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PlERRON, J.:
Lawrence L. Wheeler appeals the district court’s denial of his motion for jail time credit. He requests credit for time spent in custody in Johnson County on a charge of indecent solicitation of a child which was dismissed prior to his being transferred to Sedgwick County to face multiple charges of aggravated indecent liberties with a child.
Wheeler was charged in Johnson County with the indecent solicitation of J.M., a 10-year-old boy. The charge alleged that Wheeler, while in Sedgwick County, sent a letter to J.M. in Johnson County soliciting sexual acts. J.M. received the letter on August 31, 1993. Wheeler was arrested and held in Johnson County from January 9, 1995, to July 26, 1995, on that charge.
In Sedgwick County, Wheeler was charged with multiple counts of aggravated indecent liberties with J.M. Wheeler also faced charges of burglary, conspiracy to commit burglary, and theft in another Sedgwick County case. The indecent liberties charges were not filed in Sedgwick County until June 6,1995. Wheeler was arrested for these charges in the Johnson County jail on July 27, 1995. He remained in the Johnson County jail until transported and arraigned in Sedgwick County on July 28, 1995.
Wheeler pled guilty to all the Sedgwick County charges. On the four counts of aggravated indecent liberties, the district court sentenced Wheeler to concurrent terms of 51 months’ imprisonment. Wheeler filed a motion for additional credit for time served while in the Johnson County jail. The court granted Wheeler 2 days’ jail time credit for the time he spent in the Johnson County jail on the Sedgwick County charges. However, the court denied any jail time credit for the time Wheeler was held in Johnson County on the charge of indecent solicitation of a child.
Wheeler argues the district court erred in denying his motion for jail time credit for the 200 days he spent in the Johnson County jail before his transfer to Sedgwick County.
Pursuant to K.S.A. 21-4614, a sentencing court is required to give a defendant credit for time spent in jail pending the disposition of the defendant’s case. See State v. Babcock, 226 Kan. 356, 363, 597 P.2d 1117 (1979) (the legislature has required credit for jail time, and no discretion is granted to the court in allowing same); Payton v. State, 22 Kan. App. 2d 843, Syl. ¶ 2,923 P.2d 1059 (1996) (inmate has statutory right to receive jail time credit). Interpretation of K.S.A. 21-4614 is a question of law, and our review is unlimited. See State v. Robinson, 261 Kan. 865, Syl. ¶ 1, 934 P.2d 38 (1997).
K.S.A. 21-4614 provides:
“In any criminal action in which the defendant is convicted upon a plea of guilty or trial by court or jury or upon completion of an appeal, the judge, if he or she sentences the defendant to confinement, shall direct that for the purpose of computing defendant’s sentence and his or her parole eligibility and conditional release dates thereunder, that such sentence is to be computed from a date, to be specifically designated by the court in the sentencing order of the journal entry of judgment or the judgment form, whichever is delivered with the defendant to the correctional institution, such date shall be established to reflect and shall be computed as an allowance for the time which the defendant has spent incarcerated pending the disposition of the defendant’s case.”
Kansas courts interpreting K.S.A. 21-4614 have specifically held that jail time credit is earned only for the time spent in jail solely on account of the offenses for which the defendant is being sentenced. See State v. Calderon, 233 Kan. 87, Syl. ¶ 8, 661 P.2d 781 (1983); Campbell v. State, 223 Kan. 528, Syl. ¶¶ 1, 2, 575 P.2d 524 (1978); State v. Jenkins, 10 Kan. App. 2d 8, Syl. ¶ 1, 690 P.2d 396 (1984).
There does not appear to be a Kansas case on point, and neither party has cited a case with a similar factual scenario to our situation. In his brief, Wheeler relies on Brodie v. State, 1 Kan. App. 2d 540, 571 P.2d 53 (1977), as supporting authority. Brodie appears to contradict Wheeler’s position. Brodie escaped from prison after being convicted of second-degree murder. The time line of the case is as follows:
• ' 1/ 3/74 — Brodie escaped from custody
• 3/19/74 — Brodie reapprehended
• 5/31/74 — Brodie extradited to California to face murder charges
• 7/31/74 — California murder charges dismissed without prejudice
• 8/26/74 — California refiles murder charges
• 12/18/75 — California murder charges dismissed for lack of prosecution
• 4/14/76 — Brodie returned to Kansas and Kansas State Penitentiary
Brodie argued he was entitled to jail time credit against his Kansas conviction of second-degree murder, and on the subsequent conviction for escape, for the time he was in custody in the California jail (5/31/74 - 4/14/76). The district court denied Brodie’s request because he had escaped from prison. This court held that Brodie was not entitled to credit on his second-degree murder conviction since his confinement in California was the result of the California murder charges or the Kansas escape charge. The Brodie court remanded the case to the district court for a determination, among other things, of whether Brodie was held during the periods of 7/31/74 - 8/26/74 and 12/18/75 - 4/14/76 solely on his sentence for escape. If so, he was entitled to credit for that time on the escape charge only. 1 Kan. App. 2d at 541-43.
The court did not grant credit for the period of approximately 18 months during which Brodie was involved with the California murder proceedings. Brodie did not get jail time credit because he was being prosecuted for the California murders, even though those charges were later dismissed.
In Wheeler’s case, the Sedgwick County charges of indecent liberties were not filed until June 6, 1995, and Wheeler was not arrested on those charges until July 27, 1995. The State contends a defendant is not entitled to credit on a sentence for time which he or she has spent in jail upon other, distinct and wholly unrelated charges. Campbell, 223 Kan. 528, Syl. ¶ 2.
Wheeler argues this court should look beyond the parameters of K.S.A. 21-4614 to examine the specific facts of his case. He reminds the court that the Kansas sentencing statutes are to “be liberally construed to the end that persons convicted of crime shall be dealt with in accordance with their individual characteristics.” K.S.A. 21-4601. See State v. Scherzer, 254 Kan. 926, 933, 869 P.2d 729 (1994) (sentencing court should avoid inconsistencies and allow individualized sentencing dispositions whenever practicable).
When examined in such a light, Wheeler argues he is entitled to jail time credit for the full time he spent in Johnson County because under K.S.A. 21-3108, setting forth the principles of double jeopardy and compulsory joinder, Johnson County is now barred from refiling the indecent solicitation charge, as it was connected with the Sedgwick County case.
The double jeopardy statute, K.S.A. 21-3108(2)(a), prohibits a subsequent prosecution if the defendant was formerly prosecuted for a different crime, or for the same crime based upon different facts, if such former prosecution
“[rjesulted in either a conviction or an acquittal and the subsequent prosecution is for a crime or crimes of which evidence has been admitted in the former prosecution and which might have been included as other counts in the complaint, indictment or information filed in such former prosecution or upon which the state then might have elected to rely; or was for a crime which involves the same conduct, unless each prosecution requires proof of a fact not required in the other prosecution, or the crime was not consummated when the former trial began.”
The State responds that K.S.A. 21-3108 has no bearing on jail time credit since K.S.A. 21-4614 is the controlling statute. Con sequently, the State contends Wheeler is not entitled to his request because he was not in Johnson County solely on the Sedgwick County charges. We agree. Whether double jeopardy or compulsory joinder might have applied to the Johnson County case if it had been fully prosecuted is not controlling on the issue of jail time credit pursuant to K.S.A. 21-4614. The Johnson County count was charged prior to the Sedgwick County counts and was dismissed when Wheeler was arrested on the Sedgwick County counts. He received his 2 days’ credit as required by the law for the time he was held on the Sedgwick County counts in Johnson County. With the dismissal of the Johnson County charges, there was nothing to which the 7 months’ incarceration on that charge could apply.
Jail time credit is not earned under K.S.A. 21-4614 for time spent in jail solely on account of charges which are then dismissed.
Wheeler also argues that if he does not receive the 7 months’ jail time credit, it is a violation of his constitutional right to be free from cruel and unusual punishment. Wheeler cites no case law supporting this argument.
Wheeler was held in Johnson County on legitimate charges. Johnson County was one of the proper venues where Wheeler could have been charged with indecent solicitation of a child. There is no indication in the record as to the status of the Johnson County case at the time it was dismissed. Sedgwick County, where there was also venue, for whatever reason chose not to charge Wheeler with that crime.
Incarceration awaiting trial on a case that is dismissed is sometimes troubling. However, there is no constitutional or statutoiy remedy under these facts upon which Wheeler may call. There is no showing of irregular proceedings or actions. There is nothing in the record to support a finding of cruel or unusual punishment.
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Gernon, J.:
In this appeal, the Kansas Department of Revenue (KDR) contends the Board of Tax Appeals (BOTA) erred when it exempted certain machinery and components of Alsop Sand Company, Inc., (Alsop) from sales and compensating use taxes.
The relevant part of the statute involved, K.S.A. 1996 Supp. 79-3606(kk), exempts from sales and use taxes
“all sales of machinery and equipment used directly and primarily for the purposes of manufacturing, assembling, processing, finishing, storing, warehousing or distributing articles of tangible personal property in this state intended for resale by a manufacturing or processing plant or facility or a storage, warehousing or distribution facility:
“(2) For purposes of this subsection ‘machinery and equipment used directly and primarily’ shall include, but not be limited to:
(A) Mechanical machines or major components thereof contributing to a manufacturing, assembling or finishing process.”
The term “major components” is not defined by statute or case law.
BOTA concluded that a major component should be determined by the importance of the component and its purpose in the production or manufacturing process.
The KDR asserts that a major component ought to be considered as such only after the taxpayer designates the component as a capital expenditure.
Alsop operates sand dredging operations. Sand is a natural abrasive. During the audit period in question, June 1, 1989, to May 31, 1992, Alsop spent over $50,000 replacing pump parts, screws, screens, pipe flanges, pipe elbows, clamps, a winch, an impeller, and an electric motor on its dredges. Alsop expensed all of the above expenditures and did not capitalize any.
In September 1992, the KDR issued Alsop a notice of assessment of additional retailer sales and use taxes in the amounts of $49,011 and $3,673, including inte/est and penalties, for fuel purchases and the various equipment, machinery, and parts mentioned above for the period in question. The total assessments of additional taxes, including interest and penalties, were subsequently reduced to $9,893 and $3,510.
On appeal to the Director of Taxation, an administrative law judge (ALJ) denied Alsop’s exemption request and found that the impeller, plates, sleeves, screens, pipe flanges, screws, pipe elbows, motor, and other pump parts did not qualify for the exemption stated in 79-3606(kk) because the items were not capitalized and were not used directly and primarily for manufacturing. The ALJ upheld the KDR’s assessments.
On appeal to BOTA, BOTA found that the components at issue were exempt from taxation under K.S.A. 79-3606(mm) (now K.S.A. 1996 Supp. 79-3606[kk]) because the items were used in the production process. BOTA rejected the KDR’s contention, noting: “There exists no law or regulation which states that expensed items do not qualify whereas capitalized items will. The distinction may be easy to apply, but it does not appear in law.” BOTA further noted that the size and cost of the items in issue were not determinative of whether the items constituted “major components” for purposes of the exemption. BOTA found the appropriate test was to consider the importance of the equipment and its purpose in the production process, stating:
“An exempt item would do its essential function on the processing machinery at some point before the final product is produced. In this case, the components are parts of the machinery used to produce the sand. Without these particular items on the processing machinery the process would grind to a halt. These items are then integral to the process of producing salable sand. The evidence shows that these items transport, convey, or handle the sand before it reaches its final stage.”
In In re Tax Appeal of Taylor Crane & Rigging, Inc., 22 Kan. App. 27, 28, 913 P.2d 204, rev. denied 258 Kan. 858 (1995), this court reviewed a number of general principles which apply to appeals of this nature:
“ ‘In Kansas, taxation is the rule and exemption is the exception. Assembly of God v. Sangster, 178 Kan. 678, 680, 290 P.2d 1057 (1955). The burden of establishing an exemption from taxation is on the party claiming the exemption. Director of Taxation v. Kansas Krude Oil Reclaiming Co., 236 Kan. 450, 454, 691 P.2d 1303 (1984). One who claims a tax exemption must bring himself clearly within the exemption provisions of the statute. Warren v. Fink, 146 Kan. 716, Syl. ¶ 1, 72 P.2d 968 (1937). Statutory exemption provisions are strictly construed against the party requesting exemption. Farmers Co-op v. Kansas Bd. of Tax Appeals, 236 Kan. 632, 635, 694 P.2d 462 (1985). All doubts concerning exemption are to be resolved against the exemption and in favor of taxation. Trustees of The United Methodist Church v. Cogswell, 205 Kan. 847, 851, 473 P.2d 1 (1970).’ ” (Quoting In re Tax Appeal of Derby Refining Co., 17 Kan. App. 2d 377, 380-81, 838 P.2d 354 [1992], rev. denied 252 Kan. 1092 [1993]).
We note that we are faced with a disagreement between two administrative agencies as to the interpretation of a statute. While we will give consideration to the position of each, “[t]he final construction of a statute rests within the courts.” In re Tax Appeal of Taylor Crane & Rigging, Inc., 22 Kan. App. 2d at 31.
The KDR maintains that it has established and published a “rule” which defines the phrase “major component” as those items which are capitalized for federal income tax purposes. However, this statement was contained in an information guide, which also stated: “This information guide was designed for informational purposes only. Under no circumstances should the contents be used or cited as authority for setting or sustaining a technical position.”
K.S.A. 1996 Supp. 77-415 defines a rule and a regulation. K.S.A. 77-425, K.S.A. 1996 Supp. 77-416, K.S.A. 1996 Supp. 77-420, and K.S.A. 1996 Supp. 77-421 define how a rule is promulgated.
Despite this matter being an issue for many years, our reading of the record and the Kansas Administrative Regulations reveals no valid rule or regulation relating to “major component” issues having been proposed and adopted pursuant to the relevant statutes.
Nevertheless, we should not completely disregard the KDR’s interpretation of 79~3606(kk). The KDR interpretation establishes a bright line test that is easily applied and understood by taxpayers. By requiring an item to be a capital expenditure to qualify as a major component, the KDR’s test implicates a belief that those items with a useful life extending beyond the close of a taxable year are an integral part of the manufacturing process. See 26 U.S.C. § 263 (1994).
