Resolution of this competition turns on the facts and circumstances of each case, and in our view the facts of this case fall on the side of allowing the police to help those who need assistance.
“Menz asserts that this holding will lead to the police intruding into private homes based on unreliable anonymous tips. However, we disagree. If police reacting to an anonymous tip of domestic violence find normal circumstances — for example, the house is dark, the front door is closed, no occupant responds to knocking — die tip is not corroborated and entry is not permitted. On the other hand, if the police find abnormal circumstances — for example, the front door is open on a winter night, lights are on, a TV is playing, yet no one answers the door — die tip is corroborated and entry is permitted. In neither case are the police allowed to enter solely by virtue of an unreliable anonymous tip.” 75 Wash. App. at 354-55.
In Thompson, police officers responded to an anonymous call of a domestic violence dispute. When the officers arrived at the location, they were told by the woman who answered the door, “ ‘He’s gone. Everything’s okay.’ ” 770 P.2d at 1284. However, the woman was holding an ice pack to her head, and her face and the front of her smock were covered with blood. The woman then closed the door and locked it. The officers observed blood on the front porch, the front door, and the side of the house, and some of the glass in the front door had been broken. One of the officers reached through the hole in the glass and opened the door. The officers then entered the house to determine the extent of the woman’s injuries and whether more victims were inside.
When one of the officers informed the woman that he was going downstairs to look for additional injured persons, the woman said, “ ‘He’s gone. You don’t have to go down there. This is my house. I wish you guys would get out of here.’ ” Thompson, 770 P.2d at 1284. Nevertheless, the officer went downstairs and discovered marijuana plants that were being grown behind a blanket.
The trial court in Thompson determined that, under the circumstances, it was not reasonable for the police officers to have believed that the woman was seriously injured and suppressed the marijuana evidence. The Colorado Supreme Court reversed the trial court, finding that the officers’ belief that the woman needed assistance and that there might be additional injured persons inside the house was reasonable.
“We have previously indicated that the presence of an immediate crisis and the probability that assistance will be helpful are factors tending to support a warrantless non-consensual search. [Citations omitted.] The circumstances must be evaluated as they would have appeared to a prudent and trained police officer at the time the decision to conduct the warrantless search is made. [Citations omitted.]
“A prompt and limited warrantless search of a scene at which violence has occurred may also be necessary to determine if there are any injured parties or if the perpetrator of the violence is still on the premises. [Citation omitted.] Such search is stricdy circumscribed by the exigency which created its justification and cannot be used to support a general exploratory search. [Citations omitted.]” 770 P.2d at 1285.
The Thompson court also noted that nothing in the record indicated that the police officers entered the house for any reasons other than to render assistance and to search for additional victims. 770 P.2d at 1286.
Finally, in State v. Greene, 162 Ariz. 431, 784 P.2d 257 (1989), a police officer responded to a domestic disturbance call at the defendant’s apartment. The officer entered the apartment after seeing the defendant’s wife sitting at a table inside. The wife told the officer that the defendant had beaten her and then left. The wife began to gather her things in order to temporarily vacate the apartment. The officer followed the wife into a bedroom, where he noticed two Hawaiian leis hanging on a door knob. The officer knew that an assailant in a recent sexual assault case had worn Hawaiian leis around his neck. When the defendant was later confronted with this evidence, he confessed to the assault.
In Greene, the trial court suppressed the evidence of the leis, ruling that exigent circumstances did not exist to justify the officer’s warrantless entry. The Supreme Court of Arizona reversed, stating that “a warrantless entry can be made into a dwelling if the circumstances are ‘those in which a substantial risk of harm to the persons involved or to the law enforcement process would arise if the police were to delay a search until a warrant could be obtained.’ ” 162 Ariz. at 432-33. In addition, the Greene court noted:
“These calls commonly involve dangerous situations in which the possibility for physical harm or damage escalates rapidly. The immediate presence of the officer is essential. To require an officer to obtain a search warrant before entering a dwelling in response to a domestic violence call would be a meaningless delay that could lead to the occurrence of otherwise preventable violence. [Citation omitted.] The call itself creates a sufficient indication that an exigency exists allowing the officer to enter a dwelling if no circumstance indicates that entry is unnecessary. [Citation omitted.]” 162 Ariz. at 433.
Here, neither Simms nor Poppy testified at the suppression hearing. Officer Goss’ testimony was uncontroverted, and the material facts are largely undisputed.
Simms told Officer Goss that she and Poppy had been hit by Randolph. Simms had a red mark and a scratch on her neck, and Poppy had a swollen lip. There were signs of a recent disturbance: broken beer bottles, an overturned trash dumpster, and a broken window in the trailer. Poppy responded to Officer Goss’ question as to whether Randolph was still in the trailer by refusing to allow him to enter.
Based on Officer Goss’ experience with domestic violence situations, Poppy’s behavior indicated that she was hiding Randolph in the trailer, possibly against her will.
Under these circumstances, it is clear that Officer Goss had probable cause to believe that a battery had occurred at the trailer and that despite Poppy’s protestations, Randolph might still be inside. It was also reasonable for Officer Goss to believe that further violence might occur if he left the scene without making sure that everyone was safe and that it was necessary to enter the trailer to make sure that no further assistance was needed and that the potential for violence had ended.
Based on the case law and, in particular, the three requirements set out in Menz, Officer Goss’ entry and subsequent warrantless search of the trailer was justified in this case. For this reason, the trial court erred in granting the defendants’ motions to suppress.
However, it should be noted that the question of whether exigent circumstances éxist to justify the warrantless search of one’s home is always dependent upon the particular facts and circumstances of each situation. Flatten, 225 Kan. at 770; State v. Timmons, 218 Kan. 741, Syl. ¶ 7, 545 P.2d 358 (1976); State v. Schur, 217 Kan. 741, 745-46, 538 P.2d 689 (1975); see Greene, 162 Ariz. at 432-33; Thompson, 770 P.2d at 1285; Menz, 75 Wash. App. at 355.
Although the trial court set out the relevant facts in its memorandum decision, the trial court’s ultimate conclusion indicated that it had not actually considered the facts when formulating its decision. Rather, the trial court ruled that it was unwilling to say that “exigent circumstances exist per sc in domestic violence cases.” (Emphasis added.)
Based on Officer Goss’ uncontroverted testimony and the facts being largely undisputed, we find that the trial court erred in suppressing die evidence. The initial entry by law enforcement officers into the Gilberts’ home was supported by probable cause, and exigent circumstances existed, under which the warrant requirement was excúsed.
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Pierron, J.:
In this workers compensation case, Johnson Group, Inc., (Johnson) and Travelers Insurance Company (Travelers), appeal the decision of the Workers Compensation Board (Board) awarding Fannie L. Copeland permanent partial disability benefits based on a finding of 80% work disability. Johnson argues the Board erred in awarding permanent partial disability because Johnson proffered accommodated work to Copeland within her physical restrictions. Alternatively, Johnson argues there is no evidence to support the Board’s finding that Copeland had a 100% wage loss. We reverse and remand for further proceedings.
For nearly 6 years, Copeland worked as a press operator at Dug-gins Cleaners, a dry cleaning facility owned by Johnson. She testified she began having pain in her right arm and hand in January 1993. The pain gradually moved to her left arm and hand. Through Johnson, she sought and received medical treatment from Dr. John O’Mailey, who first prescribed splints and then sent her to Dr. Brad Storm for evaluation.
Copeland’s last day of work was September 22, 1993. On September 27, 1993, Dr. Storm diagnosed bilateral carpel tunnel syndrome. On October 22, 1993, Dr. Storm performed a bilateral endoscopic carpal tunnel release. Two weeks after the surgery, Dr. Storm released her to return to work. She testified she continued to have pain in her hands and Dr. O’Mailey prescribed physical therapy through December 1993.
In December 1993, both Dr. Storm and Dr. O’Mailey released Copeland to return to work for Johnson. Dr. Storm gave her a work restriction of no lifting over 20 pounds. He stated she was not back to full strength and the only way to regain full strength and endurance was for her to gradually use her hands again. Dr. O’Mailey gave Copeland restrictions of no lifting over 20 pounds and no sweeping floors.
Steven Stevener was the production or plant manager and Copeland’s supervisor in December 1993. He testified he was advised by his supervisor, Jerry Miller, that Copeland had been released to return to work on December 17,1993. Stevener said he had a light duty position waiting for Copeland in December 1993 that would have accommodated the lifting restrictions. Stevener testified in his deposition that Copeland did not return to work on December 17, 1993, because she was having problems with transportation. Miller told him Copeland would be returning to work on Januaiy 1, 1994. Stevener stated Copeland neither called nor reported for work from January 1 to January 5 and was terminated on Januaiy 6, 1994.
Stevener testified in his deposition that he had no conversations with Copeland about coming back to work. He was also unclear whether he saw the release restrictions from Dr. Storm or Dr. O’Mailey and was not a party to any conversation where light duty was discussed with Copeland.
Copeland testified at the hearing that she was in too much pain in December 1993 and January 1994 to return to work. She claims to have had a telephone conversation with Stevener in Januaiy 1994, where she expressed to him that she was having pain and was told to take her time returning. After Copeland’s termination, she began receiving unemployment compensation in February 1994.
On March 18, 1994, Copeland was examined by Dr. Nathan Shechter, who also concluded she suffered from bilateral carpal tunnel syndrome. Shechter concluded Copeland had disability “of 10% of the body as a whole, permanent partial. The patient may need physical therapy from time to time, and medications such as anti-inflammatories.” Dr. Shechter issued an additional report dated April 6, 1994:
“The following is a reply to your April 4, 1994 letter, regarding the above mentioned patient.
“It is the opinion of this examiner that Mrs. Copeland cannot return to the same type of work as she did before, which requires repetitive use of both hands and wrists and full strength and endurance of the upper extremities. She should be restricted to lifting 20 pounds of weight maximum. She cannot do the sweeping of floors or any type of job that requires repetitive use of the upper extremities.”
Dr. Storm testified he examined Copeland again on January 12, 1994. He concluded she had reached the maximal medical improvement and her motion, sensation, grip, and pinch strength were all objectively measured pursuant to the AMA Guides to die Evaluation of Permanent Impairment (4th ed. 1995). Dr. Storm’s report stated:
“Strictly following the AMA Guidelines she would receive a zero percent impairment for limitations of range of motion, strength and sensation. Customarily zero to five percent is awarded at the level of the wrist for limitations related to any symptoms from permanent scarring. This would translate into a zero to six percent whole body impairment.”
In June 1994, Dr. Storm restricted Copeland from gripping tools that vibrate more .than 5 minutes each hour. Dr. Storm opined that Copeland’s job as a press operator was not one that would place her at high risk for recurrence of carpal tunnel syndrome.
Based on medical records and reports from Dr. Shechter and Dr. O’Mailey, Dick Santner, Copeland’s vocational rehabilitation expert, concluded that she suffered an 88% loss of access to the open labor market and a 26% loss of wage earning capacity. Santer indicated that if Copeland went back to work, she would earn at most $5 per hour.
Johnson presented vocational rehabilitation evidence from Gary Gammon. Based on the reports of Dr. Shechter and Dr. O’Mailey, Gammon concluded Copeland would have a 54.38% loss of access to the open labor market and, based on the report of Dr. Storm, she had between 1% and 3% loss of access to the open labor market. Gammon stated that with Dr. Shechter’s and Dr. O’Mailey’s restrictions, Copeland would have 12.5% loss of earning capacity. Using Dr. Storm’s restrictions, Gammon opined that Copeland would have no loss of comparable wage earning capacity. As to Copeland’s task-performing abilities relating to her prior 15 years of employment, Gammon opined loss of 23.5% under Dr. Shechter and 1.5% under Dr. Storm..
Prior to the hearing before the administrative law judge (ALJ), the parties stipulated to Copeland’s functional impairment of 10% to the body as a whole. Following a presentation of all the evidence, the ALJ only granted benefits to Copeland in the amount of the stipulated 10% functional impairment. The crux of the ALJ’s decision is as follows:
“The evidence clearly reflects that an accommodated position had been offered the claimant by the respondent, and that such was within her ability to perform such .work. The evidence reflects that the claimant had refused to even attempt to return to work for the respondent. Therefore, the claimant has not met her required burden of proof to establish that she has sustained a work-related disability in excess of the functional impairment agreed to by the parties. Under the facts presented, a presumption of no work disability is warranted. Foulk v. Colonial Terrace, 20 Kan. App. 2d 277[, 887 P.2d 140](1994). It is therefore found that she is entitled to be compensated by the respondent-insurance carrier and Kansas Workers’ Compensation Fund in the agreed upon apportionment, for 10% permanent partial disability to the body as a whole, such being a functional impairment.’’
The ALJ granted a total award of $9,644.81.
Copeland appealed to the Board. The Board disagreed with the ALJ’s decision, finding the rationale of Foulk did not apply. The Board made several findings essential for its decision: (1) In December 1993, Copeland contacted Stevener and advised him she could not return to work at that time because she was still in pain; (2) Stevener advised her to take her time as work was slow; (3) Copeland telephoned Johnson and was told she was terminated, but she was not given a reason; and (4) the record was devoid of evidence that Johnson offered Copeland work within her permanent work restrictions as set forth by Dr. Shechter.
The Board concluded Copeland was entitled to work disability in excess of her functional impairment rating. The Board found the only testimony as to Copeland’s percentage of task loss, in the “opinion of the physician,” came from Dr. Shechter, who stated that she lost 60% of her ability to perform work tasks she had performed during 15 years of previous employment. The Board decided that since Copeland was unemployed, she was entitled to 100% wage loss. Averaging the percent of task loss and the wage loss, the Board concluded that Copeland was entitled to a work disability award of 80%. This gave her a total award of $67,070.85.
One member of the Board dissented and agreed with the ALJ’s finding that Johnson offered Copeland an accommodated position and it was within her ability to perform such work. The dissenting Board member concluded that following Copeland’s release by Dr. Storm, Johnson offered Copeland light-duty work within Dr. Storm’s restrictions and that Copeland’s decision to not return to work was for personal reasons unrelated to her restrictions or injury. The dissenting Board member stated that if Copeland felt she could not perform the accommodated job, she should have comr municated this problem to Johnson and given it an opportunity to address her concerns. Since she failed to perform the accommodated employment, the dissenting opinion concluded, the principles of Faulk were applicable and Copeland was only entitled to an award for her functional impairment.
The dissent pointed out that Dr. Shecter’s restrictions were not issued until 3 months after Copeland’s termination.
K.S.A. 44-556(a) specifically subjects workers compensation appeals to the Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq. That Act limits the relief granted on appeal. K.S.A. 77-621(c). K.S.A. 77-621(c) states that the court shall grant relief only if it determines any one or more of the eight conditions stated are present, including the following:
“(4) the agency has erroneously interpreted or applied the law;
“(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.”
In 1993, 44-556(a) was amended to limit this court’s review of an order entered by the Board to questions of law. K.S.A. 44- 556(a). However, whether the Board’s findings of fact are supported by substantial competent evidence is a question of law. See Berry v. Boeing Military Airplanes, 20 Kan. App. 2d 220, 223, 885 P.2d 1261 (1994).
“In workers compensation cases, substantial evidence is ‘ “evidence possessing something of substance and relevant consequence and carrying with it fitness to induce conviction that the award is proper, or furnishing substantial basis of fact from which the issue tendered can be reasonably resolved.” [Citation omitted.]’ Angleton v. Starkan, Inc., 250 Kan. 711, 716, 828 P.2d 933 (1992).” Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, 285, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995).
The parties do not dispute that Copeland’s last day of work, September 22, 1993, was the date of her accident or injury.
“The date of accident or date of occurrence in a workers compensation action involving carpal tunnel syndrome is the last day on which a claimant performs services for his or her employer and is required to stop working as a direct result of the claimant’s pain and disability resulting from carpal tunnel syndrome.’’Berry, 20 Kan. App. 2d 220, Syl. ¶ 3.
As a result, 1993 amendments to 44-510e(a), effective July 1,1993, are applicable to Copeland.
Prior to July 1, 1993, a section of 44-510e(a) contained a presumption against permanent partial disability benefits. This statutory language provided: “There shall be a presumption that the employee has no work disability if the employee engages in any work for wages comparable to the average gross weekly wage that the employee was earning at the time of the injury.” K.S.A. 1992 Supp. 44-510e(a). The 1993 amendments removed the term “presumption” and attempted to clarify the situation by providing that “[a]n employee shall not be entitled to receive permanent partial general disability compensation in excess of the percentage of functional impairment as long as the employee is engaging in any work for wages equal to 90% or more of the average gross weekly wage that the employee was earning at the time of the injury.” K.S.A. 44-510e(a).
The court in Lee v. Boeing Co., 21 Kan. App. 2d. 365, 371, 899 P.2d 516 (1995), discussed the 1993 amendments to 44-510e(a):
“The legislative history indicates that the 1993 amendments are merely the latest in a series of attempts by the legislature to ensure that a worker does not earn substantial post-injury wages while collecting work disability benefits. The 1993 amendments do not amount to a change in law surrounding the presumption but are merely a clarification.”
The ultimate question for resolution in this first issue is whether Johnson offered Copeland an accommodated position in December 1993. Stated another way, the question presented is whether Copeland was given the opportunity or refused the opportunity to engage in any work for wages equal to 90% of the gross weekly wage before the accident.
The ALJ determined that “[t]he evidence clearly reflects that an accommodated position had been offered the claimant by the respondent, and that such was within her ability to perform such work. The evidence reflects that the claimant had refused to even attempt to return to work for the respondent.” The Board determined that “the record is devoid of evidence that respondent offered claimant work within her permanent work restrictions as set forth by Dr. Shechter.” (Emphasis added.)
In Foulk, the claimant sustained a work-related accident to her lower back while performing her job tasks as a certified nurses’ aide. Her treating physicians imposed several physical restrictions. Her employer offered her an accommodated job as a dietary aide in an attempt to keep her employed without pain: The dietary aide position was offered at the same rate of pay as her previous nurses’ aide position. The claimant did not accept the position because she felt she could not perform certain aspects of the job in light of her doctor’s medical restrictions.
The Board in Foulk declined to award the claimant permanent partial disability benefits in an amount higher than her functional impairment. First, the evidence indicated she could perform activities outside her doctors’ restrictions. Second, the restrictions were based on the claimant’s subjective complaints. Third, she was unwilling to participate in a work hardening program. Last, she declined to even attempt the accommodated dietary aide position.
The claimant'appealed to this court, arguing that the presumption that a worker has no disability if that worker engages in work for comparable wages did not apply to cases where the worker has the ability to engage in such work, but chooses not to work. The claimant argued that the statutory language stated “engage in any work” not “possess the ability to engage in work.” This court disagreed with the claimant’s interpretation of the statute:
“Construing K.S.A 1988 Supp. 44-510e(a) to allow a worker to avoid the presumption of no work disability by virtue of the worker’s refusal to engage in work at a comparable wage would be unreasonable where the proffered job is within the worker’s ability and the worker has refused to even attempt the job. The legislature clearly intended for a worker not to receive compensation where the worker was still capable of earning nearly the same wage. Further, it would be unreasonable for this court to conclude that the legislature intended to encourage workers to merely sit at home, refuse to work, and take advantage of the workers compensation system. To construe K.S.A. 1988 Supp. 44-510e(a) as claimant suggests would be to reward workers for their refusal to accept a position within their capabilities at a comparable wage.” 20 Kan. App. 2d at 284.
In Guerrero v. Dold Foods, Inc., 22 Kan. App. 2d 53, 913 P.2d 612 (1995), the court expounded on Foulk. The claimant was injured on the job, and after surgery, she was given a job labeling and weighing bacon instead of packaging bacon as she had done before the injury. She notified her supervisor that the repetitive work was causing her problems and was fired for refusing to work within her restrictions. The Board awarded the claimant permanent partial general disability benefits. On appeal, the employer relied on Foulk for its argument that the claimant was not entitled to work disability because she was engaged in a job that paid comparable wages. The Guerrero court distinguished Foulk in denying the employer’s argument.
“The keyword in that ruling, ‘refusal,’ distinguishes Foulk from the case before us". In Foulk, the claimant never attempted to perform the new job offered by the employer. In this case, Guerrero attempted to work within her work restrictions. Moreover, Dr. Melhom notified Dold that Guerrero’s new job assignment was repetitive and increased her chances of further injury.” 22 Kan. App. 2d at 57.
Johnson argues this case falls within the parameters of Foulk, not Guerrero. Johnson states that Copeland was released to work with temporary restrictions in December 1993 and Stevener had a light-duty accommodated job waiting for her at Duggins. Johnson asserts Copeland did not return to work, claiming transportation problems and continued physical pain. She then failed to report to work in early January 1994 and was terminated as a result. .
Johnson indicates that Dr. Storm released Copeland in December 1993 for full duly work with only a temporary 20-pound weight lifting restriction. Johnson argues that Copeland should have returned to work at that time and, at a minimum, attempted the light duty work it had waiting for her. Johnson even extended the starting date to January 1, 1994, upon Copeland’s request.
Johnson takes issue with the Board’s finding that the record was devoid of evidence Copeland was offered a job within Dr. Shechter’s work restrictions. Johnson maintains that Dr. Shechter was retained only for the purposes of the workers compensation case and there is no way it could have known the restrictions set by Dr. Shechter in March and April 1994, when it tried to accommodate Copeland pursuant to Dr. Storm’s restrictions in December 1993 and January 1994.
Johnson insists it should not be required to hold open a job indefinitely, particularly where, as here, it became clear the injured employee had no intention of returning to work. Johnson also argues the only way an employee’s restrictions can be monitored and evaluated is for the injured employee to return to work, which Copeland refused to do.
On the other hand, Copeland states she was terminated before she was given her permanent restrictions and before she was seen by anyone other than the doctor used by Johnson. She argues the policy reasons set forth in Foulk do not apply to her because in December 1993 and January 1994 there were no permanent restrictions established, no evidence of a plan for accommodated employment, and no communication of any such accommodated employment offer. As a result, she .contends there cannot be a refusal of employment.
At the administrative hearing, Copeland testified that when she called Duggins on December 17, 1993, to report she was having transportation problems and also still in pain, she was not given a specific return date. Copeland testified as follows:
“Q. [MR. GREENBAUM (Johnson’s attorney)] And do you remember calling Duggins and telling them you were having trouble with your car at that time?
“A. [COPELAND] I told Jerry [Steve Stevener’s supervisor], ‘I’m having trouble with my car, but I’m still in pain.’ I constantly talked about pain to everybody I talked to.
“Q. Do you remember telling Jerry that you’d be back to work, and he told you to be back to work about the first of January of 1994?
“A. Jerry did not give me a date. Jerry told me, ‘Okay, Fannie,’ when I talked to him. I told him — he said, ‘Fannie, will you be able to come back in January?’ I said I’d do my best. I called Steve because I wasn’t able to make it.
“Q. When is it you say you talked to Steven?
“A. I talk to Steve January — I can’t remember the day it was exactly, but I talked to Steve.”
Later, the following exchange occurred:
“Q. [GREENBAUM] Jerry told you to call him again or make sure you came back in after the first of the year.
“A. [COPELAND] I called Steve because Jerry was not there. I could not talk to him, so that’s when I talked to Steve. That’s when Steve told me what he told me.
“Q. It’s your testimony that Steve said to come in whenever you want?
“A. No. He told me, he said, ‘Fannie, take your time.’ He said, ‘Don’t be in a hurry.’ He said, ‘Don’t do like Betty did. She come in here and she’s going through hell. She’s in constant pain and complaining all the time.’ He said, ‘Take your time, because we’re not really doing that much right now. You know, how the slack season go.’ [sic] I know those are Steve’s exact words because I talked to him on the phone.”
Stevener disputes that such conversation occurred. He testified in his deposition that he never had any conversations with Copeland in December 1993 or January 1994 about her coming back to work at Duggins.
As is demonstrated rather vividly in the present case, this court’s standard of review is rather limited. The Board made a finding of fact that in December 1993, Stevener advised Copeland to take her time in coming back to work because business was slow. Copeland testified this conversation occurred. Stevener testified it did not. The Board found Copeland’s testimony more persuasive. This court may not reweigh the evidence presented at the agency hearing or determine the weight or credibility of the witnesses’ testi mony. City of Wichita v. Employment Security Bd., 13 Kan. App. 2d 729, 733, 779 P.2d 41 (1989).
On the other hand, Johnson correctly argues it would have been impossible for it to offer Copeland an accommodated job within the permanent restrictions set by Dr. Shechter. This portion of the Board’s majority opinion is very puzzling. As pointed out by the dissent, Dr. Shechter’s opinion was not rendered until 3 months after Copeland was terminated for alleged refusal to return to work. However, we acknowledge the Board might have believed there was no accommodated position offered to Copeland at all. Perhaps not only were the restrictions made by Dr. Shechter not considered, but also the restrictions made by the treating physicians were ignored.
We remand for a clarification on this issue.
Johnson also argues the Board’s award of 80% permanent partial disability is unsupported by the evidence. Johnson claims the Board erred in calculating Copeland’s work disability based on a finding of 60% task loss and 100% wage loss.
Again, we review the record to see if it supports the findings entered by the Board. “In a workers compensation case, the finder of fact’s determinations should be affirmed if they are supported by substantial competent evidence.” Foulk v. Colonial Terrace, 20 Kan. App. 2d at 285.
K.S.A. 44-510e(a) sets out the statutory definition of permanent partial general disability and an injured employee’s entitlement to the same:
“The extent of permanent partial general disability shall be the extent, expressed as a percentage, to which the employee, in the opinion of the physician, has lost the ability to perform the work tasks that the employee performed in any substantial gainful employment during the fifteen-year period preceding the accident, averaged together with the difference between the average weekly wage the worker was earning at the time of the injury and the average weekly wage the worker is earning after the injury.” (Emphasis added.)
Johnson does not contest the Board’s finding that “[t]he only testimony as to claimant’s percentage of task loss, in the ‘opinion of the physician’ comes from Dr. Shechter.” Rather, Johnson argues the Board erroneously disregarded Gammon’s testimony that Copeland’s task loss ranged from 1.5% to 23.5% depending on either Dr. Shechter’s or Dr. Storm’s restrictions. Johnson insists the extent of permanent partial general disability should be made by a vocational rehabilitation expert who takes a comprehensive inventory of the employee’s prior job tasks and evaluates the claimant’s continued ability to perform those tasks based on the physician’s restrictions. Johnson provides no supporting authority for this argument.
Along these same lines, Johnson argues Dr. Shechter’s testimony is not credible since he has no experience in vocational rehabilitation or finding employment for injured persons. Johnson also points out that Dr. Shechter never observed Copeland’s work activities at her prior jobs, did not interview her regarding her past duties, and did not review all of her job tasks in the previous 15 years. Johnson argues Dr. Shechter’s testimony is highly questionable since he did not arrive at the 60% loss of job task figure until he met with Copeland’s attorney immediately prior to his deposition.
The 1993 amendments to 44-510e(a) express a clear intent by the legislature to have the physician render the opinion as to the loss of ability to perform work tasks that were performed by the employee in the previous 15 years of employment. Before 1993, it was necessary for a claimant to have expert testimony concerning the percentage by which “the ability of the employee to perform work in the open labor market and to earn comparable wages has been reduced.” K.S.A. Í992 Supp. 44-5l0e(a); see Foulk, 20 Kan. App. 2d at 280-81; Scharfe v. Kansas State Univ., 18 Kan. App. 2d 103, 105, 848 P.2d 994, rev. denied 252 Kan. 1093 (1992). The two pre-1993 elements were replaced with the elements of a physician’s testimony on the loss of the employee’s ability to perform the tasks he or she performed in the previous 15 years of employment, averaged with the difference between pre- and post-injuiy average weekly wage.
It appears the need for a vocational rehabilitation expert has vanished. Pursuant to 44-510e(a), the claimant’s loss of the ability to perform tasks in the claimant’s employment history must come from a physician. As a result, the Board did not err in calculating a 60% loss of this ability based on Dr. Shechter’s testimony.
Finally, Johnson argues the Board erred in calculating Copeland’s work disability based on a finding of 100% wage loss. Johnson’s argument is based on the theory that Copeland still has the ability to earn wages, as testified to by all the experts. Gammon testified Copeland had either 0% or 12.5% loss of wage earning capacity. Santer testified Copeland had a 26% loss of wage earning capacity and opined she could be expected to earn $5 per hour post-accident. None of the doctors or experts testified that Copeland would be unable to return to work.
Johnson concedes the specific language of the current 44-510e(a) appears to speak only in terms of the actual difference between pre- and post-injury average weekly wage. Johnson argues the legislature certainly did not intend for an injured worker to receive workers compensation benefits based on the actual post-injury wages without regard to the worker’s capacity to earn wages following the accident. Johnson contends claimants will not seek employment within their capabilities in order to maximize their recovery for permanent partial disability.
Copeland argues that “capacity to earn wages” may have been a factor under the pre-1993 version of 44-510e(a), but it is not a stated factor under the current version of this statute. Copeland argues that the Board followed the procedures of 44-510e(a) and correctly arrived at a 100% loss of wages.
The court in Foulk, 20 Kan. App. 2d 277, Syl. ¶ 4, stated it would be unreasonable for the courts to conclude the legislature intended to encourage workers to merely sit at home, refuse to work, and take advantage of the workers compensation system. The high-lighted fact in Foulk was that the employer proffered a job within the worker’s ability and the worker refused to even attempt the job. As discussed in the first issue, those facts are not currently before-this court. Although Foulk dealt with a pre-1993 version of 44-510e(a), the general principles established in Foulk would presumably apply to a case falling under the current version of 44-510e(a).
In attempting to harmonize the language of K.S.A. 44-510e(a) with the principles of Foulk, we find the factfinder must first make a finding of whether a claimant has made a good faith effort to find appropriate employment. If such a finding is made, the difference in pre- and post-injury wages based on the actual wages can be made. This may lead to a finding of lesser wages, perhaps even zero wages, notwithstanding expert opinion to the contrary.
If a finding is made that a good faith effort has not been made, the factfinder will have to determine an appropriate post-injury wage based on all the evidence before it, including expert testimony concerning the capacity to earn wages. Since no such determination was made here, we reverse and remand on that issue also.
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The opinion of the court was delivered by
Harvey, J.:
This is an action for rescission and to set aside a' deed and a bill of sale, executed by plaintiff, the widow of Axel Lindholm, to the defendant Nelson, of all her interest in the real property and personal estate of her husband for the reason that the same had been procured under such circumstances as amount to fraud and deceit and for a consideration grossly inadequate. The case was tried to the court, who made findings of fact and conclusions of law, and rendered judgment for plaintiff. The findings of the trial court best tell the story of the relations of the parties and what took place, as follows:
“1. The plaintiff was married to Axel Lindholm, a widower, on March 18, 1918, after having been his housekeeper for about a year. Her grandmother lived with her in the house all of the time and until after her husband’s death. She had been married twice before. She married the first husband in Los Angeles, Cal., where she had lived five years. After the death of her first husband, which occurred at Los Angeles, plaintiff moved to Arkansas, where she married her second husband. She lived with her second husband only a few months on a farm in Arkansas. Later she came to Kansas and obtained a divorce from him in this court. She was twenty-eight years of age at the time of the trial of the above-entitled cause.
“2. The first wife of Axel Lindholm was Sophia Anderson, daughter of one John Anderson and one Marie Anderson, sometimes called Walstrom. At the death of said Sophia Anderson, she left surviving her five daughters all of whom but the oldest were living at their father’s home on land of the Walstrom estate at the time of his marriage with plaintiff.
“3. By his will John Anderson devised to his daughter Sophia an undivided one-half of the ~WY¡ of the NE14 of section 12-15-4 in Saline county, subject to the life estate of his widow. The widow declined to accept the provision for her in the said will, and the probate court set aside to her her share of her husband’s estate. This did not include the land given to his daughter as aforesaid. Marie Anderson left by will to Axel Lindholm an undivided one-half of the EY¡ of the NE% of said section 12. Sophia died intestate and Axel Lindholm thereby acquired an undivided one-half of the land she received from her father; and at his death Axel owned 40 acres of the WV2 and 40 acres of the EY¡ of the NE% of section 12-15-4 and the S% of the SW% of section 6-15-3 in Saline couhty, and lot 5 in Block 14, Leavenworth addition to the city of Salina. The part of the Walstrom estate of which Axel Lindholm owned 80 acres was located about one mile from the home where plaintiff and her husband, Axel Lindholm, lived from the time she entered the Lindholm home until the death of said Axel. Both Marie Anderson and John Anderson died prior to the plaintiff’s marriage to Axel Lindholm, and their wills had been probated in Saline county prior to that event. Following are copies of the will of said Marie Anderson and John Anderson: . . .
“4. Axel Lindholm died at his home in Saline county, January 23, 1923. The following day the plaintiff went to the Smolan State Bank where her husband had done his banking business and kept his papers, and there she obtained a loan of $500. While at the bank plaintiff and Alvin Carlson, president of the bank, and E. F. Nelson, the defendant, discussed the question of the appointment of an administrator for the Lindholm estate, and both Carlson and Nelson recommended the defendant Theodore Holmquist. Holmquist had been well acquainted with Axel Lindholm and had been a trustee of the township.
“5. A day or two after the meeting with Carlson and Nelson at the bank, as in the preceding finding, plaintiff requested Holmquist to act as administrator. Holmquist took the matter under advisement and about two days thereafter assented to act as administrator. At said time an uncle of the plaintiff, about 50 years of age, was visiting her, and directly after Holmquist said he would act as administrator, the plaintiff, her uncle, some of the Lindholm children and Holmquist went to the office of the probate court in Salina, and the probate judge advised the plaintiff that she had prior right to administer the estate of her husband if she desired, but during the day she signed a petition requesting the appointment of Holmquist as administrator. Holmquist filed an inventory of the property constituting the estate, including the real estate; but the real estate was not appraised, and the part of the Walstrom estate owned by Lindholm was in some way omitted from the inventory. This omission was subsequently discovered and in August of the same year, with the leave of the court, the inventory was amended to recite that Lindholm left the undivided one-half of the E% and the undivided one-half of the WV2 of the NE% of said section 12. Plaintiff called from time to time at the probate judge’s office, sometimes with the administrator and sometimes alone, and made inquires of the probate judge concerning the administration proceedings, and at times looked over some of the claims presented against the estate. In August, 1923, at the request of the administrator the plaintiff called at the office of the attorney for the administrator to see if the inventory had been amended to include the Walstrom land, and she reported to the administrator that the correction of. the inventory was receiving attention. The amended inventory was filed in the probate court in August, 1923, and remained of record in that court thereafter open to public inspection.
“6. Axel Lindholm left life insurance to his wife in the sum of approximately $4,700. This she received in February, 1923, and by the middle of the following July it had been spent for automobiles, living expenses and loans to her relatives and friends; and she had an overdraft in the Smolan State Bank, at which bank she kept all her money on deposit. In August, 1923, plaintiff made a loan upon her life insurance policy of about $200 for the purpose of taking up the overdraft at the Smolan bank.
“7. Plaintiff purchased two automobiles through the Smolan State Bank, at the request of Holmquist, and the bank got a commission on each automobile. One of these automobiles, a Buick for which she had paid $2,150, she sold to the defendant Holmquist in December, 1923, for $375, after she had driven it about 9,000 miles. The testimony does not disclose the condition of this automobile at the time it was sold to Holmquist.
“8. Axel Lindholm had been the guardian and trustee of the estate or estates of his children, which had been received by them from their grandparents, John and Marie Anderson, and upon his death Ralph Anderson of Salina, Kan., was appointed his successor as guardian and trustee. After the appointment of Ralph Anderson,-the administrator Holmquist was advised that a. claim would be presented against the Axel Lindholm estate for the sum of approximately $7,000 or $8,000 on account of what was claimed to have been excessive charges and fees made by Axel Lindholm while acting as such guardian and trustee. It appeared from the accounts filed by Axel Lindholm as such guardian and trustee, that he charged $500 per year for many years for his services, and charged several of his children for support and maintenance while residing at his home as a part of his family. These charges were made on his own application to the probate court, and his children had no attorney or other representative. The guardian who succeeded said Axel Lindholm refused to permit the administrator Holmquist to settle the administration of Axel Lindholm as guardian and trustee until the claim of such excessive charges had been settled; and such controversy existed from April, 1923, until the following January, and was well known to plaintiff when she sold her interest in the estate. Said claim was compromised by the administrator in January, 1924, shortly after the interests of the plaintiff in the estate of Axel Lindholm was bought by the defendant Nelson, according to the terms of the compromise $2,000 being paid to the guardian and trustee by the administrator of the Lindholm estate. The aforesaid charges and fees claimed by Axel Lindholm as guardian had been allowed him by the probate court having jurisdiction thereof, upon application made therefor, and all allowances were approved by the probate court from year to year, and the orders allowing said fees and charges were never attacked for fraud or otherwise and were never set aside. Plaintiff had actual notice of the time and place fixed by the probate court for the final settlement of the administration on the estate, and on the day the final settlement was made and the administration .closed plaintiff was in the city of Salina at the home of Minnie Carlson, a daughter of her deceased husband, and there remained until the stepdaughter returned from the final settlement of the estate and distribution, and she knew what was going to be done that day in court.
“9. Axel Lindholm died after a very short illness, and soon after his death rumors were heard of foul play, the rumor being that said Lindholm had been ppisoned and that plaintiff was in some way responsible for his death. These fiilinors were reported to the plaintiff from several sources and caused her '¿feat worry and anxiety. She caused an investigation to be made by the ;cbuhty attorney, and although it was determined that the rumors were withprtt foundation, plaintiff continued in a state of worry and anxiety on account thereof. In addition to this trouble plaintiff had difficulties or trouble with her stepdaughters, the children of said Axel Lindholm. She consulted the •défé'fidant Holmquist in regard tó these troubles, and after talking the matter over several times it was decided by plaintiff and Holmquist that the best thing for the plaintiff to do was to leave the community. Shortly afterward íhfe plaintiff offered to sell to said Holmquist all her interests in the estate of her husband for $1,000, but Holmquist declined the offer, stating that as he was the administrator of Lindholm’s estate he could not purchase her interest "therein, and said to plaintiff that he could find a purchaser for her interest. Ok the 15th day of December, plaintiff having been requested by Holmquist .to.'ineet him at Bang’s jewelry store in the city of Salina, the plaintiff and Holmquist met in said store in the city of Salina, on said 15th day of De cember. After a short talk in which Holmquist informed plaintiff that Nelson would purchase her interest, Holmquist left the store and shortly thereafter Nelson entered the store and the deal was closed there between plaintiff and Nelson. Nelson was to pay $1,000 for all of plaintiff’s interest in the estate of Axel Lindholm. Shortly thereafter, and on the same day, a deed and bill of sale were prepared, and by said deed and bill of sale the plaintiff conveyed and sold to Nelson all her right, title and interest in and to the estate left by her husband, Axel Lindholm, at the time of his death. She received $1,000 for her said interest.
“10. When plaintiff executed and delivered the deed and bill of sale she knew she was entitled to one-half of the estate of her deceased husband, and she intended by such deed and bill of sale to sell and convey her undivided one-half interest in said estate; but the plaintiff at the time she executed and delivered said deed and bill of sale did not know the value and extent of the real estate owned by her husband at his death, and the court finds that each of the defendants then knew the extent and value of the real estate plaintiff inherited from her husband; and each of them then knew that the plaintiff was ignorant of the extent and true value of her interest in her husband’s estate and neither of them advised her of the extent of her property or its true value. The plaintiff did not at any time or place on or prior to December 15, 1923, consult or ask either of the defendants as to the value of her interests in the estate of her deceased husband, and neither defendant Holmquist nor the defendant Nelson misrepresented to plaintiff the extent or value of her interests in said estate. Plaintiff knew that her husband, Axel Lindholm, owned at the time of his death the house and lot in the city of Salina and the 80 acres of pasture land and 40 acres of the Walstrom estate, and plaintiff knew that as the widow of Axel Lindholm she had acquired and owned one-half of the real and personal property belonging to her husband's estate.
“11. The defendant, Theodore Holmquist, was appointed' administrator of the Axel Lindholm estate-in January, 1923, and duly qualified as such administrator. On the 28th day of January, 1925, he- filed his final report in the probate court of said county and made application -to make final distribution and settlement of said estate, and the probate court thereupon fixed the 5th day of Mai’ch, 1925, as the time for final settlement of the estate of Axel Lindholm, and Theodore Holmquist as such administrator caused to be duly published a notice as required by the statute in such cases of final settlement, and the plaintiff had notice that the final settlement of the estate would occur on March 5, 1925. Said, final settlement was made and the administration of said estate closed, and the probate court then made its final order adjudging and determining that the plaintiff, Clara. Lindholm, had soid, transferred and conveyed unto the defendant E. F- Nelson, all her undivided one-half interest in real and personal estate of the deceased, and that said Nelson had become and was the owner thereof, and said final order of distribution was not appealed from, and remains in full force and effect, and Theodore Holmquist,. as such administrator, distributed the residue of the personal estate pursuant.to said order and paid to the defendant, E. F. Nelson, by reason of such order, the sum of $-.
“12. The defendant Nelson was employed in the Smolan State Bank as cashier many years and lived at Smolan, Kan., and was well acquainted with Axel Lindholm and his family, and was familiar with the lands comprising the Walstrom estate as well as the Lindholm estate, and all of said lands'are situated about-miles north of Smolan, Kan. Both Nelson and Holmquist were stockholders in said bank and were intimate friends. Holmquist kept all of his accounts as administrator of the Lindholm estate in said bank.
“13. The personal property belonging to the Lindholm estate, from which about $8,000 was received, was sold at the direction and by an order of the probate court.
“14. After the. death of Axel Lindholm, Holmquist was very friendly toward the plaintiff, often taking her from her home near Smolan to Salina with him while transacting his business as administrator, and the plaintiff often visited at the Holmquist home during the week-ends of the summer and fall of 1923, and her relations with Holmquist and his family became quite intimate, plaintiff and the members of Holmquist’s family calling one another by very familiar names; but on or about the 24th of September, 1923, the plaintiff called upon the defendant Holmquist where he was working in a neighbor’s field and provoked an altercation with him, and then threatened to sue him and other Swedes.
“15. That plaintiff did not at any time or in any manner prior to the commencement of this action rescind or attempt to rescind her sale of the property to the defendant Nelson, or in any wise complain to him or inform him that the same was made on a mistake of fact or by reason of any unfair conduct on his part or on the part of the defendant Holmquist.
“16. Plaintiff confided with Holmquist many of her family affairs and troubles. The plaintiff was inexperienced in business and trusted and relied upon the defendant Holmquist in the matter of the sale of the personal property of the value of about $8,000 and in the administration of her husband’s estate; and she assisted him in checking some of the claims for current household expenses presented against the estate. On account of her husband’s long dealings with the bank and his friendly relations with its officers, she looked to them for financial favors and assistance and she trusted them in financial matters, and the defendant Holmquist and the officers of the Smolan State Bank were her only advisers in her business matters.
“17. The defendant Nelson received from the defendant Holmquist as administrator of the estate of Axel Lindholm, by virtue of the bill of sale from plaintiff to Nelson, the sum of $142.60. Since December 15, 1925, he has received the sum of $403 as rents from the farm land. The rents of the city property have paid for all improvements, repairs and taxes thereon and reduced the incumbrance on the city property to $1,200 and interest from October 6, 1925. The value of plaintiff’s undivided one-half of the city property December 15, 1923, was $750. The value of the plaintiff’s undivided one-half of the pasture December 15, 1923, was $1,400. The value of the plaintiff’s undivided one-fourth of the west half of the northeast quarter of section 12 on December 15, 1923, was $1,600. The value of plaintiff’s undivided one-fourth of the east half of the northeast quarter of section 12, on December 15, 1923, was $1,700.
“18. This action was duly commenced March 4, 1925.
“19. The defendant Nelson was the owner of the legal title to the real estate conveyed to him by the plaintiff at the time of trial and had not encumbered the same.”
The court made the following conclusion of law:
“The conveyance from the plaintiff to the defendant Nelson should be set aside and the deed canceled of record; and the plaintiff should be adjudged to be the owner of said real estate and entitled to the possession thereof; the defendant Nelson should account to the plaintiff for all moneys received by him from said estate and all rents received from said real estate, together with interest upon each sum so received by him from the date of its receipt; and the plaintiff should restore to the defendant Nelson the sum of $1,000 with interest thereon at the rate of six per cent per annum from December 15, 1923. If the defendant Nelson has conveyed or encumbered the real estate described in the deed from the plaintiff to him, the plaintiff should have judgment against him for the value thereof. Defendant Nelson should be adjudged to pay the costs of this action.”
The defendant Nelson has appealed. His first contention is that plaintiff is precluded from maintaining this action because of the judgment and decree of .the probate court at the final settlement -of the estate of Axel Lindholm, of which plaintiff had actual notice, but did not appear. This contention cannot be sustained. The personal property of the estate of Axel Lindholm was more than sufficient to pay his debts and the expense of administration; there was a sum left for distribution. The administrator, therefore, had nothing to do with the real estate. His bond was based on the value of the personal estate only (R. S. 22-213). Crops growing on the land at the time of the death of decedent passed to the administrator as a part of the personal property of the estate. (R. S. 22-502; Blakely v. Blakely, 115 Kan. 644, 645, 224 Pac. 65.) The real property itself passed to the heirs (R. S. 22-108, 22-118), with right to possession, and rents and profits. The administrator had nothing to do with it unless it was necessary to pay debts, as provided by R. S. 22-801. (Head v. Sutton, 31 Kan. 616, 3 Pac. 280; Schmidt v. Loan & Trust Co., 112 Kan. 535, 537, 211 Pac. 630; Nagle v. Davison, 124 Kan. 230, 257 Pac. 962.) Although the personal estate only is to be appraised (R. S. 22-504), the inventory shall include all the real estate of the deceased. (R. S. 22-501.) There are several reasons why it is advisable to have the real estate listed in the inventory, but this listing gives the administrator no authority over it, and gives the probate court no jurisdiction to dispose of it, except under .conditions specifically provided by statute. It is not contended that any of those conditions existed in this case. Hence, the probate court had no jurisdiction of the real estate — no question concerning the real estate before it to be acted upon — at the time of the final settlement of the estate of Axel Lindholm. The order of final settlement is not, therefore, a bar to plaintiff’s action to set aside the deed previously made to Nelson.
In this action plaintiff sought not only to set aside the deed, to Nelson of her interest in the real estate, but also sought to set aside the bill of sale she had executed to Nelson, purporting to convey or to assign to him her interest in the personal estate of Axel Lindholm. That personal estate was being administered, and its administration was within the jurisdiction of the probate court. Nelson presented the bill of sale to the probate court, and no objection being made to it, it was ordered at the time of the final settlement that the distributive share of the personal estate, which would have been paid to plaintiff if the bill of sale had not been given, be paid by the administrator to Nelson, and it was so paid.
Appellant now contends that plaintiff should have presented her objections to the validity of the bill of sale to the probate court, and not having done so the order and decree of final settlement is a final adjudication of her rights in that respect and precludes her from maintaining this action to set aside the bill of sale. This conclusion is erroneous. The statute authorizes the probate court, at the time of final settlement, to “determine who are the heirs ... of the deceased” and to enter a record thereof in the journal of the court. (R. S. 22-904.) In order to close the estate and to discharge the administrator and his bondsmen from liability the probate court, generally speaking, has authority and jurisdiction to determine to whom the administrator should pay the final distributive shares of the estate, and to decide any incidental question necessary to reach that conclusion. Certainly that is true if the question grew out of the administration of the estate; but if the question arose'apart from the administration of the estate, the jurisdiction of the probate court to determine it is not so certain, if, indeed, it exists. It has been held that the probate court has no jurisdiction to determine adverse claims to property in the hands .of an administrator (15 C. J. 1017; Fancher v. Kenner, 110 Ark. 117), which claims do not grow out of the administration of the estate. Our court has held that a probate court cannot determine questions of title so as to conclude persons claiming adversely to the estate (Byerly v. Eadie, 95 Kan. 400, 148 Pac. 757), nor to determine whether the decedent had transferred property in fraud of his creditors (Barker v. Battery, 62 Kan. 584, 64 Pac. 75), nor to determine the ownership of a fund in controversy (Yockey v. Yockey, 95 Kan. 519, 522, 148 Pac. 665. See, also, Ross v. Woollard, 75 Kan. 383, 89 Pac. 680). Had the plaintiff in this case appeared at the time of final settlement and objected to the payment of her distributive share of the estate to Nelson, under the bill of sale, for the reason that it had been obtained from her by fraud and deceit and for a consideration grossly inadequate, a proper procedure would have been for the probate court to have held up the distribution of that portion of the fund until the rights of the respective parties to it could have been determined in a court of competent jurisdiction. Under the authorities above cited the probate court had no jurisdiction to determine that question. There is authority, however, either specifically holding or indicating, that the probate court could determine any question involving the disposition of the funds of an estate, and especially who is entitled to the money. (Proctor v. Dicklow, 57 Kan. 119, 45 Pac. 86.) But even under those authorities, the determination of questions ordinarily regarded as coming within the jurisdiction of courts of equity, the jurisdiction of the probate court to hear the question is not exclusive. In 15 C. J. 1014 the rule with reference to the equity powers of probate courts is thus stated:
“While probate courts are not, generally speaking, courts of equity, and therefore do not possess general equity powers, in matters which fall within their jurisdiction they do possess many of the powers usually exercised by courts of equity, and are authorized to apply the rules and principles of equity and to proceed in many respects after the manner of courts of equity. Such limited equity jurisdiction does not, however, divest other courts of general equity jurisdiction of their jurisdiction in the same matters.”
So, if by any construction of the powers of probate courts, it could be said that a probate court had jurisdiction to entertain a controversy between this plaintiff and Nelson as to which was entitled to the funds, such jurisdiction of the probate court was not exclusive and would not deprive a court of general jurisdiction of jurisdiction to hear the matter. The question was not, in fact, presented to the probate court; it was not ruled upon nor decided by the probate court; hence, there is nothing in the decree of final settlement of the estate of Axel Lindholm which would preclude the dis trict court from exercising its jurisdiction in matters of equity in an action brought by this plaintiff against Nelson, based on allegations of fraud and deceit, which induced her to execute the bill of sale.
Appellant contends that the findings of fact do not support the conclusion of law reached by the trial court. It is argued that plaintiff was familiar with the property sold; that she named the price she was willing to take; that defendant bought at her price; that he misrepresented nothing to her; that they dealt at arm’s length; that no fiduciary relation existed between them; hence, that the court was not justified in decreeing rescission. The courts have consistently refused to give an exact definition to, or to fix definite boundaries of, that class of human relations which, by principles of common honesty, require fair dealing between the parties, and which is commonly known as fiduciary relations.
“It is a relation in which, if a wrong arises, the same remedy exists against the wrongdoer on behalf of the principal as would exist against a trustee on behalf of the cestui que trust. The relation may exist under a great variety of circumstances; it exists in all cases where there has been a special confidence reposed in one who in equity and good conscience is bound to act in good faith, and with due regard to the interests of the one reposing the confidence. . . . Courts of equity have refused to set any bounds to the circumstances out of which a fiduciary relation may spring. It not only includes all legal relations, . . . but it extends to every possible case in which a fiduciary relation exists in fact, ... in some relations there must exist confidence of the one in the other, together with conditions extending to the one an advantage over the other, and this may be by reason of the superior intelligence of the one over the other or superior knowledge of the facts involved in a business transaction. It is not necessary that the relation and duties involved be legal; they may be either moral, social, domestic, or merely personal. The origin of the confidence and the source of the influence are immaterial.” (25 C. J. 1119.)
“The relation which calls this rule into operation is not necessarily some technical relation created by, or defined in, law, but any actual reposing of confidence, however created or originating, where the other essentials to the exercise of jurisdiction are found. . . . Even where fraud is not presumed from the relationship alone, any circumstances of imposition in connection therewith will make a case for relief in equity.” (21 C. J. 113.)
“Where the transaction is in its nature and circumstances such as to give one party an inequitable or unconscionable advantage over the other, equity, inferring fraud, will not only decline to lend its aid to the party seeking to enforce such claim, but will often actively interfere to give relief to the other party. To this class is properly attributable the cases dealing with ‘catching bargains’ made with heirs or other expectants, where oppression or unconscion able advantage taken of the necessities of such persons is presumed from the nature of the transaction.” (21 C.J. 111.)
See, also, Clapp v. Maurer, 94 Kan. 549, 551, 146 Pac. 1155; Hill v. Hall, 191 Mass. 253; Thiede v. Startzman, 113 Md. 278, 288, and cases cited in support of the C. J. text above quoted.
Under the authorities above referred to, do the findings of fact justify the court in decreeing rescission? The plaintiff was improvident; she had had little business experience, and had no sound business judgment of the value of property or the use to be made of it. Practically her only business experience had been with the defendant Nelson and with Holmquist, and these transactions had not been to their financial disadvantage. She consulted them in business matters and acted upon their suggestions. She was distressed mentally by reason of the ill-founded rumor that she may have been responsible for her husband’s death, and because of the talk of a claim to be made against her husband’s estate for charges he had made as guardian of his children. Perhaps this claim had no just foundation; all the expenditures of her husband as guardian were made in conformity to orders of the probate court, were regularly reported and were by the court approved. The claim was later settled for about twenty-five per cent of the sum originally mentioned. Perhaps if it had been tried out none of it would have been allowed. But the fact that it was discussed and contended for caused plaintiff mental worry. The defendant Nelson and Holmquist knew the extent and the reasonable value of plaintiff’s interest .in her husband’s estate, plaintiff did not know either of these things, and they knew she did not know them. When in the course of a conversation with Holmquist she stated she would take $1,000 for her interest in the estate of her husband, Holmquist promptly communicated this information to Nelson, with the result that Nelson purchased plaintiff’s interest in her husband’s real and personal estate, which was of the reasonable value of $5,500, for $1,000 in cash. Courts of equity are not required to close their eyes to a transaction of this character. It was not error for the court to decree rescission. By this decree Nelson gets his $1,000 back with interest from the date of payment, and plaintiff gets back the property which rightfully belongs to her. The only thing Nelson loses is the profits of an unconscionable bargain.
We have examined all of the authorities cited by appellant. It will not be necessary to analyze them. There is no ruling in any of them contrary to the result here reached. A few minor matters are discussed, but these do not require separate treatment.
The judgment of the court below is affirmed.
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Pierron, J.:
The facts in this case are somewhat complex. B. Nathalie Steinle brought suit against appellees Richard G. Knowles, d/b/a F.S. Allen Abstract and Title Company, Chicago Title Insurance Company (Chicago Title), and F.S. Allen Abstract and Title Company, Inc. (Allen Abstract). She alleged, in relation to a title insurance policy issued by Chicago Title, breach of contractual duty to defend, negligence, negligent misrepresentation, and breach of warranty.
In another suit which was consolidated with Steinle’s claim, Chicago Title sued Steinle and her husband, Ervyl Steinle, under a subrogation clause in the title insurance policy to recover monies it expended to satisfy a claim by a third party under the title insurance policy.
The trial court granted summary judgment for Chicago Title on Steinle’s tort claims because it found the title insurance contract did not require it to provide Steinle a defense under these facts. The court granted Chicago Title’s subrogation claim against Steinle and ordered Steinle to pay $7,423.78 in damages.
The case was tried on stipulated facts and exhibits.
In 1972, the subject property was deeded to Steinle from the previous owners with the following legal description: The west 33 acres (more or less) of the N Vz of the NE A of Section 9, TWP 27, Range 3 East, located in Butler County, Kansas.
In 1986, Steinle entered into a contract to sell the property to Don and Guyla Glaesman. The contract utilized a legal description different from the description in the original deed to Steinle. The new legal description was obtained from a survey Steinle had performed some years earlier. The new legal description included property to which Steinle did not have title, including a 2-rod strip on the east side of the property and parcels on the north side which belonged to the Kansas Turnpike Authority (KTA).
The purchase contract with the Glaesmans provided for a portion of the purchase price to be paid through a promissory note to Steinle in the amount of $35,000, to be secured by a mortgage held by Steinle.
Steinle and the Glaesmans ordered title insurance from Chicago Title. Chicago Title issued a title insurance commitment through Knowles, an authorized agent. Steinle does not remember whether she reviewed the title commitment before closing.
The Glaesmans and Steinle closed on the contract in March 1986. Allen Abstract handled the closing. A warranty deed from Steinle to the Glaesmans and a mortgage from the Glaesmans to Steinle were issued, both using the new legal description. Steinle signed the warranty deed to the buyers. The deed purported to convey property to which Steinle did not have good and complete title. Chicago Title issued title insurance policies to the Glaesmans’ title and to Steinle.
Steinle paid a portion of the Glaesmans’title insurance premium and a closing fee to Allen Abstract. No other monies were paid to the Glaesmans by Steinle.
Later in 1986, a dispute arose concerning the ownership of the east 2 rods of the property. A quiet title action was begun, and Steinle was added as a party to that action. To resolve this action, Steinle expended funds for legal counsel and in the final settlement. The quiet title action was settled.
In March 1993, the Glaesmans brought an action against all the parties in this case, among others. They alleged that Steinle misrepresented various features of the property, including the ownership of the property held by the KTA and included within the legal description conveyed. At the time of the pretrial conference, the claim also alleged a breach of warranty of title.
Steinle requested that Chicago Title provide a defense in the litigation. The request was refused, and Steinle provided for her own defense. At no time during the litigation was the validity of Steinle’s mortgage on the property challenged. As a result of the alleged title defect, the value of the subject property was never reduced below the balance of the promissory note held by Steinle from the Glaesmans.
During the Glaesman litigation, Steinle filed claims against Chicago Title. The parties to the present action stipulated to an order reserving claims.
In 1994, Chicago Title purchased the KTA property for the Glaesmans, thus curing the title. Steinle reduced the mortgage by $2,000 as a contribution to the settlement of the Glaesman litigation.
Steinle first filed her claim of negligence against Knowles and Allen Abstract on June 7, 1993, in her amended answer and cross-claim in the Glaesman litigation. The title commitment and the title insurance policies issued by Chicago Title did not exclude from coverage the interest held by the KTA. The interest held by the KTA was of public record.
Since this case was tried on stipulated facts and exhibits, we note:
“ Where the controlling facts are based upon written or documentary evidence by way of pleadings, admissions, depositions, and stipulations, the trial court has no peculiar opportunity to evaluate the credibility of witnesses. In such situation, this court on appellate review has as good an opportunity to examine and consider the evidence as did the court below, and to determine de now what the facts establish.’ [Citation omitted.]” Kneller v. Federal Land Bank of Wichita, 247 Kan. 399, 400, 799 P.2d 485 (1990) (quoting Smith v. Williams, 227 Kan. 32, Syl. ¶ 2, 605 P.2d 86 [1980]).
We first examine the question of whether the title insurance policy limits Chicago Title’s duty to defend Steinle to only litigation which asserts the invalidity of Steinle’s mortgage.
The title insurance policy is titled “American Land Title Association Loan Policy” and states:
“SUBJECT TO THE EXCLUSIONS FROM COVERAGE, THE EXCEPTIONS CONTAINED IN SCHEDULE B AND THE PROVISIONS OF THE CONDITIONS AND STIPULATIONS HEREOF, CHICAGO TITLE INSURANCE COMPANY, . . . insures, as of Date of Policy shown in Schedule A, against loss or damage, not exceeding the amount of insurance stated in Schedule A, and costs, attorneys’ fees and expenses which the Company may become obligated to pay hereunder, sustained or incurred by the insured by reason of:
1. Title to the estate of interest described in Schedule A being vested otherwise than as stated therein;
2. Any defect in or Men or encumbrance on such title;
3. Lack of a right of access to and from the land;
4. Unmarketability of such title;
5. The invalidity or unenforceability of the hen of the insured mortgage upon said estate or interest except to the extent that such invalidity or unenforceability, or claim thereof, arises out of the transaction evidenced by the insured mortgage and is based upon
(a) usury, or
(b) any consumer credit protection or truth in lending law;
6. The priority of any Men or encumbrance over the hen of the insured mortgage;
7. Any statutory hen . . . ; or
8. The invalidity or unenforceabihty of any assignment . . . of the insured mortgage or the failure of said assignment to vest title to the insured mortgage in the named insured assignee free and clear of all hens.”
In tfie section of die tide policy entided “Conditions and Stipulations,” a section entided “Defense and Prosecution of Actions” states:
“The Company, at its own cost and without undue delay, shall provide for the defense of an insured in all litigation consisting of action or proceedings commenced against such insured, or defenses, restraining orders or injunctions inter posed against a foreclosure of the insured mortgage or a defense interposed against an insured in an action to enforce a contract for sale of the indebtedness secured by the insured mortgage, or a sale of the estate or interest in said land, to the extent that such litigation is founded upon an alleged defect, hen, encumbrance, or other matter insured against by this policy.”
The trial court held: “The loan title policy issued to the plaintiff provides no coverage for her defense of an action brought against her as seller of property. She was an insured only as to the mortgage title policy.” The court stated, at the hearing on the summary judgment motions:
“Ms. Steinle received the mortgage title policy in her role as mortgage lender, not in her role as seller. And that’s the context that that broad, admittedly broad, insurance coverage provision has to be interpreted, and I don’t think she’s entitled to stretch the coverage even for the purpose of the duty to defend, stretch the purpose of the mortgage title insurance contract to cover defense of her need for a defense as seller in the transaction. She was an insured, but only as to the mortgage title insurance policy.”
Several legal standards should be kept in mind as the title insurance contract is analyzed. “Regardless of the construction given a written contract by the trial court, an appellate court may construe a written contract and determine its legal effect.” Federal Land Bank of Wichita v. Krug, 253 Kan. 307, Syl. ¶ 2, 856 P.2d 111 (1993). “Where the language of the contract is clear and can be carried out as written, there is no room for construction or modification of the terms.” Metropolitan Life Ins. Co. v. Strnad, 255 Kan. 657, Syl. ¶ 8, 876 P.2d 1362 (1994). “Whether an ambiguity exists in a written instrument is a question of law to be decided by the court. [Citation omitted.]” Kennedy & Mitchell, Inc. v. Anadarko Prod. Co., 243 Kan. 130, 133, 754 P.2d 803 (1988). “To be ambiguous, a contract must contain provisions or language of doubtful or conflicting meaning, as gleaned from a natural and reasonable interpretation of its language.” Catholic Diocese of Dodge City v. Raymer, 251 Kan. 689, 693, 840 P.2d 456 (1992).
Further, the language of the contract must be construed against Chicago Title because it prepared the contract and its language. See Gowing v. Great Plains Mutual Ins Co., 207 Kan. 78, 80, 483 P.2d 1072 (1971).
In short, the language in a policy of insurance purporting to restrict coverage must do so clearly. We follow this rule due to the superior position of the insurance company in regard to contract language.
“Typical of the adhesion contract, and one of its most prominent examples, is the insurance contract or policy, which possesses the distinctive characteristic of unequal bargaining strength or bargaining status between seller and purchaser, or the insurer and the insured. [Citations omitted.]
“The terms of today’s standard insurance policy are predetermined by the insurance carrier itself and, long in advance of the individual insurance sale, those terms have been incorporated into the insurance package presented to the prospective buyer. . . . The buyer’s freedom of choice in selecting a policy is severely limited; if he desires . . . insurance he must normally accept the printed policy with the usual printed provisions — else he can leave it.” 207 Kan. at 80.
Steinle contends the Chicago Title insurance policy provided coverage for the Glaesman litigation and required Chicago Title to provide her a defense because that litigation presented more than a mere possibility that a covered claim existed. If the facts presented indicate any “ potential of liability’ under the policy, the insurer bears a duty to defend.” Spivey v. Safeco Ins. Co., 254 Kan. 237, Syl. ¶ 2, 865 P.2d 182 (1993). “[The possibility of coverage] may be remote, but if it exists, the company owes the insured a defense.” 254 Kan. 237, Syl. ¶ 2.
This court must, therefore, determine whether there is any possibility that the Glaesman litigation fell within the policy’s coverage. Chicago Title contends, as the trial court found, that the title policy was for Steinle a lender’s policy only and did not provide any coverage for Steinle as a seller.
Chicago Title points to the title of the policy, “Loan Policy,” and contends it covers only defects to the buyer’s title which would affect the mortgage held by Steinle. The amount of coverage is only $35,000, which corresponds with the amount of the mortgage. The mortgage is specifically listed as the “insured mortgage.”
In the Glaesman litigation, the Steinles were alleged, as sellers, to have made false representations about the location and nature of a road on the property and that the property could be developed. The Glaesmans also alleged negligent misrepresentation and breach of warranty of title.
Chicago Title recognizes the duty to defend when there is a potential of liability under the policy but asserts that because the Glaesman litigation alleges acts that are clearly not covered by the policy, there is no potential of liability, and thus no duty to defend. See Spivey, 254 Kan. 237, Syl. ¶ 4.
While it may have been the intent of Chicago Title to restrict its coverage only to the extent necessary to protect the value of the mortgage, its policy did not do so. The language of the policy as it applies to this factual situation is difficult to grasp. As we read the policy, it contracted to provide a defense to the insured for the type of title breach involved here.
Insureds are not required to engage in linguistic gymnastics to ascertain the intent of the insurer. Titling the contract a loan policy does not abrogate the clear language of the policy. The language of a policy purporting to restrict coverage must do so clearly. Chicago Title at least guaranteed clear title up to $35,000. Under the language of this policy, it is liable for damages up to that amount and to provide a defense.
The second issue is whether Steinle’s claims for negligence or breach of warranty are time barred. We believe they are.
The trial court granted Chicago Title summary judgment on Steinle’s tort claims.
“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. Summary judgment is appropriate when 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 judgment as a matter of law. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. 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. [Citations omitted.]” Mitzner v. State Dept. of SRS, 257 Kan. 258, 260-61, 891 P.2d 435 (1995).
The trial court ruled: “The plaintiff had notice of the defect in the title search performed by the defendants in 1986. . . . The tort claims asserted against the defendants by the plaintiff accrued in 1986 and are therefore barred by the two-year statute of limitations.”
At the hearing, the trial court stated that because the journal entry in the quiet title action specifically mentions the areas which were disputed as a result of the incorrect legal description, Steinle, “at the very least, had notice in that litigation back in 1986, and should have known, if she didn’t know, that there was a problem, and that there was a defect, and that there was a challenge.”
The applicable statute of limitations for negligence is 2 years. K.S.A. 60-513(a)(4). Breach of an imphed warranty of workmanlike performance has a 3-year statute of limitations. Zenda Grain & Supply Co. v. Farmland Industries, Inc., 20 Kan. App. 2d 728, Syl. ¶ 8, 894 P.2d 881 (1995). The Glaesman action, where Steinle first brought the actions against appellees, was filed in 1993. Because the causes of action accrued at least by 1986, they are time barred.
Steinle contends the trial court erred in granting summary judgment on the statute of limitations issue because it ignored the material issue of fact as to whether the Steinles knew of the appellees’ negligence. -
“ ‘[A]n issue of fact is not genuine unless it has legal controlling force as to a controlling issue. A feigned or imaginary issue is not a genuine issue. A disputed question of fact which is immaterial to the issues does not preclude summary judgment. If the disputed fact, however resolved, could not affect the judgment, it does not present a genuine issue of material fact.’ [Citation omitted.]” Seabourn v. Coronado Area Council, B.S.A., 257 Kan. 178, 189, 891 P.2d 385 (1995).
It would appear that if it was obvious in the quiet title action that there was a defect in title that appellees had not discovered, they were negligent. If Steinle did not know of the negligence at the time, she should have. The trial court ruled that Steinle either knew of the appellees’ negligence, or should have known of it, as of the 1986 litigation. Therefore, even if Steinle did not know of the appellees’ negligence, that fact is not material because the trial court correcdy ruled that Steinle should have known of the negligence in 1986.
“ ‘ “[A]n injured party has a positive duty to use diligence in discovering his cause of action within the limitations period. Any fact that should excite his suspicion is the same as actual knowledge of his entire claim.” ’ [Citation omitted.]” McCaffree Financial Corp. v. Nunnink, 18 Kan. App. 2d 40, 52, 847 P.2d 1321 (1993). The trial court did not err by ruling Steinle’s tort claims were barred by the statute of limitations.
The trial court also ruled the appellees owed no duty to Steinle: “There was no duty owed to [Steinle] by the [appellees] in this case sufficient to support an action for negligence or breach of warranty. Any duty which existed extended only to the purchasers of the property, not to the sellers.”
This court’s affirming the trial court’s finding that the statute of limitations barred the tort causes of action disposes of the issue and there is no need to address the duty issue.
Finally, we must decide if Chicago Title has a cause of action against Steinle for subrogation.
This issue was not decided by the trial court which granted Chicago Title’s motion for summary judgment, but came before another trial court for decision on the stipulated facts and exhibits. The same stipulated fact standard of review cited above applies and, again, this is a question of law over which this court can exercise unlimited review.
In December 1994, Chicago Tide purchased certain real property from the KTA and gave it to the Glaesmans, in conjunction with its obligations under the tide insurance policy.
The trial court ruled:
“1. The plaintiff has a valid right of subrogation in this case against the defendant. Fenly v. Revell, 170 Kan. 705, 228 P.2d 905 (1951).
“2. The litigation in the Butler County case did not extinguish the right of the plaintiff to pursue reimbursement against the defendant.
“3. The intent of the parties in settling the Butler County case and in reserving claims therein was to allow the reservation of the plaintiff for the present claim. The release . . . does not provide the defendant a defense to the plaintiff’s claim.”
The Glaesmans’ title policy, states:
“Whenever the Company shall have settled a claim under this policy, all right of subrogation shall vest in the Company unaffected by any act of the insured claimant. The Company shall be subrogated to and be entitled to all right and remedies which such insured claimant- would have had against any person or property in respect to such claim had this policy not been issued, and if requested by the Company, such insured claimant shall transfer to the Company all rights and remedies against any person or property necessary in order to perfect such right of subrogation and shall permit the Company to use the name of such insured claimant in any transaction or litigation involving such rights or remedies. If the Payment does not cover the loss of such insured claimant, the Company shall be subrogated to such rights and remedies in the proportion which said payment bears to the amount of said loss. If loss should result from any act of such insured claimant, such act shall not void this policy, but the Company, in that event, shall be required to pay only that part of any losses insured against hereunder which shall exceed the amount, if any, lost to the Company by reason of the impairment of the right of subrogation.”
Chicago Title’s subrogation action against Steinle was for repayment of the amount it paid to buy the real property from the KTA which it deeded to the Glaesmans. During the Glaesman litigation, which began in 1993, the Steinles and Chicago Title entered into a stipulated order on October 24, 1994, allowing Chicago Title to amend its pleadings to “assert an indemnification claim against [Steinle] based upon an alleged breach of warranty of title.” The order further provided that the indemnification claim would not be considered mandatory in that litigation and that the claim would be “reserved” and dismissed without prejudice.
On November 28,1994, the trial court in the Glaesman litigation granted summary judgment in Steinle’s favor on the Glaesmans’ claim for breach of the covenant of seizin. The trial court held that such an action must be brought within 5 years of the date the deed is executed and that the claim was, thus, time barred. The court further found the breach of warranty claim would fail because such a claim does not accrue until the covenant is disturbed, and there was no evidence that the buyer had been evicted or that its possession had been disturbed. The Glaesman litigation was . finally settled, and the Glaesmans executed a release of their claims against the parties.
It is recognized by both parties that Steinle conveyed to the Glaesmans property she did not own. Chicago Title, as the Glaesmans’ title insurer, cured that title by purchasing the adverse interest from the KTA and conveying it to the Glaesmans. The Glaesmans’ owners’ tide insurance policy with Chicago Tide provides subrogation rights to Chicago Tide, allowing it to pursue the Glaesmans’ rights for Steinle’s breach of warranty.
As pointed out by the trial court in the Glaesman litigation, the breach of warranty claim against Steinle had not accrued at the time of the litigation because the Glaesmans had not suffered a constructive eviction. Only the covenant of seizin had been breached. The breach of warranty claim accrued when Chicago Tide purchased the real property at issue, because a constructive eviction of the Glaesmans occurred then. The Glaesmans did not pursue the breach of warranty claim against Steinle because Chicago Title deeded the property to them. At that point, the breach of warranty claim of the Glaesmans passed to Chicago Tide, and it had the right to pursue subrogation under that claim of its insured against Steinle.
Fenly v. Revell, 170 Kan. 705, 708, 228 P.2d 905 (1951), cited by the trial court, states that the doctrine of subrogation
“is a creature of equity invented to prevent a failure of justice and is broad enough to include every instance in which one party is required to pay a debt for which another is primarily answerable, and which, in equity and good conscience ought to be discharged by the latter. [Citations omitted.]”
The issue appears to be whether the subsequent settlement of the case, the Glaesmans’ release of their claims against Steinle, and their cancellation of the tide policy, all of which occurred after the order reserving Chicago Tide’s indemnification claim against Steinle, should bar Chicago Tide’s subrogation claim against her.
The journal entry which settled the Glaesman litigation stated, in part, that the Glaesmans’ tide policy was canceled, they waived all appeals and appellate rights in the litigation, and they released “all parties to this litigation from all claims herein, including parties and claims previously dismissed or upon which judgment has been previously entered.” In exchange, the Glaesmans’ remaining claims against Chicago Title were dismissed with prejudice.
Chicago Title’s right of subrogation is derived from the Glaesmans’ rights, based on both the language of the subrogation clause in the owner’s title policy at issue here and the common law of subrogation. See Western Motor Co. v. Koehn, 242 Kan. 402, 405, 748 P.2d 851 (1988); Farmers Ins. Co. v. Farm Bureau Mut. Ins. Co., 227 Kan. 533, 608 P.2d 923 (1980). “An insurer claiming the right of subrogation stands in the shoes of its insured, and any defenses against insured are likewise good against the insurer.” Western Motor Co., 242 Kan. at 405.
Chicago Title relies on Patrons Mut. Ins. Ass’n v. Union Gas System, Inc., 250 Kan. 722, 830 P.2d 35 (1992), where a release was issued by one of the parties against another as part of a settlement agreement. The release was titled a “limited” release and stated: “This release is a release only of the claims of [plaintiffs] individually and is not a release of claims held, if any, by their insurer, Patrons Mutual Insurance Company.” 250 Kan. at 723.
Patrons is clearly distinguishable from the present case. There is nothing in the journal entry of settlement or the release which excepts die subrogation claims of Chicago Title from the release. Released were: “all claims herein, including parties and claims previously dismissed or upon which judgment has been previously entered.” In addition, the settlement agreement canceled the Glaesmans’ tide insurance policy. The subrogation claim which arises from the language of die tide policy cannot survive the policy’s cancellation.
Also, in Patrons, the insurance company had filed an independent action to signal its independent desire to pursue subrogation.
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The opinion of the court was delivered by
Burch, J.:
The action was one against the receiver of the Farmers State Bank of Quenemo, and the bank commissioner, to reform a certificate of deposit issued to plaintiff by the bank, and to require the bank commissioner to issue to plaintiff a certificate of participation in the bank guaranty fund. Plaintiff prevailed, and defendants appeal.'
The certificate bore the number 3,127, was dated March 16, 1921, was for $5,500, and was payable to the order of Albert M. Casten. In other respects the certificate was identical in terms with certificate 3,189 for $1,285.40, issued on May 31, 1921, by the same bank, to Joel Barrett. The Barrett certificate was considered in the case of Barrett v. Bank Commissioner, 114 Kan. 804, 223 Pac. 1091. The court held the Barrett certificate was payable on demand, did not conform to the order of the bank commissioner relating to rate of interest demand certificates might bear, and consequently did not entitle the holder to a certificate on the guaranty fund. It follows that the certificate issued to Casten was payable on demand, did not conform to the order of the bank commissioner relating to rate of interest, and would not entitle the holder to a certificate on the guaranty fund. This would not be true if the certificate were payable in not less than three months and not more than two years, and had a definite date of maturity when interest ceased.
Forget the guaranty fund for the present, and consider the case between Casten and the Farmers State Bank of Quenemo, represented by its receiver.
Casten made a deposit in the bank on certain stipulated terms, and received a certificate of deposit supposedly evidencing those terms. What was the nature of that instrument? By the overwhelming consensus of judicial opinion it was a promissory note (7 C. J. 647). A sufficient number of the cases cited in support of the Corpus Juris text, including the case of Blood v. Northup and Chick, 1 Kan. 28, have been examined, to test the text’s accuracy. Being payable to order on demand, the certificate was a negotiable instrument, within the negotiable instruments law. (R. S. 52-201; Kirkwood v. First Nat. Bank of Hastings, 40 Neb. 484, 488, quoted in the opinion in the Barrett case; Bank v. Dillenbeck, 111 Kan. 98, syl. ¶ 1, 205 Pac. 1022; Forrest v. Safety Banking & Trust Co., 174 Fed. 345, and authorities cited in the opinion.)
May a negotiable instrument which through mutual mistake omits or contains terms not according to the agreement of the parties, or which otherwise fails to evidence their intention, be reformed in equity?
“The jurisdiction to grant the relief of reformation may be exercised with réspect to written instruments operating inter vivos, whether they are executed contracts, such as deeds of conveyance, mortgages, leases, or executory agreements, such as bonds, policies of insurance, notes, bills of exchange, and the like.” (2 Pomeroy’s Equity Jurisprudence, 4th ed., § 871, p. 1790.)
Some of the cases in which negotiable instruments have been reformed are: Fuller v. Hawkins, 60 Ark. 304; Hathaway v. Brady, 23 Cal. 121; Loudermilk v. Loudermilk, 98 Ga. 780; Fisher v. Barnett, 56 Ill. App. 649; Lee & Jamieson v. Percival, 85 Ia. 639; Turpin v. Gresham et al., 106 Ia. 187; Gump’s Appeal, 65 Pa. St. 476; McClure v. Little, 15 Utah, 379; Stanton v. Caffee and Husband, 58 Wis. 261; Kropp v. Kropp and others, 97 Wis. 137.
In the case of American Nat’l Bank v. Marshall, 122 Kan. 793, 253 Pac. 214, this court sanctioned reformation of a promissory note nonnegotiable in form, by inserting words of negotiability.
The nature of an action for reformation is such that it is outside the field of operation of the parol evidence rule. Apparently it has been necessary to say this in most cases in which decrees of reformation have been approved. It has now been said so often the courts should be relieved from encumbering the pages of the- reports with citations of authority.
The district court found the deposit actually made was made and accepted as a deposit for the fixed period of six months, and bore interest at the rate of four per cent per annum for that period only; certificate No. 3,127 was prepared and delivered on receipt of the deposit, under the conditions stated; the officers of the bank and the plaintiff believed the certificate correctly evidenced the terms on which the deposit was made and accepted; and the certificate was erroneously written pursuant to the mutual mistake of the parties. The findings were based on ample evidence, one item of which was the bank’s time-certificate register containing the record of certificate No. 3,127. The register disclosed the certificate was a time certificate for six months and bore interest at the rate of four per cent. The result is, as between plaintiff and the bank the judgment reforming the certificate to state the true terms of the actual deposit was warranted by the law and the evidence.
The contentions of the bank commissioner concerning the relation of reformation of the certificate to the guaranty fund may now be examined.
It is said that reformation would prejudice other banks which contributed to the guaranty fund. The parties entered into the following stipulation which disposes of that subject:
“During the time mentioned in the plaintiff’s petition, the plaintiff had money deposited in the Farmers State Bank of Quenemo, Kansas, represented by certificates of deposit in said bank in the form set out in plaintiff’s petition. That during all of said times such deposits were from time to time reported by the Farmers State Bank of Quenemo to the bank commissioner of the state of Kansas as a part of the average guaranteed deposits of said bank, and said bank paid to the bank guaranty fund assessments upon an amount reported by it as its average guaranteed deposits, which included the amount of the plaintiff’s deposits.”
It is said reformation would prejudice other depositors having claims on the vanishing guaranty fund. In support of this contention, the case of Hollinger v. Imperial Warehouse Co., 122 Kan. 709, 253 Pac. 215, is cited, in which reformation of a mortgage, to the injury of a purchaser and a mortgagee for value without notice, was not permitted; and the text of 23 R. C. L., section 33, pages 339 and 340, is quoted to the effect that reformation will not be permitted to the injury of innocent third persons, such as purchasers, lien holders, and others who have acquired intervening interests, without notice, actual or constructive. In this instance, what depositor, in what failed bank, stands in the shoes of a purchaser by deed, mortgage, or other mode of acquisition, for value and without notice, of an interest in the guaranty fund? What depositor in any failed bank made his deposit, and thereby acquired his interest in the guaranty fund, relying on the fact that the original certificate of deposit issued by the Quenemo bank to Albert M. Casten would not entitle Casten to participate in the guaranty fund if the bank failed? The pleading and proof show none, the court knows of none, and the particular authorities cited must wait for application until some case arises in which a depositor acquired his interest in the guaranty fund by some form of innocent purchase, or in which a depositor is qualified to defend his interest by invoking equitable estoppel. In this connection the opinion by Mr. Justice Brewer in the case of National Bank v. Wentworth, 28 Kan. 183, is instructive. In the Wentworth case there was a misdescription in a mortgage of a farm, resulting from an omission. The mortgagor gave a subsequent mortgage to the bank to secure an existing indebtedness, which correctly described the farm and included the tract omitted from the first mortgage. The bank commenced an action to foreclose its mortgage, and made the first mortgagee a party. The judgment of foreclosure declared the first mortgage to be a first lien, but perpetuated the mistake in description. An order of sale had been issued when the mistake was discovered. The first mortgagee then brought an action to reform not only the mortgage, but the foreclosure decree. The district court overruled a demurrer to the petition to reform, and in affirming the judgment of the district court, this court said:
“Again, counsel for the bank contends that whatever might be right if the proceedings were against the mortgagor alone, it ought not to be sustained against the bank, because in ignorance of any mistake it has acquired rights upon this property by virtue of its mortgage. It is doubtless a general proposition that where rights of third parties have intervened a mistake cannot be corrected to their prejudice. But that proposition cannot avail the bank in this case, because, as alleged, the bank parted with nothing. It simply took its mortgage as security for a debt already due. Whether its mortgage was good or bad, covered much or little, this was not a mortgage for which it parted with anything. It would be in no worse condition if its entire mortgage was adjudged void than it was before it took it. It stands, therefore, in no better position than it would if a voluntary grantee from the mortgagor. Having parted with nothing, it cannot say that it has lost anything, or that its rights are prejudiced if the plaintiff’s mortgage is made to conform to' the actual agreement.” (National Bank v. Wentworth, 28 Kan. 183, 188.)
The decision in the Wentworth case reveals the fallacy in the proposition on which the argument against reformation is predicated:
“To reform a certificate of deposit which is not entitled to payment under the guaranty fund so as to make it entitled to payment is a direct injury to the contributing banks and to the other depositors in insolvent banks, . .
No depositor in any failed bank has any interest in the guaranty fund which is “injured” by the allowance of any other depositor’s lawful claim upon the fund. Individual distributive shares may be reduced in amount, but no depositor suffers any invasion of interest by reduction of the amount of his share through participation in the fund by any one else legally entitled to participate. Removal of an obstruction to lawful participation arising from innocent mistake injures nobody, and removal of such an obstruction is all that is sought to be accomplished by reformation of Casten’s certificate.
In the brief for defendants much space is devoted to demonstrating the soundness and the importance of the order of the bank commissioner relating to rates of interest and transgression of the order by the certificate which Casten received, and it is said the only difference between this case and the Barrett case is that in this case reformation is sought. Casten does not question the sanctity of the bank commissioner’s order. He freely admits the certificate he received was just as bad as the certificate issued to Barrett, and nothing more fatal to potency to create a claim on the guaranty fund could be said. What he desires to do is to make his certificate speak the truth. When made to speak the truth, it evidences a guaranteed deposit, and the fact that he does not rely on the bad certificate, but seeks to reform it before asking for a certificate on the guaranty fund, is precisely the fact that distinguishes this case from the Barrett case.
In the brief for the defendants it is said:
“Unless the face of the certificate of deposit should be the sole criterion in applying this four-per-cent rule, then there would practically be no criterion, and the rule would be useless. In such a case the bank and the depositor would have a license to make such arrangements as they pleased about the actual repayment of the deposit and the interest thereon, and there could be no test or rule to apply to their conduct. It would, in effect, abrogate the order of the bank commissioner upon the subject. ... It was not open to the bank and its depositors to do as they pleased about the contract of deposit and to make an oral agreement upon the subject different from that set out on the certificate of deposit.”
A discussion of the facts of the case, with some recognition of the familiar law governing reformation of instruments, wrould be more persuasive. Casten and the bank exercised no license to do as they pleased about making a contract with respect to repayment of the deposit and interest different from that set out in the certificate. They made 'a contract which complied in all respects with the bank commissioner’s order, and that was the only contract they did make. A mistake was made in writing up the certificate. It did not set out the contract. Under the law of reformation of instruments, the contract and not the false instrument is the controlling thing, and the evidence of the contract is made to do what it is designed to do, show what the contract was. Reformation of Casten’s certificate bears no more relation to abrogation of the bank commissioner’s order than it bears to abrogation of the law of usury or the statute of frauds. The certificate having been reformed, it is the criterion for applying the four-per-cent rule, the rule in fact observed in respect to Casten’s deposit.
In the brief for defendants appears the following:
“There are five other suits pending, begun in the district court of Osage county, on the same theory adopted by the plaintiff in this case for a reformation of certificates of deposit issued by the Farmers State Bank of Quenemo and for the issuance to the plaintiffs of certificates against the guaranty fund. The total amount of principal claimed in such five other cases is nearly sixteen thousand dollars, besides a large amount of interest. And there are other holders of like certificates of deposit issued by. that bank who will bring suit for reformation and the issuance of certificates against the guaranty fund if the plaintiff should prevail in this case. The total amounts represented by such claims on account of similar certificates issued by the Farmers State Bank of Quenemo is over $50,000 of the principal of the certificates of deposit, besides which the interest is a large amount. There are, no doubt, many holders of such certificates in other insolvent banks who would bring suit on the same theory if there were any hope of success. The result would be to deprive depositors who have complied .with the statute and the orders of the commissioner of their rights against the guaranty fund in favor of depositors who have not complied with the statute and the orders of the commissioner.”
As indicated above, the assertion made in the concluding sentence of this paragraph is not true. As Commissioner Hunt pointed out in one of his conclusions of law in the case of National Bank v. Bank Commissioner, 110 Kan. 380, 204 Pac. 715:
“The bank-guaranty law guarantees certain deposits, but not evidences thereof, whether they take the form of certificates, promissory notes, or receipts.” (p. 389.)
Casten made a deposit which complied with the law and with the order of the bank commissioner, and which entitled him on failure of the bank to participate in the guaranty fund. The mistake in the certificate issued to him was without fault, and was without consequence in fact so far as conduct of the bank, the banking department, and persons interested in the guaranty fund, were concerned. With the mistake corrected, Casten holds a valid certificate which correctly evidences his deposit, and which entitles him to a certificate on the guaranty fund. It converts the language of the law into jargon to say that enforcement of his right to participate in the guaranty fund deprives other participants of their rights, and it is a matter of no concern to this court or to the bank commissioner how large or how small the number may be of persons who have lawful right to participate in the guaranty fund.
In the brief for defendants complaint is made because in the suit for reformation a mandatory order directing issuance of a certificate on the guaranty fund was prayed for and granted. It is contended that after reformation a separate mandamus action should have been prosecuted. From a practical business standpoint, making one lawsuit serve the purpose of two, shortening the time in which litigation may be finally ended, and saving unnecessary costs and expenses which must come out of funds which ought to go to depositors, are matters which seem sensible. The bank commissioner will likely regard them favorably; and this court will assume responsibility for whatever disaster may result to the science of procedure.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
Plaintiff brought this action for a commission of $300 for alleged services in procuring a renewal of a $20,000 mortgage loan on defendant’s farm in Brown county.
Defendant obtained the loan elsewhere and resisted payment of plaintiff’s demand on the ground that he had not agreed to pay it.
To maintain his action plaintiff relied, in part, on the' contents of a written application for a loan signed by defendant. This instrument was entitled “Farm loan application,” and recited that the Dimmock Mortgage Company, of Hiawatha, was appointed agent to procure a loan of $20,000 for the undersigned on his Brown county farm. The document then proceeded with some two pages of description of the security offered for the proposed loan, and following a recital of the farm acreage, its legal description and distance from town, and preceding particulars pertaining to its soil, water, lay of the land, improvements, and all the usual data which a money loaner would want to know before deciding to make the loan, these words inconspicuously appeared, “and for such service I agree to pay a commission of $-(state whether cash, or commission mortgage).” When this application was exhibited in court the blank space for the agreed commission was filled in for the sum in dispute in this lawsuit, $300.
Defendant alleged that when he signed the application it was in blank form throughout, including the blank space for the insertion of a sum as commission.
The cause was tried before a jury, which returned a general verdict for defendant, and answered several special questions, one of which reads:
“Q. Did the plaintiff write in the alleged farm loan application $300 as the amount of commission without the knowledge or consent of the defendant? A. We believe he did.”
Judgment was entered for defendant, and plaintiff assigns various errors, which will be noted as argued.
The first point presented relates to a suggested insufficiency in the verification of defendant’s answer, but as that matter does not appear to have been raised in the court below it cannot now be considered. (Collis v. Kraft, 118 Kan. 531, 235 Pac. 862.)
The next error urged concerns the instructions given and refused. Plaintiff’s theory of the case was that he was entitled to an instructed verdict in his behalf. That notion was based on the familiar rule of law that parol evidence is not admissible to impeach, alter or impair the plain text of a written instrument. There is, however, an exception to that rule as familiar as the rule itself, which is that parol evidence is admissible to show that the instrument by fraud or mutual mistake does not correctly recite the agreement of the parties (Logan v. Collinson, 114 Kan. 620, 220 Pac. 291), or that the instru ment has been altered since it was signed. (National Bank v. Hoover, 114 Kan. 394, 400, 401, 218 Pac. 1003; Holloway v. Gano, 120 Kan. 256, 243 Pac. 317.)
It was defendant’s contention, and his evidence was to the same effect, that he signed the application in blank at plaintiff’s behest upon the understanding that plaintiff would send it to the loan company to find out if it was disposed to renew the loan. On that view of the case, plaintiff invokes the rule of law that where a person signs an instrument partly in blank, depending on another to fill out the missing matter, the signer is bound by what he has trusted the other, his agent, to insert. This is good law, of course (2 C. J. 1252); but just how would that rule affect defendant’s obligation as applied to this written application for á loan? It was intended to be addressed to the Provident Mutual Life Insurance Company of Philadelphia, which was the holder of the maturing mortgage on defendant’s farm. Whatever facts or representations were inserted in the application for a renewal of that loan, whether inserted by plaintiff after defendant signed it in blank or not — and no matter when inserted nor by whom — if the Provident Mutual Life Insurance Company had acted on those facts and representations in good faith, and to the extent that it acted in reliance on them, defendant would have been bound. That was the legal effect of defendant’s signing the application in blank. It had no other effect. The recital of an obligation to pay $300 to plaintiff obscurely incorporated in the midst of information about defendant’s farm was another and quite an independent matter of no concern to. the Philadelphia mortgagee. No rule of law estopped the defendant to plead and prove by any competent evidence, oral testimony included, that he did not agree to pay any sum as commission, nor was he estopped to plead and prove, if he could, that the figures $300 were inserted in the instru-. ment after it was signed, and done, too, without his consent. The trial court’s instructions fairly stated the issues, and no error appears in those given or refused.
Emphasis is placed on part of defendant’s testimony where he apparently misspoke himself. This testimony reads:
“Direct Examination:
“Q. At the time you signed this paper — I call your attention to the fact that it has in it $300, ‘I agree to pay, as commission, $300.’ Do you see that in this paper or did he call your attention to it? Did you see it? A. Yes, sir.”
Later, however, he testified:
“Q. When you signed this paper, Mr. Ploeger, did you see anything written in about $300 commission? A. No, sir. . . .
"Q. Do you know how $300 came to be written above your signature in exhibit No. 2? ... A. No, sir.
“Q. Did you ever tell anybody, Mr. Dimmock or anybody else, to write $300 in this paper above your signature? A. No, sir. . . .
“Cross-examination:
“Q. You knew that Mr. Dimmock was the officer, agent or representative for that company? A. Yes, sir.
“Q. And the loan that you were seeking to renew is the $20,000 loan of the Provident Life and Trust Company, that matured March 1, 1925? . . . A. To renew or pay off one. ...
“Q. He didn’t tell you there was nothing in this paper about commission of $300, did he? A. No, sir. . . .
“The Couet: Was there anything said about the commission?
“The Witness : He — why I asked what the commission would be and he would not say.”
This “Yes, sir,” and “No, sir,” testimony regarding the evidence or nonexistence of the figure $300 and on the question whether the parties had agreed on a $300 commission at the time defendant signed the application was doubtless a good talking point in plaintiff’s behalf before the jury. But when that use of it brought no results it is a waste of printer’s ink to bring it before this court of review. (Harris & Haynes v. Railroad Co., 117 Kan. 468, 232 Pac. 264.)
Error is assigned on the court’s refusal to set aside the jury’s answers to special questions on the ground that they were not supported by competent evidence. That argument is based on the assumption that the defendant’s signature to the application was not procured through any misrepresentation, and that plaintiff had enforceable rights under the application addressed to the Philadelphia mortgagee. Not only was that assumption ill founded, but in the consideration of this appeal the legal question keeps intruding, How could plaintiff claim compensation for services as agent of defendant when his own counsel, in cross-examining defendant, developed the fact that plaintiff was the agent of the other party to whom the application was made? The record reads:
“Q. You know that Mr. Dimmock was the officer, agent or representative for that company? A. Yes, sir.
“Q. And the loan that you were seeking to renew is the $20,000 loan of the Provident Life and Trust Company, that matured March 1, 1925? . . . A. To renew or pay off one. . . .
“Q. He didn’t tell you there was nothing in this paper about commission of $300, did he? A. No, sir.”
However, this point is not urged, and indeed it is not needed to uphold the judgment, but it is not without significance on the general question whether justice has miscarried in this case.
Plaintiff’s final point is that defendant was unsupported in his testimony, while certain witnesses for plaintiff, his employees, testified in corroboration of plaintiff to the effect that the application was deliberately filled out by plaintiff in response to defendant’s answer to the many matters of fact included in the instrument. These witnesses did not say they heard the parties agree on a $300 commission. They testified they heard plaintiff say if defendant would bring in his wife and sign the papers for the renewal of the loan he would reduce his commission to $10 per thousand. The weight of the evidence and the significance of any want of corroboration was the concern of the jury, not ours; but it is hardly accurate to say there was no corroboration on the material parts of defendant’s evidence. Defendant’s wife’s testimony, his brother’s, the literal arrangement of the text of the application itself — and indeed part of plaintiff’s own testimony — tended to corroborate defendant’s evidence in some respects. Plaintiff’s testimony not only tended to substantiate defendant’s evidence that the application was signed in blank to be filled in afterwards, but discredited the testimony of plaintiff’s witnesses to the contrary. Under a searching cross-examination plaintiff had to admit that he filled in the blanks in the application, or part of them, from data he had in his office concerning the former loan on the property made five years previously. The record reads:
“Q. ... You didn’t ask him at that time about the number of acres of land, did you? A. I think I did.