Alsop maintains the KDR’s test fails to consider the importance of each component or its role in the overall production process and arbitrarily denies exemption to any item of property which is simply expensed by a taxpayer. Alsop argues the test allows the KDR to simply review a taxpayer’s federal income tax return to determine whether a particular component was capitalized and, thus, qualifies for the exemption. Alsop contends the KDR’s interpretation is too restrictive.
We conclude that the KDR’s position is rationally related to the legislature’s objective to reduce the impact state taxation has on the production of goods. The KDR’s position and definition provides a bright line for business planning and leaves much of the classification to the taxpayer. It takes the uncertainty out of business decisions and, potentially, will save on appeals, costs, attorney fees, penalties, and interest.
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Royse, J.:
Ronald Baldwin appeals his sentence for four counts of aggravated assault on a law enforcement officer. We affirm.
Ronald Baldwin was charged with four counts of aggravated assault on a law enforcement officer and three counts of aggravated assault for acts committed on March 31, 1995. Pursuant to a plea agreement, Baldwin pleaded no contest to the four counts of aggravated assault on a law enforcement officer in exchange for the dismissal of the three counts of aggravated assault. Baldwin’s convictions and criminal history placed him in a 6-1 box on the sentencing grid with a presumptive sentence of 17 to 19 months for each count. Because Baldwin used a firearm to commit the offenses, his presumptive sentence was imprisonment.
The plea agreement between Baldwin and the State called for a controlling sentence of 60 months. At sentencing, the prosecutor advised the court that the agreement could be accomplished by imposing a sentence of 20 months for each count — three counts to run consecutively and one count to run concurrent with the other three. The court accepted the agreement and sentenced Baldwin accordingly. The court noted that aggravating factors justified a durational departure for each of the counts.
The parties and the court later agreed that Baldwin s sentence violated K.S.A. 21-4720(b)(4), which provides that the total controlling sentence cannot exceed twice die base sentence. Baldwin s total controlling sentence (60 months) exceeded twice his base sentence (20 months). Baldwin filed a motion to correct illegal sentence, and the court resentenced Baldwin on July 7, 1995. The district court increased the base sentence to 38 months and reduced the sentences on the remaining three counts to 19 months. The court ordered the first and second counts to run consecutively and the remaining two counts to run concurrent with the first two. This gave Baldwin a total controlling sentence of 57 months. During resentencing, the court reiterated its previous findings justifying a departure as to each count.
On appeal, Baldwin argues that the district court erred in increasing his base sentence. Before turning to the merits, however, we first must consider the State’s argument that this court lacks jurisdiction to hear this appeal.
K.S.A. 21-4721(c)(2) precludes appellate review of “any sentence resulting from an agreement between the state and the defendant which the sentencing court approves on the record.” The statute does not preclude review of the resentencing issue raised here.
Baldwin acknowledges that the sentence originally imposed was illegal. An illegal sentence includes any sentence which does not conform to statutory provisions either in character or in the term of punishment authorized. State v. Zirkle, 15 Kan. App. 2d 674, Syl. ¶ 2, 814 P.2d 452 (1991). K.S.A. 22-3504 enables a court to correct an illegal sentence at any time. “Where a person convicted of a crime has never been legally sentenced, a proper sentence may later be imposed.” State v. Osbey, 238 Kan. 280, 288, 710 P.2d 676 (1985).
Baldwin takes the position, however, that the only illegality in his sentence was that the total of the consecutive sentences exceeded twice the base sentence. Baldwin reasons, therefore, that the district court was without authority to correct anything else in the sentence and, thus, could not alter the separate sentences imposed for each count. Baldwin concludes that he should receive a controlling sentence of 40 months (two consecutive 20-month sentences and two other concurrent 20-month sentences).
Baldwin cites no authority which squarely addresses the issue raised here. A similar situation, however, arose in State v. Woodbury, 132 Kan. 22, 294 Pac. 928 (1931). In Woodbury, the defendant was convicted of 10 counts of embezzlement. On appeal, the Supreme Court held that the sentence imposed on seven of those counts was improper, because the sentencing court had applied the wrong version of the statute. The case was remanded for re-sentencing. 132 Kan. at 35.
On remand, the district court resentenced the defendant on all 10 counts. State v. Woodbury, 133 Kan. 1, 2, 298 Pac. 794 (1931). Woodbury appealed the new sentence, and the Supreme Court affirmed. The court held that where a defendant is convicted on several counts of an information, the judge should pronounce a single judgment declaring the full measure of punishment to be imposed for all such offenses. 133 Kan. at 2; see Osbey, 238 Kan. at 287.
Based on the reasoning in Woodbury, we conclude the district court did not err in resentencing Baldwin. We also note that the parties negotiated a 60-month controlling sentence in this case. Baldwin’s argument would permit him to obtain the full benefit of his plea agreement, while avoiding some of the burdens of that agreement.
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Marquardt, J.:
The Board of County Commissioners of Ness County (Ness County) appeals from the decision of the district court which upheld the order of the Board of Tax Appeals (BOTA) that awarded Bankoff Oil Company (Bankoff) a partial refund of ad valorem taxes levied on an oil lease for the 1993 tax year. The question presented is whether BOTA erred in calculating the decline rate for the lease. This issue turns on whether oil production data for the period following the statutory valuation date was properly considered.
Bankoff operates an oil lease containing two wells in the Brownell field of the Cherokee Sand Reservoir, known as the Linden lease. Oil and gas operators are required to file an annual statement of assessment with the county appraiser in the county where the production exists. See K.S.A. 1996 Supp. 79-306; K.S.A. 79-332a. In February 1993, Bankoff filed the required statement for the Linden lease, showing that its fair market value was $3,357,045 and its assessed value was $1,007,114, with a 2 percent rate of depletion. Based upon a 2 percent rate of depletion, the county appraiser valued the lease at $3,361,222, with an assessed value of $1,008,367.
Later, Bankoff decided that the 2 percent depletion rate did not accurately reflect the actual decline in production. Bankoff filed a statement protesting payment of the ad valorem taxes, paid the taxes under protest, and applied for a refund. In its tax protest, Bankoff stated that a major decline had developed in the fourth quarter of 1992 and ■ that a comparison of the fourth quarter of 1992 to the first quarter of 1993 indicated a 51 percent decline, with a sustained decline of 40 percent in 1993. In a subsequent hearing, Bankoff presented evidence that the computer program it had used to calculate the initial decline percentages only evaluated annual declines and not quarter to quarter declines.
The 1993 Oil and Gas Appraisal Guide (PVD Guide) prepared by the Division of Property Valuation of the Kansas Department of Revenue provides, in part:
“Producing a finite reserve results in a depleting asset. The rate of depletion is known as the decline rate. An oil reserve produced at its potential will theoretically begin to decline immediately. When a lease is new and just beginning its production, the decline rate is not known. The decline rate estimate depends on the age of the lease and cannot be predicted accurately until a reasonable length of time has passed. A history of the lease should be kept for this purpose.
“No rules can be established to cover every facet. Decisions based on logical judgement and factual situations with similar leases in the general locale must prevail.”
The PVD Guide provides the following guidelines:
“A. New Leases
For leases that are less than one year old and in cases where an annual decline rate cannot be calculated, compute the annual decline rate by using back-to-back quarters, such as prior year last quarter with current year first quarter, and convert to an annual decline by using the following table. Requests should be accompanied by decline curves for as much history as is available.
When adjustment is requested by the operator for obvious abnormal sharp decline, it should be supported by data not only for the prior year demonstrating this decline, but production for the year of assessment. A misapplication of the decline factor could result in extreme under or overappraisal of the lease.
“B. Existing Leases
To estimate the decline rate on an existing lease having stable production from year to year, the current year decline is figured by using the prior two production years. For the 1993 tax year, use 1992 and 1991 as follows:
Decline = 1991 Production — 1992 Production
1991 Production
When using prior years’ production to estimate the current [year decline], the appraiser must be sure that the production figures are for a full year and represent a typical operation with no significant workover periods or lease shutdowns or other nonproducing periods effecting the lease producing capability.” (Emphasis added.)
At the initial BOTA hearing, the county appraiser testified that in determining the amount of decline, she looks at both the annual and historic decline. The decline curve that the county appraiser plotted on the Linden lease from its beginning in 1989 through the end of 1992 did not show a decline. The county appraiser compared the Linden lease’s production in 1991 to that in 1992 and arrived at a 2 percent decline. At some point, the county appraiser examined the production figures for the first quarter of 1993; however, she testified that this information would not have changed her calculation because she had seen oil leases suffer a decline and then go back up and stabilize.
In a letter to BOTA dated August 29,1994, the county appraiser stated: “When I work the present year renditions I do consider the first quarter of that year since it is available and it can indicate change, but at this point this lease had no indication of a fall in production.”
At the initial BOTA hearing, Bankoff presented the testimony of Barney Sullivan, a tax consultant specializing in mineral properties. Sullivan stated that he had testified as an expert before BOTA many times and that he had been involved in the formulation of the PVD Guide. In calculating the decline rate of the Linden lease, Sullivan compared the last quarter of 1992 to the first quarter of 1993, arriving at a 16 percent decline for that period. Sullivan annualized this to a 50.2 percent decline. Sullivan’s ra tionale for the decline calculations came from the PVD Guide, which Sullivan quoted as follows:
“For leases that are less than one year old and in cases where an annual decline rate cannot he calculated, compute the annual decline [rate] by using back-to-back quarters, such as prior year last quarter with current year first quarter, and convert to an annual decline by using the following table.” (Emphasis added.)
Sullivan testified that this language applied both to new leases and to cases where an annual decline rate cannot be calculated and that the Linden lease fell under the second application. Sullivan testified further that it was “absolutely inappropriate” to use a comparison of the prior 2 years where a lease has a considerable decline. Sullivan agreed that if the decline rate on the Linden lease is figured by comparing the production in 1991 to that in 1992, then a 2 percent decline rate is indicated.
Bankoff also presented the testimony of Richard J. Flaker, a consulting petroleum engineer. Flaker testified that there are 14 wells in the Brownell field and that they all pump oil from a common source. Using exhibits and charts, Flaker showed that although production at Brownell field reached a sharp peak in August 1992, the Linden lease wells had a flat production from 1990 through October 1992. Flaker testified further that the Linden lease wells would have peaked with the rest of the Brownell field had they not been mechanically limited.
Flaker compared Linden lease’s production for the last quarter of 1992 to the first quarter of 1993 and arrived at a 16 percent decline for that period. Flaker utilized data from the entire Brownell field as well as a similar field, known as the Jolly field, in determining the reasonableness and appropriateness of the 16 percent decline rate.
In its order initially affirming the county appraiser’s assessment, BOTA stated:
“The county properly valued the subject property using the guidelines as established by PVD. The taxpayer argues that the PVD guidelines indicate that the county can use post valuation . . . data to value the property. The Board notes that the guidelines state that post valuation data may be used only in cases where the annual decline rate cannot be accurately calculated or if the lease is new. Here, the subject property has been producing oil for three full years prior to the valuation date and a reliable production history had been established. The production history indicated that production had been fairly stable over the three year period and the county used the information available as of January 1,1993, to value the property. Therefore, the county was not in error to refuse the taxpayer’s request to use production data obtained after January 1, 1993. Furthermore, to deviate from the guidelines and value the subject property differently than other similar property in the area would violate the uniform and equal clause of the Kansas constitution. To explain, existing oil leases in the county should be valued as of January 1, 1993, using production information obtained in 1991 and 1992. If the county were to use 1993 production for this one lease only, then [it] would be valued differently than the other leases in the county and thus, not uniform and equal.”
Bankoff filed a petition for reconsideration, which BOTA granted, and a second hearing was held. Bankoff presented the testimony of John R. Cooper, manager of the oil and gas section of the Kansas Department of Revenue. Cooper testified that the value of an oil and gas lease is the present value of its future production and that the theory of the PVD Guide was to appraise the reserves in the ground. Cooper testified further that the PVD Guide was not meant to limit the use of a comparison of the last quarter of the preceding year to the first quarter of the current year to new leases. In fact, it was Cooper’s testimony that his office recommended using the data from the first quarter of the current year if a sharp decline is indicated that otherwise would not be indicated by comparing the previous 2 years. Cooper testified that the Linden lease took on the characteristics of a new lease because of its sharp decline. Cooper also testified that in evaluating the 1993 decline rate for the Linden lease, he would probably annualize the first quarter of 1993.
Cooper testified that while the method prescribed by the PVD Grade for valuing existing leases with stable production (the comparison of production for the 2 prior years) was useful in many cases, it would not be appropriate for certain leases. Cooper stated that this method only looks at two points on a curve and that it was not always “the last word” on the value of a. lease.
Cooper testified that another way of calculating the decline is to look at the field generally and then compare that data to the lease in question. Bankoff presented evidence that the county appraiser had assessed a 30 to 50 percent decline to most of the other leases in the Brownell field.
Following the second hearing, BOTA reversed its earlier decision, stating:
“After a review of all the evidence, the Board finds that using alternative methods of computing decline rates (including the consideration of current year production) has been advised by PVD for many years and is a common practice among appraisers, including the Ness County Appraiser. Accordingly, the Board finds the use of such techniques in this case does not violate the constitutional requirement of a uniform and equal basis for valuation.”
BOTA found that “the most appropriate method for computing the decline rate of the subject property is the suggestion by Mr. Cooper to annualize the 1993 first quarter production and compare the result with the previous year’s production.” Using this method, BOTA calculated that the Linden lease had an 18 percent decline rate. Two BOTA members dissented, stating that they would affirm the county appraiser’s valuation.
Ness County appealed BOTA’s decision to the district court. The district court found that there was sufficient evidence to support BOTA’s decision and that Ness County had failed to provide adequate grounds for reversing BOTA’s decision.
Ness County argues that BOTA erred in using post-valuation data in figuring the decline rate for the Linden lease.
This court may grant relief under K.S.A. 77-621(c) if:
“(4) the agency has erroneously interpreted or applied the law;
“(5) the agency has engaged in an unlawful procedure or has failed to follow prescribed procedure;
“(7) the agency action is based on a determination of fact, made or implied by the agency, that is not supported by evidence that is substantial when viewed in light of the record as a whole, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this act; or
“(8) the agency action is otherwise unreasonable, arbitraiy or capricious.”