“Q. You wouldn’t say absolutely or positively that you did? A. I filled in the description from the former loan.”
A painstaking review of this record discloses no error of sufficient gravity to permit the judgment to be disturbed. It is affirmed. | [
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The opinion of the court was delivered by
Hopkins, J.:
The action was one to recover damages for breach of a marketing agreement and to enjoin the defendant from disposing of wheat then on hand. The defense was that the contract had been procured through the fraudulent representations of plaintiff’s agent. The defendant prevailed, and plaintiff appeals.
The representations of which the defendant complained consisted of statements by plaintiff’s agent, William Leslie, that the plaintiff had money, borrowed from the War Finance Corporation, for the purpose of loaning it to its members to pay their debts, and the promise that if the defendant became a member of plaintiff association, it would loan him money at the rate of six per cent to pay debts on which he was then paying interest at the rate of eight per cent. That is to say, the real basis of defendant’s claim of fraud was the promise that if he became a member of the association, it would loan him money to pay his debts. The plaintiff contends that the defendant was bound to know that such a promise was not within the scope of the plaintiff’s powers as a corporation.
The defendant contends that Leslie was hired for the purpose of getting members for the association; that he was acting within the scope of his employment, and that the association is therefore liable for his acts.
The defendant’s application for membership in the association reads:
“The undersigned wheat grower hereby applies for membership in the Kansas Wheat Growers Association. The undersigned states that he has read the articles of incorporation, by-laws, original association agreement and standard marketing agreement of the association, and that he understands and approves them and accepts them as binding upon him in all their terms. The undersigned agrees to perform all of the obligations of the by-laws and marketing agreement.
“Dated at Anness, Kan., December 2S, 1921.”
The purposes of the association set forth in the charter and referred to in its by-laws, read:
“(a) To promote, foster and encourage the business of marketing wheat cooperatively; to minimize speculation and waste in the production and marketing of wheat and wheat products; to stabilize wheat markets; to handle cooperatively and collectively the problem of wheat growers.
“(b) To engage in any activity in connection with the harvesting, grading, handling, processing, storing, shipping, warehousing and marketing of wheat or wheat products of the association and of its members and in the financing of any of said operations.
“(c) To purchase and sell any wheat or wheat products of its members and to purchase and to sell to its members machinery, equipment or supplies used in any of the above-mentioned activities, either by the association or by the members thereof.
“(d) And to do each and everything necessary, suitable or proper, in the judgment of the directors of this association anywhere throughout the world, for the accomplishment of any of the purposes or attainment of any one or more of the objects herein enumerated, or which shall at any time appear conducive to or expedient for the interests or benefit of’ this association and the members thereof, and to contract accordingly.”
The law under which the plaintiff was organized (R. S. 17-1601 et seq.) specifically enumerates its powers. By no reasonable interpretation thereof can the association be construed to have the right to loan money to its members for the purpose of liquidating pre vious or existing indebtedness. The plaintiff is by the statute (R. S. Í7-1604) expressly prohibited from engaging in the banking business.
' In 14a C. J. 251 the rule is stated that — •
“Every person dealing with a corporation is bound to take notice of the limits of its powers as imposed by its charter or governing statute.”
In Scott v. Bankers’ Union, 73 Kan. 575, 85 Pac. 604, this court said:
“Every person dealing with a corporation or with its obligations is bound to take notice of the power possessed by such corporation and of the purpose for which it was created.” (Syl. f 2.)
. “Whether a given corporation has such power or not will depend upon the express provisions of its charter and the purpose it was intended to accomplish.” (p. 586.)
In Attleboro Steam and Electric Co. v. Narragansett Electric Lighting Co., 295 Fed. 895, it was held:
. “One who deals with a corporation, whether he be a citizen of the same or another state, is chargeable with knowledge of the corporate power.” (Syl. f 1.)
In Citizens’ & Marine Bank v. Mason, 2 F. (2d) 352, the court said:
“Persons are charged with knowledge of limitations and restrictions contained in the duly recorded charters of corporations with which they deal.” (Syl. H 1.)
The plaintiff, of course, denied that its agent made such representations or promises claimed by the defendant, but the jury by its verdict found as a fact that he did. It must, therefore, be treated as a fact in the case. We are of opinion, however, that the defendant had no right to rely on a promise made by the plaintiff which it did not put in the contract and which plainly was ultra vires. He was bound to take notice that the promise was beyond the plaintiff’s powers. The defendant’s application was an offer from him to the plaintiff association to become a member according to the terms of the agreement. In it he stated that he had read the articles of incorporation, by-laws and the marketing agreement, and that he understood and approved them. Such being the case, his statement that he believed the misrepresentations about the War Finance Corporation is not reasonable. Before he had a right to rely on the representations, he must have had a legally adequate reason to believe that the agent was authorized to make them.
. “As a general rule, every person who undertakes to deal with an alleged agent is by the mere fact of the agency put upon inquiry, and must discover at his peril that it is in its nature and extent sufficient to permit the agent to do the proposed act and that its source can be traced to the will of the alleged principal, particularly where he is dealing with an agent whose authority he knows to be special, or where it is his first transaction with the agent.” (2C.J. 562.)
The defendant and Leslie were strangers. The latter presented to the defendant a blank application and blank contract and solicited the defendant to sign them in order that they might be presented to the plaintiff for its approval and acceptance. It appears that defendant’s application was not accepted until approximately four months thereafter. We are of opinion the defendant had no right to assume that Leslie had the authority now claimed for him. (See Wilcox v. Eadie, 65 Kan. 459, 463, 70 Pac. 338; Sullivant v. Jahren, 71 Kan. 127, 79 Pac. 1071; Schimmelpennich et al. v. Bayard et al., 26 U. S. 264, 7 L. Ed. 138; Texas Co. v. Quelquejeu, 263 Fed. 491; Jackson Paper Co. v. Commercial Bank, 199 Ill. 151, 65 N. E. 136, 93 Am. St. Rep. 114; Maryland Casualty Co. v. City of Cincinnati, 291 Fed. 825; Osborn v. Peace, 215 Fed. 181; Pierce v. Fioretti, 140 Ark. 306, 215 S. W. 646; Gibson v. Trow, 105 Wis. 288, 81 N. W. 411; First Nat. Bank of Hastings v. Farmers & Merchants Bank, 56 Neb. 149, 76 N. W. 430; Meachem, Law of Agency, § 289.)
The defendant must be held to have known that the written provisions of the contract (which according to his application he had read) were of more force and virtue than the claimed oral representations and promises in contradiction thereto. In Brown v. Trust Co., 71 Kan. 134, 80 Pac. 37, it was said: '
“Interpretation of an unambiguous written contract is a matter of law for the court, and such a contract, when completed, is supposed to embody all prior understandings and negotiations, and is not to be enlarged, varied or contradicted by parol testimony.” (Syl. ¶[ 1.)
As noted, the agreement was signed on December 28, 1921. The defendant alleged that he delivered all of his wheat to the association the following year, 1922. Thus for a year, the defendant dealt with the plaintiff according to the terms of his agreement. During that time he had ample opportunity to learn that the plaintiff would not and did not loan money to its members at any rate of interest, and that it was not permitted to do so by its charter and the statute under which it was organized. In Donaldson v. Jacobitz, 67 Kan. 244, 72 Pac. 846, the court said:
“The fraud is deemed to have been discovered whenever in the exercise of reasonable diligence it might have been discovered, and in such a case reasonable diligence required an examination of the record, which would necessarily have disclosed the fraud alleged.” (Syl. See, also, Black v. Black, 64 Kan. 689, 68 Pac. 662; Hutto v. Knowlton, 82 Kan. 445, 108 Pac. 825; Sell v. Compton, 91 Kan. 151, 154, 136 Pac. 927.)
Some of the authorities cited and relied upon by the defendant are 14a C. J. 765, 769, 775; 7 R. C. L. 647, 682. In 14a C. J. 775 it is said;
“. . . A fraud perpetrated by an agent on a third person in the course .of the agent’s employment and for the benefit of the corporation must be imputed to it, whether or not the corporation had attempted to authorize the fraud or had actual knowledge thereof, or concurred therein, but the agent or employee must have been acting within the scope of his employment. Where a contract is procured on behalf of a corporation by its agent through fraud, the corporation makes itself answerable for the fraud by adopting the contract with knowledge, since by so adopting the contract it necessarily adopts the means by which it was procured.”
The statement in the text just quoted does not, in our opinion, apply to the situation before us. The statements and promises credited to the agent were so totally and obviously opposed to the purposes and powers of the plaintiff association with which defendant was familiar that he must be held to have known that they had no substantial basis in fact.
The court instructed the jury on the defendant’s theory of the cáse, and to the effect that “if it found that the agent Leslie fraudulently represented that the association had made arrangements for sufficient money to finance the wheat farmers who became members of the association, and that if he became a member thereof it would loan him money at six per cent to liquidate his indebtedness to the local bankers, etc.; that the defendant believed the statements made by Leslie and relied thereon; that he would not have become a member of the association had such statements not been made; that defendant was in need of money for the purpose of relieving his obligations at the local bank; and that if the jury so found it should return a verdict for the defendant, canceling his contract and relieving him from the liability thereunder.” We think this was error. Under the admitted facts, we are of opinion the court should have directed a verdict for plaintiff for the agreed amount. For various questions hereto fore considered and passed on in other wheat-grower cases, see Wheat Growers Ass’n v. Rowan, 123 Kan. 169, 254 Pac. 326, and cases cited; Wheat Growers Ass’n v. Oden, 124 Kan. 179, 257 Pac. 975; Wheat Growers Ass’n v. Lucas, 124 Kan. 773, 262 Pac. 551. It was agreed that if the plaintiff was entitled to recover, the amount of recovery should be $350 with interest at six per cent from June 26, 1924.
It was agreed between the parties on the trial that $100 was a reasonable attorney’s fee for the plaintiff in the event it prevailed in the action.
The judgment is reversed and the cause remanded with instructions to enter judgment for the plaintiff for the agreed amounts. | [
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The opinion of the court was delivered by
Hutchison, J.:
This is an action brought by D. L. McGarr, M. B. McGarr, and the Owl Drug Company, a copartnership composed of D. L. McGarr and M. B. McGarr, to recover damages from the defendants, the E. V. Schnoor Cigar Company and the Ranney-Davis Mercantile Company, on the ground that these defendants, in conjunction with others, maliciously and without reasonable or probable cause, instituted involuntary bankruptcy proceedings against the plaintiffs. The trial resulted in a verdict for plaintiffs for $12,350.
In addition to the general verdict, the jury returned answers to twenty-six special questions. Motions were made to set aside certain answers and render judgment for defendants on the answers, notwithstanding the general verdict, and for a new trial. The motion to set aside the answers was sustained as to the answer to question 26, which names the amount of damages allowed and indicates in six items the purposes for which the separate allowances were made, but was otherwise overruled. The motion for a new trial was sustained only as to the question of damages, and overruled as to all other matters. Defendants appeal, assigning numerous errors, which, it is urged, should result in granting the defendants a new trial generally; and, also, because in this case the question of damages only is not reasonably separable. The plaintiffs present a cross appeal, complaining of error in setting aside the finding of damages and granting a new trial as to damages, insisting that it was error to do so, and,. further, insist that judgment should now be rendered in their favor in accordance with the verdict and finding of the jury.
The names of the plaintiffs are purposely set out in full in this statement because of subsequent reference thereto. The evidence shows that M. B. McGarr is the wife of D. L. McGarr. There is some confusion in the testimony as to the wife being a partner and owner. The defendants are wholesale corporations in Kansas, one handling cigars and the other groceries. Substituting, for the purpose of brevity, the word defendants for the names of the two defendant wholesale houses, the following are some of the important questions and answers:
“8. Do' you find that after communicating with the . . . [defendants] and making other investigation as to the condition of the plaintiffs, Kirkendall and Wilder, attorneys for the . . . [defendants], advised each of said . . . [defendants], that involuntary bankruptcy proceedings were proper and justifiable? A. Yes.
“9. Did the . . . [defendants] rely and act upon the advice of their said attorneys in joining in the proceedings in involuntary bankruptcy against plaintiffs? A. Not entirely.
“10. Before the petition in bankruptcy was filed, had the . . . [defendants] been able to collect of the plaintiffs their accounts which were overdue when the bankruptcy proceedings were commenced? A. Not prompt^.
“11. At the time the petition in bankruptcy was filed was the Owl Drug Company able to pay its indebtedness to the . . . [defendants] ? A. Yes.
“14. At the time of the filing of the petition in bankruptcy had the . . . [defendants] diligently endeavored without success to collect their account against plaintiffs? A. No.
“15. Do you find that the . . . [defendants] joined in said petition in bankruptcy without malice? A. No.
“15a. Do you find that the . . . [defendants] joined in said petition in bankruptcy in order to collect as much of their accounts as possible against plaintiffs? A. Yes. But with neglect of proper investigation.
“16. Did attorneys Kirkendall and Wilder advise their clients, the . . . [defendants], before filing the proceedings in bankruptcy that the evidence which they (Kirkendall and Wilder) had obtained and the facts which they (Kirkendall and Wilder) had discovered were sufficient to justify the defendants in starting said bankruptcy proceedings? A. Yes.
“17. Did the . . . [defendants] believe and rely upon said advice? A. Not entirely.
“18. If you find for the plaintiffs, that there was lack of probable cause, state specifically what fact or facts the defendants or their attorney had notice or knowledge of before beginning said bankruptcy proceedings which showed lack of probable cause? A. They had notice of sale, and that all creditors would be paid in full through the First State Bank at Carmen, Okla., March 3, 1923.
“19. Did attorneys Kirkendall and Wilder know all facts with reference to probable cause for said bankruptcy proceedings which would have been disclosed to them by diligence at the time they advised their clients that bankruptcy proceedings were proper and justifiable? A. Yes.
“21. Did attorneys Kirkendall and Wilder make their own independent investigation of the facts upon which they based their advice to clients? A- No.
“23. At the time of filing the petition in bankruptcy, did the . . . [defendants] have reasonable cause for believing that plaintiffs were mortgaging the bulk of their visible assets without paying the defendant cigar company’s and mercantile company’s bills? A. No. '
“24. At the time of filing the petition in bankruptcy, did the . . . [defendants] have reasonable cause for believing that plaintiffs were selling the bulk of their visible assets without paying the . . . [defendants’] bills? A. No.
“25. What do you find the total indebtedness against the Owl Drug Store and the plaintiffs was when the contract was entered into between McGarr and Dean? A. Between $9,000 and $10,000.
“26. If you allow the plaintiffs damages for any of the following items, then how much do you allow:
“1. For expenses paid by the plaintiffs in defending the bankruptcy action. A. $600.
“2. For the time lost- by the plaintiffs in making such defense. A.
$6,000.
“3. Loss of or damage to the business or property of the plaintiffs occasioned by such proceedings. A. $3,000.
“4. For impairment of social standing. A. $500.
“5. For impairment of credit. A. $1,500.
“6. Damage to their reputation by the initiation and prosecution of such proceedings. A. $750.”
The reasons of the trial court for setting aside the answer to special question 26 and granting a new trial as to the amount of damages are best stated by quoting his rulings and comment thereon as found in the journal entry as follows:
“The motion of the defendants to set aside special findings of the jury is sustained in so far as it applies to special finding No. 26, items 1, 2, 3, 4, 5 and 6. The instruction covering item 3 of special finding No. 26 is clearly erroneous as to the measurement of damages.
“The motion to set aside the special findings of the jury is overruled in all other respects.
“The motion of the defendants for judgment on certain of the special findings of the jury is overruled.
“The motion of the defendants for a new trial is sustained only as to the question of damages, and especially those damages referred to in special finding 26 of the jury.
“The motion for a new trial as to all other matters is overruled.
“The plaintiffs in this action are designated as D. L. McGarr and M. B. McGarr and the Owl Drug Company, a copartnership composed of D. L. McGarr and M. B. McGarr. In other words, D. L. McGarr and M. B. McGarr brought this action both as individuals and as a partnership. The joinder of these parties was clearly erroneous if the joinder had been attacked by proper motion, but no such motion was made. The case was tried on the theory that the plaintiffs were partners and that they did not claim as individuals, and the instructions were given on this theory. During the trial no contentions were made, as I recollect it, that the plaintiffs sued as individuals and also as partners. This being true, the damages which were allowed by the jury are not correct and the instructions of the court in reference to such damages were not correct.”
The comment candidly, but of course reluctantly, made by the trial court about the confusion as to parties plaintiff is convincing when applied to the items of damages allowed by the jury. Some of these items could not possibly be sustained by a copartnership. It has no social standing or reputation to be impaired. The impairment of credit might apply to either a partnership or individuals. Which does it mean here? Or does it mean both? And are they entitled to both? The court says the case was tried on the theory • that plaintiffs were partners and were not claiming as individuals. The jury, at least, considered them as individuals in one, if not more, of the items of allowance. We think the court was right in concluding that was an error and a new trial should be granted to correct it.
Counsel for appellees ably argue that this is a mere misjoinder, at most, which can be waived, and, because defendants have not raised the question earlier in the trial, they have waived it. Perhaps they have, but that does not go to the question of being adjudged to pay impossible damages. Suppose plaintiff had been a corporation and damages had been awarded it for “impairment of social standing.” It does not seem to us’to be a question now of misjoinder; neither does it appear to be a harmless error.
That part of the instruction on the measure of damages covering item 3 of special finding No. 26 to which the trial court refers in the journal entry is as follows:
“Respecting the loss of or injury to the business or property of the plaintiffs, if you should find from a preponderance of the evidence that the plaintiffs lost their property and their business, then the measure of their damages for such loss would be the difference between the value of said business and property at the time of the institution of the bankruptcy proceedings and the amount of their indebtedness at said time.”
Appellees urge that this was the correct measure of damages, and, at the same time, admit that an instruction on the difference between the value immediately before and immediately after the bankruptcy proceedings would be a proper one. They direct our attention to the case of Kerns v. Kansas City, 79 Kan. 562, 100 Pac. 624, where it was said:
“In an action to recover damages the plaintiff is entitled to prove his loss under any proper theory as to the measure thereof.” (Syl. If 2.)
That case had in it the intervening element of repairs. Where that element is present the measure of damages could be either the usual one of the difference in the value immediately before and immediately after the injury, or such difference immediately before the injury and immediately after the repairs, plus the cost of repairs and incidental loss. No such element is in the case at bar. It is argued that the measure given by the court was more favorable, under the facts of the case, to the appellants, and was therefore a beneficial error to them. That feature could properly have been urged in the trial court, but not so well on review. It is said one of the admissions made at the close of taking the testimony was intimated as the reason for deviating from the usual measure in the instructions, the admission being that after the close of the bankruptcy proceedings, when the plaintiffs assigned all their property to the Credit Men’s Association, the claims of all the creditors were extinguished. We agree with the trial court that such admission may look feasible, but it will not change the general rule as to the proper measure of damages. (Broadie v. Randall, 114 Kan. 92, 216 Pac. 1103.)
Appellants urge that there was no proof of want of probable cause, and therefore the court erred in overruling their demurrer to the evidence, in refusing to direct a verdict for defendants, and in not rendering judgment for defendants on the answers to special questions. They insist that the failure to succeed in the bankruptcy proceeding is, under the authorities, not conclusive, nor even good evidence of want of probable cause. They also claim that the facts admitted by. the plaintiffs as to the mortgage indebtedness and failure to follow the provisions of the bulk-sales law would show probable cause. They also direct our attention to a multitude of facts and circumstances shown in the evidence to establish probable cause. Any of these alone would be enough to establish probable cause, but when they are not purely matters of law they have to be considered with the other facts and circumstances of a conflicting character. From a careful examination of the evidence we cannot say there is no conflict on these questions.
“The existence of malice is ordinarily a question of fact for the jury, but where there is no dispute in the testimony, the presence or absence of probable cause is a question of law for the court.” (Walker v. Smay, 108 Kan. 496, syl. 112, 196 Pac. 231.)
With the conflict in the evidence which there is in this case on the question of probable cause and the companion question of malice, the trial court very properly referred both of them to the jury with instructions.
“In an action for malicious prosecution, the question of probable cause is primarily one for the court, but if the facts tending to establish the existence or want of probable cause are in dispute, then it is the duty of the court to submit the question to the jury.” (A. T. & S. F. Rld. Co. v. Watson, 37 Kan. 773, syl. ¶ 1, 15 Pac. 877.)'
Evidently the court did not think it was a clear case of failure to prove want of probable cause when he declined to sustain the demurrer to the. evidence; and the evidence shows enough to cause him to doubt on this subject, in which case the question should be referred to the jury.
Appellees say that if the information acquired prior to instituting bankruptcy proceedings was insufficient to advise defendants that plaintiffs were not insolvent and had not committed acts to subject them to proceedings in bankruptcy, they obtained such knowledge at the first hearing in bankruptcy and proceeded without probable cause in all subsequent efforts on their part. To this appellants reply that there is no allegation in the petition charging them with further proceeding, but only with the institution of the proceedings. An examination of the petition shows siich expressions as, “participated in said bankruptcy proceedings throughout their entire pendency,” “that during the pendency of said bankruptcy,” “well known to them at all times,”' “the said action of the defendants was maliciously brought and maintained,” “wantonly brought and maintained.” These will fully cover the fact of continuing after the first hearing; so that it was proper for the court and jury to consider whether or not there was probable cause after the proceedings were instituted, even if there had plainly been probable cause at first.
Appellants rely upon the advice of counsel as a complete exoneration, and the court so instructed the jury. It is said in Schippel v. Norton, 38 Kan. 567, 16 Pac. 804, that acting upon the advice of counsel completely rebuts the allegation of the want of probable cause. It is also stated in Railroad Co. v. Brown, 57 Kan. 785, 48 Pac. 31, that in order to completely absolve one the advice must be acted upon in good faith, and only where all the facts known to the informant and all which can be learned by a diligent effort to acquire information have been laid before such counsel. The same rule is restated and fully discussed in Haines v. Railway Co., 108 Kan. 360, 195 Pac. 592, and emphasis is placed upon having obtained all the information available. In this case evidently the jury did not think that had been done. See answers to questions 15a, 18, 19, 21, 23 and 24.
Two other matters in that connection deserve special consideration — the possible bad faith and financial interest of counsel and the possible confusion between the terms attorneys and agents. The court specifically and properly instructed the jury in instruction No. 14 that defendants would not be liable for the bad faith of counsel if defendants believed such advice was given in good faith. No one of the answers alone, as that to questions 9 and 17 —“Not entirely” — would be sufficient to show the finding of the jury in these particulars, but from the answers to other questions, 15a, 16, 18 and 21, all considered together, a lack of investigation' by defendants and attorneys is found which would come under the first two of the qualifying words used in the instruction on this subject, even if it did not reach the third, more definitely indicating bad faith of attorneys, viz., “mistakenly, wrongfully, or maliciously advised their clients.” It was necessary for the court to inform the jury as to the only legal way in which corporations may act, and it is, of course, possible that the jury may have thought of the attorneys, in their capacity as legal advisers, as the agents of the corporations which they were advising, but this is not probable. It does not impress us that there was a very great danger of confusion' as to the appropriate use and meaning of these two terms.
Instructions were requested by the appellants which were not given, and exceptions taken to some that were given. After a careful comparison, it appears that those given by the court reasonably well meet the requests. On the whole, except those as to the measure of damages, we see no reversible error in them.
Appellants maintain that a limited new trial in a case like this will be prejudicial to the defendants, and that this issue is not separable, as required by statute. (R. S. 60-3004.) We recognize that the issue should clearly appear to be entirely distinct and separable from the other issues of the case in order to justify a new trial on one issue alone. (20 R. C. L. 222.) The only damages claimed in this case are compensatory. They can be established or ascertained without reference to malicious motive or intention, probable cause, or any other of the many features involved in the other branches of the case. The case would be quite different if there were a claim for punitive or exemplary damages. In the case of Bracken v. Champlin, 114 Kan. 882, 220 Pac. 1027, the court approved a limited new trial as to damages only, where all the other issues were decided in favor of the plaintiff in an action for alienation of affections. In Fontana v. Integrity Mutual Casualty Co., 120 Kan. 406, 243 Pac. 1035, an action for recovery on an industrial insurance policy, the court directed a new trial on the amount to be recovered alone. Brokmann v. Lawson, 117 Kan. 386, 232 Pac. 601, was for damages for assault and battery. In that case the new trial covered the amount of damages only. See, also, Worth v. Butler, 83 Kan. 513, 112 Pac. 111; Railroad Co. v. Thisler, 96 Kan. 184, 150 Pac. 580; Harris v. Drenning, 101 Kan. 711, 168 Pac. 1106.
The judgment of the trial court, granting a new trial on the question of amount of damages only, is affirmed. | [
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|
The opinion of the court was delivered by
Dawson, J.:
The state by its proper officers invokes the original jurisdiction of this court to compel the railway companies doing business in Kansas to put into effect certain orders prescribed by the public service commission relating to manual signals to be used by train crews and relating to the air- or power-brake system.
The defense of the railway companies is predicated on two propositions, (a) that the orders of the commission are too indefinite and wanting in precision to be obeyed, and (6) that the orders pertain exclusively to interstate commerce in a field already occupied by federal authority and beyond the jurisdiction of the state commission.
Briefly the orders of the commission sought to be enforced had their inception in complaints lodged with the commission by two organizations of railway workmen, the Brotherhood of Railroad Trainmen and the Brotherhood of Locomotive Firemen and Engine-men, charging that the rules, regulations and practices governing the handling and operation of trains in this state subject the train crews to undue and unreasonable hazard and cause them to incur greater liability to injury in body, health and welfare than just and reasonable rules, regulations and practices would do. One practice particularly complained of was the operation of longer freight trains than could be safely handled, to the needless peril of operatives, and likewise detrimental to the patrons of the railways and to the general public.
Pursuant to these complaints the public service commission held' extended hearings, examined many witnesses, and eventually promulgated an order, incorporating therein certain recitals of the testimony, followed by certain findings of fact, which, in part, read:
“Findings of Fact.
“I. That the same rules governing the receiving and giving of signals by train employees are now in effect as have been used by respondents for many years; that although, generally speaking, the length of trains has gradually increased during the past several years, no approved material change as to methods of signaling has been made by respondents; that respondents’ employees are obliged, under penalty of being disciplined or discharged, to observe all existing and effective rules relating to signaling as well as to other phases of train operation. . . .
“II. As.the length of trains increases the more difficult it becomes to correctly interpret manual signals. It is frequently impossible for the engineer to see and correctly interpret the manual signal of a conductor or brakeman given in the daytime from the rear of a freight train containing over seventy-five to one hundred cars, depending upon weather conditions affecting visibility. Other methods of signaling should therefore be devised and provided for in the rules of respondent companies which will permit reasonable observance by the employees. . . .
“IV. The necessity for additional brake power naturally increases with the increase in train lengths. Freight trains operating in Kansas usually are supplied with air-brake systems. . . . The increase in efficiency of air brakes has not kept pace with the increase in efficiency of operation of trains generally, the ability of locomotives to pull larger and heavier loads, nor with the increase in standard trackage and roadbeds. The more cars in a freight train the more danger there is to employees and others riding upon such train in case of failure of air brakes to function in emergencies or when trains break in two, which automatically sets the brakes. . . . Respondents seem to recognize this, and are now and have for some time been cooperating with the interstate commerce commission in a series of studies and tests which seek to improve the efficiency of the air-brake system on freight and passenger trains. . . .
“VII. It is impracticable to direct that trains engaged in interstate commerce should, when arriving at the Kansas state line, divide into two or more portions, each portion to be attached to an engine and caboose and manned with sufficient employees to conduct it as a train across the state. To do so would not be in the interest of economy. Locomotives, bridges and tracks have been constructed and equipped for the purpose of hauling larger and heavier loads, thus decreasing materially the cost of operation. Economy in operation of trains, consistent with efficiency, is not only encouraged but demanded by state and national regulatory bodies. The employment of addi tional men in train service invites additional hazard to men, in that as the number of employees is increased the possibility of injury to a greater number is increased. The operation of a greater number of trains would perforce increase the hazard to the public at large at grade crossings, and accidents of this character constitute a large per cent of the serious railroad accidents of today ....
“VIII. The evidence introduced herein does not, by a preponderance thereof, show that accidents to employees, incurred by reason of operation of trains in Kansas, have unduly increased during the past few years solely because of the increase in length of trains. Neither has it been shown that accidents to passengers riding on such long trains have -increased. But the testimony is sufficiently controlling to warrant the commission in finding that if the air brakes on such trains were properly conditioned and capable of being efficiently operated, there would be less danger of accidents. As the length of the train is increased, it follows that if faulty connections in air-brake systems exist, the difference between air pressure on the engine and the caboose is likewise necessarily increased. As heretofore found, this situation is the subject of inquiry and study by the interstate commerce commission and should be promptly remedied. It is the duty of respondents to be on the alert at all times to initiate and provide such improvements in the operation of trains as will reduce the danger of accidents to the minimum.
“IX. Practically all of the trains operated by respondents in Kansas are engaged to some extent in interstate commerce. The commission recognizes that it has no jurisdiction or authority to issue any order that would cast an undue burden upon such commerce. . . .
“Order.
“It is,-therefore, ... by the commission, considered and ordered: That the respondent railroad companies, . . . be, and they are hereby, ordered and directed to promulgate, publish and make effective, within ninety days from the date hereof, rules and regulations in relation to the giving and receiving of manual signals necessary and proper for successful and efficient train operation, the same to be of such character as mil be possible of free and reasonable observance by their employees, having due regard for length of trains operated, weather and atmospheric conditions, all as enumerated in the findings herein;
“That said respondent railroad companies proceed at once to bring the air- or power-brake systems in use upon their freight trains to the highest possible standard of safety and efficiency at the earliest possible date;
“That efficiency in air or power brakes be maintained at all times upon the trains operated by respondent railroad companies within the state of Kansas in keeping with the requirements and findings that have been hereinbefore made, or that have been or may hereafter be made by the interstate commerce commission; and that improvements and betterments in said air- or power-brake systems be initiated and, made from time to time in keeping with the increased need therefor, caused by the operation of longer trains, or other new or changed operating conditions,”
The italicized portions of the foregoing constitute the orders of the commission which this court is asked to enforce by mandamus.
Laying presently to one side the question whether these orders are invalid because they'deal exclusively with the operation of interstate freight trains, defendants interpose a practical objection to them in that they are too indefinite to be enforced by mandamus. This court does not hesitate to enforce specific and lawful orders of the commission. The statutes of this state and the decisions of this court have progressed a long way, indeed, since the decisions in State, ex rel., v. K. C. Rld. Co., 47 Kan. 497, 28 Pac. 208, and State, ex rel., v. Mo. Pac. Rly. Co., 55 Kan. 708, 41 Pac. 964, where it was held that orders of the state board of railway commissioners for the repair and improvement of railway tracks, and to operate a daily passenger train on a branch railroad', were advisory only and could not be specifically enforced by mandamus. At the behest of the state commission our court has issued its writ of mandamus to compel a railway company to give adequate passenger train service (State, ex rel., v. Railway Co., 76 Kan. 467, 92 Pac. 606; Mo. Pac. Ry. Co. v. Kansas, 216 U. S. 262); to compel an interurban railway company to construct a subway for its railway under a network of tracks of another railroad (State v. Railway Co., 81 Kan. 430, 105 Pac. 704); to compel two railroad companies to construct a switch track to connect their rail lines (State, ex rel., v. Railroad Companies, 85 Kan. 649, 118 Pac. 872); to compel a telephone company to restore telephone service abandoned without consent of the state commission (State, ex rel., v. Telephone Co., 112 Kan. 701, 212 Pac. 902). So, too, orders of the state commission requiring a railway company to construct freight depots and provide terminal facilities have been upheld (Railway Co. v. Railway Commissioners, 85 Kan. 229, 116 Pac. 869); also orders of the commission requiring the installation and experimental use of a certain novel device for controlling pressure in the lines of a gas distributing'company (City of Winfield v. Court of Industrial Relations, 111 Kan. 580, 207 Pac. 813); and nothing is more common than our judgments requiring railroads to perform corporate duties clearly defined by general principles of law, by statute, or even by valid city ordinance. (Larabee v. Railway Co., 74 Kan. 808, 88 Pac. 72; City of Emporia v. Railway Co., 88 Kan. 611, 129 Pac. 187; City of Iola v. Railway Co., 97 Kan. 242, 155 Pac. 45; Atchison, T. & S. F. Rly. Co. v. State Highway Commission, 123 Kan. 576, 255 Pac. 966.)
Citation of cases where this court has upheld and enforced orders of the state commission and similar official boards and governmental agencies might be indefinitely extended; but in all of them it will be found that the order or duty sought to be enforced was clearly defined so that the defendant whose obedience was thus constrained could know and clearly understand what it was commanded to do, and so clearly defined, also, that this court would have no difficulty in ascertaining, upon the return of our peremptory writ, whether complete and straightforward compliance with our mandate had been rendered. If the order or duty is not definite and certain, mandamus will not issue. Thus in the early case of State v. Mo. Pac. Rly. Co., 33 Kan. 176, 5 Pac. 772, this court held that by ordinance a city might lawfully impose upon railroads within its corporate limits the duty to erect a viaduct for the safety of the public, and obedience thereto could be enforced by mandamus, yet in that case mandamus was denied because the ordinance was too vague and indefinite in its terms, and because it did not appear how the railway companies could obey the ordinance without violating certain provisions of statutes.
This ruling is in accord with the decisions in other jurisdictions which have had to deal with this topic. Thus in Ross et al. v. Butler et al., 10 N. Y. S. 444, it was held that attachment of the person for disobedience of an order in general terms to pay money to creditors would not issue when the sums to be paid were not certain. The court said:
“If there is one thing which is well settled in reference to the power of the court to enforce by attachment its judgment or decree, it is that such judgment or decree shall be definite and certain; that there shall be no opportunity for ambiguity, but that the party proceeded against is to be adjudged to do a certain specific act. . . . The appellant has not been directed to do any specific thing, and, if a commitment were issued upon such an order, it would be impossible for the sheriff to determine when the appellant had conformed to its requirements. It is absolutely clear that a party cannot be adjudged to be in contempt without definitely stating what he shall do in order to purge himself of the contempt. There is no such statement in this ease.” (pp. 444, 445.)
In People, ex rel. City of Niagara Falls, v. New York Cent. & H. R. R. Co., 52 N. Y. S. 234, mandamus to compel a railway company to carry a street over railway tracks was refused because the state board of railroad commissioners had not theretofore determined how the work was to be done.
In People v. Interborough Rapid Transit Co., 183 N. Y. S. 864, mandamus was sought to compel a transit company to comply with an order issued by the transit construction commissioner requiring the defendant to make such changes in its equipment, third rails, and station platforms “as may be necessary” to allow the cars of another municipal railway corporation to use its tracks. The writ was denied for two reasons, one being that the order of the commissioner was too indefinite to be enforceable. The court said:
“This order is very indefinite. It does not point out what' changes are to be made. It does not recite any reason why the structural equipment, including third rails and station platforms, must be radically altered merely for the purpose of allowing another company to run its cars over the tracks. This order leaves a wide discretion somewhere.” (p. 865.)
Other instructive cases to the same effect are: Burlington & Colo. R. Co. v. People, 20 Colo. App. 181; State, ex rel. Ellis, v. A. C. L. R. R. Co., 53 Fla. 650, 13 L. R. A., n. s., 320; Seward v. D. & R. G., 17 N. M. 557, 46 L. R. A., n. s., 242.
In the last quarter of a century the use of mandamus to enforce the performance of an official or corporate duty has been greatly liberalized, and it could not be taken for granted that this court would follow the strict rule relating to its issue in some other jurisdictions, and even in some of' the cases cited above we might have found the corporate duty required by statute, city ordinance, or by order of some official commission, sufficiently clear to be enforced by mandamus, where that relief was denied in some of the cases. But surely there can be no debate over the proposition that mandamus should not issue to compel a railway company to invent, design or discover a more efficient system of train signaling than that in present use, and obviously such invention or discovery is necessary before it could be adopted and used in railway freight trains with the aid of mandamus or otherwise. In the case of City of Winfield v. Court of Industrial Relations, supra, where an order of the state commission to install and use a novel device for reducing gas pressure was upheld, the device had been invented, it was available; the order for its experimental use was practicable and therefore it could be obeyed. But so far as the record shows, no manual or other train-signal system better than the present system has yet been invented or devised, so it is altogether out of reason to enforce this particular order of the commission by mandamus.
And what we have just said about the train signals applies with equal relevancy to the air- and power-brake systems. The state commission’s own summary of the evidence, together with its findings of fact, pursuant to which it formulated its order directing the railway companies to bring their air- and power-brake systems up to the highest possible state of efficiency takes cognizance of the fact that no better system of brakes has yet been invented, although the subject has long engrossed the solicitous concern of the interstate commerce commission.
The other matters urged upon our attention in the briefs of counsel have been carefully perused. The state’s brief does not actually contend that the commission’s orders are definite and certain enough to be specifically enforced by mandamus. Apparently it merely strives for a moral victory on its two main points — that the signal system for operating trains and air- and power-brake systems have not kept pace with railroad progress in other lines, and particularly with respect to the stupendous length of modern interstate freight trains. With such matters this court has nothing to do.
The conclusion just reached, that the orders of the public service commission are too indefinite to be enforced by mandamus, renders it quite unnecessary to consider the other objection raised by the defendants — that the orders of the commission can only relate to long freight trains exclusively engaged in interstate traffic, a matter over which the state board had no jurisdiction.
The writ of mandamus is denied and judgment will be entered for defendants. | [
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Prager,. C.J.:
This is an appeal in two workers compensation cases which were consolidated for hearing before an administrative law judge (ALJ). It involves one employee seeking recovery from two separate employers for alleged injuries suffered about a year apart during different terms of employment.
Kathleen Kimber, claimant, alleged she injured both hands and knees in May 1991 as a result of a fall at her place of employment with U.S.D. No. 418 (school district). She testified she had previously had problems with her hands and wrists beginning in February 1991. As a result of the fall, she was provided with authorized medical care by the school district’s insurance company. Kimber was terminated from her employment with the school district in June 1991. Kimber then worked for a Super 8 Motel from September to October 1991. On December 19, 1991, she began working at Cedars, Inc., (Cedars), a licensed long-term care facility. Her last day of work at Cedars was January 25, 1993.
On October 5, 1992, Kimber formally filed claim No. 169,842 against the school district and its insurance carrier, claiming workers compensation for the alleged 1991 work-related injury. Simultaneously, she filed an application for a preliminary hearing seeking a change of her authorized treating physician in regard to her treatment for the 1991 injury. A preliminary hearing was held, and the motion was granted. Cedars was not a party in this case.
On December 1, 1992, Kimber filed claim No. 172,282 against Cedars and its insurance carrier, alleging she had injured her wrists while working at Cedars during the period from May 15, 1992, to October 5,1992, the date of the application for hearing in case No. 169,842. She testified her wrists had not been completely healthy when she began work at Cedars and she had not suffered injury in a specific incident or event. Kimber did not recall informing Cedars that she had suffered any type of aggravation prior to the filing of her claim. The school district and its insurance company were not named parties in case No. 172,282. The two cases were consolidated by agreement of the parties for procedural purposes, and the Workers Compensation Fund (Fund) was then impleaded.
The cases were tried together by the ALJ, who entered an award covering both cases. The ALJ ruled that Kimber had not carried her burden of proof to establish that she had suffered an accidental injury in the course of her employment with the school district in case No. 169,842. The effect of this ruling was to relieve the school district of liability to the claimant under the Workers Compensation Act (Act).
In case No. 172,282, the ALJ found that Kimber had suffered a 20% permanent partial general work disability while working at Cedars. Of particular importance in this appeal is the portion of the order which required Cedars and its insurance carrier to reimburse the school district and its insurance carrier for all amounts previously expended in case No. 169,842 pursuant to the preliminary orders.
Cedars appealed to the Workers Compensation Board (Board), which affirmed the award in both cases in all respects except to modify the order to require Cedars to reimburse the school district only for compensation and medical expenses incurred subsequent to Kimber becoming employed by Cedars on December 19,1991. Cedars then appealed to this court. It should be noted that both the ALJ and the Board found the date of Kimber’s injury while employed at Cedars to be May 15, 1992.
Cedars raised only one basic issue on appeal: whether the Board erred in ordering Cedars and its insurance carrier to reimburse the school district for all funds expended by the school district in case No. 169,842 for the period subsequent to December 19,1991, the date Kimber commenced her employment with Cedars. Stated in another way, the issue On appeal is whether Cedars or the Workers Compensation Fund is obligated under the law to reimburse the school district for workers compensation paid where the school district had no liability.
In determining this issue, it is important to consider one of the basic principles governing liability of an employer under the Act set forth in K.S.A. 44-535. That statute provides that the right to compensation under the Act shall be deemed in every case to have accrued to the injured worker at the time of the accident. Johnson v. Warren, 192 Kan. 310, 313, 387 P.2d 213 (1963), in applying 44-535, holds that the time of the accident determines what rights to compensation have accrued. We agree with Cedars’ contention that a reimbursement order cannot be made for a period of time prior to the date on which injury by accident was found to have occurred. In case No. 172,282, Kimber claimed a first date of injury while working at Cedars to be May 15, 1992. Both the ALJ and the Board found the date of her injury while employed at Cedars to be May 15, 1992, and the days that followed.
In our judgment, the Board erred in ordering Cedars and its insurance carrier to make reimbursements to the school district for the period of time prior to the date of the accident at Cedars, May 15, 1992. Reimbursement for that period is the obligation of the Fund.
To obtain reimbursement for that period, the controlling statutes are K.S.A. 44-534a(b) and K.S.A. 44-556(d). These statutes provide the exclusive means by which the school district can seek reimbursement for any excess payment of compensation, which must be from the Fund upon certification of the amount by the Director of Workers Compensation. In Johnston v. Tony’s Pizza Service, 232 Kan. 848, 852, 658 P.2d 1047 (1983), the court held that where a workers compensation award is reduced or totally disallowed by a district or appellate court, 44-556(d) provides the means by which the employer and its insurance carrier may be reimbursed for any excess payment of compensation.
Reimbursement for compensation and medical expenses paid by the school district after May 15, 1992, and before the issue was determined as to which employer, the school district or Cedars, was responsible for their payment presents a different situation. We hold that Cedars is responsible to reimburse the school district for compensation and expenses arising after the injury which occurred at Cedars on May 15, 1992, and the days that followed. Clearly, the school district and its insurance carrier should be reimbursed by Cedars for paying compensation and expenses owed by Cedars before the issue of liability was determined by the Board.
Cedars and its insurance carrier are ordered to reimburse the school district and its insurance carrier for all compensation and medical expenses expended by the school district in case No. 169,842 for the period subsequent to May 15, 1992.
This case is reversed and remanded with direction to the Director of Workers Compensation to determine the amount of compensation paid by the school district and its insurance carrier, which is to be reimbursed in accordance with this opinion.
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The opinion of the court was delivered by
Dawson, J.:
This appeal presents the question whether a promissory note on which a judgment was recovered for part of its face value may be assigned to another holder and a further recovery be obtained thereon in behalf of such later assignee, under circumstances which may be briefly stated as follows:
Some time prior to April 27, 1921, W. H. Schruben, a Sheridan county farmer, purchased 70 acres of land in Florida near Lake Okechobee at $200 per acre. He paid half the purchase price and gave his note for $7,000 secured by a second mortgage on 480 acres of Sheridan county land to secure its payment. The payee of the note, one Thomas Lynn, transferred it to W. E. Hillstead, who put up the note and mortgage with the First National Bank of Hoxie as security for a loan in his own behalf. Originally Hillstead’s obligation to the bank was $3,800, but it had been reduced to $800.
On February 2, 1923, the First National Bank of Hoxie brought suit against Schruben and wife, alleging its ownership of the $7,000 note and mortgage, and the default of the makers in the payment of interest and taxes in breach of the terms of the mortgage, whereby the entire sum became due, and plaintiff prayed judgment for principal and interest on the note, aggregating $8,151, and for foreclosure of the second mortgage and sale of the premises, subject to the lien of the first mortgagee, one George A. Launchbaugh.
On March 28, 1923, plaintiff filed an amended petition to the same general effect as its first petition so far as we are presently concerned.
On application of Schruben and wife, W. E. Hillstead was made a party to the action by order of court, and on August 23, 1923, Schruben and wife filed their answer admitting execution of note and mortgage, denying that the said First National Bank was the owner of the note or was the real party in interest, and alleging that the note sued on was the property of Hillstead. The answer further alleged that the note was procured by fraud perpetrated by Hill-stead and the original payee in said note, and that the plaintiff bank at all times had knowledge of said facts. The answer also set up a cause of action for $14,000 damages against W. E. Hillstead, and prayed a recovery therefor against Hillstead, and that the note be canceled.
“2. Defendants further allege that this action was not prosecuted in the name of the real party in interest, for that the note and mortgage sued on are the property of the defendant, W. E. Hillstead.
“3. Defendants further state that the note and mortgage sued on were procured from the defendants Schruben and Schruben by the false and fraudulent representations of the payee therein named, and his agents, as will more fully appear hereinafter in the cross petition herein; and said defendants allege that the said plaintiff at all times had notice and knowledge of the facts constituting a defect of title in said note and mortgage as hereinafter alleged.”
On September 28, 1923, Hillstead filed a verified answer as follows:
“Comes now defendant W. E. Hillstead, and for his answer to the cross petition of defendants Wm. H. Schruben and M. E. Schruben, filed August 28, 1923, denies generally and specifically each and every material allegation therein, except as herein expressly admitted.
“Defendant Hillstead admits that Wm. H. Schruben entered into a contract in writing for the purchase of lands in Florida.”
The bank joined issue on Schruben’s answer by a verified reply filed September 20, 1923, which read thus:
“Comes now the plaintiff and for its reply to the second and third paragraphs of the answer and cross petition of defendants Wm. H. Schruben and M. E. Schruben, filed August 28, 1923, deny generally and specifically each and every material allegation in said pleading.”
At the March term, 1924, the cause was tried before a jury on these issues. The following instructions were given:
“4. The plaintiff in this action has admitted that it does not own all of the note sued on in this case, but only has certain interests therein. The plaintiff, under the evidence introduced in this case, cannot recover any verdict in excess of the amount of its interests in the note at this time, if it has any such interest. . .
“14. You have heretofore been told in these instructions that the plaintiff could only recover whatever interest it might have at this time in the note and mortgage sued on. That statement is only intended to be applicable in case the defendants Schruben have proven fraud and misrepresentations, as claimed by them, and as referred to in these instructions. In case such fraud and misrepresentations have not been so proven, then, under the evidence given in the trial of this case, the plaintiff would be entitled to recover the full amount due on said note.”
The jury rendered a verdict as follows:
“We the jury empaneled and sworn in the above entitled ... do find upon our oaths for the plaintiff, the First National Bank of Hoxie, Kan., and against the defendants Wm. H. Schruben and M. E. Schruben, and fix plaintiff’s recovery at the sum of $995.”
The jury failed to agree on 'the issues joined between Schruben and Hillstead. The record recites:
“That on said March 8, 1924, the court having interrogated the jury, and being informed as required by law in the premises, finds that no probability exists that the said jury will be able to reach a verdict upon the matters and issues submitted to said jury upon the cross petition of the defendants Wm. H. Schruben and M. E. Schruben and as against the defendant W. E. Hill-stead, and said jury was thereupon discharged without a verdict having been reached, as to said last mentioned issues.”
Judgment for $995 was accordingly entered in favor of the bank on March 8,1924; the second mortgage was foreclosed and the property ordered sold (subject to the first mortgage) to satisfy the judgment; which was accordingly done, and the judgment and costs were satisfied.
During the pendency of the foregoing action, Launchbaugh, holder of the first mortgage on Schruben’s lands, brought suit to foreclose, and all the parties to the bank’s action were impleaded. No contest arose against the first mortgagee, and 'judgment was entered in his favor; but on February 5, 1924, Hillstead filed an answer in the case of Launchbaugh v. Schruben et al., in which he alleged that he had sold, indorsed and delivered the $7,000 note and second mortgage to the Hoxie bank before maturity, and “that the First National Bank of Hoxie, Kan., has at all times, and now is the owner and holder thereof.”
Following other allegations Hillstead’s answer concluded thus:
“Wherefore, this answering defendant prays that the said mortgage of the First National Bank of Hoxie, Kan., be adjudged to be a valid lien on and upon the real estate described in said mortgage, being the same real estate described in plaintiff’s mortgage, and that the said mortgage premises be ordered sold in the manner provided by law, and that the proceeds arising from the said sale of premises be applied: First, to the payment of taxes against the said premises; second, to the payment of costs; third, to the payment of the sums of money due on the mortgages sued upon herein; and that the balance of the money arising from the sale of the said premises, if any there be, be paid over to the codefendants, William H. Schruben and Mary H. Schruben.”
On May 29, 1924, Hillstead filed an amended answer and cross petition in the case of Launchbaugh v. Schruben et al., in which he repeated most of the matters alleged in his answer of February 5, and including the ownership of the $7,000 note by the Hoxie bank, and narrating the outcome of the litigation between the bank and the S'chrubens and Hillstead, and—
“That a judgment was rendered on March 8, 1924, declaring the First National Bank to be the owner of an interest in the above-described mortgage and note, to the extent of $995; . . . and that said bank caused said land to be sold to satisfy the said judgment in the manner required by law, and after the sale of the said land, that said bank turned over to and delivered to the defendant, W. E. Hillstead, the above-described real estate mortgage, together with said note; . . . that there is at this time due and unpaid on said mortgage and note the sum of $7,203.75, together with interest at six per cent from March 8, 1924, . . . and that said mortgage should be foreclosed; and that said mortgage is a valid and subsisting lien against said premises.”
Hillstead also alleged that after the sale of the Schruben land to satisfy the Hoxie bank's second mortgage—
“The said bank surrendered and delivered to the defendant, W. E. Hillstead, «aid real estate mortgage and note; and that since the said delivery W. E. Hillstead has been at all times and is now the owner and holder of the legal and equitable interest in and to said mortgage and note.”
Hillstead concluded with a prayer for judgment in his own be half on the unsatisfied balance of the $7,000 note, with interest since the date of the decree foreclosing the second mortgage, totaling $7,203.75, for which sum and for another foreclosure of the second mortgage he prayed judgment.
On July 14, 1924, the Schrubens filed an amended and supplemental answer to the foregoing pleadings of Hillstead, setting up the preceding litigation, the verdict and judgment in favor of the Hoxie bank, the foreclosure of the second mortgage, the sale of the land to satisfy the bank’s judgment, and—
“That the said verdict and judgment was based upon the only cause of action set out in the petition of the plaintiff herein, that the same remains a binding decree, and is and was a complete adjudication of the matters and things involved in the petition of the plaintiff.' And that the mortgage involved herein was foreclosed, the land described therein sold and judgment and costs fully paid.”
The Schrubens answered further concerning alleged fraud on the part of Hillstead and others, whereby they were induced to invest in worthless swamp lands in Florida out of which transaction the $7,000 note had its inception, but for the present we need not concern ourselves with that phase of the litigation, nor need we particularly note at this time the Schrubens’ cross action against Hillstead for damages.
On October 8, 1924, counsel for defendants filed a written motion that the issues of law presented by their answer be determined in advance of the trial, and the trial court ruled that Hillstead could maintain the action to recover on the balance of the note notwithstanding the prior judgment thereon obtained by the Hoxie bank.
The trial proceeded, evidence was heard at length, a verdict and special findings were rendered in favor of Hillstead, and judgment was accorded to him for the balance of the note, together with interest thereon, but the theory that the Schruben lands could again be subjected to foreclosure to satisfy such judgment was abandoned.
The Schrubens appeal, assigning various errors, the chief of which relates to the ruling of the trial court that Hillsteád could recover on the note as assignee of the Hoxie bank after the note had been put in issue and a partial recovery had thereon in the action between the bank, the Schrubens, and Hillstead.
The pertinent law on this subject is simple and well fortified by decided cases. Once a cause of action has been prosecuted to final judgment, all matters pertaining thereto and which were or properly should have been litigated under the facts constituting such cause of action are conclusively determined by that judgment and binding upon all parties to the litigation and their privies. (Snehoba v. National Bank, 115 Kan. 836, 224 Pac. 914; Lux v. Columbian Fruit Canning Co., 120 Kan. 115, 117, 242 Pac. 656; Rucker v. Rafter, 122 Kan. 91, 251 Pac. 420.)
In Steele v. Stevenson, 104 Kan. 469, 474, 179 Pac. 304, it was said:
“The doctrine of res judicata applies not only to the questions brought forward by the defendants in their testimony, but also as to every question open to consideration as a part of the subject of litigation and which could have been presented at that time. (C. K. & W. Rld. Co. v. Comm’rs of Anderson Co., 47 Kan. 766, 29 Pac. 96; Manley v. Park, 62 Kan. 553, 64 Pac. 43; McCormick v. McCormick, 82 Kan. 31, 107 Pac. 546; Hubbard v. Power Co., 89 Kan. 446, 131 Pac. 1182.)”
Equally well settled is the rule that a single demand may not be split into fractional parts and assigned to different persons so as to give the several assignees separate causes of action on the portions respectively assigned to them. Thus in Wells v. Hickox, 1 Kan. App. 485, 40 Pac. 821, it was said:
“A promissory note constitutes a single cause of action; and where an owner thereof sues, and recovers upon a portion thereof, such suit is a bar to a recovery upon the remaining portion of said note.” (Syl. ¶ 3.)
In Insurance Co. v. Bullene, 51 Kan. 764, 33 Pac. 467, it was said:
“A creditor having a single cause of action for a sum of money cannot by assignment split up such cause of action, and thereby subject the debtor to a number of suits based on such assignment.” (Syl. ¶ 3.)
The principle underlying the rule was discussed in Coal Co. v. Brick Co., 52 Kan. 747, 35 Pac. 810, thus:
“It is the policy of the law to avoid a multiplicity of actions, and a party is not permitted to split a cause of action into two or more parts and maintain separate actions for each of the separate parts. A recovery of one part of an action so split up will constitute a complete bar to a recovery upon any remaining portion thereof. The principle of indivisibility applies to running accounts like the one under consideration, and if the plaintiff could split this account into two causes of action, it might bring as many actions as there were items in the account. The doctrine of res adjudicata forbids a repetition of vexatious lawsuits, and a former trial and judgment upon one of the items is conclusive between the same parties as to all matters which were or might have been litigated in all other actions, whether commenced before or after the action in which the adjudication was made. (Whitaker v. Hawley, 30 Kan. 317; W. & W. Rld. Co. v. Beebe, 39 id. 465; Shepard v. Stockham, 45 id. 244; C. K. & W. Rld. Co. v. Comm’rs of Anderson, Co., 47 id. 766.)” (p. 749.)
In the early case of Mandeville v. Welch, 5 Wheat. 277, 5 L. Ed. 87, the United States supreme court said;
“The reason of this principle is plain. A creditor shall not be permitted to split up a single cause of action into many actions, without the assent of his debtor, since it may subject him to many embarrassments' and responsibilities not contemplated in his original contract. He has a right to stand upon the singleness of his original contract, and to decline any legal or equitable assignments by which it may be broken into fragments. When he undertakes to pay an integral sum to his creditor, it is no part of his contract that he shall be obliged to pay in fractions to any other persons. So that if the plaintiff could show a partial assignment to the extent of the bills, it would not avail him in support of the present suit.” (p. 286. See, also, Tootle v. Wells, 39 Kan. 452, 18 Pac. 502; Price v. Bank, 62 Kan. 735, 64 Pac. 637; Naugle v. Naugle, 89 Kan. 622, 632, 132 Pac. 164; Willard v. Sperry, 16 Johns. (N. Y.) 121; King v. King, 74 N. Y. Supp. 751; id. 73 App. Div. 547, 77 N. Y. Supp. 40; 1 C. J. 1106, 1115; 1 R. C. L. 342.)
Both of these rules of law were violated in the judgment under review. In the foreclosure action by the Hoxie bank against the Sehrubens, with Hillstead impleaded, the bank alleged that it had acquired the $7,000 note in due course and was -the owner thereof; the Sehrubens denied the bank’s ownership, and alleged that it was procured from them by the fraud of Lynn, Hillstead and others, and that the bank knew of its infirmities when it acquired it; Hillstead alleged that the bank was the owner of the note, and traversed all the material allegations in the Sehrubens’ answer. The trial court instructed the jury that if the note was procured by fraud of Hill-stead and others and the bank knew of the fraud, it could not recover, and if the note was procured by fraud but without notice thereof by the bank at the time it acquired it, the bank could recover the sum it actually had in the note ($800 and interest); and the court also instructed the jury that if no fraud inhered in the making of the note, the bank could recover the entire sum due on the face of the note, together with interest ($7,000 and interest). The instructions of the court were not excepted to and therefore, whether precisely correct or not, they became the law of the case. Consequently the verdict of the jury for $995 ($800 and interest), was in effect a finding that the note was procured by fraud, but that the bank had no notice of its infirmities, and the final judgment thereon bound everybody involved in that litigation so far as the note was concerned. Hillstead was bound by the judgment for two unassailable reasons. He was a party to the litigation, and joined issue with the Schrubens on the facts which gave rise to the cause of action, and expressly pleaded that the bank was the owner of the note and traversed the allegations of the Schrubens that he and not the bank was the owner of the note. On the other hand, the rule against splitting of a single cause of action was also a complete bar to the latter proceedings between the Schrubens and Hillstead over the latter’s claim to recover on the balance of the note. The fact that the issues between the Schrubens and Hillstead on the cross claim for damages were not concluded in the Hoxie bank’s foreclosure action did not inject any new virtue into the note which was condemned in effect by the jury’s verdict — void for fraud but acquired by the Hoxie bank without notice. Moreover, the note was merged in the judgment. (15 R. C. L. 782.)
Of course the litigation over the Schrubens’ cross action for damages was not concluded by the judgment in the foreclosure case, and it properly went on to a final judgment, but the only significance of that matter was that the Schrubens get no damages from Hillstead, and apparently no error is assigned on that result in the court below.
In view of what is said above, the other matters submitted by appellants for our review need no consideration.
The judgment of the district court in favor of Hillstead and against the Schrubens on the balance of the $7,000 note and interest is set aside, and the cause is remanded with instructions to enter judgment thereon in favor of appellants, W. H. and M. E. Schruben. | [
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The opinion of the court was delivered by
Harvey, J.:
Ralph Vandruff was charged with murder, and on trial was found guilty of manslaughter in the second degree, as defined by R. S. 21-412. He has appealed, and contends that the court erred in excluding evidence offered on his behalf; that the statute (R. S. 21-412) was never intended to apply to facts shown by this record, and that it is inconsistent in its terms; that the facts do not support a conviction under this statute; and that the court erred in refusing to give instructions requested, and in instructions given, and that defendant was prejudiced by the closing argument of counsel for the prosecution. A brief general statement of facts is as follows:
Grand avenue, in Salina, is an east and west street. It is intersected by numbered streets, the one farthest west being Thirteenth street. About 500 feet west of Thirteenth street Grand avenue crosses Dry creek, where there is a bridge, and continues west as a highway. West of Thirteenth and south of Grand avenue there is a row of cottages facing Thirteenth, with an alley west of them. West from this alley to the Needier place is an alfalfa field. Mr. Needier and his wife live in a cottage south of Grand avenue, east of and near Dry creek. Mr. Needier had an auto-parking place south and west of his house. North of Grand avenue and east of Dry creek is an unimproved tract of timberland. This tract is not within the corporate limits of the city. A road, much like an old wagon trail, leaves Grand avenue about 60 feet east of the bridge and runs north into this timber tract for about 150 feet, where it passes between two big trees, and soon thereafter disappears. From the big trees to Grand avenue the timber had been cleared away, and north of the trees a circular patch had recently been cleared, and in this patch were stumps and some brush piles. Between this road and the creek west of it there had been a row of hedge. This had recently been cut, leaving a row of stumps. Brush had been burned, leaving an ash pile about 60 feet south of the big trees and between the row of stumps and the road. Needier had complained to the county and city officers at various times throughout the summer and fall preceding the homicide that sundry persons made use of this tract of timberland north of Grand avenue as a rendezvous, or resort, for parties for drinking, gambling, and for immoral purposes, and had been told by the city peace officers to inform them of any such parties there. A few months before the homicide Needier had got permission from the owner of the land to cut some of the timber and brush thereon, with the view that clearing the land would deprive it of its utility as an unlawful resort, and he had cleared out the row of hedge and some other timber. For a time immediately prior to the homicide the road up through this timbered tract had not been used much for any purpose; the ground was soft; the automobile wheels cut into it.
The deceased, Lawrence Regester, was a student in high school at Abilene, where he resided. On the afternoon of January 23, 1927, he and three other high-school boys, Earl Brown, Roy Shellhasse and John Glahn, in a borrowed Ford roadster, drove to Salina. There they rented a Chrysler two-door sedan, and called upon two girls, Clara Curry and Goldie Schultz, of about their own age, one of whom was a high-school student at Salina. Three of the boys knew these girls, having met them, or called on them, on previous occasions, and while they had made no appointment for that occasion, the girls were looking for the boys to call. They saw the boys drive up, went out to the car, were invited to ride, and got into the car. Someone spoke of getting another girl or two. One of the girls suggested Yvonne Meyers, another Salina high-school girl, and they drove to her home, invited her to join them, which she did. The seven young people drove about the city of Salina for two hours, or more, until about 5:30 o’clock, when, after making a date for the evening, they took Miss Curry to a place on Ninth street, where she worked, and the other two girls up to the Schultz home. The boys went to a restaurant for supper, spent some time at the Y. M. C. A., where they cleaned up. They got the two girls at the Schultz home about 7:30, and Miss Curry at her home about 8:15 o’clock. They drove about the city and stopped a few minutes at the Winters home on Grand avenue between Eleventh and Twelfth streets, where other young people were. Earl Brown and Clara Curry got out of the car and visited with the other young people, while the rest of the party drove west oh Grand. Just after they had passed Thirteenth street, and between that and the bridge over Dry creek, they overtook and passed a Ford coupé occupied by two other Abilene boys with their Salina “dates.” The coupé did not cross the bridge, but turned around on the alfalfa field east of the Needier house, driving within fifteen feet of it, back to Grand avenue and east. Those in the Chrysler went on across the bridge west a half or three-quarters of a mile from Dry creek, turned around and drove back and around a block to the Winters home. There Earl Brown and Clara Curry got in the car again and the parties drove west on Grand avenue. As they neared Dry creek one of them looked back and saw a car approaching, and thought it was the other car containing the Abilene boys. The driver of the Chrysler, noticing the road turning off to the north into the timber, suggested he would pull in there to “ditch” the Abilene boys. They drove in on this road as far as the big trees, turned around so their car was facing Grand avenue, killed the engine and put' out the headlights; the parking lights were left burning.
The defendant, Ralph Vandruff, was a policeman regularly on the police force of the city of Salina, and had been in that capacity about seven months. Previous to that time he had been a policeman at Salina for about two years, but had been asked to resign because of his drinking intoxicating liquor while on duty. After that he was employed as a special agent for the Union Pacific Railway Company for several months, but while stationed at Kansas City, Kan., his employment was terminated by the railroad company because he had left his place of duty. On the Sunday evening in question he was sitting in the police headquarters at Salina. His regular time for going on duty was 12 o’clock at night, but he was about the police station, subject to call■ if needed, as was not infrequent for policemen even when they were not on active duty. About 9 o’clock in the evening, perhaps a few minutes before that time, the desk sergeant at the police station received a telephone call from Mr. Needier, who said:
“This is Needier at the west end of Grand avenue, and there is two cars out here raising hell. I would like to have two officers out here right away.”
Needier explained over the telephone that he conducted the tourist camp out there. The police sergeant gave a signal known to the policemen about the city that there was a call at headquarters, and' the police captain, Walter Bueche, responded promptly by going to the station, and there learned about the Needier call. He spoke of getting one of the other policemen then on active duty to go with him, but Vandruff said there was no need of that — he would go. Bueche and Vandruff got in the police car, Bueche driving, and went out west on Grand avenue, and when nearly to the bridge over Dry creek they turned to the north on the road into the timber tract. When they turned in to this road the lights from their car reflected on the glass windshield of the Chrysler, then standing near the big trees about 150 feet north of Grand avenue. Soon after the police car turned in on this road and started north the lights were turned on the Chrysler and it started to move south. When about half way of the distance from Grand avenue to the big trees Bueche, driving the police car, swung to his right and then to his left so as 'to place his car crossways of the road in front of the Chrysler, but the Chrysler, turning perhaps a little to the south of the road, drove by the police car on toward Grand avenue. As Bueche had started to make the swing, first to his right and then to the left to cross the road, Vandruff stepped out of the police car, let it pass him and walked directly west so as to place him in front, or almost in front, of the approaching Chrysler car. Just as it passed him, or directly thereafter, he fired three shots. One of these entered the body of the car from the back near the left comer about four inches above the fender. Lawrence Regester was sitting on the left side of the rear seat of the Chrysler in such a position that the bullet entered his body at his postaxillary line about the height of his waist band, coursed downward on the right side, through his colon near the appendix, pierced his bladder and lodged against the base of the pelvic bone. The Chrysler car pulled on out on Grand avenue and turned east and stopped in about a block. The police car turned around, followed and overtook the Chrysler, and stopped. It was found that Regester was badly wounded; he was taken to the hospital and died about five or six hours later.
The surviving occupants of the Chrysler car testified that they knew nothing of the reputation of this tract of timber land north of Grand avenue as being a place frequented by people for unlawful purposes, that none of, them had ever been to that place before, and that their only purpose in driving into that place on the evening in question was to get away from, or avoid, the car driven by the other Abilene boys. Their testimony is that their car had been stopped but a few minutes — not to exceed five minutes — when they saw what proved to be the police car driving into the road from Grand avenue. There were seven young people in the car, two boys and two girls in the back seat and two boys and one girl in the front seat. It seems that in driving about town the boys had taken turns in driving the Chrysler car. When the car was stopped near the big trees the two boys in the front seat got out, walked around back of the car and changed sides.
There is little conflict in the testimony in this case except as to the relative position of the parties and the immediate incidents of the shooting. Those in the Chrysler car testified that as they started to-drive out to Grand avenue when they saw the other car turn into the road toward them they passed the other car. They did not see it swing to the right and attempt to cross the road in front of them; that in fact it did not cross the road in front of them, and, so far as they knew, they drove directly down the road to Grand avenue, but not being familiar with it they might have driven a little to the right of the road part of the way. They say they did not see the defendant Vandruff, nor hear any command to halt; that the first they knew of any shooting was when they heard the shots — and some of them say they heard “thumps” on the back of the car; that immediately after the first shot Regester said to Shellhasse: “Shelly, did you feel that sting.” Shellhasse replied: “No, I didn’t feel any sting.” Regester then said he was shot. Some of the occupants of the car say there were two shots after that, indicating the first shot fired was the one that caused the death of Regester. Soon after discovering that Regester was shot they slowed up and stopped.
The defendant’s testimony was that he stepped out of the police car when Bueche made the swing to the right, let it pass him, walked directly west to a place between the road and the row of hedge stumps, and stood directly in front of the approaching Chrysler car; that he had a flashlight strong enough that he could identify a man 150 feet, which he threw directly on the approaching car; that he was dressed in police uniform, with a star on his coat; that he unbuttoned his overcoat and threw it back so his star could be seen, also the holster in which he earned his revolver could be seen; that he stood directly in front of the Chrysler car and called, “Halt”; that the driver of the Chrysler car drove directly at him as though to run over him, and that he was compelled to step to one side to keep from being run over and injured; that as the Chrysler car passed him he fired one shot at the tire of the hind wheel when it was just opposite him, but evidently missed it, as no evidence of that shot could be found on the car; that as soon as the car passed him he stepped immediately behind it, took deliberate aim and fired at the left hind tire. This was the shot which he thinks went a little higher than he aimed it and entered the body of the car near the left rear corner about four inches above the fender. He then ran several steps after the car, calling “Halt,” and fired again. A bullet from his pistol had evidently struck the back of the car almost at the top, going through the rear curtain and the top. There were only two bullet marks on the car. He testified he had heard the summer before the bad reputation of this locality; that he suspected the oc cupants of the car were there for the purpose of drinking intoxicating liquor, or for immoral purposes; that when the driver of the car attempted to run over him he thought he had a right to stop the car, and that he attempted to do so by shooting the tires. The pisfol used was a 38-caliber special, capable of carrying a bullet 250 yards with deadly effect.
Turning now to the questions presented by appellant. It is contended that the court erred in excluding the offered testimony of the witness Fitch, the chief of police, to the effect that it was the custom of officers in the city of Salina and in the state to shoot at tires of automobiles in order to halt fleeing offenders, and that recently he had shot at the tires of a car which had run him to the curb and which carried fleeing offenders, and the testimony of Bueche, captain of police, to knowledge of the same custom. Appellant is not in position to present that question for the reason that affidavits of these witnesses with respect to that matter were not presented on the motion for a new trial. The provision of the civil code (R. S. 60-3004) that excluded testimony, to be the basis of error, must be offered by the affidavit of the witness on the motion for a new trial, is applicable to criminal cases. (State v. Wellman, 102 Kan. 503, 512, 170 Pac. 1052; State v. Schroeder, 103 Kan. 770, 771, 176 Pac. 659.) The defendant did testify to his understanding of a custom of that kind, but also testified that he had never practiced it. But in addition to that, any evidence of a general custom of that kind would not be competent. There may be circumstances in which officers would be justified in shooting at the tires of a car, or even at its occupants, but an indiscriminate custom of that kind would not be justified.
It is contended that the statute under which the conviction was had is inconsistent in its language and unintelligible if carefully analyzed. The statute reads:
“Every person who shall unnecessarily kill another, either while resisting an attempt by such other person to commit any felony, or do any other unlawful act, after such attempt shall have failed, shall be deemed guilty of manslaughter in the second degree.” CR. S. 21-412.)
While on a careful analysis the language could perhaps be improved upon, it is not seriously ambiguous, and its meaning is reasonably clear. In State v. Stevenson, 74 Kan. 193, 85 Pac. 797, where the court had given an instruction on manslaughter in the second degree in the language of this statute, it was said:
“It will be observed that the instruction is in the exact language of the statute, and is clear and easily understood, and the jury could not have misunderstood it.” (p. 196.)
It is contended that the evidence does not support a conviction under this statute. That is true if we look only to the testimony of the witnesses produced by the state. Under their testimony no felony or other unlawful act had been committed or attempted. But the defendant testified to a state of facts which makes the statute applicable. Passing the suspicion of the defendant that the occupants of the Chrysler car were committing, or attempting to commit, some felony or other unlawful act, and that their attempt to do so had failed — for his suspicion in that regard does not arise to the dignity of a proof of it — he testified that he stood directly in front of the oncoming Chrysler car, that the lights of the car were shining brightly upon him, that its occupants could not help seeing him and recognizing that he was a policeman, and that they deliberately tried to run the car over him and do him injury, and that the attempt to do so had failed. We presume defendant gave his testimony with the hope and expectation that the jury would believe it. He is hardly now in position to complain that they did so. His testimony made it necessary for the court to give an instruction under this statute, for the court was required to instruct on all degrees of homicide on which a conviction might be had under any reasonable view of the evidence, even though such evidence were that of the defendant alone. (State v. Buffington, 66 Kan. 706, 72 Pac. 213; State v. Clark, 69 Kan. 576, 77 Pac. 287; State v. Newton, 74 Kan. 561, 87 Pac. 757; State v. Hardisty, 121 Kan. 576, 580, 249 Pac. 617.) There is no serious contention that the shooting was necessary. If defendant’s purpose was to identify the car and later apprehend its occupants there was no necessity of shooting the deceased, or shooting at the car at all. It had a numbered license plate on the rear, also had a tire cover on which was printed in letters large enough to be seen for some distance the name of the Chrysler dealer at Salina. With his flashlight defendant could readily have learned the number on the license plate and the name of the dealer, from which, in all probability, identification of the car could have been made. But he testified that he paid no attention to the number, or to the name of the dealer on the tire cover— that the number meant nothing to him. The felony, or other unlawful act, was the deliberate attempt of the occupants of the car to run over and injure defendant. This had failed. The homicide was unnecessary. This established a state of facts within the statute. (State v. McCarty, 54 Kan. 52, 36 Pac. 338; State v. Young, 109 Kan. 526, 532, 200 Pac. 285.)
But it is contended that Lawrence Regester, who was killed, was not driving the car, was sitting in the rear seat, hence that the effort of the driver of the car to run it over defendant was not the effort of Regester. The point is not well taken, and appellant is not in good position to raise it. He requested, and the court gave, an instruction:
“If two or more persons are engaged in a common enterprise, and if with the same purpose and design they cooperate in doing an act which is unlawful and the doing of which constitutes a crime under the law, each of them is guilty of the commission of the crime.”
This instruction was requested and given with the evident purpose of connecting all of the occupants of the Chrysler car with the unlawful act of any of them. It states a rule of law frequently applied, and in aiiy event it became the law of this case on the request of defendant, and he is not now in position to complain of it.
Complaint is made in other respects concerning instructions requested and instructions given. We have carefully examined the various contentions of appellant in this regard and find no material error therein. It would prolong this opinion unnecessarily to set out these instructions in full and to discuss appellant’s contentions concerning them. It is sufficient to say that all proper material instructions requested by appellant were given, at least in substance, and that the instructions given fairly presented the case to the jury.
Appellant complains of misconduct of counsel for the prosecution in the language used in the closing argument to the jury. The language was not objected to at the time, nor was it taken by a stenographer. In support of the motion for a new trial defendant’s affidavit was filed as to statements complained of in the argument. On behalf of the state affidavits were filed in rebuttal, denying in a general way much of the matter contained in defendant’s affidavit. In this connection we wish to note that the attorney whose remarks were complained of made no affidavit which was filed in the court below, or which was considered by the trial court. He has, however, made an affidavit which was filed in this court and which counsel for the state have incorporated in the counter abstract. This affidavit has no place in this case. It should not have been incorporated in the counter abstract, for it was not a part of the record in the court below, and we shall not consider it. We shall determine the question of misconduct of counsel as though that affidavit had not been filed. So considering it, we first note that no objection was made at the time. It has been repeatedly held that a party who does not at the time object to arguments and give the trial court an opportunity, if necessary, to admonish counsel and the jury, cannot be heard to complain. Late cases on the question are State v. Messmer, 123 Kan. 201, 203, 254 Pac. 378; State v. Ragan, 123 Kan. 399, 256 Pac. 159. There are many earlier ones. But on this point appellant cites the case of State v. Powell, 120 Kan. 772, 245 Pac. 128, where it was held an objection to improper argument was not necessary, but the opinion states as a reason that objection was not necessary in that case:
“In this instance the defendant had no ground upon which to base an objection, for the court had opened the way for the proceeding to become nonjudicial. The argument was based upon evidence the court had admitted over defendant’s protest, and was consonant with the stated theory upon which the evidence was offered.” (p. 800.)
This cannot be said here, and the reason given in State v. Powell, supra, for the lack of necessity of calling the attention of the court to what was claimed to be an improper argument, does not apply. Since the trial court heard the argument and had his own recollection and judgment as to what had been said, and the language complained of was not taken by the reporter so we might know what was said, and the interpretation placed upon it by defendant in his affidavit was controverted in a general way by several affidavits, it may well be that the court did not find it to be true that counsel in his argument made all of the statements charged to him by defendant in his affidavit, or made any statements that were seriously out of the way, or as amounting to misconduct. If that were the court’s view it was proper for the motion for a new trial not to be sustained for that reason. Error in this regard has not been established.
Finding no prejudicial error in the case, the judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The proceeding was one to forfeit an automobile as a liquor nuisance. The state was defeated, and appeals.
The owner of the automobile worked in a garage, and kept the automobile in the garage. Late one afternoon he permitted an acquaintance to use the car for the purpose of going to a designated place for some articles of personal property. The car was returned to the garage, police officers were called, the car was searched, and a quantity of liquor was found in it. The question of fact was whether the liquor had been transported, or whether the liquor was deposited in the car after it was brought back. The decision depended on the view taken of circumstantial evidence, and what circumstances were proved depended on oral testimony. The court made a general finding against forfeiture and in favor of the owner.
The testimony abstracted by the state makes a- plain case of transportation of liquor to the garage and preparation for further transportation .after nightfall. No formal counter abstract was filed, but in the brief for defendant some additional bits of testimony are quoted and recited, and the cutting edge of a little of the testimony in the abstract is slightly dulled. The finding of the liquor in the car was admitted. The succession of events leading to discovery of the liquor was established by the testimony of a number of witnesses who in the nature of things could not have been in collusion, and the case for forfeiture is so strong that the state explains the decision as the result of an erroneous theory of the law entertained by the trial court.
On the face of the record, there seems to be little room for justification of the decision on the ground that oral testimony was discounted or disbelieved, but this court can do nothing about it, unless it retries the case on the oral evidence of witnesses whom it did not see and hear, stenographically reported, and filtered through abstract and counter abstract. The court is in the situation it always occupies when counsel neglect to require findings of fact and conclusions of law separately stated. In such cases, there is no way to tell whether the decision is the result of well-applied law to well- found fact, or misapplied law to well-found fact, or well-applied law to misfound fact, or misapplied law to misfound fact. In making the general finding, however, the district court exercised a statutory power:
“Upon the trial of questions of fact by the court, it shall not be necessary for the court to state its finding, except generally, for the plaintiff or defendant, unless one of the parties requests it, in which case the court shall state, in writing, the conclusions of fact found, separately from the conclusions of law.” (R. S. 60-2921.)
In some instances, when doubt has existed respecting proper interpretation of the district court’s action, cases have been returned in order that uncertainty and ambiguity might be removed and the judgment might be made definite. (Butler v. Milner, 101 Kan. 264, 166 Pac. 478; Garden City Nat’l Bank v. Gann, 121 Kan. 159, 246 Pac. 971; Harrington v. Missouri Pac. Rld. Co., 121 Kan. 488, 247 Pac. 441.)
In this instance, the judgment itself is free from ambiguity, and to direct the district court to state findings of fact and conclusions of law would be to direct it to do what the statute says it was not necessary for it to do. The state might have forestalled the dilemma by exercise of the privilege granted by the statute. Not having done so, it must abide the result.
In the writer’s opinion, a scientific code of civil procedure would require that on the trial of a question of fact the district court should always state findings of fact. Power of this court to test soundness of the findings of fact would remain limited; but it could tell whether the law was properly applied to the facts found and, by declaring the law, perform the primary office which it was established to perform. In cases tried by jury, the general verdict should be abolished, and the jury should be required to find the facts, under instructions limited to aiding the jury in dealing with the evidence. By exercise of a little concentration and discrimination, it would not be difficult, even in the most complicated case, for counsel and the court to frame a few questions for the jury to answer, fully covering the ultimate facts determinative of the issues. Application of the law to facts is a judicial and not a jury function, and that prolific source of procedural error, the essay on law called instructions to the jury, would be eliminated. The district court could test the integrity of the findings by the evidence. If satisfied with the findings, the court would apply the law. The soundness of the court’s view of the law could then be tested by appeal to this court. Until some such reform is instituted, we must continue to muddle through.
The judgment of the district court is affirmed.
Harvey, J., concurs in the judgment of affirmance. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one by the lumber company to foreclose a mechanic’s lien on land owned by the Brinkmeyers. Plaintiff recovered, and the landowners appeal.
Brinkmeyer let a contract to Hildebrand to remodel Brinkmeyer’s dwelling house. Hildebrand procured material of the lumber company. In the lumber company’s account was an item of three sacks of Portland cement, furnished to Hildebrand and used in the construction of steps to the front porch of the house. Building the steps was the last work done in performance of the contract. Brinkmeyer contended he furnished the cement, but that 'issue of fact was determined against him. If building'the steps was not within the scope of the contract the lien statement was filed too late.
The contract was oral, and was indefinite as to details, but included some drawings and some estimates for improvement of the house. While the work was in progress the plans were changed at the suggestion of both owner and contractor, and more than a year elapsed from the time the improvement was commenced to the time it was completed. Brinkmeyer testified the plans did not show steps leading to the front porch, and he had no conversation with Hildebrand with reference to building the steps; one day he discovered Hildebrand’s workmen engaged in constructing forms for the steps, and carried to them some material which they used in making side supports; but he had no conversation about building the steps. On the basis of this testimony Brinkmeyer requested the court to instruct the jury as follows:
“The time for the filing of a lien cannot be extended by furnishing material for the construction of any part which was not in the original contract, and which the owner does not demand as a condition of the completion of the contract. A mere request or wish that an act be done cannot be the foundation of the extension of the time for filing a lien.
“The jury is instructed that the time for filing a lien by a materialman cannot be extended by furnishing material or performing labor as a friendly act of accommodation, but such labor or material must have been furnished according to the original contract or according to an agreement properly entered into.”
The court refused to give the instructions, which were based on the opinion in the case of White Lumber Co. v. Fulton, Adm’r, 116 Kan. 694, 229 Pac. 363, and the refusal is assigned as error.
The action was not one in which a jury was demandable of right, and presumably the jury was called under the statute requiring the court to try the issues of fact, subject to power of the court to send specific issues to the jury. (R. S. 60-2903.) The extent to which the advice of the jury may be taken in such cases rests, of course, entirely with the court. The abstract does not show what issues of fact were submitted to the jury. The copy of the journal entry of judgment filed in this court in connection with the appeal shows special questions were submitted to the jury, which were answered, but does not show the questions and answers. The court was authorized to determine for itself whether the steps were constructed pursuant to the original contract, or as an extra, essential to completion of the improvement, or were constructéd pursuant to mere request or wish and as a friendly act of accommodation. Having determined the issue, the court could apply the law. If the issue of fact were submitted to the jury, the court could apply the law to the facts found, and the instructions were not necessary to enable the jury to find the facts. Unless the court submitted to the jury not merely the question of fact, but the legal question of lien as dependent on arrangement or lack of arrangement under which the steps were constructed, the instructions had no office to perform. So far as the abstract discloses, the instructions had no office to perform, and error in refusing them does not appear.
As indicated, Brinkmeyer testified the plans did not show steps leading to the front porch, and testified there was no talk with Hildebrand about building the steps. No testimony is abstracted except the testimony of Brinkmeyer and his wife. The lumber company, asserts, and the Brinkmeyers do not deny, that no transcript was made of any testimony except that of Brinkmeyer and his wife, although other witnesses testified. The lumber company asserts, and the Brinkmeyers do not deny, that there was conflicting evidence on every material question raised by their abstract or brief. It may be assumed the court believed the testimony relating to scope of the original contract and relating to conversations respecting building the porch steps which contradicted the testimony given by Brinkmeyer.
It is not contended the steps were not necessary to completion of the improvement. Mrs. Brinkmeyer testified that when the contractor and the workmen came to work on the house on October 5, she told them Brinkmeyer said he would rather they put in the steps instead of the framework. This testimony clearly indicates .that building the steps was understood to be part of the work on the uncompleted improvement, and Brinkmeyer desired it should be done before other work. Brinkmeyer does not deny telling his wife what she said he said. Besides that, Brinkmeyer testified on cross-examination as follows:
“They, Hildebrand and Summers, finished chimney about 4 o’clock. I was helping them. Then they put in the side walls for the steps, and I helped them. Some hard rock was broken up to be used in the steps, but no cement or rock was put in the steps that day. They .just put in the sustaining or retaining walls and cement over the top. of, them that day. I helped them on the steps, and I quit about 5 o’clock. I expected them back soon to finish the steps, did not figure on letting them leave those steps remain in that condition.”
This testimony is not found in Brinkmeyer’s partial abstract, but appears in the partial transcript. The contractor did return, and did finish the steps on October 20. Without debating the matter, it is manifest the court was privileged to regard the notion of voluntary work done by way of friendly accommodation as not worthy of serious consideration.
Brinkmeyer contends the court was not authorized to determine the issue of fact, but was obliged to submit the issue to the jury, no matter how great the conflict in the testimony. The contention is unsound, because the action was one to foreclose a lien, not to recover money or specific real or personal property. The court was not obliged to call a jury at all, or to submit any particular issue of fact to the jury which was called, and was not bound by the jury’s determination of any issue of fact submitted to it. (35 C. J. 164; Epp v. Hinton, 102 Kan. 435, 438, 170 Pac. 987; Annotations to R. S. 60-2903.)
At the beginning of the trial the Brinkmeyers amended their answer by inserting the following paragraph:
“3. Defendants allege that about September, 1925, or after, at the office of plaintiff in Hill City, Kan., the manager of the plaintiff company, L. J. Wolfe, said to O. L. Brinkmeyer, the defendant herein, pay to C. H. Hildebrand whatever amount or balance due to him on this contract, and that the said manager did not request the money to be paid to the said company, and said not to pay the company, but to pay Hildebrand.”
A demurrer was sustained to the amendment. At the hearing on the motion for new trial evidence was produced tending to sustain the allegations of the amendment. In support of a contention that the court erred in sustaining the demurrer, the following is quoted from 40 C. J. 325:
“A subcontractor or materialman is estopped to assert a lien where the owner has settled with the contractor, or made payments to the contractor or other subcontractors, in reliance upon the subcontractor’s or materialman’s receipt for the amount due him, his statement that he has been paid by the contractor, his representation that he will not look to the owner for payment of work performed or materials furnished, or his direction, authorization, or expressed desire that payment be made to the contractor.”
The quotation should be completed by adding the next sentence of the text:
“The estoppel created by the foregoing matters is coextensive with the amount of money paid by the owner in reliance thereon, . . .” (40 C. J. 326.)
In this instance, neither pleading nor proof disclosed that Brinkmeyer paid Hildebrand anything pursuant to the conversation with the lumber company’s manager. Estoppel may not be employed to secure advantage or to fortify gain. Its office is to protect from loss consequent on change of position in reliance on representation or other inducement, and the observations of the court in Jacquart v. Jennings, 118 Kan. 224, 235 Pac. 101, apply here:
“The defendants gave nothing; they lost nothing; they had everything, every right afterward that they had before the statements were made by the plaintiff. There is nothing on which to hang an estoppel.” (p. 227.)
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to recover from the Miami Farmers Mutual Fire Insurance Company and the Alliance Cooperative Insurance Company, a fire insurance company, for loss occasioned by fire. Judgment was rendered against both companies, and the Cooperative company appeals.
Smith held a policy issued by the Mutual company which expired November 5, 1925. He had left the policy with the company for safe-keeping. Before the policy expired Smith’s agent saw the secretary of the company, told the secretary he did not know when the policy expired, and told the secretary to look after it, and when it did expire to renew it. The secretary said he would do so. On January 1, 1926, the property covered by the policy was destroyed by fire. No written application for a new policy had been made or signed, no cash premium had been paid, no premium note had been given, no new policy in any form had been issued, and there was nothing on the records of the company indicating the property was insured when the fire occurred. On January 22, 1926, the Cooperative company entered into a contract with the Mutual company, whereby the Cooperative company agreed to reinsure all the business of the Mutual company shown on its records to be in force on the date the contract was executed. In the signed instrument as sets of the Mutual company were scheduled, estimated liabilities were stated to be $313.11, the net balance between assets and liabilities was stated, and the amount at risk was stated, all of which it was agreed were to be paid or turned over to the Cooperative company. The Cooperative company further agreed to take over the business of the Mutual company as described, add it to its own business, and care for it as if it had been originally written in the Cooperative company.
The action against the Mutual company was for violation of the secretary’s agreement to renew the old policy, and the action against the Cooperative company was on an alleged agreement to assume the liabilities of the Mutual company. The amount of the loss was $900, and was not contested. Oral evidence was introduced, over objection, relating to the negotiation of the contract between the two companies. The evidence was that the liabilities of the Mutual company were to be assumed by the Cooperative company, but the evidence relating to recognition of the Smith claim as a liability was conflicting beyond reconciliation. The secretary testified that, at a meeting of the board of directors of the company held January 22, it was unanimously voted to pay the Smith claim. Nobody else recalled such a vote, and the secretary was unable to produce the minutes of the meeting, although he claimed he had made a search for them. According to the testimony of the president of the company, the treasurer of the company, and a number of the directors, the subject was still under discussion and undetermined at the directors’ meeting held January 22. The contract containing the estimated liability of $313.11 was signed while that meeting was in progress. The secretary signed the contract for his company, and he said he knew what the instrument contained.
The secretary testified it was the custom of the company to issue renewals and collect for them later, and very often that was done without a written application having been made. The assistant secretary testified it was the custom, when a person desired to renew a policy, to go ahead and make, the renewal; and the assistant secretary said in such cases he wrote up the policies.
Both companies were organized and were operating under the statute relating to mutual fire insurance companies. One provision of the statute reads as follows:
“Every policy issued shall have attached thereto a printed copy of the note and application, also a printed copy of the by-laws and regulations of the company, which shall be signed by the president and secretaiy of the company and the insured, and shall become a part of the contract between the insurer and the insured.” (B. S. 40-441.)
No power to dispense with any of these requirements, whether by custom, by-law, or otherwise, existed.
The by-laws of the Mutual company contained the following provision:
“Sec. 11. The application for insurance must be in writing, upon forms furnished by the company, and signed by the applicant.
“The company in no event shall be liable until the application is approved and signed by the secretary. If the application be rejected, the premium and premium note shall be immediately returned to the applicant.”
When Smith requested his policy be renewed he was a member of. the company, and was charged with knowledge of' the by-laws. When his policy expired his membership in 'the company expired. He could not again be insured unless he signed an application and incurred the obligations of a member to pay -assessments and abide by the by-laws. Renewal policies issued by the secretary and assistant secretary on oral request were issued contrary to the bylaws, contrary to the statute, and were nugatory until completed as the by-laws and the statute required. If the secretary had performed his oral promise to Smith to issue a renewal policy according to the custom, the performance would have created no liability On the part of the company for the'loss which occurred,'and of neces^ sity, breach of the promise could not create an equivalent liability:
The assistant secretary testified he did not sign'applications for persons desiring to renew policies unless he was authorized by thé applicants to do so. Assuming Smith’s request that his policy 'be renewed at expiration was intended to confer on the; secretary authority to sign an application for Smith, and assuming an' application so signed would have been effective, the secretary was Smith’s agent to attach the signature, not the company’s agent'. The agent’s failure to act for his principal might make the hgent -liable to the principal, but the company could not be liable to Smith for the secretary’s inaction.
To sustain the judgment Smith cites the decision in the case of Insurance Co. v. Corbett, 69 Kan. 564, 77 Pac. 108, to the effect that; in the absence of a controlling by-law or agreement, a binding.contract of insurance with a mutual company may be consummated with out issuance of a policy. In that case there was a written application duly signed by the applicant. The application contained a clerical error in computation, and the applicant paid premium on the basis of the erroneous computation. The company did not reject the application, but retained it, kept the applicant’s money, and forwarded to the applicant for signature a corrected application and premium note. Before the error in computation was corrected and a policy was issued, loss occurred. In the opinion the court said:
“The conduct of the parties, including the retention of the plaintiff’s money by the company, together with the application, was sufficient to establish a contract, in the absence of a controlling provision of the by-laws or an agreement to the contrary. [Citation.] No such condition or agreement appears in the record, and the plaintiff was entitled to recover without any policy having been issued.” (p. 570.)
In this instance, the initial step in the creation of liability on the part of the company, a written application signed by the applicant and approved and signed by the secretary, was regulated by a controlling provision of the by-laws which appears in the record.
Other cases cited in Smith’s brief are equally inapposite. In the case of Insurance Co. v. Stone, 61 Kan. 48, 58 Pac. 986, formation of the insurance contract was not regulated by statute and by-law. The company was a stock company, an application was duly made and forwarded, and was not disapproved, and the premium was paid by the applicant and kept by the company. In the cases of Brown v. Insurance Co., 82 Kan. 442, 108 Pac. 824, and Wilson v. Insurance Co., 90 Kan. 355, 133 Pac. 715, the agreements for insurance were made with agents of stock companies having authority to contract and to issue policies, free from restriction imposed by statute or bylaw. No decision of this court has extended the law relating to liability of mutual fire insurance companies beyond the limits reached in the Corbett case.
In order to be of greatest service, small mutual companies must be free to conduct their business with as little formality as possible. Certain fundamental standards of prudence established by universal experience must be observed, however, or the ends to be accomplished are certain to be defeated. The statutory regulations are as simple as they can be made, consistent with safety. A practice of making mutual relations and obligations of association and member,. and conduct of the association’s financial affairs for the protection and benefit of all the members, depend entirely on a street conversation, is not consistent with safety. The policy of the statute is definitely against purely oral contracts of insurance. The plaintiff’s cause of action is not based on so substantial a thing as an oral contract of insurance. It rests on an oral contract to effect insurance in the future. The. contract was not negotiated by the company or by anyone having power to bind it, and the Smith loss did not constitute a liability of the Mutual company.
Conceding, but not deciding, that the Cooperative company could, under the law, assume accrued liabilities of the Mutual company and did so, the Smith loss was not assumed, because it was not a liability. The vote taken by the board of directors at the meeting testified to by the secretary was on the question whether the company should “pay the loss or reject it.” Whether the company was liable was a qúestion which was not affected by a vote either to pay or to reject. Whether the estimate of liabilities stated in the contract was correct or incorrect, the contract was in writing. It fixed the obligation of the Cooperative company, and it cannot be construed to cover anything not a liability of the Mutual company.
The judgment of the district court is reversed, and the cause is remanded with direction to enter judgment in favor of the Cooperative company. | [
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The opinion of the court was delivered by
Marshall, J.:
On December 6,1926, the plaintiff commenced this action against the American Title and Trust Company, a corporation, to procure the appointment of a receiver to take charge of the assets of the corporation. A receiver was appointed on that day. On December 9,1926, by permission of court Roy L. Bone, as bank commissioner of the state of Kansas, filed an intervening petition in which he asked that the receiver appointed by the court be directed to deliver to the bank commissioner or to a receiver to be appointed by the bank commissioner all the assets and effects of the trust company. The prayer of the bank commissioner was denied on December 9,1926, and the bank commissioner at once appealed.
On December 27,1926, after the appeal had been taken, the plain-tiff filed an amended petition making the bank commissioner and the deputy bank commissioner parties defendant. To the amended petition, the bank commissioner filed a long answer. A large number of intervening petitions were filed by creditors, asserting claims against the estate of the trust company. Those claims have been adjudicated. All the assets of the company have been converted into cash and distributed under the orders of the court. . The receiver has reported, his report has been approved, and he has been discharged.
The bank commissioner says:
“This is a case which clearly involves the jurisdiction and powers of the district court in comparison with the powers granted by statute to the bank commissioner of the state of Kansas in the appointment of receivers for insolvent banks.
“The principal question in the case at bar, which appellant desires the supreme court to decide, is that involving the seeming controversy as to the jurisdiction of the district courts and the bank commissioner as to insolvent banks or banks for which a receiver is deemed necessary.”
The plaintiff says that all questions involved in this action have become moot, and—
“That the appeal should be dismissed without undertaking a consideration of the interesting but useless questions raised by the bank commissioner. Those questions are too important to be decided in a case where their decision is unnecessary. Sometime a case will arise where such questions are timely brought before this court and can be presented with precision and thoroughness. That time is not now. The belated attention to his appeal on the part of the bank commissioner and his acquiescence in all of the proceedings and the closing of the estate makes that a moot question.”
The action was first set for hearing in this court in July, 1927. It was then continued until in October, 1927, when it was again continued until February, 1928. This court cannot at this time make any order or render any judgment that will have any effect on this litigation or on the rights of any of the parties. For that reason, the appeal should be dismissed. (Beatty v. Doughty, 108 Kan. 552, 196 Pac. 432; Cromb v. Cole, 114 Kan. 171, 216 Pac. 1098; Clewell v. School District, 115 Kan. 176, 222 Pac. 74; Christ v. Fischer, 118 Kan. 586, 235 Pac. 841.) A number of other cases to the same effect might be cited.
The 'appeal is dismissed. | [
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The opinion of the court was delivered by
Hopkins, J.:
A motion and amended motion for rehearing have been filed by plaintiff. The principal questions discussed were disposed of in the original opinion. (124 Kan. 584, 261 Pac. 603.) It is, however, strongly argued that the insured was still an employee, of the railroad company at the effective date of the insurance (May 16,1924) by virtue of the fact that he was in a hospital selected by the railroad company and was being attended by the company’s physician; also, that the plaintiff after May 16,1924, and during the insured’s illness and while in the hospital, was granted free transportation, which is ordinarily issued to wives or. families of employees. We have given the matter most careful consideration, but are of the opinion that the clause of the contract between the parties which specified that “all employees of the employer who are actively at work and who have completed six months’ service shall be eligible for the insurance under this policy,” is controlling. It is perfectly apparent that it was not the intention of the insurance company in the first instance, nor in the second instance when additional insurance was being issued, that insurance should be issued to incapacitated workmen. What it did intend in both instances was that the insurance should be issued to those employees of the railroad company “actively at work.”
Attention is directed to section 6 of the group insurance instrument which provided that “layoff or leave of absence of six months or less should not be considered, and retirement on pension should not be considered termination of employment within the meaning of the policy.” Clearly this clause applied to those policies of insurance which were already effective. That is to say, if the insured had continued actively at work for the railroad company to and beyond the date when the new policy was to go into effect, his layoff would not be considered a termination of his employment. The difficulty in the instant case is that the additional insurance never became effective. We have given careful consideration to all elements of plaintiff’s claim, but, because of the terms of the contract, are unable to change the decision already made.
A rehearing would serve no useful purpose, and must therefore be denied. It is so ordered. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to foreclose a chattel mortgage and to recover from J. J. Ludlum the value of a portion of the mortgaged property which he had converted. Plaintiffs prevailed, and Ludlum appeals.
The Price Oil, Gas and Refining Company was a domestic corporation, whose charter was forfeited on December 3, 1919. The directors, who became trustees for creditors and stockholders of the corporation, were O. M. Franklin, A. L. Price, R. Y. Christian, J. T. Botkin, F. S. Schoenleber, C. E. Botkin and E. A. Cornell. The trustees selected A. L. Price to take charge of and manage the business of closing up the corporate affairs. Price acted under the name “Price Oil Co.” Using the name “A. L. Price, Trustee, doing business in the name of the Price Oil Co.,” Price sold an oil and gas lease which had been the property of the corporation to Byington and Jennings. The sale included a well, casing in the well, oil tanks, operating machinery, other equipment on the leased land, and a two-inch pipe line. In part payment of the price, Byington and Jennings gave a note for $4,000 and a chattel mortgage securing the note to “Price Oil Co.” The chattel mortgage described the land, and covered all material, supplies, and other things of value then on the lease, and all property and improvements which might be added. The mortgage was filed for record on November 16, 1920, and possession was given to Byington and Jennings, who operated the leasehold for a time, but failed to pay the note.
In August, 1921, Ludlum commenced an action to recover for labor performed on the lease, against “Price Oil Co., a corporation.” An attachment was levied on a portion of the mortgaged property, service was made by publication, judgment was taken by default, and the attached property was sold to Ludlum, who removed it. These proceedings were taken without the knowledge of Price, who had sole charge of the affairs of the defunct corporation, and neither Price nor the trustees appeared in the action. Price testified he did not employ Ludlum, and never saw him until the day of the trial of the present action.
Ludlum set up the proceedings in the attachment action in his answer in the foreclosure suit. Plaintiffs contended they were void. The record in the attachment action disclosed that the action was one against “Price Oil Co., a corporation.” The petition alleged the corporation was a nonresident of the state of Kansas. The affidavit for publication service stated that the Price Oil Company was a nonresident corporation whose residence was not known to plaintiff after diligent inquiry to learn its place of residence. The publication notice and all other proceedings were directed against the “Price Oil Co., a corporation.” The directors of the Price Oil, Gas and Refining Company, except two, lived in Kansas, and A. L. Price resided •in Wichita.
The case was tried before Honorable R. E. Cullison, judge of the district court of Allen county, who resigned before rendering a decision. The case was then submitted by agreement to the court, Judge Cullison’s successor presiding, on the record as it stood at the close of the first trial, without privilege of either party to offer additional evidence. The court found the issues in favor of plaintiffs, found that Ludlum wrongfully converted the property seized and sold under attachment, and rendered judgment against Ludlum for its value.
The proceedings in the attachment suit were void as against plaintiffs, who were neither sued nor served with process. There was no corporation bearing the name “Price Oil Co.” The name “Price Oil Co.” was one chosen by the trustee managing the affairs of the directors of the defunct Price Oil, Gas and Refining Company. Doubtless the trustees might have been sued in the name which they permitted their manager to assume in transacting their business, and service might have been made on him, but that was not done. The defendant was specifically described in the proceedings in the attachment suit as a corporation, and an examination of the proceedings, had Price known of them before judgment, would have disclosed not only that the defendant was a corporation, but was a nonresident corporation. An immaterial variance in the name of a defendant, whether a person or a corporation, is of no consequence. A mistake may be corrected by amendment or waived by appearance. (Butter Tub Co. v. National Bank, 115 Kan. 63, 222 Pac. 754; Braymer Mfg. Co. v. Midwest & G. Oil Corporation, 118 Kan. 439, 235 Pac. 847.) When a defendant in an action is described, and is served with process in terms which identify one person or corporation, the proceeding will not bind a different person or entity not served.
“It is well settled that a misnomer, in the case of a corporation, must be pleaded in abatement as well as in the case of a natural person. But, even in the case of a natural person, when the name of a defendant is mistaken, and he is sued by a name varying materially from his true name, the process will not warrant any proceedings against him; and if he be arrested, the officer will be a trespasser. [Citations.]
“And when a corporation is sued, if the name of the corporation is mistaken, materially and substantially, the corporation cannot be affected by the proceedings. There is in these cases a distinction made between a variance in words and syllables only, and a variance in substance. If a corporation be sued by a name varying only in words and syllables, and not in substance, from the true name, the misnomer must be pleaded in abatement; otherwise it will not be regarded. But if the name be mistaken in substance, the suit cannot be regarded as against the corporation. This seems to us to be the law, as established by adjudged cases. [Citations.]” (Burnham v. Bank, 5 N. H. 446, 449.)
In the case of Whitney v. Masemore, 75 Kan. 522, 89 Pac. 914, it was held that a publication notice must so clearly identify the defendant that persons reading the notice will know for whom it was intended, and a notice which does not convey this information does not confer jurisdiction.
In the case of Maher and Mason v. Interstate Switch Company, 58 Kan. 817 (for opinion see 51 Pac. 286), it was held that “Interstate Switch Company,” a Missouri corporation, was not a defendant in an action against “The Interstate Switch Company,” a Kansas corporation.
In the case of Loan Co. v. Essex, 66 Kan. 100, 71 Pac. 268, the syllabus reads:
“A default judgment rendered upon publication service against the ‘Farmers’ Loan and Trust Company,’ purporting to bar the lien of a mortgage assigned of record to the ‘Farmers’ Loan and Trust Company, Trustee,’ is not binding on the ‘Farmers’ Loan and Trust Company, Trustee.’ ”
In this instance, on August 27, 1921, five days after Ludlum’s petition was filed, the secretary of state advised Ludlum’s attorney by letter that there was no record in the office of the secretary of state of “Price Oil Co.,” either as a foreign or domestic corporation. Having filed a petition against nobody, Ludlum proceeded to serve a nonentity by publication, and judgment was taken against it by default. Property belonging to Byington and Jennings was attached as belonging to it, and was sold to Ludlum to satisfy a debt which Price testified he .did not contract. Nobody appeared on behalf of the present plaintiffs, and in this action Ludlum pleaded his judgment. A judgment which is a nullity may be questioned whenever it is set up as a binding adjudication, and the result is, the lien of the recorded chattel mortgage was not affected.
It is contended the chattel mortgage was void for indefiniteness of description of property. The mortgage covered everything of value owned by the mortgagors on a definitely described oil and gas mining lease. The attached property was part of the mining equipment of the leasehold and, according to the decisions cited by Ludlum (Souders v. Voorhees, 36 Kan. 138, 12 Pac. 526; Ehrke v. Tucker, 99 Kan. 52, 160 Pac. 985), the description, aided by inquiries which it suggested, furnished a reasonable basis for identification.
The chattel mortgage was valid as against Ludlum at the time of the conversion. The action was not one to recover property sold on condition. The right of plaintiffs to proceed against Ludlum for conversion was determined early in the history of the case by rulings on demurrers to the petition, from which no appeal was taken. When the parties finally submitted the case, they agreed they would stand on the evidence transcribed, and Ludlum may not now complain of the rejection of evidence at the first trial. Ludlum contested plaintiffs’ right to the property involved, made no offer to return it, did not ask privilege to return it, and consequently cannot complain of the judgment against him for its value. Plaintiffs do not admit, as Ludlum asserts, that they owe him; on the contrary, they assert Price did not employ him, and they are not indebted to him. Contrary to Ludlum’s contention, the judgment against him is neither erroneous nor unjust.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This action presents the question whether the bulk sales law (R. S. 58-101 et seq.) applies in the circumstances disclosed by the record.
The facts are substantially these: J. R. Walton was the owner of a building in Coffeyville equipped with counters, wall fixtures and shelving, and having a gasoline pump and air stands in front, used as an automobile garage. He also had a number of articles in the building spoken of as “equipment,” consisting largely of tools, appliances and devices used in connection with the garage business, and seven used automobiles spoken of as “rental cars.” On August 19, 1925, he entered into a written contract with B. L. Bressie and L. L. Stevens by which he sold to them the equipment and used automobiles above mentioned, and leased to them the building for a term of five years at a monthly rental of $225. There was executed between the parties an instrument called a “chattel mortgage and lease,” which recited the sale of the equipment and used automobiles for $3,449.17, of which $2,000 was paid in cash and the balance, with interest thereon, was to be paid in three installments. It also provided for the lease and payment of rents, and specifically provided that Walton had a lien upon the property sold for the unpaid portion of the purchase,price and for the rents, and the buyers and lessees were to ke'ep the gas and air stands in good repair at their expense. It contained the provision, usual in chattel mortgages, that on condition broken, or if Walton should deem himself insecure, he might take possession of the property covered by the lien and sell the same at public or private sale. This chattel mortgage and lease was promptly recorded in the office of the register of deeds. Bressie and Stevens took possession of the building and the property sold. ' Later they paid the balance due, $1,449.17, and the automobiles named in the instrument were released from the lien. Later, B. L. Bressie sold his business to his partner, L. L. Stevens, who thereafter conducted the business under the name of The Stevens Motor Company. It is not contended, however, that the bulk sales law applied to this sale, for it does not apply to a sale of the interest of one partner in a business to the other. (Schoeppel v. Pfannensteil, 122 Kan. 630, 253 Pac. 567. This case is cited and the doctrine approved by the supreme court of Iowa in The Peterson Co. v. Freeburn, 215 N. W. 746.) On April 13, 1926, Stevens advised Walton that he could no longer pay the rent on the building nor the damages to the gas pump. Walton then informed Stevens that he deemed himself insecure, and demanded possession of the equipment sold and of the leased premises, under the terms of his chattel mortgage and lease. Walton took possession thereof, and, in accordance with the provisions of the chattel mortgage and lease, which authorized him to sell the same at public or private sale, he did sell them to the defendant, Ed Strawn, and Strawn went into possession thereof.
The action was by plaintiff against Bressie and Stevens (Stevens was not served with summons), and also against Walton and Strawn, for the price of the two radios sold by plaintiff to Bressie and Stevens November 25, 1925, and January 8, 1926, seeking to hold them for the direct liability as purchasers, and seeking to hold Walton and Strawn under the provisions of the bulk sales act. No notice was given creditors of the taking of possession of the property by Walton under the terms of the chattel mortgage and lease, nor of his sale thereof to Strawn. There was a trial to the court. Judgment was rendered for plaintiff. Walton and Strawn have appealed.
Appellants contend that the judgment is contrary to law. The contention is well taken. It might very well be held under the evidence in this case that the garage business as conducted, or rather that the things in the garage, did not constitute a “stock of merchandise” within the meaning of R. S. 58-101, following the reasoning in National Bank v. Hannaman, 115 Kan. 370, 223 Pac. 478 (see 40 C. J. 635). But passing that point, Is the claim of plaintiff under the bulk sales law superior to that of Walton under his mortgage? This chattel mortgage correctly described each article constituting the “equipment” and gave Walton a specific lien thereon, not only for the balance of the purchase price of the equipment and automobiles sold, but for the sums to be paid Walton under the other covenants of the instrument, which were the payments of rent for the full term of the lease and what proved to be the injury and damage to the gas and air stands. In April, 1926, Walton was justified in deeming himself insecure, not only for the $540 damage to the gas and air stands which Stevens was unable to pay, but because Stevens then announced to him that he would be unable to pay rents in the future. We see no reason, why the rights accruing to plaintiff under the bulk sales law should be superior to those of Walton under this chattel mortgage. In Gorman v. Hellberg, 190 Ia. 728, a stock of merchandise turned over by the lessee to his landlord on a lien “for rent accrued and to accrue” was held not to be in violation of the bulk sales law. Generally, the lien of a chattel mortgage, when the statutory conditions with respect to execution, delivery, filing or recording are complied with, is superior to liens subsequently acquired. (See 11 C. J. 647, 651.) The bulk sales law is primarily designed for the benefit of creditors of merchants and to prevent transfers fraudulent as to them. The mortgage to Walton covering the specific equipment involved, of record months before the indebtedness to plaintiff, of which mortgage the plaintiff had notice at the time the indebtedness was created, cannot well be said to have been given in fraud of plaintiff. No authority is cited supporting the view that the rights of plaintiff under the bulk sales law would be superior to the rights of Walton under his mortgage. Since Walton had a valid mortgage on the equipment, the taking possession of the mortgaged property under the terms of the mortgage and selling it do not constitute a sale in violation of the bulk sales law. That law does not apply to sales made under judicial process (R. S. 58-104), and should not apply to a sale by a mortgagee under the provisions of a prior mortgage. The facts in this case differ from those in Bank v. Davis, 103 Kan. 672, 175 Pac. 972, for there the chattel mortgage, in the form of a bill of sale, was given by the merchant on his stock of merchandise, and the grantee or mortgagee was placed in possession of the property. The controversy there was between the grantee in this bill of sale and a then existing creditor of the merchant.
The judgment of the court below will be reversed, with directions to render judgment for defendants Walton and Strawn. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one for damages for personal injury. Plaintiff recovered, and defendant appeals.
Plaintiff was employed as a light repair man in defendant’s terminal yards in Kansas City, and worked from midnight until 8 o’clock in the morning. While at work on the morning of September 11,1925, plaintiff was directed by his foreman to procure a simplex knuckle to replace a broken knuckle on a car. Plaintiff started for a tool rack in which repair supplies were kept. To reach the tool rack it was necessary for him to cross track 86, running east and west, and the northernmost track in that vicinity. Track 86 was occupied at the time by an interstate green-fruit extra train consisting of ninety-three refrigerator cars and a caboose. Plaintiff was obliged to go through that train to get to the tool rack. The petition alleged, and plaintiff testified, that when he arrived at the tool rack he found no simplex knuckle, and it was necessary for him to look further. The petition alleged, and plaintiff testified, that he left the tool rack, started eastward, and walked on a cinder path on the north side of track 86, toward another depository of repair supplies. The cinder path was about eighteen or twenty inches from the track. He testified that while he was at the tool rack the green-fruit extra commenced to move eastward. As he walked beside it it increased its speed, and he was about ten or twelve or eighteen inches from the train. The petition gave the following account of the accident:
“While he was walking along beside said train some object protruding from one of the cars of said train, a better description of which the plaintiff cannot give, struck the plaintiff in the back between the shoulders and the waist, and knocked him down and felled him to the ground, and in falling he was thrown under the wheels of said train of cars and his right leg was thrown across the rails of the track, and said train ran over the plaintiff’s right leg.
The petition also, contained the following paragraph:
“The defendant and the defendant’s agents, servants and employees were negligent in the matters and things set out herein, in failing to give the plaintiff a reasonably safe place in which to do his work; in starting said train out with a oar or cars therein with protruding pieces extending outward therefrom; in operating said train through said yards with protruding pieces extending out from a car thereof; in operating said train through said yards with a car which was wider or which occupied a greater width of track than the ordinary car; in operating said train through said yards with a car which required more than the ordinary space in which to be moved; in operating said train through said yards without warning the plaintiff, who was lawfully walking through the yards, of any unusual or extraordinary conditions attending the movement of said train; and in moving said train through said yards over said track with a car which either was equipped with defective, loose or projecting doors, or loaded with merchandise which protruded beyond the sides thereof, or which contained either projecting members or projecting objects; in operating said freight train through said yards at said time in the dark with a projection of any kind protruding out from the side thereof in such a way that it would strike the plaintiff, who was walking through said yards, and knock him down and cast him under the wheels. The plaintiff had no knowledge of the makeup of said train or of the fact that there was any projection of any kind extending outward therefrom, but the defendant and its agents, servants and other employees in charge of said train and of its inspection knew, or by the exercise of ordinary care and prudence could and should have known thereof.”
Plaintiff testified that when he came to the train on his way to the tool rack the train was standing still, there were blue lights on the engine indicating the train would not be moved, and he climbed over the coupling between two cars. When he left the tool rack, the train had been in motion several minutes, and as he walked along something happened:
“Something from the train struck me in.the back and caused me to fall forward towards the east. This thing struck me between the waistline and my shoulders on the right side, the side nearest' to the train. It hurt my back. I fell face forward. A car wheel ran over my right foot. ... I should judge I had walked about 35 or 40 feet east of the tool rack when I got struck and knocked down and knocked under the train. . . . This was some time after five o’clock. ... I was struck in the back by the train.' I don’t know what part of the train struck me. . . . Something that stood out past the cars hit me. I do not know what it' was. The train kept going on after it hit me. ... I don’t know what it was that hit me. ... I did not see the thing that struck me. If I had I would have got out of the way. I did not see it after it struck me. . . . The train was the only thing around that I saw that was in motion.”
. In giving reasons for believing something on the train or the heavy train struck him, plaintiff said it was because of the sudden jar. The foregoing is all the evidence of facts relating to cause of injury which was introduced. Defendant demurred to plaintiff's evidence, and the demurrer was overruled.
When plaintiff testified something from the train struck him, he was struck by the train, and something that stood out past the cars hit him, he was not testifying to facts. He was stating the result of his own mental processes, and what he thought, when it was stated, conveyed no information whatever relating to the cause of his injury. The only facts relating to cause of injury testified to by plaintiff were that he was struck in the back while he was walking beside the moving train, which was the only thing he saw, felt a sudden jar, was knocked down, and a car wheel ran over his foot.
The action was prosecuted under the federal employers’ liability act. The question of liability of the defendant must be determined by federal law, and this is true to the extent that, on review of a judgment of a state court, the federal supreme court will examine the record for itself to ascertain the sufficiency of the evidence to support a finding of actionable negligence. (C. M. & St. P. Ry. v. Coogan, 271 U. S. 472.)
The following principles applicable to cases arising under the federal employers’ liability act have been enunciated by the supreme court of the United States: In case of accident to an employee, he must prove not only the cause which operated to produce the injury, but also some negligent act or omission of the employer in which the cause of injury originated. ■ The fact of accident does not warrant an inference of negligence. Negligence is an affirmative fact which must be established by evidence. When the evidence leaves cause of injury in doubt, and any one of several things may have been the cause, the jury may not choose one of them by guess, and find negligence without a satisfactory basis for the conclusion. With the presumption that the injured employee used due care goes the correlative presumption that the employer used due care. This presumption must be overcome by evidence. When circumstantial evidence is relied on to prove a fact, the circumstances must be proved.' The circumstances must not themselves be presumed, and one presumption cannot be built upon another. (Patton v. Texas and Pacific Railway Co., 179 U. S. 658; Looney v. Metropolitan Railroad Co., 200 U. S. 480; Chi., Rock Isld. & Pac. Ry. v. Bond, 240 U. S. 449; New Orleans & N. E. R. R. Co. v. Hands, 247 U. S. 367, 371; C. M. & St. P. Ry. v. Coogan, 271 U. S. 472.)
The principles enunciated in the cited cases have been applied in numerous decisions by United States circuit courts of appeal and United States district courts. The case of Missouri, K. & T. Ry. Co. v. Foreman, 174 Fed. 377, decided by the circuit court of appeals, eighth circuit, is instructive. One of the headnotes states the facts:
“A freight train on defendant’s railroad broke in two by the pulling out of a drawhead of the ear next the engine, which was stopped about ten feet from the car while the engineer, plaintiff’s intestate, who was conductor, and a brakeman, were making a temporary attachment. While so at work, the engine moved back,'and deceased was caught between it and the car and killed. Plaintiffs alleged two acts of negligence on the part of defendant: A defective
air brake, which permitted the engine to move; and a leaky throttle. But it appeared that the engine moved upgrade, and it was not shown that the lever was so set that it would move backward if started by the steam. The fireman was on the engine. Held, that in the absence of some evidence to show what in fact caused the engine to move, and that it was due to some act of negligence on the part of defendant, it could not be held liable.” (p. 378.)
In respect to the subject of leaky throttle, the opinion by Pollock, district judge, reads:
“Again, it is true, there is evidence in the record that the engine in question on the day of the accident leaked steam at the throttle; but the extent of such leakage is not shown, more than that the engine moved. It is argued, however, from these premises, as the engine did leak steam at the throttle, and as it did move backward, it will be presumed the engine must have leaked steam to such an extent as to show the railway company negligent or it would not have moved backward. This, however, is simply reasoning in a circle without established premises or necessarily correct conclusion, and for this reason: The presumption is that defendant furnished an engine reasonably suitable for the work to be performed by it, with appliances in a reasonably safe condition for use; that is to say, it was not negligent in this regard. This presumption must be overcome by evidence before a recovery can be had on this ground.
“Again, the process of reasoning here employed is faulty and illogical, in that it bases the presumption of negligence on a presumption and not on an admitted or established fact; whereas, a presumption of fact must be based on a known or established fact, and can never be founded on another presumption. [Citations.] In Douglas v. Mitchell’s Ex’rs, 35 Pa. 443, Mr. Justice Thompson stated the rule as follows:
“ ‘As proof of a fact the law permits inferences from other facts, but does not allow presumptions of fact from presumptions. A fact being established, other facts may be, and often are, ascertained by just inferences. Not so with a mere presumption of fact. No presumption can with safety be drawn from a presumption; there being no fixed or ascertained fact from which an inference of fact might be drawn, none is drawn.’ ” (p. 383.)
The term “presumption” is here used, as in other federal court opinions, in the sense of “inference.” The «ase differs from this case in this particular: In the Foreman case there was direct evidence of a somewhat faulty condition of the engine which was proposed as a basis for inference, in addition to the facts that the engine moved and the conductor was killed. The engine leaked steam at the •throttle. In this case, there is no evidence that anything was wrong with the green-fruit extra.
The case of Smith v. Pennsylvania R. Co., 239 Fed. 103, decided by the circuit court of appeals, second circuit, is as nearly identical in essential facts with the case under decision as two cases could well be. One of the headnotes states the facts:
“Plaintiff, a bralceman in defendant’s employ, while walking-between two tracks to reach the cars on which he was working, was passed by another train and struck and injured by some object which he thought felt like iron. -There was no showing that anything projected from the passing train, although it was contended that firemen frequently allowed hooks used in raking the fire to extend over the side, and that under the doctrine of res ipsa loquitur the burden of explaining the injury was upon defendant. Held, that, as the presumption which the jury may make cannot serve as the foundation for another presumption, and .as trains frequently catch and throw heavy objects which may injure those in proximity, plaintiff’s showing was not enough to take the case to the jury.” (p. 103.)
In the opinion the court dealt with the doctrine of res ipsa loquitur as if it were necessary to do so, citing the case of San Juan Light Co. v. Requena, 224 U. S. 89, and Sweeney v. Erving, 228 U. S. 233. Neither of those cases was one between employer and employee, and the decisions in the cases of Patton v. Texas and Pacific Railway Co., 179 U. S. 658, and Looney v. Metropolitan Railroad Co., 200 U. S. 480, and numerous federal cases applying those decisions, were overlooked. Erroneously assuming that the doctrine of res ipsa loquitur was pertinent, the court nevertheless disposed of the case as follows:
“Before, however, any defendant is called upon to explain how (e. g.) an injury was received, there must be facts proved affirmatively showing a surrounding situation which in ordinary course would not permit or produce injury, and also that something under defendant’s control did notwithstanding inflict the injury complained of. With proof in this shape, the jury may infer negligence from the occurrence of injury.
“The plaintiff’s difficulty in this case is that there is no' proof that any definitely indicated thing wrought the injury, nor that the circumstances rendering it possible for the injuring thing suggested (i. e., the rake hook) to reach or touch him existed at the time and place of damage.” (Smith v. Pennsylvania R. Co., 239 Fed. 103, 104.)
In the Smith case a specific thing which did sometimes stand out from a passing train was proposed as a basis for inference. In this case there was no evidence that anything stood out from the train, and plaintiff could not make out a case without building inference upon inference.
In this instance cause of injury was placed in the realm of speculation and conjecture by the petition. The petition alleged defendant was negligent in that the train contained a wide car, and defendant failed to warn plaintiff of any unusual or extraordinary condition attending movement of the train. Plaintiff testified the train struck him. It is not likely plaintiff meant the train jumped sidewise across ten or .twelve or eighteen inches of space, struck him in the back, and then moved on. .If he meant a wide car struck him, the guess at cause of injury was as good as any other proposed; but it could not take the case to the jury. There was no testimony that some refrigerator cars are not of standard width. If there are refrigerator cars of extra width, there was no evidence that the train did contain one. If the train did contain one, there was no testimony that presence of such a car in a train is unusual, or creates such extraordinary danger that it becomes necessary for the Santa Fe, when transporting such a car, to warn all yardmen between California and Chicago that the car is coming, so they will not walk too close to the track. Perhaps considerations such as these led the court to take from the jury the wide-car theory of the petition and the evidence, and limit the field of speculation concerning cause of injury to an object protruding from one of the cars. The jury’s conjectures upon that subject are shown by special findings of facts, which read as follows:
“Q. 3. If you answer question No. 1 [relating to inspection] ‘Yes,’ was any object protruding from the north side of the train when the inspection was made? A. The tifne it took to inspect the train a projection could have been overlooked.
“Q. 4. Was plaintiff’s injury caused by some object which protruded from the side of the train? A. There must have been.”
In cases of this character, the authority of the federal courts extends not merely to interpretation of the federal employers’ liability act, but to application of the common law as interpreted by the federal courts. (C. M. & St. P. Ry. Co. v. Coogan, 271 U. S. 472, 474.) Under the law as interpreted by the federal courts, the demurrer to the evidence should have been sustained, and it remains to inquire whether the defect in the evidence was supplied by testimony introduced after the ruling on the demurrer.
Defendant’s testimony was that Hayes, a switchman, riding on the footboard of a switch engine operating on a track south of track 86, heard plaintiff’s groans, and gave the engineer a violent stop signal. The switch engine stopped. Hays, and Beil, another switchman who was on the footboard of the switch engine,- went over the top of the moving green-fruit extra, and went to the place where plaintiff was lying. Beil took measures to stop the flow of blood. L. N. Thomas, the night yard foreman, came up, and others came up. Plaintiff was placed on a stretcher, and was carried a short distance to the space between the yard office building and the foreman’s office. Plaintiff remained there until a way car could be brought up, in which he was removed to a hospital. While plaintiff was lying on the stretcher waiting for the way car to come, a number of persons gathered about him. Mr. Thomas, the responsible agent of the company having charge of the men in the yards, of inspection, and of getting trains in and out of the yards, asked plaintiff how the accident happened — was he crawling under'or crawling through? Plaintiff said no, he had already got through, and he slipped and fell. Á. A. Téegarden, the day foreman, who began work at six in the morning, arrived, and went to the stretcher. He testified he heard Mr. Thomas ask plaintiff what he was doing, and plaintiff answered that he was going through between after a knuckle, and slipped. Fred Fowler, a car inspector, was present at the time, and testified as follows:
“After I and the other man carried Mr. Salisbury east to where the yard office was, I heard a conversation between him and Mr. Thomas as to how this accident occurred. Mr. Thomas asked him how it happened, and was he crawling through the train or crawling under, and Mr. Salisbury said he had already crawled through, and slipped and fell down, and iried to roll away from the train, and in rolling away he had got his foot under it.”
Will Farris, another car inspector, testified as follows:
“There was a man, a Mr. Beil, I believe it was, had a rod, and he was twisting it around his leg to stop the blood when I got there. They lifted him on the stretcher, and I helped carry him down between the yard office and our foreman’s office. I heard Mr. Thomas ask him how he got that done, and he said he slipped and went down, and when he rolled out of the way it ran over his foot.”
On Monday following the accident, F. D. Sudduth, the night foreman, visited plaintiff at the hospital. Plaintiff was one of Sudduth’s men, and Sudduth called at the hospital to see how he was getting along. Sudduth seemingly had the instinctive human interest which Thomas and all the men working in the midst of the hazards of the yards naturally would have, and he asked plaintiff how the accident happened. Sudduth testified as follows:
“I said, ‘Salisbury, how did it happen.?’ I said, ‘Were you crawling through— climbing through the train?’ He said, ‘I was already through.’ He said, ‘My foot slipped and I started to fall. When I started to fall I heard the train, and I tried to roll out of the way, and I rolled under the wheel.’ ”
One of defendant’s physicians and surgeons, Dr. D. E. Clopper, was called to treat plaintiff, and amputated plaintiff’s right leg about four inches above the ankle. 'Doctor Clopper testified plaintiff made no complaint to him of any injury to his side or back.
There is no hospital record of any injury to plaintiff’s side or back, or of any treatment of such an injury. The hospital record, introduced by plaintiff in rebuttal, shows a routine alcohol rub after the morning bath, shows a second alcohol rub about 6:30 in the evening of each day, and shows an alcohol rub at midnight of the second day. Doctor Clopper testified, on cross-examination by plaintiff, as follows:
“Q. If a man had two or three alcohol rubs a day to his back, it would indicate he had some involvement somehow to the tissues of his back, wouldn’t it? A. It would certainly indicate he had some trouble.”
The hospital record, however, contains nothing to indicate that plaintiff’s back was ever given an alcohol rub,. as a distinct or specially affected portion of his body; and if at any time during the twenty-nine days plaintiff was in the hospital he complained of his side or back, or his side or back were treated locally, the fact did not get on the hospital chart which showed his condition and what was done for him, hour by hour.
The cars of the green-fruit extra were loaded with oranges and grapes. Such trains are designated “Red Ball Freight,” have preference over other freight trains, and “go right on through.” When 'the train was made up it was inspected by two inspectors, one of whom inspected the south side, and the other, Will Farris, inspected the north side. Farris commenced his inspection at the caboose at the west end of the train, and ended at the engine at the east end of the train. Doors were closed and locked, nothing was loose or hanging down, and nothing was protruding from the north side of the train. Very soon after the inspection was completed the train was put in motion and proceeded on its way to its destination.
F. J. Grandstaff was conductor of the green-fruit extra. When he came out of the yard office to take his run, he saw plaintiff, went to him, and remained until the way car came by, which he boarded. He testified the train was inspected at Henrietta, the first stop of consequence east of Kansas City. He personally inspected the north side of the train. The doors were all closed, none of the door seals was broken, and nothing was hanging out which might strike anyone. Marceline is the end of the division. When the train arrived at Marceline it was inspected. Two nuts were missing, which did not cause anything to protrude from the car. There were no loose or unfastened doors, no loose grab-holds, no loose pin-lifters, and nothing protruded from the side of any of the cars.
Defendant’s evidence disclosed that the doors of refrigerator cars open by swinging outward, and in this respect differ from other cars, which have sliding doors. The probability that Farris could inspect the north side of the train without running into an open door himself, or without noticing an open door, is not a subject for this court to consider. Likewise an exercise in conjecture that perhaps a door was not locked and sealed as it should have been, or was locked and sealed as it should have been, and was thrown open by the starting of the train, is not one in which this court may indulge. The trouble with plaintiff’s case was, he did not have a scintilla of evidence that he was struck by an open door. All the evidence he had was that he was struck, and the jury cannot be left fancy free to base a finding of actionable negligence on that fact. It would be just as reasonable to infer that plaintiff was struck by a wide car, as the petition surmised, or by some appliance containing a latent defect which inspection would not disclose, and which was converted into a menace by the starting of the train, in which event defendant would not be liable.
Defendant’s witnesses were cross-examined with respect to coupling-pin lifters. If their evidence were to be believed, plaintiff could not have been injured by a pin lifter. The inspectors never saw a pin lifter projecting outward from the side of a car. If the evidence of the witnesses was discarded in whole or in part, there was no evidence that any pin lifter of the green-fruit extra was defective, or could by any possibility strike plaintiff, or did strike plaintiff.
Defendant’s inspectors described the manner in which the train was inspected. The jury found the inspection was not thorough, and because of that fact defendant was negligent. Whether the inspection was thorough is not now important. The purpose of inspection was stated to be to find things which ought to be fixed. Evidence of lack of thorough inspection merely suffices to charge the employer with notice of defects discoverable by proper inspection, in the thing which caused injury. What that thing was must be disclosed by proof, and so we get back to the state of ignorance from which we started. There was no evidence except fact of injury that anything was wrong with the green-fruit extra. In the case of Stepanovich v. Pittsburgh & Baltimore Coal Co., 218 Fed. 604, C. C. A., Third Circuit, the syllabus reads-:
“In an employee’s action for injuries, claimed to have been caused by the employer’s failure to provide a reasonably safe brake for use on a coal-pit car which he was required to handle, the happening of the accident was not proof of negligence on the part of the employer, and the burden was on the employee to prove.that the employer’s negligence caused the accident'.
“In an employee’s action for injuries, evidence as to the employer’s failure to inspect was not sufficient proof of negligence, in the absence of any showing that there was any defect in an appliance, since the purpose of an inspection is to discover defects, and the failure to make an inspection merely charges the employer with notice and knowledge of what due inspection would have shown.” (HIT 1,3.)
In the opinion it was said:
“The principle on which this case must be determined is laid down by the supreme court of the United States in Looney v. Metropolitan Co., 200 U. S. 486, 26 Sup. Ct. 305, 50 L. Ed. 564, where that court said:
“ ‘To hold a master responsible, a servant must show that the appliances and instrumentalities furnished were defective. A defect cannot be inferred from the mere fact of an injury. There must be some substantive proof of the negligence. Knowledge of the defect, or some omission of duty in regard to it, must be shown.’ ” (p. 605.)
After stating the evidence, the opinion proceeds:
“This comprises the entire testimony of the plaintiff as to the accident. It shows the brake handle did not catch in the notches and went to the full limit of the keeper, and that by reason thereof the boy fell under the car. As to what was wrong with the brake there was no proof. Whether a brake shoe had come off or been broken; whether a connecting rod had parted; whether the brake handle had given way; or whether whatever had happened was some patent thing which inspection would have shown, or was some latent defect which no inspection or inspections would have disclosed — all are matters left to conjecture instead of being proven by evidence. Measuring this proof by the standards the supreme court has set — and very wisely so, as reflection will show — it is clear to us that the plaintiff has not proved any negligence on the, part' of this coal company. . . . There being such lack of proof as to the cause of the accident, it is manifest that to say the company’s negligence is established by lack of inspection is to lose sight of the purpose of inspection. The making of an inspection is to discover defects and thus avoid accidents. The failure to make inspection serves to charge defendant with notice and knowledge of what due inspection would have shown. But where the proof fails to show any defect which inspection would have disclosed, it is clear that no basis of defect is proved to have existed with which to charge the defendant with notice by reason of noninspection.”
(p. 606.)
From the foregoing it is manifest that if plaintiff’s idea about cause of his injury was correct, and he was in fact struck by some unknown object which protruded from the side of some car, he did not extend his proof far enough to establish actionable negligence on the part of defendant.
Nothing else in the evidence introduced after the demurrer to plaintiff’s evidence was interposed requires mention. It is clear that plaintiff’s original case was not aided by evidence introduced subsequent to the ruling on the demurrer.
Under federal law, the judgment of the district court must be reversed and the cause must be remanded with direction to sustain the demurrer to plaintiff’s evidence.
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The opinion of the court was delivered by
Johnston, C. J.:
Mattie F. Whiteker sued the Wichita Railroad and Light Company, to recover damages for the death of her husband, J. S. Whiteker, caused, it was alleged, by the negligence of the company. She recovered damages in the sum of $2,734, and defendant has appealed.
She alleged that her husband was in the habit of boarding street cars at the intersection of two of the principal streets of Wichita at about 6:35 in the evening, and in going from his home to board the car it was necessary for him to cross the street-car tracks in order to reach the entrance door of the car, and that on the occasion in question when passing over the tracks he was negligently struck by the advancing car and killed.
The grounds of negligence assigned by plaintiff were, operating the car with defective brakes; insufficient headlights; no sand in the sand box, which is necessary in an emergency stop; failure to slacken speed or stop the car when the motorman saw the peril of Mr. Whiteker; operating the car at a reckless rate of speed under the circumstances, and in violation of .a city ordinance. The jury acquitted the defendant of all the charges of negligence, except that the motorman failed to keep a proper lookout for Mr. Whiteker, as disclosed in the following findings of fact, two sets of which were submitted:
“Q. At what rate of speed was the defendant company’s car moving immediately prior to the accident? A. Two miles per hour.
“Q. Was the headlight on the street car burning at the time of the accident? A. Yes.
“Q. Was the gong on the street car sounded immediately prior to the time it entered the intersection? A. Yes.
“Q. Did J. S. Whiteker use due care for his own safety in crossing in front of the defendant company’s car? A. Yes.
“Q. Could the defendant, company’s motorman have done anything he did not do after he observed J. S. Whiteker upon the tracks in front of the street car? A. No.
“Q. How far in front of the street car was J. S. Whiteker when he was first observed by the motorman? A. Three to four feet.
“Q. What negligence of the defendant company or its motorman caused the accident? A. Lack of diligent watch.
“Q. Was J. S. Whiteker’s action in crossing the street-car tracks in front of the approaching street car a contributing and proximate cause of the injury? A. Slightly negligent.
“Q. Do you find that J. S. Whiteker signaled the car to stop? A. Yes.
“Q. If you answer the preceding question in the affirmative, then give: (a) The location of J. S. Whiteker at that time. A. About four or five feet south of center of the intersection of Indianapolis and Main street, between car tracks.
“Q. (b) The location of the car at that time. A. Car was south of intersection of Indianapolis and Main street.
“Q. Were the defendants negligent in operating the street car at the time and place of the death of plaintiff’s husband without sufficient headlight? A. No.
“Q. If you find that the defendants were negligent in operating the said street ear without sufficient headlight, was that one of the proximate causes of the death of plaintiff’s husband?" A. No.
“Q. If you find the defendants were negligent in operating the said street car without sand in the sandbox of the car, was that one of the proximate causes of the death of plaintiff’s husband? A. No.
“Q. Were the defendants negligent in operating the said street car at the said time and place without the brakes being in proper condition? A. No evidence showing the condition of brakes.
“Q. Were the defendants negligent in this, that the motorman did not keep a proper lookout for Mr. Whiteker? A. Yes.
“Q. Did Mr. Whiteker, the plaintiff’s husband, signal the car of the defendant to stop? A. Yes.
“Q. Did the defendant’s motorman keep a vigilant watch for all persons on foot, either On the tracks or moving towards it at the time and place in question? A. No.”
It is seen that the only negligence found was the failure of the motorman to keep a proper lookout or a diligent watch. It appears that a misting rain was falling that night, and that the street was slippery. The testimony upon which plaintiff relied to establish the negligence of defendant in respect to lack of diligent watch was furnished by the motorman himself. He was called by the plaintiff and said:
“Well, I was going north on South Main street, and a block south of Indianapolis and Main I stopped and picked up a passenger or two, I don’t remember just how many now, and I proceeded north to the intersection of South Main and Indianapolis, and before I approached the intersection I rang my bell and slowed down, and had started up again and had almost gone across the halfway intersection of the street when, right in front of me, started Mr. Whiteker —I didn’t know at the time who he was — but the first that I seen of him was right in front of my car; it didn’t seem like any distance at all between him and I, and I didn’t attempt to ring the bell or anything; I hollered at him, and it didn’t seem to do any good, and before he got off the track I hit him.”
On further inquiry he said that the light from the lamps of his car penetrated down the tracks in front but did not show out to the sides of the car, and that Whiteker approached the car from the dark side, the street light being over on the other side of the street. He stated that he was looking ahead, but that he did not see Whiteker until the latter ran across the track in front of the car; that as soon as he saw him he applied the air, threw the car into reverse and shouted “Look out,” and further, that he didn’t know of anything else he could have done.
In view of the testimony it must be conceded that the headlights of the car were burning; that the gong was sounded for the intersection; that the lack of sand in the box had nothing to do with the accident; that no defect in the brakes was shown; and that Whiteker was only three to four feet ahead of the car when he was observed by the motorman; and further, that the motorman could not under the circumstances have done more to protect Whiteker than was done after he ran on the track in front of the street car. Manifestly the evidence did not establish actionable negligence on the part of the defendant. While it was the duty of the motorman to 'keep a diligent lookout ahead so as to avoid injury to those who might be crossing in front of the moving car, he cannot be charged with negligence for an injury to one who suddenly dashes across four or five feet in front of an advancing car. As seen, he was the witness of the plaintiff and to some extent she vouched for his veracity. Without his testimony there is nothing in the evidence to support the claim that the motorman failed to keep a proper lookout while crossing the intersection of the streets. Negligence must be established by competent proof, and a valid finding of negligence cannot be made without competent supporting evidence, nor rested upon mere conjecture. The mere fact that the deceased was struck by the street car is not a basis for a finding of negligence against the defendant. Negligence cannot be presumed but must be proved (Railroad Co. v. Tindall, 57 Kan. 719, 48 Pac. 12), and there is a lack of proof on which to rest a finding of defendant’s negligence.
Aside from this conclusion it must have been held, if it had been necessary to a decision of the case, that Whiteker’s lack of care for his own safety directly contributed to his death. It would be difficult to conceive of a more obvious risk, a more reckless disregard of care for personal safety, than to run across a railroad track four or five feet in front of a moving car. Whiteker certainly saw the car, as he was running to board it, and notwithstanding the great and manifest danger of an effort to cross in front of a moving car in the center of a street intersection, the jury found that he used due care for his own safety in the effort. However, in response to another question the jury did find that he was slightly negligent. In no view of the evidence in the record can we find a rational basis for the judgment, and hence it is reversed, with the direction to enter judgment for the defendant. | [
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The judgment of the court was delivered by
Harvey, J.:
This action is brought under our declaratory judgment statute (R. S. 60-3127 et seq.) seeking a construction of section 2 of chapter 214 of the Laws of 1925. The section of the statute sought to be construed reads as follows: ■
“That the state highway commission, in conjunction with the boards of county commissioners, shall designate in every county in the state certain highways, the total mileage of which shall not exceed 8,690 miles, and the total mileage of which in each county shall not be less than the sum of the north to south and east to west diameters of the counties, and which shall connect the county seats and principal cities and market centers. Which highways shall constitute the state highway system. Said state highway system shall include all roads heretofore approved by the state highway department and the federal government under the federal highway act. The system of roads thus designated shall be constructed, reconstructed, improved and maintained by the boards of county commissioners of the several counties, subject to the supervision of the state highway commission, from funds hereinafter provided.” (Laws 1925, ch. 214, § 2.)
It is alleged that defendants have designated an east and west highway through Jewell county and through Mankato, the county seat, as highway No. 36, and have also designated a road from the south boundary of the county north through Jewell.City, and thence in a north and westerly direction, connecting with highway No. 36 a short distance east of the city of Mankato, and that no state highway has been designated north from Mankato through the county. It is further alleged that there is a road directly north from Mankato seven miles, thence in a north and easterly direction to the north line of the county, which had previously been approved by the state highway department and by the federal government under the federal highway act, and that the same, by the operation of the statute above quoted, became a part of the state highway system in Jewell county; that instead of designating such highway as a part of the state highway system defendants proposed to designate a road commencing five 'miles east of Mankato on highway No. 36, running thence north to the north boundary of the county, as a part of the state highway' system. The real purpose of the action is to prevent defendants from designating the highway last mentioned as a part of the state highway system, and to require them to designate the road running directly north _ from Mankato seven miles, thence north and east to the county line. Plaintiff further alleged that the provision for the construction of state highways is in large part made from special motor vehicle license taxes and from the tax on motor fuel, and in the preceding year such taxes in excess of 111,000 were collected in the plaintiff city for the purpose of constructing highways.
Separate demurrers to the petition raising the question, among others, that plaintiff had no legal capacity to maintain this action, were filed by the board of county commissioners and state highway commission and were overruled. Defendants then answered denying, among other things, that there was an actual controversy within the meaning of the declaratory judgment statute with respect to the statute in question, and further raising the question of plaintiff’s legal capacity to maintain this action. A trial resulted in a judgment in accordance with plaintiff’s contentions. Defendants have appealed.
The first question presented for our consideration, and the only one we shall find it necessary to discuss, is that of plaintiff’s legal capacity to maintain the action.
Cities in this state are municipal corporations created primarily for the purpose of local government. (Art. 12, § 5, Const.; R. S. 12-10.1.) They have only such power and authority as is specifically given them by the legislature, or those that are necessarily implied in the powers specifically given. (City of Leavenworth v. Rankin, 2 Kan. 357; Beach v. Leahy, 11 Kan. 23; In re Pryor, Petitioner, 55 Kan. 724, 728, 41 Pac. 958; State v. Downs, 60 Kan. 788, 792, 57 Pac. 962.) They may sue and be sued as individuals may, with respect to their property or in respect to authority specifically granted to them. (Stevenson v. Shawnee County, 98 Kan. 671, 677, 159 Pac. 5.) But such cities are not the supervisors of the governmental business of other subdivisions of the state such as counties, or of boards or commissions created by the legislature for carrying on the business of the state, such as the state highway commission. A somewhat similar question with respect to the right of a drainage district to maintain an action against the city was raised in Kaw Valley Drainage Dist. v. Kansas City, 119 Kan. 368, 372, 239 Pac. 760, where the court purposely refrained from considering or passing on the question.
In Collingwood v. Schmidt, 125 Kan. 81, 262 Pac. 556, it was held:
“An action to compel public officials to perform their duty should ordinarily be brought in the name of the state on the relation of the attorney-general or county attorney. A private citizen who has no interest to be protected or rights to be enforced by the determination of the question sought to be litigated, which are personal or specific to him as distinct from other citizens, cannot maintain such action.” (Citing Weigand v. City of Wichita, 111 Kan. 455, 207 Pac. 651, where many other cases are cited.)
But plaintiff contends that the provision of the statute above quoted, which makes it the duty of the state highway commission, in conjunction with the board of county commissioners, to designate in every county certain highways “which shall connect the county seats and principal cities and market centers,” gives to the city a special interest in the matter which enabled it to maintain this action. The statute, of course, had no such purpose. It is “An act relating to the construction, reconstruction and maintenance of a system of state highways in the state of Kansas; . . .” It created a highway commission and imposed certain duties upon it. Among those duties, in conjunction with -the board of county commissioners, was the designation of highways which shall constitute a state highway system. In doing so the state highway commission was required to so designate the highways in each county as to connect the county seats and principal cities and market centers; but this statute was never designed to give to county seats, or principal cities, or market centers, authority to maintain actions of a character previously unknown to the law; nor did it enlarge the corporate powers of “county seats,” “principal cities,” or “market centers.”
Neither did the fact that license taxes or motor fuel taxes were, paid by some of the inhabitants of the city in the sum alleged confer any authority upon the city to maintain this action. The city, as a municipal corporation, pays no such taxes, and it has no concern with taxes paid by its inhabitants for other than city purposes.
A question similar to the one before us arose in State v. County Board of Sup’rs, 216 N. W. 144 (Wis.), decided November 8, 1927, on certiorari to the county board and county clerk to review the action of the county board in levying a tax for highway purposes. The question was whether the city had such interest in the validity of the tax as to enable it to maintain certiorari. It was alleged that the city was one of the taxing districts of the county and paid 46.61 per cent of the entire county tax. It was said:
“The city was only one of the agencies through which the county collected the tax from the individual taxpayer resident of the city. The city had no such interest in the validity of this tax as to authorize it to maintain an action to set it aside. The tax does not affect the revenues of the city in the least. The city’s property is not subject to taxation. But the tax does, immediately and directly, affect each taxpayer to the amount of his tax. The general tax is not a debt against the city, but is a direct charge upon the taxpayer. The city was not the real party in interest. . . . This is the rule that prevails in other jurisdictions. (Waverly v. Auditor, 100 Ill. 355, 356; Mayor v. Alexandria Canal Co., 12 Pet. 91, 96, 9 L. Ed. 1012, 1016; Trustees v. Thoman, 51 Ohio St. 285, 296, 37 N.E. 523; Atchison v. State, 34 Kan. 379, 389, 8 Pac. 367. . . .)
“The fact that section 62.11, subd. 5, of the Statutes gives the common council the power to act for the ‘welfare of the public’ does not authorize the city to expend public funds to conduct litigation which does not affect the municipality directly, where the fruits of the litigation inure to the benefit of the individual taxpayers resident within the city. The members of the ‘common council ‘are'not the guardians and protectors of private and individual interest or property of the citizen. They may not intervene by action to protect or redress the individual citizen in respect to wrongs or injury to his person or property. Their power as well as duty is restricted to the protection and preservation of property possessed by them in their corporate capacity.’ (People v. Ingersoll, 58 N. Y. 1, 29.)” (p. 145.)
Also in County of Albany v. Hooker, 204 N. Y. 1, an action by the county against the highway commission to have certain acts of the legislature declared unconstitutional, and to restrain defendants from awarding and executing contracts for highways to be constructed from funds available under the act, it was held:
“Counties . . . are not the guardians and protectors of private and individual interests or property of the citizen. They may not intervene by action to protect or redress the individual citizen in respect to wrongs or injury to his person or property. Their power as well as duty is restricted' to the protection and preservation of property possessed by them in their corporate capacity.” (Syl. If 3.)
Further held:
“When there is no fund or property in existence the title to which is in a county, and no funds or property in the possession of another to which it is entitled to possession, and the entire subject is one of governmental and public policy, independent of its corporate rights, an action cannot be maintained by a county.” (Syl. If 4.)
Other cases more or less in point are Town of New Lebanon v. State, 181 N. Y. Supp. 322; City of Chicago v. Tribune Co., 307 Ill. 595, and Chelsea v. Treasurer & Receiver General, 237 Mass. 422.
From what has been said it necessarily follows that the judgment of the court below must be reversed with directions that the case be dismissed. It is so ordered. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The Kansas Wheat Growers’ Association brought this action against 0. E. Brooks alleging that he had violated a marketing agreement in failing to deliver wheat produced by him upon a farm which he was operating, as he had agreed to do, and it asked a recovery of twenty-five cents per bushel of wheat produced and not delivered. The defendant admitted his membership in the association and his execution of the agreement, but alleged that the agreement was procured by false and fraudulent representations as to several matters which were relied upon by him. The matters of fraud were not sustained by the proof and were withdrawn by the court from the consideration of the jury. While plaintiff had alleged that defendant had grown a large quantity of wheat which he had failed and refused to deliver, the parties finally stipulated that the only wheat in controversy in the action was 700 bushels, his share of the crop raised by defendant in 1923. Defendant contended and testified that he was a tenant farmer and had been operating the farm of his father-in-law, B. E. Priddy, since 1920; that he bought a half interest on all the equipment and some' live stock from Priddy for $2,500, the title to which was to remain in Priddy until that amount had been paid, and that nothing had been paid upon the debt. That defendant was to furnish all the necessary labor, and that each was to receive one-half of the net returns derived from the farm. Priddy, he testified, had received no rentals from the operation of the farm since it was leased to defendant in 1920, and nothing had been paid upon the equipment and live stock which defendant had purchased and was to pay for from the products of the farm. There was evidence that in September, 1923, the defendant surrendered the lease and made a-settlement with Priddy, in which he turned over to Priddy all the equipment and live stock, as well as the grain grown on the farm, and had executed a bill of sale for a consideration of $2,657, that being the price or value of defendant’s interest in the grain, equipment and live stock for which no payment had been made. Priddy testified that defendant’s half interest in a crop of 1,400 bushels was included in this sale.
The question for decision was whether the defendant was under an obligation to deliver to the association 700 bushels of wheat which he had produced and which had been sold to Priddy. He had agreed to deliver to the association the wheat produced by him, and failing in that he agreed to pay as liquidated damages the sum of twenty-five cents per bushel of that not delivered in accordance with the agreement. In defendant’s agreement with the association it was stipulated that the association would buy, and he as grower would sell to it, all wheat produced or acquired by or for him as landlord or lessor except for seed and feed. Among other provisions the agreement contained the following:
“The grower expressly warrants that he is now in a position to control said crops and has not heretofore contracted to sell, market or deliver any of his said wheat to any person, firm or corporation, except as noted at the end of this agreement. Any wheat covered by such existing contracts or crop mortgage shall be excluded from the terms hereof for the period and to the extent noted, if the lienholder refuses to permit delivery thereof.”
There were notations at the end of the agreement in respect to the wheat grown the previous year and also as to the number of acres in the crop of 1923, but there was no notation that any of the wheat was covered by such contracts as were named in the exception.
No mortgage had been executed and it was a part of the agreement that:
“If the grower places a crop mortgage upon any of his crops during the term hereof, the association shall have the right to take delivery of his wheat and to pay off all or part of the crop mortgage for the account of the grower and to charge the same against him individually.”
Upon the evidence it appears that defendant was the tenant of Priddy and that the crop of wheat was raised on a fifty-fifty basis; that defendant raised 1,400 bushels of wheat in 1923, one-half of which belonged to the defendant. It was conceded by defendant as well as Priddy that the 700 bushels of wheat was sold by defendant to Priddy and the proceeds applied upon a debt which defendant owed Priddy since 1920, for an interest in the equipment and live stock sold by the latter to the former. Defendant had agreed to sell the wheat which he produced to the plaintiff. The agreement covered at least the part raised and owned by himself, and hence the sale of that portion of the wheat to another was a violation of his agreement under which he became liable to the association for twenty-five cents per bushel of the quantity sold.
The arrangement between defendant and the landlord Priddy was not committed to writing, and not even a note was executed for the equipment purchased in 1920. The obligation for the equipment sold to him by Priddy was an ordinary debt, and was not excepted from the obligation assumed to plaintiff in the marketing agreement. The admissions made by defendant as well as by his counsel in the opening statement sufficiently establishes the liability of defendant, and hence the judgment must be reversed, with the direction to enter judgment for plaintiff upon 700 bushels of wheat at the rate of twenty-five cents per bushel, amounting to $175. It is so ordered. | [
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|
The opinion of the court was delivered by
Lockett, J.:
Employer, National Gypsum Co. (NGC), appeals the Barber County District Court’s affirmance of a decision of the Kansas Employment Security Board awarding unemployment benefits to employee, Randell Porter. The district court found that the employee’s failure to pass a drug screen test did not disqualify him from receiving unemployment benefits since the failure to pass the test did not amount to “[wjillful and intentional action which is substantially adverse to the employer’s interests” as required by K.S.A. 1988 Supp. 44-706(b)(l)(A) of the Kansas Employment Security Law, K.S.A. 44-701 et seq.
Randell Porter was employed by the appellant NGC from 1983 to 1986. NGC had a written substance abuse policy designed to maintain its workplace safe and free of drugs, alcohol, narcotics, marijuana, and other illegal or controlled substances. The policy recognized that the use of such substances outside of work could affect job performance or the safety of other employees or company property and stated that an on-the-job or on-company-premises violation may result in disciplinary action, up to and including discharge. The policy also provided that employees could be tested for drugs in the following situations: (1) an unscheduled absence from work of more than 30 days; (2) an on-the-job injury requiring medical treatment; (3) recurring or serious problems with job performance, attendance, or attitude where no other verifiable and reasonable basis for such problems exists; and (4) where there is other observable evidence of drug or alcohol abuse, or of some other undiagnosed health problem affecting job performance. A positive drug screen could require the affected employee to accept professional treatment and to submit to additional drug screens.
On January 7, 1987, Porter suffered his second on-the-job accident while at NGC and was absent from work for four months. When Porter returned to work in May 1987 and was tested, his urine test, Enzyme Multiplied Immunoassay Technique (EMIT), was positive for cannabinoids (marijuana). A separate, more specific test, Gas Chromatography/Mass Spectrometry, confirmed cannabinoids (marijuana) in Porter’s urine. To continue employment, Porter was required to meet with a drug counselor and, if necessary, accept treatment. After initially refusing, Porter agreed to be evaluated. When evaluated, Porter denied use of marijuana.
After Porter returned to work on July 21,1987, his drug screen was negative. Porter was warned by NGC that any further accident, safety violation, or violation of the company’s substance abuse policy would result in disciplinary action and/or termination. Seven days later, Porter suffered his third on-the-job injury.
During a physical examination performed two days after the accident, Porter’s urine tested positive for marijuana. In August, NGC management terminated Porter because of the positive drug screen and other violations that are not an issue in this appeal. When Porter applied for unemployment benefits, his former employer objected, claiming Porter was not entitled to benefits.
At the administrative hearing, Porter stated he had been taking prescribed pain medication at the time the drug screens were performed, but introduced no evidence to corroborate his testimony. The examiner for the Kansas Department of Human Resources (KDHR) found that, although Porter could be discharged by his employer for failure to pass a drug screening test, the test did not establish drug usage “connected with work,” and that, therefore, Porter was entitled to unemployment benefits. NGC appealed, claiming that the positive drug screen alone was sufficient reason for a denial of benefits.
Rejecting NGC’s claim, the referee for KDHR cited 44-706 and determined that a positive test for drug usage alone was not sufficient to prove a willful or intentional failure to perform duties in a satisfactory manner and to deny benefits. The referee’s decision was subsequently affirmed by the Kansas Employment Security Board by a 2-1 vote.
The employer appealed the award of unemployment benefits to the District Court of Barber County, which affirmed. In his memorandum opinion, the district judge found there was no evidence that Porter was under the influence of marijuana while at work. Citing Glide Lumber Prod. Co. v. Emp. Div. (Smith), 86 Or. App. 669, 741 P.2d 907 (1987), the district court held that, in the absence of any evidence that an employee’s drug usage had actual on-the-job impact, an employee’s dismissal for failing a urine drug test based on off-the-job drug usage could not serve as the basis for a denial of unemployment compensation benefits. The employer appeals.
The legislature, when enacting the Kansas Employment Security Law, K.S.A 44-701 et seq., stated that economic insecurity, due to unemployment, is a serious menace to health, morals, and welfare of the people of this state. Involuntary unemployment is therefore a subject of general interest and concern which requires appropriate action by the legislature to prevent its spread and to lighten its burden which now so often falls with crushing force upon the unemployed worker and his family. Under the police powers of the state, the legislature, for the public good and the general welfare of the citizens of this state, enacted the compulsory setting aside of unemployment reserves to be used for the benefit of persons unemployed through no fault of their own. K.S.A. 44-702.
The right of the unemployed worker to receive benefits from the fund is not absolute. K.S.A. 1988 Supp. 44-706 details certain conditions under which employees may be disqualified from receiving benefits. One purpose of this type of provision is to deny the benefits to those who bring about their own unemployment by acts which justify the employer in discharging the employee. Another purpose of the statute is to prevent the dissipation of unemployment reserve funds by disqualifying acts rather than by a lack of suitable job opportunities. The provision pertinent to this appeal is K.S.A. 1988 Supp. 44-706(b)(l), which provides:
“An individual shall be disqualified for benefits:
“(b) If the individual has been discharged for misconduct connected with the individual’s work. . . .
“(1) For the purposes of this subsection (b), ‘misconduct’ is defined as a violation of a duty or obligation reasonably owed the employer as a condition of employment. In order to sustain a finding that such a duty or obligation has been violated, the facts must show: (A) Willful and intentional action which is substantially adverse to the employer’s interests, or (B) carelessness or negligence of such degree or recurrence as to show wrongful intent or evil design. The term ‘gross misconduct’ as used in this subsection (b) shall be construed to mean conduct evincing extreme, willful or wanton misconduct as defined by this subsection (b).”
It is NGC’s position that, under K.S.A. 1988 Supp. 44-7Q6(b), a positive drug screen proves a willful act of misconduct which violates NGC’s substance abuse policy and is substantially adverse to its interests. Appellees, Porter and the Kansas Employment Security Board, argue that a positive drug screen, absent other evidence demonstrating that Porter’s alleged drug usage affected his actual job performance, does not disqualify Porter from receiving unemployment benefits.
Any action of the Board is subject to review in accordance with the Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq. K.S.A. 1988 Supp. 44-709(i). Our scope of review under the Act relevant to the issue is limited to whether the agency erroneously interpreted or applied the law. K.S.A. 77-621.
The fundamental rule for statutory construction to which all other rules are subordinate is that the intent of the legislature governs when that intent can be ascertained. Director of Taxation v. Kansas Krude Oil Reclaiming Co., 236 Kan. 450, 455, 691 P.2d 1303 (1984). We give great weight and judicial deference under the doctrine of operative construction to the interpretation of a statute by the administrative body charged with enforcing the statute. When we review an agency’s interpretation of a question of law, our review is not limited by K.S.A. 77-621. In reviewing a question of law, we may substitute our judgment for that of the agency. Kansas Bd. of Regents v. Pittsburg State Univ. Chap, of K-NEA, 233 Kan. 801, 667 P.2d 306 (1983).
Jurisdictions with similar statutes on disqualification for unemployment benefits have reached different conclusions. The district court relied on an Oregon case, Glide Lumber Prod. Co. v. Emp. Div. (Smith), 86 Or. App. 669. The Oregon statute, Or. Rev. Stat. § 657.176(2)(a) (1987), denies benefits to one discharged for misconduct, which is defined as a willful violation of the standards of behavior an employer has the right to expect. Or. Admin. R. § 471-30-038(3) (198_). The employer in Glide Lumber, in order to promote safety in the workplace, prohibited the use of intoxicants or controlled substances while on company property or during work hours, reporting for work under the influence of alcohol, and reporting to work after having ingested any controlled substance. To enforce the safety policy, the employer required its employees to submit to random drug and alcohol tests.
After he tested positive for marijuana during a random urine test, the employee in Glide Lumber was terminated. When the ex-employee applied for unemployment benefits, his former employer objected. The court noted that the urine test used detects traces of marijuana in a person’s system for approxi mately 30 days after use and that the test could determine neither if the employee was under the influence of marijuana nor when the employee had used marijuana. It observed that, although the employee admitted using marijuana during the two to three weeks prior to the test, there was no evidence that he was intoxicated or impaired by the prior marijuana use while at work. The court then concluded that an off-the-job activity which has no impact on the employee’s work is almost, by definition, not work-connected. Direct observation by supervisors and coworkers of employee conduct in the workplace is a better means of identifying impaired workers.
A similar result was reached in Blake v. Hercules Inc., 4 Va. App. 270, 356 S.E.2d 453 (1987), where the Virginia Court of Appeals reversed the lower court’s denial of unemployment benefits to an employee who had tested positive for drugs. The employer, a munitions factory, had enacted a substance abuse policy which prohibited use or possession of alcohol or drugs on company premises and further prohibited employees from being under the influence of alcohol or drugs while at work. After undergoing a drug screen, the employee, Blake, tested positive for marijuana. Blake denied using the drug, but admitted being in the presence of others who used it outside of work hours. In reversing the district court, the Virginia Court of Appeals stated that there was no evidence that (1) the amount of cannabinoid found in Blake’s system would affect his duties at work and (2) the employee knew that he had marijuana in his system when he reported to work. See Marine Drilling Co. v. Whitfield, 535 So. 2d 1253 (La. App. 1988); City of Portland v. Emp. Div. (Clary), 94 Or. App. 279, 765 P.2d 222 (1988).
A contrary result was reached in Overstreet v. Dept. of Employment Security, 168 Ill. App. 3d 24, 522 N.E.2d 185 (1988), where the Illinois Court of Appeals reversed a decision of the State Department of Employment Security awarding unemployment compensation to the employee bus driver who had been suspended after testing positive for cocaine. After deciding to adjudicate the suspension as a discharge, the court accepted the employer’s contention that the employee had been discharged for misconduct for reporting to work under the influence of a controlled substance in violation of company policy, and held that the employee’s use of cocaine prior to reporting for work constituted a deliberate violation of the employer’s policy. See Eugene v. Adm’r Div. of Emp. Sec., 525 So. 2d 1185 (La. App. 1988).
In Jackson v. Board of Review, 105 Ill. 2d 501, 475 N.E.2d 879 (1985), the Supreme Court of Illinois found the rule must be a reasonable rule governing the conduct or performance of an employee. There must be some nexus between the rule and the employment. The term “misconduct” is limited to conduct evincing such willful or wanton disregard of the employer’s interest as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee; or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent, or evil design; or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his employer.
When defining “misconduct connected with employment,” the Supreme Court of Illinois specifically rejected the position that, in order to establish misconduct connected with work, it is necessary for an employer to show that the conduct actually or could have harmed the employer.
A number of jurisdictions have denied unemployment compensation to employees whose off-duty acts constituted misconduct connected with work. See Prebula v. Arizona Dept. of Econ. Sec., 138 Ariz. 26, 672 P.2d 978 (1983) (benefits denied after employee embezzled funds of fraternal organization); Oudinot v. Un. Comp. Bd. of Rev., 78 Pa. Commw. 150, 467 A.2d 84 (1983) (benefits denied due to employee’s sexual relationship with 17-year-old girl); Gregory v. Anderson, 14 Wis. 2d 130, 109 N.W.2d 675 (1961) (benefits denied due to off-duty alcohol consumption). See Annot, 35 A.L.R.4th 691, and cases cited therein.
The district court found a most difficult aspect of our case to be the lack of objective evidence as to whether Porter was under the influence of marijuana while at work. The district judge observed that the level of alcohol in a person’s blood can be accurately measured and can be evaluated on the basis of recognized standards, but the same is not true for marijuana. Proof of being under the influence of marijuana is far more subjective. The district judge found that there was no evidence to suggest that Porter was under the influence of marijuana while at work.
The reliability and accuracy of drug testing have been widely criticized by other jurisdictions. Some of the criticism has been directed at the EMIT test for marijuana because it can (1) register a positive test after passive inhalation of marijuana and (2) yield frequent false positive results. See generally Rothstein, Screening Workers for Drugs: A Legal and Ethical Framework, 11 Employee Rel. L. J. 422 (1985). Due to the unreliability of the EMIT, it is recommended that a positive result be confirmed by alternate testing. The analytical method considered by experts to be the most conclusive method of confirming positive results is the GCMS test. See Survey, Survey of the Law on Employee Drug Testing, 42 U. Miami L. Rev. 553, 563-65 (1988). Porter’s initial EMIT test was confirmed by a repeat test as well as subsequent GCMS testing. The drug screen conducted was the most reliable available and, in fact, conformed to federal guidelines which require all federal employers to use GCMS to confirm positive test results. See 42 U. Miami L. Rev. at 566 (citing Mandatory Guidelines for Federal Employee Drug Testing Programs, Daily Lab. Rep. [RNA] No. 70, at E-14 [Apr. 12, 1988]).
The drug tests used will detect traces of marijuana in a person’s system for approximately 30 days after use. The tests cannot provide more refined information, such as whether the person is under the influence of marijuana or when the person used the substance during the 30-day period. Marijuana can impair motor functions for up to 12 hours after its ingestion. Glide Lumber Prod. Co. v. Emp. Div. (Smith), 86 Or. App. at 671.
The policy established by NGC is a preventive one which seeks to lessen the probability of serious accidents in the workplace. NGC argues that, because of the long-lasting effects of drugs, off-duty use of drugs is prohibited because such use is reasonably likely to result in harm to the employer’s interest. The threat posed by employee drug use is not only against public policy, but is particularly dangerous when employees are engaged in the operation of heavy equipment, work on wallboard production lines, and use extremely hazardous materials, as in this case. The employer states: “The use of drugs either on or off the job in the employer’s industry poses unacceptable risks to both the public and employee safety.” The district court, following the reasoning of Glide Lumber, concluded that, in order to deny the employee benefits, the employer must show by a preponderance of the evidence that the employee’s off-the-job misconduct had an actual on-the-job impact.
K.S.A. 1988 Supp. 44-706(b) provides that an employee shall be disqualified for unemployment compensation benefits if the employee has been discharged for misconduct “connected with the individual’s work.” The statute further defines misconduct as a “violation of a duty or obligation reasonably owed the employer as a condition of employment” and requires that the facts show a “[w]illful and intentional action which is substantially adverse to the employer’s interests.”
An employee’s conduct off the working premises and outside the course or scope of his employment is generally not considered misconduct in connection with employment. There are circumstances where the conduct is so closely connected with the business interests of the employer as to warrant disqualification for unemployment benefits. The provisions of an unemployment compensation statute relating to the disqualification to receive unemployment compensation benefits in the case of a discharge for misconduct are intended to deny unemployment compensation to a claimant who is discharged because of misconduct, regardless of when or where it occurred, so long as such misconduct is in law connected with the employee’s work. There is no merit to the argument that an act of misconduct relating to the private life of an employee is connected with his employment. The fundamental issue is whether the misconduct adversely affected the employee’s ability and capacity to perform his duties.
Our decision declaring the right of an employee to collect unemployment benefits, when he or she has been discharged for an off-the-job violation of his employer’s rules, must be made by balancing two conflicting public policies. Under the public policy as stated by our legislature: (1) a person cannot use or abuse certain substances; and (2) an unemployed worker has a qualified right to receive benefits from the fund. Though the legislature has not determined in unequivocal terms which public policy should prevail, it has enacted statutory provisions from which the superior public policy can be inferred. Under the statutory provisions and our prior case law, a person claiming benefits under the Kansas Employment Security Law is entitled to a liberal interpretation of the law. Goodyear Tire & Rubber Co. v. Employment Security Board of Review, 205 Kan. 279, 283, 469 P.2d 263 (1970) (citing Pickman v. Weltmer, 191 Kan. 543, 382 P.2d 298 [1963]); Southwestern Bell Telephone Co. v. Employment Security Board of Review, 189 Kan. 600, 371 P.2d 134 (1962), 93 A.L.R.2d 1312; Erickson v. General Motors Corporation, 177 Kan. 90, 276 P.2d 376 (1954).
In addition, the burden of proof to establish that a former employee is disqualified from benefits under K.S.A. 1988 Supp. 44-706(b) is upon the employer, and must be proved by a preponderance of the evidence. Farmland Foods, Inc. v. Abendroth, 225 Kan. 742, 594 P.2d 184 (1979). The district court held, because of the inability of the drug screen to determine whether the use of the substance had an actual on-the-job effect, the employer had failed to show by a preponderance of the evidence that the employee was disqualified from receiving benefits under the Kansas Employment Security Law.
An employer’s rule governing the off-duty conduct of his employees must have a reasonable relationship to the employer’s interests before a violation thereof will constitute misconduct barring eligibility for unemployment compensation benefits. The question of the reasonableness of such a rule is to be tested by the rule’s relationship to the business interests of the employer.
Under K.S.A. 1988 Supp. 44-706(b)(l), off-duty drug use cannot be construed as a “willful or intentional failure to perform duties in a satisfactory manner.” To exclude a discharged employee from unemployment benefits for off-the-job misconduct, the off-duty misconduct must be work connected and reasonably related to the employer’s business. In the absence of evidence that an employee’s drug usage had actual on-the-job impact, an employee’s dismissal for failing a urine drug test based on off-the-job drug usage does not disqualify the employee from receiving unemployment compensation benefits.
Affirmed.
Miller, C.J., and McFarland, J., dissenting. | [
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|
The opinion of the court was delivered by
Miller, C.J.:
The defendant, Richard A. Smith, was charged in the district court of Geary County with delivery of cocaine, a felony, in violation of K.S.A. 65-4127a. The trial court dismissed the case, holding that this prosecution was barred by the terms of a plea agreement which the State and Smith had entered into in an earlier and unrelated case. The State appeals.
The State has briefed two issues. It contends that the trial court abused its discretion in ruling that this prosecution was barred by the terms of the plea agreement, and that the trial court erred in construing the plea agreement. Since we conclude that the trial court erred in its construction of the plea agreement, we reverse without reaching the abuse of discretion argument.
The facts are undisputed and we shall attempt to give them in chronological order. On April 16, 1987, a federal undercover agent bought a quarter gram of cocaine from a man he knew only as “Smitty.”- Later that month, he reported this activity to Roger Williams, a Junction City police narcotics investigator. Williams knew the defendant, Richard Allen Smith, but did not know him as “Smitty.” The defendant’s photograph appeared in “mug” books of the Junction City Police Department in April 1987, but the federal agent did not review the books, and did not make an identification of the person from whom he made the narcotics purchase until several months later.
The defendant entered into a plea agreement with the State on July 13, 1987, in a consolidated proceeding involving three earlier cases in which he was charged with theft by force, forgery, and theft. The plea agreement, signed by the defendant, his attorney, and an assistant Geary County Attorney, contains the following language which lies at the heart of this appeal: “The State agrees [not] to file any other charges against the defendant based upon information presently known or which should be known by the Geary County Attorney’s office.” (Emphasis supplied.) The plea agreement was approved by the trial court. Defendant’s pleas of guilty to all three charged crimes were accepted and sentence was imposed pursuant to the plea agreement.
Thereafter, on August 18, 1987, the federal agent, while reviewing the Junction City “mug” books in connection with another matter, came across defendant’s photograph and identified him as the “Smitty” from whom he had purchased cocaine in April. This prosecution was commenced on September 8, 1987, based upon information furnished by the federal agent, and the identification made by him on August 18. It is undisputed that at the time the plea agreement was entered into, the Geary County Attorney’s Office had no actual knowledge of defendant’s alleged sale of cocaine in April. The issue then is whether, at the time it entered into the plea agreement, the county attorney’s office should have known of the facts upon which this prosecution is based.
Several rules which govern the interpretation of written contracts are relevant here. The interpretation of a written contract which is unambiguous is a judicial function. Wood River Pipeline Co. v. Willbros Energy Services Co., 241 Kan. 580, 582, 738 P.2d 866 (1987). In that same case, we noted that the intent of the parties and the meaning of a contract are to be determined from the plain, general, and common meaning of terms used. Also, in City of Arkansas City v. Anderson, 242 Kan. 875, Syl. ¶ 1, 752 P.2d 673 (1988), in Willbros, 241 Kan. at 586, and in Patrons Mut. Ins. Ass’n v. Harmon, 240 Kan. 707, Syl. ¶ 1, 732 P.2d 741 (1987), we stated and followed the familiar rule that, regardless of the construction given a written contract by the trial court, an appellate court may construe a written contract and determine its legal effect. See Kennedy & Mitchell, Inc. v. Anadarko Prod. Co., 243 Kan. 130, Syl. ¶ 1, 754 P.2d 803 (1988).
Is contract law helpful and properly applied in construing a plea agreement which was entered into in a criminal proceeding? We think so. Our research discloses that this proposition has widespread support. In United States v. Ocanas, 628 F.2d 353, 358 (5th Cir. 1980), cert, denied 451 U.S. 984 (1981), the court concluded that while principles of contract law cannot be blindly incorporated into the area of plea bargaining, they provide a useful analytical framework. In United States v. Calabrese, 645 F.2d 1379, 1390 (10th Cir. 1981), the court said: “Courts have frequently looked to contract law . analogies in determining the rights of defendants aggrieved in the plea negotiation process. See Coopere. United States, 594 F.2d 12, 15-16 (4th Cir. 1979); Westen & Westin, A Constitutional Law of Remedies for Broken Plea Bargains, 66 Cal. L. Rev. 471, 530 (1978).” Similarly, in Cooper v. United States, 594 F.2d at 16, the court commented: “To the extent . . . that there has evolved any general body of ‘plea bargain law,’ it is heavily freighted with . . . contract law analogies.”
Finally, in Note, The Standard of Proof Necessary to Establish that a Defendant Has Materially Breached a Plea Agreement, 55 Fordham L. Rev. 1059, 1065-67 (1987), the author states:
“Although a plea bargain is essentially a contract, it is a peculiar creature of contract law. The exchange that effectuates the agreement is the defendant’s guilty plea and its attendant waiver of constitutional rights. Acceptance of the guilty plea by the court validates the agreement and the waiver. A defendant who plea bargains thus has a due process interest in assuring that the state will not arbitrarily deny him the fulfillment of that agreement. Although contract law provides a framework for legal analysis of plea bargain disputes, it is an imperfect analogy.
“[P]lea agreements are essentially contracts to which contract law may be applied, and . . . the due process clause is the source of the defendant’s constitutional rights implied in plea agreements.”
A question somewhat similar to the one we have before us was considered by the Oregon Court of Appeals in State v. Hamming, 19 Or. App. 265, 527 P.2d 137 (1974), affd 271 Or. 749, 534 P.2d 501 (1975). The Oregon Court of Appeals was considering the rule that a prosecution is prohibited by the bar on double jeopardy if the prosecutor knew or reasonably should have known of facts relevant to the second charge at the time of the original prosecution. The court held that “should have known” means only that a reasonably diligent prosecutor would have acquired actual knowledge of the additional crime. The court went on to hold that there was no basis for concluding that greater diligence on the part of the prosecution would have brought additional evidence to light at the time defendant entered his plea to the crime first charged, theft of firearms. Most of the witnesses to the murder had promptly fled from the jurisdiction; only later, after defendant’s theft plea, did the police locate and interview two of the witnesses, whose testimony indicated for the first time that defendant participated in the homicide, the crime with which he was subsequently charged. The Oregon Court of Appeals agreed with the trial court’s holding that the prosecution neither knew nor should have known, at the time defendant pled guilty to the theft charge, that he had previously participated in the murder. The firearm that Hammang was convicted of stealing in the first case was used, on the day it was stolen, to commit the homicide charged in the second case. Although the prosecution was aware of several facts connecting Hammang to the chain of events leading up to the homicide, the court concluded that the prosecution neither knew nor should have known that Hammang was involved in the homicide when the plea to the firearms charge was entered.
In a later case, State v. Knowles, 289 Or. 813, 618 P.2d 1245 (1980), an Oregon State Police Officer came upon the defendant in possession of both an elk and a deer. The officer issued defendant a uniform citation for possession of the elk, but did not cite him for possession of the deer, a more serious offense, since he wished to consult with his superior officer before charging possession of a deer. The defendant appeared promptly in court and pled guilty to the elk offense. Approximately a month later, the officer swore out a felony complaint charging possession of the deer. On defendant’s motion, the latter charge was dismissed by the trial court. On appeal, the Oregon Supreme Court held that there was no evidence that the district attorney had actual knowledge of the various offenses when defendant entered his plea to the elk charge, nor was there evidence that the prosecutor “reasonably” knew of the offense concerning the deer at the time of the elk prosecution. The decision of the lower court was reversed and the case remanded for further proceedings. See State v. Anthony, 68 Or. App. 718, 683 P.2d 559 (1984).
A slightly different problem faced the Texas Court of Criminal Appeals in Joiner v. State, 578 S.W.2d 739 (Tex. Crim. 1979). There, Joiner had pled guilty to a charge of possession of heroin on July 3, 1976. The plea agreement in that case provided the prosecutor would drop all charges then “pending” against the accused. Some three months later, an undercover agent who had been working undercover in the county filed two charges against Joiner for delivery of heroin in May 1976. Joiner contended on appeal that the plea bargain was meant to cover offenses about which the prosecutor should have known, even though they were not officially filed, and that it was his understanding that the plea agreement would clear him of all such offenses. The Court of Criminal Appeals held that the evidence does not compel such a conclusion, and thus (in the absence of actual knowledge by the prosecutor of the earlier offense) the action of the trial court in overruling Joiner’s motion was not error.
In the case now before us, the defendant filed a motion to dismiss after arraignment, alleging that the prosecution was barred by the terms of the prior plea agreement. The trial court was required to determine, upon the basis of the record before it, whether the prosecutor knew or should have known of the facts upon which this prosecution is based at the time the plea agreement was entered into. The trial judge opined, “If a crime was committed, you [the prosecutor] should know who did it, and it should be known by you if somebody commits a crime.” The judge thereupon held that the language of the plea agreement was so broad as to include the crime charged in this case. He sustained the defendant’s motion and dismissed the case. We disagree.
The State, by its plea agreement with Smith, specifically limited its promise of no prosecution to charges based upon information known or which should be known by the prosecutor at the time of the plea agreement. The State did not promise that it would not prosecute any and all prior crimes of the defendant, known or unknown.
It is undisputed that neither the Geary County Attorney nor any state, city, or county employee had knowledge of the alleged sale of cocaine at t¿e time the plea agreement was entered into on July 13, 1987. The facts were known only to a federal undercover agent, an army investigator. Whether he would later be able to identify the person from whom the purchase was allegedly made, whether he could or would furnish sufficient information to the state prosecutor to justify prosecution, and whether the agent would be available to appear and testify were questions which no state agent or employee could have answered when the plea agreement was entered into. True, the federal agent could have inspected the “mug” books earlier, and perhaps could have made an identification at an earlier date, but he did not. He was not under the direction and control of the Geary County Attorney’s Office or any state agency. As in Hammang, there is no evidence that greater diligence on the part of the county attorney’s office would have brought the prior crime to light. A county attorney is not reasonably required to know everything that all federal agents, working in his or her county, have learned. We hold that the terms of the plea agreement simply do not encompass knowledge of this offense under the facts of this case.
It is a familiar rule that when the finding of fact of a trial court is attacked on appeal for insufficiency of evidentiary support, we search the record for any substantial competent evidence which supports the finding. We have done so in this case and we find that there was no evidence before the trial court to support a finding that the county attorney or his staff knew or should have known of the crime charged here.
The judgment of the trial court is reversed and the case is remanded for further proceedings. | [
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Per Curiam:
This original proceeding in discipline was filed by the Office of the Disciplinary Administrator against Thomas R. Oglevie, of Goodland, an attorney admitted to the practice of law in Kansas. The complaint filed against respondent consisted of three separate counts alleging violations of the Kansas Code of Professional Responsibility, Supreme Court Rule 225 (1988 Kan. Ct. R. Annot. 142). At the hearing before a panel of the Board for Discipline of Attorneys, respondent appeared and presented evidence on his behalf. The disciplinary administrator presented evidence in support of the complaint.
As to Count I, the panel found that respondent misrepresented to Edmund R. Bergin his ability to collect for Bergin from another client an account which the other client owed to Bergin. In regard to Count II, the panel found that the respondent, while representing Bergin in a divorce action, began collecting accounts for Bergin Tire, Inc. Subsequently, Bergin fired respondent as his counsel in the divorce action, and there was a dispute as to the amount of respondent’s fee in the divorce action. As the payments came in on the accounts being collected for Bergin Tire, Inc., respondent applied these payments to his divorce fee without authority or agreement from Bergin or Bergin Tire, Inc. During this period of time, respondent returned 14 money orders he received on the Bergin Tire, Inc., account to the payor because the checks were made payable to Bergin Tire instead of respondent. Respondent failed to account for the checks he applied to his divorce fee and to notify Bergin Tire, Inc., of the receipt and return of the money orders.
In regard to Count III, the panel found that, while respondent was collecting the accounts referred to in Count II for Bergin Tire, Inc., he filed a civil action against Bergin Tire, Inc., on behalf of AMF, Inc. Respondent was informed of the conflict and continued to represent AMF, Inc., after being so informed, until the case was dismissed approximately two weeks later.
The panel found that there was clear and convincing evidence that respondent violated DR 1-102(A)(4) and (6) (1988 Kan. Ct. R. Annot. 143), DR 9-102(A)(2) and (B)(1) (1988 Kan. Ct. R. Annot. 179), DR 5-101(A) (1988 Kan. Ct. R. Annot. 160), and DR 5-105(A) (1988 Kan. Ct. R. Annot. 161). The panel unanimously recommended to this court that respondent be disciplined by public censure in accordance with Supreme Court Rule 203(a)(3) (1988 Kan. Ct. R. Annot. 117). Respondent filed no exceptions to the report of the panel and asked this court to approve the recommendation of the panel.
The court, having considered the record herein, the report of the panel, and the circumstances shown by respondent in mitigation of his conduct, accepts and concurs in the findings, conclusions, and recommendations of the hearing panel.
It is Therefore Ordered that Thomas R. Oglevie be and he is hereby disciplined by public censure for his violations of the Code of Professional Responsibility.
It is Further Ordered that this order shall be published in the official Kansas Reports and that the costs herein be assessed to the respondent. | [
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The opinion of the court was delivered by
Miller, C.J.;
D.W.A., a seventeen-year-old minor, was charged in the District Court of Johnson County under the Kansas Juvenile Offenders Code, K.S.A. 38-1601 et seq., with possession or transportation of an incendiary or explosive device in violation of K.S.A. 21-3732. The trial court sustained a defense motion to dismiss and the State appeals.
K.S.A. 21-3732 reads as follows;
“Possession or transportation of incendiary or explosive device is the knowing possession or transportation of any incendiary or explosive material, liquid, solid or mixture, equipped with a fuse, wick, or any other detonating device, commonly known as a ‘molotov cocktail.’ ”
The complaint filed against the respondent alleges in substance that on or about January 2, 1988, and within Johnson County, Kansas, D.W.A. did
“unlawfully knowingly and willfully possess, transport an incendiary or explosive material or explosive material equipped with a fuse, wick or other detonating device, in violation of K.S.A. 21-3732.”
The defense moved to dismiss on the ground that the complaint failed to include a necessary element of the offense attempted to be charged and more specifically that the complaint failed to include the phrase “commonly known as a molotov cocktail.” The trial court, after argument, found that the complaint was defective in that it charged the possession or trans portation only of incendiary or explosive material. The court held that the statute applied only to an incendiary or explosive device, and that without the inclusion of the word “device,” the complaint was defective and did not charge an offense under K.S.A. 21-3732. It dismissed the complaint.
At the argument on the motion to dismiss, the assistant district attorney described the item which the State contended the minor possessed or transported. He said:
“Judge, I’d submit that the statute wasn’t designed to deal with just ‘molotov cocktails.’
“And I’ll just state it right now, Judge. What we’re dealing with is a torpedo. And it’s a solid-type thing. It’s placed on the railroad track. And I guess when a train runs over it, the impact of that causes an explosion and somehow signals the engineer of the train.
“So we’re not dealing with a ‘molotov cocktail.’ I’ll put that out right now. And I don’t think the statute is designed to just deal with ‘molotov cocktails.’ It deals with dangerous explosive things of which this is the type. So I ask you to overrule the Motion to Dismiss.”
It is a familiar and well-established rule that criminal statutes are to be strictly construed. In the recent case of State v. Vakas, 242 Kan. 103, Syl. ¶ 1, 744 P.2d 812 (1987), we said:
“It is a fundamental rule that penal statutes must be strictly construed in favor of the persons sought to be subjected to their operations. The rule of strict construction simply means that ordinary words are to be given their ordinary meaning. Such a statute should not be so read as to add that which is not readily found therein or to read out what as a matter of ordinary English language is in it.”
Before proceeding further, we must determine the ordinary meaning of “molotov cocktail” and “torpedo.”
Webster’s Third New International Dictionary 1456 (unabridged ed. 1964) defines molotov cocktail as “a crude hand grenade made of a bottle filled with a flammable liquid (as gasoline) and fitted with a wick or saturated rag taped to the bottom and ignited at the moment of hurling.”
Similarly, American Heritage Dictionary 846 (1970) defines molotov cocktail as “[a] makeshift incendiary bomb made of a breakable container filled with flammable liquid and provided with a rag wick.”
Torpedo, on the other hand, is defined in Webster’s Third New International Dictionary 2412 (unabridged ed. 1964) as “a detonating cartridge or shell placed on a rail to be exploded when crushed under the wheels of a railroad locomotive as a warning signal to the engineer,” and in American Heritage Dictionary 1356 (1970) as “a small explosive placed on a railroad track that is fired by the weight of the train to sound a warning of an approaching hazard.”
K.S.A. 21-3732 speaks of explosives which are equipped with a fuse, wick, or any other detonating device, and which are commonly known as a molotov cocktail. The ordinary shotgun or rifle shell contains a detonator, a very small amount of very high explosive which, when struck by the firing pin of the weapon, explodes and causes the larger amount of the less sensitive material in the shell to explode. A shotgun or rifle shell, however, is not a molotov cocktail, and is not within the reach of the statute.
Similarly, contact explosives, those which are highly sensitive, explode upon contact, and need not be equipped with a wick, fuse, or other detonating device, are not molotov cocktails, and are not proscribed by the statute.
Since the complaint did not describe the item as a molotov cocktail, and since the State readily acknowledges that the item it contends respondent possessed or transported was a torpedo, a contact explosive not equipped with a fuse, wick, or other detonating device, we hold the trial court did not err in dismissing the complaint.
The judgment is affirmed. | [
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The opinion of the court was delivered by
McFarland, J.:
Michael Colbert appeals his jury trial convictions of two counts of aggravated robbery (K.S.A. 21-3427) and two counts of aggravated battery (K.S.A. 21-3414).
At approximately 5:00 on the morning of May 15,1987, a black male entered a 7-Eleven store on North Waco Street in Wichita. He told the clerk, Raymond McCullough, that he needed to use the restroom. McCullough, knowing the restroom was being used by the other store clerk, Robert Sanneman, stated that the restroom was occupied. The black male paced back and forth until Sanneman left the restroom; he then entered the restroom. A few minutes later he came out of the restroom wearing panty hose over his face and brandishing a .38 caliber gun. He ordered the clerks to put their hands in the air.
The man then forced the clerks to the floor and demanded money. He took the money from the cash register and the two clerks’ wallets. The haul included some five-dollar bills, packets of 25 one-dollar bills, and rolls of coins. The robber demanded more money and tried to force the clerks to open the safe. He began striking the clerks with the pistol. Neither clerk had the capability of opening the safe. The robber stuck the gun barrel in McCullough’s mouth. The clerk noticed that no bullets were showing in the revolver’s cylinder and began fighting back. The robber then left with his loot in a paper sack.
McCullough called the police immediately (5:25 a.m.), and they arrived shortly thereafter. McCullough described the robber as a “fairly good looking” black male, about 5'9" to 5T0" tall, with short black hair and a mustache, and wearing brown pants, black shoes, and a blue sweatshirt.
While the police were interviewing the clerks, Eugenia Sayles, a resident of the nearby River Park Plaza Apartments, entered the store. She told the officers she had been threatened by defendant, her live-in boyfriend’s brother, who also resided in the apartment. Sayles stated defendant had had a gun at about 4:00 a.m., had left, and had returned shortly before she ran over to the 7-Eleven. He had kicked the apartment door in to get some clothes and had threatened her with a knife.
As the officers were escorting Ms. Sayles back to her apartment, they saw defendant walking across the apartment building’s parking lot. He was taken into custody, as he fit the description of the robber. On his person were 3 five-dollar bills and 25 one-dollar bills. About 50 to 100 feet away, under a stairway leading to an apartment building in the complex, the police found a brown paper sack with several rolls of coins, a blue sweatshirt, and a revolver.
The officers escorted defendant back to the 7-Eleven store where McCullough identified defendant as the robber. Sanneman did not identify defendant as the robber.
For his first issue, defendant contends that the circumstances surrounding McCullough’s identification of him when the officers brought him to the store were impermissibly suggestive, and such identification should have been suppressed.
The evidence is disputed as to what McCullough overheard of Ms. Sayles’ conversation with the officers, and how much he knew of the circumstances of defendant’s arrest. The trial court heard the evidence on the motion to suppress and concluded the identification was not made under impermissibly suggestive circumstances. There is ample evidence to support this determination.
In Neil v. Biggers, 409 U.S. 188, 199-200, 34 L. Ed. 2d 401, 93 S. Ct. 375 (1972), the United States Supreme Court described the factors to be used under the “totality of the circumstances” test in examining the reliability of identification. These factors, which have often been used by this court, are:
(1) the opportunity of the witness to view the accused at the time of the crime;
(2) the witness’ degree of attention;
(3) the accuracy of the witness’ prior description of the accused;
(4) the level of certainty demonstrated by the witness at the confrontation; and
(5) the length of time between the crime and the confrontation.
See State v. Slansky, 239 Kan. 450, 454, 720 P.2d 1054 (1986); State v. Warren, 230 Kan. 385, 390, 635 P.2d 1236 (1981).
McCullough observed the robber prior to the attempted disguise and robbery—before the robber entered the restroom. During the crimes McCullough was in close proximity to the robber. They were virtually face to face when the gun was placed in McCullough’s mouth. McCullough gave a very detailed description of defendant’s appearance and clothing prior to the identification, and the description was accurate. McCullough was certain of his identification, and the same occurred less than one hour after the crimes.
We find no error or abuse of discretion in the trial court’s denial of defendant’s motion to suppress.
For his second issue, defendant contends the trial court erred in instructing the jury in Instruction No. 7 that: “You are instructed that a firearm is a deadly weapon as a matter of law.”