The party challenging an action taken by BOTA has the burden of proving that it was erroneous. In re Tax Appeal of Scholastic Book Clubs, Inc., 260 Kan. 528, 536, 920 P.2d 947 (1996). “Aruling by BOTA on a subject within its area of expertise carries a strong presumption of correctness.” In re Tax Refund Application of Affiliated Property Services, Inc., 19 Kan. App. 2d 247, 250, 870 P.2d 1343 (1993).
In the absence of evidence that an assessment was arrived at fraudulently, arbitrarily, or capriciously, neither a difference of opinion as to value nor an error in judgment by assessing officers is reason for interference by a court. Cities Service Oil Co. v. Murphy, 202 Kan. 282, 289, 447 P.2d 791 (1968). At the same time, courts have the authority to correct the acts of taxing officials where they, have proceeded “without statutory authority or contrary to the statutes.” Mobil Oil Corporation v. Medcalf 207 Kan. 100, 103-04, 483 P.2d 1111 (1971).
Oil and gas leases, together with all producing wells, materials, and equipment, are assessed and taxed as personal property. K.S.A. 79-329; Mobil Oil Corporation v. McHenry, 200 Kan. 211, 224, 436 P.2d 982 (1968). K.S.A. 79-301 provides: “All tangible personal property subject to taxation shall be listed and assessed as of the first day of January each year in the name of the owner thereof.” See Palmer v. First Nat'l Bank of Kingman, 10 Kan. App. 2d 84, 87, 692 P.2d 386 (1984).
K.S.A. 1996 Supp. 79-501 provides, in part: “Tangible personal property shall be appraised at its fair market value in money except as provided by K.S.A. 79-1439, and amendments thereto. All such real and tangible personal property shall be assessed at the rate prescribed by K.S.A. 79-1439, and amendments thereto.” K.S.A. 1996 Supp. 79-1439(b)(2)(B) provides that mineral leasehold interests shall be assessed at 30 percent of fair market value. See State ex rel. Stephan v. Martin, 230 Kan. 747, 754, 641 P.2d 1011 (1982).
K.S.A. 1996 Supp. 79-503a defines fair market value as
“the amount in terms of money that a well informed buyer is justified in paying and a well informed seller is justified in accepting for property in an open and competitive market, assuming that the parties are acting without undue compulsion. For the purposes of this definition it will be assumed that consummation of a sale occurs as of January 1.”
K.S.A. 1996 Supp. 79-503a provides the factors that are to be considered by county appraisers when determining fair market value, one of which is sales. K.S.A. 79-331(a) provides specific factors for an appraiser to consider when determining the value of oil and gas leases. The objective of both K.S.A. 79-331 and K.S.A. 1996 Supp. 79-503a is to determine the actual fair market value of the property appraised. Martin, 230 Kan. at 755-56. In its reconsideration, BOTA did not address any of the other factors listed in the various statutes for determining actual fair market value; instead, it focused only on the decline rate, using the first quarter of 1993 to make its calculation.
The legislature has granted the director of property valuation the “ultimate supervisory responsibility for the administration of the assessment and tax laws of the state.” McManaman v. Board of County Commissioners, 205 Kan. 118, 126, 468 P.2d 243 (1970); see K.S.A. 79-1401; K.S.A. 79-1404. In exercising this authority, the Division of Property Valuation has issued the PVD Guide. However, the PVD Guide is invalid to the extent it conflicts with the legislation that authorizes the tax. “ ‘Tax laws are statutory and do not exist apart from the statute. As such, they must be strictly construed.’ ” Executive Aircraft Consulting, Inc. v. City of Newton, 252 Kan. 421, 425, 845 P.2d 57 (1993). The PVD Guide is similar to a regulation issued by an administrative agency. Rules and regulations of an administrative agency that conflict with authorizing statutes are invalid. See Pemco, Inc. v. Kansas Dept. of Revenue, 258 Kan. 717, 720, 907 P.2d 863 (1995).
The practice of using data from the first quarter of the next tax year for personal property assessment violates the requirements of K.S.A. 79-301 that personal property be assessed as of January 1 of the tax year. Therefore, the procedures for using post-valuation data contained in the PVD Guide are invalid.
We reverse and remand with instructions that the district court reinstate BOTA’s original finding of a 2 percent decline rate.
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The opinion of the court was delivered by
Dawson, J.:
This was an action to recover damages for breach of a contract of purchase and sale.
The facts were these: Defendant Umback purchased 100 hogs from plaintiff for $2,300. The hogs were to be selected from plaintiff’s herd of 150 or 160 head. Defendant came to plaintiff's farm in Ford county to select the hogs, and when he had chosen 53 of them he discovered that he had made a poor bargain — that there were not enough large hogs to make up the hundred he had purchased, so he rescinded the contract. Plaintiff thereupon shipped 100 of his largest hogs to Kansas City and sold them at the best price available, and after paying the railway freight rate from Dodge City, plaintiff’s nearest shipping point, together with other proper and usual expenses, he failed to realize the $2,300 which defendant had agreed to pay for them, and sued 'defendant for the difference — a matter of $490.30.
A verdict and judgment in plaintiff’s behalf were rendered in the sum of $296.88.
Defendant appeals, assigning two errors — in overruling his demurrer to plaintiff’s evidence, and in the admission of incompetent evidence. A third assignment of error, that the verdict was not sustained by sufficient evidence, is merely a repetition of the point urged against the ruling on the demurrer.
It seems to be defendant’s theory that as there was no market for hogs at Dodge City, there was in consequence no market value of hogs at that point and no damage proved. That does not follow. The trial court and jury properly took into consideration the fact of common knowledge that the principal hog market for Ford county as for nearly the whole state was at Kansas City (State v. Kelly, 71 Kan. 811, 820 et seq., 81 Pac. 450; Chaput v. Demars, 120 Kan. 612, 244 Pac. 1042; State v. Bell, 121 Kan. 866, 869, 250 Pac. 281; 23 C. J. 59, 78); and at least one proper way to ascertain the market value of hogs in Ford county is to ascertain their market value in Kansas City and deduct freight charges from the local shipping point in Ford county (Dodge City, apparently) to Kansas City and any other necessary expense pertaining to the sale of the hogs in Kansas City, and the result would show with sufficient precision the market value in Dodge City. (Evans v. Moseley, 84 Kan. 322, 114 Pac. 374; Coöperative Association v. Schultze, 112 Kan. 675, 212 Pac. 646.)
The facts concerning the Kansas City market price for hogs were shown by producing a copy of the Daily Drovers Telegram, a well known Kansas City newspaper, which is widely read because of its exhaustive reports of all matters of general interest to growers and dealers in live stock throughout the trade territory tributary to Kansas City. This paper gave the market price for hogs on the day plaintiff’s hogs arrived, and indeed it reported the actual sales of plaintiff’s hogs on that day’s market. This was competent evidence, and defendant’s excerpts from forty- and' fifty-year-old decisions to the contrary are worthless nowadays. (Ray v. Railway Co., 90 Kan. 244, 248, 133 Pac. 847; Poultry Co. v. Railroad Co., 99 Kan. 540, 163 Pac. 448; Nelson v. Railroad Co., 116 Kan. 35, 225 Pac. 1065; 22 C. J. 188; 10 R. C. L. 1167; 2 R. C. L. Supp. 1163.)
Defendant’s objections to the judgment cannot be sustained, and it is therefore affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The defendant appeals from an order denying his motion to quash an indictment filed against him and appeals from a judgment sustaining a demurrer to his plea in abatement filed by him against the indictment. The record does not disclose any final judgment. On inquiry, it has been ascertained that the action has not been tried, and judgment has not been rendered against the defendant. Can the defendant appeal before he has been tried and judgment has been pronounced against him?
In 2 Enc. PI. & Pr., 149, it is said:
“Orders and .rulings made in the progress of a criminal cause are .not appeal-able, nor can they be reviewed before final judgment has been entered. No appeal can be taken, therefore, from a verdict of guilty unless a judgment is entered thereon. ... Nor from an order overruling a plea in abatement to an indictment. Nor from a decision overruling a motion to quash an indictment.”
In 2 R. C. L. 45 the following language is used:
“In criminal prosecutions the same policy with respect to appeals prevails as in other cases, and as a general rule a judgment to be reviewable by appeal or otherwise must be final.”
■ The writer in 17 C. J. 26 says:
“At common law a writ of error could never be obtained before judgment, but was granted only to review a final determination of a cause. This rule has been followed generally by the statutes providing for review; and in the absence of a statute which provides otherwise, in order that there may be a review of a criminal proceeding by writ of error or appeal, a final judgment must have been rendered.”
Approximately two hundred cases from thirty-three states are there cited to support the rule stated in the text. We quote from Heike v. United States, 217 U. S. 423, some of the headnotes of which read as follows:
“Appellate jurisdiction in the federal system of procedure is purely statutory.”
“A case cannot be brought to this court by piecemeal; it can' only be reviewed here after final judgment.”
“A judgment overruling a special plea of immunity under statutory provisions, with leave to plead over, does not, in a criminal case, terminate the whole matter in litigation, and is not a final judgment to which a writ of error will lie from this court.”
In that case,' Heike had been indicted for violation of the custom laws of the United States. He filed a special plea in bar claiming immunity from prosecution. A writ of error was allowed to the supreme court. A motion to dismiss was filed and sustained.
In 17 C. J. 37 it is said:
“An order of the court sustaining demurrers to special pleas filed by defendant to the whole indictment is not a final judgment, and therefore is not reviewable directly by writ of error, or by appeal.”
Our statute, section 62-1701 of the Revised Statutes, reads:
“An appeal to the supreme court may be taken by the defendant as a matter of right from any judgment against him; and upon the appeal any decision of the court, or intermediate order made in the progress of. the case may be reviewed.”
This court has given attention to this subject at least seven-different times. We quote from those cases as follows:
■ “The law allows no appeal in a criminal case until its final determination.” (Cummings v. The State, 4 Kan. 225.)
“In a criminal action an appeal cannot be taken by the defendant from -the district court to the supreme court until after, a judgment has been rendered in the case; therefore, an appeal will not lie from an order of the district court, which overrules a motion to quash an information, or which sustains a motion for a continuance, while the action is still pending in the district court.” (State v. Freeland, 16 Kan. 9.)
“A defendant in a criminal case cannot bring to this court on appeal the ruling of the district court sustaining the demurrer on the part of the state to a plea of autrefois acquit, until after the trial and judgment on the merits.” (State v. Horneman, 16 Kan. 452.)
“An appeal in a criminal action can be taken by a defendant only after judgment, and an intermediate order of which he complains can be reviewed only on such an appeal.” (State v. Edwards, 35 Kan. 105, 10 Pac. 544.)
“The majority of the court reach the conclusion that if the petitioner was entitled to his discharge in the district court, he ought to be released in his proceeding by habeas corpus, as that proceeding is the only one which affords him a speedy remedy. If his only remedy is by appeal, he must continue wrongfully restrained of his liberty until the case is finally determined by the district court, as an appeal can be taken by a defendant only after judgment.” (In re McMicken, Petitioner, 39 Kan. 406, 409, 18 Pac. 473.)
“In criminal cases which are brought to the supreme court by appeal intermediate orders made in the progress of the trial can be reviewed only after judgment.” (State v. Coffelt, 66 Kan. 750, 71 Pac. 588.)
“The state may appeal from an order quashing an information (Gen. Stat. 1915, §8199), but the defendant can only seek a review of the overruling of such a motion in the course of an appeal from a judgment of conviction. (The State v. Freeland, 16 Kan 9.) If the defendant shall be convicted he can upon appeal raise any questions presented by his motion to quash other than the insufficiency of the title of the act.” (State v. Scott, 109 Kan. 166 169, 197 Pac. 1089.)
A different rule has been provided by section 62-1703 of the Revised Statutes where an indictment or information has been quashed or set aside and the state appeals. That section reads:
“Appeals to the supreme court may be taken by the state in the following cases, and no other: First, upon a judgment for the defendant on quashing or setting aside an indictment or information; second, upon an order of the court arresting the judgment; third, upon a question reserved by the state.”
“The state may appeal from a decision of a district court in a criminal action quashing a warrant.” (Junction City v. Keeffe, 40 Kan. 275, 19 Pac. 735.)
“The state has the right to appeal from a judgment of a district court sustaining a plea in abatement quashing the information and discharging the defendant.” (State v. Huffman, 51 Kan. 541, 33 Pac. 377.)
“The state may appeal from an order quashing one count of an information, although another count charging a different act is held sufficient or is not attacked.” (State v. Lumber Co., 83 Kan. 399, 111 Pac. 484.)
In State v. Sacks, 116 Kan. 148, 225 Pac. 738, the defendant was prosecuted for a violation of the prohibitory liquor law. He filed a plea in bar and abatement; he introduced evidence in support of his plea; a -demurrer to- that evidence was sustained; and the plea was overruled. His appeal was considered. The judgment of the district court was reversed, and that court was directed to sustain the plea in bar.
In State v. Backstrom, 117 Kan. 111, 230 Pac. 306, the defendant was prosecuted for violating the prohibitory liquor law. He filed pleas in abatement to the charges contained in two informations filed against him. The pleas were tried to a jury. The court sustained the plea as to two counts in the informations and overruled it as to one count. The state appealed from the order sustaining the plea as to the two counts, and the defendant appealed from the order overruling his plea as to the other count. This court affirmed the judgment of the district court overruling the plea as to two counts and reversed the judgment of the district court, sustaining the plea as to the other count. The right of the defendant to appeal was not raised by the briefs in either of those cases, and the subject was not discussed by the court.
This question has not been presented by the briefs in the present action, but the court realizes that if appeals can be taken in criminal actions on questions of this character before final judgment, unnecessary delay will occur in many criminal prosecutions. Unless the practice is authorized by statute,, the court should not recognize it. For these reasons, the court has considered this question. The rule is well established that in criminal actions appeals cannot be taken from orders denying motions to quash indictments or informations or overruling pleas in abatement to them until after the defendants have been tried, and judgments have been rendered against the defendants.
The appeal is dismissed. | [
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Royse, J.:
Richard L. Reid and the law firm of Shapiro & Reid appeal the district court’s order imposing sanctions, based on an unauthorized alteration in a certificate of purchase.