The pertinent format of the instructions was as follows:
No. 3—Aggravated robbery of McCullough;
No. 4—Aggravated robbery of Sanneman;
No. 5—Aggravated battery of McCullough;
No. 6—Aggravated battery of Sanneman;
No. 7—Disputed “deadly weapon” instruction.
Instruction No. 7 applied to all four charges. Defendant objected at trial to the instruction only as it applied to the aggravated battery charges.
AGGRAVATED ROBBERY
K.S.A. 21-3427 provides:
“Aggravated robbery is a robbery committed by a person who is armed with a dangerous weapon or who inflicts bodily harm upon any person in the course of such robbery.”
No party may assign as error the giving of an instruction unless he objects thereto before the jury retires to consider its verdict stating distinctly the matter to which he objects and the grounds of his objection unless the instruction is clearly erroneous. K.S.A. 22-3414(3); State v. Massey, 242 Kan. 252, 261, 747 P.2d 802 (1987). Since defendant’s objection to the instruction did not include the aggravated robbery charges, review should be limited to whether the instruction is clearly erroneous. An instruction is clearly erroneous when a reviewing court reaches a firm conviction that, if the trial error had not occurred, there is a real' possibility that the jury would have reached a different verdict. State v. Patterson, 243 Kan. 262, Syl. ¶ 4, 755 P.2d 551 (1988).
The aggravated robbery statute uses the term “dangerous weapon.” The instruction in question used the term “deadly weapon.” In State v. Mitchell, 234 Kan. 185, 190, 672 P.2d 1 (1983), we held the two terms to be synonymous.
There was evidence the gun used was defective and inoperable. Additionally, after the robber had taken the victims’ money, one victim observed there were no bullets visible in the cylinder. However, a subjective test is to be used in determining whether a defendant was armed with a dangerous weapon in committing an aggravated robbery. As we held in State v. Davis, 227 Kan. 174, Syl. ¶ 1, 605 P.2d 572 (1980):
“In an appeal from a conviction of aggravated robbery (K.S.A. 21-3427) the court holds a starter pistol is a dangerous weapon. Since robbery has always involved intimidation or fear, the circumstances of the robbery, including the weapon, are examined from the victim’s point of view. An object can be a dangerous weapon if intended by tire user to convince the victim that it is a dangerous weapon and the victim reasonably believes it is a dangerous weapon.”
Clearly, the robber herein intended the victims to believe the gun was a dangerous or deadly weapon, and the victims reasonably believed it to be such a weapon. As far as the aggravated robbery charges were concerned, the only real issue for the jury was whether or not the defendant was the perpetrator.
We do not find Instruction No. 7 to be clearly erroneous as it relates to the aggravated robbery charges.
AGGRAVATED BATTERY
K.S.A. 21-3414 provides:
“Aggravated battery is the unlawful touching or application of force to the person of another with intent to injure that person or another and which either:
(a) Inflicts great bodily hann upon him; or
(b) Causes any disfigurement or dismemberment to or of his person; or
(c) Is done with a deadly weapon, or in any manner whereby great bodily harm, disfigurement, dismemberment, or death can be inflicted.”
The gun used herein was described by the victims as being a small gun. It was not used as a firearm, but as a club to strike the victims. There was no evidence that either victim required medical treatment for the trauma inflicted, although the incident may have aggravated a back problem of one victim. However, in aggravated battery cases an objective test applies. As we said in State v. Bowers, 239 Kan. 417, 721 P.2d 268 (1986):
“[Olrdinary words are to be given their ordinary meaning. The phrase to be construed is ‘deadly weapon.’ In State v. Hanks, 236 Kan. 524, 537, 694 P.2d 407 (1985), this court, in the context of an aggravated battery case, defined a deadly weapon as ‘an instrument which, from the manner in which it is used, is calculated or likely to produce death or serious bodily injury.’ We agree with the defendant that the subjective analysis used to determine whether a defendant is armed with a dangerous or deadly weapon in an aggravated robbery case is not applicable in the context of an aggravated battery case. That subjective test applies if the object is intended by the user to convince the victim that it is a dangerous weapon, and if the victim reasonably believes it is a dangerous weapon, then the object is a deadly weapon. See State v. Davis, 227 Kan. 174, 176, 605 P.2d 572 (1980); State v. Robertson, 225 Kan. 572, 574, 592 P.2d 460 (1979). In cases of aggravated battery, the victim’s perceptions of the instrument used by the perpetrator are irrelevant.” 239 Kan. at 422.
A gun used as a club may be a deadly weapon. The size of the weapon, the amount of force used, and the portion of the body contacting the gun are all factors for the trier of fact to consider in making the determination. The mere fact that some contact occurred between the gun and the victim is insufficient to meet the use of a deadly weapon requirement. For instance, lightly pressing the barrel of a gun into the victim’s back to make the victim move or do an act could hardly be considered use of a deadly weapon for aggravated battery purposes.
In State v. Adams, 12 Kan. App. 2d 191, 737 P.2d 876 (1987), the Court of Appeals had before it a case where a gun was used as a club. The court correctly stated the rule that it is the manner of the use of the gun in such circumstances which determines whether or not a deadly weapon was used for aggravated battery purposes, but then made the following statement: “No question exists that a .38-caliber pistol is a deadly weapon, whether fired or used as a club.” 12 Kan. App. 2d at 193.
The quoted sentence is expressly disapproved. Whether or not a gun used as a club is a deadly weapon for aggravated battery purposes is a jury question.
In overruling the defendant’s objection to Instruction No. 7 as it applied to the aggravated battery charges, the trial court made comments clearly showing that it mistakenly believed that the subjective test applied to both aggravated robbery and aggravated battery, and that any use of a gun met the deadly weapon requirement of aggravated battery.
The deadly weapon instruction usurped the function of the jury in determining whether or not a deadly weapon was used as far as the aggravated battery charges were concerned. We conclude the giving of such instruction relative to the aggravated battery charges is reversible error under the facts herein.
The defendant’s third issue is whether or not the trial court erred in refusing to instruct the jury on simple battery (K.S.A. 21-3412) as a lesser included offense of the two aggravated battery charges.
The trial court has an affirmative duty to instruct on all lesser included offenses supported by the evidence. K.S.A. 21-3107(3); State v. Cummings, 242 Kan. 84, Syl. ¶ 7, 744 P.2d 858 (1987); State v. Marks, 226 Kan. 704, 713, 602 P.2d 1344 (1979). Evidence supporting such an instruction must be considered in the light most favorable to the defendant. State v. Royal, 234 Kan. 218, 221-22, 670 P.2d 1337 (1983). The evidence need not be strong evidence—indeed, it may be weak and based only on the testimony of the defendant. State v. Cummings, 242 Kan. at 91; State v. Clark, 218 Kan. 18, 21, 542 P.2d 291 (1975). The test is whether the evidence might reasonably cause a jury to convict the defendant of the lesser charge. State v. Crispin, 234 Kan. 104, 109, 671 P.2d 502 (1983).
Whether the weapon used in the robbery was a deadly weapon under K.S.A. 21-3414(c) should have been an issue of fact for the jury, as explained in the previous issue. Had the jury been able to make that determination, the jury might have concluded the gun was not used in a manner in which it was calculated or likely to produce death or serious bodily harm and that its use constituted a simple battery on either or both of the charges. We conclude the failure to instruct on simple battery as a lesser included offense of the aggravated battery charges is reversible error.
The two convictions of aggravated robbery are affirmed, the two convictions of aggravated battery are reversed, and the case is remanded for further proceedings. | [
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The opinion of the court was delivered by
McFarland, J.:
James J. Chapman and Robert L. Westhoff, Jr., were, at all times pertinent, codefendants in certain criminal proceedings. The district court held that their statutory speedy trial rights (K.S.A. 22-3402[2]) had been violated and dismissed the charges. The State appeals from this determination pursuant to K.S.A. 22-3602(b)(l).
The applicable statute is K.S.A. 22-3402(2), which provides:
“If any person charged with a crime and held to answer on an appearance bond shall not be brought to trial within one hundred eighty (180) days after 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).”
In case No. 87-CR-913, defendant Chapman was charged with attempted possession of cocaine and possession of marijuana; defendant Westhoff was charged with attempted possession of cocaine.
Both defendants were arraigned on July 28, 1987. The charges were dismissed on October 5, 1987, on what, in Sedgwick County, is known as the prime trial date. On October 14, 1987, identical charges were refiled in case No. 87-CR-1652. On November 4, 1987, the case came before Judge Paul Clark for preliminary hearing. A one-day continuance was granted. On November 5, 1987, preliminary hearing was waived and de fendants were arraigned. Trial was set for January 11, 1988, with the prime trial date being set for February 22, 1988. At the same time, the prosecution issued subpoenas for the prime trial date. The trial date-prime trial date dichotomy appears to be well established in Sedgwick County lore and is utilized routinely. Rarely do cases go to trial on the trial date, as it is expected a defendant will seek to continue the case to the prime trial date. The purpose of this ritual is obscure to outsiders but appears to be standard operating procedure in that judicial district.
In any event, this brings us to the area of dispute in the computation of the 180-day time period. The January 11, 1988, trial date was within the 180-day period. The February 22, 1988, date was outside of the period. On February 22,1988, (the prime trial date) the case was called for trial. Defendants moved for discharge on the basis of violation of their statutory speedy trial rights. The State sought to introduce a computer printout showing the trial had been continued from the trial date (January 11) to the prime trial date at defendants’ request, the continuance having been granted on January 11. It is undisputed that the procedure followed is for the administrative assistant (or court services officer) to telephone defense counsel to ask if defendant wants to continue the case from the trial date to the prime trial date. Such a continuance was described as “practically automatic.” This is why subpoenas are targeted to the prime trial date. Defense counsel had no recall as to whether or not he had been contacted by the administrative assistant and had requested the continuance in this case. On the day of the hearing the administrative assistant was ill and could not testify.
Defense counsel argued that the computer printout was inadmissible as evidence herein by virtue of K.S.A. 60-2601a, which provides:
“In any county which has a computer information storage and retrieval system for the use of the clerk of the district court of such county, the records and information required to be maintained in the dockets and journals under the provisions of section 60-260I(b)(l), (2), (3), and (4) may, upon order of the administrative judge of such court, be maintained in such computer information storage and retrieval system. The clerk of the district court of such county shall be charged with the responsibility of making such records and information maintained in such computer information storage and retrieval system accessible to the public during normal working hours.” (Emphasis supplied.)
Court recordkeeping had been “computerized” in Sedgwick County for some time prior to the events herein, but no order of the administrative judge pursuant to the statute had been entered. The statutory order was entered shortly after the hearing herein.
The district judge was pursuaded by this argument and held that the computer printout was inadmissible. There was, accordingly, no evidence before the court that a continuance had been at the request of the defendant. Thus, the motion to dismiss for violation of the speedy trial statute was granted. The State contends this was error. We agree.
The question of fact before the court was whether or not the trial had been continued from January 11 to February 22 at defendants’ request. The computer printout was certainly relevant evidence on that question of fact. It was clearly admissible. The weight to be afforded such evidence would be for the court to determine. The district court applied K.S.A. 60-2601a too broadly. The statute is intended to accomplish an orderly transition from “paper” recordkeeping to computer recordkeeping. The failure to have a formal order authorizing the use of computer recordkeeping does not render occurrences and events recorded therein nullities. If a judge grants a motion for a continuance in a hallway or snack bar and makes no record at all thereof, the granting of such continuance does not become a nonoccurrence. From the evidence available, the finder of fact must determine whether or not the continuance was granted. The ruling of the trial court herein would render innumerable court proceedings to be nullities if the only court record thereof lay in the computer.
We conclude that the judgment of the district court must be reversed and the case must be remanded for a determination, based upon all relevant evidence presented, as to whether or not the trial was continued from January 11, 1988, to February 22, 1988, at defendants’ request. After such determination, the motion for dismissal for violation of the speedy trial statute can be properly resolved.
The judgment is reversed and the case is remanded for further proceedings consistent with this opinion. | [
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The opinion of the court was delivered by
Lockett, J.:
Defendant, John F. Clements, appeals his conviction of aggravated criminal sodomy, K.S.A. 21-3506, claiming that he was denied his statutory right to a speedy trial, K.S.A. 22-3402, and that the trial court erred by permitting the State’s expert witness to explain the psychology and treatability of sexual offenders to the jury. We find that, although the defendant’s statutory right to a speedy trial was not violated, admission of the expert testimony violated the defendant’s right to a fair trial and we reverse.
In 1985, Clements was charged with aggravated criminal sodomy of P.V., an eleven-year-old boy, and two counts of promoting obscenity to minors, K.S.A. 21-4301a, in connection with two other minor boys. The jury convicted Clements on the obscenity charges, but its inability to reach a verdict on the sodomy charge resulted in a mistrial as to that charge. Upon retrial of the sodomy charge in 1986, Clements was convicted. He appealed, claiming the trial judge improperly admitted. his 1982 conviction for sodomy as evidence of a prior crime relevant to prove plan or scheme under K.S.A. 60-455. A majority of this court determined that the evidence of the prior crime was not admissible under 60-455 since it was only used to infer that, because Clements had committed a similar crime in the past, he committed the crime charged. His conviction was reversed and remanded for a new trial. State v. Clements, 241 Kan. 77, 734 P.2d 1096 (1987).
The clerk of the district court of Butler County received the mandate of this court on May 26, 1987. On June 8, 1987, defendant was arraigned, counsel was appointed, and Judge Sanders set the new trial for September 1, 1987. Both the judge and the State were under the mistaken impression that the speedy trial statute mandated a trial within 90 days of arraignment, rather than 90 days of the date the mandate of the appellate court reversing the conviction is filed with the clerk of the district court. K.S.A. 22-3402(4). Despite defendant’s objection, on July 15, 1987, or within the 90-day limitation, the district judge continued defendant’s September 1 trial date to September 22, 1987, because of his crowded trial docket. K.S.A. 22-3402(3). After the expiration of 90 days from the date that the mandate of this court had been received by the clerk of the district court but prior to the September 22 trial setting, Clements filed a motion to dismiss, claiming that he had been denied his statutory right to a speedy trial. On September 16, 1987, defendant’s motion was denied. Defendant’s case proceeded to jury trial on September 22, 1987, and he was convicted of one count of aggravated sodomy. Defendant appeals, contending he was denied his statutory right to a speedy trial pursuant to K.S.A. 22-3402 and that the trial judge erred by allowing the State’s expert to explain the psychology and treatability of sexual offenders to the jury.
Speedy Trial
tinder the Sixth Amendment to the Constitution of the 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 implemented a statutory limitation, K.S.A. 22-3402, which specifies the time within which an accused must be brought to trial.
Relevant portions of K.S.A. 22-3402 provide:
“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).
“(3) The time for trial may be extended beyond the limitations of subsections (1) and (2) of this section for any of the following reasons:
“(d) Because of other cases pending for trial, the court does not have sufficient time to commence the trial of the case within the time fixed for trial by this section. Not more than one continuance of not more than thirty (30) days may be ordered upon this ground.
“(4) In the event a mistrial is declared or a conviction is reversed on appeal to the supreme court or court of appeals, the time limitations provided for herein shall commence to run from the date the mistrial is declared or the date the mandate of the supreme court or court of appeals is filed in the district court.”
Because Clements’ conviction was reversed by this court, Clements had to be tried within 90 days after the mandate was filed in the district court, May 26, 1987, or within 120 days if the court ordered a statutorily authorized continuance. At defendant’s arraignment on June 8, 1987, the district judge set a trial date of September 1, 1987. It is undisputed that this setting exceeded the statutory limitation which would have become effective August 24, 1987. However, on July 15, 1987, prior to expiration of the 90-day limitation, the district judge continued Clements’ trial to September 22, 1987, under K.S.A. 22-3402(3)(d), due to the number of other cases already set for trial.
Clements asserts that, although he was brought to trial within the maximum 120 days allowed by the statute, he was denied his statutory right to a speedy trial. Clements reasons even if the continuance is based on one of the authorized reasons set forth in subsection (3) of K.S.A. 22-3402 the continuance could not cure the improper initial trial setting. An examination of the transcript of the July 15, 1987, hearing reveals the following statement by the judge:
“THE COURT: This case is 85 CR 282, the State of Kansas versus John F. Clements, Jr. Let the record show that the State is represented by Mr. Mike Ward of the Butler County Attorney’s office. That John Clements, Jr. is present in person and by his court appointed counsel, Mr. Rusty Davis. Mr. Clements, the reason that I got you out this morning was because the Court has run into some scheduling problems in regard to your trial date. We originally set your trial date for September 1, beginning at 9 o’clock a.m. I have been asked to sit on the Court of Appeals on September the 1st and the 2nd. I have got all kinds of jury trials and other types of hearings scheduled all the way through August and the rest of July and quite aways into October and November. Under the statute about speedy trials, as the Court interprets that, that you have to be tried within 90 days. The Court, however, under 22-3402, subsections (3)(d): Because of other cases pending for trial, the court does not have sufficient time to commence the trial of the case within the time fixed by this section. There can be one continuance of not more than thirty (30) days ordered upon the grounds of the—the court’s schedule. So, at this time, counsel, I’m going to have to reschedule this matter because of my schedule, and I’ve set September 22nd at 9 o’clock, and moved—knocked off some other cases and moved this one to September 22nd, but, I think this still gets us within the parameters. So, this case will be reset for the 22nd of September at 9 o’clock. I apologize Mr. Clements for not being able to hear it on the first, but my schedule is just in bad shape. Mr. Ward, is there any comment from the State . . . [?]”
At the September 16, 1987, hearing on defendant’s motion for dismissal, the district judge noted that when he realized that defendant needed to be brought to trial by August 26, 1987, he examined his docket and determined that due to other cases pending for trial it would be necessary to grant a continuance. He stated: “My docket was virtually impossible. This judge simply did not have the time to get Mr. Clements to trial by August 26.”
Clements erroneously cites State v. George, 9 Kan. App. 2d 479, 681 P.2d 30 (1984), as authority for dismissal. George was brought to trial on the 182nd day after the declaration of a mistrial. No continuance authorized by statute had been exer cised during the 180 days. After the 180-day limitation had expired, the trial judge stated that the continuance had been required due to a crowded trial docket. The Court of Appeals reversed, holding that under K.S.A. 22-3402 a statutorily authorized continuance must be granted within the initial 180-day limitation.
Here, even though the district judge failed to follow the proper statutory procedure when determining the expiration of the 90-day limitation for retrial of the defendant, the 30-day continuance due to a crowded trial docket was ordered prior to the expiration of the 90-day limitation imposed by K.S.A. 22-3402. Though the judge’s reasoning was flawed, Clements was retried within 120 days after the mandate of this court had been received by the clerk of the district court as required by statute. Clements’ statutory right to a speedy trial was not violated.
Expert witness
Clements next claims that, over his objection, the trial court improperly allowed the State’s expert witness, Tom Pletcher, to testify about the treatability and psychology of sexual offenders and then permitted the prosecutor to tie this testimony to Clements in his closing argument. Clements argues that evidence of the treatability and psychology of sexual offenders is not relevant to the issues in this case.
Evidence is relevant if it has any tendency to prove any material fact. K.S.A. 60-401. To be admissible, evidence must be confined to the issues but need not bear directly upon them. To render evidence of collateral facts competent, there must be some logical connection between them and the inference or result they are designed to establish. State v. Reed, 226 Kan. 519, 601 P.2d 1125 (1979) (citing State v. Brown, 217 Kan. 595, 538 P.2d 631 [1975]; State v. Fagan, 213 Kan. 587, 518 P.2d 552 [1973]).
Tom Pletcher, a psychologist, was employed as clinical director of the Counseling Center in El Dorado, Kansas. Pletcher’s background included experience in counseling sexual abuse victims and specialized training in the area of child sexual abuse. Pletcher had counseled the victim, P.V., and testified for the State.
The portion of Pletcher’s testimony to which defendant objected is as follows:
“Q: (By Mr. Ward) Mr. Pletcher, in general terms can you describe for the jury the psychology of an adult who sexually abuses children?
“A: First off I think I would address primarily my comments to the category of behavior which would apply to people who seek out sexual contact with children, and by this I mean not someone who may physically abuse a child in a—just happens to be in a sexual way, not a violent act necessarily in that sense. What you would look at is within the area of people who have a fairly strong orientation toward sexual contact with children. There are at least two categories as we tend to look at them. Within the overall categories, what we are seeing though is an adult who has, we will say a primary or at least a very persistent contact with children to satisfy their own sexual urges. To look at this we have someone who is either very distressed by their behavior or their thoughts or someone who is acting on them and this is something that goes on for some amount of time. It is not a specific, one particular size category, so to speak, in the sense that there are many different factors that apply. For example people who do that, there are some individuals who would be orientated toward children of the same sex that they are, other individuals who are orientated to the opposite sex, so you have that distinction. You have some people who are orientated toward either where it doesn’t seem to make much difference. There are some individuals orientated towards children only in the family or orientated to children outside of the family. There are individuals that are—have an orientation toward children alone that are—their only sexual relationship is expressed with a child while there may be other people within a broad category who are able to maintain some sort of an adult sexual relationship and possibly may be married. In those kinds of cases we sometimes see where the other relationships are the ones that come almost out of social pressure, where they feel expected to be in these kinds of relationships. Probably the primary case is that the primary orientation is that toward the child and there is a compulsion, and by that I mean a driving force within them that this is the orientation that they pursue, that that is what they look at.
“Q: Are there different reasons why an adult will sexually abuse children?
“A: Yes. One of the things that has been found in a great number of cases of abusers is that they have been abused sexually themselves in the past. If I remember correctly, roughly a third of them have been abused. That is one thing. There may be other traumatic events that happen during the development of the child. These kinds of things can occur. It is a part of the character. It is a part of them that developed over a period of time. It does not seem to be in general. We can’t say that there is a specific event that always happens in all of these cases. It develops in different ways for each person.
“Q: You started to talk earlier about there being categories. Can you describe those categories for the jury?
“A: We look at them and make a distinction for these people in terms of—I would call them either fixated or regressed, and let me explain a little bit about what that means. A person who is fixated, you might think of them as they progress through adolescence, they stopped developing sexually in terms of relationships at that point and they never really progress beyond that. Their orientation is always toward the age mates, so to speak, that they had at that time and this may be children below the age of around 13. The other category, regressed, are people who may progress and have a fairly normal adult relation ship. There are typically problems within the family and this may be one of them, but under the periods of stress, this person regresses back to an orientation toward the child. Some of the things that are different between them are a person who you might consider being fixated. This tends to begin in adolescence for them, so it is of long standing, a long standing problem of behavior. We often see that there doesn’t seem to be a particular stressor that causes them to act this way, something that happened around them to cause them to pull back and act out these desires. This is their primary way of relating to someone sexually. They—
“Q: Let me stop you. There are fixated persons that you are now describing as I understand your testimony, and this person evolves emotionally to a certain age level and stops, is that what you are saying?
“A: Yes, essentially that is what it is so that socially and sexually they stopped at that point and don’t really develop beyond that. There may even be some external contact with age mates, with appropriate age mates in adulthood, but the primary focus is that on children.
“Q: Is there a specific term used to describe that kind of an individual?
“A: Yes, there is.
“Q: And tell the jury what that term is.
“A: The term ‘pedophilia’ applies to the category of individuals whose primary orientation is toward children.
“Q: Let’s talk about the treatability of the regressed sexual offenders and the treatability of fixated sexual offenders. Are fixated sexual offenders generally speaking treatable for this problem?
“A: Generally considered, no. I think the common assumption is that the person may enter treatment, but the chances of a cure so to speak of that being changed is minimal.
“Q: Now, how about the regressed sexual offender, the person who only commits the crime because of some stress situation in his life, is he or she treatable?
“A: The prognosis would be much better in that case. The chances of them being treated and not returning to such behavior would be much greater.”
On cross-examination, Pletcher stated that the above comments did not specifically relate to the defendant and that he had never met or talked with Clements. However, in closing argument, over defendant’s objection, the prosecutor was allowed to tie Pletcher’s testimony to the defendant by stating:
“John Clements is a 27 year old man or 29 year old man. He has a 29 year old body and he has a thirteen year old mind that wants him to associate with kids of that age group, and that is exactly what he did. He tells you that he went to Carol Lussier’s house for Carol’s benefit. He didn’t go to her house to help her out, he went to her house because he knew that boys would be there and he wanted to have contact with those young men. That is the way his mind is set that with kids he feels comfortable being around.”
The State asserts that Pletcher’s testimony was properly admitted to assist the jury in understanding the nature of child sexual abuse. It equates this evidence with expert testimony explaining the battered woman syndrome in cases where a woman is charged with a crime against her batterer.
Clements contends that, even though Pletcher was a qualified expert in the field of sexual abuse of children, his testimony had no tendency to prove a material fact, i.e., whether P.V. was sexually abused by Clements. He argues that the only logical inference that the jury could have drawn from Pletcher’s testimony was that Clements fit the profile of the typical child sexual offender and was, therefore, guilty of the offense charged.
A similar issue was raised in Hall v. State, 15 Ark. App. 309, 692 S.W.2d 769 (1985). In Hall, the defendant appealed his conviction of two counts of sexual abuse involving a friend’s children whom he was babysitting. At trial, an expert witness psychologist was allowed to testify regarding the dynamics of child sexual abuse, specifically that, in 75 to 80 percent of such cases, the perpetrator is known to the child ahead of time, is a relative or friend, and has implied or explicit authority over the children, perhaps as a teacher, grandparent, or babysitter. The expert also stated that generally the victims are instructed not to relate what happened to them, that half of the cases occur in the home of the child or perpetrator, and that the psychological profile of the perpetrator is usually heterosexual with the first offense occurring before the age of 40 and often related to alcohol or drug abuse. In Hall, as in the case at bar, the expert witness had not examined the defendant.
The Arkansas Court of Appeals found that the expert testimony tended to focus the attention of the jury upon whether the evidence against the defendant matched the evidence in the usual case involving sexual abuse of a young child. It determined that this type of evidence was not of proper benefit to the jury, since it was not introduced to rebut a misconception about the presumed behavior of an abused child, but to prove that the circumstances and details in that case match the circumstances and details usually found in child abuse cases. 15 Ark. App. at 317. Because of the admission of this evidence, over objections to testimonial generalities concerning the “dynamics” of child abuse, the conviction was reversed and the matter remanded for a new trial.
A related case is State v. Maule, 35 Wash. App. 287, 667 P.2d 96 (1983). In Maulé, the defendant was convicted of two counts of first-degree statutory rape of his daughter and step-daughter. At trial, the prosecution was permitted to elicit testimony relating to general characteristics of child sexual abusers during qualification of its expert, a counselor at a community medical center who had treated the victims, but who had never treated the defendant. Specifically, the expert testified that 54-55 percent of the sexual assault center’s caseload of about 750 involved victims under the age of 16. She stated further that the majority of cases involved a male parent-figure and, of those cases that involve a father-figure, biological parents are in the majority; and that the great majority of cases involve abuse over an extended period of time. On appeal, the defendant argued that the admission of this testimony constituted reversible error and the Washington Court of Appeals agreed.
The court rejected the State’s argument that the evidence was relevant to assist the jury in establishing the expert witness’ qualifications. The court reasoned that substantive evidence prejudicial to the opposing party does not lose its prejudicial character because it is offered' during qualification of an expert. Its admissibility must be determined the same as any other evidence which is relevant but involves a danger of unfair prejudice. The court reversed defendant’s conviction, determining that such evidence invites a jury to conclude that, because the defendant has been identified by an expert with experience in child abuse cases as a member of a group having a higher incidence of child sexual abuse, it is more likely the defendant committed the crime. 35 Wash. App. at 293.
A more recent case is State v. Percy, 146 Vt. 475, 507 A.2d 955 (1986). The defendant in Percy was convicted of one count of sexual assault. When questioned by police, the defendant claimed no recollection of the event. At trial, he presented an insanity defense, which he attributed to his combat experience in the Vietnam War. Upon cross-examination of defendant’s own expert, the prosecution was állowed to elicit testimony that rapists typically claim consent or amnesia as a defense.
On appeal, the defendant claimed that such testimony improperly associated him with a general profile of rapists, and the Supreme Court of Vermont agreed. Initially, the court distinguished this evidence from permissible profile or syndrome evidence, which it described as evidence elicited from an expert that a person, generally a victim of crime, is a member of a class of persons who share a common emotional, physical, or mental condition. The court then stated it failed to see how explanations or excuses offered by other rapists are relevant to what this particular defendant said in response to the offense charged. Allowing such evidence would permit'the prosecution to suggest that a defendant’s “story” is just like all the others and therefore lacks credibility. The court noted further that the testimony impermissibly stereotyped the defendant as one whose explanations were not to be believed because they were explanations typically offered by psychiatric patients accused of rape. In reversing the conviction, the court reasoned that the jury could well have concluded that this rapist was just like all the other rapists and might have rejected the defendant’s insanity defense not because of the evidence before it but because defendant “fit the mold.” 146 Vt. at 484. We find the reasoning of these cases persuasive on the issues before us.
The thrust of Hall, Maulé, and Percy is that (1) evidence which only describes the characteristics of the typical offender has no relevance to whether the defendant committed the crime in question; and (2) the only inference which can be drawn from such evidence, namely that a defendant who matches the profile must be guilty, is an impermissible one.
Comparing the erroneously admitted evidence in this case to that admitted in Hall, Percy, and Maulé, the error here presents an even more compelling case for reversal. Pletcher testified not only to isolated traits of the typical child sexual abuser, but provided the jury with a detailed description of “categories” of such offenders (fixated and regressed) as well as the prognosis for treatability of each category (little prognosis for cure if the individual was “fixated”). Pletcher described the fixated type as an adult who has “stopped developing sexually in terms of relationships” at a certain age, possibly around the age of 13, and thereafter retains a sexual orientation towards children of like age. In closing argument, the prosecutor explained to the jury that the defendant chose to frequent a shop selling baseball cards to young boys, so he could become acquainted with them and entice them to visit his home. The only inference which the jury could have drawn from this argument and Pletcher’s testimony was that defendant fit the profile of the typical fixated child molester and was, therefore, guilty.
Finally, we cannot agree with the State’s contention that expert testimony of the treatability and psychology of sexual offenders can be compared with expert testimony of the battered woman syndrome. Expert testimony explaining the battered woman syndrome is relevant to the woman’s claim of self-defense and assists the jury in determining the reasonableness of the woman’s perception of her imminent danger. State v. Hodges, 239 Kan. 63, 716 P.2d 563 (1986). Here, the expert’s testimony detailing the characteristics of the individual who typically sexually abuses children did not assist the jury in determining if the child was sexually abused by Clements.
Though there was other evidence of defendant’s guilt, the error here may not be held to be harmless. For us to hold the improper admission of the expert testimony and the prosecutor’s remarks harmless, we must be able to say beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial. State v. Johnson, 231 Kan. 151, 159, 643 P.2d 146 (1982). Given the highly prejudicial nature of the expert testimony and the prosecutor’s comments in closing argument, we cannot say beyond a reasonable doubt that the verdict was untainted by their admission.
Reversed and remanded for a new trial. | [
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The opinion of the court was delivered by
Herd, J:
This is a criminal action wherein appellant Thomas Bird appeals the district court’s denial of his motion for a new trial based on newly discovered evidence.
We upheld Bird’s jury conviction of first-degree premeditated murder, K.S.A. 21-3401, in State v. Bird, 240 Kan. 288, 729 P.2d 1136 (1986), cert, denied 481 U.S. 1055 (1987). Bird was convicted of the July 17, 1983, murder of his wife, Sandra Bird. The State’s theory of the murder was that Bird fatally beat Sandra and threw her body off a bridge. Her car was rolled over an embankment so that it first appeared she missed the bridge and was thrown into the water when her car door was torn loose. Further investigation indicated, however, that she had been killed first and the car had been pushed down the embankment as a coverup.
The jury refused to accept Bird’s theory at trial that Sandra died as a result of a car accident. Bird now claims newly discovered evidence shows Sandra committed suicide by purposefully driving the car over the embankment.
A week before her death, Sandra and Thomas Bird were at a church conference with two couples who were friends of theirs. A1 Boison and Charles Smith, along with Bird, were ministers. Their wives, Pat Boison and Carolyn Smith, were alone with Sandra one afternoon when Sandra cried and said she was upset because Bird was spending too much time with his church secretary, Loma Anderson. Sandra had lost weight and appeared to be depressed about her husband’s relationships with other women. She told Carolyn and Pat about a time when a preschool teacher in Bird’s church told her she used to wish Sandra would die in a car wreck so she would have Pastor Bird.
At another time during the conference, the Smiths and the Birds were sitting around relaxing and having drinks when the talk turned in a joking manner to new life insurance policies the couples had obtained through the Lutheran Church. Pastor Smith made a joking remark to his wife that he would now have to watch out for her because she would “do him in” for the insurance money. Carolyn Smith replied, “Well, I’d have to be very careful of how,” and everyone laughed. Pastor Smith recalled that each person then stated what they thought the best way to kill themselves would be when there was insurance available. Sandra Bird made a comment that if she were ever to commit suicide, she would do it in a car because then it would look like an accident and “the insurance company would have to pay.” Everyone laughed again. Carolyn Smith testified she considered the remark a joke added to a light-hearted conversation which was “rapidly degenerating.”
When Carolyn Smith heard Sandra had been killed in a car accident, however, her first thought was of suicide. She testified suicide was her “frame of reference” because she had had a painful experience in her past where a close friend had killed herself. She called the Boisons and told them of Sandra’s death and reminded them of Sandra’s comment about suicide during the discussion of insurance at the conference. She asked, “She didn’t do it, did she?”
Both the Smiths and the Boisons concluded that perhaps Sandra had committed suicide. Pastor Smith testified he believed Sandra committed suicide because he did not think her death was an accident and he did not want to believe it was murder. He told Bird he believed Sandra’s death to be suicide. He also told Mark Bird, Thomas Bird’s brother; Irv Shaw, Bird’s first defense attorney; and Glen Peglau, one of Bird’s present attorneys, of this belief. Pastor Smith was called as a witness for Bird at his murder trial in 1986, but was asked no questions regarding the possibility of suicide.
On September 14, 1984, special agent J. Vernon Humphrey of the Kansas Bureau of Investigation received a phone call from Mark Birchler, chief of police in Marianna, Arkansas. Birchler had heard from a friend of Pastor Smith that Sandra had sent Smith a suicide note on the day of her death. Birchler was of the opinion that Smith was upset with Bird because he now believed him to have been unfaithful to Sandra. Agent Humphrey memorialized this information in a report which he provided Bird’s attorney.
The information prompted Humphrey to travel to Tampa, Florida, to interview Pastor Smith to see if he had received such a note. Humphrey found Smith had not received a suicide note, but had received a note from Sandra at the end of the conference. At the motion hearing, Pastor Smith recalled Sandra had written, “Dear Charlie. Things are better now with Tom and I. I’m sorry that I did not get a chance to talk to you this weekend, but I have hope for the future. Sandy.” Smith explained that Sandra had telephoned him several times in the months preceding her death to talk about her anxiety over her husband’s close relationship with Lorna Anderson.
While Agent Humphrey was interviewing Pastor Smith, Carolyn Smith came into the room and added to her husband’s replies. There were no inconsistencies between the husband’s and wife’s comments. Humphrey had titled his report as an interview with Pastor Smith, and did not note in his report that he had also talked with Carolyn Smith. A copy of the report was given to Bird’s defense counsel. In the report, Agent Humphrey sometimes referred to “the Smiths” or “they” rather than merely “Smith.”
Humphrey noted that Pastor Smith believed that Sandra had “peace of mind and was no longer particularly concerned about anything” at the conference. Agent Humphrey further noted:
“During that conference, however, the Birds and the Smiths got involved in conversations regarding insurance, because they had all recently purchased insurance through the Lutheran system. The victim made statements several times during that conference, when they were talking about insurance, that if anyone ever wanted to commit suicide the way to do it would be in a car wreck. The victim, however, never mentioned that she, personally, was contemplating suicide, nor did the Smiths get the impression that she might be contemplating it.”
Agent Humphrey reported that Pastor Smith had planned to testify on Bird’s behalf at his trial in 1984, at which he was convicted of criminal solicitation to commit murder of Lorna Anderson’s husband. This conviction was affirmed in State v. Bird, 238 Kan. 160, 708 P.2d 946 (1985). He found he could not bring himself to do so, however, after Bird confessed to him he was involved in an affair with Lorna Anderson. Pastor Smith told Humphrey he did not believe Bird killed Sandra, but felt that Lorna Anderson could have “pressured Sandy into killing herself.”
Agent Humphrey continued his report with the version of events on July 17, 1983, given the Smiths by Bird, concluding: “They don’t remember any other particulars about what Bird told them about the activities of that night.”
The Smiths testified at the motion hearing that they told Agent Humphrey they both initially believed Sandra to have committed suicide. These opinions were not noted in the report. Agent Humphrey testified the possibility of suicide was considered until the pathologists and investigators on the case reached a consensus of opinion it was not possible to explain Sandra’s death in this way.
At the grand jury proceeding on February 11, 1985, Pastor Smith testified about the insurance conversation, a transcript of which was provided to defense counsel:
“A. At that particular conversation, Sandy made some rare careless comment about suicide or let me be exact and say that she indicated that [if] someone were to have an accident, a car accident, it would be very hard for other people to prove whether it was suicide or not. She mentioned that on, I would say, two or three times to me, my wife and another lady that was present.
“Q. Was Tom Bird present at that time?
“A. I don’t think Tom was present at that time. I can’t say that for sure. He may have been in one conversation when we were talking about an insurance policy we all had and Tom may have been present at that time, but I can’t say for sure.”
At the motion hearing, Pastor Smith testified Bird was present during the conversation. His memory of “another lady” being present at the discussion was not explained. Carolyn Smith agreed Bird had been present when his wife made the comment about suicide.
At the motion for a new trial, Pat Boison testified that, when Carolyn Smith had called and. related to her the news of Sandra’s death, Carolyn had not only told her that Sandra had mentioned suicide by automobile accident, but that she had mentioned she would do it on a deserted road six miles outside of Emporia, the very place where she was killed. Pastor Boison only remembered the Smiths stating that Sandra had said if she was going to commit suicide she would drive over an embankment. He shared this information with Ralph Bird, Thomas Bird’s father, before the trial.
Carolyn Smith denied telling Pat Boison that Sandra had predicted the place of her death. She did explain, however, that she had told Pat Boison where Sandra had been killed during the same conversation in which she related Sandra’s comment about suicide.
Both Boisons believed Sandra had been depressed and had committed suicide. Neither had heard Sandra say anything about committing suicide, however. Their only information concerning this topic came from the Smiths. Pastor Smith testified he had not provided the Boisons with any information he had not provided the court.
The court accepted into evidence a letter to defense counsel from Pastor Jeffrey Stephens, but noted the letter qualified as unsworn testimony. Pastor Stephens wrote that Pastor Smith had talked to him confidentially after returning from Bird’s first trial for solicitation. Stephens said Smith was angry at Bird and “seemed convinced that Sandy Bird’s death was suicide and that Tom’s alleged affair sent her over the brink.” According to Stephens, Smith said Sandra had called him several times in despondency over the relationship. During one of the calls, “she told him that her life was in so much turmoil that she saw no point in living any longer. And during the last call, according to Rev. Smith, she said that she had considered taking her life.” Pastor Stephens said he had kept this information to himself until after Bird’s second trial for murder because of Smith’s repeated requests for confidentiality. Stephens possessed no information regarding the possibility of suicide other than what he claimed to have heard from Pastor Smith.
Pastor Smith testified at the hearing that Sandra’s remarks at the conference were the only suicidal statements he had ever heard her make.
The court also accepted into evidence a copy of Hyde and Forsyth, Suicide: The Hidden Epidemic, Ch. 10 (2d ed. 1986), which warned that signs of depression and suicidal threats should be taken seriously. The authors note that a “sudden apparent peace of mind” may also be a warning that a person has made a final decision to commit suicide.
The first issue is whether the district court erred in denying Bird’s motion for a new trial on the grounds of newly discovered evidence. A new trial should not be granted on the grounds of newly discovered evidence unless the evidence is of such materiality as to be likely to produce a different result at a new trial. Further, the defendant bears the burden of proving the evidence could not with reasonable diligence have been produced at trial. Our review of an order denying a new trial is limited to whether the district court abused its discretion. State v. Richard, 235 Kan. 355, 363, 681 P.2d 612 (1984).
Bird argues the Boisons and Pastor Stephens were witnesses unknown to both the State and the defense before trial. He argues Carolyn Smith was unknown to the defense because she was not specifically mentioned in Agent Humphrey’s report. Bird contends these witnesses gave much stronger evidence of suicide than was believed before trial.
The district court found the evidence was known or should have been known to Bird and was not of such materiality that it would be likely to produce a different result at retrial. The court also noted that there was no evidence Sandra was depressed on the night of her death and that, on the contrary, the evidence at trial showed she was in a joyous mood because she had been promoted at work.
Bird contends the district court abused its discretion by focusing on the evidence of Sandra’s state of mind the evening of her death. This argument is without merit. There is no indication the district court failed to consider all the evidence before it.
There is also no merit to Bird’s contention the court abused its discretion in noting the jury found Sandra not to have died as a result of a car wreck. Bird protests the jury did not find that Sandra could not have intentionally killed herself in a car wreck. While it is true that the jury’s verdict only proves it did not accept Bird’s theory at trial that Sandra died in an accidental car wreck, most of the evidence supporting this conclusion showed Sandra died of injuries inflicted prior to and outside of the car wreck.
Bird argues that evidence presented at trial now can be seen as pointing to suicide but, without the newly discovered evidence, he could not have known he had a strong case for a suicide theory. The absence of skid marks testified to at trial could be seen as indicative of suicide. Witnesses testified that Sandra had lost weight and been upset but had seemed at peace in the days before her death; there was testimony she had told her mother “her life was right with God.” Bird argues the new evidence of Sandra’s thoughts of suicide would be likely to convince a jury that her newfound peace came from her decision to kill herself. He also speculates that even Sandra’s celebration of a promotion could have plunged her into deeper depression when she realized the fundamental problems with her marriage remained.
Bird argues if Agent Humphrey had indicated in his report that he had interviewed Carolyn Smith as well as her husband, he might have been led to further investigation which might have led to stronger evidence of suicide. Carolyn, not Pastor Smith, was present when Sandra cried, and she was the one who first talked to the Boisons about Sandra’s comments during the insurance discussion.
There is strong evidence that Bird knew or could have with reasonable diligence discovered Carolyn Smith’s and the Boisons’ testimony. He knew from Pastor Smith’s remarks to Agent Humphrey and at the grand jury proceeding that Sandra had mentioned suicide. Both Pastor Smith and Carolyn Smith testified Bird was present when Sandra made the remarks. Agent Humphrey’s report clearly states Bird was present when Sandra made her comment about suicide. If Bird had found this to be false, he had the opportunity to investigate the report further and determine why the Smiths believed him to be in the room.
Bird knew he and his wife had attended the conference, during which the suicide remarks were made, with the Boisons as well as the Smiths. Paster Boison informed Bird’s father that he believed Sandra to have committed suicide, but Boison was not questioned. Bird’s defense counsel, Bird’s brother, and Bird himself were informed that Pastor Smith believed Sandra’s death to be suicide, but Pastor Smith was also not questioned about the topic.
The only new evidence presented by Bird is Pastor Stephens’ unsworn statements to defense counsel, which contradict Pastor Smith’s sworn testimony in court that he had only heard Sandra mention suicide during the insurance discussion, which discussion was known or made known to Bird before trial. The credibility of the evidence offered in support of a motion for a new trial on the grounds of newly discovered evidence is for the trial court’s consideration. State v. Armstrong, 240 Kan. 446, 450, 731 P.2d 249, cert, denied 482 U.S. 929, 96 L. Ed. 2d 702 (1987).
Further, the information is not of such materiality as would be likely to produce a different result at a new trial. Bird already had evidence in support of a suicide theory before trial—Pastor Stephens’ letter, if admitted, would have been merely cumulative. Any indication from the letter that Pastor Smith was angry at Bird and perhaps should be interviewed carefully by defense counsel was also given before trial by Agent Humphrey’s report of his conversation with chief of police Mark Birchler. Bird has failed to meet his burden of showing the district court abused its discretion in failing to grant a new trial.
The second issue is whether the State denied Bird due process by failing to reveal exculpatory evidence, in that Agent Humphrey did not specifically state that when he interviewed Pastor Smith he spoke with Carolyn Smith as well.
Bird argues Carolyn’s testimony would have been exculpatory in that Carolyn witnessed Sandra’s tears and her story of the teacher who had wished Sandra would die in a car wreck. Also, he argues, Carolyn’s testimony would have led to further exculpatory evidence because she could have stated Pat Boison was also present at this scene.
This argument is without merit. If Bird did not find Humphrey’s report reason enough to interview Pastor Smith, there is no indication he would have been prompted to interview Carolyn Smith merely because she was mentioned by name. The report indicates several instances where Humphrey received the impressions of both the Smiths. Bird knew that Carolyn and the Boisons were the people most likely to have observed Sandra’s comments and demeanor at the conference, at which he either heard her make or was alerted that she had made at least one comment about suicide.
Even had Humphrey mentioned Carolyn by name, prompting Bird to interview her, the only evidence he would have obtained was cumulative evidence of Sandra’s anxiety about his relationship with Lorna Anderson and hearsay by the Boisons about what the Smiths told them Sandra said during the insurance discussion. Pastor Smith testified as to what he told the Boisons, and Carolyn Smith’s testimony was consistent with her husband’s. We hold Agent Humphrey’s inadvertent error does not qualify as failure by the prosecution to reveal exculpatory evidence.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Allegrucci, J.:
The plaintiff, Richard W. Tomlinson, filed suit against various defendants in the United States District Court for the District of Kansas. Plaintiffs suit alleged that he had developed an asbestos-related disease through exposure to products manufactured, distributed, and sold by the defendants. One of the defendants, Owens-Corning Fiberglas Corporation (OCF), filed a motion in the United States District Court for summary judgment, alleging that the plaintiff s action was barred by the provisions contained in K.S.A. 44-5a06 and K.S.A. 44-5a07.
The United States District Court has certified to this court for its review four questions related to OCF’s motion. The order of certification meets the requirements of K.S.A. 60-3201 et seq., and we accept certification. For purposes of this review, the District Court’s order of certification provides, in part:
“[P]laintifFs exposure to excessive quantums of asbestos causing his asbestos-related occupational disease [which resulted in his claim] against the named defendants occurred within the years 1965 to 1971. The plaintiff worked for OCF and was exposed to its asbestos-containing thermal insulation products during the years 1965, 1966 and 1968. Plaintiffs only exposure to OCF’s products occurred while employed by OCF. Plaintiff s disablement did not occur within one year of his last injurious exposure to the products of OCF. Plaintiff has filed a workers’ compensation action against his last employer, AC&S, Inc., claiming that his asbestos-related disease also arose out of and during the course of his employment with AC&S, Inc. None of the other defendants against whom plaintiff brought this civil action employed plaintiff, and those defendants do not claim plaintiff is barred by the Act from pursuing a civil action against these defendants.”
In addressing the first certified question, we note that occupational diseases, such as asbestosis, are brought within the scope of the Kansas Workers’ Compensation Act by K.S.A. 44-5a01 et seq. K.S.A. 44-5a01(a) provides:
“Where the employer and employee or workman are subject by law or election to the provisions of the workmen’s compensation act, the disablement or death of an employee or workman resulting from an occupational disease as defined in this section shall be treated as the happening of an injury by accident, and the employee or workman or, in case of death, his dependents shall be entitled to compensation for such disablement or death resulting from an occupational disease, in accordance with the provisions of the workmen’s compensation act as in cases of injuries by accident which are compensable thereunder, except as specifically provided otherwise for occupational diseases.”
The exclusive nature of the remedy provided by the occupational disease portion of the Workers’ Compensation Act is established by K.S.A. 44-5a07:
“Securing payment of compensation; liability exclusive. An employer subject to the provisions of this act shall secure the payment of compensation in accordance with the provisions of this act in any method prescribed by the provisions of section 44-532 of the workmen’s compensation law, and such insurance or other security may be separate and distinct from the insurance or other security under the workmen’s compensation law. Where the foregoing requirement is complied with the liability of the employer under this act shall be exclusive and in place of any and all other civil liability whatsoever, at common law or otherwise.”
The occupational disease portion of the Act expressly adopts the “last injurious exposure” rule. K.S.A. 44-5a06 states, in part:
“The date when an employee or workman becomes incapacitated by an occupational disease from performing his work in the last occupation in which he was injuriously exposed to the hazards of such disease, shall be taken as the date of the injury equivalent to the date of accident under the workmen’s compensation act. Where compensation is payable for an occupational disease, the employer in whose employment the employee or workman was last injuriously exposed to the hazards of such disease, and the insurance carrier, if any, on the risk when such employee was last so exposed under such employer, shall be liable therefor, without the right to contribution from any prior employer or insurance carrier.”
Clearly, under the last injurious exposure rule, the entire responsibility for a worker’s occupational disease is placed upon the employer who last created the risk of the worker’s contraction of the disease by exposing him to the substance which caused the disease. Previous employers, who may also have exposed the worker to the potentially harmful substance, are shielded from liability under the rule. The rationale for the rule was stated in Bracke v. Bazar, 293 Or. 239, 646 P.2d 1330 (1982):
“The last injurious exposure rule of proof more typically applies where one employment caused the disease, but more than one could have. By arbitrarily assigning liability to the last employment which could have caused the disease, the rale satisfies claimant’s burden of proof of actual causation. The reason for the rules lies not in their achievement of individualized justice, but rather in their utility in spreading liability fairly among employers by the law of averages and in reducing litigation.
“The operation of the rale, as we said in Inkley [v. Forest Fiber Products Co., 288 Or. 337, 605 P.2d 1175 (1980)], provides certainty in a way which is ‘somewhat arbitrary.’ It operates generally for the benefit of the interests of claimants. It is fair to employers only if it is applied consistently so that liability is spread proportionately among employers by operation of the law of averages. We hold that employers have and may assert an interest in the consistent application of the last injurious exposure rules, either as to proof or liability, so as to assure that they are not assigned disproportionate shares of liability relative to other employers who provide working conditions which generate similar risk.” 293 Or. at 248-50.
Although in many cases the rule has been adopted by statute, in a number of jurisdictions the courts have adopted the rule in the absence of legislation. E.g., Osteen v. A.C.& S., Inc., 209 Neb. 282, 307 N.W.2d 514 (1981). See Annot., 34 A.L.R.4th 958.
The Court of Appeals of Maryland upheld that state’s adoption of the last injurious exposure rule in Lowery v. McCormick Asbestos Co., 300 Md. 28, 475 A.2d 1168 (1984). After reviewing the application of the last injurious exposure rule in other jurisdictions, the McCormick court concluded that the rule
“is in full harmony with the stated aims of the Legislature in the enactment of the Workmen’s Compensation Laws of Maryland in that
“(1) It provides greater likelihood for ‘sure and certain relief to workers disabled by occupational diseases:
“(a) By fixing a date certain for the timely filing of required notices and claims; thereby lessening defeat of a valid claim.
“(b) By eliminating the often impossible burden of proving medical causation of the disease to a particular workplace.
“(c) By improving administration of the Act by eliminating delays inherent in disputes among employers relating to apportionment or allocation of liability; by shortening and simplifying hearings in disputed cases; and by decreasing legal and investigative expense.
“(2) It provides fair distribution of the heavy burden of occupational disease coverage by spreading liability among all employers on the theory that all causal employers will be last causal employers a proportionate share of the time.” 300 Md. at 48-49.
The McCormick court stressed that the policies underlying the last injurious exposure rule required its consistent application. 300 Md. at 49. The court concluded that fundamental fairness requires that “the rule be applied uniformly and universally in order that the burden assigned to the last causal employer would—over the long haul—be equalized among all causal employers under the law of averages.” 300 Md. at 50-51.
In the present case, OCF falls within the provisions of the last injurious exposure rule as adopted by the legislature in K.S.A. 44-5a06. The employer in whose employment the plaintiff was “last injuriously exposed to the hazards of’ asbestosis or other asbestos-related disease was AC&S, Inc. OCF, as a prior employer of the plaintiff, is not subject to civil liability to the plaintiff. The plaintiff s right of compensation is limited under K.S.A. 44-5a06 and K.S.A. 44-5a07 to his last employer or to the other defendants who manufactured, distributed, and sold asbestos but were not prior employers of the plaintiff. We therefore answer the first question certified by the United States District Court in the affirmative.
We now address the second and third certified questions. The plaintiff contends that, because his asbestos-related disease did not develop until more than one year after his last exposure to asbestos, he did not suffer from an “injurious” exposure which would bring the case within the scope of the last injurious exposure rule contained in K.S.A. 44-5a06, and thus he would be entitled to workers’ compensation benefits.
We do not agree. The time limitations contained in the Act are independent limitations upon a worker’s procedural rights to recover under the Act, and do not serve as definitions of whether a specific occupational disease is an “injury” or a “disability” within the provisions of the Act. A similar argument was rejected by the Third Circuit Court of Appeals in Weldon v. Celotex Corp., 695 F.2d 67 (3d Cir. 1982). The court found the limitations period contained in the Pennsylvania Occupational Disease Act “does not restrict coverage of those diseases that are listed, but only limits the time within which claims will be recognized.” 695 F.2d at 71.
The plaintiff also contends that, since asbestosis is a progressive disease and often takes more than one year to develop, the legislature did not intend that the statutory limitations apply to asbestos-related diseases. The plaintiff argues that, if his claims under the Workers’ Compensation Act against his last employer in whose employment he was exposed to asbestos are barred by the time limitations contained in the Act, he should not be subjected to the provisions of the last injurious exposure rule contained in K.S.A. 44-5a06. The plaintiff argues, in essence, that the last injurious exposure rule and the exclusive remedy provision should apply only where the last employer is subject to liability under the provisions of the Act.
The occupational disease article of the Workers’ Compensation Act contains several time limitations which limit an employee’s right to recover for such injuries. Under K.S.A. 44-5al7, an employee or his representative must submit written notice to his employer of the disease within ninety days of his disablement or death. The same statute also provides, in part:
“If no claim for disability or death from an occupational disease be filed with the workmen’s compensation director or served on the employer within one (1) year from the date of disablement or death, as the case may be, the right to compensation for such disease shall be forever barred.”
An additional time limitation upon an employee’s right to bring an action for compensation for contracting an occupational disease is established by K.S.A. 44-5a01(c), which provides:
“In no case shall an employer be liable for compensation under this section unless disablement results within one (1) year or death results within three (3) years in case of silicosis, or one (1) year in case of any other occupational disease, after the last injurious exposure to the hazard of such disease in such employment, or, in case of death, unless death follows continuous disability from such disease, commencing within the period above limited, for which compensation has been paid or awarded or timely claim made as provided in the workmen’s compensation act, and results within seven (7) years after such last exposure. Where payments have been made on account of any disablement from which death shall thereafter result such payments shall be deducted from the amount of liability provided by law in case of death. The time limit prescribed by this section shall not apply in the case of an employee whose disablement or death is due to occupational exposure to ionizing radiation.”
The result of the plaintiff s argument would be that an employee who wished to escape the application of the last injurious exposure rule and the exclusive remedy provision of the Act could do so by simply ignoring the time limitations established by the Act. More importantly, the previously cited rationales underlying the last injurious exposure rule require its consistent application, even if the last employer is subject to a claim for benefits. Farrall v. Armstrong Cork Co., 457 A.2d 763, 768 (Del. Super. 1983). We interpret K.S.A. 44-5a01 and K.S.A. 44-5al7 to. clearly require that a claim such as the plaintiff s must be filed within one year. Failure to do so precludes recovery of workers’ compensation benefits based upon an occupational disease. In Hormann v. New Hampshire Ins. Co., 236 Kan. 190, 199, 689 P.2d 837 (1984), we said:
“As a general rule, exclusive of exceptions created in the Act itself, the Kansas Act’s operation is exclusive of all other remedy and liability. Kansas cases have followed the principle that if the Kansas Workmen’s Compensation Act affords the worker a remedy for the wrong, the compensation Act is exclusive, thus barring an independent tort action at common law.”
Since the plaintiff is afforded a remedy under the Workers’ Compensation Act, any recovery for disablement occurring one year or more from the last injurious exposure would be barred. We therefore answer the second certified question in the negative and the third certified question in the affirmative.
Finally, we address the fourth certified question. The plaintiff argues that it is unconstitutional to apply the last injurious exposure rule when he is time-barred from bringing a claim under the Workers’ Compensation Act against his last employer. This court has repeatedly upheld the constitutionality of the exclusive remedy provisions of the Kansas Workers’ Compensation Act. See, e.g., Rajala v. Doresky, 233 Kan. 440, 441-42, 661 P.2d 1251 (1983). The plaintiff s argument, in reality, turns upon whether the time limitations contained in K.S.A. 44-5a01(c) and K.S.A. 44-5al7 are unconstitutional. If the time limitations contained in these provisions are constitutionally valid, the plaintiff, who has failed to comply with their requirements, may also be constitutionally subjected to the exclusive remedy provisions contained in the Act, including the last injurious exposure rule.
Due to the increased awareness of the extent of latent injuries caused by exposure to asbestos and other substances creating latent diseases, many states have expanded the time in which an injured person may bring an action for recovery for such a disease. Thus, many states have adopted legislation providing that the limitations period in latent disease cases does not begin to run until the disease is discovered, diagnosed, or otherwise manifests itself. See Annot., 1 A.L.R.4th 117. However, a few states, such as Kansas, have retained legislation providing that the limitations period begins upon the injured person’s last exposure to the substance which caused the disease. Courts which have interpreted such statutes have normally held that such statutes are constitutional, even though the time limitations involved may be much shorter than the normal latency period of the disease.
In Stone v. SAIF, 57 Or. App. 808, 646 P.2d 668 (1982), the Oregon Court of Appeals found that the time limitation contained in the occupational disease provisions of the Oregon Workers’ Compensation Law was constitutional. The relevant portion of Oregon law in effect at the time provided that claims for occupational diseases, except for silicosis, must be filed “within five years after the last exposure in employment.” Or. Rev. Stat. § 656.807(1) (1981). After his claim for asbestosis was disallowed as time-barred by the Workers’ Compensation Board, the claimant appealed to the Court of Appeals, contending that the limitations period was unconstitutional in light of the long latency period of asbestosis. The Oregon Court of Appeals rejected the claimant’s constitutional challenge, stating: “ ‘It is a permissible constitutional legislative function to balance the possibility of outlawing legitimate claims against the public need that at some definite time there be an end to potential litigation.’ ” 57 Or. App. at 811 (quoting Josephs v. Burns & Bear, 260 Or. 493, 503, 491 P.2d 203 [1971]).
Similarly, in Wyoming Refining Co. v. Bottjen, 695 P.2d 647 (Wyo. 1985), the Wyoming Supreme Court upheld a provision in that state’s workers’ compensation law which included a similar time limitation. The Wyoming statute provided that the claim must be filed within “one (1) year after a diagnosis of injury is first communicated to the employee, or within three (3) years from the date of last injurious exposure to the condition causing the injury, whichever occurs first.” (Emphasis added.) Wyo. Stat. § 27-12-503 (1977). The court held that a subsequent change in Wyoming law could not be retroactively applied, and that the prior statute effectively barred the appellee’s claim for injuries resulting from his exposure to asbestos. The court concluded that the prior statute was clear and unambiguous. The court stated:
“Appellee’s claim had to be brought within three years of the date of his last injurious exposure to asbestos. We are sympathetic to the unenviable position he was placed in under the old statute of limitations. We believe this is the kind of situation the new statute was designed to alleviate. However, we are not at liberty to apply the new statute retrospectively under established principles of law absent clear legislative manifestation. Such would be an invasion of the legislative province.” 695 P.2d at 650.
In Tyson v. Johns-Manville Sales Corp., 399 So. 2d 263, 269 (Ala. 1981), the Alabama Supreme Court struck down as unconstitutional an Alabama law which attempted to retroactively expand the time in which latent disease claims could be brought. In so doing, the court found that the prior version of the statute applied. The court stated that, under the prior statute, “a claim based on asbestos injury would have accrued on the last date of plaintiff s exposure to defendant’s product.” 399 So. 2d at 268. The Tyson court also noted that, under the prior law, “if . . . one year had elapsed between the date of plaintiff s exposure and the date on which plaintiffs action was commenced, then that claim is nevertheless barred by the statute of limitations.” 399 So. 2d at 267. During the course of its opinion, the court stated that “the legislature has the inherent power to determine the period within which an action may be brought, provided that the time fixed is reasonable.” 399 So. 2d at 268. Thus, the court’s decision that the prior version of Alabama law was applicable implicitly required a conclusion that the prior law’s one-year limitation from the time of exposure was reasonable and binding.
Finally, a similar result was reached by the Indiana Supreme Court in Bunker v. National Gypsum Co., 441 N.E.2d 8 (Ind. 1982). In Bunker, the plaintiff sought benefits under the Indiana Workmen’s Occupational Diseases Act for his asbestosis. The plaintiff challenged the constitutionality of a provision in the Act which provided that no compensation was payable for occupational diseases caused by asbestos dust “ ‘unless disablement . . . occurs . . . within three [3] years after the last day of the last exposure to the hazards of such disease.’ ” 441 N.E.2d at 10 (quoting Ind. Code Ann. § 22-3-7-9[e] [Burns 1974]).
The Third District of the Indiana Court of Appeals accepted the plaintiff s argument, and held in 1981 that the Indiana statute was unconstitutional. Bunker v. National Gypsum Co., 426 N.E.2d 422, 425 (Ind. App. 1981). The Court of Appeals’ decision was reversed one year later by the Indiana Supreme Court. Bunker v. National Gypsum Co., 441 N.E.2d 8. After reviewing the appropriate standards to be applied in determining the constitutionality of legislative acts, the Indiana Supreme Court concluded that the statute was constitutional:
“In questioning the wisdom of the legislature, the Court of Appeals has in effect rewritten this law thereby usurping the legislature’s constitutionally mandated function. If we were to affirm the Court of Appeals in their decision, the legislative intent to provide a definitive time period within which all occupational disease claims must be brought would be frustrated. Specifically, Ind. Code § 22-3-7-9(e) would be meaningless because all disabilities caused by a work-related disease would be compensable under the Act. In addition, the statutory scheme providing for the application of a ‘discovery’ rule only in radiation exposure cases would be subverted. We will not allow such a blatant' abuse of judicial power. . . .
“It is within the duties and responsibilities of the legislature to keep itself advised of the general progress of medical learning and to make the determination as to whether or not new or revised legislation is needed. Not only being so charged, the legislature is also best equipped to make this determination. A cursory examination of the legislative history of the Indiana Occupational Diseases Act shows that since its inception in 1937, the legislature has on several occasions updated the Act through amendment. In fact, the proviso which relates to occupational disabilities caused by radiation exposure was added in 1961. Again in 1974 when disabilities due to coal dust inhalation were made subject to the three year limitation period, the General Assembly indicated that it was aware of its need to review and revise the Occupational Diseases Act. If this statute requires further updating through amendment, it remains the duty and responsibility of the legislature to do so. There are no grounds for finding any constitutional infirmity in the present form of this statute.” 441 N.E.2d at 13-14.
We conclude that the last injurious exposure rule and the time limitations contained in the occupational disease portion of the Workers’ Compensation Act do not amount to an unconstitutional denial of remedy. The answer to the fourth certified question is no. | [
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The opinion of the court was delivered by
Lockett, J.:
Theon Copes, Jr. appeals his conviction of felony theft, K.S.A. 21-3701, claiming the district court erred by not hearing and granting his motion for judgment of acquittal at the close of the State’s evidence. The Court of Appeals held that, although the trial court erred, the defendant had waived the error by subsequently participating in the cross-examination of the codefendant’s witnesses. We granted Copes’ petition for review.
The defendant, Theon Copes, Jr., (Jr.) and his father, Theon Copes (Sr.) were both charged with theft of four dies from Beech Aircraft Corporation on May 8, 1985. Sr. had retired from Beech after seventeen years of employment and Jr. had also been employed at Beech for a brief period. The State’s evidence is:
Four dies missing from a storage yard at Beech Aircraft were discovered at the Wichita Iron & Metal Company. Wichita Iron & Metal had purchased the missing dies from a salvage operator. The salvage operator testified that he had purchased the dies from Sr. for $5,950. Although Jr. was not present at the sale, Sr. had directed the salvage operator to make the check payable to Jr. The State’s handwriting expert testified that even though the check was endorsed “Theon Copes, Jr.,” Sr. had endorsed the check. No other evidence of Jr.’s participation in the alleged crime was presented by the State.
After the State rested and the trial judge had refused to hear Jr.’s motion for judgment of acquittal until the morning recess, Sr. waived his Fifth Amendment right and testified. Sr. stated that, after retiring from Beech, he entered the salvage business and had sold dies on several occasions. As to the sale in question, Jr. had asked him to help sell some dies Jr. “got from some fella in Salina.” Sr. further stated that, after his son assured him that the dies were not stolen, he had sold them and obtained the check for Jr. At Jr.’s request, he endorsed the check by signing Jr.’s name and after cashing the check he gave the money to his son. On cross-examination by the State, Sr. testified he had sold Kirksite dies seven times for his son.
After the State cross-examined Sr., the court took a recess and then heard both defendants’ motions for judgment of acquittal. The prosecutor for the State argued: (1) that Jr.’s name was on the check; (2) that Sr. had denied that he knew that the dies had been stolen; (3) that Sr. could not have taken the dies alone; and (4) that both men had worked for Beech. In ruling on Jr.’s motion for acquittal and after having considered both the State’s evidence and Sr.’s testimony, the trial judge stated: “With respect to Theon Copes, Jr., I’ll find that it’s probably as skinny a case to submit to the jury as I’ve ever seen or ever will see but I’ll overrule the motion.”
Following the completion of Sr.’s testimony, Steve Mank, an assistant public defender originally appointed to defend Sr., testified on Sr.’s behalf. Mank stated that during his investigation of Sr.’s case, he had interviewed Jr. who had stated that (1) Sr. had no knowledge that the dies were stolen, and (2) Jr. had duped his father into endorsing the check with Jr.’s name because Jr. had no identification. During cross-examination by Jr.’s attorney, Mank testified that he had incorrectly stated the date of his conversation with Jr. He also admitted that Jr. had never told him that the dies had been stolen. At the close of all the evidence, Jr.’s renewed motion for acquittal was denied by the trial court. Both men were found guilty of theft and their convictions were affirmed by the Court of Appeals. We granted Jr.’s petition for review.
The trial court on motion of a defendant may order the entry of judgment of acquittal of one or more crimes charged at the close of the evidence on either side. K.S.A. 22-3419. A trial judge passing upon a motion for judgment of acquittal must determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt. If he concludes that upon the evidence there must be such a doubt in a reasonable mind, he must grant the motion. If he concludes that guilt beyond a reasonable doubt is a fairly possible result, he must deny the motion, and the defendant may offer evidence without having reserved the right to do so. State v. Lawton, 241 Kan. 140, 143, 734 P.2d 1138 (1987).
At the close of the State’s case in chief the evidence, viewed in the light most favorable to the State, was:
Both father and son formerly worked at Beech, albeit the son worked in a different section of the plant and only for a short period of time. Jr. was not present during the sale of the Kirksite dies. The father asked that the check be made payable to the son, and the son’s name was signed on the check. However, the State’s expert witness testified the father had signed the son’s name on the check.
After reviewing the State’s evidence, the Court of Appeals found that the refusal of the trial judge to hear defense counsel’s motion for judgment of acquittal at the proper time effectively allowed sufficient facts into evidence to deny Jr.’s subsequent motion for acquittal. If, as required by statute, the trial court had ruled on the motion at the close of the State’s case, a reasonable jury could not have found guilt beyond a reasonable doubt. The Court of Appeals then stated, “That, however, is not the issue before us” and reasoned that, although the trial court erred in denying the motion for acquittal, that error was waived by Jr.’s later cross-examination of witnesses called by his codefendant, citing State v. Blue, 225 Kan. 576, 592 P.2d 897 (1979), as authority.
In State v. Blue, after the trial court erred by denying the defendant’s motion for acquittal at the close of the State’s evidence, the defendant introduced evidence including his own testimony. There, we first noted that K.S.A. 22-3419 is similar to Fed. R. Crim. Proc. 29 and that seven of the federal circuit courts of appeal have held that a federal defendant waives any error in a prior denial of a motion for acquittal when he presents evidence in his behalf after the close of the government’s case. United States v. Guerrero, 517 F.2d 528 (10th Cir. 1975); United States v. Greene, 442 F.2d 1285 (10th Cir. 1971); United States v. Feldman, 425 F.2d 688 (3d Cir. 1970); United States v. Cashio, 420 F.2d 1132 (5th Cir.), cert, denied 397 U.S. 1007 (1970); Viramontes-Medina v. United States, 411 F.2d 981 (9th Cir. 1969); Cline v. United States, 395 F.2d 138 (8th Cir. 1968); United States v. Carabbia, 381 F.2d 133 (6th Cir. 1967); United States v. Haskell, 327 F.2d 281 (2d Cir. 1964). Only the Courts of Appeal for the Seventh and District of Columbia circuits hold to the contrary. See Maffei v. United States, 406 U.S. 938,32 L. Ed. 2d 138, 92 S. Ct. 1789 (1972). In addition, the A.B.A. Project on Minimum Standards for Criminal Justice, Standards Relating to Trial by Jury (Approved Draft 1968) reached the same conclusion.
We then agreed with the majority of the federal circuit courts that a conviction should be affirmed if based upon substantial supporting evidence, whether that evidence was introduced by the State in its case in chief or during the defendant’s presentation of his case. An accused should not be acquitted on the ground of insufficiency of the evidence if the evidence was, in fact, sufficient. A defendant who presents evidence in his behalf, after the trial court has denied a motion for acquittal at the close of the prosecution’s case, waives any error in the denial of the motion. If the motion for acquittal is renewed after the close of all of the evidence, the trial court should consider all of the evidence in ruling upon that motion. By choosing to present evidence and testify in his own behalf, Blue had waived his right to challenge the denial of his motion for acquittal made at the close of the State’s evidence. 225 Kan. at 577-78.
Blue, however, does not address our issue. Here, after the trial judge refused to hear the defendant’s motion for judgment of acquittal at the close of the State’s evidence, the defendant did not present any evidence, but only cross-examined his codefendant’s witness.
In spite of our statement in Blue that K.S.A. 22-3419 is similar to Fed. R. Crim. Proc. 29, the Court of Appeals determined that “[t]he federal rule is distinguishable from our statute and, thus, federal cases are not persuasive.” The Court of Appeals then recognized that authority on this issue conflicts. It noted that in State v. DiNunno, 67 N.C. App. 316, 313 S.E.2d 3 (1984), the North Carolina Court of Appeals failed to find waiver of a motion for acquittal where the defendant cross-examined a witness for his codefendant. In construing a statute providing that a defendant who “introduces evidence” waives any motion for dismissal made prior to the introduction of the evidence, that court held that the cross-examination which occurred did not constitute an “introduction of evidence” within the meaning of the statute because the defendant had not attempted to elicit substantive evidence beneficial to himself. 67 N. C. App. at 319.
A contrary result was reached in Mathis v. State, 590 S.W.2d 449 (Tenn. 1979). In Mathis, after the trial court had taken under advisement Mathis’ motion for acquittal made at the close of the State’s evidence, defense counsel participated in the cross-examination of Mathis’ codefendant. The Supreme Court of Tennessee held that, although the trial court had erred by not ruling on the motion at the time it was made, the error was waived when Mathis elected to cross-examine his codefendant. The court reasoned that, when the trial court either overrules or does not act upon a motion for an acquittal made at the conclusion of the State’s proof, counsel must then and there take affirmative action to confine the controversy to the proof already presented if he or she is convinced as to the validity of the motion. Counsel should announce that the defendant stands on his motion, disclaims any benefit of any evidence introduced by his codefendant, disavows any detriment, and will present no proof. Counsel should state that the evidence presented by the codefendant will not be binding upon the defendant and he should participate no further in the trial until after the conclusion of all the proof. See Pikeville Fuel Co. et al. v. Marsh, 34 Tenn. App. 82, 232 S.W.2d 789 (1948).
After reviewing Mathis, the Court of Appeals determined that, in Blue, we had created a “bright line” test that binds the defendant to all evidence admitted during the trial if he decides to participate in the trial after the denial of a motion for judgment of acquittal. It then ruled that, even though the trial judge had erred by failing to hear the defendant’s motion for judgment of acquittal at the close of the State’s evidence, the defendant had waived that error by cross-examining his codefendant and the codefendant’s witnesses.
The Court of Appeals did not address a major difference between Mathis and this case. In Mathis, the Supreme Court of Tennessee was influenced by the fact that the cross-examination by the defense attorney elicited information crucial to the defense. Here, no such information was adduced.
The best reason against the extension of our waiver rule in Blue to cross-examination of a codefendant and the codefendant’s witnesses is stated by the Fifth Circuit in United States v. Belt, 574 F.2d 1234 (5th Cir. 1978), where the court interpreted Fed. R. Crim. Proc. 29. In Belt, the defendant moved for a judgment of acquittal after the close of the government’s case. After the motion was denied, the defendant rested. Belt’s codefendant then took the stand and also called character witnesses. As in our case, the testimony of Belt’s codefendant tended to implicate Belt as well as supply some of the deficiencies in the State’s case. Belt’s attorney cross-examined the codefendant and called two rebuttal witnesses.
In reviewing the waiver doctrine, the Fifth Circuit held that it would look only to the evidence in the government’s case if the defendant does not introduce evidence after moving for a judgment of acquittal at the close of the government’s case. If the defendant introduces evidence after moving for a judgment of acquittal, and at the close of all the evidence moves again for a judgment of acquittal, the court stated that it would examine the entire record. Under the circumstances, Belt did not forego appellate review of his mid-trial motion for judgment of acquittal by cross-examining his codefendant and calling witnesses to rebut the codefendant’s testimony.
The Belt court stated that the waiver doctrine is not mere formalism, but an expression of our adversary justice system which requires a defendant to accept the risks of adverse testimony which he introduces. The doctrine’s operative principle is not so much that the defendant offering testimony “waives” his earlier motion but that, if he presents the testimony of himself or of others and asks the jury to evaluate his credibility (and that of his witnesses) against the State’s case, he cannot insulate himself from the risk that the evidence will be favorable to the State. Requiring the defendant to accept the consequences of his decision to directly challenge the State’s case affirms the adversary process. In a joint trial, the decision of a codefendant to testify and produce witnesses is not subject to the control of either the State or the other defendant. Belt engaged in cross-examination and produced testimony solely because of his co-defendant’s testimony and directed his efforts to refuting that testimony. He did not attempt to refute any element of the proof adduced in the State’s case.
We agree that allowing the defendant to cross-examine and rebut the codefendant’s witnesses, if confined to the substance and credibility of their testimony, vindicates the statutory requirement of the State to prove its charge and does no violence to the waiver doctrine. To deny a jointly tried defendant the benefit of his prior motion for judgment of acquittal because he cross-examines and rebuts the codefendant’s evidence erodes the requirement that the State prove every element of the charge against the accused. Without such a rule in a joint trial, after an accused has been denied his statutory right to test the sufficiency of the State’s evidence by motion for judgment of acquittal, the State would be allowed to rely on a testifying codefendant to supply missing evidence to convict the defendant. Where the accused only cross-examines the State’s witnesses, cross-examines codefendant’s witnesses, and presents testimony aimed at vitiating the inculpatory testimony given by the codefendant, the adversarial purpose of the waiver doctrine is left untouched.
The Court of Appeals has already determined that, if the trial court had ruled on the defendant’s motion at the close of the State’s evidence as required by statute, a reasonable jury could not have found guilt beyond a reasonable doubt. We must examine defense counsel’s cross-examination of the codefendant’s witnesses to determine whether the cross-examination was confined to the substance and credibility of their testimony. During the cross-examination of the codefendant’s witnesses, the defendant made no attempt to refute any elements of proof adduced in the State’s case. In the brief cross-examination of Sr.’s witnesses, the defense elicited: (1) that other employees of Beech occasionally sold items out of the storage yard, (2) that Jr. had not admitted to Mank that he bad committed the crime, and (3) that Mank was mistaken as to the date of his conversation with the defendant.
The defendant’s cross-examination was confined to the substance and credibility of the codefendant’s witnesses. The defendant did not present evidence to refute any element of proof adduced in the State’s case.
The Court of Appeals’ application of the waiver doctrine is reversed. The Court of Appeals’ determination that the trial judge had erred in denying the defendant’s motion for judgment of acquittal at tire close of the State’s evidence is affirmed. The judgment of the district court is reversed.
Six, J., not participating. | [
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The opinion of the court was delivered by
Holmes, J.:
Donald L. Nunn appeals from his convictions of four counts of indecent liberties with a child, K.S.A. 1987 Supp. 21-3503(l)(a), K.S.A. 1984 Supp. 21-3503(l)(b); and three counts of aggravated criminal sodomy, K.S.A. 1987 Supp. 2i-3506(a). He raises seven issues in this appeal, none of which constitutes reversible error.
Donald L. Nunn and his wife Michelle were married on July 11, 1986, a few days after her eighteenth birthday. -They had been living together since July 1984. Michelle’s younger sister, C.P., often spent the night at the home of Michelle and the appellant. Young friends of C.P. and Michelle also frequently stayed the night there. The appellant supplied the girls with alcoholic beverages. C.P. and the other girls also took drugs while visiting there.
C.P. and three of her friends, T.A., J.P., and D.E., are the complaining witnesses in this case. Each girl testified at trial to various incidents of sexual abuse committed upon her by the appellant in his home. The four girls ranged in age from 10 to 14 at the time of the alleged offenses. Each testified that she had been awakened during the night to find the defendant touching her vaginal area with his finger, his mouth, his tongue, or his penis.
The State also presented two witnesses who, as children, had been the victims of indecent liberties perpetrated by the appellant in 1979. The State’s motion in limine to present this evidence was granted by Judge Robert Watson on March 20, 1987, a few days before trial. On the first day of trial, the parties again argued the issue before Judge David Kennedy, the trial judge. The trial judge refused to alter Judge Watson’s ruling and allowed the testimony for purposes of proving intent and identity, consistent with Judge Watson’s decision.
The complaint/information charged appellant with indecent liberties with a child in Counts I, III, IV, and VI, alleging sexual intercourse with C.P., T.A., D.E., and J.P. Counts II, V, and VII charged appellant with aggravated criminal sodomy involving C.P., D.E., and J.P.
At the close of the State’s evidence, the prosecuting attorney orally moved to amend the dates in the information as to Counts IV, V, VI, and VII to conform to the evidence and testimony of the witnesses. The district court granted the motion over the objection of defense counsel.
The appellant testified in his own behalf, denying each of the allegations and contending that the four alleged victims were lying. The defense presented other witnesses who lived at the Nunn residence at various times during the late spring and summer of 1986, each of whom testified that he or she had not seen or heard anything appearing to be acts of sexual molestation by the appellant.
The jury returned a verdict of guilty on each of the seven counts. Additional facts will be set forth as they become relevant in considering the various issues on appeal.
The first issue challenges the ruling allowing evidence of defendant’s prior incidents of sexual misconduct toward children. Questions regarding the admissibility of prior crimes evidence pursuant to K.S.A. 60-455 are within the discretion of the trial judge, whose ruling will not be interfered with on review unless that discretion was abused, or unless the trial judge admitted evidence that clearly had no bearing on any of the issues. State v. Riedel, 242 Kan. 834, 839, 752 P.2d 115 (1988).
K.S.A. 60-455 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 such evidence, the trial court must: (1) determine it is relevant to prove one of the facts specified in the statute, (2) determine the fact is a disputed, material fact, and (3) balance the probative value of the prior crime or civil wrong 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).
The State filed a motion to allow testimony of L.H. and N.H. regarding incidents of sexual abuse by the appellant in 1979. At that time, the mother of L.H. and N.H. was married to the appellant. The girls were living in the same household with their mother and the appellant. Detective Pamela Horn testified at the pretrial motion hearing regarding her interviews with the two girls, who at the time of trial were ages 18 and 19. L.H. had told her that on one occasion, when she was 11, defendant had rubbed his thumbs against her vagina. N.H. told her that when she was 10 defendant had placed a finger in her vagina and also had licked her vagina. The police reports showed that the defendant in this case had been convicted of the offenses against L.H. and N.H. The State contended the evidence was admissible under K.S.A. 60-455 to prove intent and/or identity.
The defense challenged admission of the evidence on the basis that the incidents with L.H. and N.H. were different from those alleged in this case, that the prior incidents were not relevant to show intent, that neither identity nor intent were disputed issues in this case, and that the prejudicial effect of the evidence outweighed its probative value. The district court recognized the prejudicial nature of the evidence but granted the State’s motion to present the evidence for the purpose of proving intent and identity. At trial, L.H. and N.H. testified regarding the specific details of each incident. Prior to their testimony, the trial court cautioned the jury that the testimony was to be considered only on the issues of identity and intent. In two of the incidents described by N.H., she had been awakened by the appellant touching her vagina and placing his mouth on her vagina. The appellant admitted during his testimony that he had committed the acts described by L.H. and N.H.
The appellant first argues that, because intent was not substantially in issue in this case, the prior convictions were not admissible to prove intent. In State v. Faulkner, 220 Kan. 153, 551 P.2d 1247 (1976), this court stated:
“ ‘[Materiality,’ for purposes of K.S.A. 60-455, contemplates a fact which has a legitimate and effective bearing on the decision of the case and is in dispute. If the fact is obvious from the mere doing of an act, or if the fact is conceded, evidence of other crimes to prove that fact should not be admitted because it serves no purpose to justify whatever prejudice it creates.” 220 Kan. at 156.
Appellant in his brief appears to make a distinction between general and specific intent crimes when prior crimes evidence is submitted for the purpose of proving intent. However, whether the crime charged is a general or specific intent crime is not the test. In State v. Graham, 244 Kan. 194, 768 P.2d 259 (1989), we stated:
“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.”
We agree with the appellant that the testimony of L.H. and N.H. was not properly admissible under K.S.A. 60-455 to prove the element of intent.
Appellant also asserts that identity was not an issue and therefore the admission of the prior crimes testimony, since it was highly prejudicial, constitutes reversible error. We do not agree with this contention. In State v. Bly, 215 Kan. 168, 523 P.2d 397 (1974), the leading case on the admissibility of evidence pursuant to K.S.A. 60-455, Justice Prager set forth eleven basic principles to be considered. Principle number eleven reads:
“11. Where a similar offense is offered for the purpose of proving identity, the evidence should disclose sufficient facts and circumstances of the other offense to raise a reasonable inference that the defendant committed both of the offenses. In other words to show that the same person committed two offenses it is not sufficient simply to show that the offenses were violations of the same or a similar statute. There should be some evidence of the underlying facts showing the manner in which the other offense was committed so as to raise a reasonable inference that the same person committed both offenses. As pointed out by Mr. Justice Kaul in State v. Johnson, 210 Kan. 288, 502 P.2d 802:
‘ “The quality of sameness is important when pondering the admission of other crimes to prove identity, (p. 294.)” ’ ” 215 Kan. at 177.
In the instant case the earlier events involving L.H. and N.H. were remarkably similar to the events testified to by the four young victims here. The appellant did not deny that the four girls may have been molested; he merely contended that he did not have anything to do with it. He also presented evidence that other men were at the house when some of the events allegedly took place and evidently implied that, if anything was done to the girls, it must have been someone else who did the acts to which the girls testified. In closing argument, defense counsel again alluded to the possibility that someone else may have committed the acts if they actually occurred.
It should also be noted that this issue first came up at a motion in limine heard by Judge Watson over a week prior to trial. At the beginning of the trial, Judge Kennedy again heard arguments on the admissibility of the prior crimes evidence. On neither occasion did the court actually know what the defense strategy would be or whether intent and/or identity would be an issue. In Douglas v. Lombardino, 236 Kan. 471, Syl. ¶ 2, 693 P.2d 1138 (1985), we held: “When a motion in limine is denied, the moving party must object to the evidence at trial to preserve the issue on appeal.”
One of the reasons for the rule requiring an objection to the evidence during trial is clearly illustrated by this case. The judge at the hearing on the motion in limine, and again at the motion immediately preceding trial, had no way of knowing what the defense would be or whether intent and identity would be issues. The materiality of the proposed evidence may not become actually apparent until other evidence has been admitted. Here, the testimony of L.H. and N.H. was not presented until after the four young victims had testified. The court was then in a position to determine the similarity of the prior crimes and their relevance to the present case. Before Judge Watson, the entire argument was based upon the prejudicial nature of the proposed testimony.
The record does not disclose any objection during trial to the testimony of L.H. and N.H. The court instructed the jury regarding the limited purpose of the evidence just prior to the testimony and again in the written instructions at the close of the trial. Based upon the record in this case, we do not find an abuse of discretion in admitting the testimony of L.H. and N.H. for the limited purpose of identity.
The second issue is whether the trial court abused its discretion by limiting the appellant’s closing argument to 35 minutes, when 45 minutes was requested. The appellant contends that the limit imposed by the trial court was arbitrary and unreasonable, and deprived him of a fair trial as guaranteed by the Fourteenth Amendment.
The limitation of time for arguments of counsel is within the sound discretion of the trial judge. United States v. Bednar, 728 F.2d 1043, 1049 (8th Cir.), cert, denied 469 U.S. 827 (1984); Butler v. United States, 317 F.2d 249, 257 (8th Cir. 1963); Samuels v. United States, 232 F. 536, 543-544 (8th Cir. [Kan.] 1916); State v. Dunkerton, 128 Kan. 374, Syl. ¶ 2, 278 Pac. 57 (1929).
In this case, defense counsel specifically requested 45 minutes, arguing that the charges were serious and involved four different victims. The trial court noted that there had been only two days of testimony, and that while the seven charges involved four victims, only two different criminal offenses were alleged. The court allotted 35 minutes for argument, ten minutes less than requested.
A review of the transcript of appellant’s closing argument reveals that counsel had sufficient time to address the testimony of each of the victims, pointing out inconsistencies and raising questions about the veracity and credibility of the witnesses. Defense counsel used all of the time allotted. However, appellant has not indicated what issues, if any, the time limitations precluded him from raising in closing argument; nor has he shown any prejudice as a result of being limited to 35 minutes. No abuse of discretion has been shown.
The third issue is whether prosecution of Count VII was barred because the prosecution did not commence within the statutory time limitation. As amended at trial, Count VII charged appellant with oral copulation with a child under 16 to whom he was not married, and alleged that the act occurred sometime between September 1,1984, and September 1,1985. Prosecution of appellant commenced on or about November 6, 1986, when the information was filed and presumably a warrant was delivered to the sheriff for execution. K.S.A. 1987 Supp. 21-3106(6).
As a general rule, a prosecution must be commenced within two years after the alleged offense is committed. K.S.A. 1987 Supp. 21-3106(3). If the conduct alleged in Count VII occurred between September 1, 1984, and November 5, 1984, the prosecution did not commence within two years. However, if the alleged offense occurred between November 6, 1984, and September 1, 1985, the prosecution was commenced within two years. Since the testimony of the victim was not specific as to time and as nothing in the record reveals exactly when the jury believed the incident took place, the parties apparently agree that the facts must be construed in the manner most favorable to the appellant; in other words, they appear to assume for purposes of argument that the offense occurred prior to November 6, 1984. The State does not contend that the limitation period in this case was extended by any of the factors listed in K.S.A. 1987 Supp. 21-3106(4).
Effective July 1, 1986, the legislature amended the statute of limitations on prosecution of criminal offenses to extend the time period during which the State may initiate prosecution of certain sex offenses against child victims under age 16. K.S.A. 1987 Supp. 21-3106(2) requires that prosecution for aggravated criminal sodomy and indecent liberties with a child, among other offenses, must commence within five years after commission of the offense. If the amendment applies to this case, prosecution of Count VII was clearly commenced within the statutory time limitation.
The five-year limitation for sex offenses against children became effective July 1, 1986, before the pre-amendment limitation period of two years would have expired for this offense, and before prosecution was commenced on or about November 6, 1986. Appellant nevertheless argues that if the offense was committed as early as September 1,1984, the two-year limitation period would have expired before the information was filed on November 6, 1986. He contends that the amendment affects substantive rights and therefore cannot be retroactively applied to offenses committed prior to its effective date. Even if it could, appellant argues that retroactive application of the amendment would violate the constitutional prohibition against ex post facto laws.
In response, the State argues that the five-year period applies because the original two-year period of limitation had not expired as to this offense when the amendment became effective. The State argues that the amendment is merely procedural, that the legislature extended the limitation period so as to prosecute as many offenders as possible, and that extending the time period for commencing prosecution of an offense does not affect any accrued right in this case since appellant was still subject to prosecution under the former statute when the amendment took effect. The State also relies upon cases from other jurisdictions which hold that retroactive application of extended limitation periods to offenses committed prior to the effective date of the amendment does not violate the ex post facto clause of the Constitution.
This court has held that statutes of limitation are measures of public policy entirely subject to the will of the legislature. State v. Bentley, 239 Kan. 334, 339, 721 P.2d 227 (1986); State v. Mills, 238 Kan. 189, 191, 707 P.2d 1079 (1985). The 1986 amendment is silent as to whether it is to apply to offenses committed prior to its effective date. While it is often said that it is a general rule of statutory construction that a statute will operate prospectively unless its language clearly indicates the contrary, that rule is modified where the statutory change is merely procedural or remedial in nature and does hot affect the substantive rights of the parties. State v. Hutchinson, 228 Kan. 279, Syl. ¶¶ 6,7, 615 P.2d 138 (1980). In Hutchinson we stated:
“As related to criminal law and procedure, substantive law is that which declares what acts are crimes and prescribes the punishment therefor; whereas procedural law is that which provides or regulates the steps by which one who violates a criminal statute is punished.” 228 Kan. at 287.
While we have found no Kansas case directly on point, this court has held in civil cases that “statutes of limitation are considered 'remedial’ rather than 'substantive’ in that they bar only the remedy and not the right.” Strecker v. Wilkinson, 220 Kan. 292, 298, 552 P.2d 979 (1976); In re Estate of Wood, 198 Kan. 313, Syl. ¶ 1, 424 P.2d 528 (1967).
The Seventh Circuit Court of Appeals has held that extending a criminal statute of limitations before a given prosecution is time-barred by the former limitation period does not violate the ex post facto clause because such a change is “merely procedural.” United States ex rel. Massarella v. Elrod, 682 F.2d 688, 689 (7th Cir. 1982), cert, denied 460 U.S. 1037 (1983).
Although there are cases to the contrary, it appears the better reasoned rule in other jurisdictions is that a criminal statute of limitations is remedial or procedural and any amendment to an existing statute which extends the time for prosecution may be applied to crimes committed prior to the statutory change so long as the prior statute of limitations had not run at the time the amendment became effective.
The Supreme Judicial Court of Massachusetts addressed a similar situation in the very recent case of Commonwealth v. Bargeron, 402 Mass. 589, 524 N.E.2d 829 (1988). The defendant was charged with three counts of assault with intent to rape, alleged to have occurred in November 1979, January 1980, and April 1980. Two of the counts involved child victims. At the time the offenses occurred, the statute of limitations provided six years for commencement of prosecution. However, effective September 30, 1985, an amendment took effect extending the limitation period to ten years. The original six-year period had not yet run for any of the offenses charged at the time the amendment became effective. The defendant was indicted on March 18, 1987, more than six years but less than ten years from the dates the offenses allegedly occurred.
The defendant challenged application of the extended limitation period on both statutory and constitutional grounds. As in our case, the amendment was silent as to whether it was to be applied retroactively. Massachusetts case law had previously approved retroactive application in civil cases of procedural or remedial statutes containing no language calling for retroactive application. The court concluded that there was no statutory barrier to retroactive application of the extended limitation period to the offenses charged, reasoning as follows:
“A canvass of cases throughout the country reveals a hopeless split among the jurisdictions. Some States categorically apply a subsequent statute of limitations to offenses not already time-barred when the new statute of limitations becomes effective. In other jurisdictions, the legislative intent is crucial as to whether the amended statute of limitations should apply retrospectively. Finally, in some jurisdictions, the courts have simply declared that the statute of limitations is substantive and, hence, may operate only prospectively.
“It may be argued that the Legislature recognized the delays commonly and understandably associated with a child’s report of sexual abuse and wished to accommodate such delays by an extention of the statute of limitations. It makes good sense for the Legislature to consider what is increasingly one of the great scourges of our society—the sexual abuse of children. We have a right to consider the precise evil which is targeted in legislation under review. See Commonwealth v. Collett, 387 Mass. 424, 432[, 439 N.E.2d 1223] (1982). Accordingly, it is not reasonable to assume that the Legislature intended to delay the application of the new ten-year statute of limitations which would eventuate if the amendment applied only to crimes occurring after its enactment.
“Moreover, apart from legislative intent, the extension of the statute of limitations is remedial and procedural, not substantive. United States ex rel. Massarella v. Elrod, 682 F.2d 688, 689 (7th Cir. 1982). ‘Statutes relating merely to the remedy or procedure which do not affect substantive rights are generally held to operate retroactively.’ Commonwealth v. Greenberg, [339 Mass.] at 578-579, [160 N.E.2d 181 (1959)]. People v. Masry, 179 Cal. App. 3d 1149[ 225 Cal. Rptr. 174] (1986).” 402 Mass, at 592-94.
We concur in the reasoning of the Massachusetts court and hold that an amendment to a criminal statute of limitations extending the time for commencement of a prosecution is remedial or procedural, not substantive, and may be applied to crimes committed prior to the effective date of the amendment so long as the prior statute of limitations had not expired prior to the effective date of the amendment. Of course, if the statute being amended has run on the specific crime charged, then the amendment cannot be applied to resurrect a prosecution which has already been time-barred.
Appellant asserts, however, that even if a criminal Statute of limitations is not substantive it cannot be applied retroactively because to do so would violate the constitutional prohibition against ex post facto laws. We do not agree. The great weight of authority is consistent with the general rule set forth in 21 Am. Jur. 2d, Criminal Law § 224, p. 410:
“Where a statute extends the period of limitation, the extension applies to offenses not barred at the time of the passage of the act, so that a prosecution may be commenced at any timé within the newly established period. Such a statute, however, cannot operate to revive offenses that were barred at the time of its enactment, since that would make the statute ex post facto.”
Both parties to this appeal cite State v. Creekpaum, 732 P.2d 557 (Alaska App. 1987). However, that decision was reversed on April 15,1988, by a unanimous Alaska Supreme Court in State p, Creekpaum, 753 P.2d 1139 (Alaska 1988). Robert Creekpaum allegedly sexually assaulted a nine-year-old girl, on March 12, 1980. On May 17, 1985, more than five years later, he was indicted for the offense. At the time the offense was allegedly committed, Alaska statutes provided for a five-year limitation on the commencement of prosecution. However, in 1983, before the five-year limitation period had expired on the offense, the Alaska Legislature extended the period during which prosecution could commence for offenses committed against children under 16. Unlike our amendment, the Alaska, statute explicitly provided that it was applicable to offenses committed more than five years before the Act’s- effective date. The Creekpaum prosecution was timely commenced under the amendment, and the issue was whether the application of the amendment to Creekpaum’s case would amount to an unconstitutional ex post facto law.
The Alaska Supreme Court analyzed recent United States Supreme Court cases dealing with the prohibition against ex post facto laws, including Miller v. Florida, 482 U.S. 423, 96 L. Ed. 2d 351, 107 S. Ct. 2446 (1987); Weaver v. Graham, 450 U.S. 24, 67 L. Ed. 2d 17, 101 S. Ct. 960 (1981); and Dobhert v. Florida, 432 U.S. 282, 53 L. Ed. 2d 344, 97 S. Ct. 2290 (1977). The Alaska Supreme Court applied the two-step analysis prescribed in Weaver and Miller for determining whether a statute is an ex post facto law. That same analysis was adopted by the Kansas Court of Appeals in State v. Anderson, 12 Kan. App. 2d 342, 344, 744 P.2d 143 (1987):
“For a criminal or penal law to be ex post facto, two elements must be present: the law ‘must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it.’ Weaver, 450 U.S. at 29; Stokes v. Orr, 628 F.Supp. 1085, 1086 (D. Kan. 1985).”
The Creekpaum court noted that the new statute-was explicitly retroactive because of its language applying the extended period to offenses committed during or after the five years immediately preceding its effective date. However, it rejected Creekpaum’s argument that the new law was more onerous to-him than the old and therefore met the second prong of the ex post facto analysis. Since the extended limitation period did not affect the crime for which he was indicted, the prescribed punishment, or the burden of proof necessary to establish guilt, it was not disadvantageous to him for purposes of the ex post facto analysis. See Miller, 482 U.S. at 431-33; Dobbert, 432 U.S. at 294; Calder v. Bull, 3 U.S. (3 Dall.) 386, 390, 1 L. Ed. 648 (1798). After citing other federal court cases as precedents, the Alaska court concluded that the extension of the statute of limitations for the offense with which Creekpaum was charged, before the original limitation period had expired, did not violate either the federal constitutional prohibition against ex post facto laws or its counterpart in the Alaska Constitution.
In State v. Hodgson, 44 Wash. App. 592, 603, 722 P.2d 1336 (1986), affd 108 Wash. 2d 662, 740 P.2d 848 (1987), the court held that retroactive application of a similar amendment did not constitute a violation of the ex post facto clause, reasoning:
“ [Lengthening the limitation period before the prosecution is barred does not aggravate the crime, increase the punishment, or allow the offender to be convicted under legal rules permitting different testimony. Courts uniformly hold that extending the statute of limitation before a prosecution is barred is not ex post facto.”
See Commonwealth v. Bargeron, 402 Mass, at 590-91.
We agree with the general rule. The amendment here does not violate the constitutional bar against ex post facto laws, and the commencement of the prosecution of Count VII within the extended period of the statute of limitations was timely.
The fourth issue is whether the evidence was sufficient to convict appellant of the charges contained in Counts I, II, III, VI, and VII of the information. Appellant does not challenge the sufficiency of the evidence to support Counts IV and V, both involving the victim D.E. Appellant does challenge the credibility of the testimony of T.A., C.P., and J.P., the other three alleged victims. Each of the victims testified to all of the necessary factual elements to support a conviction on the charges pertaining to each victim.
“In a criminal action, when the defendant challenges 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 a charge are sustained.” State v. Dunn, 243 Kan. 414, 429, 758 P.2d 718 (1988).
It is not the function of the appellate court to reweigh evidence or determine the credibility of witnesses. State v. Myatt, 237 Kan. 17, 29-30, 697 P.2d 836 (1985).
While cross-examination brought out inconsistencies in the testimony of the young witnesses, an appellate court looks only to the evidence supporting the verdict. The jury heard all of the testimony, observed the demeanor of the witnesses, and was clearly made aware of the alleged inconsistencies in final argument. In addition, much of the testimony of the four girls was corroborated by Detective Horn in her testimony and by other evidence. We conclude that under our standard of review the evidence was sufficient to support the convictions.
Appellant’s remaining argument concerning the sufficiency of the evidence, along with his fifth and sixth issues, all relate to the ruling of the trial court permitting the State to amend Counts VI and VII of the information at the close of the State’s case.
Count VI originally charged Nunn with engaging in sexual intercourse with J.P. between October 1, 1986, and October 31, 1986. At trial, the State orally amended the information by deleting the one-month time frame and substituting the one-year period “between the 1st day of September, 1985 and the 3rd day of September, 1986.”
Count VII originally charged Nunn with engaging in oral copulation with J.P. between September 1, 1986, and September 14,1986. At trial, the two-week time frame in 1986 was amended by substituting a one-year period “between the 1st day of September, 1984 and the 1st day of September, 1985.” The motion to amend was sustained as to each count over the objection of defense counsel.
Appellant asserts that (1) the complaints were never properly amended; (2) the late amendment prejudiced his substantial rights in that he was unable to present a defense against the new time frames; and (3) the information as amended was indefinite and failed to ;meet constitutional standards because of the one-year time frame of the amendments.
J.P., the victim in Counts VI and VII, was only twelve years of age at the time the original complaint was filed in November 1986, and could not be specific in her testimony as to the dates when the alleged acts of sexual intercourse and oral copulation took place. Her only frame of reference as to the time of the occurrences was to tie them to her grade level in school. When the testimony at trial revealed the acts occurred during an entirely different time frame from those alleged in the complaint, the State was allowed, over defense counsel’s objection, to amend the two counts to conform to the evidence as presented at trial.
After the State’s motion to amend.the complaint was sustained, no attempt was made to file an amended complaint or to amend the existing complaint by interlineation. Instead, the amendment was included in the journal entry of judgment, which was not filed until April 20, 1987, some three weeks after the completion of trial. As is customary, the journal entry was not prepared until after the hearing on post-trial motions and sentencing, which did not take place until April 13, 1987.
K.S.A. 1987 Supp. 22-3201(2) provides that the information shall be a written statement. K.S.A. 1987 Supp. 22-3201(4) provides: “The court may permit a complaint or information to be amended at any time before verdict or finding if no additional or different crime is charged and if substantial rights of the defendant are not prejudiced.”
The appellant argues that the State failed to properly amend Counts VI and VII of the information, and, since the State’s evidence did not conform to the original information, the evidence does not support a guilty verdict on either count. Appellant essentially contends that amendments to a criminal information may be made only in writing, either by filing a new complaint or by interlineation on the original complaint, citing State v. Wilson, 240 Kan. 606, 608, 731 P.2d 306 (1987). Since the amendments in this case were made orally, he argues that the State is bound by the original written information.
The State, in response, relies upon the recent case of State v. Rasch, 243 Kan. 495, Syl. ¶¶ 3, 4, 758 P.2d 214 (1988), in which this court held that an information may be orally amended under certain circumstances.
In State v. Wilson, 240 Kan. 606, the appellant was convicted of second-degree murder. The information purported to charge first-degree murder, but omitted some of the essential elements of that offense or any other degree of criminal homicide. The State argued that the information had been amended during trial to charge first-degree murder. However, the prosecutor had not made a written motion to do so, nor was an oral motion made for the record. Nevertheless, the trial court allowed the State to amend to conform to the evidence. No amended information was ever filed, nor was the original information changed by interlin eation. The precise wording of the desired amendment was never stated for the record. Under these circumstances, this court held that the information was never amended. The court concluded:
“Where leave is granted to the prosecution to amend an information, the amendment must be made either (a) by filing an amended information, or (b) by striking out or writing in the pertinent matter by interlineation upon the document on file.” 240 Kan. at 608.
The court also noted that any amendment of the information to charge an offense for the first time during trial would be barred by the explicit language of K.S.A. 1987 Supp. 22-3201(4).
This case is clearly distinguishable from Wilson. Here, the prosecution made an express motion on the record to amend the information. The motion was very specific as to the desired changes in the alleged time frames for the two offenses. A journal entry was filed subsequent to trial reflecting the amendments in writing. No additional offense was charged in the amended information; only the time spans during which the offenses allegedly occurred were altered.
On the other hand, State v. Rasch, 243 Kan. 495, relied upon by the State, is also distinguishable. In Rasch, the appellant challenged his four convictions of aggravated robbery in part because the State had not amended the jurisdictionally defective complaint by interlineation or by filing an amended complaint. The original complaint omitted an essential element of the offense of aggravated robbery. Nearly two months before trial, the prosecutor recognized the omission and orally moved to amend the complaint. A journal entry was filed granting the motion to amend by specifically inserting the necessary language in each count charging aggravated robbery. The journal entry noted that the defendant had no objection to the amendments proposed by the State. The State argued that the journal entry cured the defective complaint.
The Rasch court cited State v. Wilson, 240 Kan. 606, as indicating “a willingness to accept an oral amendment to cure a jurisdictionally deficient information.” 243 Kan. at 500. The court then noted that in Rasch the prosecutor made a specific motion to amend the complaint; the defendant failed to express any objection to the amendment; and a written journal entry was filed documenting the amendment four days after the oral mo tion was granted and nearly two months before trial, stating the amendment with particularity and specifying the exact places where the amended language was to be inserted in the complaint. The court concluded:
“When the defendant and his attorney are present and permission is obtained from the judge, the State may orally amend the complaint or information at any time before the verdict or finding, if no additional or different crime is charged and if substantial rights of the defendant are not prejudiced. . . . The amendment to the complaint or information may be shown by interlineation on the complaint or information, by the filing of an amended complaint or information, or by a journal entry stating the amendment to the complaint or information. We agree with the State’s reasoning that its oral motion stating the amendment, followed by a written journal entry of the amendment made on the record with the defendant and his attorney present and later approved by defendant’s counsel, gave Rasch adequate notice of the crimes with which he was charged and satisfied all jurisdictional requirements.” 243 Kan. at 501. (Emphasis added.)
In State v. Dodd, 11 Kan. App. 2d 513, 728 P.2d 402 (1986), the court allowed an oral amendment of the information to conform to the evidence. Both the prosecution and the trial judge failed to amend the information in writing. The appellate court recognized the validity of an oral amendment and held that “the failure to file an amended information in writing was not reversible error.” 11 Kan. App. 2d at 515. Cf. Cox v. State, 205 Kan. 867, 875, 473 P.2d 106 (1970) (oral amendment of information to proceed on lesser charge).
In the instant case, the original information is not challenged as having been jurisdictionally defective. The information was orally amended on March 26, 1987, the second day of the three-day trial. The defense objected to the motion, but it was granted, and a journal entry memorializing the court action was filed after the trial had been completed. The statute provides that a complaint or information may be amended “at any time before verdict.” When the motion to amend is made during trial, must the prosecution, if the motion is granted, seek to delay the trial while the necessary paperwork is done to complete the record? We think not. Absent any showing of prejudice to the defendant, when the amendment is made during trial with the defendant and defense counsel present, the amendment is effective immediately. The court’s action is not invalidated because a written journal entry is not filed until after the trial has been completed. Under the circumstances of this case, we hold that procedurally the complaint was validly amended as to Counts VI and VII.
Appellant next asserts that the amendment of the two counts substantially prejudiced his ability to defend against the allegations of the complaint due to the changes in the time frames when the acts allegedly occurred. The changes in the time frames were substantial. The one-month time frame in Count VI of October 1, 1986, to October 31, 1986, was changed to a year-long period between September 2, 1985 and September 3, 1986. Likewise, the two-week period in September 1986, originally set forth in Count VII, was changed to a one-year period between September 1, 1984, and September 1, 1985.
The appellant contends that his right to present a defense was impaired by completely changing the time frame during which two of the alleged offenses occurred. He contends that the amendments essentially allowed the victim in Counts VI and VII, J.P., to change her story, but did not permit the defendant to prepare a defense as to the amended time frames. In response, the State argues that the appellant has failed to show his rights were prejudiced by the amendments, since his defense was a general denial that he ever committed any of the offenses with which he was charged.
In State v. Ferguson, 221 Kan. 103, 558 P.2d 1092 (1976), the defendant was originally charged with committing an offense on or about July 1, 1974. During trial, the court granted the State’s motion to amend the date of the offense to on or about May 21, 1974, and on or about June 7, 1974. The defense successfully requested a continuance until the next day. At the close of the defendant’s case, the State amended the information again to delete the reference to May 21, 1974. On appeal, this court quoted K.S.A. 22-3201(4) and concluded:
“The fact the dates-were amended to conform with the evidence is not prejudicial. It was not a critical issue. No statute of limitations was involved. Alibi was not a defense to make dates important. Time was not an element of the offense. (State v. Sisson, 217 Kan. 475, 536 P.2d 1369.) This court has approved amending dates in an information where such factors are not critical. (State v. Reed, 214 Kan. 562, 565, 520 P.2d 1314; State v. Osbey, 213 Kan. 564, 569, 517 P.2d 141.) Furthermore, a continuance was granted to defendant when the dates were first amended. There is nothing in the record to support his allegation the jury was confused.” 221 Kan. at 105-06.
In State v. Howard, 224 Kan. 208, 579 P.2d 702 (1978), appellants were charged with committing one offense on September 25, 1975, and another on September 29, 1975. During trial, at the close of the State’s case, the information was amended to conform to the proof to allege commission of the first offense on September 27,1975, and the other on September 26 or 27, 1975. Appellants contended they were substantially prejudiced by the amended complaint because they were unable to adequately prepare any sort of defense for the dates alleged in the amended information. The court concluded that the circumstances reflected in the record failed to establish prejudice to the appellant’s substantial rights.
In State v. Van Cleave, 239 Kan. 117, 716 P.2d 580 (1986), the defendant was convicted of one count of aggravated indecent liberties with a child. Among other issues on appeal, he argued that the trial court erred by permitting the State on the day of trial to amend the complaint to change the date of the alleged offense. The complaint originally alleged the offense was committed on or between October 13 and October 24, 1983. As amended, the complaint alleged that the offense occurred on October 10, 1983. The court noted that the appellant did not assert an alibi defense, but rather simply argued that his defense was prepared in response to the dates in the original complaint. The court concluded that the date of the offense was not material to any defense asserted at trial, and that no prejudice was shown.
In State v. Dodd, 11 Kan. App. 2d 513, 728 P.2d 402 (1986), the information originally charged defendant with unlawful possession of a firearm on or about June 26, 1985. The State’s evidence was directed to the period between November 4, 1983, and June 26, 1985. The prosecution’s motion to amend the information to conform to the evidence was granted. As amended, the information charged that the offense was committed on or before June 26, 1985. On appeal, the defendant argued that his substantial rights were prejudiced because the amendment was not made until after the close of the State’s evidence. The court, relying upon Ferguson, noted that time is not an essential element of unlawful possession of a firearm, that the defendant had not asserted an alibi defense, and that no statute of limitations was involved. The panel held there was no reversible error.
In State v. Wonser, 217 Kan. 406, 407, 537 P.2d 197 (1975), this court held that time is not an indispensable ingredient of the offense of indecent liberties with a child, and that failure to specify a definite date and time for the alleged offense did not deprive the defendant of his Sixth Amendment right to know the nature and cause of the accusations against him. Nor is time an indispensable ingredient of aggravated criminal sodomy, the offense alleged in Count VII. Appellant did not assert an alibi defense in the instant case. In his testimony, he simply denied fondling or taking any sexual actions toward any of the four alleged victims at any time. He testified that each of the victims was lying. Under the circumstances and the defense presented in this case, appellant has not shown how the amendments prejudiced his defense to Counts VI and VII. It was for the jury to determine what weight and credibility should be given to the testimony of J.P. in light of the changed dates and inconsistencies in the evidence. The argument lacks merit.
The appellant’s next challenge is that his Fourteenth Amendment right to due process of law was violated when the prosecution was permitted to orally amend Counts VI and VII of the information. The appellant contends that the amended information did not adequately apprise him of the charges against him because Counts VI and VII, as amended, alleged that each of the offenses occurred within a one-year time frame. He argues that the one-year time frame in which each of the offenses allegedly occurred had the effect of precluding preparation of any meaningful defense.
K.S.A. 1987 Supp. 22-3201(2) reads 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. The precise time of the commission of an offense need not be stated in the indictment or information; but it is sufficient if shown to have been within the statute of limitations, except where tire time is an indispensable ingredient in the offense.”
Time is not an indispensable ingredient of either indecent liberties with a child, State v. Sisson, 217 Kan. 475, Syl. ¶ 2, 536 P.2d 1369 (1975); State v. Wonser, 217 Kan. at 407, or aggravated criminal sodomy.
In Sisson, this court noted: “Where a prosecution is not commenced promptly after the alleged commission of an offense or the event is not otherwise brought to public notice, it is not unusual for uncertainty as to dates to appear particularly where the memories of children are involved.” 217 Kan. at 478. The appellant in this case did not attempt to assert an alibi defense based upon the more specific time frames in the original information; he simply denied having ever committed any sexual acts towards the complainants. Appellant has not demonstrated that he was misled or prejudiced in making his defense by the amendment concerning the dates of the offenses charged.
The appellant has cited no case holding that a one-year time frame for commission of an offense is so vague and uncertain as to render the information constitutionally insufficient absent some showing of prejudice.
In State v. Brooks, 33 Kan. 708, 7 Pac. 591 (1885), this court held that an information filed October 15, 1884, alleging that the defendant unlawfully sold liquor on. the “_day of ___, 1884,” was sufficiently definite as .to time.
Appellant has not demonstrated that the amendments violated his due process rights or resulted in a constitutionally deficient complaint.
The last issue is whether an excessive sentence was imposed for Count VII of the information as amended at trial. Appellant was sentenced to a term of 30 years to life for the offense charged in Count VII, which the State and the trial court denominated aggravated criminal sodomy, a class B felony. K.S.A. 1987 Supp. 21-3506(2). Pursuant to the habitual criminal statute, K.S.A. 1987 Supp. 21-4504, the sentencing court imposed a minimum term of 30 years, twice the greatest minimum sentence authorized by K.S.A. 1987 Supp. 21-4501(b) for class B felonies. The court imposed a maximum term of life, as authorized by K.S.A. 1987 Supp. 21-4501(b).
The appellant argues that from September 1, 1984, until the statute was amended on July 1, 1985, the conduct with which appellant was charged in Count VII was proscribed by both the aggravated criminal sodomy statute (K.S.A. 1987 Supp. 21-3506[a]) and the statute defining the offense of indecent liberties with a child, a class C felony (K.S.A. 1984 Supp. 21-3503[l][b]). Appellant contends that his sentence on Count VII should have been based upon the statutory limits for class C felonies rather than those for class B felonies. The State concedes that the statutory penalty section for class C felonies should have been applied as to Count VII, and agrees that the case should be remanded for resentencing or correction of the sentence on that count. We agree with the parties.
This same issue was before the court in State v. Clements, 241 Kan. 77, 734 P.2d 1096 (1987), where the defendant was convicted of aggravated criminal sodomy for an incident that occurred in May 1985. Clements contended on appeal, among other things, that the trial court should have instructed the jury on indecent liberties with á child as a lesser included offense. The State conceded that the allegations would have supported a charge of either aggravated criminal sodomy or indecent liberties with a child as defined by K.S.A. 1984 Supp. 21-3503(l)(b), and that the two offenses were identical except as to the applicable penalty. This court concluded:
“Where identical offenses are involved, the question is not truly a matter of one being a lesser included offense of the other. Each has identical elements and the decision as to which penalty to seek cannot be a matter of prosecutorial whimsy in charging. As to identical offenses, a defendant can only be sentenced under the lesser penalty. Here, it would have been the better practice to have instructed on indecent liberties with a child, but the error could have been remedied by sentencing defendant as having been convicted of a class C felony rather than a class B felony. Accordingly, the sentence imposed herein must be vacated.” 241 Kan. at 83. 1
Where two criminal offenses have identical elements but are classified differently for purposes of imposing a penalty, a defendant convicted of either crime may be sentenced only under the lesser penalty provision;
This case is remanded to the trial. court with directions to correct the sentence imposed on Count VII to conform to the penalties for a class C felony rather than a class R felony. In all other respects the judgment is affirmed.
Allegrucci, J., concurs in the result. | [
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|
Per Curiam:
This original proceeding was instituted before the Kansas Commission on Judicial Qualifications (Commission), to inquire into the conduct of the Hon. William H. Yandell, district judge of the 30th Judicial District. The notice of formal proceedings charged Judge Yandell in eight separate counts with various violations of the Code of Judicial Conduct, Supreme Court Rule 601 (1988 Kan. Ct. R. Annot. 277).
Chief Justice Miller and Justice Six recused themselves from serving in this case. The Hon. William M. Cook, district judge of the 29th Judicial District, and the Hon. Jean F. Shepherd, district judge of the 7th Judicial District, were assigned to serve with the remaining members of the Supreme Court pursuant to Article 3, § 6(f) of the Kansas Constitution.
The proceedings before the Commission were lengthy, as evidenced by a transcript of 338 pages, hundreds of pages of exhibits and pleadings, and numerous depositions. Testimony before the Commission included seven witnesses for the petitioner and six presented by Judge Yandell. In addition, at least four depositions were admitted in evidence, and Judge Yandell testified at length. The matter was exhaustively presented to the Commission by experienced trial counsel for both parties. The Commission found by clear and convincing evidence that Judge Yandell had violated various Canons of Judicial Conduct in all eight counts asserted by the petitioner. Although one member of the Commission was unable to participate in the proceedings, eight members of the Commission were unanimous in recommending that Judge Yandell be removed from office.
William H. Yandell was appointed to the district court of the 30th Judicial District in 1982 and has served in that capacity since. At the time of his appointment, Judge Yandell was apparently in serious financial difficulty, which led eventually to most of the charges herein. The basic facts are not in dispute and will only be set forth as necessary in considering the various charges asserted before the Commission and the issues raised on appeal.
Respondent contends before this court that a judge should not be disciplined because of problems arising from financial difficulties and that removal from office is not warranted by the charges or the evidence. At the outset we will set forth the pertinent provisions of the Judicial Canons and then consider each count of the complaint.
The Commission found various violations of Canons 1,2, and 5 of the Code of Judicial Conduct, which provide in relevant part:
CANON 1
“A Judge Should Uphold the Integrity and Independence of the Judiciary
A judge should participate in establishing, maintaining and enforcing, and should himself observe, high standards of conduct so that the integrity and independence of the judiciary may be preserved.”
CANON 2
“A Judge Should Avoid Impropriety and the Appearance of Impropriety in All His Activities
“A. A judge should respect and comply with the law and should conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”
CANON 5
“ A Judge Should Regulate His Extrajudicial Activities to Minimize the Risk of Conflict with His Judicial Duties
“C. Financial Activities.
(1) A judge should refrain from financial and business dealings that tend to reflect adversely on his impartiality, interfere with the proper performance of his judicial duties, exploit his judicial position, or involve him in frequent transactions with lawyers or persons likely to come before the court on which he serves.
(4) Neither a judge nor a member of his family residing in his household should accept a gift, bequest, favor, or loan from anyone except as follows:
(b) a judge or a member of his family residing in his household may accept ordinary social hospitality; a gift, bequest, favor, or a loan from a relative; a wedding or engagement gift; a loan from a lending institution in its regular course of business on the same terms generally available to persons who are not judges; or a scholarship or fellowship awarded on the same terms applied to other applicants.”
COUNT I.
It was alleged that Judge Yandell violated Canons 1 and 2A by leaving the scene of a non-injury accident and by violating the terms of a previous cease and desist order issued by the Commission. In view of the allegations and findings relative to the cease and desist order, certain background information is required.
On October 20, 1982, Judge Yandell was arrested in Topeka and charged with driving while intoxicated in violation of K.S.A. 8-1567. He entered into a diversion agreement which was successfully completed, and the charges were ultimately dismissed. A cease and desist order was issued by the Commission on December 13, 1983, in which Judge Yandell agreed, inter alia, that he would not commit “any act or acts that could be found to violate the laws of the State of Kansas.”
On April 11, 1985, Judge Yandell was driving his Volkswagen automobile in Wichita when he struck two highway signs in the vicinity of Kellogg and Hoover Streets. His car was damaged to the extent that it could not be driven and he proceeded on foot to the Canterbury Inn to seek assistance. He called the Harper County law enforcement center and asked the undersheriff on duty, Larry Stone, to investigate the collision. Stone replied that he could not do so because it was out of his jurisdiction, but that he would contact the Wichita police department. Judge Yandell then contacted his father-in-law in Wichita, who furnished him with an automobile. The judge then returned to his home in Harper. He did not return to the scene of the accident or contact Wichita authorities that night. He did contact the Wichita police department the next day and ultimately filed a police report with the department. He was charged with three violations of the ordinances of the City of Wichita and, following a plea bargain, pled guilty to one count of inattentive driving.
The Commission concluded:
“Respondent went out of his way to avoid complying with the rules relating to reporting an accident. He left his vehicle unattended. He did not leave any identification on the vehicle. He did not go back to the scene of the accident to aid the investigation. As a judge handling criminal cases, he had to know the sheriff s office in Harper County would not investigate an accident in Wichita. The conduct does not comply with the requirements of the law.
“K.S.A. 1987 Supp. 8-1605, provides that the driver of a vehicle having an accident with property, must leave identification and without necessary delay, notify the nearest office of the duly authorized authority. Respondent clearly did not do that. He not only violated the laws of the State of Kansas, but in addition, the cease and desist order resulting from an earlier proceeding.
“The respondent testified that he did not make any report because he was afraid that he would be asked to pass an alcohol breath test, even though he insisted he had not been drinking. Respondent testified that he believed that the breath test would show alcohol without any alcohol having been consumed. The commission finds this explanation incredible.”
The Commission found that respondent’s conduct violated Canons 1 and 2A of the Code of Judicial Conduct.
Respondent argues that the provisions of K.S.A. 1988 Supp. 8-1605 were substantially complied with and that the Wichita police department had all the necessary information required by the statute readily available to it. He contends that the purposes of the statute were served and that the entire issue could be categorized as de minimis non curat lex.
Respondent’s argument lacks merit. K.S.A. 1988 Supp. 8-1605 imposes a mandatory duty on drivers involved in accidents resulting in property damage. Since January 1, 1985, violation of the statute constitutes a misdemeanor. Respondent’s accident occurred on April 11, 1985. The respondent’s failure to carry out the mandatory duty imposed by the statute “could be found to violate the laws of the State of Kansas,” and, as such, violated the Commission’s prior cease and desist order.
The issue in this proceeding is not whether respondent violated K.S.A. 1988 Supp. 8-1605 beyond a reasonable doubt, as he apparently contends, but whether the evidence before the Commission proved by clear and convincing evidence that respondent violated the Code of Judicial Conduct. See State ex rel. Comm’n on Judicial Qualifications v. Rome, 229 Kan. 195, 205, 623 P.2d 1307, cert, denied 454 U.S. 830, reh. denied 454 U.S. 1094 (1981). While we agree that this incident, standing alone, would not justify the severe sanction of removal from office, we concur with the Commission that the respondent’s actions do constitute violations of Canons 1 and 2A.
COUNTS II and III
Counts II and III will be considered together as they involve various financial transactions relating to the respondent’s 1982 Volkswagen automobile. Respondent pledged the automobile as security for loans with Barber County Savings & Loan Association from April 1985 until the loans were paid in 1988. The creditor attempted to obtain the title to the vehicle so its lien could be shown thereon, but respondent failed to cooperate and never furnished the title. On July 10,1987, the same vehicle was pledged as security for a loan from First National Bank of Anthony. The vehicle was sold in August 1987 without the knowledge or consent of Barber County Savings & Loan Association, which received no part of the proceeds of the sale.
The Commission found that respondent would not respond to valid requests from Barber County Savings & Loan Association for the automobile title; that he pledged the same vehicle as security for two different loans without advising either creditor of the other; that he violated the contractual and property rights of his secured creditor; and that even though the loan was ultimately paid, the conduct violated Canons 1 and 2A. We agree with the Commission.
COUNTS IV through VIII
As the circumstances and facts surrounding these counts are similar and individual consideration of each count would be largely repetitious, the charges will be considered together.
These counts involved various financial dealings respondent had with several financial institutions, including Barber County Savings & Loan Association, First National Bank of Medicine Lodge, First National Bank of Kingman, Kingman Savings & Loan Association, and First National Bank of Attica. With the exception of Kingman Savings & Loan Association, respondent executed one or more notes to each of the institutions and he defaulted on all the loans. Respondent avoided telephone calls, stalled the various creditors, made false promises of payment, and generally ignored and evaded all attempts by the creditors to contact him. Several of the creditors had to obtain legal counsel and resort to legal proceedings to ultimately secure payment. Respondent had checking accounts with Kingman Savings & Loan Association and Barber County Savings & Loan Associa tion. He wrote at least 47 insufficient fund checks on the Barber County Savings & Loan Association account and at least 57 on the Kingman Savings & Loan Association account. Both accounts were closed by the creditors due to unsatisfactory experiences with the respondent.
While all of these problems were going on, respondent regularly heard contested cases involving these creditors and did not recuse himself. Respondent’s testimony indicates he did not think it was necessary because he knew his financial dealings and problems with the litigants would not affect his decisions. He also did not see any serious problems associated with writing insufficient fund checks.
There was also testimony that various creditors had given the respondent favored treatment in their collection efforts and that they were reluctant to press for collection as fully as they might in other cases. However, we do not find any evidence that respondent openly used his judicial position to obtain preferential treatment in the securing of loans, although the creditors were certainly cognizant of his position.
The Commission found violations of the Code of Judicial Conduct in connection with each count. These violations included Canons 1, 2A, 5C(1), and 5C(4)(b). Respondent presented evidence of his financial problems and his attempts to meet his financial obligations. He candidly admitted he was greatly overextended and could not possibly meet all his monthly obligations. As he stated, he was forced to “rob Peter to pay Paul.” He also appeared before the bench/bar committee of the 30th Judicial District and attempted to work out a solution to his problems with the help and assistance of members of the committee. He was ultimately successful in consolidating all his debts under one loan with First National Bank of Anthony, and all the earlier creditors were eventually paid in full.
Respondent argues that he should not be subject to discipline solely because he defaulted on his financial agreements. He contends that the inability of a judge to meet his financial obligations does not in itself amount to impropriety or the appearance of impropriety. However, respondent’s conduct went far beyond mere inability to meet his financial obligations. He continually avoided his creditors, made false promises and statements to them, and conducted himself in a manner totally inconsistent with the Code of Judicial Conduct and his obligations as a member of the judiciary. His conduct appears to reflect a total disregard for the judicial system and its processes. He does not exhibit any respect for his position, the laws he has sworn to uphold, or the contractual and legal rights of his creditors. His conduct displays a total lack of judicial temperament and understanding of the obligations of his position as a member of the judiciary.
Canon 5C deals specifically with a judge’s financial activities and how they should be regulated to minimize the risk of conflict with his or her judicial duties. Canon 5C(1) provides:
“A judge should refrain from financial and business dealings that tend to reflect adversely on his impartiality, interfere with the proper performance of his judicial duties, exploit his judicial position, or involve him in frequent transactions with lawyers or persons likely to come before the court on which he serves.”
Canon 5C(3) provides:
“A judge should manage his investments and other financial interests to minimize the number of cases in which he is disqualified. As soon as he can do so without serious financial detriment, he should divest himself of investments and other financial interests that might require frequent disqualification.”
Canon 3C requires a judge to disqualify himself “in a proceeding in which his impartiality might reasonably be questioned . . . .” The commentary to Canon 5C reads in part:
“Canon 3 requires a judge to disqualify himself in any proceeding in which he has a financial interest, however small; Canon 5 requires a judge to refrain from engaging in business and from financial activities that might interfere with the impartial performance of his judicial duties. ... A judge has the rights of an ordinary citizen, including the right to privacy of his financial affairs, except to the extent that limitations thereon are required to safeguard the proper performance of his duties.”
All of the financial institutions involved in this case are located within the five counties making up the 30th Judicial District. Respondent’s consistent failure to meet his financial obligations to those institutions caused him to be involved in “frequent transactions with lawyers or persons likely to come before the court on which he serves.” Canon 5C(1). In addition, by borrowing from at least six different financial institutions within the district, respondent failed to manage his financial interests so as to minimize the number of cases in which he might be disqualified. Canon 5C(3).
Respondent’s insufficient fund checks and loan defaults involved financial institutions located within the judicial district in which he holds judicial office. Such practices could not help but raise questions as to his impartiality, in legal proceedings involving those same financial institutions.
Respondent argues at length that there was no reason why he should disqualify himself in cases involving financial institutions to which he owes money. Respondent relies on cases from other jurisdictions in urging that a judge need not disqualify himself unless he has a personal proprietary or pecuniary interest in the subject matter of the litigation. Canons 3C and 3D govern disqualification of a judge in great detail and will not be repeated here. Suffice it to say Canon 3C(1) provides in part, “A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned.” The Commission concluded, inter alia,
“It is hard to believe respondent testified that he did not see anything improper in sitting on cases involving Barber County Savings & Loan while his loans were delinquent and he was not cooperating with them in their collection efforts. Respondent admitted he persisted in hearing their cases, not just once, but regularly. He testified he never disqualified himself. There is no way that a judge’s impartiality could go unquestioned in a situation like that. If he rules for the Savings & Loan, he is trying to gain favor, either so they will not harass him anymore for the money he owes, or to encourage them to voluntarily do something to his advantage, or at least it would appear that way. On the contrary, if he rules against the Bank, it is because they are trying to collect their money from him, or at least it would appear that way. Merely treating the Bank as he did is bad enough, but when he sits on cases and decides contested matters, or sits on cases at all involving the Bank while these banking problems are going on, the improper conduct is magnified. His conduct and the pattern of conduct established violations of Canon I, Canon 2A, Canon 5C(1), (4)(b).”
We reach the same conclusions with regard to respondent’s hearing of cases involving other financial institutions that held notes on which he defaulted. At the very least his conduct has the appearance of impropriety and reflects adversely on his position as a judge.
We are not unmindful that several prominent attorneys who regularly practice in the 30th Judicial District testified in support of Judge Yandell and attested to his impartiality, fairness, and ability as a judge. We also recognize that Judge Yandell was recently retained in office by a vote of the electors in the 30th Judicial District. While the testimony and the election results demonstrate widespread faith in and support for Judge Yandell, that does not alter the fact that the conduct of Judge Yandell reflects adversely upon his ability to uphold the integrity and independence of the judiciary. In addition, it is clear that respondent’s actions not only give the appearance of impropriety but were, in fact, improper conduct for a member of the judiciary.
We conclude that the Commission properly found that respondent’s actions in dealing with his creditors were fraught with numerous violations of the Code of Judicial Conduct and that such violations have been proved by clear and convincing evidence.
Respondent urges this court to construe K.S.A. 20-2908 to bar removal of a judge for events occurring during his or her prior term. Since the respondent was retained in office in the November 1988 election for a four-year term beginning in January 1989, he argues that his current term cannot be cut short for conduct he committed during his prior term.
Article 3, § 15 of the Kansas Constitution vests the authority for removal of judges in this court:
“[J]udges [other than justices of the supreme court] shall be subject to . . . discipline, suspension and removal for cause by the supreme court after appropriate hearing.”
The statute cited by respondent simply outlines the statutory procedures for holding a vote on retention of a judge in districts having adopted nonpartisan selection of judges. In In re Rome, 218 Kan. 198, 542 P.2d 676 (1975), as respondent notes in his brief, this court explicitly held:
“Acts or omissions of a judge committed during a prior term of office may be considered in determining whether removal or disciplinary measures are warranted against the judge.” 218 Kan. 198, Syl. ¶ 3.
Respondent’s argument lacks merit. While this court may consider respondent’s retention for another term by the voters as a mitigating factor, such retention certainly does not preclude this court from imposing discipline for respondent’s conduct during his prior term.
Respondent’s final argument raises the issue of whether the sanction of removal, recommended by the Commission, is warranted under the circumstances of this case. Respondent contends that the recommendation of removal is overly harsh.
The Supreme Court is not bound by the recommendations of the Commission on Judicial Qualifications. In re Hammond, 224 Kan. 745, 746, 585 P.2d 1066 (1978). Supreme Court Rule 623(f) (1988 Kan. Ct. R. Annot. 304) lists the alternative dispositions available to this court:
“The court may refer the matter back to the commission for such further proceedings as the court may direct, reject the recommendations, dismiss the proceedings, order discipline or compulsory retirement, or make such other disposition as justice may require.”
After carefully reviewing the entire record, we concur in the recommendation of the Commission and its conclusion that “the integrity of the judiciary in his [Judge Yandell’s] Judicial District has been seriously damaged.” We are of the opinion that the appropriate sanction must be removal from office.
It is Therefore Ordered that Judge William H. Yandell be and he is hereby removed from office as District Judge of the 30th Judicial District effective forthwith.
It is Further Ordered that the costs of this action be assessed to the respondent and that this opinion and order be published in the official Kansas Reports.
Effective this 14th day of April, 1989.
Miller, C.J. and Six, J., not participating. | [
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The opinion of the court was delivered by
Allegrucci, J.:
The defendant, Luther C. Washington, was charged with one count of possession of heroin, a class B felony, in violation of K.S.A. 1988 Supp. 65-4127a, and one count of possession of marijuana, a class D felony, in violation of K.S.A. 1988 Supp. 65-4127b. Following a trial to the court, the defendant was convicted on the heroin count and acquitted on the marijuana count. The defendant was sentenced to a term of imprisonment of 5 to 20 years for the possession of heroin conviction. Defendant appeals the conviction.
On May 5, 1987, Wichita police officers entered a motel room occupied by defendant pursuant to a search warrant issued the same day. Probable cause for the search warrant was based upon information received by a confidential informant who informed the police that he had previously purchased heroin at the motel. A Wichita police officer stated in the application for a search warrant that he had observed the informant make a “controlled buy” in Room 121 of the motel, returning from the room with heroin which had not been on his person prior to entering the motel.
When the police officers executed the warrant, they found the defendant alone in the motel room “standing just outside of the bathroom door looking at the door as we were coming in.” One of the officers present testified at trial that the defendant immediately went into the bathroom of the motel room. When the officer reached the bathroom, he noticed that the defendant “had his hand inside the toilet, that the toilet had been flushed, the water was circulating and going down. The individual was still holding a plate and in a sideway motion was moving the plate in the water as if he was washing it.”
The defendant was then arrested and the officers commenced a search of the motel room. Police recovered apothecary bowls, spoons, a syringe, scales, a white powder found in a suitcase, a green balloon from the top of the dresser, and a baggie containing a “green botanical substance” from the motel nightstand. A Wichita police department chemist testified that his tests revealed that the green botanical substance was marijuana. The green balloon yielded a tan powder which, according to the testimony of the police chemist, tested “[p]ositive for heroin.”
The motel room was registered in the name of James Evans. A Wichita police officer testified that the name James Evans did not appear in their computer. The motel room was under police observation for approximately an hour and a half prior to the execution of the search warrant, and the police observed a number of persons come and go from the motel room. The district court concluded that there was sufficient evidence that the defendant was guilty of the charge of possession of heroin, but that there was insufficient evidence to convict on the marijuana charge. The court stated:
“The evidence of trying to destroy evidence was successful by running to the bathroom in a time-honored way of flushing drugs down the drain. If it was marijuana, it would have been floating around in there.
“I am afraid I am convinced that there is circumstantial evidence from which I conclude it’s been proven beyond a reasonable doubt Mr. Washington was in possession of heroin. No evidence of any needle marks. There were two suitcases, as I recall, in the room. There is no question that he was there, but I think that, there is no proof that he is the one that rented the room. He was just there, in possession, whoever was in possession was expecting a lot of visitors to get a lot of drugs, but there wasn’t any supplies there, either. Sure wouldn’t be time to take it all and flush it down the stool if they came in unexpectedly and it must have been unexpected because when he saw them he ran for the bathroom. So I am going to find there is a reasonable doubt of Count 2, but I am going to find he was guilty of Count 1. The reason I conclude that is I am not sure possession of that residue—it shows an activity going on at the time. That’s what I am finding, Mr. Washington, that you were in possession of it.
“I am going to state exactly what I am relying upon so that if in law this evidence is insufficient, there will be an adequate record.
“I am relying upon the presence of paraphernalia, measuring devices, mortar, pestle, mixing devices, balloons in which it’s commonly kept in which a residue was found and the testimony that you were swishing that plate in the toilet, and you had to be familiar with it. At least, you knew where the toilet was. If you were just taken by surprise in there and didn’t know whose they were, there wouldn’t be any reason to destroy whatever it was.
“So I think they have proved that. But absent any, bringing any clerk or anybody to say that you rented that room, they may be correct in their theory that you were using that name, but there is so much more in that line that I am choosing not to rely on that. Strong conjecture, a good surmise, is different than proof beyond a reasonable doubt.”
The defendant first challenges the sufficiency of the evidence against him. In addressing this issue, we must determine whether the evidence, viewed in the light most favorable to the prosecution, could convince a rational factfinder that the defendant was guilty of the charges beyond a reasonable doubt. State v. Walter, 234 Kan. 78, 82-83, 670 P.2d 1354 (1983). We have held that possession of a controlled substance requires specific intent to exercise control over the substance, with knowledge of the nature of the substance. See State v. Faulkner, 220 Kan. 153, 156, 551 P.2d 1247 (1976). The possession of a controlled substance may be immediate and exclusive, jointly held with another, or constructive as where the drug is kept by the accused in a place to which he has some measure of access and right of control. State v. Bullocks, 2 Kan. App. 2d 48, 49-50, 574 P.2d 243, rev. denied 225 Kan. 846 (1978). Proof of the required elements for possession of a controlled substance may be established by circumstantial evidence. State v. Anthony, 242 Kan. 493, 502-03, 749 P.2d 37 (1988); State v. Faulkner, 220 Kan. at 160; State v. Rose, 8 Kan. App. 2d 659, 664, 665 P.2d 1111, rev. denied 234 Kan. 1077 (1983); State v. Bullocks, 2 Kan. App. 2d at 49.
The defendant argues that the district court’s reasoning was based upon inferences not supported by the evidence. However, we think sufficient evidence exists to support the conviction regardless of the inferences made by the court. The motel room was under police surveillance for approximately an hour and a half prior to the execution of the search warrant. Several people were observed entering and leaving the room during the police surveillance, but the defendant was not one of them. The defendant was alone in the motel room in which heroin was found to be present. The defendant demonstrated some control over the contents of the motel room by apparently attempting to conceal and destroy material contained in the room. We note, on the other hand, that the inferential value of the circumstantial evidence present in the case is somewhat limited. Other persons had also been present in the motel room,' though they were not present at the time that the police executed the search warrant. There is apparently no evidence with regard to the substance that was actually on the dish that the defendant attempted to clean in the motel toilet. The district court’s conclusion that the substance on the dish must have been heroin, since marijuana would have floated and been observable in the toilet bowl, is conjectural at best. However, viewing the evidence in the light most favorable to the State, we find there is sufficient evidence to support the conviction of the defendant for possession of heroin.
The defendant also contends that the police chemist failed to adequately identify the tan substance as heroin. The defendant contends that the chemist’s opinion that the tan powder tested “positive for heroin” does not foreclose the possibility that the substance was not heroin, but merely establishes that it was a material sharing some of the chemical characteristics of heroin. We do not agree; however, the defense made no objection at trial to the form of the chemist’s opinion. Instead, the only objections made by the defense during the chemist’s testimony were foundation objections, arguing that the chemist had not been demonstrated to be competent to administer the chemical tests. Since this issue was not presented to the trial court, it will not be considered on appeal.
The defendant next challenges the district court’s refusal to order the State to identify the confidential informant, contending that the district court’s decision violates the provisions contained in K.S.A. 60-436. The defendant also contends that the refusal of the district court to order the identification of the informant violated his rights to substantive and procedural due process. K.S.A. 60-436 provides:
“A witness has a privilege to refuse to disclose the identity of a person who has furnished information purporting to disclose a violation of a provision of the laws of this state or of the United States to a representative of the state or the United States or a governmental division thereof, charged with the duty of enforcing that provision, and evidence thereof is inadmissible, unless the judge finds that (a) the identity of the person furnishing the information has already been otherwise disclosed or (b) disclosure of his or her identity is essential to assure a fair determination of the issues.”
The privilege contained in K.S.A. 60-436 is closely modeled on the decision of the United States Supreme Court in Roviaro v. United States, 353 U.S. 53, 1 L. Ed. 2d 639, 77 S. Ct. 623 (1957). See State v. Knox, 4 Kan. App. 2d 87, 93-94, 603 P.2d 199 (1979).
In Roviaro, the leading case discussing the so-called “informer’s privilege,” the Court stated:
“What is usually referred to as the informer’s privilege is in reality the Government’s privilege to withhold from disclosure the identity of persons who furnish information of violations of law to officers charged with enforcement of that law. [Citations omitted.] The purpose of the privilege is the furtherance and protection of the public interest in effective law enforcement. The privilege recognizes the obligation of citizens to communicate their knowledge of the commission of crimes to law-enforcement officials and, by preserving their anonymity, encourages them to perform that obligation.
“The scope of the privilege is limited by its underlying purpose. Thus, where the disclosure of the contents of a communication will not tend to reveal the identity of an informer, the contents are not privileged. Likewise, once the identity of the informer has been disclosed to those who would have cause to resent the communication, the privilege is no longer applicable.
“A further limitation on the applicability of the privilege arises from the fundamental requirements of fairness. Where the disclosure of an informer’s identity, or of the contents of his communication, is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause, the privilege must give way. In these situations the trial court may require disclosure and, if the Government withholds the information, dismiss the action.” 353 U.S. at 59-61.
In his substantive due process argument, the defendant contends that a third limitation on the informer’s privilege also exists under the United. States Supreme Court opinion in Roviaro, although it is not included in the statutory language of K.S.A. 60-436. The defendant contends that Roviaro establishes a broader limitation upon the informer’s privilege than that recognized by K.S.A. 60-436, relying upon the Roviaro Court’s statement that the State must reveal evidence relating to a confidential informant when it “is relevant and helpful to the defense of an accused, or is essential to a fair determination of a cause.” (Emphasis added.) 353 U.S. at 60-61. The defendant contends that the emphasized language establishes a stronger limitation upon the informer’s privilege than that recognized by the statute.
We find no merit in the defendant’s argument. The alternative phrasing used in the cited portion of the Roviaro opinion need not, and should not, require the adoption of two separate tests. Instead, the two tests may be seen to be synonymous: If the State refuses to disclose the identity of a confidential informant who could provide evidence “relevant and helpful to the defense,” it inherently prejudices the fairness of the trial. The “relevant and helpful” language in the Roviaro opinion should be viewed as an implicit standard contained within the fair trial requirement, rather than providing a separate, independent, and different standard. The standard of review of the district court’s decision in the present case is therefore the same under K.S.A. 60-436(b) and under the due process considerations recognized in Roviaro: Whether the informant could provide information essential to a fair trial by providing information relevant and helpful to the defense.
Relying upon the decision of this court in State v. Schilling, 238 Kan. 593, 712 P.2d 1233 (1986), the State argues that the defendant had the burden to establish that the informant’s testimony would, in fact, materially assist his defense. According to the State’s interpretation of Schilling, a demonstration by the defendant that the testimony of the informant could potentially assist his defense is insufficient to require the disclosure of the informant’s identity.
In Schilling, this court held:
“[B]efore disclosure will be ordered, it is incumbent upon a defendant to show that the identity of the informer is material to his defense. [Citations omitted.] It is also the rule that speculation and suspicion regarding what an informant might possibly testify to is not sufficient to require disclosure.” 238 Kan. at 599-600.
See State v. Pink, 236 Kan. 715, 722, 696 P.2d 358 (1985); State v. Braun, 209 Kan. 181, 186, 495 P.2d 1000, cert, denied 409 U.S. 991 (1972). However, we have also recognized that the necessity for the revelation of an informant’s identity will depend upon the circumstances present in each case. “Each case must be decided on its own merits.” State v. Braun, 209 Kan. at 184. See State v. Pink, 236 Kan. at 722. The circumstances present in this case necessarily lead us tci the conclusion that the potential exists for the informant’s testimony to be exculpatory and thus material to defendant’s case.
In determining if the State is required to reveal an informant’s identity, it is important to distinguish between two types of informants: Those who merely furnish to the police information which establishes probable cause, and those informants who actually participate in or observe the criminal activity of the defendant and are therefore in a position to provide independent evidence relevant to the defense of the case. See Roviaro, 353 U.S. at 59-61; McCray v. Illinois, 386 U.S. 300, 18 L. Ed. 2d 62, 87 S. Ct. 1056 (1967); State v. Knox, 4 Kan. App. 2d at 94-96. This distinction between the two types of informants was expressly adopted by this court in its decision in Pink, 236 Kan. at 721-22.
The decisions of this court in Schilling, Pink, and Braun, requiring the defendant to demonstrate the materiality of the informant’s identity or his testimony in order to secure the disclosure of the informant, all involved the first type of informant discussed above—the “mere tipster.” See State v. Knox, 4 Kan. App. 2d at 95. In Braun, the defendant “failed to show that the informer participated in the offense or that the informer was in any way a material witness” to the charged crimes. 209 Kan. at 186. Similarly, in Pink, the court concluded that “the informant was a mere ‘tipster’ whose information precipitated the investigation,” but had not been shown to possess independently relevant knowledge of the charged crimes. 236 Kan. at 723. Finally, in State v. Schilling, the informant had been shown to possess information relating only to a sale of marijuana which occurred some three months prior to the marijuana sales which formed the basis for the charges against the defendant. 238 Kan. at 598.
Where the informant in a criminal case has only the status of a “mere tipster” by simply providing law enforcement officers with the probable cause to conduct a criminal investigation of the accused, and does not otherwise appear to have direct knowledge of the events forming the basis of the criminal charges against the defendant, the rule recognized in Schilling and its predecessors applies—the defendant must affirmatively demonstrate the relevance and materiality of the informant’s identity or his testimony. However, when the informant may logically possess information directly relevant to the alleged criminal events themselves, further inquiry is required by the court.
In the present case, the informant is not a “mere tipster,” whose sole importance to the case was his providing information to support the search of the motel room based upon probable cause. The informant was present at the alleged crime scene immediately prior to the defendant’s arrest. It is particularly important to note the extremely circumstantial nature of the evidence against the defendant. The defendant was found present, alone, in a motel room in which a bag containing heroin was also found. There is no direct evidence that the defendant was in actual possession of heroin at the motel. Indeed, marijuana was also found in the motel room, but the district court apparently concluded that the circumstantial evidence was insufficient to support a conviction for possession of marijuana.
The testimony of the informant was therefore “highly relevant and might have been helpful to the defense.” Roviaro, 353 U.S. at 63-64. Several other persons had been present in the motel room on the day the police received the informant’s tip. The informant was therefore in a position to provide critical evidence relating to the defendant’s alleged possession of the heroin. If the informant had testified that one of the other persons present in the motel room was the owner or seller of the heroin, it could have materially assisted the defendant’s case. Because the informant was not a “mere tipster,” and obviously possessed knowledge which is relevant and may have potentially assisted the defendant in defending the charges against him, the district court erred in refusing to require the identification of the informant without first conducting an in camera hearing to determine if the testimony of the informant would assist the defendant in his defense. In State v. Pink, 236 Kan. at 722, this court recognized that an in camera hearing would ease the “very harsh” evidentiary burden on defendants to establish the nature and relevance of the informant’s testimony. We said:
“Although this evidentiary burden which is placed on the defendants appears to be very harsh, it is eased by the in camera disclosure to the court. If the judge had found a reasonable probability that the informant could give needed testimony, the government would have been required to disclose the informant’s identity. [State v.} Knox, 4 Kan. App. 2d at 99. However, the judge found in camera that the informant’s testimony was not needed on the issue of guilt or innocence. . . .
“We are satisfied that the informant was a mere “tipster” whose information precipitated the investigation that led to the defendants’ arrest. That fact alone is insufficient to compel disclosure of the information. United States v. Buras, 633 F.2d 1356 [(9th Cir. 1980)]; Bourbois v. United States, 530 F.2d 3 (5th Cir. 1976); State v. Grider, 206 Kan. 537, 479 P.2d 818 (1971). There was no error in the trial court’s refusal to disclose* the informant’s identity.” 236 Kan. at 722-23.
In Gaines v. Hess, 662 F.2d 1364 (10th Cir. 1981), the Tenth Circuit, presented with facts very similar to the present case, found that an in camera hearing provided an effective procedure for the determination of whether, in a particular case, due process concerns required the disclosure of the informant’s identity:
“Thus, the informant could testify directly to the critical issue in the case: whether Gaines was the seller. The informant’s existence was revealed by Bemo’s testimony, and the informant was the only one mentioned in the record, other than Gaines himself, who could corroborate or discredit Bemo’s testimony. On these facts, it would violate Gaines’ due process rights to deny disclosure if in fact the informant could provide potentially significant exculpatory testimony.
“Under these circumstances, an in camera hearing is the appropriate procedural vehicle for determining whether the informant’s testimony would lend significant credence to Gaines’ defense. Such a procedure will limit the extent of the disclosure of the informant’s identity and information, thereby protecting the State’s interest in avoiding unnecessary disclosure, while at the same time it will safeguard defendant’s right to the testimony of any accessible witness who may be significantly helpful to his defense. This court recognized the value of this procedure in United States v. Martinez, 487 F.2d 973, 977 (10th Cir. 1973). Numerous other circuits have approved the in camera hearing as a device to ensure proper application of the Roviaro test. [Citations omitted.] The in camera procedure has the advantage of giving the trial court considerable flexibility in determining if disclosure is warranted. For instance, where identity is at issue, the informant might be shown a picture of the defendant. See, e.g., United States v. Doe, 525 F.2d 878 (5th Cir.), cert, denied 425 U.S. 976, 96 S. Ct. 2179, 48 L. Ed. 2d 801 (1976). We leave to the discretion of the trial court how best to determine the relevance of the informant’s testimony, although the in camera proceedings should be transcribed and sealed to permit meaningful review while retaining limited disclosure. See McLawhom [v. North Carolina], 484 F.2d at 5 n.13.” 662 F.2d at 1368-69.
We agree and hold that it was error to deny the defendant’s motion to disclose the identity of the confidential informant without first conducting an in camera hearing. In so holding, we do not reverse the defendant’s conviction but remand the case to the district court with directions to conduct an in camera hearing to determine if the confidential informant’s testimony is relevant and helpful to defendant’s defense. If it is, then the defendant should be granted a new trial and the identity of the confidential informant should be disclosed to the defendant.
The final issue raised by the defendant is that the district court abused its discretion in failing to grant a continuance. On the day of the trial, the defendant’s request for a continuance of several days was denied. The decision whether to grant a continuance lies within the sound discretion of the trial court. State v. Hartfield, 9 Kan. App. 2d 156, 159, 676 P.2d 141 (1984). We have carefully reviewed the record and find no abuse of discretion.
The case is remanded to the district court for further proceedings consistent with this opinion. | [
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Per Curiam:
Anthony R. Russo, an attorney formerly admitted to the practice of law iri Kansas, has petitioned this court for readmission to the bar of Kansas pursuant to Supreme Court Rule 219 (1988 Kan. Ct. R. Annot. 135). Mr. Russo was originally disbarred by consent in 1976 when he voluntarily surrendered his license to practice law to avoid further disciplinary proceedings. In re Russo, 220 Kan. 181, 551 P.2d 787 (1976).
In 1980, Mr. Russo filed a petition with this court seeking readmission to the practice of law in Kansas. That petition was denied. State v. Russo, 230 Kan. 5, 630 P.2d 711 (1981), hereafter Russo I. In 1987, Mr. Russo again petitioned this court for readmission to the bar of Kansas.
The factual background leading to the surrender of Mr. Russo’s license to practice law is fully set forth in Russo I and need not be repeated at length herein. Suffice it to say, Mr. Russo was convicted in federal court “of conspiring to carry on prostitution and bribery in Kansas in violation of the Kan. Stat. Ann. §§ 21-3512,3513 and 3901 by traveling and causing travel in interstate commerce and by using and causing the use of facilities in interstate commerce, including wire communication facilities, in violation of 18 U.S.C. § 1952,” and that conviction was affirmed on appeal. United States v. Russo, 527 F.2d 1051 (10th Cir. 1975).
In Russo I hearings were held by a panel of the Kansas Board for Discipline of Attorneys and the panel recommended that Mr. Russo be readmitted to the practice of law in Kansas. However, a majority of the members of this court were of the opinion that the underlying nature of the criminal offense for which Mr. Russo was convicted was so serious that his readmission to the practice of law should be denied. The court set forth eight factors which should be considered in any reinstatement proceeding including “the seriousness of the original misconduct.” State v. Russo, 230 Kan. 5, Syl. ¶ 4. Those factors, while not intended to be all-inclusive, have been considered by the Kansas Board for Discipline of Attorneys in numerous cases and were again considered in the present proceeding.
The evidence presented by the petitioner in Russo I was set forth in detail in the dissenting opinion of Mr. Justice Prager. The evidence presented in the present application, although not nearly as voluminous, was similar to that of the petitioner in Russo I, and again a panel of the Kansas Board for Discipline of Attorneys has recommended that Mr. Russo be readmitted to the practice of law upon condition that he pass the Kansas bar examination.
In Russo I we stated:
“Conspiracy to bribe a police officer in order to protect and promote other illegal activities is an offense that is totally repugnant to the administration of justice and the duties of an attorney who has taken a solemn oath to uphold the constitutions and laws of the United States and the State of Kansas. Such an offense strikes at the very heart of our criminal justice system and if tolerated could completely destroy our system of justice as it has always existed in this country. It is obvious from the cases that each petition for reinstatement must be considered on its own merits and that such decisions must be made on a case by case basis depending upon the facts involved. The refusal to grant Mr. Russo reinstatement to practice law in spite of the recommendations of the hearing panel does not deprive him of equal protection of the law. Considering the gravity of the offense for which petitioner was originally convicted, a majority of this court is of the opinion that the petition of Anthony R. Russo for reinstatement at this time to the practice of law in Kansas must be and is hereby denied.” 230 Kan. at 12.
Throughout the various proceedings involving Mr. Russo, he has consistently argued that he was only convicted of conspiracy to violate interstate commerce in furtherance of prostitution and bribery and that he has never been convicted of, or even charged with, either promoting prostitution or bribery. Why Mr. Russo was never charged with violations of the Kansas laws against bribery and promoting prostitution we do not know. The fact that the conspiracy for which he was convicted may not have been successful does not reduce the seriousness of the original offense. A conspiracy to violate the bribery statutes of Kansas, whether successful or not, “strikes at the very heart of our criminal justice system.” State v. Russo, 230 Kan. at 12.
Numerous courts have found that certain ethical, moral, or criminal violations may be so serious as to require permanent disbarment. E. g., Matter of Ramsey, 279 S.C. 29, 301 S.E.2d 470 (1983) (conspiracy to distribute marijuana and cocaine and distribution of cocaine); In re Clark, 83 N.J. 458, 416 A.2d 851 (1980) (gross neglect of clients’ business and misuse of clients’ trust funds); Bar Ass’n v. Fennell, 63 Ohio St. 2d 113„ 406 N.E.2d 1129 (1980) (neglect of clients’ affairs, misrepresentations to clients, misuse of clients’ funds, etc.); Matter of Kerr, 424 A.2d 94 (D.C. 1980) (mail fraud); Kentucky Bar Ass’n v. Wilson, 555 S.W.2d 953 (Ky. 1977) (forgery and misuse of clients’ funds); In re Philip Weinstein, 254 Or. 392, 459 P.2d 548 (1969) (use of runners to solicit business and other professional misconduct); The Florida Bar v. Rassner, 172 So. 2d 818 (Fla. 1965) (misuse of clients’ trust funds). While we agree that the foregoing violations are extremely serious, in our opinion, none approaches the seriousness of the conduct of petitioner.
In Russo I we said:
“While the evidence before the panel indicates that many respected members of petitioner’s community sincerely believe that he has been totally rehabilitated and should be again admitted to the practice of law, it is this court’s duty to determine whether the readmission of Mr. Russo to the practice of law would be in the best interests of justice and the people of the State of Kansas.” 230 Kan. at 8.
That statement is equally applicable to the proceeding now before the court.
It is the opinion of a majority of the members of the court that the seriousness of the original misconduct of Mr. Russo is such that his disbarment should be permanent.
The petition for readmission to the bar of Kansas is denied. | [
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The opinion of the court was delivered by
Herd, J.:
This is a criminal action. Stephen Macomber appeals his jury convictions of four counts of aggravated robbery, K.S.A. 21-3427, and one count of aggravated battery, K.S.A. 21-3414. Macomber’s previous convictions on these same counts were reversed and remanded by this court in State v. Macomber, 241 Kan. 154, 734 P.2d 1148 (1987) (Macomber I).
Macomber’s convictions stem from four robberies within two months of fast food restaurants in Wichita. The restaurant employees were unable to identify the man who robbed them as he wore a plastic bag over his head. Macomber was arrested and convicted due to admissions he made to friends. Additional facts will be discussed as they relate to the issues in the case.
The first issue is whether the trial court abused its discretion by the manner in which it allowed Macombér to impeach the credibility of a witness against him. This witness was Bryan Fairchild, in whose home Macomber lived for about two weeks before his arrest. The police searched the home with Ma-comber’s permission, but failed to find a gun used in one of the robberies. The next day, Fairchild told the police he had just found the gun, and led them to the gun hidden in his house. He testified Macomber had told him he committed the robberies and assault.
In Macomber I, we reported the facts of Macomber’s first trial relevant to the instant case:
“During cross-examination of Fairchild, appellant was permitted to ask the witness whether he had ever lied on the stand before. Fairchild replied that he had not. A proffer of evidence was made, setting forth evidence appellant wished to use to impeach Mr. Fairchild. Specifically, at the preliminary examination in this case, Fairchild stated he was not under the influence of drugs and never used drugs; yet, two witnesses would testify Fairchild- had in fact smoked marijuana on the way to the preliminary hearing and was involved in various drug transactions at the time of the hearing.
“The trial court ruled that although a witness’s credibility may be attacked by evidence regarding the character traits of honesty and veracity, it can only be attacked by opinion or evidence testimony of reputation and not by specific instances of a witness’s conduct. K.S.A. 60-422(c) and (d). The court further held that evidence of drug use or drug offenses does not involve dishonesty or false statement and such evidence is inadmissible for impeaching the credibility of a witness.
“K.S.A. 60-420 provides:
“ ‘Subject to K.S.A. 60-421 and 60-422, for the purpose of impairing or supporting the credibility of a witness, any party including the party calling the witness may examine the witness and introduce extrinsic evidence concerning any conduct by him or her and any other matter relevant upon the issues of credibility.’
“K.S.A. 60-422(c) and (d) provide:
“ ‘As affecting the credibility of a witness . . . (c) evidence of traits of his or her character other than honesty or veracity or their opposites, shall be inadmissible; (d) evidence of specific instances of his or her conduct relevant only as tending to prove a trait of his or her character, shall be inadmissible.’ ” 241 Kan. at 158.
The cited statutes have not been amended.
We held Macomber was not attempting to introduce a specific instance of conduct “relevant only as tending to prove” Fairchild had the trait of drug use, or even of general dishonesty. Instead, Macomber was attempting to prove that Fairchild had lied in his testimony regarding this case. We held that, “[s]ince Fairchild’s testimony regarding the appellant’s admission of criminal activity was essential to the State’s case, the trial court should have admitted the evidence showing the witness had testified falsely.” 241 Kan. at 159.
The first Kansas case on this evidentiary issue is Dewey v. Funk, 211 Kan. 54, 505 P.2d 722 (1973). Dewey was a paternity case in which the mother testified on direct examination that she was a virgin prior to intercourse with the defendant. We found the testimony to be irrelevant and inadmissible because the trial court had previously restricted testimony concerning acts of sexual intercourse to those occurring during the period when the conception could have occurred. The question was what remedy should be allowed the defendant. We held, because it was the plaintiff s counsel who elicited irrelevant testimony prejudicial to the defendant, the defendant should have been allowed to impeach that testimony through testimony that the mother had engaged in intercourse with three other men prior to intercourse with the defendant, even though these incidents could not have resulted in the conception of the child. We cautioned such testimony would be admissible only where the direct testimony of one party made it necessary to remove unfair prejudice against the other in the minds of the jury. “If the testimony of Nancy Dewey as to her virginity had been elicited on cross-examination, defendant would not have been able to contradict such testimony since it involved a collateral matter.” 211 Kan. at 57. We reversed and remanded for a new trial. Presumably, Dewey’s claim of virginity at her first trial could not have been brought out at her second for impeachment purposes.
The next case is State v. Nixon, 223 Kan. 788, 576 P.2d 691 (1978). Nixon was a rape trial to the court in which the complaining witness, after her use of narcotics had been established on direct, testified on cross-examination that she had never sold narcotics. Recause the case turned on whether the court believed the defendant or the complaining witness, we held the defendant should have been allowed to introduce testimony showing the complaining witness had sold narcotics. The evidence would be allowed, but not because it was relevant whether the witness sold narcotics. Drug offenses per se do not establish dishonesty or false statement on the part of a witness. State v. Belote, 213 Kan. 291, 516 P.2d 159 (1973). Rather, the evidence would be allowed to establish the complaining witness’ truthfulness during the trial. We thus departed from Dewey by holding that, even if it were the defendant who elicited the testimony sought to be challenged, that testimony could be impeached to show credibility if the plaintiff failed to object to the collateral questions at the outset.
Nixon was affirmed in State v. Davis, 237 Kan. 155, 697 P.2d 1321 (1985), in which an accomplice contradicted the defendant’s testimony by claiming he was an innocent bystander while the defendant committed a robbery. On recross-examination, defense counsel elicited testimony from the witness that he had never committed a robbery. Because the credibility of the witness was a major factor in whether the jury found the defendant to be guilty, we held the trial court should have allowed the defense to present testimony from the defendant’s mother that the witness made his living by robbery.
Finally, in Macomber I, we held for the purpose of testing a witness’ credibility a defendant could introduce evidence of matters not involving honesty and veracity for the limited purpose of showing a witness falsely testified at the preliminary hearing.
In the case at bar, the trial court allowed defense counsel to ask part of the question asked of Fairchild at the preliminary hearing: whether he was under the influence of marijuana when he testified at the preliminary hearing. Upon his negative reply, Macomber was allowed to introduce testimony that Fairchild had smoked marijuana during a noon recess at the preliminary hearing. The court further presented the jury with a well-written and reasoned jury instruction as follows:
“Evidence has been admitted in this trial concerning the use of drugs. Generally, the use of drugs is not a test of credibility; however, giving false testimony under oath is relevant in determining credibility.
“You may consider whether or not the witness on a prior occasion testified falsely about not being under the influence of drugs as affecting the witness’s credibility.”
The court’s actions were proper, as in Macomber I where we held such evidence admissible.
The errors claimed are the court’s delay, the judge’s commentary in front of the jury, and an oral instruction to the jury, all of which Macomber argues caused the jury to believe the impeachment testimony was improper and unimportant.
The problems began when Macomber first attempted to lay a foundation for impeachment of the testimony of Fairchild. Ma-comber took his cue from Macomber I’s recounting of what had been “permitted” by the trial court in the first trial, and asked, “Mr. Fairchild, have you ever lied under oath before?” Ma-comber, 241 Kan. at 158. Fairchild replied he had not, the State objected, and the court asked, “What kind of a question is that?” Defense counsel was thereupon allowed to approach the bench for the first of many discussions on this issue outside the pres ence of the jury. Because our primary concern is with those comments heard by the jury, only an abbreviated statement of these discussions will be recited.
First, the trial court ruled the question to the witness improper and correctly stated we did not hold it to be proper in Macomber I. Then, it indicated it believed Fairchild’s testimony about his drug use should never have been admitted at the preliminary hearing, which may be correct but was not an issue addressed in Macomber I. The trial court’s statements as a whole indicate it believed that, although we held impeachment of a statement made at preliminary hearing should have been allowed at the first trial, the second trial was so remote in time that the ruling should no longer apply. This is an incorrect construction of Macomber I. We held in Macomber I that Macomber had the right to show Fairchild lied in his testimony at the preliminary hearing against Macomber. Reversal and remand on that issue would serve no purpose if Macomber were denied that right in a second trial.
Another misunderstanding by the court which caused much delay was its belief that Fairchild testified at preliminary examination only that he was not under the influence of drugs. Macomber I clearly states Fairchild testified “he was not under the influence of drugs and never used drugs.” 241 Kan. at 158. That this was Fairchild’s testimony was pointed out to the court in chambers at one point by Macomber himself. The court persisted in understanding the answer to have been limited to influence because, it stated, while a question as to whether Fairchild was under the influence at the time of his testimony might have been conceivably proper, a question as to whether he used drugs could never have been. Macomber I does not state what the question was that elicited Fairchild’s response, and the trial court refused defense counsel’s offer to obtain a transcript of the preliminary hearing to resolve the question.
Thus, defense counsel was only allowed to ask Fairchild if he had been under the influence of drugs at the preliminary hearing. Further, Macomber’s rebuttal witness, who testified she smoked marijuana with Fairchild during the noon recess at the preliminary hearing, was subjected to a long series of questions by the defense attorney in an attempt to satisfy the court’s demand that a foundation be laid that the witness qualified as one who could ascertain when a person was “under the influence.” This attempt covered seventeen transcript pages, in which the court made many comments in front of the jury.
Eventually, however, Macomber was able to impeach that part of Fairchild’s testimony in which he stated he was not under the influence at the time of the preliminary hearing. Defense counsel was then inspired to try the same tactic when, on direct examination, Fairchild denied having a cocaine kit in his room as alleged by Macomber. Defense counsel asked Fairchild on cross-examination whether he had ever used cocaine, in an apparent attempt to lay foundation for later impeachment by a witness on this matter. After objection and a discussion in front of the jury, the court instructed the jury as follows:
“I’m going to just state something on the record. There’s no reason to have secrets from this jury. You can cross-examine people about their convictions of offenses involving dishonesty and false statement as affecting their credibility. It’s been held on numerous occasions by our Court that whether someone may have used some drug is not admissible to test their credibility. There’s been an exception in this case having to do with whether or not upon the occasion of a preliminary hearing this witness stated that he was not under the influence of marijuana. You have heard some testimony by a young woman who says that she smoked two marijuana cigarettes with him upon the occasion after a noon recess of a preliminary hearing. The ground of admissibility of that evidence was agreed to by counsel for the State and the defense in a conference out in the hall. The admissibility of any of that is limited solely to whether or not false testimony was given at the preliminary hearing as to whether or not, upon the occasion of the preliminary hearing, the individual now on the stand was testifying falsely that he had not ingested marijuana, as I understood it.
“Now, it’s rather esoteric, perhaps; but the consideration and the sole consideration is whether or not at the preliminary hearing this gentleman falsely stated he was not under the influence of marijuana, as I understand what it’s been limited to up to this moment. Based on that—Is what I’m saying obscure to you? The only question is whether this man falsely testified that he was not under the influence of drugs whenever that preliminary hearing was held, and that’s the only basis upon which credibility can be tested.”
At a later point, after further discussion, the trial court permitted the defense to ask the question again, stating it understood defense counsel wanted “to ask if [Fairchild] has used cocaine upon occasions which would cast light on whether or not he would be having such a kit?” Fairchild denied ever having used cocaine. This testimony was never impeached.
The issue is whether Macomber was so prejudiced by the trial court’s commentary and delay as to negate the court’s eventual acquiescence to defendant’s requests and proper written instructions to the jury. While the court’s actions caused the jury some confusion, there is no evidence it caused the jury to doubt or dismiss the impeachment testimony. Any error was cured through the admitted testimony and written instruction. The court’s actions were not so arbitrary, fanciful, or unreasonable as to constitute an abuse of discretion. Any error in its actions did not prejudicially affect Macomber’s substantial rights, and the trial was substantially fair. Reversal is thus not required. State v. Bell, 239 Kan. 229, 235, 718 P.2d 628 (1986).
The second issue is whether the imposition of a more severe sentence after Macomber’s conviction following the successful appeal of his first conviction violated Macomber’s due process rights under the 14th Amendment.
Following Macomber’s convictions in the first trial, the presiding judge sentenced Macomber to a controlling term of 32 years to life imprisonment. Following the present identical convictions, a different presiding judge sentenced Macomber to a controlling term of 38 to 100 years’ imprisonment, which, as the minimum term is the more meaningful portion of the sentence, must be deemed a more severe sentence than the first.
Due process requires that vindictiveness against a defendant for having successfully attacked his first conviction must not color the sentence he receives after the new trial, and that the defendant must not be made to fear appealing because of such retaliatory motive on the part of the sentencing judge. North Carolina v. Pearce, 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969). A sentencing judge may thus not impose a heavier sentence after a new trial except for the reason of objective information concerning the defendant’s conduct which occurred after the time of the original sentencing. Wasman v. United States, 468 U.S. 559, 82 L. Ed. 2d 424, 104 S. Ct. 3217 (1984). Such proper reason for a heavier sentence must be articulated by the judge and made part of the record.
In the instant case, the sentencing court articulated no reason for its sentence which was not known to the first court prior to its sentencing. Reversal is thus required under Pearce if the presumption of vindictiveness is found to apply in a case where the defendant is sentenced by a different judge at his second trial. Macomber’s second sentence was not pronounced by the judge who imposed the first sentence.
In Texas v. McCullough, 475 U.S. 134, 140 n. 3, 89 L. Ed. 2d 104, 106 S. Ct. 976 (1986), the Court noted “Pearce itself apparently involved different judges presiding over the two trials,” but held this fact had not been determinative of the court’s opinion. Instead, the Court had subsequently to Pearce held the presumption of vindictiveness arises from the judge’s “personal stake in the prior conviction.” Chaffin v. Stynchcombe, 412 U.S. 17, 27, 36 L. Ed. 2d 714, 93 S. Ct. 1977 (1973). The Court held the presumption did not apply in McCullough in part because the judge herself granted a new trial and sentenced the defendant after his second conviction at the defendant’s request, whereas after his first conviction he had chosen to be sentenced by the jury.
McCullough cited Colten v. Kentucky, 407 U.S. 104, 32 L. Ed. 2d 584, 92 S. Ct. 1953 (1972), where the Court held no presumption of vindictiveness arose where the fine at the defendant’s first sentencing had been imposed in the lower court of a two-tier state system for adjudicating less serious criminal cases. Under this system, the defendant had the right to apply for a trial de novo to the higher court, without claiming error below. In such circumstances, where a completely separate court, as well as judge, heard the case de novo on no claim of error, the court held the presumption of vindictiveness did not apply when a higher fine was imposed after conviction in the higher court.
We followed Colten in State v. Parker, 213 Kan. 229, 516 P.2d 153 (1973), holding the harsher sentencing by a district court following a de novo trial carried no presumption of vindictiveness where the defendant had exercised his right, under the two-tier system then in place for less serious criminal cases, to appeal from his conviction in city court without claiming error.
Macomber argues his case is distinguishable from the above cases because a new trial was not granted him by the district court, and the second district court judge had an “institutional interest” in punishing his challenge to the authority of the district courts.
The precise issue of whether the presumption of vindictiveness applies where two different district court judges sentence a defendant has not been addressed by this court. Prior to Pearce, district courts in Kansas were allowed to impose higher sen tences for convictions following successful appeals without giving an explanation for doing so. See Young v. State, 207 Kan. 166, 483 P.2d 1020 (1971). We have thus far limited second sentencings only as required by the line of United States Supreme Court cases following Pearce. We hold no presumption of vindictiveness arises where the original judge does not pronounce sentence after the second conviction. There is thus no error. “[W]here the presumption does not apply, the defendant must affirmatively prove actual vindictiveness.” Wasman v. United States, 468 U.S. at 569. Macomber has made no showing of actual vindictiveness.
The third issue is whether the trial court erred in refusing to give PIK Crim. 2d 68.07, substituting instead its own instruction on multiple counts. PIK Crim. 2d 68.07 states:
“Each crime charged against the defendant is a separate and distinct offense. You must decide each charge separately on the evidence and law applicable to it, uninfluenced by your decision as to any other charge. The defendant may be convicted or acquitted on any or all of the offenses charged. Your finding as to each crime charged must be stated in a verdict form signed by the presiding juror.” (Emphasis supplied.)
The court’s instruction read:
“Each crime charged against the defendant is a separate offense. He may be convicted or acquitted on all or any of the charges. You must decide as to each charge whether or not the state has met its burden to establish by evidence as to that charge proof beyond a reasonable doubt of defendant’s guilt. You cannot convict the defendant of any offense merely because he is charged with several offenses. The evidence must, as to each separate offense, be sufficient.”
A trial court does not have the time to give the thought and do the research which has been put into the preparation of the Pattern Criminal Jury Instructions by the Advisory Committee on Criminal Jury Instructions to the Kansas Judicial Council. Therefore, where “pattern jury instructions are appropriate, a trial court should use them unless there is some compelling and articulable reason not to do so.” State v. Wilson, 240 Kan. 606, 610, 731 P.2d 306 (1987).
The court articulated its reason for refusing to give the pattern instruction as follows:
“[S]ome of the evidence in this case . . . involves common pattern and also involves a common method, and also involves some of the evidence as to possession of the weapon or weapons. That is common to all cases. And when you say that they’re not to consider any of the evidence on one count with respect to the evidence on another count, you’re asking to disregard admissible evidence; but your point is well taken that each crime is a separate and distinct offense; and you must decide whether or not it’s been proven beyond a reasonable doubt that each charge is established. And it’s also true be may be convicted or acquitted of any or all of the offenses charged. The vice I find in [PIK Crim. 2d 68.07] is the problem of suggesting to the jury that they can’t take into account some of the evidence bearing on several of the charges, and some of the evidence does bear on several of the charges.”
Macomber contends the court’s instruction merely informs the jury that to be charged with a crime is not sufficient for conviction. He argues the instruction omitted the essential point to the jury that, if it decided he was guilty on one charge, it must not let that decision influence its decision on any other charge. Ma-comber argues the court’s instruction is especially prejudicial in this case because he was charged with several counts of similar activity—the armed robberies of similar restaurants by similar methods. The jury thus would be more inclined to make one decision as to his guilt or innocence.
The trial court should have given the PIK instruction since it fit the facts in this case. However, the giving of the court’s instruction is not grounds for reversal as it did not prejudicially affect Macomber’s substantial rights. The court’s instruction informed the jury it must not let its decision to convict on one count influence its decision-making on another count.
Further, separate verdict forms with respect to each count were given the jury. In State v. Cameron & Bentley, 216 Kan. 644, 651, 533 P.2d 1255 (1975), we held this a factor in deciding a jury would not “have been misled into believing that a finding of guilty on one count dictated a like finding in the other,” where a defendant objected to combined instructions concerning multiple counts. We thus held there was no reversible error, although finding, as in this case, that the better practice would have been to give PIK Crim. 2d 68.07. 216 Kan. at 651.
The final issue is whether the trial court abused its discretion in refusing to question a juror regarding an alleged conversation between the juror and a State witness.
The witness was Charles Poe, one of Macomber’s friends whose testimony helped convict him. Poe testified he had loaned Macomber the gun which he later learned Macomber had used to rob some of the restaurants. He led the police to the gun after receiving a grant of immunity from prosecution.
A courtroom observer and acquaintance of Macomber, William Talbott, informed Macomber he had seen Poe talking to a juror as they left an elevator together. Macomber requested a mistrial and, after the verdict, a motion for a new trial. Roth motions were denied. At trial, the court heard testimony on the issue outside the presence of the jury. Talbott testified he could not hear what Poe and the juror were saying, and that the two separated after exiting the elevator. Poe testified if he said anything to the juror, it was simply a comment such as “go ahead” to let the juror exit ahead of him. He also testified a highway patrolman was in the elevator at the time.
The court decided no impropriety had been suggested and held there was no reason to believe the juror had not abided by his oath and instructions. He found, over Macomber’s objection, that it would be improper to examine the juror “about a nonevent.” Instead, he told defense counsel, “I’m sure we might find out who [the patrolman] is, if you wish to do that.”
Macomber presented no further information to the court concerning the patrolman during the trial, and presented testimony from neither the patrolman nor the juror at the hearing on the motion for a new trial.
Communication between a juror and a witness is not a ground for reversal unless the communication is shown to have substantially prejudiced the defendant’s rights. The defendant bears the burden of proof. State v. Fenton, 228 Kan. 658, 664, 620 P.2d 813 (1980). The granting of a mistrial or new trial because of such conduct is within the sound discretion of the trial court, which is best able to judge whether the defendant was prejudiced by the conduct. State v. Coburn, 220 Kan. 743, 746-47, 556 P.2d 376 (1976). The substance of the communication is important and more likely to be prejudicial to the defendant if it relates to the case. State v. Jakeway, 221 Kan. 142, 148, 558 P.2d 113 (1976).
Macomber argues the court abused its discretion in failing to question the juror. It is the usual practice to question the juror involved in complaints alleging misconduct. See State v. Ruebke, 240 Kan. 493, 731 P.2d 842, cert, denied 483 U.S. 1024 (1987); State v. Weigel, 228 Kan. 194, 612 P.2d 636 (1980); State v. Jakeway, 221 Kan. 142; State v. Scruggs, 206 Kan. 423, 479 P.2d 886 (1971); State v. Kearney, 130 Kan. 474, 287 Pac. 261 (1930). In Verren v. City of Pittsburg, 227 Kan. 259, 607 P.2d 36 (1980), a civil case, we held the trial court erred in refusing to question the jurors on alleged misconduct on their part which would have been prejudicial to the defendant. See Johnson v. Haupt, 5 Kan. App. 2d 682, 623 P.2d 537 (1981).
However, the determination of a witness’ credibility in such circumstances is within the trial court’s discretion. The court believed Poe’s testimony and, as an experienced observer of the circumstances surrounding the case, did not believe impropriety occurred. Macomber had the opportunity to obtain the testimony of the juror in support of his motion for a new trial. This he failed to do. We conclude Macomber failed to sustain the burden of proving juror misconduct.
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The opinion of the court was delivered by
Six, J.:
Mark Damman was found guilty of driving while his license was suspended in violation of K.S.A. 1988 Supp. 8-262. He appealed to the district court, where he moved to dismiss the complaint based on a February 2, 1988, Reinstatement Order from the Department of Revenue, Division of Vehicles. The State opposed the dismissal, asserting that the Division of Vehicles does not have the authority to expunge a suspension. The State filed a motion in limine to exclude evidence of the ex- pungement. The district court agreed with Damman, denying the motion in limine and dismissing the complaint. Damman was found not guilty of driving while his license was suspended. The State appeals from this determination upon questions reserved, pursuant to K.S.A. 22-3602(b)(3).
The questions the State has submitted for our review are: (1) Does the Kansas Department of Revenue, Division of Vehicles, have the right to delete a suspension order under K.S.A. 1985 Supp. 40-3104 for failure to show financial responsibility at the time of an accident, where insurance coverage is later discovered? (2) Did the trial court err in denying the prosecution’s motion in limine?
The answer to both questions is “yes.” The motion in limine addressed evidence that was not relevant to Damman’s charge.
FACTS
Damman was stopped and arrested for operating a vehicle with a suspended license contrary to K.S.A. 1988 Supp. 8-262 on December 16, 1987. He was found guilty of that charge by the district magistrate judge, and given a five-day suspended sentence and a fine of $100, plus court costs. He filed a notice of appeal to the district court.
The parties stipulated in the district court that:
(1) Damman was the co-owner of a 1974 Harley-Davidson motorcycle, which was involved in an accident on March 19, 1986. The motorcycle was not operated by Damman at the time of the accident, but by the other co-owner.
(2) The vehicle was insured at the time of the accident and damages were paid to the injured party as a result of the alleged negligence of the co-owner of the motorcycle.
(3) The Department of Revenue, Division of Vehicles, issued a suspension order to Damman on April 11, 1986, stating that it could not verify that he had liability insurance on the motorcycle in question as required by K.S.A.- 1985 Supp. 40-3104.
(4) A hearing on the suspension order (as requested by Dam-man) was held on June 24, 1986. The hearing officer found that Damman failed to show satisfactory evidence the motorcycle was insured at the time of the accident and suspended his license.
(5) Damman was arrested for driving on a suspended license on December 16, 1987.
(6) On February 2, 1988, Ranger Insurance verified that the motorcycle in question had been insured on the date of the accident and the Department of Revenue deleted the suspension from Damman’s record.
At a hearing on the motion to dismiss, the district court said:
“The Court finds that the Department of Revenue, Division of Vehicles, was justified in eradicating and deleting the driving while suspended record of the Defendant, pursuant to K.S.A. 40-3104 et seq. and that the State of Kansas has a right to change the Defendant’s record when information provided to it by the insurance company is brought to their attention in that the Defendant was financially responsible and that his license should not have been found to have been suspended and that he had insurance pursuant to K.S.A. 40-3104. The Court finds that the act K.S.A. 40-3104, et seq. is constitutional and that the Defendant is found not guilty of the charge.”
1. DELETING THE RECORD
The Kansas Automobile Injury Reparations Act, K.S.A. 40-3101 et seq., was created “to provide a means of compensating persons promptly for accidental bodily injury arising out of the ownership, operation, maintenance or use of motor vehicles.” K.S.A. 40-3102. K.S.A. 1985 Supp. 40-3104(a) requires owners of motor vehicles to provide liability insurance for every vehicle owned. A motorcycle fits within the definition of a “motor vehicle” in K.S.A. 40-3103(m). Klamm v. Carter, 11 Kan. App. 2d 574, 578, 730 P.2d 1099 (1986). K.S.A. 1985 Supp. 40-3104(h) authorizes the Director of Vehicles to suspend the license of the driver or owner of a vehicle upon receipt of an accident report involving such vehicle, where there is no liability insurance on the vehicle.
K.S.A. 1985 Supp. 40-3118(e) and K.S.A. 1985 Supp. 8-255(b) set out the procedures to be followed when the Director discovers there is no insurance coverage on a particular vehicle. The record shows that these procedures were followed by the Division of Vehicles in Damman’s case. Pursuant to K.S.A. 1985 Supp. 8-255(b), Damman requested a hearing on the suspension order. A hearing was held on June 24, 1986. The hearing officer made the following order:
“The respondent has failed to show satisfactory evidence that a vehicle was insured at the time of the accident when it was either owned or driven by the respondent. (For definition of ‘owner,’ see K.S.A. 40-3103(o).)
“The respondent’s driving privileges and registration privileges are suspended. The suspended privileges will remain suspended until: (1) the respondent furnishes a release of liability . . . , (2) the respondent remits the appropriate reinstatement fee, and (3) the respondent’s insurance company files an S.R.-22 form with the Director of the Division of Motor Vehicles as required by K.S.A. 40-3118(d).”
The record does not indicate whether Damman appeared at the hearing or presented any evidence. At oral argument on appeal, Damman stated that he did appear.
K.S.A. 1985 Supp. 40-3118(e) provides that if the owner does not produce proof of insurance or financial responsibility the owner’s driving privileges shall be suspended unless the owner shows that the failure to prove lack of insurance is beyond his reasonable control. There is no indication that such a showing was made by Damman. K.S.A. 1985 Supp. 40-3118(f) states that a suspension shall remain in effect until satisfactory proof of insurance has been filed with the director and a reinstatement fee has been paid. Nowhere in the Act is retroactive reinstatement or “deletion” of a suspended license authorized.
Damman received notice of the suspension order. He failed to produce proof of insurance at a hearing held at his request. He did not request an administrative appeal pursuant to K.S.A. 77-601 et seq. There is no evidence in the record that he paid a reinstatement fee or that his insurance company filed an S R-9.9. as ordered by the hearing officer. The trial court did find, however, that the injured party in the accident had been compensated. K.S.A. 1985 Supp. 40-3104(i) was subsequently amended to exclude the language concerning release of liability because the law now requires that continuous insurance be maintained and the penalties are no longer contingent on the occurrence of an accident. L. 1986, ch. 182. The Division of Vehicles based its “deletion” on a phone call from Ranger Insurance.
Driving a motor vehicle while one’s license is suspended is a class B misdemeanor on the first conviction. K.S.A. 1988 Supp. 8-262(a). Damman had not taken any of the affirmative steps required for reinstatement of his license under Kansas law when he was arrested in December 1987, approximately one and one-half years after the suspension order.
In State v. Day, 40 Or. App. 235, 238, 594 P.2d 1285, rev. denied 287 Or. 301 (1979), a case involving the suspension of a license for failure to show proof of insurance, the Oregon Court of Appeals said:
“A person whose license has been suspended by action of the Motor Vehicles Division must obey that suspension order until the suspension is lifted by the Division. If the suspension is improper she must follow the appropriate legal procedure to correct the error rather than simply disregarding it on a belief that it is improper.”
Damman was aware that his license had been suspended. He failed to appeal the order of the Division of Vehicles and he failed to take the steps necessary to be reinstated. Once the Division of Vehicles had complied with the notice and hearing requirements, the burden was on Damman to prove he was entitled to reinstatement. He is not free to ignore the suspension and drive in violation of the law. See Bumgardner v. S.C. Dept. of Hwys. & Pub. Trans., 286 S.C. 46, 49, 331 S.E.2d 787 (Ct. App. 1985).
Damman was found not guilty by the trial court. His guilt or innocence is not at issue in this K.S.A. 22-3602(b)(3) “question reserved” appeal.
In our view, state agencies should be encouraged to correct intra-departmental errors. The simple method of problem resolution has a salutary effect on a citizen’s relationship to government.
On February 2, 1988, the Director of the Division of Vehicles issued his “Reinstatement Order” addressed to Damman. The order stated: “FR2 has been deleted from your record.” (FR2 represents “Failure to meet requirements for financial security following accident—administrative suspension.”)
The issuance of the deletion order was proper under the facts of this case; however, such an order does not have a retroactive effect.
2. THE PROSECUTION’S MOTION IN LIMINE
At the hearing on Damman’s motion for dismissal in the district court, the State filed a motion in limine to exclude any evidence that the Division of Vehicles had “deleted” Damman’s suspension. The State argued that the Division is not authorized to delete the suspension under Kansas law. The district court denied the motion, finding that the Division was justified in eradicating the suspended license.
The action taken by the Director of Vehicles on February 2, 1988, in deleting Damman’s suspension was not relevant to Damman’s guilt or innocence on December 16, 1987, the date of his arrest. The motion in limine should have been granted. Damman had been driving with a suspended license for more than seventeen months. The facts as they existed on the date of his arrest form the relevancy arena for the determination of guilt or innocence on the charge.
Damman could have been found guilty. He was not.
The State’s appeal is denied in part and sustained in part. | [
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The opinion of the court was delivered by
Horton, C. J.:
The sole question in this caséis, whether the board of education of the city of Atchison has the power under the statute to issue bonds for the purpose of raising funds to purchase a school site and erect suitable school buildings thereon. As Atchison is a city of the first class, the laws appplicable to cities of that class are controlling. By ch. 18, §95, Gen. Stat. 1868, such power was given without any other limitation than that the bonds should bear a rate of interest not exceeding ten per cent., payable semi-annually, the principal to be reimbursed in twenty years from the time the bonds were sold. This power has been modified from time to time by amendments. In 1869, by § 4 of ch. 23, the board was limited to an issue of $125,000 of bonds, unless a further amount was authorized by a majority vote of the electors, but the bonds were not to be sold for less than ninety cents on the dollar. In 1871, an act (ch. 58) was passed amendatory of and supplemental to ch. 18 of the Laws of 1868, which provided in § 4, that no bonds should be issued except by a vote of two-thirds of the members of the board, at a regular meeting thereof, and the amount outstanding at any one time was limited to $160,000, with the additional provision that no bonds could be issued in the place of those redeemed or purchased. In 1873, by ch. 62, said § 4 of the statute of 1871 was amended by withdrawing therefrom the last proviso. In 1874, a new act concerning cities of the first class was passed, but the act of 1868 was not repealed, nor the school law changed thereby. (Laws of 1874, ch. 46.) In 1875, ch. 46, Laws of 1874, was amended, and § 9 of ch. 70, Laws of 1875, prohibited the board of education from issuing any bonds for any purpose. In 1876, by ch. 122, the school law of the state was revised, and the provisions regarding public schools in cities of the first class were incorporated in the act for the regulation and support of common schools. Sec. 24 of article 10 of said act is bodily §4 of ch. 62 of the statute of 1873, giving the board full authority to issue bonds upon the vote of two-thirds of the members, not exceeding in the aggregate $160,000. And §31 of article 10 of said act reenacts § 9 of ch. 70, statute of 1875, absolutely inhibiting the board of education from issuing bonds for any purpose. Thus we had in the same statute two sections directly conflicting with each other; the one giving authority to issue bonds, and the other forbidding the issuing of bonds. In 1879, the legislature passed an act to amend an act entitled “An act to incorporate cities of the first class, approved Feb. 24,1868, and to authorize boards of education of cities of the first class to refund certain bonds.” The last clause, or sen ■tence, of §5 of said act, (Laws of 1879, oh. 81,) reads : “And. said board shall issue no bonds hereafter, except the refunding bonds provided for by this act.”
In 1881, by §3, ch. 149, §31, art. 10, ch. 122, Laws of 1876, was repealed. It is conceded that if the provisions of §5, ch. 81, Laws of 1879, are valid, they clearly prohibit the further issuing of bonds by the board. This statute is challenged by the plaintiff in error, upon the ground that the title contains two distinct subjects.
. The legislation upon the issuance of bonds by boards of education has been so changeable and incongruous that the subject presented is attended with some difficulty; and yet as all the legislation existing is found in §24 of article 10 of chapter 122 of the Laws of 1876, and in § 5, chapter 81 of the Laws of 1879, the question at issue rests solely upon the force of the objection presented to the title of the act of 1879. We are inclined to the opinion that within the principles announced in the Division of Howard County, 15 Kas. 194, and The State v. Ewing, 22 Kas. 708, the constitutionality of the act of 1879 may be upheld, and therefore that the board of education of Atchison city is prohibited by the final clause of §5, chapter 81, Laws of 1879, from issuing any bonds, except the refunding bonds provided for in that act.
Counsel cite us to the case of Shepherd v. Helmers, 23 Kas. 504, as sustaining the objections to the title of the act referred to. There is this distinction between that case and the one before us: There, the title of the act related to the funding of outstanding indebtedness; here, the act relates to an amendment of the general act incorporating cities of the first class, and the sections of the statute have reference to the duties and powers of boards of education. It is true that the sentence inhibiting the issuancé of bonds is contained in the section relating to the tax to be levied annually to pay interest and principal of the refunded bonds, and the duties of the clerk of the board, instead of being enacted in a separate section; but this .fact does not militate against its validity, if the ob jection presented is without force. Counsel call our attention to the disastrous consequences to accrue if suitable school accommodations for the children of Atchison cannot be furnished, and assert that if the decision of the court below is affirmed, a very large number of children will necessarily be deprived of school privileges. To this we answer, as we have often answered before, it is our duty only to expound the law., not to make law. Moreover, it is the rule with courts not to declare a statute unconstitutional, unless it is clearly so. The legislature is the body that is responsible for any unfortunate consequences resulting from the inhibition of the issuance of' bonds, and that body must correct the evils attending the enforcement of the statute, if any actually exist. We content ourselves with declaring the law; we can go no further.