This action was brought by Dovenmuehle Mortgage, Inc., (DMI) against Brad L. Zimmerman to foreclose a mortgage. Richard L. Reid, of the law firm of Shapiro & Reid, represented the plaintiff. DMI obtained an in rem judgment against Zimmerman, and the district court ordered the sheriff to advertise and sell the mortgaged real estate. The district court further ordered the sheriff to issue a certificate of purchase upon confirmation of the sale and, if the property was not redeemed within 3 months, to issue a sheriff’s deed to the property upon surrender of the certificate of purchase.
The sale was held on December 27,1995. On January 23,1996, an order confirming the sheriff’s sale was filed, which recited that sale of the property was made to DMI for the sum of $43,788. The sheriff subsequently issued a certificate of purchase to DMI, however, which listed die bid amount as $54,004.98.
Shapiro & Reid employees believed the amount reflected in the certificate of purchase was incorrect. Without seeking the district court’s permission to do so, they changed the document to show that DMI bought the property for $43,788. After the time for redemption had expired, Shapiro & Reed returned the altered certificate of purchase to the sheriff so that a sheriff’s deed could be issued.
Noting the alteration which had been made on the certificate of purchase, the sheriff filed a motion for instructions, seeking direction from the court as to how he should proceed and whether the deed should be issued. At the hearing on the motion for instructions, Todd Shadid and Mark Lazzo of Klenda, Mitchell, Austerman & Zuercher, L.L.C., appeared for DMI, advising the court that their office served as local counsel for Shapiro & Reid. They explained that Shapiro & Reid had mistakenly believed the bid amount was $43,788. Raymond Jonscher, the office manager for Shapiro & Reid, noticed what he thought was an incorrect amount on the certificate of purchase and instructed an employee to alter the document. Shadid further advised the court that Jonscher had no intent to deceive the sheriff and that Reid was hospitalized when these events occurred and had no knowledge of the alteration.
At the conclusion of the hearing on the motion for instructions, the district court on its own motion imposed sanctions on Shapiro & Reid and Richard L. Reid in the amount of $10,216.98, representing the difference between the amount originally included on the certificate of purchase and the altered amount. The district court ordered the sanctions paid to the State.
DMI subsequently assigned its mortgage to Knutson Mortgage Corporation (Knutson), and Knutson was substituted as the plaintiff in this case. Shapiro & Reid and Richard L. Reid appeal the district court’s order imposing sanctions.
Appellants’ first argument on appeal is that the district court lacked authority to impose sanctions in this case. They contend, correctly, that this case does not fall within any statutory provision for sanctions. The absence of statutoiy authority, however, is not determinative.
In Roadway Express, Inc. v. Piper, 447 U.S. 752, 65 L. Ed. 2d 488, 100 S. Ct. 2455 (1980), the United States Supreme Court recognized the inherent power of the federal courts to sanction counsel upon a finding that counsel had willfully abused the judicial process. The court cautioned that inherent powers must be exercised with restraint and caution. Sanctions should be imposed only after fair notice, an opportunity for a hearing on the record, and upon a finding that counsel’s conduct constituted bad faith. 447 U.S. at 764-67.
The Supreme Court reiterated that federal courts possess inherent power to impose sanctions for bad faith conduct in Chambers v. NASCO, Inc., 501 U.S. 32, 115 L. Ed. 2d 27, 111 S. Ct. 2123 (1991). This inherent power is “ ‘governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.’ ” 501 U.S. at 43.
The Kansas Supreme Court has also recognized that
“[a] court has certain, inherent powers it may exercise, those reasonably necessary for the administration of justice, provided these powers in no way contravene or are inconsistent with substantive statutory law. [Citations omitted.] Such inherent powers may be exercised as a means of enforcing obedience to a law which the court is called on to administer.” Wilson v. American Fidelity Ins. Co., 229 Kan. 416, 421, 625 P. 2d 1117 (1981).
In Wilson, the district court refused to permit an insurance company to depose the physician who had examined the plaintiff, as a sanction for the company’s failure to comply with the provisions of the Kansas Automobile Injury Reparations Act, K.S.A. 40-3101 et seq. On appeal, the Supreme Court affirmed the trial court decision as a proper exercise of its inherent authority since there was no statutory provision for sanctions in such a case.
Appellants contend that the district court’s inherent power to impose sanctions should not be applied in this case because the case was over and there was nothing left for the district court to decide. No authority is cited to support this contention. Moreover, this contention ignores the fact that there was a legal question before the court: The sheriff’s motion asked the court to determine whether a sheriff’s deed should be issued upon presentation of an altered certificate of purchase. In addition, appellants’ contention that the court was without power to do anything else in the case cannot be squared with appellants’ later conduct in asking the court to enter orders setting aside the sale and extinguishing redemption rights. See Chambers, 501 U.S. at 56.
Appellants also contend the district court’s order was not a proper exercise of its inherent powers because sanctioning appellants did not protect the efficient and orderly administration of justice, nor did it serve any interest of the court. This contention is not well taken. The procedure set forth in K.S.A. 60-2410 for selling real property under execution could not be administered in an efficient and orderly fashion if any party could unilaterally alter the sheriff’s certificate of purchase.
Appellants’ third contention is that, because the district court ordered the sanction paid to the State, the sanction was really an unauthorized criminal fine. Appellants also contend that the amount of the sanction was improper because it bore no relation to the sheriff’s actual costs. Similar contentions were rejected in Eash v. Riggins Trucking, Inc., 757 F. 2d 557, 565-66 (3d Cir. 1985)(en banc), a case cited in appellants’ brief.
For all these reasons, we conclude that under the circumstances of this case the district court possessed inherent power to sanction counsel for bad faith conduct.
There are, however, two problems with the district court’s action in this case. First, the district court sanctioned Shapiro & Reid and Richard L. Reid on its own motion without notifying them or Klenda, Mitchell, Austerman & Zuercher of its intent to do so. Under the Roadway decision, it is clear that before a court exercises its inherent power to sanction an attorney, it must provide fair notice and an opportunity for a hearing on the record. 447 U.S. at 766-67. See also Glass v. Pfeffer, 657 F. 2d 252, 257-58 (10th Cir. 1981), overruled on other grounds Cox v. Flood, 683 F. 2d 330 (10th Cir. 1982). Second, the district court failed to make a specific finding that either Richard L. Reid or another employee of Shapiro & Reid acted in bad faith in altering the certificate of purchase. The Supreme Court made clear in Roadway that a specific finding as to whether counsel’s conduct constituted bad faith “would have to precede any sanction under the court’s inherent powers.” 447 U.S. at 767.
The order of the district court 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
Harvey, J.:
This is an original proceeding in mandamus brought by an individual citizen, voter, taxpayer and wheat grower of Stanton county, against the members of the board of county commissioners for that county, to compel them to put into force and effect the township herd law, in certain townships of the county, in accordance with the prayer of petitions, alleged to have been signed by the requisite number of qualified electors in the respective townships, and to conform to the statutes in other respects (R. S. 47-101 et seq.), which were presented to defendants August 1,1927. When the petitions were presented, acting on the advice of the county attorney, that it was their duty to examine the petitions to determine their sufficiency — that the persons signing them were qualified to sign, that the number of signers was sufficient, and that the'petitions were in other respects in conformity to law, and that they might take such reasonable time as was necessary therefor — the defendants continued the hearing on the petitions until their next regular meeting, September 3, 1927.
This action was brought August 4 and an alternative writ issued. An answer and return was filed August 10. The evidence was taken by deposition and has been abstracted. A further statement of the evidence need not be made. Several questions are argued. It will be necessary to decide but one of them. Defendants raise the point that plaintiff has no capacity to maintain this action for the reason that it seeks to require defendants to perform a public duty. The point is well taken and requires a dismissal of this action. (Weigand v. City of Wichita, 111 Kan. 455, 207 Pac. 651, and cases there cited.) Such an action should be brought in the name of the state on the relation of the attorney-general or the county attorney. No question of taxes is involved here. Plaintiff is one of many wheat growers who have sown wheat in the townships in question. His interest in the question sought to be determined is no greater than that of other wheat growers in the townships, and collectively such interest of wheat growers is no greater than that of raisers of live stock. The duty sought to be compelled is a public duty in that it affects the public, in those townships, and is to be performed by public officers in their official capacity. The plaintiff has no interests to be protected or rights to be enforced that are so personal to him, as distinct from others, as to authorize him to maintain this action.
The action is dismissed. | [
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The opinion of the court was delivered by
Marshall, J.:
Plaintiff recovered a judgment against the defendant in the sum of $8,240 for personal injuries sustained in a gas explosion, and for damage to the residence property occupied by the plaintiff as a homestead at the time of the explosion. The defendant appeals.
The evidence tended to show that the plaintiff and his wife lived on certain residence property in Arkansas City, the title to which property was in the wife; that the wife ordered a gas range for the kitchen in the house; that the defendant sent its workmen to install the range; that, in order to install the range, the workmen first cut off the gas from entering the house; that they then installed the range, turned on the gas, lighted the gas in the range, turned the gas off at the range, and left the house; that the plaintiff’s wife worked in a store in Arkansas City; that she prepared the noon meal for the family on the new gas range, and after it was eaten, she went to the store and continued her work; that in the afternoon plaintiff and his mother drove to Coffeyville; that when the plaintiff’s wife returned from her work in the evening, she attempted to take a bath but found there was no hot water; that there had been a Ruud hot-water heater, bought from the defendant, installed in the house about two years previously; that the plaintiff’s wife did not undertake to ascertain why there was no hot water; that, on the following day, the plaintiff and his mother returned from Coffey-ville; that plaintiff’s mother attempted to take a bath, when the wife of the plaintiff asked him to go to the basement and light the gas in the water heater; that he went to the basement to do so; that he had a lighted cigarette in his mouth; that he turned on an elec trie light by turning a bulb in the socket; and that when he did so, an explosion occurred in which he was injured and in which the house was damaged.
The defendant in its brief says that — ■
“The petition, which was filed on September 16, 1926, alleges the following negligence on the part of the defendant: ‘That in turning off the gas (to install the kitchen range) the pilot light on the aforementioned heater was extinguished for lack of gas, and was permitted to remain so by the defendant, its servants, agents and employees. That while said pilot light remained extinguished the defendant by and through its servants, agents and employees, connected said gas range with the gas supply and left the premises of this plaintiff.1 ”
The jury answered special questions as follows:
“1. If you find from the evidence that the defendant in this case was guilty of negligence, please state of what defendant’s negligence consisted. A. In not waiting to see that the heater was properly lighted.
“2. Was pilot light lit by defendant’s employees after the kitchen range was installed and the gas turned on? A. Not properly.
“3. Was pilot light subsequently extinguished by air in line, draft down flue, soot in burner, or other cause? A. If lighted, by air in line.”
1. There are four assignments of error argued concerning the introduction of evidence, one of which is that evidence concerning the experience of others in the use of Ruud hot-water heaters was erroneously admitted; one, that evidence of the negligence of the defendant's employees on other occasions was erroneously admitted; one, that the testimony of plumbers as to pockets of air forming in gas pipes when 'the gas is cut off for the purpose of making repairs or improvements was erroneously admitted; and another, that the court erroneously refused to permit cross-examination of the wife of the plaintiff concerning a certain matter. There was evidence admitted which tended to prove that others who used Ruud hot-water heaters had no trouble with them. That evidence was objected to and was admitted over the objection. There was evidence which tended to prove that the workmen of the defendant had installed an appliance in another house in which there was a Ruud hot-water heater, and that after they left the occupant found the water cold and went to the basement to see what was the trouble, lit a match, and an explosion resulted.
Concerning the testimony of the plumbers as to air pockets, we quote from the brief of the defendant as follows:
“Over the objection, of• defendant, the witnesses C. B. Hamilton and Carl McGregor testified that they were plumbers, and that it was the custom of the business to test for air pockets after, lighting the pilot lights of gas appli anees, which test was made by waiting for some time after the pilot light was lit to ascertain if air in the pipes subsequently extinguished it. The ground of defendant’s objection to this testimony and its subsequent motion to strike the same from the record was that plaintiff was attempting to prove negligence not alleged in the petition.”
The defendant attempted to cross-examine the plaintiffs wife concerning a conversation had by herself with the plaintiffs.mother and brother and a Mr. McDonald, then an employee of the defendant, concerning which she was asked the following question:
“Do you recall at that time that Mr. Schoen’s brother stated in your presence and in the presence of the others that these automatic water heaters were not safe and that they repeatedly went out, and that the whole bunch of them ought to be thrown in the river, and he got so violent you had to calm him down?”
An objection to the question was sustained.
The admission of evidence objected to and the exclusion of that attempted to be brought out on cross-examination may have been erroneous, but the court is unable to see wherein either was prejudicial. Unless there was prejudicial error the court is not authorized to reverse-the judgment.
Part of section 60-3317 of the Revised Statutes reads:
“The appellate court shall disregard all mere technical errors and irregularities which do not affirmatively appear to have prejudicially affected the substantial rights of the party complaining, where it appears upon the whole record that substantial justice has been done by the judgment or order of the trial court.”
2. The defendant contends that there was no proof of negligence. • The court cannot agree with that contention. The defendant installed the range in the plaintiff’s kitchen and left the house. The next day the explosion occurred. The evidence tended to prove that before the explosion there had been no interference with any of the gas appliances in the house after the employees of the defendant left. That an explosion could not have occurred if the workmen had left all of the appliances in the condition in which they should have been left.
3. The evidence disclosed that the title to the property was in the plaintiff’s wife. The court instructed the jury as follows:
“The fact that the plaintiff was not the owner of the legal title to the house or the home in controversy is of no consequence as affecting his right to recover, and the fact that the title was in his wife’s name rather than his own does not affect his right in this action, and he is entitled to a judgment against the defendant for whatever the evidence shows him to be entitled to.”
It is argued that the instruction was erroneous. The evidence tended to show that the property was the homestead of the plaintiff and his wife and that the plaintiff paid all the bills in and about the house and paid for the repairs to the house after the explosion occurred. The homestead is for the benefit óf both the husband and the wife. Either may sue to protect it, either to recover damages to it, or to prevent an invasion of it, if the other should fail or neglect so to do.
In 13 R. C. L. 692 it is said:
“Generally speaking, the head of a family is the proper party to sue for the recovery of a homestead, in the absence of any good reason to the contrary, but it has also been held that the beneficiaries have such an interest in the use and enjoyment of the property as will entitle them to protect it against an illegal invasion.”
In 29 C. J. 983 it is said:
“The person entitled to the homestead, whether the husband, father, or other person as the case may be, as the real party in interest or the representative of the family, is a proper and perhaps a necessary party in proceedings for the enforcement and protection of the homestead, except where a sufficient reason is made to appear why he will not be, or cannot be, made a party to the proceedings. A husband in joint possession with his wife of land belonging to her but used as the family homestead has, as head of the family, such an interest in the land as entitles him to complain of any unlawful interference with it.”
The instruction was not erroneous.
4. When the answers to special questions were returned by the jury, the defendant requested that they be directed to answer definitely whether or not the pilot burner was lighted. The court, in response thereto, said:
“I expect they answered that about as well as the court could answer it under the circumstances and evidence. Under this evidence if this does not mean what it says, it means No.”
The answers were not as specific as they might have been, perhaps not as specific as they could have been under the evidence, but they were specific enough to show on what the jury based its verdict and to show that the defendant had been guilty of negligence. The defendant contends that there was no evidence on which to answer the questions as they were answered. Enough of the evidence has been set out to show that the answers were based on evidence.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hopkins, J.:
The question presented here is whether a city of the first class with a population of around one hundred thousand may acquire and maintain an airport as part of a municipal park. Wichita is a city of the class described. The defendants constitute its board of park commissioners. On November 14, 1927, the park commissioners passed a resolution, which among other things stated:
“That it be and is hereby deemed and declared desirable and a public necessity to acquire title and possession for public park, public recreation, aviation and airport purposes for the use and benefit of the people of the city of Wichita (the following-described) lands located and situated in Sedgwick county, Kansas, outside of the corporate limits of the city of Wichita, and within less than five miles therefrom.”
The petition alleged that the—
“Property thus sought and intended to be acquired by said park board is now and for a long time has been equipped and used for and as an airport which the inhabitants of said city do and will continue to visit in large numbers, particularly on Sundays and on various occasions of popular interest; that pleasure planes devoted to recreation, business planes devoted to commercial purposes and government planes carrying the United States mails, come and go daily to and from said airport and from and to other airports in distant cities and localities; that pleasure planes without charge and commercial planes for a fee cany passengers daily, make flights from the airport and return thereto for the recreation of the occupants. . . .”
The petition also alleged that thirty per cent of the ground would be used for other park purposes and seventy per cent for an aviation field; that there prevailed an actual controversy between the plaintiff and the park commissioners as to whether the acquisition of the property sought by the park board for the purposes set out was permissible and legal, under the provisions of a recently enacted statute which in part reads:
“The board of park commissioners of any city of the first class having a population of more than 80,000 and less than 110,000 shall have the power to acquire by purchase, gift, condemnation or otherwise, such lands as they may deem necessary for public parks outside of the corporate limits of the city and not to exceed five miles therefrom and to issue and sell, subject to the limitations of this act, general bonds of the city to pay therefor.” (Laws of 1927, ch. 117.)
The specific question for consideration is whether park purposes may include an airport or landing field for airplanes. • Under various authorities, the expression “park purposes” has been held to include a race track, a tourist camp, bridle trails, boating, bathing, refreshment and lunch stands, providing bathing ’ suits, towels and rooms for bathers, dressing pavilion, waiting room for street cars, refreshment and shelter room for the public, grandstand, ball games, baseball diamond, race meets, tennis courts, croquet grounds, children’s playgrounds, hotels, restaurants, museums, art galleries, zoological and botanical gardens, conservatories, and many other recreational and educational facilities. In Bailey v. City of Topeka, 97 Kan. 327, 330, 154 Pac. 1014, this court quoted approvingly from Dillon on Municipal Corporations, to the effect that:
“A park may be devoted to any use which tends to promote popular enjoy- ■ ment and recreation.” (Dillon, Municipal Corporations, 5th ed. § 1096, p. 1749.)
State, ex rel., v. Dodge City, 123 Kan. 316, 317, 318, 255 Pac. 387, involved the question whether a city park dedicated for general park purposes might be used for the operation of a tourist camp. This court said:
“It is contended that the operation and maintenance of the tourist camp is a commercial enterprise in which the city has no power to engage, and that the maintenance of the camp in the city park, is a diversion and misuse of the park — therefore, unauthorized and illegal. . . . Dodge City is a city of the second class. In the year 1900 certain tracts of land were deeded to it for general park purposes. The money necessary for the purchase of such land was raised by popular subscription except $500 which was contributed from the city treasuiy. Some money raised by popular subscription remaining, after the purchase had been made, was used in clearing the land, laying out a race track, etc. In 1917 an automobile camp was laid out in the park and in 1923, various conveniences for the benefit of the traveling public having been constructed, a charge was made for the use of the automobile grounds. In the summer of 1925 the city constructed fifteen one-room cottages for the convenience of the tourists, costing approximately $1,835. Another cottage (cook house) costing about $650 was constructed at the same time. . . . The city made a charge of thirty-five cents per day for camping privileges and a charge of one dollar per day for the use of a cottage. A small grocery store is operated in the park under the management of the park custodian, who is also a commissioned police officer. ... All moneys received from the tourist camp are turned over to the park commissioner to be'placed in the park funds for the maintenance of the camp; whatever is left, if any, being used for general upkeep of the camp. There was evidence that two private tourist camps, located just outside the city limits, could amply care for the tourist traffic. . . . This practice has grown until nearly every city of consequence has established a tourist camp, and in most cases as a part of the city park. It was natural that the cities should do this. . . . The original concept of a city park has by usage during the last twenty years broadened to include the maintenance of a tourist camp. . . . The tourist camp is part and parcel of the modem municipal park. Its maintenance as a part of the modern municipal park is not different in principle from maintenance of a swimming pool therein, about which there is no longer contention.”
The supreme court of Michigan considered a somewhat similar question, and held substantially that where a pavilion was erected on a public park to serve the double purpose of a waiting room for street cars and refreshment and shelter room for the public using the park, the building being located at a proper and convenient place for both purposes, such building and use were not foreign to “public park” purposes. (Dodge v. North End Association, 189 Mich. 16, 155 N. W. 438.)
“The park board, having control over the city parks, may grant a privilege for a public stage route, stations and waiting rooms in a park, where the right to run stages is confined to their operation for the sole purpose of carrying visitors into or out of the park or from one portion thereof to another.” (American Steel House Co. v. Willcox, 38 Misc. 571, 77 N. Y. S. 1010.)
“A city has power to grant a license or concession to hold, in said park, race meets, for short periods of time, for the entertainment of the public.” (Nebraska City v. Nebraska City Speed & Fair Ass’n, 107 Neb. 576, 583, 186 N. W. 374.)
On the question of the power of the city to supply its citizens with libraries, museums and places for public recreation, see Commonwealth v. Horrigan, 84 Mass. 159; Laird v. Pittsburg, 205 Pa. St. 1, 54 Atl. 324; Lambert, Mayor, v. Bd. Trustees Public Library, etc., 151 Ky. 725, 152 S. W. 802. For establishment of municipal golf links, see Capen v. City of Portland, 112 Ore. 14, 228 Pac. 105.
“The devotion of a reasonable portion of a public park to tennis courts, croquet grounds, and children’s playgrounds, with suitable appliances for these forms of public amusement and recreation, comes strictly within the proper and legitimate uses for which public parks are created.” (Caulfield v. Berwick, 27 Cal. App. 493, syl. ¶ 2, 150 Pac. 646.)
In Spires v. City of Los Angeles, 150 Cal. 64, 87 Pac. 1026, it was said:
“As matter of public knowledge, we are aware that the erection of hotels, restaurants, museums, art galleries, zoological and botanical gardens, conservatories, and the like in public parks is common, and we are not pointed to any authority where it has been regarded as a diversion of the legitimate uses of the park to establish them, but on the contrary, their establishment has been generally recognized as ancillary to the complete enjoyment by the public of the property set apart for their benefit. To instance, in Central Park in New York City, there is a museum of natural history and a metropolitan art museum; and in Golden Gate Park in San Francisco a museum, children’s playground, and buildings used in connection with it, and a conservatory. We mention simply these parks and particular features devoted to the public enjoyment, although many other parks might be mentioned where similar buildings have been erected.”
The last few years have witnessed a remarkable development of aviation in all lines. In a pamphlet on airport construction, issued by the aeronautics branch of the United States Department of Commerce, it is said:
“The commercial value of an airport is not its only consideration. It has an important value as a recreation facility similar to city parks, golf courses, equestrian trails, bathing beaches, etc., and it should be a municipal enterprise. The air commerce act of 1926 recognizes this by providing that civil airports shall not be owned or operated by the federal government.”
A recent article by Commander Richard E. Byrd, an authority on aviation, states that the year 1927 brought the greatest forward strides in the history of aviation and that the new year (1928) gives promise of far outstripping that record. He directs attention to the brilliant flying successes of Col. Charles A. Lindbergh and Clarence B. Chamberlain, but emphasizes the need of landing fields or airports. He says:
“The exploitation of flying developed a sturdy air consciousness on the part of the public that caused aviation to find its place in world commerce. The result was that 1,000 new flying fields have been built, regular air lines have been established, the carrying of air mail has been turned over to private companies which are also carrying express. Passenger routes have been started. . . .
“This year’s accomplishments showed that we had some very good ships. We have speed and economic operation. What we need now is safety, and aviation can be made safe to-day. There are several things to be done. Among them are the building of more landing fields, . . . the perfection of a fog-piercing beacon with which to light fields, the use of the radio beacon for aiding aerial navigation, the carrying of surplus fuel to fly thru or around fog. The one outstanding need now is sufficient landing facilities for planes. I consider it the duty of every city to establish a, field. By so doing they will not only help themselves, but they will help aviation. Cities that hold back in the matter of providing landing fields are holding back aviation nationally.”
Aeronautical development emphasizes the vital importance of “airways,” an essential element of which is the landing field or airport. The term “airway” applies to air routes for either airplanes or seaplanes. An airway is far more than a mere air line. It is a material and permanent way through the air, laid out with the precision and care that an engineer adopts in choosing the course of and laying down of a railway. Whether over land or water, it is essentially on the ground. Its existence and general layout depend almost entirely upon the commercial demand. The primary requisite of any airway is that it shall be safe, reliable and regular. These attributes can be gained only if it is adequately laid out and equipped, and first and foremost of these attributes are airports or landing fields. The demand for more and more airports throughout the country is urgent and will continue to increase. A typical example of a modern airway is the transcontinental route between New York and San Francisco, said to be the most completely equipped air way in the world. On it between New York and Salt Lake City are 12 airports and 92 intermediate fields, connected by 612 electric and gas route beacons spaced along and indicating the entire distance. The electric beacons of 1,000,000 and 2,000,000 candlepower are, in general, located at or near intermediate fields and are spaced approximately 22 miles apart with the smaller gas beacons between.
The airway is essentially a free highway. As such it is open to all qualified aircraft. It is rightly, therefore, a federal undertaking to lay out and equip airways. The maintenance of airports, however, comes legitimately within the scope of the municipality in much the same manner as docks and harbor facilities for marine shipping. Airports are said to be as important to commerce as are terminals to railroads or harbors to navigation. Municipalities are studying local conditions and commercial organizations are pressing the importance of establishing terminal airports and of providing proper lighting for landing fields, and facilities such as hangars, garages and repair shops. The possession of the airport by the modern city is essential if it desires opportunities for increased prosperity to be secured through air commerce. Lands susceptible of improvement, as parks, playgrounds, or general recreational purposes, may be utilized and developed around the modern airport so that the municipality may bring to itself not only the advantages of air commerce but afford its citizens those other inestimable advantages of improved beautification and health-giving opportunities. It is said that there were 3,800 landing fields in the United States at the close of 1926, of which 400 were municipal. (See 1927 Aircraft Year Book, p. 101, et seq.) In a dozen cities of-the far west (California, Oregon, etc.) projects for new airports or improvements of existing facilities are under way at an estimated cost of more than $8,000,000. (The American City, July, 1927.) In these rapidly changing times, even a wise man cannot discern the needs of the future. All signs indicate that in another twenty-five years airports may be needed for tourists as much as tourist camps are at this time needed for those on recreation and pleasure bent. Perhaps it may not be a “great way” into what ordinarily would be termed the “far distant future” when the human race will be flying with wings similar to those described by Bulwer Lytton in “The Coming Race.” In any event we are of opinion that the airport or landing field is as properly included within park purposes as tourist camps and other named recreational objects, and that the board of park commissioners of Wichita is authorized and empowered, under the provisions of chapter 117 of the Laws of 1927, to proceed to purchase or condemn the lands in question for the purposes stated.
Wichita is in the center of what is perhaps the largest natural landing field in America. It has a climate permitting year-around flying with no fogs, and rare periods of unfavorable weather. At the present time seven airplane factories are located there, six of which are now producing airplanes and the seventh will be producing by February 1, 1928. Upwards of one thousand airplanes of all types have been constructed there. In addition to the airport under consideration, Wichita has four commercial airports or landing fields.
Various state legislatures, including our own, have recognized the airport as a proper municipal enterprise. A section of our aircraft act reads:
“That whenever in the opinion of the governing body in any city in the state of Kansas, the public safety, service and welfare can be advanced thereby, such governing body of such city may acquire by purchase or lease and maintain a municipal field for aviation purposes, and pay the expense of such purchase, lease or maintenance out of the general funds of the city. Such field may be used for the service of all aircraft and pilots desiring to use same." (R. S. 3-110.)
By an act of the general assembly of Georgia, 1927, Atlanta charter amendments, No. 360, sec. 4, et seq. (Georgia Laws, 1927), the city of Atlanta was authorized and empowered to purchase, own and operate municipal landing fields either within or without the limits of the city, within a radius of twenty-five miles from the center of the city, and given police power over such airports, except where they might be located within the limits of some other municipality.
By an act of 1922, chapter 534 (as amended by section 57, chapter 90, of the Laws of 1927), the legislature of Massachusetts empowered cities or towns to designate landing places and to make reasonable rules and regulations concerning the use thereof.
The legislature of Montana, by an act passed in 1927, empowered cities and towns to acquire by gift, purchase or condemnation, lands for landing fields, within or without their corporate limits and to exercise jurisdiction over such lands. (Laws of 1927, ch. 20.)
The general statutes of Ohio (§ 3677, ¶ 15) authorized municipal corporations to establish landing fields either within or without their corporate limits.