The judgment of the district court will be affirmed.
All the Justices concurring. | [
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Per Curiam:
This case, so far as any contested question is' concerned, falls precisely within the decision in Seymour, Sabin & Co. v. Cooper, ante, p. 539, and the opinion delivered in that case will answer for this.
The judgment of the court below will be reversed, and the cause remanded for further proceedings. | [
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The opinion of the court was delivered by
Brewer, J.:
On the 20th day of August, 1879, the board of county commissioners of the county of Pottawatomie ordered that an election be held on the 23d day of September, 1879, for the purpose of permanently locating the county seat of that county. At the day named the election was held, and the returns made to the county clerk, by which returns it appeared that of the four places voted for, Warn ego and Westmoreland received the highest number of votes, and no place receiving a majority of all. Before any canvass of the vote at such election, the plaintiff in error, plaintiff below, obtained a temporary order of injunction restraining any canvass of the votes or any declaration of the result of the election. The temporary injunction thus obtained continued till June 27th, 1881, when upon a final trial it was dissolved, and judgment entered for the defendants. This judgment plaintiff in error seeks to review by this proceeding.
Several questions are presented, and yet in none of them do we see anything prejudicial to the rights of plaintiff in error, or which justifies us in disturbing the decision of the lower court. The first question that arises is, on the language of the petitions filed with the county commissioners. One petition was for permanently relocating the county seat; the other was for permanently locating the county seat. Neither petition by itself had sufficient names. Counsel insist that the statutes prescribe the form of the petition, which must be strictly followed. In this they are mistaken; the statute gives no form, but simply declares that upon petition of a certain number of the legal electors the commissioners shall order an election for the relocation of the county seat. All that is necessary is, that the petition should distinctly express, in one form of language or another, the wish of the petitioners; and upon that expressed wish it is the duty of the commissioners to act.
A second proposition is, that Pottawatomie county is outside the reach of the general county-seat law, because its county seat had been established by special act of the legislature. The facts are these: At the last session of the territorial legislature an act was passed, providing that the electors of Pottawatomie county should first vote upon the question of then determining the location of the permanent county seat; and if a majority voted in favor of making such determination, then a second election should be had for selecting the place for the county seat. In 1862 an act was passed by the legislature, which recited that the result of the elections held under the prior act was that Louisville received a ma jority of the votes, and was thereby declared and established the permanent county seat of Pottawatomie county. Does the fact that the county seat was thus established take this county outside the scope of the general act concerning the removal and location of county seats? We think not. The act of 1862, if valid at all, was nothing more than a legislative declaration of the result of an election. It was a canvass by the legislature. The election made the location, and not the mere canvass of the votes, or declaration of the result. Even if it were simply and absolutely a legislative selection of the county seat, it would not thereby take the county outside the scope of the general statute. The language of that statute is broad and inclusive. It includes every county,- no matter under what circumstances its county seat has been located, or what buildings have been erected at the county seat. In the early history of the state and territory, many county seats were located by special acts, or in pursuance of elections directed by special acts; but in 1868 this general act was passed, covering all cases, and providing for any subsequent change in a county seat. There is nothing in the prior legislation concerning Pottawatomie county which takes that county outside the general scope of this statute.
Again, when the petition for an injunction was filed in'this case, the then county commissioners filed an answer confessing everything, and upon that a temporary injunction was ordered. Before the case came to final trial the terms of office of two of the commissioners had expired, and on application their successors were substituted as parties defendant, and permitted to file an answer, which they did, denying the charges in the petition. Of this action of the court plaintiff complains. We think it eminently right and just. The action was an action, not against the county commissioners as individuals, but against them in their official capacity, and to restrain official action. Whenever there was a change in the members of that board, a change in the persons of the defendants was proper, in order that they who at the time represented the county in its official capacity and had the charge of its general affairs, should be enabled to control among other things this litigation concerning county matters. If the change in parties or change in answer necessitated further delay on the part of the plaintiff, it might have been asked, and would doubtless have been granted. Certainly the matter of delay was the only matter in which plaintiff could claim any consideration.
The final question is this: The petition for an injunction alleged that “No petition nor any petition, signed by three-fifths of the legal electors of said county, has ever been presented to the commissioners of said county for the ordering of or in any manner or form asking, requesting or petitioning said board to order an election for the relocation of the county seat of said county.” And then it goes on to charge that on the 20th of August, 1879, the board of commissioners illegally and fraudulently, without any authority therefor, ordered an election. Upon the trial, after the petitions filed with the county board had been offered in evidence, the plaintiff offered testimony tending to show that some of the names upon the petitions were the names of persons not residents or legal electors in the county; that others whose names had been signed had, before any action of the county commissioners thereon,requested to withdraw their signatures, and testimony in other manners tending to impeach the legal sufficiency of the signatures to such petitions. Upon objection, the court declined to receive such testimony. No application was made for leave to amend the petition, and the testimony offered was never received. Was this ruling erroneous? With some hesitation we answer this question in the negative. The plain intimation of the charge in the petition is, that there was a total absence of any petition. That issue the defendants were invited to meet; that issue they might be expected to be prepared for on the trial. When the plaintiff, after petitions are shown, asks to prove that those petitions are insufficient or defective, he suggests a matter in respect to which the charge in the petition gives no notice or intimation to the defendants. They would not be advised beforehand that the plaintiff charged anything more than the non-existence of. any petition, and would not be led to suppose that plaintiff, with full knowledge of the existence of a petition, meant simply to charge that it was insufficient; or if that he complained of its insufficiency, whether that insufficiency consisted in the form of the petition, the lack of names, the fact that certain names were by the signers requested to be withdrawn, or that some of the names signed were the signatures of non-residents, or other unauthorized persons. They could not be expected to prepare against all possible objections which might be made to a petition apparently sufficient both in the form and the number of signatures. The complaint was, that there was no petition; that issue they must get ready to meet, and not the further and unnamed issue whether the petition upon which they acted was defective in form and unsustained by the genuine signatures of proper electors. Doubtless if plaintiff had asked leave to amend his petition on the trial, it would have been granted, though the defendants, if not ready, would have been entitled to a continuance. But as no application to amend was made, the case must be considered upon the issue as it was presented in the pleadings, and upon that issue we think the ruling of the court is correct.
There being no other matters to consider, the judgment of' the district court must be affirmed.
Horton, C. J., concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
Only one matter needs to be now noticed, as the other questions raised were disposed of in the former opinion. The judgment of this court must be corrected to this extent: The lien will be the full amount of all taxes paid on the lot, with all interest and costs as allowed by the statute up to the date of the tax deed, and including $1.25 for recording the deed, with interest on such amount up to the date of trial of the case in the district court, at the rate of 20 per cent, per annum. There is no evidence in the record of the taxes paid' after the date of the deed; and to this extent the finding of the court as to the amount of the taxes paid is unsupported by the evidence. It is evident to us that the omission of the subsequent taxes was an inadvertance; but as the record purports to contain all the evidence, this court and the parties are bound by its recitals. Upon this matter, the testimony of the plaintiff, as appears by the case-made, was as follows: “I have paid taxes on the lot 52, in block 113, Wyandotte city, Kansas, since these mentioned in the tax deed were paid by me, $1.25 for recording the deed, and up to this time of $-.”
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action brought by defendant in error (plaintiff below), in replevin, for the recovery of the possession of a house. These facts are undisputed: The house was built on a tract of land in Missouri, which at one time was occupied by defendant in error, and her husband; it was thereafter removed therefrom, placed upon land in Kansas, and occupied by plaintiffs in error. It also appears that in 1878, defendant and her husband were living in Indiana. At that time, the Missouri land was vacant. A deed from the husband of defendant in error and herself, to one Franklin A. Hay, and one from Franklin A. Hay to defendant in error, of the land upon which the house was built, were executed. Then defendant and her husband moved upon the land and built the house. Thereafter, defendant in error, unable to live longer with her husband, left the premises in his possession, and moved to the county seat. . After she had thus left the premises, the house was moved off from said land upon the land of plaintiffs in error, and occupied by them, but under what claim of right, or by purchase from whom, does not appear. Plaintiffs in error (defendants below) rested their case upon the weakness of plaintiffs evidence of title, and introduced no testimony tending to show any right in themselves. The only question therefore is, whether the plain tiff (defendant in error) made such aprima facie showing as in the absence of Opposing testimony would entitle her to a recovery.
The argument of plaintiffs in error is substantially this: First, that no chain of title from the government down, is shown; second, that when a husband and wife are shown to occupy premises, the possession is prima facie the possession of the husband and not of the wife; third, that the deeds purporting to convey the land from a husband and wife to a stranger and from such stranger to a husband and wife, were not sealed, as the statutes of Missouri require, and were therefore invalid as a transfer of title; and as a conclusion therefrom, that the only title shown being that flowing from possession, and that possession being the possession of the husband, he alone could maintain an action for the recovery of the house removed.
We think the decision below must be sustained; that upon the testimony it was correct, and for these reasons: Possession is some evidence of title; it may be said to be prima facie evidence of title, and in the absence of other testimony is sufficient to sustain a judgment in favor of title. That defendant in error and her husband were in possession of the house and land upon which it stood, is unquestioned; that possession, unchallenged, is evidence of title. We agree with counsel, that such possession is prima facie the possession of the husband, and proves title in him; but wherever it appears that legally or equitably the title, whatever it may be, thus evidenced by possession, is in fact vested in the .wife, such evidence is sufficient to sustain the wife’s claim to the property or any part thereof, when challenged by a mere wrong-doer. (Going v. Orns, 8 Kas. 85.)
Now the deeds by which title was attempted to be transferred from husband to wife may be conceded to be insufficient under the laws of Missouri, as shown by the testimony. In other words, they may be impotent to pass the legal title, but as a contract which equity will recognize and enforce, they are be yond question sufficient. That they were executed, is clearly shown by the testimony, independent of the acknowledgments. That sufficient consideration therefor also existed, is shown; and if they did not operate as a legal transfer of title, they were unquestionably contracts for the transfer of title which equity would.respect and enforce. Under such instruments, defendant in error could assert her rights as against her husband. While they may not have been sufficient to pass the legal title, they vested equitable rights in her, which a court of equity would respect and enforce as against her husband; and plaintiffs in error are certainly in no better position to challenge the effect of those instruments. They come before the court in the attitude of trespassers, mere wrong-doers, without color of right. There is nothing to indicate that they purchased from anybody. They appear as parties going upon land to which they had no shadow of claim, and taking therefrom a house and putting it upon their own land. They are not in a position to lay much stress on insufficiency of notice, or irregularities in plaintiff’s evidence of title. If plaintiff makes a prima facie showing of title, it is good as against them, apparently mere wrong-doers.
Another question arises: Plaintiffs in error insist that if the action could be maintained at all, it was maintainable against William H. Bricker alone, and not against him and his wife jointly; that the possession of the house, although it was occupied by himself and wife, was prima facie only his possession. We think there is testimony enough to sustain the ruling of the court upon this question. It would seem from the testimony that plaintiffs in error were occupying the house as their homestead, and such occupancy is, under the laws of Kansas, the joint occupancy of husband and wife. It appears from Mrs. Ledbetter’s testimony that on examination she found that the land upon which the house stood was claimed by Mrs. Bricker; demand was made upon both of the defendants; they jointly gave a redelivery bond, and upon these facts there was no impropriety in rendering a judgment against them jointly.
From the whole record we think the ruling of the district court was correct, and it must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
On the 10th day of March, 1881, plaintiff in error brought an action against the defendant in error, on an account for boarding and washing, from January 1,1867, to January 1, 1880, aggregating the sum of $900. On the same day, he obtained an attachment against the property of the defendant. This was levied upon forty acres of land belonging to the defendant, situated in Johnson county. Summons was also issued on March 10, directed to the sheriff of Johnson county. He returned the summons not served, as defendant could not be found in that county. Plaintiff then caused a summons to issue to the sheriff of Elk county. This was served March 29. On the 17th day of March, 1881, defendant filed a motion to dissolve the attachment for the following reasons:
“ 1. Because the defendant is now, and was at the commencement of this action, a non-resident of Johnson county, state of Kansas.
“ 2. Because the defendant is now, and was at the date of the commencement of this action, a bona fide resident of Elk county, state of Kansas.
“3. Because of the illegality of the proceedings.
“ 4. Because the grounds laid in the plaintiff’s affidavit for an attachment are not true.
“ 5. Because the court has no jurisdiction of this case, or of the attachment proceedings.”
This motion was duly entered on the docket of the district court during the sitting of the March term for 1881, and by order of the court continued until April 30, 1881, for hearing at chambers. The hearing of the motion was had at Paola, at chambers, on April 30, in pursuance of the order of the district court, and on May 7, the district judge filed his order discharging the attachment. On the same day, defendant, appearing specially, filed a motion to dismiss the action upon the following grounds:
“1. Because the court has no jurisdiction of the defendant.
“2. Because the defendant is now, and was at the date of the commencement of this action, a non-resident of the county of Johnson, and state of Kansas.
“3. Because the defendant was, at the date of the commencement of this action, a bona fide resident of Elk county, Kansas.
“4. Because the summons issued herein by the plaintiff shows that the defendant is now, and was at the commencemént of this action, a non-resident of the county of Johnson, and state of Kansas.”
At. the June term thereafter, this motion came on for hearing, and the court, after having heard the arguments of counsel, dismissed the action. Plaintiff excepted to the dissolution of the attachment, and the dismissal of the action, find brings the case here to review the rulings of the court below.
An examination of the affidavits filed in the attachment proceedings, convinces us that the court properly discharged the attachment. It does not appear to us that any of the grounds alleged for the attachment were sustained by the evidence. The action of the court, however, in dismissing the action, is not sustainable. There was a general appearance | in the case by the defendant, for the purpose of contesting j the truth of .the grounds upon which the order of attachment! was issued. The motion was not to vacate it merely for want of jurisdiction on the part of the court, nor upon any technical grounds, but the merits of the affidavit for attachment were fully contested, and thereby defendant voluntarily submitted to the jurisdiction of the court. This was an appearance in the case. (Bury v. Conklin, 23 Kas. 460.) The order of the district judge, discharging the attachment, will be affirmed, but the judgment of the court below, dismissing the action, must be reversed. The cause will be remanded for further proceedings, in accordance with the views herein expressed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
An action was begun before a justice of the peace of Johnson county, upon the following written instrument :
“Olathe, Johnson County, Kas., Nov. 6, 1880.
“We, the undersigned, agree to pay to W. H. Golden one hundred and fifty dollars, provided a certain claim can be bought, situated on what is known as ‘Black Bob’ — the north one-half of southwest, section 17-14-24, supposed to be an oil spring or oil seep on said claim, supposed to be the claim of one Mr. Ketchum. This money ,is to be paid for the knowledge of said oil well or spring to the undersigned.
C. H. Reed.
Wm. Baxter.”
The case was appealed to the district court. The plaintiff below testified that the land upon which the spring or seep was situated could have been bought at the time this obligation was given, and ever since, and can now, be bought. One O. H. Tibbitts testified, among other things, as follows:
“ I am the owner of the southwest quarter of section seventeen, township fourteen, range twenty-four, in Johnson county, being the claim described in the obligation sued on. It is on what are known as the ‘Black Bob’ lands. In November last, I told Mr. C. H. Reed that I would not sell him one-half, but would sell him the whole quarter-section. Reed then asked what I would take for the whole quarter. I told him there were one hundred and ten acres of fine wheat growing on the quarter, and that he might have the land, wheat and all, for $2,000. I had owned this land a long time prior to November, 1880, and was in possession of it then and now.”
On the part of the defense, it was sought to be shown that no oil well or spring ever existed on the claim mentioned in the written instrument; that the claim was “salted” or “baited” to deceive the signers of the contract. All of this evidence was ruled out by the court. After the introduction of the evidence, the court instructed the jury as follows:
“1. If the jury find from the evidence that plaintiff went with defendants, or. either of them, and showed them the sup posed spring or seep in question, and that the claim upon which said spring or seep was situated could have been purchased by the defendants, you will find for the plaintiff in the sum of one hundred and fifty dollars.
“2. A legal consideration to support a contract need not necessarily be money or benefit, but any trouble or damages to the obligee is a sufficient consideration, and if the jury find that plaintiff went with the defendants and showed them the place where said supposed oil spring or seep was situate, this is a sufficient consideration to support the contract in suit, and you will find for the plaintiff, provided you further find that the claim upon which said supposed spring or seep was situate, could have been purchased.
“3. If the jury find from the evidence that the defendants could not have purchased said 80 acres of land upon which said supposed oil spring was situate, without paying such an unreasonable price as in your opinion amounts to a disability of defendants to purchase, then you will find for the defendants.”
The plaintiffs in error (defendants below) asked the court to instruct the jury that if they found from the evidence that the defendants could not purchase the claim described in the plaintiff’s bill of particulars, without purchasing the whole of the quarter-section, then they must find for the defendants. The court refused to give this. Error is alleged in ruling out the evidence sought to be introduced to establish the defense, and also in the refusal of the court to give the instruction prayed for by the defendants. We do not perceive, any error in the action of the court below in refusing to receive the evidence offered by defendants. Had the defendants alleged in their answer that the plaintiff below had practiced a fraud upon them by “salting” or “baiting” a part of the claim with oil, for the purpose of causing defendants to believe there was an oil spring or oil seep on the claim, and that by such wrongful practices they had been induced to execute the contract sued on, and then had attempted to offer evidence in support of these allegations, a case would be presented very different from the one now before us. The answer alleges that the instrument sued on was without consideration, and therefore void, but no intimation is made that the plaintiff below was guilty of fraud or false representations. The evidence offered was therefore properly rejected. The instruction asked for by defendants, that if the jury found from the evidence they could not purchase the claim described in plaintiff’s bill of particulars, without purchasing the whole of the quarter-section, they were entitled to a verdict, ought to have been given. While the third instruction of the court was intended, perhaps, to cover the point embraced in this request, yet, under the circumstances and in view of all the evidence, we think the jury were misled on account of the refusal of the court to direct the jury as prayed for by the defendants below in their first instruction.
The judgment must be reversed, and cause remanded.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an application by the administrator of the estate of Bayard Livingston, deceased, for the sale of real estate. This application, so far as it concerns one piece of real estate, was resisted by the widow, Azelia Livingston, and Paul Fisher. On appeal to the district court,.the following findings of fact and conclusions of law were made by the district judge:
1st. That on the 8th day of January, 1878, Layton & Barber were owners of the land in controversy, described as the west half and southeast quarter of the southeast quarter of section thirty-four, township twenty-eight, in range nineteen, Neosho county, Kansas.
2d. That on said day the said Layton & Barber contracted orally with one Bayard Livingston, by which the latter purchased from the former the said lands, at which time the said Livingston paid a valuable consideration therefor; and the said Layton & Barber and their wives executed and delivered to said Livingston an instrument in writing purporting to convey by warranty deed the said land, which said deed did not designate or mention the name of any grantee, but was left wholly blank in that particular, and to be filled up or completed by the insertion of such name as grantee as the said Livingston should direct at some future time.
3d. That on the 16th day of March, 1878, the said Livingston borrowed from one Paul Fisher the sum of $106, for the period of 90 days, and secured the payment of the same by depositing with one Geo. Amos the said instrument in writing, together with another instrument in writing, of which the following is a copy:
“This deed left in escrow by Livingston for benefit of Paul Fisher, if one hundred and six dollars is not paid in 90 days, the deed to be filled out in name of Paul Fisher and delivered to him.
“Ma'rch 16, 1868. Bayard Livingston.”
(There was a mistake in writing the date, in this, that it should have been 1878 instead of 1868.)
Lefault was made in the payment of the said sum of $106; and afterward the said Fisher, in company with the said Livingston, went to the office of Geo. Amos, at which time and place, and in the presence of the three, the said deed, without inserting the name of any person as grantee, was delivered to said Fisher.
4th. Sometime in October thereafter, the said Livingston died, without having paid the sum of money borrowed as aforesaid, or any part thereof, or causing the name of any grantee to be inserted in the blank place left in said deed for that purpose, as hereinbefore referred to. A few months after his death, his widow, Azelia Livingston, suggested to Fisher-that she would like to obtain the title to said land, if she could do so by paying her deceased husband’s indebtedness. Whereupon it was promised by Fisher that if she would “make him whole,” i. e., pay the original indebtedness, with reasonable interest thereon, he would haye her name inserted in said deed and deliver it to her. In accordance with this understanding she paid Fisher the sum of $115. Fisher and she then went to the office of Dayton & Barber, caused the latter to insert the name of Azelia Livingston in the said deed as the grantee thereof, and the same was thereupon delivered to her by Fisher.
5th. Some time afterward she borrowed some money of Fisher, executing a deed of said land to him as security therefor; Fisher at this time executing a bond reconveying it to her upon paying the sum thus borrowed.
6th. That when Fisher loaned her said money, taking her deed to it as security, he had full knowledge of all the facts concerning the ownership and attempted transfer of said land as stated.
7th. That immediately after the death of Bayard Livingston, his widow, one of the defendants, Azelia Livingston, was appointed administratrix of his estate, and continued as such during all the time covered by the transaction herein-before mentioned that took place subsequent to the death of said Bayard Livingston.
As a conclusion of law, the court found as follows, viz.:
That the land mentioned and described in the finding of fact number 1 was not and is not subject to sale by the administrator for the payments of the debts of Bayard Livingston, deceased.
As none of the testimony offered on the hearing is preserved in the record, the question comes before us for review simply upon the facts as found. The first thing that is apparent from these findings is, that the legal title to the property in question was not at the time of his death, and for that matter never had been, in the decedent. Under those circumstances we think the burden of proof rests on the administrator. Whenever, at the time oí his death, the legal title to any real estate is in the decedent, the administrator may rightfully treat it as his property, and if necessary for the payment of debts, petition for its sale. The legal title being thus vested, whoever challenges his right to sell may fairly be charged with the burden of proof; but on the other hand, when the legal title was not in the decedent, and the administrator seeks to subject to the payment of decedent’s debts property which apparently belonged to another, upon him rests the burden of proof to show that the decedent had an interest in such property.
While according to the theory which plaintiff insists should, control this case the findings show that decedent had some equitable interest in the land, it nowhere appears what the value of such interest was, or indeed that it had any real substantial value. True, it is said that he paid a valuable consideration for it, but the amount of such consideration is nowhere stated, nor is the value of the land given; for aught that appears, the amount paid may not have exceeded the sum loaned by Fisher, and the value of the land may not have equaled this loan, and while courts will protect an equitable interest, yet it should appear that such interest has some real substantial value. It would be trifling with justice, a gross disregard of the principles which control equitable actions to attempt to disturb a legal title, or subject an equitable interest to sale, when such interest was a mere barren interest, and would produce nothing but a useless expense. The burden was on the plaintiff to show that this equitable interest, if any existed, was possessed of some real substantial value, an interest whose sale would produce something to the estate.
Still again, while it is true that “Once a mortgage, always a mortgage,” is a maxim of recognized force and application, yet this maxim does not prevent a mortgagor from at any f'irne selling the mortgaged property to the mortgagee in satisfaction of the debt. True, courts wji]j g(5ail su0}j a transaction carefully, in order to prevent any unjust and unfair advantage being taken of the necessities of the borrower; but on the other hand, when such a sale is .shown it will be upheld, unless it appears that by so doing some unconscionable wrong is done, and he who challenges such a sale must show the wrong. Mortgagor and mortgagee have the unquestionable right to deal with the property and the debt as they deem best, subject only to the condition that no unjust and unfair advantage is taken. Now it is evident from the third finding, that the parties on the maturity of the debt intended to settle it by a sale of the property, and supposed they had done so. No other reasonable interpretation can be given to their conduct. The deed had been placed in escrow at the time of the loan, with the stipulation that if the loan was not paid at maturity the blank of the deed should be filled with the name of the lender, as grantee, and the deed delivered to him. After the maturity of the loan the parties went to the person in whose possession the deed had been left, and the name of the grantee being still a blank, the deed was taken and delivered to the lender. Obviously the parties intended by this that the lender should take the land in satisfaction of the debt, and there is nothing in the findings to show that such transaction was not fair and reasonable to both parties. There remained no debt whose collection could be enforced against Livingston, and Livingston had no title, legal or equitable, to the land. The subsequent transactions between Fisher and Mrs. Livingston in no manner changed the effect of this settlement. It does not appear that the money which she paid to him belonged to the estate, or was other than her separate property. The fact that she was an administratrix in no manner prevented her from purchasing property in her own right, and paying for it out of her separate estate. Neither the heirs nor creditors could claim any benefit of such a transaction.
For these reasons, we think the ruling of the district court was correct,- and it must be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action of replevin, brought before a justice of the peace, by the Kansas Lumber Company against E. M. Mills, for the recovery of a horse. After judgment in favor of the plaintiff, the defendant took the case to the district court on petition in error, where the judgment of the justice of the peace was affirmed. The defendant in the justice’s court, plaintiff in error in the district court, now brings the case to this court, and asks that both the judgment of the district court and of the justice of the peace be reversed. Both parties admitted on the trial in the justice’s court, and now admit, that the property belonged originally to John G. Raner, and both claimed and now claim under him. The plaintiff in the justice’s court claimed by virtue of a chattel mortgage, executed November 2,1878, by Raner to the plaintiff, and recorded November 4,1878, and kept alive by proper affidavits; and the defendant in the justice’s court claiming by virtue of an attachment, issued September 22, 1880, in favor of Gammon & Deering and against the property of Raner, and levied on the property in controversy on September 22, 1880, by the defendant as under-sheriff of McPherson county. The defendant in the justice’s court, plaintiff in error in this •court, claims that the chattel mortgage was and is void because of the insufficiency of the description of the mortgaged property, and claims that both the justice of the peace and the district court erred in holding this description sufficient. The description of the property reads as follows:
“One brown mare mule, aged 4 years; one bay horse, aged 8 years; one bay mare, aged 12 years; one yoke of red oxen, 5 years old; one Brown corn scraper and belting complete; 40 acres of growing wheat on the northwest J of section 14, town 21, range 4, west; I agree to harvest, thresh and crib said grain to the order of the Kansas Lumber Company; one cook stove and fall-leaf table and all kitchen furniture; one Marsh harvester, one horse power; and all being in my possession, owned by me, and I herewith represent and guarantee same free from an incumbrance of every name and nature, and to be my own; one set double harness and double-barrel shot ■gun additional. . . . The property sold is to remain in possession of said party of the first part until default be made in the payment of the debt and interest aforesaid, or some part thereof; but in case of a sale or disposal, or attempt to sell or dispose of the same, or removal or attempt to remove the same from McPherson county, or an unreasonable depreciation in the value, or if from any other cause the security shall become inadequate, the said parties of the second part may take such property, or any part thereof, into their own possession.”
This is a very imperfect description. We do not think that so bad a description has ever been sustained by this court; and yet, under all the circumstances of this case, we think this description must be held to be sufficient. The property in controversy is the “ one bay horse, aged six years,” mentioned in the above description. The evidence shows that the horse in controversy is a bay horse, although he has two white feet and some white spots on his back; that’he was owned by and was in the possession of Raner at the time he executed the mortgage; that he was the only bay horse which Raner owned, or of which he had possession; and that he was about the age mentioned in the mortgage. The description shows the very quarter-section on which a part of the mortgaged property was situated; and it shows, byeinference, that all the property was situated in McPherson county, for if it had not been in McPherson county, it could not have been removed therefrom. The evidence introduced on the trial showed that Raner lived on the quarter-section described in the mortgage, and on which the wheat was growing, in McPherson county, and that he had the horse in controversy in his possession in said county and on said quarter-section. When the defendant attached the property, he attached the same in McPherson county, as the property of said John G. Raner, and was then told by a son of Raner’s that he, the son, “got him [the horse] from John G. Raner, subject to a mortgage.” John G. Raner was then in Oregon. The mortgage had also been duly filed in the office of the register of deeds of said McPherson county. The mortgage was filed November 4,1878, and was duly kept alive by proper affidavits; and the property was attached September 22,1880.
We think, under the circumstances of the case, the description of the property in the chattel mortgage is sufficient. Of course the description in the mortgage is not sufficient to enable a third person, without the aid of other facts than those contained in the mortgage, to identify the horse; but that is not necessary. A description which will enable a third person, aided by inquiries which the instrument itself suggests, to identify the property, is sufficient. Indeed, personal property can seldom be so described in any instrument as to enable a stranger to select it from other property of like kind, without the aid of other facts than those mentioned in the instrument itself. The name of the horse in the present case was “ George,” but there may have been several other horses in the same county by the same name, and a stranger could not tell, without inquiries, what this horse’s name was, or whether it was one of the horses whose name was George, or not. Resort must be had in nearly all cases to other evidence than that furnished by the mortgage itself, to enable third persons to identify mortgaged property; and generally where there is a description of the property mortgaged, and the description is true, and by the aid of such description, and the surrounding circumstances, the third person would, in the ordinary course of things, know the property that was mortgaged, the description should be held to be sufficient. In the present case, the defendant, Mills, was bound to take notice of the mortgage, for it had been properly recorded. He was bound to know that a bay horse, six years old in 1878, owned by and in the possession of John G. Raner, was mortgaged. We think he was bound to know from the mortgage itself, that the property was situated in McPherson county on November 2,1878, when the mortgage was executed; and by inquiry he could have ascertained that this was the only bay horse which Raner either owned or possessed, and that he owned and possessed the same in McPherson county, and he knew when he attached this property, that he attached it in McPherson county, and as the property of Raner, and that it was mortgaged. Under such circumstances, we think, as between the mortgagee, the Kansas Lumber Company, and the defendant, Mills, we must hold that the description was and is sufficient.
The defendant in the justice’s court, plaintiff in error in the district court and in this court, 'claims that error was also committed in rendering judgment in favor of the plaintiff in the justice’s court, and against the defendant in that court, without sufficient proof of the execution of the chattel mortgage, or that anything remained due théreon. There are two answers to this claim of error: 1. The plaintiff in the justice’s court founded its action and its entire claim to the property in controversy, upon its chattel mortgage, and it gave a copy of its chattel mortgage in its original pleading, and made the same a part of its bill of particulars; and this chattel mortgage showed that there was still $339.51 due thereon; and the defendant in the justice’s court did not file any affidavit denying the execution of such mortgage; therefore it was not necessary to prove the execution of the mortgage, or, to prove the amount due thereon. (Justices’ Code, practice. §84.) 2. A. party cannot have errors of law occurring at the trial reviewed by an appellate court, unless he has made a legal and sufficient motion for a new trial, presenting the matters complained of to the trial court. (Rice v. Harvey, 19 Kas. 144; Lucas v. Sturr, 21 Kas. 480; City of Atchison v. Byrnes, 22 Kas. 65, 67, 68; Gruble v. Ryus, 23 Kas. 195, 196, and cases there cited; Holland v. Mudenger, 22 Kas. 731.) And in the present case the defendant did not have any right to move for a new trial upon the ground stated in his motion;
This case was tried by the justice of the peace, without a jury; and the only'ground set forth in the defendant’s motion for a new trial, was, that the “verdict” was not sustained by sufficient evidence. A party has no right to a new trial in such a case. (Kerner v. Petigo, 25 Kas. 652, 656, 657.) There really was no “verdict” in the preseut case, but only & finding. and judgment of the justice of the peace. And as the defendant had no right to a new trial, he did not raise the question as to the sufficiency of the evidence in any legal manner, or in any form which could be reexamined by any appellate court. The defendant’s motion for a new trial was rightfully overruled by the justice of the peace; because, under the circumstances, he had no right to a new trial, even though it should be conceded that the proof of the plaintiff’s case may not have been sufficient to sustain the finding of the justice. The defendant’s only remedy, if he was really aggrieved, was, under the circumstances, by appeal to the district court.
The defendant, plaintiff in error in this court, claims that the justice of the peace also committed error in rendering judgment only for a return of the property, and not in the alternative for a return of the property, or for the value thereof in case a return could not be had. The judgment, however, although not quite in form, was correct. The plaintiff, when it replevied the property, retained the possession thereof, and had the possession at the time the judgment was rendered; and therefore there was no necessity for any judgment for the value of the property in case the property could not be returned to the plaintiff. The plaintiff already had the property in its possession, and was entitled to retain the same; and it had no right to a judgment for the value thereof.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This is an action in the nature of quo■ warranto, brought by plaintiff against defendant, for the purpose of having the question determined whether plaintiff is entitled to the office of justice of the peace in and for the city of Wellington. The material facts are as follows: Wellington township, in Sumner county, was organized on the 18th day of October, 1871; the first regular annual election was held on the first Tuesday of April, 1872; in the year 1875, the legislature of the state changed the time for holding mu nicipal town elections from April to November; on November 5, 1878, the defendant and one I. N. King were elected justices of the peace for Wellington township for a full term; the defendant qualified, and has since continued in office. On the 14th of February, 1880, the city of Wellington was organized as a city of the second class, out of the territory of Wellington township. On April 6th, 1880, pursuant to the mayor’s proclamation, the first city election was held, and at the election defendant was a candidate for justice of the peace of the city, and received the highest number of votes. He claims that he waived and renounced, both as a candidate at the election and when qualifying as a justice of Wellington city, all rights which he had, or might have had, under the law to the office of justice of the peace of Wellington township. On the first Tuesday of April, 1881, at the annual city election of Wellington, the plaintiff, the defendant, and one I. N. King, were candidates for the office of justice of the peace of the city. At the election, the candidates received respectively the following votes: plaintiff received 166; defendant, 155; I. N. King, 161. On the 8th of April, 1881, the vote cast at the election was canvassed, and plaintiff and I. N. King were declared elected. Plaintiff received a certificate of election, and qualified. The defendant denies the validity of the election of 1881, and claims to hold office under the election of 1880.
Sec. 13, art. 1, ch. 19,- p. 166, Comp. Laws of 1879, prescribes that there shall be elected on the first Tuesday of April, 1879, and every year thereafter, in cities of the second class, such council men, members of the board of education, justices of the peace and constables as are required by law to be chosen at such elections. Sec. 48, ch. 110, p. 985, Comp. Laws of 1879, provides: “No city of more than two thousand inhabitants shall be included within the corporate limits of any township; but each of such cities shall constitute a township for the purpose of electing justices of the peace and constables, as provided in this act, and for the exercise of the powers and jurisdiction of such offices as pre scribed by law. In such cities, said officers shall be elected at the regular city election.” Under these provisions, the first Tuesday in April, 1881, was the time to elect justices of the peace for the full term of two years in the city of Wellington. Therefore plaintiff was duly elected, and having qualified is entitled to the office. Under §49, ch. 110, Comp. Laws of 1879, the justices of the peace of Wellington township residing in Wellington city were continued in office, notwithstanding the organization of the city of Wellington out of the territory of the township of Wellington, for the full term for which they were elected; therefore defendant, being a resident of Wellington city, was entitled to continue in office as justice until his successor was duly elected and qualified. He gained nothing in the election of 1880. He had filed no resignation, and at such election there was no vacancy.
Counsel for defendant refer to Tholen v. Farwell, 20 Kas. 214, and seem to think the case decisive against the claims of plaintiff. In that case it was held that §48 of ch. 110, of Gen. Stat. of 1868 is valid and still in force, and that justices of the peace in and for cities of the first class are properly elected at the regular city election held in April. But we do not notice anything upon the merits of that case in conflict with the principle here announced.
Judgment of ouster must therefore be entered in favor of the plaintiff and against the defendant.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This is a petition for an injunction. A demurrer thereto was sustained in the district court, and the plaintiffs bring the case here for review. The petition alleges substantially that on the 20th of January, 1880, one Matthias Splitlog was the owner and had the exclusive possession of a tract of land in the neighborhood of Kansas City and Wyandotte, and bordering on the Kansas river and extending to the middle of the channel; that he then leased said tract to these plaintiffs for ten years, and placed them in the same exclusive possession; that these plaintiffs are ice dealers, engaged in gathering ice, and that they have erected ice-houses on the banks of the Kansas river and in close proximity to this tract of land, for the storage and preservation of ice in great quantities; that merchantable ice is a commodity of great value, and the value thereof greatly enhanced, as it can be gathered in close proximity to the market; that the cities of Kansas City and Wyandotte furnish a good market for the sale of ice to consumers, as well as for export trade; and that merchantable ice of superior quality formed upon the surface of said Kansas river within the limits of said premises, which adhered to the banks of the stream and extended therefrom to the center of the channel. The petition contained further allegations that the defendants were entering the premises and removing the ice, and other facts showing that the plaintiffs were entitled to an injunction if they were the owners of the ice, or if they had such an interest therein that they could prevent any removal of it.
The question then is fairly presented as to the extent of the interest which a riparian owner has in the ice formed adjacent to his property. The petition alleges ownership and possession to the center of the channel; but the defendants insist that this allegation must be disregarded, because the Kansas is a navigable stream, and that the owner of the adjacent soil in such case only owns to the bank, and not to the center of the stream; that this court is bound to take judicial notice of such fact — the official records of United States surveys showing that the stream was meandered, and its navigability being also indicated by early Kansas legislation and its actual navigation a fact of early Kansas history. We think the claim of the defendants is correct — that the court is bound to take judicial notice of the navigability of the stream. Limits of judicial knowledge are perhaps not strictly defined. Greenleaf in his work on Evidence, vol. I., § 6, sums it up in these words: “ In fine, courts will generally take notice of whatever ought to be generally known within the limits of their jurisdiction.” In a note thereto, he adds: “ There is not much consistency in the cases, and possibly this may result -from the fact that different judges may assume that what is or is not known to them, is or is not generally known.” Returning to the cases, we find' many that tend with more or less directness to sustain the conclusion we have arrived at. A reference to some may not be inappropriate.
In the Rld. Co. v. More, 16 Ind. 43, in a suit against a railroad company for dámages, it was proved that the accident happened at a certain locality, but it was not proved that such locality was within the limits of the county, and the court took judicial notice of the limits of the county, and of the fact that such place proved was within its limits. See also Rld. Co. v. Case, 15 Ind. 42. In the Lake Co. v. Young, 40 N. H. 420, it was held that courts take notice of the civil divisions of the state, such as counties and townships, and of its great geographical features, as of large lakes, rivers, and mountains. In Atwater v. Schenck, 9 Wis. 160, it was ruled that judicial notice would be taken of the government surveys and the legal subdivisions of public lands. In Montgomery v. Plank Road Co., 31 Ala. 76, the court took judicial notice that no part of the Tallapoosa river was within the corporate limits of the city of Montgomery. See also Lewis v. Harris, 31 Ala. 69. In “The Peterhoff,” Blatchford’s Prize Cases, 463, it was held that the court will take judicial notice of the situation of a town in a foreign country, and that a bar exists at the mouth of the river at which it lies, which vessels of the draught of the vessel libeled cannot cross. In Mossman v. Forrest, 27 Ind. 233, it was ruled that courts will take judicial notice of the permanent geographical facts and features of the country. See also Rld. Co. v. Stevens, 28 Ind. 429; Wright v. Hawkins, 28 Tex. 452. In Buchanan v. Whitam, 35 Ind. 257, it was held that the court will take judicial notice that the lands in Ripley county were surveyed and laid out by an act of congress, and that their sides were east, west, north, and south, and that there can be no such description of, or in relation to, a congressional survey of them as the southeast side of a quarter-section. In 1 Green-leaf on Evidence, § 6, the author, citing several cases, says: “The courts of the United States, moreover, take judicial notice of the ports and waters of the United States in which the tide ebbs and flows.” And further, the exact question in this case came before the supreme court of Indiana in Naederhauser v. The State, 28 Ind. 257, and there the court, after a full consideration, held that courts will take judicial notice of the navigability of streams, at least so far as the great rivers are concerned. See also McManus v. Carmichael, 3 Iowa, 1. Indeed, it would seem absurd to require evidence as to that which every man of common information must know. To attempt to prove that the Mississippi or the Missouri is a navigable stream, would seem an insult to the intelligence of the court. The presumption of general knowledge weakens as we pass to smaller and less-known streams;- and yet, within the limits of any state the navigability of its largest rivers' ought to be generally known, and the courts may properly assume it to be a matter of general knowledge, and take judicial notice thereof; and in taking judicial notice, we know that the Kansas is the largest river wholly within the limits of the state; that it has been recog nized as the prominent geographical feature dividing the state into northern and southern Kansas; that in early territorial history it was in fact navigated, a few steamboats going up and down its waters; and that its volume of water is such that in its natural condition it is capable of being used for purposes of navigation, and so coming within the recognized definition in this country of a navigable stream. (The Montello, 20 Wall. 430; Booming Co. v. Speechly, 31 Mich. 336.) We know that the lines of the United States surveys do not •cross the channel, but that the stream was meandered. (Lester’s Land Laws, p. 714.) We find among the territorial statutes, (Laws 1857, pp. 166-7,) two charters of navigation companies incorporated to engage in the business of navigating the Kansas. It is true in 1864, (Laws 1864, p. 180,) an act was passed by the state legislature declaring the Kansas and certain •other rivers not navigable; but the plain implication of the .act is that the streams had theretofore been considered navigable, and its purpose was to sanction the bridging and damming of such streams. It certainly was not the purpose, and the act had not the effect, to enlarge the title of the riparian owners, orto recognize them as possessed of higher rights than heretofore. Indeed, where title is once vested, a mere change in the condition or character of the current or the uses to which the stream is put, will not transfer any title. (People v. Tibbets, 19 N. Y. 527; Wheeler v. Spinola, 54 N. Y. 377.) It was an assertion of state control over a stream wholly within its territorial limits; a control which, notwithstanding the general supremacy of the federal government over navigable streams, was asserted.to exist in the state in the case of Naederhauser v. The State, 28 Ind., supra, as well as in many other authorities. So that for all the purposes of this case, and any question in it, we may assume that the Kansas is, at the point in controversy, a navigable stream. The stream having been meandered, the lines of the surveys are bounded by the bank; the patents from the United States passed title only to the bank; Splitlog, as riparian owner, owned only to the bank. The title to the bed of the stream is in the State. (Stevens v. Rld. Co., 34 N. J. Law, 532; Pollard’s Lessee v. Hagan, 3 How. U. S. 212.) It is true a distinction was recognized in England, and that streams were considered navigable only in so far as they partook of the sea, and' to the extent that their waters were affected by the ebb and flow of the tide, ■and only so far was the title of the riparian owner limited to the bank; above such point, even although the stream was large enough to be used, and in fact was used,- for purposes of navigation, the riparian owner owned the soil ad medium Jilum aquae. So that really three distinct characters of streams were recognized: First, those smaller streams, which could not be used for any purpose of navigation, in which the title to the soil was in the riparian owner, and along which the public had no rights of highway or otherwise; an intermediate •class, in which the riparian owner owned to the middle of the •channel, but along whose stream the public had all the rights •of a highway; and third, that which was called technically ■the navigable streams, where the title to the bed of the stream was in the sovereign, and all rights were in the public. The same doctrine of riparian ownership to the center of the ■stream in all rivers unaffected by the ebb and flow of the tide, is recognized in some states of the Union; but the better and more generally accepted rule in this country is, to apply the term “navigable” to all the streams which are in fact navigable; and in such case to limit the title of the riparian owner to the bank of the stream. Especially is this true in the states where the lands have been ■surveyed and patented under the federal law. See the following authorities: Rld. Co. v. Schurmeir, 7 Wall. 272; McManus v. Carmichael, 3 Iowa, 1; Haight v. Keokuk, 4 Iowa, 199; Tombden v. Rld. Co., 32 Iowa, 106 ; Flannigan v. City of Philadelphia, 42 Pa. St. 219; Bridge Co. v. Kirke, 46 Pa. St. 112; People v. Tibbets, 19 N. Y. 523; People v. Loomis, 33 N. Y. 461. These conclusions seem to compel an affirmance of the judgment of the district court; for what-ever might be the case where a riparian owner owns to the center of the channel, and whatever ownership and control' he may have over the ice which forms upon the stream-upon his premises, (and as to the extent of his rights, see the following authorities: State v. Pottmeyer, 33 Ind. 402, also reported in 5 American Reporter, 224; Mill River Co. v. Smith, 34 Conn. 462; Marshall v. Peters, 12 How. Pr. 218; Meyer v. Whittaker, 18 Alb. L. J. 128; 4 Cent. L. J. 500; 7 Cent. L. J. 141; Higgins v. Kusterer, 41 Mich. 318, reported in 9 Cent. L. J. 247; People’s Ice Co. v. The Excelsior, 11 Cent. L. J. 347; Paine v. Wood, 108 Mass. 173; Gage v. Stumphaus, Sup. Ct. Mass., reported in 24 Alb. L. J. 516; Washington Ice Co. v. Shortall, Ill. Sup. Ct., 13 Rep. 9,) it would seem that where there is no ownership of the subjacent soil, a riparian proprietor has no title to the ice. The title to the soil being in the state, and the stream being a public highway, obviously the ownership of the icé would rest in the general public, or -in the state as the representative-of that public. The riparian proprietor would have no-more title to the ice than he would to the fish. It simply is-this, that his land joins the land of the state. The fact that-it so joins, gives him no title to that land, or to anything-formed or grown upon it, any more than it does to anything formed or grown or found upon the land of any individual neighbor. Undoubtedly, in view of the importance that ice is rapidly assuming as a merchantable commodity, it would be wise for the state to legislate in reference to the ice product of the navigable streams; but until such legislation is had, it would seem that the one who first appropriates and secures the ice which is formed is entitled it, and on the same principle that he who catches a fish in one of those rivers owns it. (Hickey v. Hazard, 3 Mo. App. 480; Gage v. Steinkrans and Rowell v. Doyle, Mass. Sup. Ct., 25 Alb. L. J. 23.)
There being no other questions in the case, the judgment of the district court will be affirmed.
All the Justices concurring. | [
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Marquardt, J.:
Shirley C. Swinehart appeals from the district court’s order granting summary judgment to the appellees on all of her claims.
In July 1993, Michael Ecord and Swinehart were living together in Ecord’s house. Prior to July 17,1993, Ecord had told Swinehart to move out at least two or three times. On July 17, after Swinehart and Ecord had a disagreement, Ecord again told Swinehart to leave, but she ignored him. Ecord told Swinehart that he was going to call the police. Swinehart replied that she was going to sleep and that she would talk to Ecord in the morning. Ecord proceeded to call the police. Officer Tim Ahrens and Sergeant Mark d’Augereau arrived at Ecord’s house at approximately 4 a.m. Ecord told the officers that he wanted Swinehart removed from his residence.
Ecord told Sergeant d’Augereau that Swinehart had been staying with him for a short time and that he had tried for several days to get her to leave without success. Sergeant d’Augereau testified that in his opinion, if Swinehart was residing at the house, then she had a right to be there and that it would take a court order to remove her. Although the record indicates that Ecord and Swinehart had lived together for 3-4 years, Ecord told Sergeant d’Augereau that Swinehart did not reside at his house.
Swinehart testified that she was awakened by officers shining a flashlight in her face. Sergeant d’Augereau told Swinehart that Ecord wanted her to leave. Sergeant d’Augereau asked Swinehart to leave because he thought it would facilitate a peaceful resolution. However, Swinehart became belligerent and refused to leave.
The officers told Swinehart several times to leave, and she responded with vulgarities. Sergeant d’Augereau testified that Swinehart laid down on a couch and said that she was not going anywhere. When Sergeant d’Augereau told Swinehart that she was under arrest for disorderly conduct and that she needed to get off the couch, she rolled over into a passive resistance position. Officer Ahrens then grabbed Swinehart’s shoulders and “slid” her off the couch. Sergeant d’Augereau testified that “[Swinehart] kind of just slid off the couch before I could get to her legs. Once she was on the floor, Officer Ahrens and I rolled her over, and I did put the handcuffs on her,.” Sergeant d’Augereau also testified that Swine-hart locked her arms together before leaving the couch.
Swinehart’s description of the events differed from that of the officers. Swinehart testified that after she swore at the officers, “[T]hey jerked me off the daybed [and] slammed me face down on the floor.” Swinehart testified that an officer grabbed her arms and twisted them tightly behind her back so that she was not able to catch herself from falling off the couch. Swinehart told the officers that they were hurting her. Swinehart testified that she did not lock her arms together to prevent the officers from handcuffing her.
Ecord testified that the officers’ treatment of Swinehart “was a very violent act” and a “pretty vicious bodily thing,” with Swinehart being thrown face down on the floor. When Ecord saw how the officers were treating Swinehart, he told them not to arrest her and that she could stay. Sergeant d’Augereau told Ecord that Swinehart was under arrest for disorderly conduct.
Swinehart complained that she suffered physical injuries to her right shoulder and arm during the arrest. As a result, Swinehart needed physical therapy and eventually underwent surgery to repair the ligaments in her shoulder.
On July 17, 1995, Swinehart filed suit alleging that she had been unlawfully arrested and interrogated, that she had been assaulted and battered, and that the “illegal actions of the Defendants, including their excessive and unnecessaiy use of force,” had caused her injuries. Swinehart alleged causes of action against Sergeant d’Augereau, Officer Ahrens, and the City of Ottawa (defendants) under 42 U.S.C. § 1983 (1994) and the United States and Kansas Constitutions. Swinehart also alleged a cause of action against the City of Ottawa for a pattern and practice of allowing its police officers to use excessive and unnecessary' force in making arrests.
The district court granted summary judgment to the defendants on all counts and assessed the costs of the action against Swinehart. Swinehart appeals the district court order on the following issue: “The trial court erred in ruling that the plaintiff did not state a cause of action under [42 U.S.C. § 1983].”
The district court’s order did not expressly mention Swinehart’s § 1983 claim; however, it did state: “Following the cases cited on page 12 of the defendants’ motion, this court finds an adequate remedy existed under state law which is now barred by the statute of limitation[s].” The cases cited are as follows: Graham v. Connor, 490 U.S. 386, 393-94, 104 L. Ed. 2d 443, 109 S. Ct. 1865 (1989); Parratt v. Taylor, 451 U.S. 527, 537, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981), overruled in part Daniels v. Williams, 474 U.S. 327, 330-31, 88 L. Ed. 2d 662, 106 S. Ct. 662 (1986); Alvarado v. City of Dodge City, 238 Kan. 48, 53-54, 708 P.2d 174 (1985); King v. Pimentel, 20 Kan. App. 2d 579, 593-94, 890 P.2d 1217 (1995); Massey v. Shepack, 12 Kan. App. 2d 770, 775, 757 P.2d 329 (1988). The essence of defendants’ argument was that “plaintiff’s Second Cause of Action and Fourth Cause of Action are barred by the existence of an adequate state law remedy; that being an action for malicious prosecution, assault and battery.”
The question of whether Swinehart’s § 1983 claims were barred by an adequate state remedy is a question of law subject to unlimited review by this court and one that has not been addressed by Kansas appellate courts. See Security Benefit Life Ins. Corp. v. Fleming Companies, Inc., 21 Kan. App. 2d 833, 836, 908 P.2d 1315 (1995), rev. denied 259 Kan. 928 (1996).
42 U.S.C. § 1983 provides, in part:
“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”
42 U.S.C. § 1983 is not itself a source of substantive rights, but rather a method for vindicating federal rights elsewhere conferred. Graham, 490 U.S. at 393-94; Albright v. Oliver, 510 U.S. 266, 271, 127 L. Ed. 2d 114, 114 S. Ct. 807, reh. denied 510 U.S. 1215 (1994).
“When congress created the cause of action codified in 42 U.S.C. § 1983 (1988), it did not provide a statute of hmitations. Miller v. City of Overland Park, 231 Kan. 557, 559, 646 P.2d 1114 (1982).” Lindenman v. Umscheid, 255 Kan. 610, 625, 875 P.2d 964 (1994). Since § 1983 does not provide a statute of hmitations, the state statute of hmitations that most closely fits the facts of the claim is applied. 255 Kan. at 625.
Defendants correctly stated that Swinehart’s assault and battery claim was barred by the 1-year statute of limitations provided in K.S.A. 60-514(b) on actions involving assault, battery, malicious prosecution, or false imprisonment. Swinehart filed her cause of action 2 years after the July 17 incident, and she does not appeal the district court’s ruling on this issue.
Although one of Swinehart’s causes of action was for assault and battery, she also raised constitutional issues, alleging that the police officers used excessive force during her arrest. See Putman v. Gerloff, 639 F.2d 415, 420 (8th Cir. 1981) (noting that the constitutional excessive force inquiry is very different from a battery analysis). A claim of excessive use of force by officers is governed by the 2-year statute of limitations in K.S.A. 60-513(a)(4), which provides that an action for injury to the rights of another, not arising on contract and not otherwise enumerated, must be brought within 2 years. Oyler v. Finney, 870 F. Supp. 1018, 1023 (D. Kan. 1994), aff’d 52 F.3d 338 (10th Cir. 1995); Cowdrey v. City of Eastborough, Kan., 730 F.2d 1376, 1378 (10th Cir. 1984).
In Parratt, 451 U.S. 527, the plaintiff, an inmate, ordered hobby materials that were lost by prison employees. The plaintiff filed a § 1983 action against prison officials. The Parratt Court held that when a state provides an adequate remedy in tort for a negligent deprivation of property, that remedy itself constitutes the due process required by the Fourteenth Amendment to the United States Constitution. 451 U.S. at 541, 544; see Alvarado, 238 Kan. at 53.
Defendants cite Alvarado, 238 Kan. 48, as support for their proposition that Swinehart’s § 1983 claims are barred. In Alvarado, the court addressed a § 1983 claim against an off-duty police officer for his actions as a store security guard in apprehending the plaintiff as a suspected shoplifter. The Alvarado court held that under the facts of the case, “the Kansas tort actions for false imprisonment, battery, and defamation provide an adequate postdeprivation remedy sufficient to satisfy the requirements of due process under the Fourteenth Amendment.” 238 Kan. at 55.
Lindenman, 255 Kan. 610, which was decided after this appeal was filed, also dealt with § 1983 claims. The Lindenmans, who owned three day care centers, filed suit under § 1983 against the Kansas Department of Health and Environment and the Kansas City, Kansas — Wyandotte County Department of Health, alleging due process violations and malicious prosecution claims. The Lindenman court held that the claimants had adequate state remedies under state law for malicious prosecution and, therefore, could not seek relief under § 1983. Justice Lockett, who wrote for the court, stated: “Where states provide an adequate remedy, that remedy itself constitutes the due process required by the Fourteenth Amendment,” and the applicable state remedy bars a § 1983 claim. Lindenman, 255 Kan. at 628; see Parratt, 451 U.S. at 544. The Lindenman court noted that the Fourteenth Amendment does not protect against all deprivations of life, liberty, or property by the State; rather, the Fourteenth Amendment only protects against deprivations “without due process of law.” Lindenman, 255 Kan. at 627-28; see Parratt, 451 U.S. at 537.
Several federal circuit courts have expressly held that the use of excessive or unreasonable force by police officers in the exercise of their authority gives rise to a § 1983 claim. See, e.g., Russo v. City of Cincinnati, 953 F.2d 1036, 1044 (6th Cir. 1992). In Lavicky v. Burnett, 758 F.2d 468, 472 n.1 (10th Cir.), cert. denied 474 U.S. 1101 (1985), the court noted that the Parratt bar on § 1983 claims does “not apply to violations of substantive constitutional proscriptions under the Fourth Amendment.” The Parratt court expressly distinguished cases that arise under the Fourth Amendment from those that it held were barred by an adequate state tort remedy. 451 U.S. at 536; see Gilmere v. City of Atlanta, Ga., 774 F.2d 1495, 1501-02 (11th Cir. 1985), cert. denied 476 U.S. 1115 (1986) (discussing Parratt and noting that the existence of state tort remedies does not bar the direct assertion of Fourth Amendment claims in federal court). Numerous Tenth Circuit and Kansas federal district court cases analyze excessive force claims as viable § 1983 claims under the objective reasonableness standard of the Fourth Amendment. See, e.g., Thompson v. City of Lawrence, Kan., 58 F.3d 1511, 1516 (10th Cir. 1995) (citing Graham, 490 U.S. at 397); Smith v. Delamaid, 842 F. Supp. 453, 458 (D. Kan. 1994).
“The use of excessive force in an arrest implicates the right of a person under the Fourth Amendment ‘to be secure . . . against unreasonable . . . seizure/ ” Swanson v. Fields, 814 F. Supp. 1007, 1016 (D. Kan.), aff’d 13 F.3d 407 (10th Cir. 1993); see Graham, 490 U.S. at 394. In Graham, 490 U.S. at 395, the Court held that 42 U.S.C. § 1983 claims of the use of excessive force by law enforcement officers in an arrest are analyzed under the Fourth Amendment and its objective reasonableness standard rather than under a general substantive due process approach. See Albright, 510 U.S. at 273-75; Smith, 842 F. Supp. at 458.
In analyzing whether the police used excessive force, the court must determine “whether the officers’ actions were objectively reasonable in light of the facts and circumstances surrounding them.” Thompson, 58 F.3d at 1516; see Graham, 490 U.S. at 397. The factors employed to determine reasonableness include the severity of the crime at issue, whether the subject poses an immediate threat to the safety of the officer, and whether the subject is resisting arrest. Graham, 490 U.S. at 396; Wilson v. Meeks, 52 F.3d 1547, 1553 (10th Cir. 1995).
The district court order stated that the “officers had probable cause to arrest the plaintiff.” However, the order also stated that a “dispute of fact exists as to whether excessive force was used in the arrest.” See Berry v. City of Phillipsburg, Kan., 796 F. Supp. 1400, 1404 (D. Kan. 1992) (holding that a jury, could reasonably find that the defendants’ use of force was unreasonable).
In granting summary judgment, a district 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. Summary judgment is appropriate when 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 judgment as a matter of law.” Mitzner v. State Dept. of SRS, 257 Kan. 258, 260, 891 P.2d 435 (1995).
There is a material issue of fact as to whether the force used by the police officers was excessive.
The district court did not evaluate Swinehart’s excessive force claims. Instead, the district court barred Swinehart’s § 1983 claims without specifying what state tort remedy would apply to the excessive force claims. We hold that 42 U.S.C. § 1983 claims of excessive use of force by police officers during an arrest are not barred by state tort remedies.
The defendants acknowledge that excessive force claims are governed by the Fourth Amendment and argue that Swinehart’s § 1983 claims are “barred by her failure to proceed pursuant to the Fourth Amendment of the United States Constitution.” The defendants argue that Swinehart merely mentioned the Fourteenth Amendment in her petition. This argument ignores the fact that the Due Process Clause of the Fourteenth Amendment incorporates the Fourth Amendment. See Parratt, 451 U.S. at 536; Mapp v. Ohio, 367 U.S. 643, 655, 6 L. Ed. 2d 1081, 81 S. Ct. 1684 (1961). Swinehart’s petition alleged that her rights as “secured . . . by the Constitution and laws of the United States” had been violated; thus, the Fourth Amendment was incorporated.
Reversed and remanded for a trial on Swinehart’s § 1983 excessive use of force claims. | [
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RüLON, J.:
This is a termination of parental rights case where the child, C.D.W., through her guardian ad litem (GAL), appeals the trial court’s order terminating the parental rights of her putative father. We affirm.
The facts in this case are not in dispute.
C.D.W. was at the time of this action a 3-year-old child. M.D.W. is the natural mother of C.D.W. B.J.S. is the putative father of C.D.W. The father and the mother lived together for a time but terminated that arrangement sometime prior to the time C.D.W. was bom.
In April 1992, the mother filed a child in need of care petition alleging the father had never provided any support or had any visitation with the child for 2 years, and in effect had abandoned C.D.W. The mother’s petition requested that C.D.W. remain in the mother’s custody and that the father’s parental rights be terminated.
At the hearing on the motion to terminate, the putative father, through his attorney, declined to participate in a paternity test, claiming he did not want custody, and essentially said he had no interest in continuing any parental rights. The mother testified her primary concern was that if anything happened to her, she did not want the father to have custody of C.D.W. The father consented to termination of his rights.
The only person who objected to the termination was the GAL, who argued C.D.W. was being well cared for in the home of the maternal grandmother and in the mother’s home and, therefore, C.D.W. was not a child in need of care. The GAL argued that C.D.W. had the right to continue the legal parental relationship with her father in case she wanted to establish an actual relationship with him and because she was entitled to support from him.
The mother testified that prior to C.D.W.’s birth, the father had physically abused her on one occasion. The mother further testified the father had an alcohol abuse problem.
Essentially, the district court found:
• C.D.W. had been physically, mentally, or emotionally abused or neglected by the father.
• As to the father, C.D.W. was without parental care, control, or subsistence and such condition was not due solely to the father’s lack of financial means.
• C.D.W. was a child in need of care and, by a showing of clear and convincing evidence, the father was unfit and such condition was not likely to change in the foreseeable future.
• The father was unfit because of physical, mental, or emotional neglect of C.D.W., and for failure to maintain contact with and provide support to C.D.W.
The district court, based upon the above findings, terminated the father’s parental rights and awarded custody of C.D.W. to the mother.
Before us, the GAL argues that the evidence is clear that C.D.W. was being well cared for by her mother and maternal grandmother and there was no evidence that she was in any way in need of care.
In Kansas, the law is well settled that “[t]he termination of a parent’s rights or the finding that a child is a ‘child in need of care’ depends upon the conduct of the parents whose rights are at issue and not upon the conduct of the custodial parent or other persons.” In re N.D.G., 20 Kan. App. 2d 17, 23-24, 883 P.2d 89, rev. denied 256 Kan. 995 (1994). Consequently, the fact that C.D.W. was being well cared for in the custody of her mother and maternal grandmother is irrelevant.
K.S.A. 1996 Supp. 38-1502(a) reads in relevant part:
“ ‘Child in need of care’ means a person less than 18 years of age who:
(1) Is without adequate parental care, control or subsistence and the condition is not due solely to the lack of financial means of the child’s parents or other custodian;
(2) is without the care or control necessary for the child’s physical, mental or emotional health; [or]
(3) has been physically, mentally or emotionally abused or neglected or sexually abused.”
K.S.A. 1996 Supp. 38-1502(b) reads:
“ ‘Physical, mental or emotional abuse or neglect’ means the infliction of physical, mental or emotional injury or the causing of a deterioration of a child and may include, but shall not be limited to, failing to maintain reasonable care and treatment, negligent treatment or maltreatment or exploiting a child to the extent that the child’s health or emotional well-being is endangered.”
By failing to ever visit the child and by failing to support the child, the father’s conduct meets the criteria stated in K.S.A. 1996 Supp. 38-1502(a)(l), (2), and (3). We conclude there was substantial competent evidence to support the court’s finding that C.D.W. was a child in need of care.
Next, the GAL argued this court should not permit two parents, for their own convenience, to agree to terminate the parental rights of one of them. The substance of the GAL’s argument is that the father has a duty to support C.D.W. and C.D.W. has a right to, in the future, have the opportunity to establish a relationship with her father. According to Üie GAL, allowing parents to simply agree to terminate one parent’s rights and, therefore, terminate that parent’s duties, defies the attempts of both state and federal governments to force parents to provide support for their children.
Arguably, there is support for the GAL’s argument. Through the years the Kansas appellate courts have repeatedly said:
“ ‘[A] child is not in any sense like a horse or any other chattel, subject-matter for absolute and irrevocable gift or contract. The father cannot, by merely giving away his child, release himself from the obligation to support it, nor be deprived of the right to its custody. In this it differs from the gift of any article which is only property. If to-day [a father] should give a horse to another party, that gift is for all time irrevocable, and the property can never be reclaimed; but he cannot by simply giving away his child reheve himself from the obligation to support that child, nor deprive himself of the right to its custody.’ ” In re Jackson, 164 Kan. 391, 396, 190 P.2d 426 (1948) (quoting Chapsky v. Wood, 26 Kan. 650, 652 [1881]).
There are two statutory methods for terminating a parent’s rights: (1) adoption and relinquishment, K.S.A. 59-2111 etseq., and (2) termination of parental rights, K.S.A. 38-1581 et seq. See State ex rel. Secretary of SRS v. Clear, 248 Kan. 109, 116, 804 P.2d 961 (1991). In In re J.A.C., 22 Kan. App. 2d 96, 100-102, 911 P.2d 825 (1996), this court recognized that the natural mother could not use the Kansas Adoption and Relinquishment Act (Act) to terminate a putative father’s parental rights unless the child was being adopted or the parent was relinquishing the child to SRS or any other agency which accepts the relinquishment in writing. According to the mother in In re J.A. C., it was unreasonable for a court to hold that a single parent could not terminate the rights of an absent, nonsupporting parent to become the sole custodian of a child, but that a complete stranger or SRS could become the sole custodian. While this court recognized the logic in such argument, we held that a parent could not proceed with what was an essentially declaratory judgment action to foreclose a putative parent from coming forward at some later date to claim parentage.
However, K.S.A. 38-1581 allows any interested party to file a petition requesting termination of parental rights. K.S.A. 1996 Supp. 38-1502(e) and K.S.A. 38-1541 establish that a parent is an interested party under the Act. In In re N.D.G., 20 Kan. App. 2d at 23, this court held that one parent can proceed against the other under the child in need of care statutes. This court has previously confirmed that a request for termination of parental rights may be included in the initial child in need of care petition. In re J.G., 12 Kan. App. 2d 44, Syl. ¶ 1, 734 P.2d 1195, rev. denied 241 Kan. 838 (1987). Under K.S.A. 1996 Supp. 38-1583(b)(4), emotional neglect is a valid consideration in termination decisions along with K.S.A. 1996 Supp. 38-1583(c)(2) (failure to maintain reasonable contact) and (c)(4) (failure to pay reasonable maintenance). The physical, mental, and emotional conditions and needs of the child are the primary considerations in cases of this nature. K.S.A. 1996 Supp. 38-1583(e); In re N.D.G.., 20 Kan. App. 2d at 21.
Under the Kansas Code for Care of Children, K.S.A. 38-1501 et seq., both parents may agree that one parent’s rights should be terminated if the noncustodial parent has no contact with and fails to support the child. The custodial parent will then have grounds to file a child in need of care petition and seek to terminate the noncustodial parent’s rights. Even though the child is being well cared for by die custodial parent, a court may find that the noncustodial parent has abandoned the child and thus find that the child is a child in need of care and proceed to terminate the noncustodial parent’s rights. In this way the custodial parent can be assured that the other parent can never try to challenge his or her custody and will never have custody of the child even if the custodial parent dies. Conversely, the noncustodial parent is assured that he or she will never have to provide support for the child, either directly or through reimbursement to SRS under K.S.A. 1996 Supp. 39-709 and K.S.A. 1996 Supp. 39-755. While this result appears directly contrary to the established rule of law that a parent may not simply divest himself or herself of the duty to support his or her child, Kansas statutes are clear that such action is permitted as long as both parents are willing and the court finds it is in the best interests of the child.
“When a statute is plain and unambiguous, the appellate courts will not speculate as to the legislative intent behind it and will not read such a statute so as to add something not readily found in the statute.” State v. Alires, 21 Kan. App. 2d 139, Syl. ¶ 2, 895 P.2d 1267 (1995).
Affirmed. | [
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Wahl, J.:
Michael Bolin appeals the trial court’s order which applied Bolin’s full criminal history score to his 94-CRM-938 sentences.
On May 19, 1994, Michael Bolin was charged in case No. 94-CRM-622 with committing the crimes of forgery, burglaiy, and misdemeanor theft. On July 22, 1994, the State filed case No. 94-CRM-938 against Bolin, alleging that on July 14,1994, he committed several counts of vehicular burglaiy, one count of felony obstruction, and one count of misdemeanor theft. On August 4, 1994, Bolin pled guilty to two counts of forgery in 94-CRM-622. On the same day, he pled guilty to three counts of vehicular burglaiy and one count of felony obstruction in 94-CRM-938.
On October 24, 1994, Bolin was sentenced in both cases. In 94-CRM-622, the district court found that the offense was a severity level 8 and Bohn’s criminal history category was E. The trial court imposed a presumptive 14-month sentence on each count, to be served concurrently. In 94-CRM-938, the court found the offenses were severity level 9 and Bohn had a criminal history score of E. The court imposed a sentence of 21 months on each count of burglary and 10 months on the obstruction count, to be served concurrently. Additionally, the trial court ordered the sentences in 94-CRM-938 to be served consecutive to the sentences in 94-CRM-622.
Bohn filéd a motion to correct an illegal sentence, claiming the court had applied an incorrect sentencing range and had erroneously apphed his full criminal history to his 94-CRM-938 sentences.
The trial court found that it had apphed an incorrect sentencing range in 94-CRM-938 and reduced the controlling sentence to 10 months. The court found, however, that Bohn’s full criminal history score of E had been correctly apphed to his sentences in 94-CRM-938.
Bolin appeals the district court’s finding that Bohn’s sentencing in two separate cases, on the same day, does not constitute a single “multiple conviction case” under K.S.A. 21-4720(b).
This issue requires the court to interpret the Kansas statutes governing sentencing in multiple conviction cases. Interpretation of a statute is a question of law subject to unhmited appellate review. Blomeyer v. State, 22 Kan. App. 2d 382, 384, 915 P.2d 790, rev. denied 260 Kan. 991 (1996).
K.S.A. 21-4720 addresses sentencing in multiple conviction cases and provides in pertinent part:
“(b) The sentencing judge shall otherwise have discretion to impose concurrent or consecutive sentences in multiple conviction cases. ... In cases where consecutive sentences may be imposed by the sentencing judge, the following shall apply:
“(2) The sentencing judge must establish abase sentence for the primary crime. The primary crime is the crime with the highest crime severity ranking. . . .
“(3) The base sentence is set using the total criminal history score assigned.
“(4) The total prison sentence imposed in a case involving multiple convictions arising from multiple counts within an information, complaint or indictment cannot exceed twice the base sentence. . . .
“(5) Nonbase sentences will not have criminal history scores applied, as calculated in the criminal history I column of the grid, but base sentences will have the full criminal history score assigned.
“(6) If the sentence for the primary crime is a prison term, the entire imprisonment term of the consecutive sentences will be served in prison.” (Emphasis added.)
Bolin argues that subsection (5) should have been applied by the sentencing court. If the sentencing court had applied-subsection (5), then one of the severity level 8 offenses in 94-CRM-622 would have been Bolin’s base crime, and all other offenses, including his 94-CRM-938 convictions, would have a criminal history score of I applied to them.
The basic rule of statutory construction is that the intent of the legislature governs when that intent can be ascertained from the statute. When a statute is plain and not ambiguous, the court must give effect to the intent of the legislature and not try to determine what the law should or should not be. While a general rule is that a criminal statute is to be strictly construed in favor of the accused, this rule is subordinate to the rule that judicial construction must be reasonable to effect the legislative intent. State v. Cox, 258 Kan. 557, Syl. ¶ 7, 908 P.2d 603 (1995).
While K.S.A. 21-4720(b) sets the procedure for determining sentences to be imposed in “multiple conviction cases,” the term “multiple conviction case” is not defined.
We must first determine if this is a “multiple conviction case” as the term is used in the statute. Prior to July 1,1994, K.S.A. 1993 Supp. 21-4703(c) defined the term “conviction event” as “one or more felony convictions occurring on the same day and within a single court. These convictions may result from multiple counts within an information or from more than one information.” The Kansas Supreme Court held that cases falling within the definition of a conviction event were “multiple conviction cases” and fell under the limitations found in subsection (b). See State v. Riley, 259 Kan. 774, 778, 915 P.2d 774 (1996).
Effective July 1, 1994, the legislature eliminated all references to “conviction events” from the statutes and amended K.S.A. 21-4720(b)(4), which had applied only to conviction events, to restrict application of the “double rule” to “multiple convictions arising from multiple counts within an information, complaint or indictment.”
The Kansas Supreme Court addressed a part of our problem in State v. Roderick, 259 Kan. 107, 114, 911 P.2d 159 (1996), as follows:
“The legislature changed a same day, single court requirement to a same information or complaint requirement to invoke the double rule limit. The change was made for the purpose of ‘limiting the application of the “double rule” limit for consecutive sentence^] to multiple [counts] in the same case rather than all counts for which the defendant was convicted at one time, regardless of whether from different cases.’ Kansas Report on Legislative Interim Studies, p. 116 (1994).
", . . The double rule limit applies only to cases involving multiple convictions arising from multiple counts within an information, complaint, or indictment, not multiple convictions arising from separate cases pled to on the same date.”
The Roderick court was interpreting the definition of “prior conviction” in K.S.A. 1994 Supp. 21-4710(a) for purposes of determining the criminal history score under the Kansas Sentencing Guidelines Act. The holding of the court in Roderick is not “on all fours” with the facts or the issue before us, but the rationale in Roderick is helpful.
The legislature eliminated the term “conviction event,” which was defined to include convictions resulting from multiple counts in one information or from more than one information. This statutory change is significant and denotes the intent of the legislature to change sentencing rules. By K.S.A. 21-4720(b)(4), the legislature limited the application of the “double rule” limit for consecutive sentences to multiple counts within an (the same) information, complaint, or indictment.
All sections of a statute must be construed together. K.S.A. 21-4720(b)(5), when construed with subsection (b)(4), must be held to apply to nonbase sentences included in the same charging document as the base sentence. As stated in Roderick, “[t]he double rule limit applies only to cases involving multiple convictions arising from multiple counts within an information, complaint, or indictment, not multiple convictions arising from separate cases pled to on the same date.” 259 Kan. at 114.
The case before us involves two multiple conviction cases — multiple convictions arising from multiple counts within an information. The total prison sentence in neither case exceeded twice the base sentence, but the nonbase sentences were ordered to be served concurrent with the base sentences.
We are not here involved with the pre-July 1, 1994, consideration of a “conviction event” since in 94-CRM-622, concerning crimes committed on May 19, 1994, defendant was sentenced to concurrent sentences. The concept of “conviction event” was no longer relevant to 94-CRM-938, which charged crimes committed on July 14, 1994.
We are not unmindful of the decision of a panel of this court in State v. Christensen, 23 Kan. App. 2d 910, 937 P.2d 1239 (1997). Suffice it to say, we do not agree with that decision as it pertains to the issue of whether and how K.S.A. 21-4720(b)(5) should be applied when sentencing a defendant for multiple crimes arising from several charging documents all on the same day.
The trial court did not err in holding that defendant’s same day convictions and sentences in 94-CRM-622 and 94-CRM-938 did not constitute a single multiple conviction case under K.S.A. 21-4720(b), nor did the trial court err by applying defendant’s full criminal history when computing the base sentence for each case.
As a final comment, we note that the State failed to submit a brief in this matter. As this court stated in Zapata v. State, 14 Kan. App. 2d 94, 99, 782 P.2d 1251 (1989), “That demonstrates to us not only a lack of interest but also a material lack of confidence in the . . . convictions obtained.” We would add that it also shows a disrespect for this court and unnecessarily increases the workload of this court.
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Anderson, J.:
Judith Elaine Brobst filed a workers compensation claim against respondent, Brighton Place North (Brighton Place), and its insurance carrier, Church Mutual Insurance Company (Church Mutual), regarding injuries suffered in two separate accidents. The administrative law judge (ALJ) granted Brobst an award, and the Workers Compensation Fund (Fund) was ordered to bear 33.33 percent of the total award. The Workers Compensation Board (Board) lowered the ALJ’s 71.03 percent work disability award to 21 percent, and Brobst appeals that aspect of the Board’s decision. Brighton Place and Church Mutual cross-appeal the Board’s decision that Brobst’s second accident occurred in the course of her employment. We affirm.
On April 14, 1990, Brobst was working as a licensed practical nurse (LPN) for the Brighton Place nursing home when she injured her back and neck lifting a heavy patient. The parties do not dispute the nature and extent of this injury. Brobst reported the incident to Brighton Place and sought treatment from a chiropractor, Dr. Ron Warta. She received treatments from Dr. Warta and continued to see him weekly through the time of the preliminary hearing in this case. From the time of this accident until October 1990, Brobst continued to perform her regular job duties at Brighton Place.
To keep her LPN position at Brighton Place, Brobst had to maintain her nurse’s license. On October 12, 1990, Brobst attended an all-day continuing education seminar at Washburn University. Brobst had learned about the seminar from a notice posted on a bulletin board at Brighton Place. After seeing the posting regarding the Washburn seminar, Brobst told her employer she wanted to attend, and, although Brighton Place did not pay Brobst any wages to attend, it gave her a check to cover the tuition for the seminar.
As Brobst was leaving the seminar to go home, she stepped off a curb to cross the street to the parking lot where her car was located, twisted her ankle, and fell to the ground. Brobst informed Brighton Place about the accident but went to work that night because there was no one to cover for her. Her ankle swelled after working on it all night, and Brobst went in to see her personal physician, Dr. Ethan Bickelhaupt. The fall had twisted her back again, and the ankle injury complicated the back problems by imposing an abnormal gait. Dr. Bickelhaupt recommended that Brobst see an orthopedic surgeon, Dr. Joseph Shaw.
Brobst stayed away from work to rest her ankle until October 30, 1990, when Brighton Place called to see if she could come in. She worked the 30th and 31st of October, but stopped working again when her back and ankle bothered her, and Dr. Bickelhaupt told her she needed to stay off her feet and could not give her a medical release to work. Brobst has not worked at Brighton Place since October 31, 1990, and her position there has been filled in her absence.
Brobst later attempted to work as a private duty personal companion for an elderly lady but had to quit when the job began to require heavy lifting. ■
Brobst continued to receive treatment from Dr. Warta and Dr. Bickelhaupt. She has additionally been seen by three other doctors: Dr. Shaw, the orthopedic surgeon; Dr. Jeff Wade, of the Back in Action back rehabilitation center; and Dr. Gary Counselman, a chiropractor recommended to Brobst by Dr. Warta. Jerry Zook provided a vocational assessment/evaluation of Brobst.
Dr. Counselman and Dr. Warta each estimated Brobst’s whole body impairment from the back injury at 5 percent, and Dr. Counselman recommended that Brobst discontinue future employment as an LPN if she would have to lift patients or stand or walk for extended periods. Dr. Shaw’s work restrictions for Brobst include no lifting over 20 pounds, standing or sitting for long periods, or repetitive bending, twisting, or lifting. These work restrictions prevent employment as an LPN because of the nature of the work. Dr. Shaw estimated that Brobst had a 6 percent permanent partial disability of the body as a whole, with 2 percent attributable to her neck problems and 4 percent attributable to her back injury. In addition, Dr. Shaw estimated that half of the 6 percent impairment was attributable to the April 14 incident and half was attributable to the October 12 incident. Dr. Shaw believed the ankle injury had been resolved and that there was no permanent impairment to the ankle.
Brobst filed workers compensation claims alleging injuries occurring on April 14, October 12, and October 30-31, 1990. Brighton Place and Church Mutual impleaded the Fund.
The ALJ found that the April 14, 1990, injuries arose out of and in the course of Brobst’s employment and designated the injury a 4 percent permanent partial general bodily disability, entitling Brobst to a total award of $3,436.20, with no designation for work disability because Brobst did not miss any work as a result of this first accident. The ALJ found that the October 12,1990, Washburn injuries also arose out of and in the course of Brobst’s employment and found Brobst’s work disability or permanent partial general bodily disability to be 71.03 percent, entitling Brobst to an award of $60,271.81. The ALJ found no compensable work injuries for the October 30-31, 1990, claim. The Fund was ordered to bear 33.33 percent of the total award on the two compensable claims.
Brighton Place and Church Mutual requested review by the Board, raising several issues, including whether the Washburn injuries were compensable and whether Brobst suffered a 71.03 percent work disability following the Washburn accident. The Board affirmed the ALJ’s decision, except with regard to the work disability rating, which the Board lowered to 21 percent. Brobst appeals to this court, seeking reinstatement of the ALJ’s work disability award, and Brighton Place and Church Mutual cross-appeal on the issue of whether the October 12 Washburn injuries arose out of and in the course of Brobst’s employment.
The Act for Judicial Review and Civil Enforcement of Agency Actions, specifically K.S.A. 77- 621(c), provides the grounds upon which relief may be granted in appeals of workers compensation awards entered on or after October 1,1993. See K.S.A. 1996 Supp. 44-556(a).
“The court shall grant relief only if it determines any one or more of the following:
“(4) the agency has erroneously interpreted or applied the law;
“(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 . . . .” K.S.A. 77-621(c).
Although this court may substitute its judgment for that of the Board on questions of law, on disputed issues of fact, an appellate court must view the evidence in the light most favorable to the prevailing party and determine if there is substantial competent evidence to support the Board’s determinations. Helms v. Pendergast, 21 Kan. App. 2d 303, Syl. ¶ 3, 899 P.2d 501 (1995).
Brighton Place and Church Mutual appeal the Board’s decision that the injuries sustained in the October 12, 1990, Washburn accident arose out of and in the course of Brobst’s employment. The question of whether there has been an accidental injury arising out of and in the course of employment is a question of fact, and its determination will not be disturbed by an appellate court where there is substantial evidence to sustain it. Harris v. Bethany Medical Center, 21 Kan. App. 2d 804, Syl. ¶ 1, 909 P.2d 657 (1995).
In employment covered by workers compensation laws, an employer must compensate an employee for personal injuries incurred by the employee through accidents arising out of and in the course of employment. Kindel v. Ferco Rental, Inc., 258 Kan. 272, Syl. ¶ 2, 899 P.2d 1058 (1995); see K.S.A. 1996 Supp. 44-501(a). To affirm the Board’s decision on this issue, this court must find substantial competent evidence to support the conclusion that attendance at the Washburn seminar was within the scope of Brobst’s employment.
“The two phrases arising ‘out of and ‘in the course of employment, as used in our Workers Compensation Act, K.S.A. 44-501 et seq., have separate and distinct meanings .... The phrase ‘out of employment points to the cause or origin of the accident and requires some causal connection between the accidental injury and the employment.... [A]n injury arises ‘out of employment if it arises out of the nature, conditions, obligations, and incidents of the employment. The phrase ‘in the course of employment relates to the time, place, and circumstances under which the accident occurred and means the injury happened while the worker was at work in the employer’s service. [Citations omitted.]” 258 Kan. at 278.
Brighton Place and Church Mutual first argue that the Wash-bum seminar was not an incident of Brobst’s employment. An employee’s participation in educational or training programs or seminars may be considered within the scope of employment where such participation was clearly contemplated as incidental to the employment either as a matter of custom or under the contract of employment. 1A Larson’s Workmen’s Compensation Law 27.31(a), (c) (1996).
In Blair v. Shaw, 171 Kan. 524, 233 P.2d 731 (1951), an auto mechanic employed by a Chevrolet dealership died in an automobile accident on the highway while making the return trip to Fort Scott from Pittsburg, where he and his co-workers had attended an annual auto mechanics examination. The issue was whether the employee’s death arose out of and in the course of his employment. The court examined several circumstances in making its decision.
It was the policy and custom of Chevrolet to give an annual exam for auto mechanics employed by various Chevrolet agencies; the practice had existed for 15 years. Mechanics passing the written exam received certificates which made them more employable and which allowed their employers to advertise that they employed factory-trained mechanics. Although the claimant’s employer in Blair provided the information on the time and location of the exam and paid for the gasoline used in the commute, the employer did not provide any other form of compensation for attendance, did not give definite instructions as to whether attendance was required, and had nothing to do with the giving of the exam. Nevertheless, attendance at the examination had become so common and accepted as to amount to a custom; employees expected to go and their employers expected them to. Under these facts and circumstances, the court concluded that the annual trip to take the exam was contemplated by the employment and had become so expected as to become incidental to the employment within the meaning of the Workers Compensation Act. 171 Kan. at 528.
In Brobst’s case, attendance at continuing educátion seminars like the one at Washburn was clearly contemplated by her employment with Brighton Place. Brobst’s position with Brighton Place depended upon Brobst maintaining her status as an LPN. In order to maintain that status, Brobst had to acquire 30 hours of continuing education credits. Although Brighton Place did not tell Brobst that she had to specifically attend the Washburn seminar, it posted the information regarding the seminar, knew that Brobst had chosen to attend that particular seminar to obtain some of her needed credits, and paid her tuition. Under these circumstances, and in light of the Blair holding, there was substantial competent evidence to support the Board’s finding that Brobst’s attendance at the Washburn seminar was an incident of her employment for workers compensation purposes!
However, Brighton Place and Church Mutual argue that even if the seminar was within the scope of Brobst’s employment, that aspect of her employment ended when the seminar drew to a close and Brobst’s injuries, therefore, did not occur in the course of that employment because Brobst was injured as she was leaving the seminar, rather than at the seminar. Respondents argue that compensation for the Washburn injuries should be denied under the “going and coming” rule codified in the first sentence of K.S.A. 1996 Supp. 44-508(f), which states:
“The words ‘arising out of and in the course of employment’ as used in the workers compensation act shall not be construed to include injuries to the employee occurring while the employee is on the way to assume the duties of employment or after leaving such duties, the proximate cause of which injury is not the employer’s negligence.”
There are, however, at least three exceptions or qualifications to the going and coming rule. The first two — the premises and special hazard exceptions — were added to the Act in 1968, L. 1968, ch. 102, § 2, and are now stated in the second sentence of K.S.A. 1996 Supp. 44-508(f):
“An employee shall not be construed as being on the way to assume the duties of employment or having left such duties at a time when the worker is on the premises of the employer or on the only available route to or from work which is a route involving a special risk or hazard and which is a route not used by the public except in dealings with the employer.”
For purposes of K.S.A. 1996 Supp. 44-508(f), Kansas narrowly construes the term premises to mean a place controlled by the employer. Thompson v. Law Offices of Man Joseph, 256 Kan. 36, Syl. ¶ 1, 883 P.2d 768 (1994).
Brobst’s accident would not fall under either of the statutory exceptions. She was not on her employer’s premises when she was injured and was not using a special hazard route within the meaning of 44-508(f). If Brobst had simply been returning home from her ordinary work at Brighton Place when she twisted her ankle, and if this hypothetical accident had not qualified for either of the two statutory exceptions, Brobst would not qualify for compensation due to the going and coming rule. See generally Thompson, 256 Kan. 36 (discussing cases involving slip and fall injuries incurred while going or coming from work and finding no compensation where special premises and special hazard exceptions did not apply). However, Kansas case law recognizes a distinction be tween accidents incurred during the normal going and coming from a regular permanent work location and accidents incurred during going and coming in an employment in which the going and coming is an incident of the employment itself.
Under this third qualification to the going and coming rule, injuries incurred while going and coming from places where work-related tasks occur can be compensable where the traveling is (a) intrinsic to the profession or (b) required in order to complete some special work-related errand or special-purpose trip in the scope of the employment. This third exception has been noted in several Kansas cases, many of which post-date the 1968 premises and special hazard amendments to the Workers Compensation Act. See, e.g., Kindel, 258 Kan. at 277; Angleton v. Starkan, Inc., 250 Kan. 711, 718, 828 P.2d 933 (1992); Bienz, Administratrix v. John Hancock Mutual Life Ins. Co., 195 Kan. 422, 427-29, 407 P.2d 222 (1965); Blair, 171 Kan. at 528; Woodring v. United Sash & Door Co., 152 Kan. 413, 417-18, 103 P.2d 837 (1940); and Messenger v. Sage Drilling Co., 9 Kan. App. 2d 435, 436-37, 680 P.2d 556, rev. denied 235 Kan. 1042 (1984).
It was this third exception to the going and coming rule which was critical in Blair when the employer in that case posed the same arguments as Brighton Place and Church Mutual in this case. The court responded as follows:
“Having concluded that the trip to Pittsburg to take the examination was a part of the employment, it seems entirely logical to conclude that the entire undertaking is to be considered from a unitary standpoint rather than divisible. To take the examination it was necessary for decedents to make the round trip to Pittsburg. That involved travel by private automobile — going and returning — one project, so to speak, and included the normal traffic hazards inherent in such an undertaking. The act does not require that the injury be sustained on or about the employer’s premises. We think appellants’ contention that the ‘employment’ was concluded the moment decedents finished the written examination and laid down their pencils is too narrow, particularly in view of the liberal construction of the act to which the workman is entitled under our many decisions.” 171 Kan. at 529-30.
The Board in this case relied on this language and on the holding of Blair in arriving at its decision on this issue, and we can find no fault in this reliance. The rule in favor of liberally construing the workers compensation statutes to award compensation where it is reasonably possible to do so is still recognized in Kansas, see Kindel, 258 Kan. at 284, and Blair is still good law. See Kindel, 258 at 277 (citing Blair as authority for this exception to the going and coming rule). Having concluded that the Washburn trip, like the trip to Pittsburg in Blair, was part of the employment, Blair requires viewing the entire undertaking as indivisible. Like the Blair employment, the employment in this case did not end with the final words spoken at the seminar. While Brobst’s injury did not occur in a moving vehicle on the highway as had occurred in Blair, the undertaking required not only traveling in the vehicle, but also traversing on foot the distance between the seminar classroom and the place where the vehicle was parked. That on-foot portion of the trip included all the normal hazards involved in negotiating lots, streets, curbs, and walkways. If the whole trip is indivisible, then it includes all the normal risks involved in completing it, and Brobst’s injuries should be compensable.
Brobst appeals the Board’s decision that her work disability was only 21 percent. She asserts that the ALJ properly determined that her work disability was 71.03 percent. The existence, nature, and extent of the disability of an injured worker is a question of fact. Armstrong v. City of Wichita, 21 Kan. App. 2d 750, 756, 907 P.2d 923 (1995), rev. denied 259 Kan. 927 (1996). The question is whether there is substantial evidence to support this factual finding by the Board. Substantial evidence in such a case is evidence that possesses something of substance and relevant consequence or evidence that furnishes a substantial basis of fact from which the issues presented can be reasonably resolved. Hughes v. Inland Container Corp., 247 Kan. 407, Syl. ¶ 3, 799 P.2d 1011 (1990).
In determining the extent and classification of a worker’s disability, the law in effect at the time of the injury is applicable. See Condon v. Boeing Co., 21 Kan. App. 2d 580, 588, 903 P.2d 775 (1995); Berry v. Boeing Military Airplanes, 20 Kan. App. 2d 220, 231, 885 P.2d 1261 (1994). Although the statute has since been amended, at the time of the accidents in this case, K.S.A. 1990 Supp. 44-510e provided the directive for determining the extent of permanent partial general disability. The relevant portion of that statute reads:
“The extent of a permanent partial general disability shall be the extent, expressed as a percentage, to which the ability of the employee to perform work in the open labor market and to earn comparable wages has been reduced, taking into consideration the employee’s education, training, experience and capacity for rehabilitation, except that in any event the extent of permanent partial general disability shall not be less than percentage of functional impairment.” K.S.A. 1990 Supp. 44-510e(a).
In determining the extent of permanent partial general disability, or work disability, both the reduction of a claimant’s ability to work in the open labor market and the ability to earn comparable wages must be considered, Hughes, 247 Kan. 407, Syl. ¶ 5, but the weight to be given to each side must be upheld if supported by substantial competent evidence, Brown v. City of Wichita, 17 Kan. App. 2d 72, Syl. ¶ 2, 832 P.2d 365, rev. denied 251 Kan. 937 (1992). Determining the percentage assigned to each element based on the evidence and then averaging the two percentages to arrive at a final disability percentage is an acceptable method of arriving at the extent of permanent partial general disability under the statute. See Hughes, 247 Kan. at 422.
The only evidence in this case regarding the claimant’s reduction in ability to work in the open labor market were the records of vocational rehabilitation counselor Jerry Zook. Zook submitted a Vocational Assessment/Evaluation Addendum to document the claimant’s wage potential and her rehabilitation options if she did not have the ongoing unrelated medical problems. In the first page of the assessment, Zook states the following:
“The client’s previous experience as a Certified Nurses Aide, Certification Medication Aide and Licensed Practical Nurse would indicate she possesses transferable skills in the area of medical terminology. Based on the restrictions submitted by Joseph L. Shaw, M.D. and if only these restrictions were to apply it would seem reasonable the client could perform work as a Medical Records Clerk or perform clerical and secretarial work in a medical office or doctor’s office. However, since the client has no previous experience in clerical work she would be required to take a nine month re-education and training program either as a Medical Records Clerk or Medical Secretary. Upon completion of such training the client could expect to earn, based on entry level wages in this field, an average of $240.00 a week. After working for several years in this area the average weekly wage could reach $298.00 per week. The entry level wage would not return the client to comparable wage, however, comparable wage could be achieved with several years of experience. If the client were not to complete a re-education and training program and were to obtain work in the open labor market, entry level positions could be obtained. For example, Cashier positions could be obtained that would be within the restrictions assessed by Dr. Shaw, however, these are entry level positions and would pay minimum wage of $4.50 per hour.”
The report later describes the findings of Dr. Shaw from a letter to Zook dated April 13, 1992, in which Dr. Shaw explained that Brobst had reached maximum medical recovery on her work-related injuries and stated that Brobst could not do any repetitive bending, stooping, lifting, or working for long periods of times with her arms overhead. These restrictions were expected to last for at least a year, at which time reassessment would be called for. The report notes several illnesses unrelated to Brobst’s work injuries: symptomatic epigastric hernia, congestive heart failure and myocardiopathy, chronic obstructive pulmonary disease (COPD), and tachycardia. Finally, the report summary states:
“The client is a 48 year old female who was employed as a LPN at Brighton Place North until the injury on October 31,1990. Dr. Shaw, the treating physician, diagnosed chronic mechanical back dysfunction. The client worked previously as a Cook, a Barmaid, a Certified Nurses Aide and a Certified Medication Aide. Her employer, Brighton Place North, is unable to take the client back due to the physical restrictions. Any effort to identify transferable skills is, at this time impossible, as the client has been too ill to take part in further assessments. The client appears to have significant medical problems unrelated to her industrial injury including a diagnosis of congestive heart failure, COPD and tachycardia. With existing transferable skills and applying only the restrictions directly related to her accident, the client may be employable, however, upon consideration of her complete medical condition, it is my opinion she is not placeable. Further vocational rehabilitation services would not benefit this client.”
The ALJ had arrived at the 71.03 percent work disability figure by finding a wage loss of 42.05 percent and a labor market loss of 100 percent, and averaging the two numbers. The Board agreed with the wage loss estimation. However, the Board disagreed with regard to the labor market loss estimation, noting the absence of evidence regarding the labor market loss attributable to the work related injuries:
“Mr. Zook does not offer an opinion concerning claimant’s loss of access to the open labor market as a result of her work-related injuries. It is apparent that she cannot return to her regular job duties as an LPN with the respondent. However, it is not apparent from the record what labor market loss could be assigned to this claim. ...