By act 328 of the Laws of Pennsylvania, 1925, that state authorized and empowered cities of the first class to acquire by lease, purchase or condemnation lands within or without their corporate limits for the purpose of establishing and maintaining municipal air-domes or aviation landing fields.
The general rule is that a municipal corporation has no power to purchase and hold land for a park or other municipal purpose beyond its corporate limits unless the power has been specially conferred by the legislature. (See Township of Summit v. City of Jackson, 154 Mich. 37, 117 N. W. 545, 18 L. R. A., n. s., 260; Ionable v. Harrisonburg, 104 Va. 533, 52 S. E. 174, 2 L. R. A., n. s., 910; Childs v. City of Columbia, 87 S. C. 566, 70 S. E. 296, 34 L. R. A., n. s., 542; Becker v. The City of La Crosse, 99 Wis. 414, 40 L. R. A. 829; State, ex rel., v. Franklin, 40 Kan. 410, 19 Pac. 810; 1 Lewis, Eminent Domain, 3d ed. § 371; 43 C. J. 1327.)
We are of opinion that while the provisions of R. S. 3-110 before quoted are not sufficient to authorize the purchase or condemnation of the land in question (it being beyond the corporate limits of the city), they are sufficient to enable the governing body of the city to maintain such' an airport out of general funds, the park, including the airport having been secured under the provisions of chapter 117 of the Laws of 1927. ■
However, another section of the statute authorizes the purchase or lease of land within or without the limits of cities to be used as public parks, etc., provided the governing body is instructed to do so by a majority of votes cast at an election held for such purpose. (R. S. 12-1301.)
The judgment of the district court is modified in accordance with the views herein expressed, and as so modified is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This is an appeal from a judgment rendered upon the pleadings in favor of Fred Nation against H. R. Clay and J. M. Easley, a partnership, from which the latter appeal.
The defendants entered into a contract with Nation, of which the following is a copy:
“Received this 5th day of November from Fred Nation of Emporia, Kan. $2,000 the same being in full payment and satisfaction of all claims which Clay & Easley and Montgomery & Easley may have against said Nation by reason of damages for injury to tlieir cattle during the pasture season in 1919, growing out of the Texas fever condition in the Williams pasture at Florence. It is further understood as part of the consideration for the payment of the $2,000, Clay & Easley and Montgomery & Easley agree to file full and complete claims against the U. S. government, with the understanding that out of any moneys received from the government by reason of said cattle, if the amount is sufficient, the first $800 is to be divided equally between Montgomery & Easley and Clay & Easley, considered as one party, and Fred Nation as the second party. The balance, if any, shall be applied toward reimbursing Fred Nation to the extent of $2,000, if there be sufficient funds, and if not, the application shall be made as far as possible. In case there is less than $800 collected from the government on the cattle, the amount shall be divided equally, and in case there is more than $2,800, all moneys in excess of the $2,800 shall go to Clay & Easley and Montgomery & Easley.
Clay & Easley, Montgomery & Easley,
By Guaranty Cattle Loan Co.,
Fred Nation,
By Wm. J. Wilson.”
The fund mentioned in the contract was received from the United States government by J.- H. Mercer, of the live stock sanitary commission, for cattle injured by Texas fever, and it was garnished in his hands and paid into court. The plaintiff alleged that the contract had been fully performed on his part and that he was entitled to recover from the fund held by Mercer in accordance with the provisions of the contract. Easley answered by a general denial and asserted a special denial to the effect that the guaranty company, a Missouri corporation, was not the agent of the defendants nor had authority to execute the contract for them, and hence prayed that the action be dismissed. In a verification of the answer Easley stated that the Guaranty Cattle Loan Company had no right or authority from defendants to execute the contract in suit and that the company had no authority under the statutes of Missouri to obligate the defendants. Clay also filed an answer for himself and the partnership, admitting that the partnership had consented to and ratified the contract, as alleged by plaintiff, for the consideration therein expressed, that the attached funds in the hands of the court were received by Clay & Easley, that out of the funds there was due to the plaintiff $2,400 and that it should be paid to him as the contract provided. Plaintiff filed a reply to the answer of Easley denying generally and alleging that the contract having been made and been fully performed defendants were estopped to deny the authority of their agents to execute it. On a motion by plaintiff for judgment on the pleadings, it was admitted by Easley that de Jendants received the $2,000 as.stated in the contract and that der fendants were given credit for the amount upon a note and mortgage held by the Guaranty Cattle Loan Company. The court sustained the motion and accordingly gave judgment for plaintiff!
Upon the record it is clear that no meritorious defense was'pre'sented by the defendants. While there was a general denial filed by Easley it was not verified. He did verify his statement that the company had no authority to contract for the defendants. Clay, answering for himself and his partner, admitted the due execution of the contract and its binding force upon defendants. The partnership was expressly admitted by Clay under oath and was not denied under oath b.y Easley. In failing to verify his general denial the making of the contract was practically admitted. The claim that the execution of the contract by the company was ultra vires cannot prevail where it appears that $2,000 was paid to defendants under the contract, and that the plaintiff on his part ha'd fully performed the contract. Having accepted the money and obtained the advantages of the contract, defendants are not in a position to defend on the ground that the company which sighed the contract was not its agent or authorized to act for them. Whatever the law of Missouri may be as to the power of a private corporation to act as agent for others, it is clear that defendants should not be permitted to contest the agency after they have received the benefits of the contract procured by the agent, and where full performance has been made by, the other party. The acceptance of the benefits of the contract was really a ratification of the contract as made. The doctrine of ultra vires cannot be invoked to accomplish such an injustice as would follow from the theory and claim advanced by Easley. It should be noted that Clay admits the agency and the validity of the contract. Reference is made to the fact that the court struck out a recital in a journal entry that was presented for its approval relating to the admission in open court of the receipt of the $2,000 and that credit had been given to defendants on their note and chattel mortgage. While the court struck out that recital in the journal entry, possibly for the reason that it was not an appropriate place for such statements in a formal entry, it is also to be noted that the court accompanied its action in striking out the recital by a statement that the facts recited were true.
Some question is made by Easley of the practice of procuring an entry of judgment on the pleadings. When by admission of the defendants in pleadings or in opening statements, it is made to appear that the defendants have no meritorious defense against an obligation like the one sued on, it is a common and proper practice to move for and obtain judgment on the pleadings or opening statements. Easley did not move to amend his pleading or ask for permission to add another defense.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an appeal by a defendant in an action to foreclose a mortgage from an order denying her application to set up by answer and cross petition and have adjudicated a mortgage inferior to that of plaintiff’s. The question arises in this way: The bank brought an action on two promissory notes, dated May 31, 1921, and signed by J. J. Shimek, and to foreclose (subject to a prior mortgage to an insurance company) a mortgage of that date given by him to secure the payment of the notes. His divorced wife, Barbara Shimek, was made a defendant, and it was alleged that she had signed the notes as surety and that she had also executed the mortgage. The petition further alleged that Barbara Shimek claimed a lien on the property under and by virtue of a certain mortgage executed by J. J. Shimek in her favor dated May 13, 1921, but plaintiff alleged that her lien is junior, inferior and subsequent to the lien of the plaintiff.
Barbara Shimek answered that she had no mortgageable interest in the real property, that she was coercibly induced by fraudulent misrepresentations and intimidation to sign the mortgage, and that it was invalid as to her. Plaintiff moved that she be required to make her answer definite and certain. This motion was sustained and she was given ten days in which to amend her answer. No amended answer was filed. J. J. Shimek had been served by publication. Later he was adjudged a bankrupt, and S. H. Hamilton was appointed as his trustee in bankruptcy. On May 29, 1925, S. H. Hamilton filed" an application setting forth his appointment as trustee, and asked to be substituted as a defendant in the action in place of J. J. Shimek for the purpose of acquiring for the bankrupt’s estate such equity in the real estate as was possessed by the defendant, and an order was on that date made substituting him for the defendant J. J. Shimek. And on the same day a default judgment was taken in favor of the bank, in which it was found, generally, that the allegations of the plaintiff’s petition were true; that the defendants, J. J. Shimek and Barbara Shimek, were indebted to the plaintiff in the sum of $2,385 upon the notes sued on; that there was a first mortgage on the property in favor of a certain life insurance company, and the mortgage of plaintiff was decreed “to be a valid, binding and subsisting lien” on the real property, “and that said mortgage be and the same is hereby foreclosed.” The decree further provided that in the event judgment in favor of plaintiff was not paid within ten days an order of sale might issue. The decree contains no specific provision barring the defendant Barbara Shimek from any rights in the real property under the mortgage to her referred to in plaintiff’s petition as constituting a lien inferior to that of plaintiff’s.
Nothing further was done in the case until January 18,1926, when Barbara Shimek filed a motion asking to be permitted to set up the mortgage from J. J. Shimek to her, dated May 13, 1921, and to foreclose the same subject to the lien of the plaintiff and of the first mortgage. Attached to the motion was a copy of the answer and cross petition setting out the note and mortgage from J. J. Shimek to her which she desired to set up and to foreclose. This motion was considered by the court and overruled February 25. Thereafter Barbara Shimek purchased from the plaintiff bank, and had assigned to her, the judgment which had been previously obtained by the bank in the action, and filed a motion asking to be substituted for plaintiff by virtue of such assignment, and again asked permission of the court to set up, by way of answer and cross petition, the note and mortgage made in her favor by J. J. Shimek. The motion to substitute was allowed; the application to file her answer was denied. This is the order from which appeal is taken.
In this state of the record we think the defendant should have been permitted to file her answer and cross petition. The plaintiff is not complaining. The trustee in bankruptcy was entitled only to the interest of J. J. Shimelc in the real property subject to the mortgages of record, and as to him it is immaterial whether the applicant foreclosed her mortgage in this action or in a separate action — the decree previously rendered in favor of the plaintiff did not specifically bar this mortgage. While Barbara Shimek might have filed this answer and cross petition before that decree was taken, the fact that she did not do so does not defeat the lien of her mortgage as against the trastee in bankruptcy.- It tends to reduce expense and to avoid confusion to have both liens disposed of in one .action and included in one sale of the property.
The judgment of the court below will be reversed, with directions to permit the filing of the answer and cross petition. | [
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The opinion of the court was delivered by
Johnston, C. j.:
Willard E. Taylor was convicted upon a charge of kidnaping a child, whose custody had been given to Edna Taylor, his former wife, under a decree of the district court. The judgment' was based upon a verdict of the jury that he was guilty of forcibly taking and carrying away Nellie Lorraine Taylor, a child under the age of twelve years, with intent to detain and conceal her from a person having the lawful charge of the child in violation of R. S. 21-440. He appeals.
It appears that the defendant and Edna Taylor were married on. March 15, 1923, and defendant claimed that the child was born of a former marriage of the defendant Willard E. Taylor to Pearl Brown, who died in 1923. In an action of divorce brought by the defendant against Edna Taylor, she filed a cross petition alleging misconduct, including adultery, on his part upon which she asked for a divorce and the custody of the child. He failed to appear and prosecute his action at the time set for the trial, and upon her evidence the court found that the allegations contained in her cross petition were true and adjudged and decreed that Edna Taylor be divorced from the plaintiff and that she be given the care, custody and control of Nellie Lorraine Taylor, her stepchild. It appears that the child was brought into the home immediately after the marriage in 1923, and Edna Taylor had kept and cared for the child until the time she was alleged to have been kidnaped by the appellant on April 11, 1927.
It is the contention of the defendant that the order granting a divorce to Edna Taylor and the award to her of the custody of the minor child was absolutely void in that the statute (R. S. 60-1510) gives the court authority to make provisions for the guardianship, custody and support of minor children of the marriage, but makes no provision for stepchildren, and that Nellie Lorraine Taylor was only the stepchild of Edna Taylor. The provision referred to is:
“When a divorce is granted the court shall make provision for the guardianship, custody, support and education of the minor children of the marriage, and modify or change any order in this respect whenever circumstances render such change proper.” (R. S. 60-1510.)
In making provision for the custody, support' and education of children when a divorce is granted, does the clause of the statute authorizing provision to be made for “minor children of the marriage” deprive the court of such power where one of the parties is the natural parent of the child and the other its step-parent? It may be assumed that the appellant was the father of the child, a fact about which there was some question in the evidence. It is conceded that Edna Taylor to whom the custody was given was a stepmother. She had had the care of the child since her marriage to Taylor, who had left the state and for a considerable time before the divorce had contributed nothing towards her support or the support of his wife. When asked who was supporting the child during his absence, he stated that he did not know. In the divorce action the court had full jurisdiction of the parties. In dissolving the marital relation and the breaking up of the home, the court necessarily took notice of the fact that there was an infant child in the home for whom provision must be made. The infant, it must be assumed, was the child of one of the parties to the action, and that party had practically abandoned it. As a result of the marriage, the child had been brought into the home and Edna Taylor, the wife, assumed its care- and stood in loco parentis towards it. We think the expression in the statute, “minor children of the marriage,” fairly interpreted included the infant in question, and that the court had the responsibility and duty to make provision for its custody, care and education, when the marriage relation was dissolved. The decree of the court providing for its custody cannot be regarded as absolutely void. Evidently the court found that the defendant, a party to the-action, was not a fit person to be intrusted with the custody of the-infant and placed it in the custody of its stepmother, against whose fitness no question is raised. Infants have always been regarded as-wards of chancery, and district courts exercising chancery powers-have jurisdiction to protect infants. Such courts have a broad and comprehensive jurisdiction, and the controlling consideration of such custody is the best interests of the child. The statute, however,, adds nothing to the power of the court to provided for the custody and welfare of infants. It was made an issue in the pleadings and was considered and decided by the court.
It is argued that the question should have been determined in a. habeas corpus proceeding rather than in the action for divorce. It has been said that:
“A proceeding to determine custody of an infant is substantially in the nature of a guardianship proceeding. The proceedings may be by habeas corpus or in divorce proceedings, but such proceedings are not the only ones in which the right to the custody may be adjudicated. Any pleading which shows upon its face that the welfare of an infant requires that an order maybe made in regard to his custody, is sufficient.” (31 C.J. 993.)
The jurisdiction of the court is a continuing one, and its decree-may be modified and the custody changed if conditions should be changed and where the welfare of the infant demands a modifica tion. When the court acquired jurisdiction of the parties, and the child, it was warranted in determining the matter of custody, and no reason is seen why the relief asked should not have been granted. There was no occasion, we think, for requiring a party to bring a proceeding in habeas corpus, where custody was involved in an action of divorce in the same court, to settle the matter of custody. The infant being a part of the family, the defendant one of the parties to the divorce action, we conclude that the court had jurisdiction to provide for custody and care of the child in that action. Edna Taylor had had the lawful custody of the infant, and the evidence sufficiently shows that the defendant kidnaped the child and took it to Pampa, Tex., and it has never been returned to the one having lawful charge of it. His action was a violation of the statutes under which he was prosecuted.
There are several complaints as to procedural rulings. One was that the court permitted the prosecution to cross-examine appellant as to his former marriages. A question arose as to whether he was the father of the child, a matter about which there was dispute, and about which he had testified. He had been married four times, and testified that the child was the fruit of his second marriage with Pearl Brown; but there was testimony that the child was born during the wedlock of Clarence and Pearl Brown, and prior to his marriage with Pearl Brown. There was no error in the admission of the testimony.
Another objection was the admission of testimony as to a former arrest of the defendant upon a criminal charge. The defendant was a witness in the case, and the testimony in question was for impeachment purposes and was not error.
Complaint is also made of an instruction of the court to the effect that Edna Taylor had lawful charge of the child, and that if the jury found by the weight of the evidence that defendant induced the child to leave the dwelling where she was being cared for and was driven by the defendant in an automobile to Pampa, Tex., such actions on his part would constitute a forcible taking and carrying away of such child within the meaning of the statute; and if the jury found upon the evidence that the taking and carrying of such child was done with the intention of concealing and detaining her from the person having the lawful custody of the child, he would be guilty of the offense charged. In that connection the court added that some testimony had been introduced that when the child was so taken away defendant did not know of the decree of divorce awarding the custody of the child, but that that would not constitute a defense to the charge. It was said that that testimony could be considered only in so far as it might assist in determining whether or not the defendant intended to detain or conceal the child from the person having' lawful charge of her, and if he did so intend it would be no defense that he did not know that the custody of the child had been awarded to Edna Taylor. It was shown without dispute that the custody had been legally awarded to her, and within the authority of State v. Tillotson, 85 Kan. 577, 117 Pac. 1030, the fact that defendant did not have personal knowledge of the extent of the decree was not a defense to the charge. (See, also, In re Peck, 66 Kan. 693, 72 Pac. 265.) The divorce proceeding had been pending for many months, and although defendant had learned of the decrée at a preliminary examination held at least four months before the trial, he still kept the child in Texas and it was there when the trial was had. This, as well as other testimony, tended strongly to show an intention to conceal and detain the child from one who had her in lawful charge.
Some complaint is made of the arguments of the prosecuting attorney, but an examination of these leads to the opinion that they are not of a kind to be prejudicial to the defendant nor to constitute a ground for reversal.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
This is an action prosecuted under the workmen’s compensation law. The defendant appeals from the judgment of the court giving compensation to the plaintiff and from the refusal of the court to modify the award made by the arbitrator appointed by the court.
The motion to modify the award was heard in the district court on the evidence introduced before the arbitrator, who had made findings of fact and reported as follows:
“1. I find from the evidence that plaintiff sustained an injury.
“2. I find from the evidence that such injury was accidental.
“3. I find from the evidence that said injury to plaintiff arose out of and in the course of his employment with defendant.
“4. I find that at the time plaintiff received said injury that plaintiff and defendant were both operating and working under and governed by the workmen’s compensation law of the state of Kansas.
“5. I find that said injury is compensable.
“6. I find from the evidence that plaintiff twisted his left knee at about the knee joint, wrenching the same, causing a loose internal semilunar cartilage at said left knee.
“7. I find from the evidence that plaintiff’s disability is total, and that it will entirely incapacitate him from engaging in the occupation of a miner.
“8. I find from the evidence that plaintiff was not in the employ of defendant for a year preceding the date of his injury.
“9. I further find from the evidence that there was no miner engaged in the occupation of a miner as plaintiff was engaged at the date of his injury for a year next preceding the date of the injury.
“10. I find from the evidence that a miner working in that vicinity for fifty-two weeks preceding the date of said injury to plaintiff earned the sum of $1,774.31, working as a coal miner as plaintiff worked.
“11. I find that no written notice was served on the defendant within ten days after the occurrence of said accident, but that defendant knew of same, and was not prejudiced by not being notified.
“12. I find from the evidence that demand for compensation was made by plaintiff on said defendant within the statutory time.
“13. I find from the evidence that plaintiff did not make any claim for hospital bills or medical services.
“14. I find from the evidence that plaintiff is entitled to recover compensation from defendant for four hundred and sixteen weeks (416) at the rate of fifteen ($15) dollars per week, said sum being allowed for total permanent disability.
“15. I find from the evidence that defendant has paid plaintiff on account of said disability the sum of $450.
“16. I find from the evidence that defendant offered to furnish an operation for plaintiff for such injury at the expense of the defendant by a doctor chosen by the defendant.
“17. I find from the evidence that the same is a major operation and dangerous, and that plaintiff refused to accept the same, but did agree that he would accept an operation and have same performed by doctors of his own choosing, and that defendant did not accept such proposition, and being a major operation and one dangerous to life and limb, that the refusal of plaintiff to submit to an operation, except by a doctor of his own choosing, was reasonable and he should not be required to so do.
“18. I find that the defendant should pay the costs of this action.
“19. I find from the evidence that plaintiff is entitled to recover from defendant the sum of eight hundred and twenty-five ($825) dollars in a lump sum, four'hundred and fifty ($450) dollars of which has been paid, leaving a balance of three hundred and seventy-five ($375) dollars, which is now due and should be paid in a lump sum.
“Judgment and Award of Arbitrator.
“It is therefore by the arbitrator considered, awarded and adjudged that plaintiff have and recover of and from the defendant judgment for the sum of fifteen ($15) dollars per week from the 15th day of July, 1926, to and including the 5th day of August, 1927, upon which the sum of four hundred and fifty ($450) dollars has been paid, leaving a balance of three hundred and seventy-five ($375) dollars due and unpaid, and that plaintiff be awarded the sum of fifteen ($15) dollars a week, payable to the clerk of the district court at the same time his wages were paid when working for defendant, for a period of three hundred and sixty-one (361) weeks, or $5,415.
“It is further considered, awarded and adjudged that the plaintiff be awarded, judgment against the defendant for the costs of this action, taxed at $194.40.”
1. The defendant argues that the evidence did not show that the plaintiff was an employee of the defendant at the time he was injured, but did show that he was not an employee at that time. The arbitrator in effect found that the plaintiff at the time of his injury was an employee of the defendant. The evidence on that proposition showed substantially the following facts: The defendant was a corporation in which the plaintiff was a stockholder. He, with other stockholders of the corporation, worked for it mining coal and doing other necessary work about the coal mine operated by the defendant. It employed other workmen who were not stockholders. The plaintiff and the other stockholders who were employed by the defendant received their share of the profits made by the corporation as compensation for their labor in lieu of fixed wages.
The defendant argues that this made the corporation a cooperative coal mining company in which the owners worked for themselves and divided the profits of their enterprise. If the defendant had been a partnership or a voluntary association of individuals and not a corporation there might be some force in this argument. The defendant was an entity, separate and apart from the persons who were stockholders in it, and could deal with them the same as though they were not stockholders. The fact that the plaintiff was a stockholder did not destroy his right to become an employee of the corporation and to receive compensation from it if he sustained such an injury as is covered by the workmen’s compensation law.
2. On the hearing of the motion to modify the award, the defendant offered to pay the expenses of an operation on the plaintiff’s knee by a surgeon which the plaintiff should choose and which should be approved by the court. Concerning that offer, the court made the following finding:
“That the offer made by the defendant during the arbitration of this case, wherein they offered an operation to be performed by Doctor Kuhn of St. Luke’s hospital, in Kansas City, Mo., is unfair and unreasonable, and the court on this day having- permitted the defendant to reopen its case for the purpose of making a further offer, which offer was as hereinbefore set out. The further offer of the defendant is considered by the court to be unreasonable, for the reason that it does not give the physician and surgeon of the plaintiff’s choosing, to be approved by the court, the right to treat the plaintiff other than by a surgical operation. There might be an occasion arise or a condition might arise, where a surgical operation might be improper. The. court refuses the offer of the defendant company to compel the plaintiff to submit to further examination for the reason that the arbitrator has already adjudicated the condition, and this court is of the opinion that the findings of the arbitrator, based upon the evidence, were correct, and the findings and award of the arbitrator are hereby affirmed.”
The judgment of the court discloses the reasons for refusing to compel the plaintiff to submit to an operation. Nothing can be added to that reasoning that will be of any benefit. There was.no error in not requiring the plaintiff to submit to an operation.
3. The defendant argues that “under the testimony relative to appellee’s earnings, no award should have been made in this case for more than $6 per week.” This argument is based on the fact that the plaintiff for his labor had received during the year preceding his injury not to exceed $150.
Section 44-510 of the Revised Statutes, in part, reads:
“3. (a) Where total permanent disability results from the injury, no compensation shall be paid during the first week of disability, except that provided in paragraph 1 of this section, but after the expiration of said first week, payment shall be made as provided in Laws 1911, chapter 218, section 13, during such permanent total disability of a sum equal to sixty (60) per cent of the average weekly earnings of the injured workman, computed as provided in section 4 of this act [R. S. § 44-511] but in no case less than 86 per week, nor more than 815 per week.”
Section 44-511 of the Revised Statutes, in part, reads:
“The average annual earnings of a workman shall, for the purpose of the provisions of this act, be computed as follows: (a) Where the workman has been continuously employed by the same employer for one year or longer, the actual amount of money paid by the employer to the employee as wages or remuneration for his services during the year immediately preceding the injury, undiminished by loss due to absence from work on account of illness or other unavoidable cause. (b) Where the workman has been employed less than one year by the employer in whose employ he received the injury, 52 times the average weeldy amount which, during the twelve months immediately preceding the accident, was being earned by a person in the same grade employed at the same work by the same employer, undiminished by loss due to absence from work on account of illness or other unavoidable cause; and if there is no person in the same grade employed at the same work by the same employer, then 52 times the average weekly earnings of a person in the same grade employed by the same or other employer in the same district at the same or similar work or employment.”
The plaintiff had been employed in the mine of the defendant for less than twelve months preceding his injury; for that reason, his compensation could not be computed under the provisions of subdivision (a) of section 44-511 of the Revised Statutes. No employee of the defendant did the same work as the plaintiff for the year next preceding the .date of his injury; and, for that reason, plaintiff’s compensation could not be computed under the first provision of subdivision (b) of section 44-511.
The amount of compensation to the plaintiff fixed by the arbitrator was based on the testimony of a coal miner from another mine in the same district, who testified that his earnings for the year preceding the injury of the plaintiff were $1,774.31. That testimony was introduced under the last provision of subdivision (b) of section 44-511 of the Revised Statutes. That testimony could not be used as a basis for computing compensation in the ■present case unless it was shown that the witness had been doing the same or similar kind of work as that done by the plaintiff.
The tenth finding of fact made by the arbitrator is repeated here, and was as follows:
“I find from the evidence that a miner working in that vicinity for fifty-two weeks preceding the date of said injury to plaintiff earned the sum of $1,774.31, working as a coal miner as plaintiff worked.”
That finding of fact was not supported by any evidence. The evidence showed that the miner on whose testimony compensation for the plaintiff was based was “paid for digging coal by the ton, and drew the regular wages of the union coal miner.” He was strictly a coal miner. There was no evidence to show that he did any other kind of work. Concerning the work of the plaintiff at the mine of the defendant, its president testified:
“No one during that period dug coal all of the time; sometimes we worked on other things, maybe to pull up rails or bale water or anything that was necessary to be done. The coal diggers did other work during this period of time besides dig coal.”
Another employee of the defendant testified that “the diggers did other work besides digging coal.” The evidence showed that the plaintiff was employed to mine coal and to do all other kinds of work about the mine necessary to put añd maintain it in proper condition. It cannot be said that the coal miner upon whose testimony the compensation to plaintiff was fixed by the arbitrator had been doing the same work as the plaintiff. His testimony was therefore not a proper basis under subdivision (b) of section 44-511 of the Revised Statutes upon which to fix the compensation due the plaintiff.
In the absence of proof that sixty per cent of the average weekly earnings of a person in the same grade employed by the same or other employer in the said district at the same or similar work during the twelve months immediately preceding the injury to the plaintiff exceeded the sum of six dollars a week, the plaintiff is entitled to the minimum only of compensation, or six dollars a week. (Stefan v. Elevator Co., 106 Kan. 369, 373.)
The cause is remanded to the district court, with direction to render judgment for the plaintiff giving him compensation at the rate of six dollars per week. In all other particulars, the judgment is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
This is an action involving the validity of a trust deed. It is brought by two of the three trustees named therein against the other trustee and the minor beneficiaries. The petition alleges that the other trustee refuses to recognize the trust and assume the duties as trustee, and asks that the interests of all the parties in the action in and to the property conveyed under the trust ■deed be fully determined and settled and a new trustee substituted and appointed for the one refusing to act or recognize the trust.
The answer of the defendant who is named as one of the trustees is a general denial, a specific denial of the execution and delivery of the deed, and, further, that if executed and delivered, it was procured by undue influence and without independent advice, through confidential or fiduciary relationship of father and son. The answer, by way of cross petition, brings in as a party the son of the grantor, and asks for partition of the property between him and the defendant named as a trustee — a daughter — in disregard of the trust deed. The trial court made findings of fact and conclusions of law and rendered judgment thereon upholding the trust deed as a valid -instrument of conveyance. The defendant who was named as trustee appeals.
The grantor in the trust deed was E. F. Madden, who had been an unusually active and successful business man in Ellis county, being president of the First National Bank of Hays for a number of years, in the grain and real estate business, and the owner of a quantity of land in this and several other states. His wife died in 1913. He had two children, W. J. Madden, a son, who had been cashier of the same bank of which his father had been president and who had worked with his father in all his business affairs from early manhood, and a daughter, Mollie Glathart, who resided with her husband at Lawrence, Kan. When the wife of the grantor died in 1913, the father persuaded the daughter to move to Hays to keep house for him and look after the four children of the son, W. J. Madden, who had been making their home with their grandparents since 1910. She had no children.