“[T]he record is lacking with regard to evidence of labor market loss. Mr. Zook’s opinion to the effect that claimant is essentially unemployable relates to her overall condition at tire time that he evaluated her from a vocational standpoint. This included the medical problems claimant developed or which were diagnosed after her last day of working for the respondent and which were conditions unrelated to her work-related injuries. Nowhere does he give an opinion of labor market loss utilizing the restrictions of Dr. Shaw . . . which result from the work- related injuries alone. As such, tire Appeals Board finds that the claimant has failed to meet her burden of proof with regard to the loss of labor market access.”
Although work-related aggravation of preexisting conditions can be compensable, Harris v. Cessna Aircraft Co., 9 Kan. App. 2d 334, 336, 678 P.2d 178 (1984), workers compensation is not intended to provide compensation for debilitating medical conditions not created or exacerbated by work-related accidents or conditions. See Boeckmann v. Goodyear Tire & Rubber Co., 210 Kan. 733, 738, 504 P.2d 625 (1972); and West-Mills v. Dillon Companies, Inc., 18 Kan. App. 2d 561, Syl. ¶¶ 3, 4, 859 P.2d 382 (1993). Nevertheless, one factor to consider in determining work disability is the employee’s capacity for rehabilitation, K.S.A. 1990 Supp. 44-510e(a), and this would seem to require consideration of physical and other limitations unrelated to the work injury which limit the capacity for rehabilitation. To this extent, Brobst’s nonwork-related medical problems are relevant in determining her loss of access to the labor market and, ultimately, her work disability rating. However, these unrelated conditions should not take over the entire focus, allowing claimants essentially to be compensated for conditions not arising out of and in the course of their employment. The Board was attempting to avoid such an improper result.
In workers compensation proceedings, the claimant has the burden of proof to establish his or her right to an award of compensation and to prove the various conditions on which this right depends. K.S.A. 1996 Supp. 44-501(a). Brobst had the burden to provide the Board with adequate evidence regarding the degree of loss of access to the labor market attributable to her work-related injuries. The Board found no substantial evidence regarding what portion of claimant’s unemployability was attributable to her compensable injuries and thus assigned a zero percentage to that aspect of the formula. After averaging the 0.00 percent with the 42.05 percent wage loss figure and rounding down, the Board arrived at the 21 percent work disability rating.
The restrictions placed on claimant as a result of her work-related injuries probably subjected her to some loss of access to the labor market, but how much is indeterminable. Claimant’s experts suggested no percentages, and claimant failed to offer some reasonable basis upon which the Board could assign a percentage to this aspect of her claim. The Board was not required to hazard a guess in the absence of competent evidence. The burden was on Brobst to prove each of the elements of her claim. She failed in that regard, and the Board should not have been required to pick a number out of thin air without some basis for determining what number would be too high and what number would be too low. Negative findings will seldom be set aside if the evidence is limited in quantity and its weight and credibility may be questionable, or if the evidence may be disregarded for any reason. Harris, 9 Kan. App. 2d at 335. The evidence in this case suffered from such limitations, and the Board’s negative finding and its subsequent work disability determination should therefore be upheld.
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Paddock, J.:
The State appeals the granting of a departure sentence by the district court.
Leslie Daniel Rush pled no contest to rape, as defined by K.S.A. 21-3502(a)(2). Defendant was found guilty of engaging in sexual intercourse with a child under 14 years of age.
The presumptive sentence for the crime was from 86 to 96 months, based on a crime severity level of 2 and a criminal history category of G. The district court on Rush’s motion granted a durational departure and sentenced Rush to 40 months’ imprisonment.
The State argues that there was neither substantial competent evidence nor substantial and compelling reasons for a departure. We disagree and affirm the district court.
At the preliminary hearing, the victim, L.B., testified that she and her friend called Rush to come over because they thought that there was someone sneaking around outside the house. L.B. knew that Rush had been drinking when he came over. L.B. testified that Rush gave her a “hickey” based on a dare from L.B.’s friend. Rush asked L.B. if she was going to take her shirt off, and so she did. The two then engaged in sexual intercourse.
L.B. told a police officer who questioned her after the incident that she believed it was her fault “[bjecause I’m the one that always had it — wanted something from him. I just wanted a relationship with him. And I’m the one that made the moves on him that night.”
The district judge made the following findings on the departure motion: .
“But I do find in this case this young victim indicated she was . . . sexually experienced. She thought, in her own mind, that she had made moves, as she said. And so I find that she was a willing participant, more so than in some other cases. She was not under any infirmity. As far as I can tell, [Rush] had no part in feeding her liquor, drugs, alcohol, or anything else to get her to participate in this particular act.
“I think the act was reprehensible. But since the legislature makes it incumbent upon the court to find certain circumstances — that there are the substantial and compelling reasons to compel and depart, which would ordinarily be present, and that the victim was aggressive in this sexual act which led to . . . this crime. And so the court will grant a durational departure.”
Standard of Review
Our standard of review is to determine whether the court’s findings of fact and reasons justifying departure are supported by substantial competent evidence and whether the findings constitute substantial and compelling reasons for departure. State v. Richardson, 20 Kan. App. 2d 932, 939-40, 901 P.2d 1 (1995). We find that there was substantial competent evidence based on L.B.’s testimony that L.B. was a willing participant and aggressor in the sexual act.
Next, this court inquires whether the factors relied upon by the trial court constituted substantial and compelling reasons. Such inquiry is a question of law. State v. Favela, 259 Kan. 215, 232, 911 P.2d 792 (1996); State v. Gideon, 257 Kan. 591, 623, 894 P.2d 850 (1995).
“The term ‘substantial’ refers to something that is real, not imagined, something with substance and not ephemeral. The term ‘compelling’ implies that the court is forced, by the facts of the case to leave the status quo, or go beyond what is ordinary.” State v. Rhoads, 20 Kan. App. 2d 790, Syl. ¶ 3, 892 P.2d 918 (1995).
The district court’s reason for departure was that L.B. was an aggressor in the act. That the victim was an aggressor is one of those factors recognized as a substantial and compelling mitigating factor by K.S.A. 21-4716(b)(l)(A). Thus, such finding is in itself a substantial and compelling reason to depart.
Additionally, K.S.A. 21-4719(b) states: “When a sentencing judge departs in setting the duration of a presumptive term of imprisonment: (1) The judge shall consider and apply the enacted purposes and principles of sentencing guidelines to impose a sentence which is proportionate to the severity of the crime of conviction and-the offender’s criminal history.”
One of the purposes behind enacting the guidelines was to reserve space in prison for serious/violent offenders in order to reduce prison overcrowding. Favela, 259 Kan. at 233. The trial court’s finding that L.B. was an aggressor indicates that Rush committed the offense but there were mitigating circumstances. Therefore, departing based on that fact would be consistent with the guidelines. See 259 Kan. at 238.
The relevancy issue
Finally, the State argues that even if L.B. was an aggressor in the act, the willing and even aggressive participation of a minor victim is irrelevant for the purposes of establishing the charge of rape and should also be irrelevant for sentencing purposes. We agree with the State that by the definition of the crime of rape in K.S.A. 21-3502(a)(2), the very act of engaging in sexual intercourse with a child under 14 years of age establishes the crime. The willing participation or aggression of the child in the act is no defense to the crime, and evidence of such participation would be irrelevant in regard to the criminal charge.
We, however, disagree with the State that the aggressive acts of the child can never be considered for sentencing purposes. Although the question has never been decided by a Kansas appellate court, our research reveals a similar issue has been considered by an Idaho court.
In State v. Stiffler, 114 Idaho 935, 938, 763 P.2d 308 (Ct. App. 1988), aff’d 117 Idaho 405, 788 P.2d 220 (1990), the issue before the court was whether an honest and reasonable mistake of fact as to the victim’s age is a defense to the charge of statutory rape. The court held it was not, but stated that a female adolescent’s sexual sophistication properly may be considered in imposing punishment.
Likewise, we find that although the aggressive act of a female victim leading up to an act of sexual intercourse is not a defense to the charge of rape as defined by K.S.A. 21-3502(a)(2), it maybe properly considered in imposing punishment.
Affirmed. | [
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Rogg, J.:
George Manning pled guilty to felony theft in violation of K.S.A. 21-3701. A sentencing hearing was held on May 10,1996, at which time defense counsel told the court that Manning had committed the theft while on parole for Missouri convictions.
The State claimed that defendant was not on parole but, rather, an escapee at the time he committed the felony theft. The State argued that the sentencing court was required to sentence Manning to consecutive sentences regardless of whether Manning was on parole or an escapee.
The district court sentenced Manning to 14 months’ imprisonment. Without stating whether Manning was on parole or an escapee at the time he committed the Kansas offense, the court found that it was required to run the Kansas sentence consecutive to the sentences Manning had received in his Missouri felony convictions.
Manning appeals from the district court’s ruling. He claims that the district court erred in its determination that the sentences had to be run consecutively pursuant to K.S.A. 21-4608(c). Manning asserts that the proper statute that applied was K.S.A. 21-4608(h), which allowed die court to use discretion whether to impose consecutive or concurrent sentences. He asserts that, because the court did not make a specific finding regarding his status, whether he was on parole or an escapee, the court could not determine whether a mandatory sentence was required.
K.S.A. 21-4608(c) states:
“Any person who is convicted and sentenced for a crime committed while on probation, assigned to a community correctional services program, on parole, on conditional release or on post 'release supervision 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.”
K.S.A. 21-4608(h) provides:
“When a defendant is sentenced in a state court and is also under sentence from a federal court or other state court or is subject to sentence in a federal court or other state court for an offense committed prior to the defendant’s sem tence in a Kansas state court, the court may direct that custody of the defendant may be relinquished to federal or other state authorities and that such state sentences as are imposed may run concurrently with any federal or other state sentence imposed.”
Whether the district court erred in imposing a mandatory consecutive sentence is a question of statutoiy interpretation and this court’s review is de novo. See State v. Donlay, 253 Kan. 132, 133-34, 853 P.2d 680 (1993).
In State v. Aleman, 16 Kan. App. 2d 784, 786-90, 830 P.2d 64, rev. denied 251 Kan. 940 (1992), this court discussed the application of K.S.A. 1991 Supp. 21-4608(3) and (8) (which are substantially the same as the current subsections [c] and [h]).
In Aleman, the defendant was on probation from a felony conviction in the state of Wyoming at the time he committed a felony. The sentencing court concluded that a consecutive sentence was mandatory pursuant to K.S.A. 1991 Supp: 21-4608(3). Aleman argued that the court should have relied on K.S.A. 1991 Supp. 21-4608(8) which gave the court discretion to impose a concurrent or consecutive sentence. The court determined K.S.A. 1991 Supp. 21- 4608(8) was “a general statute governing the various situations when a person convicted of a crime in Kansas [was] ‘under sentence’ or ‘subject to sentence’ in another jurisdiction.” 16 Kan. App. 2d at 789. It then went on to find that K.S.A. 1991 Supp. 21-4608(3) applied “only to those persons who [were] convicted of committing crimes while on probation or parole.” 16 Kan. App. 2d at 789. It concluded that K.S.A. 1991 Supp. 21-4608(3) controlled because it dealt with a specific phase of K.S.A. 1991 Supp. 21-4608(8). 16 Kan. App. 2d at 789.
Manning tries to distinguish his case from Aleman by arguing that unlike Aleman, his status was in dispute. Therefore, according to Manning, the question becomes whether his status as an escapee would be mutually exclusive of his status of being on parole, thereby requiring the court to look to K.S.A. 21-4608(h) rather than (c).
In evaluating the Kansas Sentencing Guidelines Act, the Kansas appellate courts have referred to the two primary rules of statutory construction: First, the court must give effect to the plain and unambiguous language used within a statute to express the intent of the legislature. Second, the intent of the legislature controls. State v. Gonzales, 255 Kan. 243, 248-49, 874 P.2d 612 (1994); State v. Dillard, 20 Kan. App. 2d 660, 661, 890 P.2d 1248 (1995). Additionally, “ ‘[i]n determining legislative intent, courts are not limited to a mere consideration of the language used, but look to the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished and the effect the statute may have under the various constructions suggested.’ ” Gonzales, 255 Kan. at 249 (quoting Brown v. Keill, 224 Kan. 195, Syl. ¶ 3, 580 P.2d 867 [1979]).
K.S.A. 21-4608(c) does not expressly include one who has escaped from custody. However, a defendant on parole from a felony should not be rewarded by his own illegal act of escaping. In State v. Burrows, 23 Kan. App. 2d 342, 342-43, 929 P.2d 1391 (1997), the sentencing court made a finding that defendant had committed the current crimes while he was “incarcerated for a felony conviction” where he was an escapee from Oklahoma when he committed three counts of burglary.
We conclude that the failure to expressly include a convict on escapee status in K.S.A. 21-4608(c) and K.S.A. 21-4608(e) does not prevent the statutes from operating to require the sentencing court to order consecutive sentences for a defendant who commits a crime after escaping from custody.
Therefore, regardless of whether Manning was on parole or an escapee, the sentencing court properly ran Manning’s sentence in the present offense consecutive to his sentences in the Missouri cases.
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Paddock, J.:
This appeal is to determine if the district court erred in ordering that the League of Kansas Municipalities (League) was exempt from ad valorem taxation. The Board of Tax Appeals (BOTA) had denied the League’s application for exemption. The League then applied for judicial review, and the district court reversed BOTA’s decision and remanded with directions that BOTA grant the exemption. BOTA refused to comply with the court’s remand order, and, upon the League’s motion, the district court granted the exemption. The Board of County Commissioners of Shawnee County (Board) appeals the court’s order reversing BOTA and its order granting the exemption.
The BOTA decision
BOTA effectively found that the actual use of the League’s property was exclusively for municipal purposes.
BOTA acknowledged in its final order that the League, which was created in 1910 and consists of 543 of the 627 cities in Kansas, performs numerous functions on behalf of the cities of Kansas, including: providing educational and training seminars; performing legal research; providing technical and advisory assistance; monitoring legislation; lobbying governmental functions; and issuing various publications, newsletters, and monthly magazines. BOTA further noted that the League produced various witnesses who testified “that the League was an integral part of their respective cities’ operation” and that “the League provides surveys and studies to many cities which could not afford to have such studies compiled themselves.” BOTA also noted that the League was exempt from federal income tax as a political subdivision and that pursuant to K.S.A. 12-1610e, it was an “instrumentality” of its member cities. Notwithstanding its findings, BOTA denied the exemption on the basis of its interpretation of K.S.A. 1996 Supp. 79-201a Second. It opined that the League did not meet the requirements for the statutory exemption because the League is an instrumentality of its member cities, not a political subdivision, and that even if it is a political subdivision, it does not have the power to levy taxes or issue bonds; thus, the League’s property is not being “used exclusively” by a government entity.
K.S.A. 1996 Supp. 79-201a Second provides for ad valorem tax exemption, in pertinent part, for
“[a]U property used exclusively by the state or any municipality or political subdivision of the state. All property owned, being acquired pursuant to a lease-purchase agreement or operated by the state or any municipality or political subdivision of the state, including property which is vacant or lying dormant, which is used or is to be used for any governmental or proprietary function and for which bonds may be issued or taxes levied to finance the same, shall be considered to be ‘used exclusively’ by the state, municipality or political subdivision for the purposes of this section.”
The district court largely adopted BOTA’s findings of fact with respect to the League’s activities and stated that “[t]he undisputed evidence presented at the administrative hearing demonstrated that all property owned by the League is being used for municipal purposes.” The court reversed BOTA’s decision holding that BOTA had misinterpreted the provisions of 79-201a Second, and stated in part: “The statute does not provide that the ability to issue bonds or levy taxes is a requirement for exclusive governmental use.”
In addition, the court found that BOTA’s interpretation of 79-201a Second was contrary to the provisions of article 11, § 1(b) of the Kansas Constitution, which provides:
“All property used exclusively for state, county, municipal, literary, educational, scientific, religious, benevolent and charitable purposes, farm machinery and equipment, merchants’ and manufacturers’ inventories, other than public utility inventories included in subclass (3) of class 2, livestock, and all household goods and personal effects not used for the production of income, shall be exempted from property taxation.”
The scope of review
“ ‘The scope of appellate review of an agency’s action is to determine if the district court reviewed the action in accordance with the Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq. The party asserting the invalidity of the action has the burden of proving the invalidity. [Citation omitted.]’ ” Board, of Douglas County Comm’rs v. Cashatt, 23 Kan. App. 2d 532, 538, 933 P.2d 167 (1997) (quoting Kaufman v. Kansas Dept. of SRS, 248 Kan. 951, 959, 811 P.2d 876 [1991]).
The district court’s scope of review is set out in K.S.A. 77-621(c), in relevant part: “The district court shall grant relief only if it determines any one or more of the following: ... (4) the agency has erroneously interpreted or applied the law.” Additionally, special rules applicable to the review of agency actions must be considered where the issue is one of statutory interpretation.
Ordinarily, deference should be given to an administrative agency’s interpretation of a statute, especially if the agency is one of special competence and experience and if the statute is one which the agency is charged with enforcing. Board of Douglas County Comm'rs, 23 Kan. App. 2d at 538. However, an agency’s determination is not conclusive, and the question of whether an agency has erroneously interpreted a statute as a matter of law is a question over which this court has unlimited review. 23 Kan. App. 2d at 538-39.
"The legal principles applicable to questions of taxation and exemption are well settled. Whether particular property is exempt from ad valorem taxation is a question of law if the facts are agreed upon. [Citation omitted.] Taxation is the rule, and exemption from taxation is the exception under die Kansas Constitution and statutes. [Citation omitted.] Constitutional and statutory provisions exempting property from taxation are to be strictly construed against die one claiming exception, and all doubts are to be resolved against the exemption. [Citation omitted.] Strict construction, however, does not mean unreasonable construction.” Lario Enterprises, Inc. v. State Bd. of Tax Appeals, 22 Kan. App. 2d 857, 859, 925 P.2d 440, rev. denied 261 Kan. 1085 (1996).
Generally, it is presumed that the legislature intends 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). Further, “[w]hen a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be.” Martindale v. Tenny, 250 Kan. 621, Syl. ¶ 2, 829 P.2d 561 (1992).
KS.A. 1996 Supp. 79-201a Second issues 1. The ability to issue bonds or levy taxes issue
The Board does not actually brief or argue that the district court erred in ruling that BOTA incorrectly interpreted the phrase “used exclusively” to require that the entity seeking an exemption also be able to levy taxes or issue bonds.
We ordinarily consider issues on appeal that are not briefed to be abandoned. Pope v. Ransdell, 251 Kan. 112, 119, 833 P.2d 965 (1992). However, because BOTA and the district court primarily relied upon this question in reaching their respective decisions, we will resolve the issue.
K.S.A. 1996 Supp. 79-201a Second sets out a three-part test which may be used to determine when property is “used exclusively”: (1) if the property is “owned, being acquired pursuant to a lease-purchase agreement or operated by the state or any municipality or political subdivision of the state”; (2) if the property is “used or is to be used for any governmental or proprietary function”; and (3) if it is property “for which bonds may be issued or taxes levied to finance the same.” See Lario Enterprises, Inc., 22 Kan. App. 2d at 860-61.
Under the statute, the fact that property is, or may be, financed through the use of public funds is an indication that the property is being “used exclusively” for governmental purposes. However, the wording in the statute does not support a conclusion that the applicant seeking the exemption must actually be the one authorized to provide such financing by issuing bonds or levying taxes. Therefore, the district court was correct in finding that BOTA erroneously interpreted the language of 79-201a Second in denying the League’s application for exemption on the ground it could not issue bonds or levy taxes.
2. The “instrumentality” issue
The second.reason that BOTA denied the League’s application for exemption was that the League was an instrumentality of its member cities and was not a municipality or a political subdivision as required by the statute. The Board also uses this argument on appeal.
The League is defined as an instrumentality of its member cities. K.S.A. 12-1610e. K.S.A. 12-1610g states:
“The member cities of the league of Kansas municipalities acting by and through such instrumentality and in its name shall have power to purchase, or to receive by gift, devise or bequest, and to hold real and personal property; to sell and convey any such real or personal property; to make contracts; to have and use a seal for such instrumentality; to sue and be sued in the name of such instrumentality in relation to its property and affairs; and to do all other acts necessary to the exercise of the functions of such instrumentality: Provided, That the payments of the current annual membership dues and subscriptions shall be the limit of liability of any member city for the acts and obligations of said instrumentality: Provided further, That in the event the league of Kansas municipalities is dissolved or otherwise terminated all of its files, records, assets and property whatsoever, shall be delivered to the secretary of state to be held in custody for the cities of this state.”
Although there is no argument but that the League’s property is actually being used for municipal purposes, it is not owned or operated by a municipality. Rather, as K.S.A. 12-1610g states, the League’s property is owned by an “instrumentality” of its member cities. The term “instrumentality” is commonly understood to mean the quality or state of being instrumental, that is, serving as a means, agent, or tool. Webster’s Collegiate Dictionary 607 (10th ed. 1994). It is close to, but not, as the League claims, being one and the same as the municipalities it serves. The evidence produced at trial supports the fact that the League’s primary role is that of an agent of its member cities, acting on behalf of and by the authority of its members.
The district court resolved this issue in favor of the League on the basis that the League is the alter ego of the cities and is, therefore, entitled to an exemption under the statute and the constitution.
We do not see the solution of this issue to be one of alter ego, which is a concept predominantly encountered in the law of corporations and to a lesser extent in contractual and tort law. It is usually a concept that is used to pierce the corporate veil when a corporation is using its status as a means of injustice to some third person. Dean Operations, Inc. v. One Seventy Assocs., 257 Kan. 676, 680-84, 896 P.2d 1012 (1995). Rather, we believe the real issue in this case is whether in light of the broad language of article 11, § 1(b) of the Kansas Constitution, the League’s existence as an entity separate from its member cities should be disregarded for purposes of 79-201a Second. In other words, can the statute be construed consistent with the constitutional provision where, as here, the property of an instrumentality, an agent of its member cities, is actually being used for municipal purposes? We hold that it can.
Article 11, § 1(b) states in relevant part, that “[a]ll property used exclusively for municipal . . . purposes . . . shall be exempted from property taxation.”
In Board of Leavenworth County Comm’rs v. McGraw Fertilizer Serv., Inc., 261 Kan. 901, 905, 933 P.2d 698 (1997), the court stated:
“In ascertaining the meaning of a constitutional provision, the primary duty of the courts is to look to the intention of the makers (the legislature) and the adopters (the voters) of that provision. [Citation omitted.] A constitutional provision is not to be narrowly or technically construed, but its language should be interpreted to mean what the words imply to persons of common understanding. [Citations omitted.] Words in common usage are to be given their natural and ordinary meaning in arriving at a proper construction.”
In Salina Airport Authority v. Board of Tax Appeals, 13 Kan. App. 2d 80, 82, 761 P.2d 1261, rev. denied 244 Kan. 738 (1988), this court considered the question of whether property owned by the Salina Airport Authority and leased to private companies was exempt under 79-201a Second. We held, under the facts of that case, that the mere fact that the Authority received rental income did not constitute “use” within the meaning of the statute. 13 Kan. App. 2d at 84.
In reviewing the applicable principles of law, we stated, in part:
“Under Kan. Const, art. 11, § 1, all property used exclusively for governmental purposes is exempt from taxation. This exemption depends solely upon the exclusive use made of the property and not on the ownership or the character of the owner. Topeka Cemetery Ass’n v. Schnellbacher, 218 Kan. 39, 42, 542 P.2d 278 (1975). The legislature may exempt from taxation property other than that named in the constitution, provided, however, the exemption has a public purpose and is designed to promote the public welfare. [Citation omitted.] The statutory exemptions may be broader than the constitutional ones. [Citation omitted.]
“In T-Bone Feeders, Inc. v. Martin, 236 Kan. 641, 645-46, 693 P.2d 1187 (1985), controlling principles in analyzing a claim of exemption were stated to be:
‘(4) The question is not whether or not the property is used partly or even largely for the purpose stated in the exemption provisions, but whether it is used exclusively for those purposes. [Citations omitted.]
‘(5) The phrase “used exclusively” in the constitution and statutes means that the use made of the property sought to be exempted from taxation must be only, solely, and purely for the purposes stated, and without participation in any other use. [Citation omitted.]’ ” 13 Kan. App. 2d at 83.
In Laño, the City of Topeka sought an exemption under 79-201a Second for property known as Heartland Park Topeka, a race track and motor sports facility. The property had been transferred to the city for a term of years, at the end of which it reverted back to the transferor. BOTA granted the exemption, finding that the property was owned by the city and that it was used exclusively by the city for a public purpose. The district court affirmed. However, U.S.D. 450 appealed, claiming that the city had acquired only a limited ownership interest in the property which was insufficient for the purposes of obtaining an exemption under the statute. This court noted that 79-201a Second sets forth a slightly different exemption as that stated in article 11, § 1(b) of the Kansas Consti tution and recognized that 79-201a Second sets out a three-part test which may be used to determine whether property is being “used exclusively” under the statute. 22 Kan. App. 2d at 860-61.
Under the facts of that case, this court determined that the property in question was both owned and operated for the purposes of the statute but, in doing so, indicated that the primary consideration in such a case is not necessarily ownership and its qualifications, but how the property is being used in the hands of its owner. 22 Kan. App. 2d at 861-65. Quoting In re Tax Exemption Application of City of Wichita, 255 Kan. 838, 847, 877 P.2d 437 (1994), this court stated: “ ‘The determination of tax exemption under the statute depends to a large extent upon the status of the property in the hands of the owner and whether it actually is being used for a public purpose.’ ” Lario, 22 Kan. App. 2d at 865. See City of Liberal v. Seward County, 247 Kan. 609, 618, 802 P.2d 568 (1990); Tri-County Public Airport Auth. v. Board of Morris County Comm'rs, 245 Kan. 301, 309-10, 777 P.2d 843 (1989); Salina Airport Authority, 13 Kan. App. 2d at 83.
On appeal, the Board claims that had the legislature intended to exempt property belonging to instrumentalities of government entities, it would have so stated. However, the Board neglects to address the fact that such an interpretation is inconsistent with the clear language of article 11, § 1(b), which exempts all property being used exclusively for governmental purposes, not just property owned by the State or any municipality or political subdivision thereof.
We construe K.S.A. 1996 Supp. 79-201a Second to be consistent with the language of article 11, § 1(b) of the Kansas Constitution and to include property which is owned by an instrumentality of a government entity or entities as long as such property is being used exclusively for governmental purposes. Because the League’s property in this case was being used exclusively for municipal purposes, the League was entitled to have its application for exemption from property taxes approved.
The exclusive use issue
The Board, although not denying the actual use of the League’s property is for municipal purposes, makes a technical argument in maintaining that the property is not being used exclusively for municipal purposes.
First, the Board claims that the League’s activities are neither an essential nor integral function of the cities it serves. It cites three cases in support of this argument. One of the cases cited is an unpublished opinion of this court which does not meet any of the listed exceptions to Supreme Court Rule 7.04 (1996 Kan. Ct. R. Annot. 41). Rule 7.04 prohibits citing as precedent unpublished opinions of the appellate courts. We will not consider that case in this appeal.
In Kansas State Teachers Ass'n v. Cushman, 186 Kan. 489, 351 P.2d 19 (1960), cited by the Board, the use of the property benefitted the individual member-teachers of the association, and not the institution of education itself, and was, therefore, not used exclusively for educational purposes. 186 Kan. at 501. Thus, Cushman may be distinguished from the instant case because the property in this case benefits not the individuals in city government, but the city government itself.
The Board also cites Trustees of The United Methodist Church v. Cogswell, 205 Kan. 847, 473 P.2d 1 (1970), to support its argument. In Cogswell, the court determined that an administrative building used by the United Methodist Church was exempt from ad valorem property tax under K.S.A. 79-201 Third (Weeks 1969) and article 11, § 1 of the Kansas Constitution because the property was being used exclusively for religious purposes. The court stated: “The administrative offices of such institutions, although perhaps a step removed from the performance of the ultimate beneficial act, are no less an integral, essential and absolutely necessary part of the act itself.” 205 Kan. at 859.
However, the court noted that the only real question in a case involving whether property is being used exclusively for a particular purpose under the constitution, is whether such property is actually being used for that purpose and for no other purpose, in whole or in part. 205 Kan. at 859, 861. More importantly, the court held that the use of the words “directly” and “immediately” in prior decisions such as Cushman to describe the extent to which property was being used for a particular purpose did not operate as an added condition of exclusive use, but was merely “explanatory or descriptive of the facts rather than controlling in the decision-making process.” 205 Kan. at 858. The court stated:
“[T]heir use must be considered in the light of the facts in the particular case in which they appear. To interpret ‘exclusively’ to mean only that which is also ‘directly’ and ‘immediately’ used for a tax exempt purpose is unrealistic and would in substance add a new dimension to Article 11, Section 1 of the Kansas constitution limiting the tax exemption guaranteed by the constitution.” 205 Kan. at 858.
Therefore, contrary to the Board’s assertions, the use of the words “integral,” “essential,” and “absolutely necessary” by the Cogswell court were a means to describe the administrative function of the church rather than an additional requirement of exclusive use under the constitution. The Board’s argument in this regard is without merit.
Next, in support of its nonexclusive use claim, the Board argues that the League’s activities serve only a limited number of its members. In support of this argument, it refers to the Kansas Municipal Insurance Trust, which the League and 50 of its member cities created through group pooling to provide insurance protection for cities against workers compensation claims.
The Board argues that because only 50 of the League’s member cities currently participate in the trust, the trust is not being used for municipal purposes. Implicit in the Board’s argument is the assumption that the trust is not available to the rest of the League’s membership. Not only is there no evidence to support such a claim, but even if it were true, it is clear that, because the trust operates solely for the benefit of the municipalities who do participate, it is obviously being used for a municipal purpose: to protect the cities themselves from workers compensation liability. Consequently, the Board’s assertion that the League’s operation of the Kansas Municipal Insurance Trust precludes a finding that the League’s prop erty is being “used exclusively” for public purposes is without merit.
The court’s order granting the exemption
After BOTA refused to follow the court’s remand order and upon the League’s motion, the court granted the requested exemption. The judge held that he had jurisdiction to grant the exemption pursuant to K.S.A. 77-622(b), which states:
“The court may grant other appropriate relief, whether mandatory, injunctive or declaratory; preliminary or final; temporary or permanent; equitable or legal. In granting relief, the court may order agency action required by law, order agency exercise of discretion required by law, set aside or modify agency action, enjoin or stay the effectiveness of agency action, remand the matter for further proceedings, render a declaratory judgment or take any other action that is authorized and appropriate.” (Emphasis added.)
The Board does not challenge the court’s jurisdiction, but instead argues the court improperly exercised its jurisdiction over a tax issue that should have been left to BOTA to decide. Specifically, the Board argues that the judge inappropriately made findings of fact which should have been left to BOTA’s specialized area of expertise.
The Board’s argument is without merit for two reasons. Contrary to the Board’s argument, not only was the primary issue presented to the court a matter of statutory interpretation which is a matter of law rather than fact, but also the court made no findings of fact that were inconsistent with those made by BOTA. BOTA’s order sufficiently determined that the League’s property was actually being used for municipal purposes, although it denied the League’s application on other grounds.
Furthermore, in light of the fact that BOTA expressly refused to follow the district court’s direction on remand, the court did not err in granting, pursuant to K.S.A. 77-622(b), the relief requested by the League.
Affirmed. | [
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Lewis, J.:
Prairie State Bank (Bank) instituted this declaratory judgment action against Universal Bonding Insurance Company (Universal Bonding). The Bank’s purpose in filing this action was to obtain an order that the Bank was not required to honor a demand made by Universal Bonding on a letter of credit issued by the Bank. The trial court granted summary judgment in favor of the Bank, and Universal Bonding appeals.
Bauer Floor Covering, Inc., was a long-time customer of the Bank. By the order of Bauer Floor Covering, Inc., the Bank issued an irrevocable letter of credit in the amount of $50,000 on behalf of Bauer Floor Covering, Inc. The letter of credit was issued to Universal Bonding. The letter provided: “Funds under this Letter of Credit are available to you against your sight draft(s), signed by your authorized corporate officer, drawn on us bearing the clause ‘Drawn under Credit #6743950’.”
In addition to Bauer Floor Covering, Inc., there existed Dwight Bauer Floor Company. Neither company had any ties or relationship to the other. Dwight Bauer was the principal owner of Dwight Bauer Floor Company, and James D. Bauer was the principal owner of Bauer Floor Covering, Inc. The two Bauers are related, but the businesses are not.
In August 1994, Universal Bonding made demands on the letter of credit by presenting a sight draft to the Bank in the amount of $50,000. The sight draft stated that it was drawn under credit No. 6743950, and it was signed by a corporate officer. Approximately 1 week later, the Bank advised Universal Bonding that it would not honor the sight draft. The letter from the Bank advised Universal Bonding to “[p]lease be advised that same is being returned to you unpaid.” In this action, Universal Bonding has counterclaimed and is seeking damages on the premise that the Bank’s dishonor of the sight draft was wrongful.
Universal Bonding had issued a bond for Bauer Floor Covering, Inc., to cover the work of that firm at the Denver International Airport. Any claims against Bauer Floor Covering, Inc., would be paid by Universal Bonding, which could be reimbursed through the letter of credit or could obtain funds to settle claims filed against Bauer Floor Covering, Inc.. The only parties to the letter of credit were the Bank, Bauer Floor Covering, Inc., and Universal Bonding.
Our standard of review in a case involving summary judgment is well known:
“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. Summary judgment is appropriate when 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 judgment as a matter of law. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. 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. [Citations omitted.]” Mitzner v. State Dept. of SRS, 257 Kan. 258, 260-61, 891 P.2d 435 (1995).
The Bank contends that it had the right to dishonor the sight draft because Universal Bonding was seeking the funds for reasons not related to the Bank’s customer and not related to the letter of credit. It is the position of Universal Bonding that the Bank simply had no choice but to honor its demand on the letter of credit. The Bank argues that Universal Bonding has paid no claims on behalf of Bauer Floor Covering, Inc., either at the time it submitted the draft or earlier. The Bank argues, and the evidence supports the proposition, that Universal Bonding made the demand on a sight draft to pay claims incurred by Dwight Bauer Floor Company, a corporation that was not a party to the agreement or letter of credit. As pointed out, it appears from the record that Universal Bonding’s attempted draw on the letter of credit had nothing to do with the Bank’s customer at whose request the Bank issued the letter of credit. The Bank claims it had no obligation to honor a sight draft or claim against another party who was not the client of the Bank.
Universal Bonding appears to argue that the Bank was helpless to protect itself against an unfounded and fraudulent claim.
The Kansas Comment 1996 to K.S.A. 84-5-101 reads in part:
“There are essentially two types of letters of credit. The first is the ‘commercial’ letter of credit, facilitating the documentary sale of goods and protecting a third party against the customer’s default in an underlying obligation. The buyer arranges for a bank to issue a letter of credit for the benefit of the seller. The buyer is the ‘applicant,’ the seller is the ‘beneficiary,’ and the bank is the ‘issuer.’ The letter is an undertaking by the bank to honor all drafts drawn upon it by the seller for the purchase price, so long as the drafts are accompanied by the documents required in the letter, such as an invoice, a bill of lading, or an inspection certificate. The risk of buyer insolvency is shifted to the bank as is the risk of the buyer trying to renege on the agreement. The seller gets the benefit of the bank’s undertaking upon the seller’s complying with the documentary requirements.
“The second is the ‘standby’ letter of credit. The standby letter guarantees that the bank will honor its customer’s performance of obligations in a variety of situations. For example, instead of a performance bond from a surety, an owner of real estate may require the contractor to procure a letter of credit obligating its bank to pay the owner upon presentment of a certificate of default accompanied by a draft demanding payment.”
The letter of credit involved in this action was a standby letter of credit. Universal Bonding was acting as the surety for Bauer Floor Covering, Inc., on the Denver International Airport job. In the event that Bauer Floor Covering, Inc., had defaulted or acted wrongfully on this job, any claims against it would be .directed to Universal Bonding, which could then be reimbursed through the use of the letter of credit.
The letter of credit in this action specifically states that it is governed by the “Uniform Customs and Practice for Commercial Documentary Credits (1983 Revision) I.C.C. Publication No. 400” (UCP). The Official UCC Comment appended to K.S.A. 84-5-101 of the Uniform Commercial Code says: “The [UCP] is an international body of trade practice that is commonly adopted by international and domestic letters of credit and as such is the ‘law of the transaction’ by agreement of the parties.”
As we view the record, Universal Bonding does not even argue that its demand on the letter of credit was based on claims paid on behalf of the Bank’s customer, Bauer Floor Covering, Inc. The inference we obtain from the record is that the claim was made because of problems associated with the Dwight Bauer Floor Company, who is not a party to the letter of credit. Indeed, there is evidence that at one point, Universal Bonding discussed moving the letter of credit from Bauer Floor Covering, Inc., to Dwight Bauer Floor Company. This transfer did not take place. We have a situation in which the Bank, according to Universal Bonding, has virtually no way to avoid paying the $50,000, even though the claim did not arise from the company covered by the letter of credit. We reject the argument of Universal Bonding in this regard. To accept its argument would mean that it could openly defraud the Bank by drawing on the letter of credit anytime it pleased without regard to whether it has paid any claims or had paid claims on behalf of a party to the letter of credit.
Universal Bonding first argues that the dishonoring of the sight draft was wrongful because the Bank did not provide Universal Bonding with a reason as to why it was dishonoring the draft. UCP Article 16(d) provides:
“If the issuing bank decides to refuse the documents, [presented as the demand on the letter of credit] it must give notice to that effect without delay by telecommunication or, if that is not possible, by other expeditious means, ... to the beneficiary .... Such notice must state the discrepancies in respect of which the issuing hank refuses the documents . . . (Emphasis added.)
The Bank, in refusing to honor the sight draft in question, did not state the deficiencies “in respect of which the issuing bank refuses the documents.” Whether the Bank’s refusal to honor the letter of credit as required by the UCP makes its dishonor unlawful is never discussed by the trial court. There is evidence that the Bank advised Universal Bonding by telephone that it would not pay the draft because it believed the draw was made based on claims against Dwight Bauer Floor Company, which was not a party to the letter of credit agreement. In die letter notifying Universal Bonding of its dishonor of the draft, however, the Bank gave no reason to support its action. We cannot resolve an issue not visited by the trial court.
K.S.A. 84-5-103(l)(a) (Ensley) says that “the issuer will honor drafts or other demands for payment upon compliance with the conditions specified in the credit.” (Emphasis added.) Our review of the record indicates that Universal Bonding did comply with all of the conditions specified in the credit.
In defending its action, the Bank sought to introduce other documents to show the letter of credit was for a specific job, primarily the “Denver International Airport Concourse C Job.” The problem with that evidence is that the letter of credit itself makes no mention of any other documentation required and says:
“This Letter of Credit sets forth in full the terms of our undertaking and such undertaking shall not in any way be modified, amended or amplified by reference to any documents or instrument referred to herein or in which this Letter of Credit is referred to or to which this Letter of Credit relates and any such reference shall not be deemed to incorporate herein by reference any document or instrument.”
It appears to be a fact that Universal Bonding, in making its sight draft demand, complied with all the terms set forth in the letter of credit. The role which Dwight Bauer Floor Company played in the sight draft was not apparent from the letter of credit itself nor was it apparent from the demand made by Universal Bonding.
Letters of credit are generally subject to the principle of independence, which says that the letter of credit is a separate contractual obligation between the issuer and the beneficiary, not subject to terms of any contract between the beneficiary and the Bank’s customer. This principle is based on the “strong policy that the letter of credit should be completely independent from the underlying contracts .... [Upholding the independence principle as much as possible is necessary to protect the commercial utility of letters of credit. K.S.A. 84-5-114.” Offshore Trading Co. v. Citizens Nat. Bank, 650 F. Supp. 1487, 1492 (D. Kan. 1987).
We have examined the letter of credit which is at issue and conclude it is not ambiguous, and we further conclude that Universal Bonding complied with its terms when it made the demand on the Bank.
Despite all of this, we agree with the trial court that the Bank was relieved from its obligation under the letter of credit by “fraud in the transaction.” Under that theory, the Bank would not be bound by a claim which was fraudulent in nature but which complied on its face to the letter of credit. As we view it, the theory of fraud in the transaction is the only method by which a bank might protect itself from a false and fraudulent claim on a letter of credit and is an equitable defense which exists independently from UCP Article 16(d).
Universal Bonding argues that fraud in the transaction is not a defense under the UCP and, therefore, is unavailable to the Bank. We disagree. We have examined the UCP in this regard and, while it does not specifically disallow a defense of fraud in the transaction, it also does not specifically provide for it either. We consider the UCP to be silent on the subject, and in such cases the UCC would apply. Offshore Trading Co., 650 F. Supp. at 1491.
At the time this case was decided, the UCC allowed dishonor of a draft on a letter of credit when fraud in the transaction occurred:
“(1) An issuer must honor a draft or demand for payment which complies with the terms of the relevant credit regardless of whether the goods or documents conform to the underlying contract for sale or other contract between the customer and the beneficiary. . . .
“(2) Unless otherwise agreed when documents appear on their face to comply with the terms of a credit but . . . there is fraud in the transaction:
(b) ... an issuer acting in good faith may honor the draft or demand for payment despite notification from the customer of fraud, forgery or other defect not apparent on the face of the document but a court of appropriate jurisdiction may enjoin such honor.” (Emphasis added.) K.S.A. 1995 Supp. 84-5-114.
The trial court noted, and we agree, that the statute provides the Bank may honor the draft despite the existence of fraud. It seems perfectly obvious that the legislature, by use of the word “may,” also gave the Bank the option of “not” honoring a sight draft where there is fraud in the transaction. For that reason, we hold that under K.S.A. 1995 Supp. 84-5-114(2), a bank may dishonor a sight draft drawn on a letter of credit which appears to be valid on its face and is made in compliance with the terms of the letter of credit if it determines there was fraud in the transaction. 50 Am. Jur. 2d, Letters of Credit § 61 states in pertinent part:
“As a general rule, in commercial transactions, whether dishonor of a letter of credit by an issuing bank or an injunction barring the issuing bank from honoring the letter of credit will be justified depends on whether the fraud is of such a serious nature as to outweigh the public policy considerations in making an issuing bank’s obligation to pay upon demand under the letter of credit independent of the underlying transaction between the customer who has obtained the letter of credit and the beneficiary. Some of the courts which have considered the issue have described the type of fraud which will justify dishonor of a letter of credit ... as fraud so egregious as to vitiate the entire transaction.”
Under our statute, fraud in the transaction “must stem from the conduct of the beneficiary against the customer, not by the customer against the issuer of the letter of credit.” InterFirst Bank Greenspoint v. First Fed’l Savings & Loan Ass’n, 242 Kan. 181, 187, 747 P.2d 129 (1987).
“The purpose of a letter of credit is to allow the beneficiary to rely thereon, rather than solely upon the credit of the customer. The exception to the issuer’s duty to honor letters of credit has been narrowly construed by the courts. [Citations omitted.] Fraud in this connection is defined ... as of 'such an egregious nature as to vitiate the entire transaction.’ ” (Emphasis added.) 242 Kan. at 187.
See also Offshore Trading Co., 650 F. Supp. at 1491-92 (egregious fraud necessary for issuing bank to dishonor draft on letter of credit).
The facts show that when Universal Bonding attempted to draw $50,000 from the Bank on the letter of credit, it had no right to do so. The draw by Universal Bonding had nothing to do with Bauer Floor Covering, Inc., which was the customer of the Bank and was a party to the letter of credit. Universal Bonding was attempting to obtain funds under false pretenses, which we consider to be fraudulent. Accordingly, we hold that when Universal Bonding attempted to draw $50,000 from the Bank on the letter of credit, it committed fraud in the transaction which justifies the Bank’s refusal to honor the draft. There is nothing in the record to indicate that Universal Bonding had any right whatsoever to the funds under the letter of credit in question. Universal Bonding had paid no claims against the Bank’s customer, Bauer Floor Covering, Inc., for whose benefit the letter had been in position. The Bank be lieves, and there is evidence in the record from which it can be inferred, that Universal Bonding’s attempt to draw $50,000 from the Bank was related to Dwight Bauer Floor Company. That company had no connection to the letter of credit, and Universal Bonding had no right to draw from that line of credit for Dwight Bauer Floor Company.
We are not as kind as was the trial court in describing the actions of Universal Bonding. That company attempted to obtain $50,000 by, in effect, representing that the draft was based on a line of credit and was for the benefit of Bauer Floor Covering, Inc. The deceit of Universal Bonding in hiding the true facts from the Bank was fraud of “ ‘such an egregious nature as to vitiate the entire transaction.’ ” InterFirst Bank Greenspoint, 242 Kan. at 187.
We affirm the decision of the trial court. We hold the Bank had the right to dishonor the draft because of fraud in the transaction.
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Knudson, J.:
Russell N. Bird was sentenced by the Kingman County District Court to serve a controlling sentence of 1 year and 2 months in the county jail for various offenses. After Bird began serving the sentence, he was transported to the Haskell and Seward County jails for disposition of detainers. The issue on appeal is whether Bird should have been given credit on this sentence for the time he spent in the Haskell County jail (10 days) and in the Seward County jail (132 days). The district court refused to grant any credit. It is undisputed that Bird has fully served his sentence if the district court erred in its ruling. We reverse and remand with directions that Bird be released forthwith from custody because he has served the entire sentence.
We hold that a sentence imposed is not tolled while detainers from other counties are being honored.
The State contends that K.S.A. 21-4614 is applicable. We agree it is the key to reaching a proper decision, but it is not direcdy applicable to the Kingman County sentence. A proper construction of K.S.A. 21-4614 precludes Bird receiving credit for time spent in custody awaiting sentencing in either Haskell or Seward Counties because he was simultaneously serving his Kingman County sentence. See Campbell v. State, 223 Kan. 528, 575 P.2d 524 (1978). Conversely, a necessary corollary under the statute is that Bird is entitled to receive full credit upon his Kingman County sentence for time served after it was imposed, regardless of which sheriff thereafter had his physical custody. Any other construction would constitute a denial of Bird’s 14th Amendment rights of due process and equal protection under the law.
Reversed and remanded with directions that Bird be released from custody forthwith. | [
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Gernon, J.:
Stanley Lee Bissell was convicted by a jury of voluntary manslaughter and was sentenced to a term of 5 to 20 years’ imprisonment. In November 1995, Bissell filed a motion to have his sentence converted under the Kansas Sentencing . Guidelines Act (KSGA), K.S.A. 21-4701 et seq. The district court denied Bis-sell’s motion, and Bissell appeals.
On appeal, Bissell argues that the limited retroactivity provision of the KSGA violates his rights to equal protection of the law. This provision was upheld by the Kansas Supreme Court in Chiles v. State, 254 Kan. 888, 903, 869 P.2d 707, cert. denied 513 U.S. 850 (1994). Bissell acknowledges Chiles but raises an argument not specifically addressed in that case.
Bissell argues that because certain inmates not eligible for conversion under K.S.A. 21-4724(b) could and did get converted sentences under K.S.A. 1993 Supp. 22-3717(f), refusal to convert his sentence violates constitutional equal protection requirements.
K.S.A. 1993 Supp. 22-3717(f) was in effect between July 1,1993, and March 24,1994, and provided that “if an inmate was sentenced for a felony committed after July 1, 1993, while on parole or conditional release for a felony committed prior to July 1, 1993, the old sentences would be converted into a determinate sentence.” Payton v. State, 22 Kan. App. 2d 843, 845, 923 P.2d 1059 (1996). The length of the converted sentence depended on the class of the preguidelines felony. Effective March 24,1994, K.S.A. 1993 Supp. 22-3717(f) was amended so that preguidelines sentences would not be. converted. Payton, 22 Kan. App. 2d at 846.
In Chiles, the court held that the constitutionality of the KSGA must be reviewed under a rational basis standard. 254 Kan. at 899-900. Under that test, the statute must be upheld as long as the statutory classification bears some relevance to the purpose for which the classification was made. 254 Kan. at 900.
Although this court has not addressed the constitutionality of K.S.A. 1993 Supp. 22-3717(f), we did discuss its purpose in Payton. In that case, we noted:
“The underlying premise of the KSGA was to reduce the prison population while protecting public safety. Those inmates who were considered ‘less serious offenders’ were granted a conversion of their sentence under the KSGA. [Citation omitted.] Arguably, a somewhat similar rationale is used for inmates who are granted parole. In this case the parole board found there was a ‘reasonable probability ' that [Payton] is able and willing to fulfill the obligations of a law-abiding citizen’ and granted him parole. Therefore, inmates who are granted parole are those individuals considered less serious offenders or not a threat to public safety.” 22 Kan. App. 2d at 846-47.
Based upon our holding in Payton, there appears to be a rational relationship between the purposes of the KSGA and the legislature’s initial decision to allow otherwise ineligible inmates to have their preguidelines sentences converted if they had been released on parole. Because a rational relationship exists, Bissells equal protection challenge is rejected.
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Hampton, J.:
D.R.G., Jr., (D.G.) D.M.M.’s natural father, appeals the trial court’s adoption decree which granted the petition brought by E.K. and B.K. and declared them to be the adoptive parents of D.M.M. The decree of adoption included a finding that the natural mother had consented to the adoption and incorporated the court’s earlier order terminating D.G.’s parental rights pursuant to K.S.A. 59-2136(h)(4).
D.G. claims the trial court erred in terminating his parental rights. Specifically, he claims his constitutional right of due process was denied in that the court required him to provide support to the mother prior to the birth in order to preserve his parental rights even though paternity was in question. He argues 59-2136(h)(4) only applies if there is one individual putative father, not when paternity is uncertain. We disagree and affirm the trial court.
In the termination proceeding, D.G. admitted that fhe natural mother, S.M., had notified him when she first learned she was pregnant in the summer of 1995. However, he claimed she later informed him she was not pregnant and that, therefore, he was unaware of fhe pregnancy. S.M.’s testimony was that when D.G. first called her, she told him she was unsure whether she was pregnant but, upon taking a home pregnancy test, she called him in early August 1995 and notified him she was indeed pregnant and did not later inform him otherwise. Other witnesses testified that D.G. was aware of S.M.’s pregnancy prior to D.M.M.’s birth on March 17, 1996. D.G.’s version of the pregnancy notification and his alleged lack of knowledge exceeded the trial court’s credulity.
D.G. relied upon inherently contradictory assertions in the termination trial — his alleged lack of knowledge of fhe pregnancy and the fact another man was named as a potential father to D.M.M. — as “reasonable cause” for not providing support to the mother or the child before paternity was determined. A paternity test was performed, and D.G. was established as the biological father in August 1996. Nevertheless, D.G. only visited the child two times and provided no financial support for fhe mother or child prior to the trial in November 1996. The trial court thoroughly addressed the facts presented in relation to D.G.’s parental rights and, although D.G. did not raise them, considered his related constitutional rights. The child’s mother and the other putative father, D.D., consented to D.M.M.’s adoption.
D.G. contends fhe trial court denied him due process when it terminated his parental rights for failure to support the mother of his child for 6 months prior to the child’s birth.
“When a father or alleged father appears and asserts parental rights, the court shall determine parentage. . . . Thereafter, the court may order that parental rights be terminated, upon a finding by clear and convincing evidence, of any of the following:
“(1) The father abandoned or neglected the child after having knowledge of the child’s birth;
“(3) the father has made no reasonable efforts to support or communicate with the child after having knowledge of the child’s birth;
“(4) the father, after having knowledge of the pregnancy, failed without reasonable cause to provide support for the mother during the six months prior to the child’s birth;
“(5) the father abandoned the mother after having knowledge of the pregnancy.” K.S.A. 59-2136(h).
D.G. argues that since his case involves a fundamental constitutional right of a natural parent to the custody of his child, the appellate court should apply strict scrutiny in its review of the statute and should reverse the trial court’s decision which is based upon it. However, this court has examined the constitutionality of 59-2136(h) in a number of cases and, in each one, has found the statute does not violate the constitutional rights of a biological father.
In the case of In re Baby Boy N., 19 Kan. App. 2d 574, 874 P.2d 680, rev. denied 255 Kan. 1001, cert, denied 513 U.S. 1018 (1994), the facts were similar to those in the present case. The natural parents had never been married. The natural mother consented to the child’s adoption over the objections of the natural father, who knew of the mother’s pregnancy and provided her with no type of financial or other support for the 6 months prior to the birth of the child. After the father objected to the adoption, the trial court determined the father had failed to support the mother during the 6 months preceding the child’s birth and had abandoned her after learning she was pregnant. Consequently, the trial court terminated his rights pursuant to 59-2136(h).
This court, in Baby Boy N., analyzed 59-2136(h)(4) and (5) and held the statute was not unconstitutional, nor did it deny the father due process protection. The court stated the statute did not violate due process because it “provides the father with notice and an opportunity to be heard and appointed counsel to represent him if necessary. In addition, his consent will be required unless one of the seven situations in [the statute] is proven by clear and convincing evidence.” 19 Kan. App. 2d at 585. Since the statute requires the safeguard of a clear and convincing burden of proof before terminating a natural parent’s rights, “[i]n cases such as this, the rights of a natural parent are properly protected, and the parental preference’ doctrine is preempted.” 19 Kan. App. 2d at 585. Thus, the standard of review in the case at hand does not involve analyzing the constitutionality of K.S.A. 59-2136(h), and the usual standard of review in adoption cases applies.
“A trial court’s decision to terminate a natural father’s parental rights under K.S.A. 59-2136(h) will be upheld if it is supported by substantial competent evidence. An appellate court does not weigh the evidence or pass upon the credibility of witnesses and must review the evidence in the light most favorable to the party prevailing below.” In re K.D.O., 20 Kan. App. 2d 559, Syl. ¶ 1, 889 P.2d 1158 (1995).
The decision of the trial court to terminate D.G.’s parental rights was within that court’s discretion after weighing all the evidence. In determining whether the trial court abused its discretion, the test is “ 'whether no reasonable person would agree with the trial court. If any reasonable person would agree, appellate courts will not disturb the trial court’s decision.’ ” State v. Griffin, 246 Kan. 320, 326, 787 P.2d 701 (1990) (quoting Hoffman v. Haug, 242 Kan. 867, 873, 752 P.2d 124 [1988]). The evidence recited in the journal entry terminating D.G.’s parental rights satisfies the requisite standards, and this court will not disturb the trial court’s decision.
D.G. next claims that the trial court denied his due process rights when it terminated his parental rights for failure to support S.M. D.G. claims he had no reasonable opportunity to be heard or to provide support for the child 6 months prior to its birth because paternity was in doubt. D.G.’s assertion is simply untrue.
This court recently decided the issue of due process in termination of parental rights in In re Adoption of Baby Boy S., 22 Kan. App. 2d 119, 912 P.2d 761, rev. denied 260 Kan. 929, cert. denied 136 L. Ed. 2d 123 (1996), and affirmed the trial court’s termination of the father’s parental rights. The father of the child in Baby Boy S. also claimed the application of K.S.A. 59-2136(h) violated his due process rights by allowing the child’s adoption without his consent.
In Baby Boy S., the father, (V.A.), learned through an adoption agency that the mother intended to place their child for adoption. V.A. called the agency to convey his opposition to the adoption. V.A., however, did not tell the agency he was willing to support R.S. during her pregnancy and did not “ask for R.S.’s address, nor did he ask the agency to convey any message offering support. He did not contact R.S.’s family or any of her known friends to offer financial support or to express his opposition to the adoption.” 22 Kan. App. 2d at 122. The child was placed with adoptive parents immediately after birth, and V.A.’s parental rights were terminated for failing to support the mother without reasonable cause during the 6 months prior to the child’s birth. V.A. argued the application of the Kansas termination statute violated his due process rights. This court referred to its earlier decision in In re Baby Boy N. and affirmed the district court’s decision, stating:
“ ‘There is every reason for protecting the rights of a father to children, illegitimate or not, whom he has reared, loved, and supported. This is the true parental right which we protect, and it involves not only the individual rights of the father but the broader concept of family, which is also entitled to protection. By the same token, where the father’s “right” is purely biological and there has been no family formed, no bonding, no support, and no love, that right seems to be obviously less deserving of support. Those instances specified under K.S.A. 38-113a and K.S.A. 1993 Supp. 59-2136(h)(l)-(7) in which consent may be declared unnecessary are examples of situations in which the right of a natural father is little more than biological.’ ” 22 Kan. App. 2d at 126-27 (quoting In re Baby Boy N., 19 Kan. App. 2d at 583-84).
In its opinion, the court in Baby Boy S. used as a foundation stone a self-evident truth that it is not unreasonable to require substantial efforts by an unwed father to maintain contact with the mother and participate in the pregnancy and birth. The trial court in the present case echoed that language by stating in the November 22,1996, journal entry of judgment terminating parental rights:
“The fact that a man knows only that he was a possible father during the pregnancy does not relieve him from the responsibility to support the mother during the pregnancy. If he wishes to later assert parental rights, he must act during the pregnancy to protect those rights. To find otherwise would circumvent the purpose of the statute, to ensure support for the mother during the pregnancy, and render it meaningless.”
The trial court specifically negated the viability of D.G.’s paternity argument in its hearing on the motion to reconsider. In denying the motion, the court declared that D.G. could not
“just sit back and see what happens until some unknown point in time in the future and do nothing until someone else forces the issue. That’s essentially what happened here as I understand the evidence and I believe that the — as far as the actions that were taken, the procedures, the evidence, the efforts that were made to protect the rights of everyone, including the father, have been sufficiently met so that there’s not any denial of procedural due process and that the evidence providing the facts is sufficient to support the findings that the Court made earlier.”
The trial court explained further that not only did D.G. fail to support S.M. for 6 months prior to the birth as required under 59-2136(h)(4), but his consent to the adoption could also be deemed unnecessary under 59-2136(h)(l) (termination of parental rights if the “father abandoned or neglected the child after having knowledge of the child’s birth”). After the baby was bom, D.G. did nothing but visit two times. The trial judge ruled that even if D.G. had a valid due process argument, termination of his parental rights was still appropriate for failure “to make reasonable efforts to support or communicate with the child after having knowledge of the birth, and even after assurances of his status as the biological father, his rights were properly terminated in any event.”
D.G. further argues his loss of parental rights for failure to support S.M. 6 months before the child’s birth violated due process because the language of K.S.A. 59-2136 uses the singular noun “father.” Given the use of the singular form, he asserts the statute must contemplate only one father. D.G. contends that holding him to a strict standard of support denies him due process when the mother questioned whether he was actually the biological father and especially when the statute contemplates a father knowing he is the father.
The language of the statute does not envision that the male involved know he is undoubtedly the biological father. D.G.’s inter pretation of the statute would permit both D.G. and D.D. to avoid any supportive obligations for the mother during her pregnancy. As noted by the trial court, such an allowance would negate the legislative intent behind 59-2136 of providing “a measure by which to gauge a father s commitment to his child during pregnancy, a time when a mother’s obligations and responsibilities are clear and unavoidable. The statute sets up a balancing obligation of the father to the child and recognizes that those parental responsibilities arise prior to birth.”
Statutory construction also defeats D.G.’s singular language argument. Under K.S.A. 1996 Supp. 77-201 Third, words importing a singular number may be extended to several persons.
D.G. next contends that if he had paid support and it was later established that D.D. was the natural father, a hearing pursuant to In re Marriage of Ross, 245 Kan. 591, 783 P.2d 331 (1989), would have been required to allow him to stop paying support.
D.G.’s reliance on Ross is incorrect. In Ross, the court dealt with the paternity question in a very different context than D.G.’s situation. That case involved a “presumed” father who was married to the child’s mother when the child was bom but who was not the biological father of the subject child. The “presumed father” desired to continue a father-child relationship after he was divorced from the child’s mother. The relationship between the man and the child had developed over several years before paternity was determined.
The Ross hearing which D.G. refers to is held for the purpose of determining whether paternity testing is in the best interests of the child, not whether someone should continue to pay support after testing. Ross does not stand for the proposition that a non-biological father will be forced to pay child support until the child reaches the age of majority in the event a man offered support to the child’s mother during her pregnancy and it later turned out that he was not the biological parent.
Even though application of the reasoning in the present case could conceivably require numerous men to assume the responsibility of supporting a single pregnant woman in order to preserve parental rights for one of them, that is preferable to allowing the woman to be deprived of support during her pregnancy. Any man should be aware that he may become the father of a child as a result of having sexual intercourse with a woman, regardless of the number of sexual partners she has. If any of those partners wishes to preserve his parental rights in the event of a later adoption, each one will be required to initiate reasonable efforts toward supporting the mother prior to the child’s birth.
The trial court’s decision in this case was supported by substantial competent evidence, and this court will not disturb its ruling.
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Green, J.:
Dr. Eric A. Voth sued Larry D. Coleman, Mary C. Jackson, Rosie M. Quinn, Richard Carney, Hosea Ellis Sowell, and Dr. Arthur P. Taliaferro (defendants) for malicious prosecution. Coleman and Taliaferro moved to dismiss the action based on the applicable statute of limitations. In agreeing that the statute of limitations had run on Voth’s claim, the trial court dismissed the suit. On appeal, Voth contends that the trial court erred in determining that his claim was barred by the statute of limitations. We agree and reverse the judgment of the trial court.
The malicious prosecution action stemmed from Voth’s testimony before the Kansas Board of Healing Arts (Board) in 1988. At a hearing before the Board, Voth opined that because Taliaferro’s prescription practices were inappropriate, they presented an imminent danger to his patients. As a result, the Board limited Taliaferro’s privilege to prescribe certain drugs. Because of the Board’s action, Taliaferro sued Voth and various members of the Board in the United States District Court.
On August 20, 1992, the federal district court granted summary judgment in favor of Voth. Appealing that judgment, Taliaferro filed a notice of appeal to the Tenth Circuit Court of Appeals. When the Tenth Circuit denied Taliaferro’s appeal on April 20, 1994, Taliaferro moved for a rehearing. The Tenth Circuit denied that motion on May 24, 1994. On June 23, 1995, Voth sued the defendants for malicious prosecution.
Voth argues that because the trial court considered matters outside the pleadings, the motion to dismiss must be treated as one for summary judgment under K.S.A. 60-212(c). We agree. Our standard of review of a motion for summary judgment is clear. K.S.A. 60-256(c) provides that summary judgment shall be granted “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.” Moreover,
“[w]here the defendant pleads a statute of limitation and moves for summary-judgment and it appears that the action is barred by the appropriate statute of limitation and there is no genuine issue as to any material fact in connection with such statute, then the motion should be granted.” Hartman v. Stumbo, 195 Kan. 634, Syl. ¶ 2, 408 P.2d 693 (1965).
The question that we are asked to decide is when did Voth’s action for malicious prosecution accrue? The determination as to when a cause of action for malicious prosecution accrues raises a question of statutory interpretation over which this court has unlimited review. See State v. Donlay, 253 Kan. 132, Syl. ¶ 1, 853 P.2d 680 (1993).
To maintain an action for malicious prosecution of a civil action, the plaintiff must prove: (1) that defendant initiated, continued, or procured the proceeding of which complaint is made; (2) that defendant in doing so acted without probable cause; (3) that defendant acted with malice; (4) that the proceeding terminated in favor of the plaintiff• and (5) that plaintiff sustained damages. Lindenman v. Umscheid, 255 Kan. 610, 624, 875 P.2d 964 (1994); Nelson v. Miller, 227 Kan. 271, 276, 607 P.2d 438 (1980); Hutchinson Travel Agency, Inc. v. McGregor, 10 Kan. App. 2d 461, 463-64, 701 P.2d 977, rev. denied 238 Kan. 877 (1985); H & H Farms, Inc. v. Hazlett, 6 Kan. App. 2d 263, 269, 627 P.2d 1161 (1981) .
Voth agrees with the trial court’s conclusion that an action for malicious prosecution is subject to a 1-year statute of limitations under K.S.A. 60-514(b). Nevertheless, Voth contends that his cause of action for malicious prosecution did not accrue until August 22, 1994, the last day for Taliaferro to file a petition for a writ of certiorari with the United States Supreme Court. Under United States Supreme Court Rule 13.1, (28 U.S.C. App. 929 [1994]), a petition for writ of certiorari may be timely filed within 90 days following the entry of judgment “in any case, civil or criminal, entered by a state court of last resort or a United States court of appeals.” The August 22,1994, date would have been the 90th day following the Tenth Circuit’s denial of Taliaferro’s petition for rehearing.
In disagreeing with Voth’s contention that his action for malicious prosecution did not accrue until 90 days after the denial of Taliaferro’s motion for rehearing, the trial court stated:
“A discretionary appeal, however, is distinguishable from a counterclaim and from an appeal of right. More specifically, unlike an appeal of right, a discretionary appeal does not guarantee an appellant that his or her case will be accepted for review. Therefore, the fact that a great majority of discretionary appeals will not be accepted for review by a higher court indicates that the chances for inconsistent judgments from the courts are minimal. If, however, on the minuscule chance that a discretionary appeal is granted, the higher Court would simply stay the malicious prosecution action pending the outcome of the discretionary appeal.”
The trial court distinguished appeals of right from discretionaiy appeals to select the date on which an action for malicious prosecution would accrue. The trial court reasoned that because discretionary appeals were unlikely to succeed, an action for malicious prosecution accrued from the date of judgment in the appeal of right.
Nevertheless, finding that a plaintiff’s cause of action for malicious prosecution did not accrue until the time for appeal had expired in the initial suit, this court stated in H & H Farms, 6 Kan. App. 2d at 269:
“Kansas law is well settled that one of the crucial elements of an action for wrongful use of civil proceedings is that the prior civil proceeding must have terminated in favor of the person against whom the prior civil action was brought, and that the action cannot be brought if the original action is still pending and undetermined. See Nelson v. Miller, 227 Kan. at 280; Harper v. Cox, 113 Kan. 357, 214 Pac. 775 (1923). . . . Furthermore, a plaintiff’s cause of action for malicious prosecution does not accrue until the time for appeal has passed on the original action.” (Emphasis added.)
See also Lindenman, 255 Kan. at 624-25 (malicious prosecution action cannot be brought until the underlying action is concluded and the time for appeal of the underlying suit has passed); Hutchinson Travel Agency, 10 Kan. App. 2d at 463 (malicious prosecution action dismissed as premature because appeal time had not passed).
In explaining the reasoning behind the rule, the Hutchinson Travel Agency court stated:
“Favorable termination of the underlying civil proceedings is required to support a malicious prosecution claim for several reasons. First, a complaining party cannot show lack of probable cause in instituting the proceeding until it is finally terminated in his favor. [Citation omitted.] Additionally, a complaining party cannot show all damages from the institution of legal proceedings until they are terminated. And, finally, it is recognized that the requirement of final termination serves to help avoid inconsistent judgments from the courts. [Citation omitted.]” 10 Kan. App. 2d at 463.
Following the rationale of our precedents, we determine that Voth’s claim for malicious prosecution did not accrue until August 22, 1994. If Voth had filed his claim for malicious prosecution before that date and an appeal had been filed in the original action, Voth’s claim would have been premature. Because Voth’s action was filed less than 1 year after August 22, 1994, Voth’s action was timely.
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Gernon, J.:
This appeal centers on the interpretation of a teaching contract clause which allows higher pay for college hours earned subsequent to a bachelor’s degree.
John Schmidt appeals the granting of summary judgment to the Board of Education, U.S.D. No. 322 (Board).
The contract at issue is a provision of a master agreement which had been collectively negotiated between the Onaga Local Educators Association and the Board. The first page of each master agreement states: “As used in this Agreement the term ‘teacher’ shall mean and include all certified employees of the school district except administrators and substitute teachers.” The terms of the agreements further establish a salary schedule based on a bachelor’s degree, with increases in salary based upon the accumulation of additional college credit hours of education or advanced degrees. The agreements recite:
“Teachers shall be paid in accordance with the attached salary schedule. Hours shall mean semester hours earned by teachers subsequent to being awarded the BS, BA, or equivalent degree. Said hours shall also meet one of the following requirements:
a) Be in a subject matter required or eligible for credit for certification by the Kansas State Board of Education.
b) Be in the teacher’s area of certification.
c) Be creditbale [sic] for the next higher degree in the teacher’s area of certification.
d) Hours in other categories shall require approval by the superintendent based upon his/her subjective opinion as to whether such hours will be beneficial to the teacher involved in the area of approved instruction. Requests for approval shall be made by the teacher in a dated letter form stating intent for said study. Approval or disapproval shall be made by the superintendent in a dated formal letter.” (Emphasis added.)
The master agreements established a salary schedule that was based on a bachelor’s degree, but the salary was increased upon the accumulation of additional credit hours of education or advanced degrees.
Despite the contract provisions, the issues to resolve this appeal are driven by the facts specific to Schmidt.
In May 1984, Schmidt earned a Bachelor of Science (B.S.) degree in Exercise Science from Kansas State University. Later, in the spring semesters of 1985 and 1986, Schmidt earned an additional 54 hours of college credit that were necessary for him to obtain his Kansas teaching certificate. He subsequently received teaching certificates from the Kansas State Board of Education in the areas of physical education and social studies.
Schmidt obtained employment with U.S.D. No. 322 in Pottawatomie County, Kansas, for the school years 1991-92, 1992-93, 1993-94, and 1994-95. Schmidt executed an annual con tract with the Board for each of those school years which recited the salary he would receive for the respective school year.
Schmidt’s first teaching certificate was issued after the spring semester of 1986. Schmidt earned no hours; graduate or undergraduate, after the spring semester of 1986.
Schmidt initiated grievance procedures in 1994. The grievance procedures were followed, hearings were held, and Schmidt’s position was rejected. He filed suit 126 days after the final denial of his grievance by the Board, contending that his accumulated hours entitled him to be placed in a higher salary schedule. He now appeals the summary judgment ruling of the district court.
Jurisdiction
The Board contends that it was acting in a quasi-judicial manner when it rejected Schmidt’s claim.
The significance of the Board acting in a quasi-judicial manner would be that the decision concerning compensation would fall within the provisions of K.S.A. 60-2101(d). This statute would require Schmidt to file an appeal with the Board within 30 days of its final decision.
Case law suggests that whether a board is acting in a quasi-judicial capacity depends on the specific facts and nature of the dispute.
In Schulze v. Board of Education, 221 Kan. 351, 559 P.2d 367 (1977), our Supreme Court held that 60-2101(a) precluded Schulze’s injunction action concerning a letter of reprimand in his personnel file. Schulze, instead of appealing from the board’s action, had filed suit seeking an injunction and damages and other relief. The court held that under the facts before it and because of the nature of the action and the basis of the action (the reprimand), the board was exercising a judicial or quasi-judicial function. Therefore, Schulze had failed to comply with the statute, and his collateral, independent suit was not allowed.
Schmidt argues that other Kansas cases are closer to the case here and that these cases support his position.
Schmidt refers us to Boatright v. Board of Trustees of Butler County Junior College, 225 Kan. 327, 334, 590 P.2d 1032 (1979), in which the Supreme Court allowed an independent action for damages based on a claim of failure to renew an employment contract.
In our view, a closer case, serving as a model, is Speece v. U. S. D. No. 420, 6 Kan. App. 2d 71, 626 P.2d 1202, rev. denied 229 Kan. 671 (1981).
In Speece, Speece, an untenured teacher, appeared before the school board with his attorney seeking, in part, additional compensation for performing certain duties beyond those stated in his teaching contract for the 1976-77 school year and the reversal of its decision not to renew his employment contract. The board voted to concede to Speece’s requests if it was legally permissible. Three months later, at a regularly scheduled meeting, the board voted not to pay Speece for the extra duties based on its attorney’s advice that payment would violate the school district’s negotiated salary schedule. The board also voted that Speece did not have a contract with the district for the 1977-78 school year because it assumed that he did not accept its concession offer.
Speece then filed an action against the school board seeking additional compensation for performing the extra duties in the 1976-77 school year and for breach of an alleged contract for the subsequent school year: The trial court ruled that Speece’s only avenue of judicial redress was through filing an appeal under 60-2101(d) and dismissed the petition for lack of jurisdiction.
This court reversed, finding the board did .not act in a quasi-judicial manner in denying Speece’s claims. 6 Kan. App. 2d at 75. This court emphasized the presence of a formal hearing does not guarantee that the resulting decision is quasi-judicial, but the absence of a hearing strongly suggests that a quasi-judicial decision was not reached. 6 Kan. App. 2d at 73-74. We found a formal hearing was not even necessary because the school board was not terminating Speece’s contract but was assuring itself that it had not hired Speece as a teacher. 6 Kan. App. 2d at 75. This court further concluded that the board’s refusal to pay for the extra duties was similar to any public body’s denial of a contract claim, noting:
“ ‘A claim presented to the county commissioners is simply a claim presented to the county, and. a refusal by them to pay it is simply a refusal of the county to pay it. And where a county refuses to pay a claim against it there seems to be no good reason why it may not be sued as well as any other corporation, or as any individual, under like circumstances. It is true, that the county commissioners in some cases act in a kind of quasi judicial character, and when they do so act their determinations are final unless appealed from. But when they allow or disallow a claim against their county — against their principal — they do not act in a judicial capacity. They are not then a court, acting impartially between two contending parties, but they are simply the agents of one of the parties, and acting for such party.’ (Emphasis added.)” 6 Kan. App. 2d at 76 (quoting Comm’rs of Leavenworth Co. v. Brewer, 9 Kan. 307, 319 [1872]).
The record before us is void of information concerning the manner in which the hearing before the Board was conducted or the specific rulings which were made during the grievance procedure.
It is the nature of the act performed that determines whether the action is administrative or quasi-judicial, not whether it is a “formal” hearing. See Speece, 6 Kan. App. 2d at 73-74.
We conclude that the Board’s actions in the present case cannot be construed as quasi-judicial. In rejecting Schmidt’s claim for additional compensation, the Board was not acting as an impartial body, rendering a quasi-judicial decision between contending parties. Instead, the Board was simply acting as an agent on behalf of its principal, the school district, in disallowing the claim. See Speece, 6 Kan. App. 2d at 76; Concannon v. Board of Linn County Comm’rs, 6 Kan. App. 2d 20, 22-23, 626 P.2d 798, rev. denied 229 Kan. 669 (1981).
We find that Schmidt’s fihng in the district court was allowable, given the facts and the record before us.
Summary Judgment
Summary judgment is appropriate when “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. 60-256(c). An appellate court must read the record in the fight most favorable to the party opposing the motion, and where reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be de nied. Hurlbut v. Conoco, Inc., 253 Kan. 515, 520, 856 P.2d 1313 (1993).
Resolving this appeal requires an interpretation of the employment contracts entered into between the parties. Because the contracts are written agreements, this court may construe the documents and determine their legal effect. Spivey v. Safeco Ins. Co., 254 Kan. 237, 240, 865 P.2d 182 (1993). While reviewing the instruments, this court is not bound by the trial court’s interpretation. 254 Kan. at 240.
The fundamental principle in the interpretation of a contract is to determine the intention of the parties and to give effect to that intention if it is consistent with tire law. Garvey Center, Inc. v. Food Specialties, Inc., 214 Kan. 224, 229, 519 P.2d 646 (1974). Each annual contract Schmidt executed was based upon a master agreement which had been collectively negotiated between the Onaga Local Educators Association and the Board. The master employment agreements were incorporated into each of Schmidt’s annual contracts and concern the same subject matter. Thus, the master agreements and the annual contracts should be construed together to determine the intent of the parties. See Hollenbeck v. Household Bank, 250 Kan. 747, 752, 829 P.2d 903 (1992) (“Documents which are executed at different times, but in the course of the same transaction concerning the same subject matter, will be construed together to determine the intent of the parties to the contract.”).
We conclude that the trial judge was correct to focus on the wording and meaning in the agreements relating to the term “teachers.”
The master agreements were collective bargaining agreements between the Board and the Onaga Local Educators Association. The agreements unambiguously state that a teacher, as used in the agreements, shall be a certified employee of the school district, except administrators and substitute teachers. This language specifies the individuals who have rights and obligations under the agreement. Here, Schmidt was neither a certified teacher nor an employee of the school district when he earned additional college hours after his bachelor’s degree.
The agreements reveal an intent by the Board and the Onaga Local Educators Association to reward those certified teachers of the district who obtain further college credit beyond the basic certification requirements. Schmidt could not qualify for advanced salary placement because he was not a “teacher,” as that term is used'in the agreement, when he earned the extra college hours at issue. Consequently, the district court did not err in granting summary judgment in favor of the Board.
To hold otherwise would reward a person for wandering aimlessly through the academic forest, accumulating many hours, and then taking the required courses to become certified as a teacher. This teacher could then, in theory, attempt to contract with a school district at the top of the pay scale. This cannot be regarded as a reasonable outcome or interpretation of the contract before us. In addition, there may be public policy issues raised by potentially paying a totally inexperienced teacher a much higher starting salary than someone who had much more experience, was tenured, and yet had fewer “hours” of college. To find for Schmidt here would invite a disruption in the budgetary process for school districts and have great potential to damage teacher morale.
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Lewis, J.:
Appellant appeals from the refusal of the trial court to convert his indeterminate sentence to one under the Kansas Sentencing Guidelines Act (KSGA).
We affirm.
In case No. 92-CR-1446, appellant was convicted of three felonies, all of which were committed prior to July 1, 1993. He was given a suspended sentence from diese convictions and was released on terms consistent with probation.
In 1994, appellant was again convicted of several felonies in case No. 94-CR-434. After these convictions, the trial court revoked appellant’s suspended sentence status in 92-CR-1446 and imposed the original indeterminate sentence in that case.
Appellant filed the current motion wherein he contends that when his probation was revoked, his sentence in 92-CR-1446 should have been converted to a 12-month sentence under the KSGA.
Appellant’s argument is based upon a definition of the term “conditional release.” Appellant argues that the probation he was placed on in 1992 is the same thing which is referred to as “conditional release” under the KSGA. We do not agree.
Appellant bases his argument on the provisions of K.S.A. 1993 Supp. 22-3717(f), which read as follows:
“If an inmate is sentenced to prison for a crime committed after July 1, 1993, while on parole or conditional release for a crime committed prior to July 1,1993, the old sentence shall be converted into a determinate sentence and will run consecutive to the new sentence as follows:
(1) Twelve months for class C, D or E felonies or the conditional release date whichever is shorter;
(2) 36 months for class A or B felonies or the conditional release date whichever is shorter.”
In this case, appellant was not on parole or conditional release when sentenced for the 1994 crimes. Despite that fact, he argues we should equate his status on suspended sentence probation with that of an individual on conditional release. If we were to do so, he would have brought himself within the statute quoted above and would be entitled to have his 1992 sentences converted to a 12-month sentence under K.S.A. 1993 Supp. 22-3717(f).
We conclude there is no merit to defendant’s argument. K.S.A. 22-3718 specifically defines conditional release as follows:
“An inmate who has served the inmate’s maximum term or terms, less such work and good behavior credits as have been earned, shall, upon release, be subject to such written rules and conditions as the Kansas parole board may impose, until the expiration of the maximum term or terms for which the inmate was sentenced or until the inmate is otherwise discharged.”
The Kansas Supreme Court in State v. Arculeo, 261 Kan. 286, 933 P.2d 122 (1997), reversed the Court of Appeals’ decision that would have supported appellant’s argument in this case. In that decision, the Supreme Court held:
“Expansion of the term conditional release as used in K.S.A. 21-4603d to include an offender who commits a new felony while released on bond pending sentence for a previous felony conviction is inconsistent with the statutory scheme of K.S.A. 21-4603d and contrary to the definition of conditional release in K.S.A. 22-3718.” 261 Kan. 286, Syl. ¶ 3.
The court defined conditional release as it is set out in K.S.A. 22-3718, holding:
“ ‘Conditional release’ applies to an inmate who has served the inmate’s maximum term or terms, less such work and good behavior credits as have been earned, and who shall, upon release, be subject to such written rules and conditions as the Kansas Parole Board may impose, until the expiration of the maximum term or terms for which the inmate was sentenced or until the inmate is otherwise discharged. K.S.A. 22-3718.” 261 Kan. 286, Syl. ¶ 2.
The court stated: “[I]t is difficult to conclude that the legislature intended conditional release in K.S.A. 21-4603d to mean something different than its definition contained in K.S.A. 22-3718.” 261 Kan. at 291.
We hold that being on suspended sentence probation is not the equivalent of being on conditional release. Conditional release can only occur after an individual has been incarcerated, has served his or her time, and has been released from incarceration. Appellant was on probation under a suspended sentence. He had not served any time in incarceration, and he was not on conditional release.
In addition, in 1994, K.S.A. 1993 Supp. 22-3717(f) was amended and the term probation was added to the statute. It.now reads as appellant would have us believe it should have been construed to read in 1992. The change in the language of or addition of the word to a statute generally indicates that the legislature intended to change the statute by that action. ‘When the legislature revises an existing law, it is presumed that the legislature intended to change the law as it existed prior to the amendment.” State v. Clint L., 262 Kan. 174, Syl. ¶ 2, 936 P.2d 235 (1997). Accordingly, we conclude that probation of any kind was not included in the statute prior to its amendment.
We hold that the trial court correctly held that conditional release as defined in K.S.A. 1993 Supp. 22-3717(f) did not include being on probation from a suspended sentence and that it did not err in denying the motion for conversion.
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Elliott, J.:
B.A.M. appeals his juvenile offender adjudication, arguing the evidence was insufficient because the State did not obtain a specific in-court identification of him.
We affirm.
B.A.M. was charged with possession of drug paraphernalia. The State called only one witness, the police officer who issued the citation. The trial court held an in-court identification of B.A.M. was not necessary because identification could be inferred from the evidence presented. Specifically, the trial court found that during the police stop, B.A.M. identified himself as B.A.M., and the officer spent 45 minutes confirming his name, address, driver’s license number, and physical description.
This appeal presents a question of first impression in Kansas. Other courts have, essentially, uniformly held that a courtroom identification is not necessary when the evidence sufficiently permits the inference that the defendant on trial is the defendant who committed the crime charged. See, e.g., United States v. Morrow, 925 F.2d 779, 781 (4th Cir. 1991); United States v. Doherty, 867 F.2d 47, 67 (1st Cir. 1989); United States v. Hoelscher, 764 F.2d 491, 496 (8th Cir. 1985); United States v. Fern, 696 F.2d 1269, 1276 (11th Cir. 1983); State v. Lingar, 726 S.W.2d 728, 732-33 (Mo. App.), cert. denied 484 U.S. 872 (1987).
In reaching our decision, we rely heavily on United States v. Fenster, 449 F. Supp. 435 (E.D. Mich. 1978), which analyzes this issue in some detail. Following that analysis, the Fenster court found the objection to a lack of a specific in-court identification was “highly technical” and ruled the reasonable inferences drawn from the evidence permitted a finding beyond a reasonable doubt regarding the defendant’s identity. 449 F. Supp. at 440-42.
In short, we find no impressive case law which requires an in-court identification, at least where the evidence supports an inference of sufficient identification.
B.A.M. also argues there was not sufficient evidence, absent an explicit in-court identification, to infer his identity. .
The burden of proof in juvenile offender cases, of course, is the same as the burden in criminal cases — proof beyond a reasonable doubt. In re T.K., 11 Kan. App. 2d 632, 637, 731 P.2d 887 (1987). Accordingly, B.A.M.’s identity must be proven beyond a reasonable doubt.
Officer Melody Rayl testified that when stopped, B.A.M. identified himself as B.A.M.; he gave the officer his address and license number because he did not have the license with him. Officer Rayl then spent 45 minutes with police computer files confirming B.A.M.’s identity — confirming his name and address and confirming that the physical description from the computer matched the physical description she observed of B.A.M.
In this state, a conviction can be sustained solely on circumstantial evidence. State v. Graham, 247 Kan. 388, 398, 799 P.2d 1003 (1990). Clearly, B.A.M.’s identity could be inferred from the circumstantial evidence presented, absent the explicit in-court identification.
We recognize that trial courts in this state have long “required” an in-court identification. We also recognize that the law schools of this state have long taught students to ask the initial question concerning an in-court identification of a defendant. By our decision today, we do not want anyone to believe we are mandating the trial courts and law schools of this state to lessen their diligence. Here, the State’s “mistake” is covered by the testimony of Officer Rayl.
On the other hand, we must also observe that the “law is the only profession which records its mistakes carefully, exactly as they occurred, and yet does not identify them as mistakes.” Brown, Legal Autopsy, 39 J. Am. Judicature Soc’y 47 (1954).
The State’s “mistake” has not gone unnoticed.
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Pierron, J.:
General Surgery, P.A., appeals from summary judgment granted in a breach of a restrictive covenant of employment action.
General Surgery is a professional corporation conducting a general surgical practice in Lawrence. On November 29, 1992, Kim Suppes, M.D., entered into a contract to practice as a surgeon for General Surgery. The contract permitted termination without cause on 30 days’ written notice by either party. The contract also restricted the geographic area where Dr. Suppes could practice if she should cease employment. General Surgery terminated Dr. Suppes’ employment without cause on January 31,1995. The record is unclear what the circumstances of Dr. Suppes’ termination were. The parties do not appear to dispute, however, that General Surgery was the party ending the employment relationship. Dr. Suppes subsequently carried out a limited medical practice in Lawrence.
General Surgery sued Dr. Suppes for breach of the employment contract. The trial court denied General Surgery’s motion for summary judgment and then granted Dr. Suppes’ motion for summary judgment. The trial court held that the written contract and the uncontroverted facts failed to support finding a breach by Dr. Suppes.
Interpreting written documents is a matter of law, and the standard of review on appeal is unlimited. Kansas Gas & Electric Co. v. Will Investments, Inc., 261 Kan. 125, Syl. ¶ 1, 928 P.2d 73 (1996). The question on appeal is whether the written agreement between General Surgery and Dr. Suppes prevented her from practicing in Lawrence after General Surgery terminated the employment relationship.
The Employment Contract contained the following provision:
“19. RESTRICTIVE COVENANT. The Doctor agrees that should she cease employment with the Corporation, then she will not engage in the practice of medicine within twenty-five (25) miles of the city limits of the City of Lawrence, Kansas (the Corporation’s place of business) for a period of two (2) years from the date she ceases such employment. The parties further agree that since it would be difficult to ascertain the amount of the Corporation’s damages in the event of a breach, the parties hereby contract that in the event of such a breach, the Doctor shall pay to the Corporation a sum of money equal to one (1) year’s salary with the Corporation (this shall be one full year’s salary, but in the event that the Doctor shall not have worked a full year, it shall be the salary for the number of months worked plus the number of additional months needed to make a full year times the Doctor’s last month’s salary), minus the deductions taken from the Doctor’s salary for federal and state withholding tax and federal social security tax. The parties agree that such a payment if made, shall not be a penalty but shall be the liquidated damages for the breach herein, contractually determined.”
As a transitive verb, cease means “to bring an activity or action to an end: discontinue.” Webster’s Ninth New Collegiate Dictionary 218 (1989). The trial court gave the word a precise meaning based on the subject “she” and the direct object “employment.” The syntax indicates the verb is being used transitively, with Dr. Suppes as the only subject. The noncompetition clause therefore would operate only in the event that Dr. Suppes were the agent bringing about the end of employment. Applying the Webster’s definition, the contract would read: “The doctor agrees that should she bring her employment to an end.” The trial court reasoned that this situation is different from “should either party cease employment” or “should her employment cease.” This may be a narrower interpretation than the parties intended, but the intent expressed in the written agreement, not the actual intent, controls. See Boos v. National Fed’n of State High School Ass’ns, 20 Kan. App. 2d 517, 525, 889 P.2d 797 (1995).
We note this is a logical interpretation. It provides that if Dr. Suppes ends the relationship, she may not continue to practice in the area. If she does not end the relationship, she is not compelled to practice elsewhere.
A narrow reading of the syntax is appropriate in this case. “[N]oncompetition covenants included in employment contracts are strictly construed against the employer. [Citations omitted.]” Weber v. Tillman, 259 Kan. 457, 462, 913 P.2d 84 (1996).
General Surgery contends Weber controls the present case. In Weber, a restrictive covenant was upheld against a physician who left an employment relationship with another physician. That covenant read: “ While you are an employee, and for a period of two (2) years after your employment ends (for any reason), you will not render any medical services . . . within a thirty (30) mile radius ... of the practice.’ ” 259 Kan. at 459.
Although the language in the two covenants is similar, the differences are critical. The Weber covenant clearly applied neutrally to any end of employment, without regard to who initiated the termination, while the covenant in the present case appears to apply only when the employee terminates the employment relationship.
The parties offer conflicting parol evidence on the extent of Dr. Suppes’ practice in Lawrence and the legitimacy of the business interests involved. It is not necessary to address these issues, because we find no breach.
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Lewis, J.:
Defendant Gale W. Billington pled nolo contendere to two counts of burglary, two counts of theft, and one count of forgery. This plea was made as a result of an agreement in which the State agreed to recommend concurring sentences and further agreed to recommend that defendant be placed on probation through community corrections. The State stood by its representations but, at sentencing, the trial court refused to impose the sentences recommended by the parties and, instead, imposed an upward dispositional departure. Defendant appeals from the sentences imposed.
Defendant first argues that the trial court failed to give him proper notice of its intent to depart. We disagree.
Defendant’s plea came more than 2 years after the crimes had been committed. The record shows that after defendant was arrested, he was put on house arrest in a halfway house. Defendant then absconded from the halfway house and disappeared. His appearance bond was forfeited, and a warrant was issued for his arrest. Defendant was gone from the jurisdiction from August 1994 to October 1996.
At the time of sentencing, the trial court gave notice of its intent to depart and said: “I’ll give everyone notice of intention to depart, for reason being [defendant] being an absconder for over two years, reset the matter to give [defense counsel] an opportunity to respond. Oh, let’s see, looks like the 13th would be two weeks. Is that enough time?” Defense counsel responded, ‘Tes, Your Honor.”
The trial court held a hearing at the time of sentencing, and defendant was given ample opportunity to present reasons why the trial court should not depart as it had advised the parties. The trial judge, however, said: “I find [defendant’s] behavior shows that he’s not amenable to probation. His being gone for two years is a substantial fact and I find it to be [a] compelling reason for departure.”
Defendant argues that the trial court’s notice was insufficient because it did not state specifically whether a durational or dis-positional departure would be given. Defendant relies on K.S.A. 21-4718(b), which provides:
“If the court decides to depart on its own volition, without a motion from the state or the defendant, the court must notify all parties of its intent and allow reasonable time for either party to respond if they request. The notice shall state the type of departure intended hy the court and the reasons and factors relied upon.” (Emphasis added.)
The emphasized sentence in the statute was not in K.S.A. 1993 Supp. 21-4718(b), which was in effect when defendant committed his crimes. The statute at that time did not require the trial court to state thé type of departure intended and the reasons and factors relied upon. The question we must determine is whether the amended statute applies or whether the statute that was in effect at the time the crimes were committed is controlling.
The answer to our question depends upon whether we considered the amendment to the statute to have been procedural or substantive.
“The fundamental rule is that a statute operates prospectively unless its language clearly indicates that the legislature intended it to operate retroactively. [Citation omitted.] An exception to the fundamental rule is that if the statutory change does not prejudicially affect the substantive rights of the parties and is merely procedural or remedial in nature, it applies retroactively. [Citation omitted.] Thus, the issue becomes whether the statute is substantive criminal law, which either defines a crime or involves the length or type of punishment.” State v. Sutherland, 248 Kan. 96, 106, 804 P.2d 970 (1991).
In State v. Sylva, 248 Kan. 118, 119, 804 P.2d 967 (1991), the Supreme Court stated: “ ‘As related to criminal law and procedure, substantive law is that which declares what acts are crimes and prescribes the punishment therefor; whereas procedural law is that which provides or regulates the steps by which one who violates a criminal statute is punished.’ ”
We conclude that the sentence added to 21-4718(b) after 1993 was procedural in nature and should have been applied retroactively. The trial court did not strictly comply with the statute because it did not state the type of departure it intended to impose nor did it adequately explain the factors on which a departure would be based.
While we believe the trial court may have erred on a technical requirement, we conclude that the error was not reversible under the facts shown.
The notice and factors relied upon for a departure sentence need not be perfect but must give adequate notice. State v. Alderson, 260 Kan. 445, 466, 922 P.2d 435 (1996).
Approximately 2 weeks prior to sentencing, the trial court advised defendant and his attorney that it was going to depart and that the reason it was going to depart was that defendant had absconded for over 2 years. The trial court specifically asked defense counsel if 2 weeks would be enough time to prepare a response, and counsel answered yes. Under the circumstances, we are at a loss to imagine how a notice could have been any more specific. The presumptive sentence in this case was probation. The trial court intended to order incarceration and so advised defendant. The reasons for the departure were also clearly stated, and defendant knew he had absconded for 2 years and should have known that he was probably going to be punished as a result. We believe that defendant had to have understood that the departure would be based on his recent 2-year absence from the jurisdiction. We also note that he was given a full 2 weeks to prepare his response.
Further, defendant failed to preserve this issue for appeal. Defendant did not object to the notice at the trial level. In State v. Tumble, 21 Kan. App. 2d 32, 37-38, 894 P.2d 920 (1995), we held that no reversible error results when notice of intention to depart may not have been given in advance but where the defendant made no objection to the notice at the time of sentencing. In reliance on Trimble, we hold that where a defendant fails to object to the notice of departure at the time of sentencing, any issue relative to the departure is not preserved for appeal.
We also note that defendant failed to make a proffer to the court of the evidence he would have presented to refute the departure factors. In State v. Gideon, 257 Kan. 591, 621, 894 P.2d 850 (1995), the Supreme Court held that in order for a defendant to successfully assert error based on the trial court’s failure to give notice of the factors it intended to rely on for departure, “[t]he defendant must make some proffer of the evidence he would present (or the argument he would make) to refute the factor before this court will find reversible error.” Defendant made no such proffer.
Finally, we conclude that even assuming the trial court’s notice of departure may have been lacking and may have been in error, the error was harmless and not reversible.
Defendant next argues that the factors relied upon by the trial court were not substantial and compelling. We disagree.
Our standard of review on departure sentences is well settled:
“In any appeal from a judgment of conviction imposing a sentence that departs from the presumptive sentence prescribed by the sentencing grid for a crime, sentence review shall be limited to whether the sentencing court’s findings of fact and reasons justifying a departure are supported by evidence in the record and constitute substantial and compelling reasons for departure. K.S.A. 21-4721(d).” State v. Mitchell, 262 Kan. 434, Syl. ¶ 10, 939 P.2d 879 (1997).
“A claim that the departure factors relied upon by the court are not substantial and compelling presents a question of law. [Citation omitted.] The term ‘substantial’ means something that is real, not imagined, something with substance and not ephemeral. The term ‘compelling’ implies that a court is forced, by the facts of a case, to leave the status quo or go beyond what is ordinary. [Citation omitted.] ‘Substantial evidence is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion.’ [Citation omitted.]
“The court’s comments at the time of sentencing govern as to the reasons for departure. [Citation omitted.]” 262 Kan. at 446.
In this case, the trial court announced that it was imposing a dispositional departure because of defendant’s behavior of absconding for over 2 years while this case was pending. In addition, the trial court inferred that the absconding defendant was not amenable to probation.
We agree with the trial court. In Mitchell, 262 Kan. at 447, the court found the defendant’s attitude towards his parole, the defendant’s commission of crimes while on parole, and the defendant being an absconder on two occasions were substantial and compelling reasons for departure.
We hold that when a defendant is placed on bond or some other form of pretrial release and subsequently absconds or escapes from his pretrial release and fails to appear for trial on the date sched uled, this fact may be used by a trial court as a substantial and compelling reason for departure.
Finally, defendant argues that the trial court erred by failing to consider placing him in the Labette Correctional Conservation Camp.
K.S.A. 1996 Supp. 21-4603d provides, in relevant part:
“Prior to imposing a dispositional departure for a defendant whose offense is classified in the presumptive nonprison grid block of either sentencing guideline grid, . . . the court shall consider placement of the defendant in the Labette correctional conservation camp. Pursuant to this paragraph the defendant shall not be sentenced to imprisonment if space is available in the conservation camp and the defendant meets all of the conservation camp’s placement criteria unless the court states on the record the reasons for not placing the defendant in the conservation camp.” (Emphasis added.)
There is no question that the trial court did not comply with the statute quoted above.
Again, the issue is whether the statute is procedural or substantive. This statute was amended after defendant committed his crime to insert the language on the Labette Correctional Conservation Camp. We hold that the amendment to the statute is procedural in nature and has retroactive application. We note that the amendment requiring the trial court to consider the Labette Correctional Conservation Camp on the record does not set out a new crime or punishment; it merely requires the trial court to follow a certain procedure in sentencing and to make certain findings before ruling out the Labette Correctional Conservation Camp. We conclude that defendant’s point on this issue is well taken.
In State v. Williams, 24 Kan. App. 2d 447, Syl., 946 P.2d 98 (1997), this court said:
“Under K.S.A. 1996 Supp. 21-4603d(a)(10), a trial court is required, prior to the revocation of a nonprison sanction of a defendant whose offense is classified in the presumptive nonprison grid block of either sentencing guidelines grid, to consider placement of the defendant in the Labette Correctional Conservation Camp in the manner provided in the statute. A failure to do so will result in a reversal of the revocation and a remand for a new hearing." (Emphasis added.)
In this case, we conclude that the trial court was required to consider the Labette Correctional Conservation Camp, and it failed to do so. As we said in Williams, that failure by the trial court requires us to vacate the sentences imposed on defendant and remand the matter for a new hearing at which the trial court shall consider the Labette Correctional Conservation Camp in the manner provided in the statute.
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Brazil, C.J.:
Franklin A. Taylor pled guilty to indecent liberties with a child in three separate cases arising in three different counties. The cases all involved the same child victim. He appeals the district court’s denial of his motion for jail time credit in one of those counties. We affirm.
Harvey County
On January 10,1994, the State charged Taylor in Harvey County case No. 94 CR 6222. On June 13, 1995, Taylor pled guilty, and on August 8, 1995, the court imposed a 3- to 10-year sentence. The court ordered the sentence to begin on August 8, 1995, and granted Taylor 187 days of jail time credit.
Reno County
The State charged Taylor in Reno County case No. 93 CR 535. The trial docket shows Taylor first appeared on August 1, 1994, and the court set bond at $10,000. It is unclear if Taylor was released on bond. The trial docket indicates that Taylor was arraigned on October 3, 1994, and that he was in jail on that date. On July 15, 1995, Taylor pled guilty, and on August 18, 1995, the court sentenced him to 3 to 10 years’ incarceration, to run concurrent with the Harvey County sentence.
Sedgwick County
The State charged Taylor on March 28, 1994, in Sedgwick County case No. 94 CR 517. On December 6, 1994, a hold was placed on Taylor, who was incarcerated in either Reno or Harvey County. Taylor first appeared before the court on July 31, 1995, when he pled guilty. On September 5, 1995, the court imposed a 3- to 10-year sentence, to begin the same day. The court ran the sentence concurrent with Taylor’s other sentences.
In January 1996, Taylor filed a motion seeking jail time credit against his Sedgwick County sentence. The court denied the motion, noting that when the Sedgwick County case began, Taylor was already in custody in the Reno and Harvey County cases. The court stated:
“Now then, the next issue is whether I actually have jurisdiction to authorize that eight-month or six-to-eight-month credit on a case that the defendant was being held, even though this action had not started and the defendant had not appeared on this case. It is the Court’s opinion that, even if I were so inclined, and I’m not, I would not legally have a right to give him credit for that six-to-eight-month period because he was not being held for — or during the pendency of this case. He was being held for the Reno County and Harvey County action, and so I don’t even have power, in my opinion, to retroactively give him credit.”
The court also noted that it had given Taylor “a break” at sentencing by deciding not to run his sentences consecutively.
Taylor contends that he is entitled to credit from August 1,1994, when he claims he was first incarcerated, until September 5,1995, the date he was sentenced in Sedgwick County. The record does not indicate whether Taylor was incarcerated on August 1, 1994; the Reno County trial docket indicates that he was in jail as of October 3, 1994. In the alternative, Taylor seeks credit from December 6,1994, the date the Sedgwick County hold was placed on him.
' In Kansas, the right to jail time credit is statutory. State v. Fowler, 238 Kan. 326, 336, 710 P.2d 1268 (1985). K.S.A. 21-4614 provides that sentence starting dates shall be computed to allow credit for “the time which the defendant has spent incarcerated pending the disposition of the defendant’s case.” In Campbell v. State, 223 Kan. 528, 530-31, 575 P.2d 524 (1978), our Supreme Court held that a defendant is entitled to jail time credit only for time held in custody solely on account of those charges for which he is now being sentenced. See State v. Calderon, 233 Kan. 87, 97-98, 661 P.2d 781 (1983).
Here, Taylor was held in the Reno and Harvey County jails because of charges in Reno, Harvey, and Sedgwick County. Taylor was not incarcerated solely on account of the Sedgwick County charges. Therefore, he is not entitled to credit against his Sedgwick County sentence. See State v. Calderon, 233 Kan. at 97-98.
Taylor cites the following statement from Campbell: “A defendant is not entitled to credit on a sentence for time which he has spent in jail upon other, distinct, and wholly unrelated charges.” (Emphasis added.) Campbell v. State, 223 Kan. 528, Syl. ¶ 2. Taylor reasons that the charges in the three counties are related because each of the cases involves the same victim and the same charge of indecent liberties with a child. Taylor argues that because the charges are related, he should receive credit against his Sedgwick County sentence even though he was incarcerated in Reno and Harvey County on account of all three charges.
Campbell v. State involved drug charges in one county and burglary and theft charges in another county. Despite the quoted statement from the syllabus, the opinion does not address the degree of relation between the charges, or whether a defendant must receive jail time credit on related charges. See 223 Kan. at 528-31.
In State v. Calderon, the defendant was charged in Riley County with kidnapping and in Pottawatomie County with aggravated sodomy. The defendant was held in Riley County on the kidnapping charge while the aggravated sodomy charge from Pottawatomie County was pending. The charges were related in that they stemmed from the same sequence of events involving the abduction of a young boy. 233 Kan. at 88. Nevertheless, the court refused to allow jail time credit against the Pottawatomie County sentence for the time the defendant was incarcerated in Riley County, reasoning that the defendant was not held in Riley County solely as a result of the aggravated sodomy charge filed in Pottawatomie County. 233 Kan. at 98.
Although Calderon did not directly address the issue, the court’s decision indicates that the factual relationship between charges filed in separate counties is not relevant to determining whether a defendant should receive jail time credit against a particular sentence. Rather, the appropriate inquiry is the test utilized in both Campbell and Calderon: whether the defendant was incarcerated solely on account of a particular charge. If so, then the defendant is entitled to jail time credit against tie sentence for that charge. See Campbell v. State, 223 Kan. at 530-31; K.S.A. 21-4614. If not, then the defendant should receive credit only against the sentence for charges filed in the county in which he or she is held. See generally State v. Jenkins, 10 Kan. App. 2d 8, 10, 690 P.2d 396 (1984) (holding that jail time credit is mandatory and a defendant must receive credit for all time spent in custody on the charges for which he or she is sentenced).
Although Taylor is not entitled to credit against his Sedgwick County sentence, he is clearly entitled to credit against his Reno and Harvey County sentences for the time he was incarcerated in the Reno and Harvey County jails. See K.S.A. 21-4614. Unfortunately, the record does not indicate how long Taylor spent in either Reno or Harvey County. Taylor received 187 days’ credit against his Harvey County sentence, but he claims that he did not receive any credit against his Reno County sentence. Whether Taylor received jail time credit in his Reno County case is unclear. The appellate record contains only the journal entry from Reno County case no. 93 CR 555; Taylor did not request any other documents from that case. The journal entry does not mention jail time credit, or even give a sentence starting date. As a result, we cannot determine if Taylor received jail time credit against his Reno County sentence. In any event, whether Taylor is entitled to jail time credit against his Reno County, sentence is a matter to be determined in the Reno County case.
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Hill, J.:
Donnie Ray Lockhart appeals his convictions for one count of possession of cocaine with intent to sell, contrary to K. S .A. 1993 Supp. 65-4127a; one count of possession of drugs without a drug tax stamp, contrary to K.S.A. 1993 Supp. 79-5204; one count of obstruction of official duty, contrary to K.S.A. 1993 Supp. 21-3808(b); one count of driving while not having his headlamps on, in violation of K.S.A. 8-1703; and one count of failing to give a turn signal, in violation of K.S.A. 8-1548. Lockhart was convicted of all counts and was sentenced to a controlling sentence of 34 months in prison. He makes this timely appeal.
The facts of the case should be noted. Two Topeka police officers noticed a car driving the wrong way on a one-way street, at night, without its headlamps on. The car stopped at a residence, and the driver left the vehicle, entered the residence for a few minutes, returned to the vehicle, and continued to drive the wrong way up the one-way street. The officers pursued the vehicle, activating their emergency lights, two take-down fights, and a spotlight. The vehicle failed to stop but continued at a slow pace as it turned the comer onto a more heavily traveled street.
The spotlight illuminated the interior of the vehicle, which allowed the officers to observe that there were two individuals in the car. The driver was later identified as Donnie Ray Lockhart. The police officers activated their siren and followed the car. The vehicle swerved slightly to the right, and the officers saw Lockhart look and reach down toward the center portion of the seat and raise his hand to his mouth. After that, the officers observed the passenger reach through the open window and pour out a liquid from a bottle wrapped in a paper bag. The officers anticipated that Lockhart was going to leave the moving car when the speed of the car suddenly slowed and the driver’s door opened. Lockhart exited the vehicle and began to run. The police officers stopped their police car, and one officer pursued Lockhart on foot onto the grounds of the Kansas Law Center in Topeka. The other officer pursued the passenger. In the fights surrounding the Kansas Law Center, the officer saw Lockhart reach toward his mouth and then fling an object toward the bushes. The officer did not stop his pursuit but made a mental note of the site so he could return to look for any evidence.
Lockhart continued to ran around the comer of the building, and the officer eventually found him crouching between the build ing and a fence. The police officer drew his weapon and ordered Lockhart to lie on the ground. Lockhart called the officer by name and stated to him, “[T]he only reason why I ran is because I have warrants.” Lockhart was placed under arrest, and the officer escorted him to the Law Center parking lot while he waited for his partner to return after unsuccessfully attempting to apprehend the passenger.
The police officer secured Lockhart in the back seat of the patrol car and returned to the areas of the bushes where he had seen Lockhart throw something. The officers eventually found on top of the bushes a ripped, wet, plastic bag containing what they suspected to be six plastic-wrapped rocks of cocaine, along with three individual plastic-wrapped rocks that appeared to have spilled from the ripped bag. The officer believed from the appearance of the bag and his observation of Lockhart’s hand-to-mouth movements that Lockhart had carried the bag between his teeth as he fled.
Due to the wet condition of the bag, the officers did not remove the suspected cocaine from the plastic bags. They weighed it at the police department, and it weighed 2.4 grams, along with the plastic bags. The cocaine was later weighed at the Kansas Bureau of Investigation Crime Lab, where it weighed 0.96 grams. According to the KBI report, each of the nine rocks of cocaine weighed just over or just under 0.1 grams. A warrant check revealed that Lockhart had no outstanding warrants at the time of his arrest.
A reading of the transcript of the trial reveals that the trial was hard fought and contentious. During his initial closing comments, the prosecutor referred to the defendant as a liar and drug dealer. He advised the jury that Lockhart had had 1 year and 2 months to think about the defense he was going to raise and what fies he could perpetrate. He commented in his argument that the defense counsel had attempted to penetrate the facts with “fog, smoke, or mirrors.” He asked the jury to put itself in the place of a drug dealer to determine the credibility of Lockhart’s statements. All of these comments were made without objection.
The transcript of the prosecutor’s concluding remarks also reveals the following:
“MR. RUES: I’ll tell you what a rare moment is, ladies and gentlemen, defense counsel wants you to think that an officer lied. You think that’s a rare moment. I’ll tell you what isn’t a rare moment, for defense counsel to he for the defendant up here. To start—
“MR. ROSEL: Judge, I will object. I will object—
“THE COURT: Sustained.
“MR. ROSEL: And ask that that be stricken, and I would move for a mistrial based upon counsel’s implication that defense counsel has lied before this jury. Move for a mistrial immediately.
“MR. RUES: That was not the implication—
“MR. ROSEL: Move for a mistrial.
“THE COURT: No, I’ll sustain the objection and take the motion under advisement—
“MR. ROSEL: And ask that that be stricken and that that not be considered—
“THE COURT: I’m sorry, you don’t need to interrupt. I was making my ruling. I will strike it, but I will take the motion under consideration. You may continue, Mr. Rues.
“MR. ROSEL: Judge, I would ask that you admonish Mr. Rues to not make comments about what he believes defense counsel has done or what the truth of defense counsel’s comments are.
“THE COURT: Mr. Rues, you may continue.
“MR. RUES: Thank you, Your Honor. The defendant has lied. He said he’s not any drug dealer. Defense counsel got up here and told you what the defendant did. Well, he lied, ladies and gentlemen. The defendant lied. He’s a drug dealer. That’s not a rarity. That’s what took place.”
Lockhart raises six issues on appeal. We deal with his first and third issues. He first contends that he was denied a fair trial because the prosecutor suggested that defense counsel lied on behalf of his client. In his third issue, he argues that there was insufficient evidence, as a matter of law, to sustain the conviction for possession of cocaine without a tax stamp.
CLOSING ARGUMENT
An error of constitutional magnitude is serious and may not be held to be harmless unless the appellate court is willing to declare a belief that it was harmless beyond a reasonable doubt. Before an appellate court can declare the error harmless, it must be able to declare beyond a reasonable doubt that the error had little, if any, likelihood of changing the result of the trial. State v. White, 246 Kan. 28, 37, 785 P.2d 950, aff’d as modified 246 Kan. 393, 789 P.2d 1175 (1990).
“ “When determining whether prosecutorial misconduct was prejudicial, factors that should be considered include: (1) Is the misconduct so gross and flagrant as to deny the accused a fair trial? (2) Do the remarks show ill will on the prosecutor’s part? (3) Is the evidence against the defendant of such a direct and overwhelming nature that the misconduct would likely have little weight in the minds of the jurors? [Citation omitted.]’ ” State v. Marble, 21 Kan. App. 2d 509, 515, 901 P.2d 521, rev. denied 258 Kan. 861 (1995) (citing State v. Perrigo, 10 Kan. App. 2d 651, 654, 708 P.2d 987 [1985]).
We view the prosecutor’s comments referring to the defendant and the defense counsel as liars to be serious breaches of the standard of fair comment permitted to lawyers when making closing arguments. We believe that the prosecutor’s gross and flagrant comments in this case rise to the level of a constitutional error. Trials cannot be allowed to degenerate into name-calling contests. Juries must be given an opportunity to exercise reason and sound judgment in deciding the facts of a case, free from passion and prejudice.
Furthermore, we believe a fair reading of the transcript reveals nothing but ill will on the part of the prosecutor. Even after the court sustained the defense counsel’s objection, the prosecutor again called the defendant and the defense counsel liars when he said: “The defendant has lied. He said he’s not any drug dealer. Defense counsel got up here and told you what the defendant did. Well, he lied, ladies and gentlemen. The defendant lied. He’s a drug dealer.” These statements can only be deemed an appeal to passion and prejudice.
We are not convinced that the statements made by the prosecutor would have little weight in the minds of the jury in trying to decide whether Lockhart was guilty of possession of cocaine with the intent to sell the same. Lockhart denied possessing the cocaine as well as having any intent to sell any cocaine. The jury had to weigh the testimony of the police officer’s observations of Lock-hart’s hand-to-mouth movements and his flinging of the baggie into the bushes during the foot pursuit against Lockhart’s denials and his statement that he was running because he thought there were some outstanding arrest warrants for him. Lockhart’s credibility was an issue in this trial. The prosecutor’s statements would likely have great weight in the minds of the jury in this case. We cannot conclude beyond a reasonable doubt that the prosecutor s comments, calling the defendant and his counsel Mars, had no effect upon the jury’s verdict.
It is the duty of the prosecutor in a criminal matter to see that the State’s case is properly presented with earnestness and vigor, and to use every legitimate means to bring about a just conviction, but the prosecutor should always bear in mind that he or she is an officer of the court and, as such, occupies a quasi-judicial position whose sanctions and traditions he or she should preserve. State v. Wilson, 188 Kan. 67, 73, 360 P.2d 1092 (1961).
A prosecutor is under a duty to ensure that only competent evidence is submitted to the juiy. Above all, the prosecutor must guard against anything that could prejudice the minds of the jurors and hinder them from considering only the evidence adduced. State v. Ruff, 252 Kan. 625, 636, 847 P.2d 1258 (1993). When a prosecutor’s statement transcends the limits of fair discussion of the evidence and the trial judge fails to instruct the jury to disregard the remark after the defense counsel objects, a new trial is required to assure the constitutional right to a fair trial. 252 Kan. at 636. In this case, the trial court simply sustained the objection and agreed to “strike” the comments but did not explain what that meant. The trial court neither instructed the jury to disregard the flagrant comments made by the prosecutor, nor reiterated to the jury that the statements of counsel were not evidence.
We conclude that Lockhart did not receive a fair trial because of the improper remarks of the prosecutor in his closing argument. We reverse and remand for a new trial.
DRUG TAX STAMP
Turning to Lockhart’s third point on appeal, we must determine, as a matter of law, whether there was sufficient evidence to sustain his conviction for possession of cocaine without a tax stamp.
When the sufficiency of the evidence is challenged, the standard of review is whether, after a review of all the evidence, viewed in the light most favorable to the prosecution, an appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Claiborne, 262 Kan. 416, 425, 940 P.2d 27 (1997).
K.S.A. 1993 Supp. 79-5204(c) provides that drug dealers must pay drug taxes and affix tax stamps on their drugs. A “drug dealer” is defined as
“any person who, in violation of Kansas law, manufactures, produces, ships, transports or imports 'into Kansas or in any manner acquires or possesses more than 28 grams of marijuana, or more than one gram of any controlled substance, or 10 or more dosage units of any controlled substance which is not sold by weight.” (Emphasis added.) K.S.A. 1993 Supp. 79-5201.
K.S.A. 1993 Supp. 79-5202(b) provides:
“For the purpose of calculating the tax hereunder, . . . [the] controlled substance is measured by the weight of the substance in the dealer’s possession. The weight of the . . . controlled substance includes all material, mixture or preparation that is added to the . . . controlled substance.
In this case, the jury was instructed that it could find Lockhart guilty of a drug tax stamp violation if it found that he possessed “more than one gram” of cocaine without an affixed Kansas drug tax stamp or other label showing the tax had been paid. The only competent evidence produced from the trial was from the KBI laboratory, which indicated that Lockhart had in his possession 0.96 grams of cocaine. As a matter of law, we find that the weight of the cocaine is not sufficient to sustain his conviction for not having a drug tax stamp affixed thereon. In order to sustain a conviction for possessing a controlled substance that is sold by weight, without a tax stamp, the accused must have more than 1 gram of a controlled substance in his or her possession. See K.S.A. 1993 Supp. 79-5201(c).
In light of our rulings, we need not address the other issues raised by Lockhart in his appeal.
Reversed and remanded with instructions. | [
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Green, J.:
This is an appeal by the State from the trial court’s judgment dispensing with an adjudication hearing. On appeal, the State contends that the trial court was required to conduct an adjudication hearing before returning the child to the custody of his parents. We agree and reverse.
K.W. was bom in January 1996. K.W.’s parents took him to the hospital on March 24, 1996, because he had been vomiting all day and had become limp and unresponsive. J.W., K.W.’s natural father, admitted shaking K.W. when he was unresponsive to try and “arouse him.” K.W.’s doctor stated that K.W. had sustained an inflicted brain injury consistent with shaken baby syndrome and would likely survive, but in a vegetative state.
The State filed a child in need of care (CINC) petition on April 10, 1996. The trial court granted an ex parte order for protective custody the same day and placed K.W. in the protective custody of the Secretary of the Department of Social and Rehabilitation Services (SRS). On April 12, 1996, the trial court granted SRS temporary custody.
On May 22, 1996, the trial court learned that criminal charges had been filed against J.W. for causing his son’s injuries and, consequently, prohibited J.W. from visiting K.W. J.W.’s preliminary examination in the criminal case was held in July 1996. Because the trial court determined that the evidence was insufficient to bind
J.W. over as the person responsible for causing the injury to K.W., the trial court dismissed the criminal charge against him.
Although the State requested an adjudication hearing for K.W., the trial court never conducted a hearing. In September 1996, the trial court returned custody of K.W. to his parents. In so doing, the trial judge referred to the expert testimony that he had heard at J.W.’s preliminary hearing. The trial court further pointed out that no new criminal charges were pending against J.W. and that K.W. was the responsibility of his parents.
K.W. died on August 17, 1997. After K.W.’s death, J.W. moved to dismiss this appeal for mootness. Although the subject of this appeal has died, we must determine whether the trial court failed to follow correct statutory procedures under the Kansas Code for Care of Children (KCCC) when a CINC petition has been filed. If the trial court erred in failing to conduct an adjudication hearing, this appeal is not moot, because such an error is capable of being repeated. See Board of Johnson County Comm’rs v. Duffy, 259 Kan. 500, 504, 912 P.2d 716 (1996).
This issue requires the court to interpret the KCCC statute. Therefore, our standard of review is de novo, not abuse of discretion as suggested by both the State and J.W. “Interpretation of a statute is a question of law. An appellate court’s review of a question of law is unlimited.” State v. Arculeo, 261 Kan. 286, Syl. ¶ 1, 933 P.2d 122 (1997). Also, under the rules of appellate statutory construction, “several provisions of an act, in pari materia, must be construed together with a view of reconciling and bringing them into workable harmony and giving effect to the entire act if it is reasonably possible to do so. [Citation omitted.]” State v. Le, 260 Kan. 845, 847-48, 926 P.2d 638 (1996).
The ultimate question presented in this tragic case is whether the KCCC, when read as a whole, demands an adjudication hearing by a trial court before returning the child to the natural parents when an interested party has filed a CINC petition. It is unnecessary to try and decipher the purpose behind the KCCC. Its purpose is clearly stated in K.S.A. 38-1521:
“It is the policy of this state to provide for the protection of children who have been subject to physical, mental or emotional abuse or neglect or sexual abuse by encouraging the reporting of suspected child abuse and neglect, insuring the thorough and prompt investigation of these reports and providing preventative and rehabilitative services when appropriate to abused or neglected children and their families so that, if possible, the families can remain together without further threat to the children.”
The KCCC aims to protect children to such an extent that K.S.A. 38-1522(f) makes it a class B misdemeanor for many individuals in positions dealing with children to willingly and knowingly fail to report a suspected case of child abuse.
K.S.A. 38-1501 states that the provisions of the statute
“shall be liberally construed, to the end that each child within its provisions shall receive the care, custody, guidance, control and discipline, preferably in the child’s own home, as will best serve the child’s welfare and the best interests of the state. All proceedings, orders, judgments and decrees shall be deemed to have been taken and done in the exercise of the parental power of the state. Proceedings pursuant to this code shall be civil in nature.”
Given this background, the KCCC provides specific details regarding the duties of those involved in potential CINC cases. K.S.A 38-1510 mandates that
“[i]t shall be the duty of the county or district attorney to prepare and file the petition alleging a child to be a child in need of care and to appear at the hearing on the petition and to present evidence that will aid the court in making an appropriate adjudication at the conclusion of the hearing.”
Thus, K.S.A. 38-1510 contemplates not only that an adjudication hearing will be held, but that the district attorney actively participate in helping the court make a decision before or during the adjudication hearing. Under K.S.A 38-1556,
“[i]f the court finds that the child is not a child in need of care, the court shall enter an order dismissing the proceedings.
“If the court finds that the child is a child in need of care, the court shall enter an order adjudicating the child to be a child in need of care and may proceed to enter orders of disposition as authorized by this code.”
When these sections of the KCCC are read together, it is obvious that by giving the district attorney the duty to present evidence regarding whether the child is in need of care, the statute makes no sense unless the court holds an adjudication hearing. It is certainly reasonable that the provisions of the KCCC discussed earlier must be construed together with the aim of bringing them into workable harmony and fulfilling the purposes of the entire act. If the KCCC were read any other way, such that an adjudication hearing or stipulation is unnecessary, it would undermine the entire framework of the statute and prevent the State from carrying out one of the main purposes of the statute — to protect children who have been abused or who could potentially be abused.
In summary, the framework of the KCCC requires that before returning custody of the child to the parents, the trial court must first determine whether the child is indeed a child in need of care. The trial court ignored the statutory mandates of the KCCC when it returned custody of K.W. to the natural parents without first conducting a CINC adjudication hearing. Although the trial court has the authority under K.S.A. 38-1544(a) to enter an order for continuance and informal supervision without an adjudication if no interested party objects, the State lodged an objection to this procedure at the September 25 hearing. As a result, the trial court erred in not conducting an adjudication hearing.
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|
Knudson, J.:
Inman Standifer appeals from the district court’s denial of his motion to convert sentence ostensibly filed pursuant to K.S.A. 21-4724(d)(l). The district court summarily dismissed Standifer’s motion for lack of jurisdiction because it was not filed within 30 days after issuance of a sentencing guidelines report from the Department of Corrections (DOC).
The district court erred. A panel of this court recently held that a pro se motion for conversion of sentence filed out of time under K.S.A. 21-4724(d)(l) should be considered by the district court as a motion filed under K.S.A. 60-1507. State v. Harlin, 23 Kan. App. 2d 800, 801-02, 936 P.2d 292 (1997). Starting from this premise, we turn to the underlying circumstances of this litigation before deciding what relief, if any, should be afforded Standifer.
On April 17, 1993, Standifer committed several crimes, including possession of cocaine, a class C felony (K.S.A. 65-4127a). On October 21, 1993, he was sentenced to a controlling term of 3 to 10 years and placed on probation for 2 years. As required under K.S.A. 21-4724(f), the district court also determined die appropriate guidelines sentence would be 18 months, with a postrelease supervision period of 12 months. This guidelines sentence was based upon Standifer falling within the 4E grid block for drug offenses.
On March 4, 1994, Standifer’s probation was revoked. Inexplicably, DOC tiien prepared a sentencing guidelines report notwithstanding the district court had already determined the appropriate guidelines sentence when Standifer was originally sentenced. Under such circumstances, he was not entitled to the conversion procedures provided under K.S.A. 21-4724(c) and (d). See State v. Fierro, 257 Kan. 639, 649-50, 895 P.2d 186 (1995). This strongly suggests that if Standifer were challenging the computation of his guidelines sentence, a timely and direct appeal from the sentencing hearing of October 21, 1993, would be required. But the issue Standifer now raises has nothing to do with the computation of sentence.
Standifer contends that he is being subjected to an illegal sentence because the prospective imposition of the 1996 amendments to the Kansas Sentencing Guidelines Act (KSGA) violates the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution and § 1 of the Kansas Constitution Bill of Rights. An illegal sentence may be corrected at any time. See K.S.A. 22-3504(1); State v. Hooks, 256 Kan. 869, 870, 888 P.2d 853 (1995). Our appellate courts have previously accepted jurisdiction of mislabeled motions in the interest of judicial economy and, where only a pure question of law is at issue, resolved the issue without remand to the district court. State v. Randall, 257 Kan. 482, 486, 894 P.2d 196 (1995). See also State v. Bell, 258 Kan. 123, 126, 899 P.2d 1000 (1995) (holding that pure legal questions raised for the first time on appeal may be addressed to serve the ends of justice and to prevent denial of fundamental rights). We conclude Standifer s mislabeled motion should be treated as a K.S.A. 60-1507 motion and his equal protection argument considered by this court notwithstanding his failure to argue this issue before the district court.
The 1996 amendments to K.S.A. 21-4705(d) changed certain presumptive imprisonment boxes to “border boxes,” thus making defendants who fall into one of those boxes and who commit crimes on or after July 1,1996, eligible for an optional nonprison sentence. The 4E box on the drug grid is one of the new border boxes. Standifer argues that under an equal protection analysis the amendments should be given retroactive application. Standifer assumes that, if the amendments are given retroactive application, equal protection would likewise entitle him to conversion under K.S.A. 21-4724(b)(l) simply by virtue of being in a border box, despite the fact that K.S.A. 21-4724(b) was not amended to expand eligibility for conversion on the drug grid. We need not address this assumption, because we conclude that equal protection does not entitle Standifer to retroactive application of the 1996 drug grid amendments.
In State v. Ford, 262 Kan. 206, 209, 936 P.2d 255 (1997), the Supreme Court concluded the 1996 amendments were intended to only apply prospectively. A panel of this court reached the same conclusion in Comer v. State, 24 Kan. App. 2d 131, 134, 942 P.2d 658 (1997). However, in these decisions the underlying issue was one of statutoiy interpretation or construction. Neither case addressed the equal protection argument that is now before this court.
The Supreme Court in Chiles v. State, 254 Kan. 888, 901, 869 P.2d 707, cert. denied 513 U.S. 850 (1994), did address the issue of whether the provision of the KSGA which allowed limited retroactivity violated equal protection. The court first determined the appropriate level of scrutiny to be the rational basis test and then stated:
“With a rational basis review, relevance is the only relationship required between the classification and the objective. The constitutional safeguard is offended only if the classification rests on grounds wholly irrelevant to the achievement of the State’s objective. Insofar as the objective is concerned, a statutory discrimination will not be set aside if any set of facts reasonably may be conceived to justify it. The legislature’s purpose in creating the classification need not be established. The classification must, however, bear a rational relationship to a legitimate objective. The rational basis test contains two substantive limitations on legislative choice: (1) legislative enactments must implicate legitimate goals, and (2) the means chosen by the legislature must bear a rational relationship to those goals. These limitations amount to a prescription that all persons similarly situated should be treated alike.” 254 Kan. at 895.
The Chiles court held that “[t]he 'more serious v. less serious offenses’ classification involved in this case, for purposes of determining who will receive the benefits of retroactivity and who will not, is rationally related to the purpose of reducing fhe prison population while protecting public safety” and was, therefore, not violative of equal protection. 254 Kan. at 901.
In State v. Fierro, 257 Kan. 639, the Supreme Court considered whether K.S.A. 1993 Supp. 21-4724 was unconstitutional because it did not expressly provide a means of obtaining sentencing conversion for defendants who committed their crimes prior to July 1, 1993, but were sentenced after June 30, 1993. Fierro argued that a classification to determine sentencing conversion based solely upon the date of sentence would violate equal protection. The Supreme Court agreed and construed K.S.A. 1993 Supp. 21-4724 as providing convicted defendants sentenced after July 1, 1993, the same opportunity for retroactivity as offenders already serving their sentences. 257 Kan. at 647.
Standifer’s argument now before us is distinguishable from the issue presented in Fierro because the suspect classification is based upon the date the offense was committed, not.the date of sentence.
It is the general rule that the statutory penalty in effect at the time a crime is committed is the penalty that will be imposed, State v. Patterson, 257 Kan. 824, 825, 896 P.2d 1056 (1995), and “where the penalty for an offense has been changed by an amendment of the law since the offense is charged or proved to have been committed, the penalty imposed must be under the law as it stood when the offense was committed.” State v. Johnson, 185 Kan. 1, 5, 340 P.2d 373 (1959). However, it is within the province of the legislature to reduce criminal penalties and provide for retroactive application, constrained only by the Constitutions of the United States and of the State of Kansas. Chiles, 254 Kan. at 897.
Standifer does not argue his sentence was inconsistent with the sentencing scheme in place at the time he committed the offense or was sentenced. He tacitly acknowledges the sentence he received was consistent with the sentence that could have been lawfully imposed upon any other defendant committing a like crime at that same point in time. Under these circumstances and the holding in Patterson, Standifer’s claim is tenuous. We note that he has not cited authority from any jurisdiction holding that a legislative reduction of criminal penalties has equal protection implications for offenders previously sentenced. This lack of authority, notwithstanding the constant revisions of criminal codes by the legislatures of 50 states, is mute testimony as to the novelty of his argument. Moreover, other jurisdictions that have considered this issue have concluded there is no violation of equal protection.
In People v. Montoya, 647 P.2d 1203, 1205 (Colo. 1982), the defendant claimed that the prospective-only limitation of a sentencing statute constituted an unreasonable classification of offenders on the basis of the date of the offense in violation of equal protection. The Colorado Supreme Court applied the “rational basis” test and, in rejecting the defendant’s claim, stated:
“The state has a legitimate interest in maintaining finality of judgments as well as in providing for uniformity of punishment. Consequently, the fixing of punishments for offenders based upon the date on which their crimes were committed is reasonably related to these legitimate governmental interests and is not violative of equal protection of the laws.” 647 P.2d at 1206.
In Meeks v. Jago, 548 F.2d 134, 138 (6th Cir. 1976), cert. denied 434 U.S. 844 (1977), the Court held that the defendant was not denied equal protection of the laws as long as the sentence was imposed according to the Ohio statute applicable at the time of sentence.
In McQueary v. Blodgett, 924 F.2d 829, 831 (9th Cir. 1991), the petitioner, McQueary, had been convicted of first-degree assault in August 1976. In his petition for a writ of habeas corpus, he asserted an equal protection violation because of the State’s failure to reduce his sentence to a term consistent with the Washington Sentencing Reform Act of 1981. The 9th Circuit held that Mc-Queary failed to present a bona fide equal protection claim, stating:
“ ‘There is no denial of equal protection in having persons sentenced under one system for crimes committed before July 1, 1984 and another class of prisoners sentenced under a different system. [Citation omitted.] The standard is of a rational relation to governmental purpose. [Citation omitted.] Improvement in sentencing is a rational governmental purpose.’ [Citation omitted.]” 924 F.2d at 834.
We believe there is a common thread of reasoning in these various decisions. The State has an interest in maintaining stability in the sentencing process and a concomitant obligation to improve the criminal justice system. The rule that the criminal statute in effect at the time the crime was committed is the penalty to be imposed serves these legitimate governmental interests and does not violate the Equal Protection Clause of the Fourteenth Amendment or § 1 of the Kansas Constitution Bill of Rights.
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Elliott, J.:
The State brings this.interlocutory appeal challenging the trial court’s suppression of evidence obtained during a checklane stop conducted by the highway patrol.
We reverse and remand.
Sergeant Ray Bailiff had been involved with conducting and arranging checldanes for several years and was the supervising officer of a checHane located at northbound exit 210 on 1-35 in Johnson County. Bailiff prepared a public announcement describing the location, time, and purpose of the checHane and sent it to Troop A communications, where the media is advised of upcoming events if inquiry is made. Notice was also posted on the public information board in the main lobby of the highway patrol office in Olathe.
The public announcement described the checHane’s purpose as one for checking driver’s licenses, registrations, equipment defects, and seat belt and child restraint usage. Bailiff testified the primaiy purpose of the checHane was to enforce all laws coming to the officers’ attention. Drug dogs were on site.
Northbound motorists on 1-35 were advised of the checHane by five signs stating either “check lane ahead” or “narcotics check lane ahead.” Four of the signs were placed on either side of the roadway. The fourth sign was placed before the “Exit 210” sign, but beyond where cars would turn off to exit on exit 210. None of the first four signs gave any indication the checHane was on the exit ramp. The fifth sign was on the exit itself as motorists were approaching the checHane.
None of the 17 officers at the scene was given any discretion: every car was directed through the lane. The average car took about 25 seconds to complete the check. The range of time for motorist delay without any enforcement action was from 10 to 35 seconds.
Defendant Joseph Jackson drove a pickup truck with camper shell through the lane. Major Hombaker saw a large bag of marijuana through the back window while the truck was stopped. Defendant and his passenger were arrested.
The trial court ruled the checHane did not pass the criteria established by State v. Deskins, 234 Kan. 529, 673 P.2d 1174 (1983), because there was no prior notice to the public and because the notice provided to oncoming motorists by the signs was misleading.
Under the peculiar facts of this case, we rule the checHane was constitutional as a matter of law.
The Deskins court noted that not every DUI checklane is constitutionally forbidden. 234 Kan. at 540. The Deskins court also enumerated several factors to be considered in determining the validity of a checklane:
“(1) The degree of discretion, if any, left to the officer in the field; (2) the location designated for the roadblock; (3) the time and duration of the roadblock; (4) standards set by superior officers; (5) advance notice to the public at large; (6) advance warning to the individual approaching motorist; (7) maintenance of safety conditions; (8) degree of fear or anxiety generated by the mode of operation; (9) average length of time each motorist is detained; (10) physical factors surrounding the location, type and method'of operation; (11) the availability of less intrusive methods for combating the problem; (12) the degree of effectiveness of the procedure; and (13) any other relevant circumstances which might bear upon the test.” Deskins, 234 Kan. at 541.
Numerous other cases are also instructive. Davis v. Kansas Dept. of Revenue, 252 Kan. 224, 227, 843 P.2d 260 (1992), for example, makes clear that no specific statutory grant of authority is required to legitimize a checklane operation (for sobriety checks). 252 Kan. at 229-30.
In State v. Barker 252 Kan. 949, 850 P.2d 885 (1993), there was no advance warning to the public at large of the scheduled check-lane. And while the court noted it would be a desirable requirement, its absence does not by itself invalidate the checklane. 252 Kan. at 956. The Barker court also observed that the presence of a drug-sniffing dog at a sobriety checklane did not constitute an illegal search. See 252 Kan. at 957.
State v. MacDonald, 253 Kan. 320, 322, 856 P.2d 116 (1993), involved the same checklane as in Barker. The MacDonald court held the detection of marijuana odor, standing alone, provided probable cause for a search following a checklane stop. 253 Kan. 320, Syl. ¶ 2. In the present case, a large bag of marijuana was observed in plain sight in Jackson’s truck. The sense of sight is surely on equal footing with the sense of smell.
The MacDonald court also noted that Deskins is not limited to DUI checldanes and that police officers are not required to close their eyes to all offenses which are not purely traffic related. 253 Kan. at 323-24.
If the odor of marijuana can provide a legal basis for a search, then the sight of marijuana at a checldane can also provide probable cause for a search. See MacDonald, 253 Kan. at 325.
Kansas is not alone in its approach to similar fact patterns. The Seventh Circuit has recognized that the absence of any signs advising approaching motorists of a checldane does not destroy the constitutional nature in which the checldane was administered. U.S. v. Trevino, 60 F.3d 333, 337 (7th Cir. 1995).
The Supreme Court of Missouri has found similarly. In State v. Damask, 936 S.W.2d 565 (Mo. 1996), as here, law enforcement officers established a checldane on an exit lane off of 1-44, contrary to signs that indicated the checldane was at an exit further down the interstate. The exit was remote and it was unlikely that motorists would exit there, unless they were locals or were trying to avoid the checklane. See 936 S.W.2d at 573.
As the cases cited demonstrate, the checklane in the present case was established with safety in mind, limited discretion in the officers on site, and met the standards established by case law. The State is under no obligation to give drivers an opportunity to avoid a checklane. See Michigan Dep’t of State Police v. Sitz, 496 U.S. 444, 110 L. Ed. 2d 412, 110 S. Ct. 2481 (1990).
In the present case, the checklane was constitutional as a matter of law.
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Rulon, J.:
Defendant Lewis Jones, Jr., appeals the district court’s denial of his motion for sentence conversion and resentencing. We affirm.
A detailed discussion of the underlying facts is not required here because the issues raised are not fact driven.
RETROACTIVITY OF KSGA
The defendant argues the retroactivity provision of the Kansas Sentencing Guidelines Act (KSGA) at K.S.A. 21-4724 violates various provisions of the United States Constitution. Whether K.S.A. 21-4724 violates the constitutional rights of the defendant is a question of statutory interpretation. A trial court’s interpretation of a statute is a question of law, and this court’s scope of review is unlimited. State v. Colston, 20 Kan. App. 2d 107, 110, 883 P.2d 1231 (1994).
EX POST FACTO
The defendant’s sentencing guidelines report scores defendant’s crime severity level as a 3 on the nondrug grid for purposes of conversion eligibility. Persons serving sentences for severity level 3 crimes on the nondrug grid are ineligible for conversion. The KSGA is partially retroactive, but its provisions can never lengthen a defendant’s sentence or enhance punishment. As such, the KSGA is not an ex post facto law in violation of the United States Constitution. See Colston, 20 Kan. App. 2d at 113-14.
The defendant’s claim is meritless. Anyone convicted of kidnapping is ineligible for sentence conversion under K.S.A. 21-4724(b) due to the severity level of the crime. More importantly, the fact that some defendants are eligible for conversion does not disadvantage the defendant in this case, who can only be disadvantaged if his sentence is increased. While some defendants are eligible for sentence conversion and this defendant is not, this fact never increases the defendant’s punishment. See Colston, 20 Kan. App. 2d 107, Syl. ¶ 5. As such, the retroactivity provision of K.S.A. 21-4724 does not violate the Ex Post Facto Clause.
DUE PROCESS AND EQUAL PROTECTION
The defendant further argues the retroactivity provision of the KSGA violates the Due Process and Equal Protection Clauses of the United States Constitution. He claims the actions which led to his convictions on robbery and kidnapping charges were less violent than other offenders convicted of crimes with a severity level 3 and higher. Specifically, defendant notes the jury found him guilty of the lesser included offense of robbeiy, which means his criminal activity was not committed with a weapon or by inflicting bodily harm on the victim. Defendant makes no mitigation argument concerning the facts of his kidnapping conviction, but argues there is no rational basis for the legislature to deem his convictions ineligible for conversion.
This argument has been raised numerous times and rejected. The limited retroactivity provision of the KSGA . does not violate due process or equal protection principles. Chiles v. State, 254 Kan. 888, 901-03, 869 P.2d 707, cert. denied 513 U.S. 850 (1994). It is a fundamental principle that “[t]his court is duty bound to follow Kansas Supreme Court precedent, absent some indication the court is departing from that precedent. [Citation omitted.]” State v. Jones, 19 Kan. App. 2d 913, 915, 878 P.2d 845, rev. denied 255 Kan. 1005 (1994). Because the defendant’s arguments are clearly rejected by precedent, his due process and equal protection claims must fail.
SEPARATION OF POWERS
The defendant argues that K.S.A. 21-4724(c), which requires the Kansas Department of Corrections (KDOC) to determine whether an inmate is eligible for retroactive sentence conversion, is an unconstitutional delegation of judicial power to an administrative agency. Specifically, defendant argues K.S.A. 21-4724(c) “empowers the KDOC to act as the Judiciary in determining what crime was committed, how severe the crime was based on limited guidelines, and what an individuals [sic] criminal history consists of.” In short, it is the defendant’s position that K.S.A. 21-4724(c) violates the separation of powers doctrine.
In a separation of powers analysis, the challenged “statute is presumed constitutional, and all doubts must be resolved in favor of its validity.” State v. Ponce, 258 Kan. 708, 709, 907 P.2d 876 (1995). Article 2, § 1 of the Kansas Constitution states that “ ‘[t]he legislative power of this state shall be vested in a house of representatives and senate.’ ” 258 Kan. at 711. The Kansas Constitution creates three distinct and separate branches: the executive, the legislative, and the judicial. 258 Kan. at 711. The legislature has the sole power to define offenses and affix punishment, while the function of the courts is to determine whether an offense has been committed and to impose punishment. The essential meaning of the separation of powers doctrine “is that the whole power of one [branch] should not be exercised by the same hands which possess the whole power of either of the other [branches].” 258 Kan. at 711. The principle of separation of powers is not enumerated specifically in the Kansas or United States Constitutions, but is implied from the structure of federal and state government. State v. Greenlee, 228 Kan. 712, 715, 620 P.2d 1132 (1980).
Our Supreme Court has held the legislature may delegate its authority to an administrative agency when the authority is defined and unambiguous. The extent of this authority can be specifically defined by statute or generally inferred from the purpose of enabling legislation. See Kaufman v. Kansas Dept. of SRS, 248 Kan. 951, 956-57, 811 P.2d 876 (1991). Moreover, authority delegated to administrative agencies need not be rigidly defined. Kansas courts allow the legislature to issue “[l]ess detailed standards and guidance to administrative agencies” in order to allow the same agencies to administer the law in areas of complex social and economic problems. 248 Kan. 957 (citing Vakas v. Kansas Bd. of Healing Arts, 248 Kan. 589, Syl. ¶¶ 7, 8, 808 P.2d 1355 [1991]).
K.S.A. 21-4724(c) establishes the function of KDOC with reference to sentence conversions. The statute states KDOC shall prepare a sentencing guidelines report for all persons who committed crimes prior to July 1, 1993, and are imprisoned as of that date. K.S.A. 21-4724(c)(l). The law restricts KDOC from preparing reports on inmates who have committed crimes that would convert to a severity level 1 to 4 on the nondrug grid. Under this statute, KDOC does not have the authority to impose a sentence; this has already been accomplished by the district court. KDOC simply conducts a conversion calculation and notifies the inmate of the calculation. The inmate may file an objection to the report within 30 days to the district court in which the original action was heard. If no objection is filed within 30 days, KDOC computes the new sentence which then becomes controlling. K.S.A. 21-4724(d)(1).
The defendant argues separation of powers principles are violated by K.S.A. 21-4724(c)(l) when KDOC converts crimes committed prior to July 1, 1993, to the sentencing guidelines in effect after that date. Specifically, defendant states, “Only a trier of fact should make the determination of whether a crime would be charged under a different statute under the laws after 1993.”
Because K.S.A. 21-4724 properly delegates an administrative function to KDOC, the defendant’s arguments are without merit. The retroactivity provision of the KSGA gives KDOC the power to conduct conversion calculations and, in cases of less serious crimes, the power to substitute the converted sentence for the older indeterminate sentence. This power, however, is checked by two factors. First, the original sentence, from which the conversion sentence is derived, is imposed by the district court; thus, the judicial branch is responsible for findings of fact and conclusions of law in the original conviction. The district court is further responsible for determining and imposing the original sentence. Second, K.S.A. 21-4724(d)(l) allows the inmate to challenge a KDOC conversion calculation within 30 days of its issue. The starting point for KDOC, therefore, is always with the original sentence and conviction from the district court. Judicial functions are safeguarded by the statute through the judicial review provisions. The statute, therefore, does not delegate essential functions of the judiciary to the executive branch, nor does it fail to circumscribe the limited power it does delegate.
Similar results have been reached in similar cases. Our Supreme Court has held K.S.A. 1989 Supp. 21-4603(3)(a), which stated a district court shall modify a sentence when recommended by the State Reception and Diagnostic Center (SRDC), does not violate separation of powers. State v. Reed, 248 Kan. 792, 799-801, 811 P.2d 1163 (1991). The court reasoned the legislature had properly defined the scope of SRDC power and the agency’s efforts were properly focused on reducing the troubling number of people in prisons. 248 Kan. at 800. Moreover, the Eighth Circuit has held the federal sentencing guidelines do not violate the separation of powers principles. U.S. v. White, 890 F.2d 1012, 1013 (8th Cir. 1989).
Here, KDOC determined the defendant was ineligible for conversion because he was classified a 3-F on the nondrug grid of the sentencing guidelines. Defendant had been convicted of kidnapping, which was a class B felony when the crime was committed in 1983. K.S.A. 21-3420 (Ensley 1981). In 1993, the legislature amended the kidnapping statute by changing the felony classification to severity level 3 under the sentencing guidelines. See K.S.A. 21-3420. In this way, contrary to the defendant’s assertion, KDOC was not required to determine, as a matter of law, whether kidnapping under the pre-guidelines statutes was the same under post-guidelines statutes because the elements of kidnapping were not changed. However, even if the statutory elements of kidnapping had changed, K.S.A. 21-4724(c) is still constitutional because all original sentences are pronounced by district courts and the KDOC decision is reviewable on motion from the inmate.
In the final analysis, K.S.A. 21-4724(c) gives KDOC a highly technical duty that serves the ends not only of judicial economy but reduction of prison overcrowding, public safety, and equitable sentencing as well. State v. Favela, 259 Kan. 215, 233-34, 911 P.2d 792 (1996). In this way, the legislature has created a function for an administrative agency, properly constrained by statute, that serves to “facilitate the administration of laws in areas of complex social and economic problems.” Vakas, 248 Kan. 589, Syl. ¶ 8. The statutory scheme set forth in K.S.A. 21-4724 does not violate separation of powers principles.
DENIAL OF COUNSEL AND A HEARING
The defendant claims the district court erred when it denied his pro se motion for sentence conversion and appointment of counsel. On appeal, defendant claims K.S.A. 21-4724(d)(l) and (4) require a hearing and appointment of counsel for a defendant challenging a sentencing guidelines report issued by KDOC. Because the defendant filed his claim 22 months after KDOC issued its sentencing guidelines report, defendant’s pro se motion is properly considered a K.S.A. 60-1507 motion. See State v. Randall, 257 Kan. 482, 894 P.2d 196 (1995).
As stated above, the district court’s summary dismissal of the equal protection, due process, and ex post facto claims was proper. The question is whether the defendant was entitled to a hearing and counsel on the separation of powers argument which, at the time of the motion, was still undecided.
A defendant is entitled to a hearing on a K.S.A. 60-1507 motion unless there is no evidence he or she is entitled to relief. Supreme Court Rule 183(f) (1997 Kan. Ct. R. Annot. 189). Similarly, a defendant is entitled to appointment of counsel on a K.S.A. 60-1507 motion unless no substantial questions of law or triable issues of fact are presented. Supreme Court Rule 183(i). At the time of the defendant’s conversion motion, Kansas courts had clearly stated that equal protection, due process, and ex post facto law challenges to the Kansas sentencing guidelines were invalid. Chiles, 254 Kan. at 901-03; see Colston, 20 Kan. App. 2d 107, Syl. ¶ 5. Kansas courts, however, had not ruled on whether K.S.A. 21-4724 violated separation of powers principles. Because this is a substantive question of law, there is a strong argument the defendant should have been afforded a hearing on this issue. We, however, are not required to remand the case. See Randall, 257 Kan. at 486.
In Randall, the district court dismissed a pro se motion for sentence conversion on jurisdictional grounds on the basis that no sentencing guidelines report had been issued. The defendant appealed the ruling and further raised substantive questions of law challenging the constitutionality of K.S.A. 21-4724. Our Supreme Court ruled the district court did have jurisdiction. 257 Kan. at 484. The court, however, refused to remand the case and stated: “[W]here the district court dismissed for lack of jurisdiction and where the inmate’s substantive contention raises purely a question of law, a remand is unnecessary.” 257 Kan. at 486.
Here, the district court did not dismiss for lack of jurisdiction, though the court did note in its order that no sentencing guidelines report had been issued in the case when one, in fact, had. The court did summarily dismiss on the basis of the defendant’s constitutional arguments and the severity level 3 classification. The court did not address the separation of powers argument, though both parties, briefed the issue on appeal. Because the defendant’s only undecided argument on appeal raises a pure question of law, this court will address the merits of the separation of powers claim and not remand the case to the district court for a rehearing or appointment of counsel. To do so would clearly waste judicial resources because the defendant now has both a forum to make his argument and counsel to represent him.
There is no reversible error here.
ALLOCUTION
Finally, the defendant claims he was denied allocution in the sentencing phase of his 1983 convictions for kidnapping and robbery. As such, defendant claims his case should be remanded for resentencing. The standard of review for denial of allocution is harmless error. State v. Bafford, 255 Kan. 888, 889-90, 879 P.2d 613 (1994); see also State v. Webb, 242 Kan. 519, 525, 748 P.2d 875 (1988) (discussing same standard of review in other jurisdictions).
Here, the defendant was sentenced to 45 years to life for robbery and kidnapping convictions in 1983. At the sentencing phase of the 1983 case, the district court failed to follow K.S.A. 22-3424(4) (Ensley 1981), which stated: “Before imposing sentence the court shall . . . address the defendant personally and ask him if he wishes to make a statement on his own behalf and to present any evidence in mitigation of punishment.” The sentencing court asked the defendant and his counsel if either knew of any reason why sentence should not be imposed. Both responded in the negative. The court never asked for a statement by the defendant on his own behalf or for any evidence in mitigation of punishment.
Eventually, the defendant filed a motion for sentence modification which set forth multiple reasons why modification was proper. However, the modification motion does not allege the district court denied the defendant allocution at sentencing. Later, the defendant filed another motion requesting, resentencing due to the earlier denial of allocution.
K.S.A. 22-3424(4) (Ensley 1981) “is an unambiguous statute that ‘requires the court to address the defendant personally and ask if the defendant wishes to make a statement and present evidence in mitigation of punishment.’ ” Bafford, 255 Kan. at 890 (quoting State v. Heide, 249 Kan. 723, 730, 822 P.2d 59 [1991]). In State v. Spencer, 252 Kan. 186, 189, 843 P.2d 236 (1992), the court held that “[a] general opportunity to comment is not the same as the 22-3424(4) requirement of personally asking if a defendant wishes to make a statement on his or her own behalf and present evidence in mitigation of punishment.” Failure to afford allocution has resulted in a remand for resentencing in a case where the only question put to the defendant by the trial judge was whether there was any legal reason why sentencing should not proceed. The case was remanded because the court did not explicitly ask the defendant whether he wished to present evidence in mitigation. Bafford, 255 Kan. at 891.
Kansas courts have held that failure to raise the allocution issue in a subsequent sentence modification motion waives the allocution claim in later appeals. Webb, 242 Kan. at 529. The Webb waiver rule, however, has been limited only to cases where a hearing has been held on the sentence modification motion. Spencer, 252 Kan. at 191.
Here, the sentencing court inquired of defendant if there was any legal reason why sentence should not be imposed. The defendant stated there was not. The court did not ask defendant if he wished to make a statement on his own behalf or offer evidence in mitigation. The sentencing court, therefore, failed to abide by K.S.A. 22-3424(4) (Ensley 1981). The defendant, however, filed a motion to modify his sentence in which he alleged multiple reasons for modification, but did not raise the allocution claim. The journal entry of judgment on that motion states a hearing was held where the defendant was represented by counsel. Failure to raise allocution in that motion waived defendant’s ability to claim denial of allocution in a later appeal under the rule stated in Webb and Spencer. The defendant’s motion for resentencing was properly denied by the district court.
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|
The opinion of the court was delivered by
Hutchison, J.:
We have here two cases, one by the Putnam Investment Company, the other by the Putnam Trust Company, both against W. P. Titus, the first being based upon a contract and account, later secured by a chattel mortgage, and the latter upon a note secured by a chattel mortgage. Replevin proceedings were resorted to in both cases, redelivery bond being given in the first case but not in the second. The personal property covered by the chattel mortgages was, with a few exceptions; the same in each, and the mortgage of the investment company was subject to that of the trust company. The wife was permitted to interplead, and she and her husband both pleaded exemption of the personal property involved on account of the husband being a resident head of a family and her not having signed either of the mortgages. The cases were consolidated and tried to the court. Judgment was rendered in favor of plaintiffs and the personal property involved was held to be not exempt. The defendants appeal.
The only question here is whether or not the personal property covered by the chattel mortgages is exempt to a resident head of a family; if it is, the appellants claim the mortgages are void because they were not signed by the wife. The description of the personal property included in the mortgage to the trust company is as follows:
“One sticker, one band saw, one lathe, one tenoner, one mortiser, one rip saw, one planer, one jointer, one shaper, one emery grinder, one cut-off saw, one frame machine, one sander, one 15-horsepower motor, all line shafting, all pulleys, all counter shafts, all belting, all clamps, all office equipment, and all other tools and articles located in the building at the corner of Second street and Elm street used in the business of the Titus Mill Work Company, and one Ford truck.”
This mortgage was signed by “W. P. Titus, doing business as the Titus Mill Work Company.” The mortgage given to the investment company about eight months later was signed in the same way and covered substantially the same property, concluding with the following statement: “Subject only to a mortgage now of record in favor of The Putnam Trust Company.” The exemption is claimed under the eighth subdivision of R. S. 60-3504, which is as follows:
“The necessary tools and implements of any mechanic, miner or other person, used and kept in stock for the purpose of carrying on his trade or business, and in addition thereto, stock in trade not exceeding four hundred dollars in value.”
It will be observed, in the first place, that this provision for exemption has not been changed or modified since its enactment in 1868, and, in the second place, it is and always has been different from similar provisions in some other states in that it contains a limitation or restriction as to the character and use of the tools and implements- — they must be “necessary tools and implements.” (See 2 A. L. R. 818.)
It has been the inclination of nearly all courts in considering exemption statutes to place a liberal construction on them — and the Kansas courts have always been in harmony with others in this respect — so as to effectuate the beneficent purposes of the law and at the same time keep the interpretation within the apparent and evident intention of the legislature. (25 C. J. 10; Rasure v. Hart, 18 Kan. 340; Bequillard v. Bartlett, 19 Kan. 382, 386; Donmyer v. Donmyer, 43 Kan. 444, 23 Pac. 627; Millinery Co. v. Round, 106 Kan. 146, 186 Pac. 979.)
“As often stated by this court, the exemption laws must receive a liberal construction for the purpose of carrying out their object and design, and one of the main objects of exemption laws is that every person shall have the means of carrying on some useful business, and thereby of obtaining an honest livelihood.” (Davidson v. Sechrist, 28 Kan. 324, 326.)
In the earlier Kansas cases the tools and implements held to be exempt were only those worked by hand. It was said concerning cheese vats, presses and knives that they were exempt tools and implements because “the evidence does not show that they, or any of them, constituted complicated and expensive machinery; nor does it show that they were not instruments or implements which could not be used by hand ... or that they had the use of any other power than their own personal energy, force and strength.” (Fish v. Street, 27 Kan. 270, 273.)
The first and general definition of tools given by text-writers is that they are such as are used by hand; but then they go further to show the modified application of the term to include simple and inexpensive machinery. (25 C. J. 49; 11 R. C. L. 512.) It was apparently the original thought on the subject that the tools were for the exclusive use of the owner, but a broader view has since been followed, and they may be exempt even if used by others in his employ. However, running through most of the Kansas decisions is the very evident requirement that the owner in the use of the tool or implement must perform a considerable portion of the work himself. For instance, in the case of Fish v. Street, supra, it is stated, “It does not appear that any one else assisted them”; in Bequillard v. Bartlett, supra, they “were so used with respect to the goods manufactured by the pláintiff himself”; in Bliss v. Vedder, 34 Kan. 57, 7 Pac. 599, “he performs a considerable portion of the work himself”; in Miller v. Weeks, 46 Kan. 307, 26 Pac. 694, “the proceeds of such work performed by himself were his sole means of support”; in Reeves v. Bascue, 76 Kan. 333, 91 Pac. 77, he “performs a considerable portion of the work himself.”
The following cases show the development and change in the construction of this statute in this state as applied to machines or machinery being considered as tools and implements exempt from execution: The lamp, table, and other articles of the watchmaker in his trade, decided in 1877 (Bequillard v. Bartlett, supra); the cheese vats, presses, knives, etc., used in making cheese, where the owner performed the work, decided in 1882 (Fish v. Street, supra); the printing press, type and job-printing outfit, where most of the mechanical work was done by others in the owner’s employ, decided in 1885 (Bliss v. Vedder, supra); the threshing machine, tractor engine, belts, etc., used by the owner, with other necessary help, in threshing grain for his neighbor for hire, decided in 1905 (Jackman v. Lambertson, 71 Kan. 138, 80 Pac. 155); the tractor engine and portable sawmill used by the owner and other necessary help in sawing lumber for others for hire, decided in 1907 (Reeves v. Basque, supra). In all these cases the instruments or machinery were held to be tools or implements and exempt as such, thus recognizing the progress and development in the use of machinery to take the place of simple tools to accomplish the same work.
Among the recent cases on the same subject in other jurisdictions is one where it was held that well-drilling equipment was not a tool or implement within the meaning of the exemption. statute. (Thresher v. McEvoy [Tex. Civ. App.], 193 S. W. 159.) A turning-lathe used by a machinist in a repair shop was held to be exempt. (Smith v. Roads, 29 Okla. 815.) An electric motor and a lathe used in a general repair business was held to be an exempt tool. (In re Robinson, 206 Fed. 176.) A machine for projecting moving pictures and a metal-machine outfit were held to be exempt implements in Campbell v. Honaker’s Heirs (Tex. Civ. App.), 166 S. W. 74. Potato machinery, with planter, sprayer and digger, was held not to be an exempt tool in Martin v. Buswell, 108 Me. 263. A printing press and gasoline engine to run it were held to be exempt in Harris v. Townley (Tex. Civ. App.), 161 S. W. 5. The machinery connected with a grain mill, propelled by an electric motor, was held not exempt in Peyton v. Farmers’ Nat. Bank, 261 Fed. 326. In the last case the court stresses the distinction between hand power and electric or other propelling power.
In nearly all of the decisions above cited from our own and other states reference is made to the use of the machine by the owner, or by himself and others, and the number of men employed; also, to the number of machines or pieces of machinery, the size, weight, cost and value of each, and whether they are used for one purpose or more than one, thus taking into consideration all these features and facts to help determine the distinction between a tool and machinery. “It is impossible, however, to draw a precise line between Tools’ and ‘machinery,’ and attempts to do so have not resulted in any very clear distinctions.” (2 A. L. R. 823.)
The questions before us are whether the property above listed was tools and implements or machinery, and whether or not such property was necessary as such for the use of the owner. The former is a question of law and the latter a question of fact, both decided by the trial court against the contention of the appellant. Was the decision on the question of law correct, and was there sufficient evidence before the court to support his decision on the question of fact?
“Where the exemption is of tools and implements necessary for carrying on the business of the debtor, whether the articles may be denominated tools or instruments is a question of law, but whether they are necessary for carrying on the debtor’s business is a question of fact. . . . Under the general rule that complicated machinery is not exempt as tools, articles popularly known ns ‘machines’ and not as ‘tools’ are not exempt as ‘tools.’ ” (11 R. C. L. 513. See, also, 52 A. L. R. 826.)
Among the facts before the trial court in this case upon which its determination was reached and which are similar to the features considered in the cases cited above are that the defendant, W. P. Titus, did business and advertised under the name of the Titus Mill Work Company and used the advertising slogan, “If it is made of wood, we make it.” He had been in the same line of business in ¡the same place for nearly ten years. He was foreman of the work, And had in his employ never less than three men, and sometimes had as many as fourteen. The machinery was installed in a two-story frame building, 48 by 40 feet, and propelled by a 15-horsepower .electric motor with a shaft and countershaft. There were 13 pulleys .on the shafts and there were 13 or 14 machines propelled thereby. All but two of the machines were set on the ground in the lower story; the other two upstairs. The probable weight of the various pieces of machinery, as given by the defendant is as follows: sticker, 1,800 pounds; bandsaw, 600 to 700 pounds; tenoner, 500 to 600 pounds; mortiser, 700 to 800 pounds; ripsaw, 100 to 150 pounds; planer, 800 pounds; shaper, 400 to 500 pounds; cut-off saw, 300 to 400 pounds; frame machine, 1,200 to 1,400 pounds. The probable weight of two other pieces, given by another witness, is as follows: Emery grinder, 75 to 100 pounds; joiner, 800 pounds.
The cost of some of the machines, as stated in the evidence by the defendant, was as follows: Sticker, $1,250; mortiser, $425; tenoner, $400; Ford truck, $450. The total cost of all the machinery-in the mill, defendant said, was about $6,500, with a present value of about $1,500 or $1,600. The average cost for electric current to run the machinery was about $40 per month. He did not construct buildings, but took contracts from builders for window and door frames, cabinet work, moulding, etc., some contracts amounting to> over $2,000. During the last full year before the commencement of these actions his business amounted to over $18,000, on which he estimated the profit to be 20 per cent, or $3,600. The defendant worked on all these machines at different times, managed the business, solicited new business, kept the books, made collections, and paid expenses. The help continued the work while he was necessarily absent from the shop.
Perhaps not any one of the several features in the case would in and of itself determine the question as to whether this equipment or any part of it was a tool or a machine. Neither the fact that there were several pieces of machinery instead of one or two, the fact that the propelling power was electricity through a 15-horse-power motor, that many kinds of finished work were produced instead of only one, that a number of men were employed to use the equipment, the weight or cost of the several pieces of machinery,, nor the cost of running the plant, the’ value of the finished product and the estimated income or profit, standing alone, would determine the question. But when we consider all these features together we-are unable to conclude as a matter of law that these instruments described in the mortgages are tools and implements as contemplated by the statute. It would, we think, require much more than a liberal construction to find them to be what the legislature had in mind when it mentioned tools and implements. We also think there was sufficient evidence to justify the trial court in finding that, such machinery was not the .necessary equipment — tools and implements — intended by the statute to be exempt.
We therefore conclude that the personal property described in the chattel mortgages was not exempt to the defendant as a resident head of a family, and the mortgages were not void. Having reached this decision, the question of subrogation discussed in the briefs need not be here determined.
The judgment of the trial court is affirmed.
Burch, J., not sitting. | [
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The opinion of the court was delivered by
Johnston, C. J.:
The Hiattville State Bank brought this action against A. M. Routh and three other parties upon a promissory note given for $865. Although all the parties were served with summons, Routh alone defended. At a trial before, a jury a verdict was returned in favor of plaintiff and against all of the defendants. Routh filed a motion for a new trial based upon all the statutory grounds, and this motion was allowed and a new trial granted. Plaintiff appeals from the order granting the new trial.
It appears that Routh and Land had been partners in a general merchandise business, a partnership which ended on June 18, 1918. On May 1,1920, the original note in the transaction was executed by George M. Bolling and Alice Bolling, promising to pay $800 to Routh and D. D. Land on March 1, 1921. The note was transferred by-Land to the plaintiff and applied on the payment of Land’s personal indebtedness to the bank. Subsequently and on April 28, 1922, the note was renewed by the Bollings. Routh claimed and testified that the partnership had ceased long before the note was executed; that he owned a one-half interest in the note; that it had been indorsed by Land to the bank and that Routh’s name was signed to the indorsement without his consent. Routh insisted that Land had only pledged or transferred his half interest in the note to the bank; that he owned the other half of it, and he therefore asked for judgment upon his half, of the obligation. Conflicting testimony was offered as to the authority of Land to sign the name of Routh, and also as to the knowledge of Routh that Land had signed Routh’s name to instruments. When the argument on the motion for a new trial was concluded the court said that “the motion is sustained because of the fact that the petition is wrong, and should have been amended, and because of the fact that the instructions were wrong, and because of these circumstances the court is not satisfied with the verdict of the jury as to A. M. Routh.” The verdict was approved as against the defendant Land and the Bollings, and judgment was entered accordingly.
It is contended first that there was nothing wrong with the petition, and it is also insisted that the instruction of the court was not erroneous and did not justify the granting of .the new trial. The instruction in question follows:
“ ... On the other hand, if you find from the preponderance of the evidence that at the time the original note was discounted and purchased by said plaintiff bank that the defendant, A. M. Routh, agreed- and consented thereto and that it might apply the proceeds of said note upon the private indebtedness of said defendant, D. D. Land, and that the present note is a renewal of the original note, then your verdict should be for the plaintiff against all of the parties, for the amount now due upon said note, amounting to $891.48.”
*The action was brought upon the renewal note. It appears that the court thought the petition was defective, .but in what respect was not stated, or at least it is not shown in the record. The instruction was to the effect that if Routh consented that the bank might apply the proceeds of the original note upon the private indebtedness of Land to the bank, Routh would be liable thereon for the full amount of it. The court left out of the instruction the contested question whether Land was authorized to indorse the name of Routh upon the note. It is manifest from the record that the court was not satisfied with the verdict returned and therefore withheld its approval. In effect the court held that it had misjudged the issues and did not fairly present it to the jury, and also that it was not satisfied with the verdict returned. It was incumbent on the court to approve or disapprove the verdict and a verdict cannot be allowed to stand and become the basis of a judgment unless it has the approval of the court. (Butler v. Milner, 101 Kan. 264, 166 Pac. 478, and cases cited.)
The verdict having been disapproved, the decision of the court granting a new trial is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
In an information Delos Detar was charged with assault upon J. E. Eaton, an assistant cashier of a bank, with a deadly weapon, and in a second count he was charged with felonious entry of the bank with intent to rob. Under the first count he was convicted of simple assault, and on the second count of bank robbery. The question of his sanity was raised at the opening of the case, and in the course of the trial four physicians who were called testified that they had known the defendant for years and that he had been and was of unsound mind, that he was insane at that time, and in his mental state was unaccountable and could not distinguish right from wrong. His father, who is also a doctor, testified to a number of things proposed and done by the defendant which tended to show irresponsibility and insanity. He stated that his persent mental condition was due to an injury he had sustained in 1925 when there was an explosion of an air tank which hurled him six or eight feet against metal obstructions, that his left arm was blown off and his body lacerated, and that since that time he has been more or less irresponsible, and is now insane. Other witnesses who were not physicians and who knew the defendant testified that from his manner and actions they regarded him to be insane. Several witnesses produced by the state who had seen and talked with defendant about the time the offense was committed, stated that they believed him to be sane.
The principal question presented here is whether a sufficient claim was made of the mental disability of the defendant which rendered him unfit to answer the charge and make a defense. It appears that in the impaneling of the jury the attorneys for the defendant asked questions implying that the defendant had been and is insane,.and inquiring as to the attitude of the jurors where that question was involved. After that course had been pursued for some time, and before the jury had been sworn to try the case, the following motion was made by the prosecution:
“Comes now the state of Kansas and makes application to the court that the court appoint a tribunal such as provided by statute, either to sit as a jury or commission to inquire into the sanity or insanity of the defendant as of the present time, for the reason and upon the grounds that it has been brought to the court’s attention that the defendant’s sanity or insanity is in question as of this time by the manner and form of the questions asked by the defendant’s counsel in the examination of the jurors, and by reason of the defendant’s demeanor while in the court room, sitting with head bowed down and taking no apparent interest in the trial.”
The jury was excused for a time, and the court, after hearing arguments on the motion, overruled it and directed counsel to proceed with the trial on the merits. The matter of whether the defendant was insane at the time of the trial and mentally capable of making a defense was brought to the attention of the court and furnished sufficient grounds for a preliminary inquiry on the question before proceeding with the trial on the merits. When that question is raised and there are grounds for such an investigation it is the duty of the court, in one of the statutory methods, to ascertain and determine whether the defendant has the mental capacity to comprehend the charge made against him and to make a defense.
Our statute provides, among other things, for such an investigation before or during a trial and before the verdict is rendered. The inquiry may be made by the court in which the information or indictment is filed or by a commission or another jury impaneled for that purpose, and if the defendant is found to be insane and unable to comprehend his position and to make his defense, the court is required forthwith to commit him to the state asylum for the dangerously insane for safe-keeping and treatment until he shall recover, when he shall be returned to the same court and placed upon trial on the criminal charge. (R. S. 62-1531.) Even if there had been no statutory provision for an investigation it would on general principles have been required. In 16 C. J. 789, it is said:
“As we have seen, a person, who by reason of insanity is unable to comprehend his position and to make his defense, cannot be placed upon trial for a crime while in such'condition, and hence, both at common law and under some statutes, if the court either before or during the progress of such trial, from observation or from pleading or suggestion of counsel, has facts brought to its attention which raise a doubt as to the present condition of defendant’s mind, in this respect the question should be 'determined before another step is taken.”
In answer to the complaint that a preliminary investigation was refused, the state says:
“The trial judge in this ease in overruling the state’s application for a commission, decided that no sufficient claim had been made that the defendant was a madman.”
As we have seen, it was brought to the attention of the court informally by the defendant and formally by the state. The manner in which the necessity for an inquiry is raised as to the present insanity is not of much importance. It may be ordered on formal application or where no application is made, when the court learns from observation, reasonable claim or credible source, that there is a real doubt of defendant’s mental condition to comprehend his situation or make his defense. This court had occasion to consider the matter of preliminary inquiry as to present insanity and the method of bringing it to the attention of the trial court, and it was said:
“When the attention of a court is called to the fact that the defendant about to be arraigned before it is unable because of mental disability to make proper defense to the accusation against him, it is doubtless the duty of the court to take notice of the suggestion and to make such inquiry concerning it as will fully protect the rights of the accused.” (In re Wright, 74 Kan. 406, 412, 86 Pac. 460, 89 Pac. 678.)
And after referring to certain evidence the court proceeded further:
“It appears that this evidence was offered for another and different purpose, but the object and manner of its presentation are immaterial. It was sufficient to call the attention of the court to the claim that the defendant was inlsane and incapable of making proper answer to the charge pending against him. This was a matter of too much gravity to be ignored because of any supposed irregularity in the form of its presentation. It was the duty of the magistrate to take notice of this claim and determine the defendant’s mental condition before proceeding further with the examination.” (p. 412.)
In a later case where the claim was brought to the attention of the court in a motion for a continuance, and the affidavits filed in support of the motion, the counsel for the state suggested a preliminary investigation of present insanity, but the counsel for defendant responded that they were not applying for such an inquiry and stood upon their motion for a continuance. The court overruled the motion for a continuance and proceeded with the trial on the merits. The judgment of conviction was reversed, and a holding made that when it is brought to the attention of the court that a defendant charged with a crime and about to be tried is incapable because of mental disability to make proper defense, the court should investigate the defendant’s mental condition before going forward with the proceeding, and that it is not necessary to such an inquiry that the state or the defendant should make formal application for it. It was said:
“As indicated in the Wright case, it made no difference that the showing of present insanity was made in affidavite supporting an application for a continuance only. When the showing was presented it was the court’s duty to find out if the defendant was in fit mental conditiqn to be tried, whether counsel for either side made application for the inquiry or not. In effect the law made the application for the defendant, and however the attorneys might fence about the matter, the court was not authorized to proceed with the trial on the merits until it had ascertained by one of the statutory methods whether the defendant was capable of making a rational defense.” (State v. Ossweiler, 111 Kan. 358, 367, 207 Pac. 832.)
The necessity for an inquiry was sufficiently brought to the attention of the court at the outset before the jury was impaneled, and certainly after several experts had testified that defendant was of unsound mind and irresponsible at the time of the trial, good grounds were shown to require the court to stop the trial and investigate his mental capacity to comprehend his position and to make his defense. Under the statute this may be done before or during the trial and at any time before the verdict is rendered.
For failing to make the preliminary investigation the judgment is reversed, and the cause remanded for further proceedings. | [
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The opinion of the court was delivered by
Harvey, J.:
Since the decision of this case (Vincent Grain Co. v. Docking, 124 Kan. 391, 260 Pac. 610) the parties have joined in a motion asking this court to amplify the mandate with respect to interest on the preferred claim. The record, presenting the question sought to be determined, is as follows. The judgment rendered on the trial of the case in the court below, June 2,1926, recites:
“It is now therefore by the court, ordered, decreed and adjudged that the plaintiff have and recover of and from the defendant, judgment for $14,824.68, and that the same shall bear interest at six per cent from this date and for its costs herein expended taxed to $-. It is further ordered, decreed and adjudged that $10,090 24 of said judgment be and the same is hereby decreed to be a preferred claim against the defendant and against all assets of the Farmers and Merchants State Bank of Tonganoxie, Kansas.”
The receiver appealed from the decree that $10,090.24 of the judgment should be a preferred claim. This court affirmed the judgment and decree of the trial court. Later the receiver paid to the clerk of the trial court the costs and the amount of the preferred claim, $10,090.24, and gave plaintiff a certificate as a general creditor for the balance of the judgment, including interest on the entire judgment at six per cent per annum. Plaintiff complains of this, and asks us to amplify our mandate so as to require the receiver to pay, as a part of the preferred claim, interest at six per cent per annum on the $10,090.24 from the date of the judgment and decree of the trial court, June 2,1926, to the date of its payment by the receiver. This cannot be done, for at least two reasons: First, the only trust fund which passed into the hands of the receiver, as found by the judgment and decree of the court, was $10,090.24. When the receiver paid that sum to the clerk of the trial court the trust fund was exhausted- — there was no longer anything in that fund to pay claim of interest to the plaintiff, or claims of any character. In McDonald v. American Bank & Trust Co., 255 Pac. 733 (Mont.), the principal question was whether interest should be allowed on a trust fund in a case similar to this. Following the controlling principle of law applied in Chemical Nat. Bank v. Armstrong, 59 Fed. 372, it was determined that interest on the preferred claim should be allowed, but in the opinion it was said:
“In any case, when the receiver has become liable for the payment of interest on a trust fund, the interest must necessarily be paid out of the general assets of the bank in his hands, since on payment of the principal the trust fund is exhausted.” (p. 376.)
Second, there is no showing here that the receiver used this fund, while it was in his possession, in such a way as to receive interest or profit on it. An action to recover money or property in the hands of a receiver of a failed bank, predicated on the theory that it is a special deposit or trust fund, which never passed, or never should have passed, into the assets of the bank, is not based upon the relation of debtor and creditor. In fact, if that relation exists, there can be no allowance of preference. The action is based on the theory that plaintiff is the owner of the property and entitled to its return. The receiver may be simply the custodian of it pending the litigation, in somewhat the same sense as the clerk of a court is custodian when money is paid to him to be held pending the outcome of a suit. (State v. Banking Corp. of Montana, 74 Mont. 491.) With respect to national banks it was held, in Richardson v. Louisville Banking Co., 94 Fed. 442, where a preferred claim was allowed, that an order directing payment of interest by the receiver of a national bank from date of judicial demand is erroneous, as funds coming into the hands of a receiver are turned over to the comptroller and could not earn interest, and any payment of interest would necessarily be taken from some other fund. In Butler v. Western German Bank, 159 Fed. 116, where the action was one for preference predicated upon the theory that certain funds had passed to the'receiver as a trust fund, it was held that the plaintiff was entitled to recover from the receiver the amount equal to that received by him, but without interest, the general creditors of the bank not being responsible for the receiver’s error of judgment for refusing to pay the claim on demand. In the opinion it was said:
“The claim (for preference) is for the funds or property converted or wrongfully withheld. It is not founded on the idea that the defendant owes to the complainant a debt; on the contrary, it is based on the fact that the conduct of the defendant has been such that the relation of debtor and creditor has not been created, as ordinarily occurs when a client makes a deposit with his banker. The equity, springing as it does from the right to trace the funds or property, does not extend to a right to take other funds or property by way of damages or interest. Especially is this true where it does not appear that the fund withheld has earned interest or profit, and where the defendant holds, also, as trustee the other funds or property with which the funds claimed were mixed. To allow interest in such case would be to permit the wrongful withholding of the fund by the defendant to create a charge on other funds held by him in trust for the creditors of the bank. This would be inequitable. The investigation and decision of this case has, it is true, established the fact that the receiver should have surrendered this fund to the complainant, but an error of judgment by the receiver on this question should not make the creditors of the bank chargeable with interest on the fund withheld.” (p. 117.)
This rule was followed and applied in Clark Sparks & Sons Mule & Horse Co. v. Americus Nat. Bank, 230 Fed. 738, a case similar in many respects to the case before us. In Rugger v. Hammond, 95 Wash. 85, a preferred claim had been allowed by the trial court with interest. On the appeal the decree for preference was set aside. Appellant had complained of the allowance of interest, and the court said:
“Were we holding that the trial court was not in error, in allowing Rugger’s claim as a preferred claim, we would be inclined to hold that it was in error in allowing interest thereon, having in mind that, as a preferred claim, it is a claim of title and not for a debt. In view, however, of the fact that there is no contention made against Rugger’s claim in so far as allowing it as that of a general creditor is concerned, we see no reason why he is not entitled to interest as allowed by the trial court, to be paid with the principal pro rata with other claims of general creditors.” (p. 100.)
Without referring to this case, a somewhat different rule appears to have been followed in Hitt Fireworks Co. v. Scandinavian Am. Bank, 121 Wash. 261, which was followed in Northwest Lum. Co. v. Scandinavian Am. Bank, 130 Wash. 33, but in neither of these cases does it appear whether the receiver so used the funds in his hands as to realize interest or profit thereon.
It must be noted that the trial court allowed plaintiff’s interest on the entire judgment, including that part of it for which a preferred claim was decreed, but made this interest a part of the claim against the general assets. Defendant does not complain of this disposition of the matter by the trial court, hence we do not have before us the question whether interest should have been allowed on the part of the fund found to be a preferred claim, the same to be paid from the general assets.
From what has been said it necessarily follows that the judgment of the trial court, and the manner in which it was paid by the receiver, were as favorable to plaintiff as it was entitled to have them. The motion to amplify the mandate is denied. | [
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The opinion of the court was delivered by
Harvey, J.:
Charles Kelley was found guilty of attempt to rape. He has appealed and contends that the information was fatally defective, that certain evidence was improperly received, and that there was error in the instructions given.
The information was drawn, in part, under R. S. 21-101, which provides:
“Every person who shall attempt to commit an offense prohibited by law, and in such attempt shall do any act toward the commission of such offense but shall fail in the perpetration thereof . .
The information charged that defendant did “attempt to rape . . . by forcibly assaulting and attempting to ravish” a named female person who was more than eighteen years of age. It is contended that the information does not set forth the “act toward the commission of the offense” which the defendant did. Reliance is had on State v. Frazier, 53 Kan. 87, where an information was held fatally defective for failure to “set forth any physical act or acts done toward the commission of the offense.” But there the explanatory part of the charge was a mere repetition of the principal charge of attempt. Here there is a specific charge that the attempt to rape was accomplished by a forcible assault. It is true these words are general and might include any one or more specific acts, and the information would have more nearly complied with the statute if one or more of them had been specifically described. The term “forcibly assault” is, however, necessarily descriptive of an act or of acts. While the information is defective in that it describes the acts in general terms instead of describing them specifically, we do not regard that fact in this case as being prejudicial to the defendant. Here there had been a preliminary examination, at which the complaining witness had testified. Defendant, therefore, knew the specific acts complained of. We do not mean to refer to the preliminary exámination for the purpose of testing the sufficiency of the information, but in determining whether or not the defect of the information was prejudicial to defendant we can, of course, look to the entire record, or any part of it bearing on the point. In this case defendant knew before the information was filed the specific acts charged against him, hence the fact that the information charged them in general terms did not prevent him from making his defense, and constituted no prejudicial error as to him. There was no material error in overruling the motion to quash the information.
When defendant was arrested, or soon thereafter, certain letters were taken from his room which tended to show that he had conducted correspondence with other women under the assumed name he used in making his acquaintance with the complaining witness. It is contended these letters had been unlawfully obtained and should have been returned to defendant upon timely request, which was made before trial. The fact that these letters had been unlawfully obtained would not prevent their being received in evidence, if they were otherwise competent. (State v. Johnson, 116 Kan. 58, 226 Pac. 245, and cases there cited.)
Appellant contends that the court should have instructed the jury on simple assault, although no request for such an instruction was made. The contention is that simple assault is a lesser degree of the offense charged, and that it is the duty of the court, on its own motion, to instruct on lesser degrees of offenses. (R. S. 62-1444, 62-1502.) This is not a prosecution under R. S. 21-484. It is under R. S. 21-101 and 21-424. Simple assault is not a degree of that offense; the only offenses under these sections are rape and attempt to rape. Other criticisms of instructions given are considered and found to be without substantial merit.
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The opinion' of the court was delivered by
Hopkins, J.:
The action was one by the wife of Thurlow W. McCullough to recover on an accident insurance policy for his death, he having been killed by a bandit who robbed the Santa Fe railway station at Iola where McCullough was night operator and ticket agent. Plaintiff prevailed and defendant appeals.
The facts, related chiefly by the baggageman, Frank Marks, the only eye-witness of the tragedy, were substantially as follows: A train had arrived and departed about five o’clock on the morning of March 22, 1926. Marks had delivered the mail to the mail carrier and had gone into the baggage room to sleep or rest until the coming of another train which was due at 6:30. The depot is east of the main track. He lay down on a truck, and after ten or fifteen minutes heard a noise or voices, he thought, on the east side of the depot or in the waiting room next to the baggage room. He got up, went out and found a man outside the waiting room a little distance from the west door. The man threw a flash light on him and then a gun and commanded him to go to the bay window of the ticket office, which is on that side of the depot, and open or break the window and get the money from the money drawer.
“Well, I walked up to about the center of the window and somebody shot a shot through that window right over" my head. ... I made a dive for the baggage room and when I got just about to the baggage room, he caught up with me. . . . He commenced punching me with the gun again and told me to go back there and break that window and get the money. . . .’’
“He says: ‘if you don’t bring me the money, I am going to kill you.’ It then struck my mind that if he was going to stay outside for me to bring him the money that would be the last he would see of me. Then when I opened the door and went into the waiting room, and when I just got a step or two inside I heard another shot. I don’t know who fired that shot and I don’t know from where it was fired. I made another step or two and this bandit then shot twice. He was leaning right through the door and shot twice toward the trainmen’s window.”
The trainmen’s window was in the ticket office where McCullough was then located. Marks, according to his story, then made his escape and ran to a near-by house (Ralston’s, the day ticket agent’s residence). He heard another shot as he was running away and still another after arriving at the house. The officers were summoned and several men within a few minutes returned to the railway station. McCullough was found lying on his back in the ticket office, the telephone in one hand, the receiver in the other, one bullet through his temple and another through his heart. The latter wound apparently had been inflicted when he was lying on the floor, as the bullet was found on or in the floor directly under his back where it had gone through his body.
The question for consideration is whether, according to the terms of the insurance policy, the death of the insured occurred by accidental means. A pertinent part of the policy reads:
‘Part 1. In the event the insured while this policy is in force shall sustain personal bodily injury, which is effected directly and independently of any other cause, through external, violent and purely accidental means, and which shall leave some visible mark and which injury causes . . .
“Part 2. For any one of the following specific total losses described in this paragraph which shall result solely from injury as described in Part 1, within ninety days from the date of the accident, the company will pay in lieu of any other indemnity; life . . . The principal sum.”
The petition alleged that the insured “was without fault on his part, was by violent and purely accidental means killed by bandits and persons unknown to this plaintiff in an attempt to and a consummated robbery of the Santa Fe depot at Iola, March 22, 1926.”
The defense was that at the time of the killing, the insured “made an attack upon the bandit who was attempting to rob the office of the company by firing at him with a gun or pistol, and in making such attack the insured assumed the risk of death, and his death was the direct result of such attack.”
No evidence was introduced to support the allegations of the defendant’s answer. The only statements which at best might show by inference that the insured attacked the robber or offered resistance were made by the witness Marks to the effect that sometime before the tragedy he talked to the insured about a holdup, and insured had said that he would defend the place; that he would shoot them enough to hurt them; that they would know it when he got through 'with them although he would not kill them, and “that somebody shot through the window, right over his (Marks) head,” and that he (Marks) said to the robber he didn’t want to be killed by his best friend. This can hardly be said to have been evidence showing an attack by the insured. When he was last seen alive by the witness- Marks, McCullough was crouching behind the safe in the ticket office. No gun or pistol was observed to be in his hand. When he was next seen, he was lying on the floor of the ticket office with the telephone and receiver in his hands. There was no gun, pistol or weapon of any kind on or about his body or in the room. Marks also testified:
“I didn’t see McCullough do any shooting there that night or have a revolver or gun of any kind in his hands. The only time I saw McCullough during the trouble was when he was crouching down behind the safe.”
The plaintiff’s theory was that there were two bandits; that the one unseen by Marks was on the other side of the ticket office. On its part the defendant insistently argues that McCullough was the only person in the ticket office; that the shots came through the window in the ticket office and that two empty shells were found on the floor of the ticket office by the sheriff. The evidence, in our opinion, does not justify the conclusion of the defendant. Marks' testimony was that there was a shot (the first) through the window over his head. The known bandit behind him could very well have shot over Marks’ head into the ticket office at McCullough; and so far as finding the shells was concerned, L. E. Brown testified that he went to the station and found McCullough dead in the ticket office; that he didn’t see any gun in the ticket office.
“I believe some of them found a couple of shells, but that’s just hearsay with me. I didn’t find any shells on the floor. I don’t know where the two shells were picked up. I saw them in the sheriff’s possession. I and Mr. Creason were the first ones to arrive there.”
If there was evidence of shells being found in the ticket office and the defendant deemed it material, that fact should have been shown. In any event, we do not deem the question of sufficient importance to reverse the case for the purpose of ascertaining the fact as to whether or not the insured offered resistance. The fact is clear that with the telephone in one hand and the receiver in the other, he could not have been offering much resistance at the time of the fatal shots.
The defendant complains of the refusal of the court to submit special questions as follows:
“1. What was the bandit’s purpose of killing McCullough?
“3. Who fired the first shot?
“6. Who fired the second shot?
“8. Could McCullough have avoided injury by delivering the money to the bandit?”
Other than as stated there was no evidence introduced pertinent to the first question. The only rational inference from the evidence adduced was that the bandit’s purpose was robbery. Any other answer would have been based on mere conjecture. If the question had been submitted and the jury had answered “robbery,” how could the answer have aided the defendant’s case? The second and third questions were companions. An answer thereto would have been little more than a guess. The evidence did not justify an answer that McCullough fired the shots. Therefore the jury, in our opinion, could have made but one answer, “We do not know.” There was no evidence on which an answer to the fourth question could have been predicated, no evidence of a demand on McCullough to deliver the money or to do any other act. Under all the circumstances, it made no difference since the bandit killed McCullough. Therefore, the defendant was not prejudiced by refusal of the court to submit the question.
Complaint is made of the instructions and especially of the ninth, which reads:
“You are further instructed that the court defines the words ‘purely accidental means’ to be that the insured had no part in it and did not contribute anything toward inflicting the injury; and the court further defines the words ‘purely accidental means’ not broad enough to permit the defendant company to put the construction upon said words that the bandit intentionally inflicted the injury. It is conceded that the bandit intentionally inflicted the injury upon the insured which resulted in the death of the insured, and so far as his death is concerned, you are instructed that it was by ‘purely accidental means.’ ”
The instructions taken as a whole, were not, in our opinion, improper. The words “accident” and “accidental means” as used in insurance policies, have been the subject of many definitions by the courts. Many policies have provisions exempting companies from liability in case the insured is injured “by his own act or the act of another.” Some of the cases cited by the defendant were where the company did not insure against the “act of another.”
Numerous other cases are cited supporting its theory, too many to here analyze. They were no doubt selected from almost a wilderness of cases in which varying facts and situations have been applied to varying principles. We think the better rule is that if one person intentionally injures another without misconduct on the part of the latter and unforeseen by him, such injury as to the latter is accidental.
In Gilliland v. Cement Co., 104 Kan. 771, 773, 180 Pac. 793, it was said:'
“The word accident does not have a settled, legal signification. It does have, however, a generally accepted meaning which is the same whether considered according to the popular understanding or the approved usage of language. An accident is simply an undesigned, sudden, and unexpected event, usually of an afflictive or unfortunate character, and often accompanied by a manifestation of force. The word undesigned must not be taken too literally in this connection, because a person may suffer injury accidental to him under circumstances which include the design of another.”
In Stark v. Wilson, 114 Kan. 459, 219 Pac. 507, this court considered the question whether the stabbing of a street-car conductor by a passenger without cause on the part of the conductor was an accident within the meaning of the workmen’s compensation act. It was said:
“In this instance, the conductor was without fault, and so the assault must have been the result of innate malevolence, provoked by the fact, not that he was Orville Stark, but that he was conductor of the car. Therefore, the court holds the workman lost his life through personal injury by accident arising out of his employment, within the meaning of the workmen’s compensation act.” (p. 463.)
Volume 5 of Joyce on The Law of Insurance (4956, 4957, § 2863a), contains an instructive chapter on accident, as applied to cases of insurance, wherein quotations are taken from various courts. Accidents are described as of two kinds: First, those that befall a person without any human agency, as for instance, a person being killed by lightning, etc.; second, those that are the result of human agency. This class he divides into four subdivisions:
“ . . . Fourth: if one person intentionally injures another, which does not result from an encounter or misconduct of the latter, but was unforeseen by him, such injury as to the latter, although intentionally inflicted by the former, would be accidental. When the injury is not the result of the misconduct or the participation of the injured party, it is to him, accidental, although inflicted intentionally by the other party.” (Citing Hutchcraft’s Executors v. The Travelers Insurance Co., 87 Ky. 300, 302.)
Other accidents of this class have been defined, in substance, as: An injury brought about designedly by another and occurring without the assured’s agency. (Maloney v. Maryland Casualty Co., 113 Ark. 174, 167 S. W. 845.) Death caused by fall or blow struck by a third person under a policy against injuries or death caused through external, violent and accidental means. (Richards v. Travelers Ins. Co., 89 Cal. 170, 23 A. S. R. 455.) Being waylaid and killed by robbers where the insured, a bank cashier, was shot and killed by a person attempting to rob the bank, and it is immaterial that as to the insured the injury was unexpected and unforeseen. (Travelers Protective Ass’n v. Fawcett, 56 Ind. App. 111.)
The same author, Joyce, holds that death by assassination and murder are both accidental, and that the killing by a third person of an insured person without the latter’s connivance or foreknowledge, is held to be accidental. (Citing American Accident Company v. Carson, 99 Ky. 441, 34 L. R. A. 301. See, also, Supreme Council of the Order of Chosen Friends v. Garrigus, 104 Ind. 133, 54 Am. Rep. 298; Ripley v. Railway Passengers’ Assur. Co., 20 Fed. Cas. 823; Mabee v. Continental Casualty Co., 37 Ida. 667, 37 A. L. R. 348; Railway Officials & Employees Accident Ass’n v. Drummond, 56 Neb. 235, 241, 76 N. W. 562; Insurance Company v. Bennett, 90 Tenn. 256, 25 A. S. R. 685; Button v. American Mutual Accident Ass’n, 92 Wis. 83; 53 A. S. R. 900; 14 R. C. L. 1260, § 437; 1 C. J. 431.)
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