E. F. Madden commenced to fail in health about the time of the death of his wife, and soon needed the constant care of a nurse, in addition to the care and attention regularly given him by his daughter, until his death on September 11,1921. During this time he had some financial troubles, and, after working out of them with his son’s help, he left nearly all business matters to his son and intrusted to his care substantially everything of a business nature. He was recognized as a man of unusual business ability and had accumulated a large estate at the time of his death at the age of about 74 years. The relations between him and his daughter had always been ideal —affectionate and perfectly congenial. She had cared for the four young children of her brother in her father’s home during most of the eight years she had cared for her father, and looked after his home. During the last year or more of E. F. Madden’s life, he was very weak physically and had to be helped to and from bed: He would sit up some during the day and occasionally take a short ride in an auto. Although physically weak, he was never incapacitated mentally. No one was permitted to visit him more than a few minutes at a time. His son, W. J., generally called Bill, was about 50 years old at the time of his father’s death, and the daughter, Mollie, was a few years younger. The two older children of W. J. Madden, Edward F. and Mollie, were near or about the age of 18 years at the time of their grandfather’s death. Applications were made to have the district court of Ellis county confer the rights of majority upon them in July, 1921, and such orders were made in October, 1921, about one month after the death of the grandfather.
The trust deed in question, as introduced in evidence (now in the hands of this court, together with a number of other deeds introduced in evidence) was dated March 20, 1921. The grantees are Mollie Glathart, Edward Madden and Mollie Madden, as trustees for Mollie, Edward, Alice and Susan Madden; Mollie Glathart to have net one-half of the income from property conveyed, during her lifetime. There was no consideration named in the deed. The description covers many town lots'and thousands of acres of land in Kansas and other states; also all personal property of every kind, wherever located. It shows acknowledgment by W. J. Madden on March 20, 1921, and bears indorsement of being recorded February 9, 1922. It was not shown to Mollie Glathart by any one until the day it was recorded, when it was shown to her by her brother, W. J. Madden. Her father never told her of having executed such a deed; neither did either of the other two trustees ever mention the existence of the deed to her prior to the time it was shown her. Her brother never offered to turn over the property to her. The deed contains by description property conveyed to her by her father many years before, called the home property, and also a lot conveyed to Leon Akers by deed dated the same day. No change was made in the way or manner of handling the property, disposing of the income or profits, or meeting the expenses during the life of E. F. Madden between the date of this deed and his death, which was nearly six months, nor prior to the time it was shown to Mollie Glathart, which was nearly five months more. The above statement contains nothing but undisputed facts, and, of course, not all of those.
The evidence as to the execution, acknowledgment and delivery of the deed was furnished by W. J. Madden, the son, and Edward, the 18-year-old grandson. Edward testified as to the conversation between his father and grandfather, in which he, Edward, did not participate. He states that his father told the grandfather he had the deed for him to sign., and the grandfather took it, read it and signed it in his presence, after asking if the majority papers had been procured, to which his father answered in the affirmative. His father then suggested getting a certain notary, but the grandfather said, “No, Bill, acknowledge it yourself.” He said they remained there about one hour and no other person was present, not even the nurse. They both testified that W. J. prepared the deed that afternoon on the typewriter in the office before going to the home, and, upon returning to the office, signed it as notary, affixed his seal, and gave it to Edward, who put it in his father’s safe.
The evidence is somewhat conflicting upon several matters more or less closely connected with the matters involved in this case and the circumstances naturally surrounding them, but we shall not attempt to go into these controversies and differences, but will try to determine what conclusions can properly be reached from those undisputed facts in connection with the presumptions and inferences that always belong in a case of this kind and character. A preliminary question is presented and urged by the appellant as to the competency of two witnesses to testify as to transactions and communications had with a person now deceased. As to the witness W. J. Madden, it is not directly urged that he comes within the inhibition of the statute, but more particularly that he is a party in the case and greatly interested, although indirectly. This may more properly be considered in connection with the question of credibility rather than incompetency. The witness Edward Madden is the one especially complained of in this connection. Reference is made by appellant to some early Kansas decisions, and one in particular, where the usual interpretation of the law would have permitted two witnesses in conversation with the person since deceased to have each testified as to the conversation of the party since deceased with the other witness. Whatever divergence there may be said to be in the decisions on this question, it is certain that in Kansas, at least, there is not much room for debate on the subject, since the decision in the case of Robertson v. Wangler, 107 Kan. 45, 190 Pac. 788, where it was said in the opinion:
“In view of the policy of the court to resolve doubts in favor of the admission of evidence, the theory of the Wills-Wood ease is to be pressed no further than the line there drawn. A witness may testify to transactions had by others with persons since deceased, although the circumstances were such as to have disqualified him if he had taken part in them.” (p. 51.)
Prior to that decision, our court had frequently expressed itself in favor of the theory that competency is the rule and disqualification the exception, and that where doubtful the statute should be construed in favor of admission rather than rejection of the evidence. (Williams v. Campbell, 84 Kan. 46, 113 Pac. 800; Sarbach v. Sarbach, 86 Kan. 894, 122 Pac. 1052; Armstrong v. Street Railway Co., 93 Kan. 493, 144 Pac. 847; Cadwalader v. Pyle, 95 Kan. 337, 148 Pac. 655; Bank v. Abbott, 104 Kan. 344, 179 Pac. 326; Gaston v. Clabaugh, 106 Kan. 160, 186 Pac. 1023.) This witness did not take part in the transactions or communications about which he testified. He was present, and simply testified as to what he saw and heard. Under the most approved rules on the subject he was not disqualified to testify to such matters, and his testimony was competent.
The trial court found, both as a fact and a conclusion of law, that the deed in question was a valid and legal instrument of conveyance. A manual delivery is an evidentiary fact, but the delivery necessary to make an instrument valid is an ultimate fact and involves the legal question of intent as well as manual delivery. It is first a question of fact and then a question of law.
“ ‘What constitutes a sufficient delivery of a deed is largely a matter of intention, and the usual test is, Did the grantor by his acts or words, or both, manifest an intention to make the instrument his deed, and thereby divest himself of title?’ (Wuester v. Folin, 60 Kan. 334, 56 Pac. 490.)” (Doty v. Barker, 78 Kan. 636, syl. ¶ 1, 97 Pac. 964.)
We have the undisputed facts in this case, including the manual delivery, and are able to associate with that all such facts and circumstances in order to learn the intent of the grantor; besides, we have now in our possession the original deed and other deeds introduced in evidence in this case and can at first hand form a conclusion and opinion from them. The deed is on a blank now quite faded and discolored, and is quite different in appearance from that of the Akers deed, dated the same day and recorded the next day. The signatures of the grantor on the two deeds are somewhat different in appearance, and the color of the ink used for the signatures of the grantor, as well as those of the notary, is noticeably different in these two deeds. There is no reservation in the deed about its being delivered or becoming effective after the death of the grantor. It completely stripped him of everything he had, both real and personal property, the day it was delivered,, if delivered. It is admitted he was a very fine business man and retained his mental faculties until the last, even after his physical strength was nearly all gone. What about the funds and income to meet the very heavy expense for the day after the deed was made and for the nearly six months thereafter before his death? Are we to say that E. F. Madden, the fine business man and banker, intended on March 20, 1921, to deprive himself of every dollar he had in the world and leave himself without any means of meeting his daily expense? It is said it was a matter of peace and harmony at home that might have prompted a delay of effective delivery. Then, it would be in effect a will and not a deed, because there is no pretense of any consideration. It was a gift, if anything. Consider the many suspicious circumstances surrounding this attempted conveyance. It was prepared by one who manifestly had very litle experience in the mechanical part of typewriting and evidently less about the legal forms and manner of execution. It was signed and acknowledged on Sunday. There were no witnesses. It included property already conveyed and being that day conveyed. It was handed to a minor, for whom an application to have majority conferred was made four months later, and an order made seven months later. It is hard to conceive of any one, so trusted with such an important duty, as we are told this son and this grandson were, and knowing the intention was for an immediate delivery and transfer of so large an amount of property, breaching and betraying that trust and concealing it from the world and those most interested in it — particularly from the only adult trustee named therein — for nearly a year after the time intended by the donor that it should be effective. Or, if it was not intended by the grantor to be delivered until after his death, then we should apply the rules for a devise or bequest, under which rules it would be harder still to call what was done in this case to be all that is required for a legal delivery of a deed.
“It is clear, if that were Mr. Hoard’s intention, he did not intend for the grantees named therein to have any title or interest in the property until his death. If this was a gift it was testamentary in its nature — that is, not to take effect until death — and not being executed as provided by the statute for the execution of wills, cannot be effective to pass title to the grantees named.” (Hoard v. Jones, 119 Kan. 138, 162, 237 Pac. 888.)
“The question of the delivery of a deed is largely a question of intention, ordinarily to be determined by the jury or trial court as a question of fact, but when the facts are not controverted the question should be determined by the court as a question of law, and when the facts have been fully tried, leav ing only questions of law to be decided, this court may direct the entry of a proper judgment — following Worth v. Butler, 83 Kan. 513, 112 Pac. 111.” (Hoard v. Jones, supra, syl. ¶ 9.)
It is expecting of any court a very great deal to conclude that the intention of the grantor in this case was for an immediate delivery of the deed when the only two living witnesses on the subject ignored in every way a compliance therewith for nearly a year. The court concludes from the undisputed evidence and evidence at first hand that there was no legal delivery of the deed in this case.
The trial court in his conclusions of law uses an expression which might be thought to mean that defendant had failed to prove or show undue influence. Later in the conclusions the expression is broader. It was not necessary for the defendant to show or prove undue influence. The relation of the parties places the burden upon the plaintiff to show and prove there was no undue influence.
“The confidential relations existing between the appellant and his mother having been clearly established, a presumption arose of undue influence, and the burden rested upon him to show that the transaction was free from such influence. In addition to the presumption which in equity arises from the situation of the parties and their relations to each other, the circumstances under which the conveyances were obtained are suggestive of unfairness on the part of the appellant amounting to undue influence. The fact that he initiated the proceedings, directed the preparation of the deeds, arrangéd for their execution, selected the witnesses to be present, and that none of the other members of the family was informed of the transactions, were circumstances hardly to be overcome by his denial of undue influence and the testimony of witnesses that the grantor appeared to understand what she was doing.” (Smith v. Smith, 84 Kan. 242, 247, 114 Pac. 245.)
“In such a case as this, the burden of establishing the perfect fairness and equity of the conveyance to Mrs. Paddock was thrown upon her, in view of her father’s age, sickness and feebleness of mind, and the close relation of the parties.” (Paddock v. Pulsifer, 43 Kan. 718, 721, 23 Pac. 1049.)
“Rule followed that persons enjoying a confidential relationship with the grantor of gifts inter vivos have the burden of showing that such gifts were made without undue influence.” (Coblentz v. Putifer, 97 Kan. 679, syl. ¶ 1, 156 Pac. 700.)
“Viewed as gifts inter vivos, the burden was on Peter, owing to his confidential relationship, to show that he did not obtain them through undue influence, and he failed to sustain that burden.” (Hoff v. Hoff, 106 Kan. 542, 550, 189 Pac. 613.)
It makes no difference that the one in the confidential relationship with the grantor is not a beneficiary himself. If the beneficiaries are his children, or even if the benefit is for some worthy cause which he is anxious to help, the rule is the same. (Cornet v. Cornet, 248 Mo. 184, 234; Good v. Zook, 116 Ia. 582.) This subject will be further considered in connection with the concluding one of this opinion, viz., the necessity of independent advice and counsel where fiduciary relationship exists.
We have a statutory requirement in Kansas for independent advice in relation to wills where fiduciary relationship exists. As stated before, this looks more like a will than a deed when we observe the attitude of the only parties who knew of its execution or existence. Even now there are no suggestions as to the proper use of the income and the return of expenses incurred and paid between the date of the deed and the death of the donor. So, why should the instrument, treated as if a will t>y those who held it, not be surrounded with the protection afforded and required by statute if it were a will? Our own court in a will case has treated this question as a general principle of protection necessary with, or even without, such a statute.
“There has long been a principle recognized by courts of equity pertaining to gifts during life, where the donor gave all, or the principal part, of his property to one who stood in a confidential relation to him, which principle required the donee in such an instance to show not only that the donation was knowingly made, but that the donor had independent advice pertaining thereto. (See 28 C. J. 654, and cases there cited; also, Nobles v. Hutton, 7 Cal. App. 14; Flowers v. Flowers, 94 Okla. 134; Pruitt v. Gause, 193 Ia. 1354.) Our legislature has written this principle into the law of wills. In Post v. Hagan, 71 N. J. Eq. 234, the term ‘independent advice’ in this connection was held to mean ‘that the donor had the preliminary benefit of conferring fully and privately upon the subject of his intended gift with a person who was not only competent to inform him correctly as to its legal effect, but who was, furthermore, so disassociated from the interests of the donee as to be in a position to advise with the donor impartially and confidentially as to the consequences to himself of his proposed benefaction.’ ” (Flintjer v. Rehm, 120 Kan. 13, 17, 241 Pac. 1087.)
The language of the Corpus Juris citation given in the above quotation is as follows:
“In some jurisdictions, where a confidential relation exists between the donor and the donee, the validity of a gift depends upon whether or not the donor had independent advice. And, even where this rule is not recognized as controlling, it has been held that the question whether or not the donor received independent advice is a material one to be considered with other surrounding facts and circumstances, such as the nature and purpose of the gift, and the condition and relation of the parties.’’ (28 C. J. 654.)
“The normal relation of parent and child, as it had existed in earlier years, had been reversed, and the daughter had become the guardian of the father. In this situation the law presumes that a gift made by the parent to the child is the product of undue influence, and casts upon the latter the burden of proving the contrary. It was considered by the vice chancellor, before whom the case was tried, that she had discharged this burden. After a careful review of the testimony we are not one as to the soundness of this conclusion. A decision upon this point in the case, however, is rendered unnecessary, as we conclude that the conveyance must be set aside, because, in making it, the donor did not have the benefit of competent and independent advice as to its effect.
“That the absence of such advice will invalidate a deed of gift, which contains no power of revocation, where a relation of trust and confidence exists between the donor and donee, is not denied, and, indeed, it was so held by the vice chancellor. He seems to have considered, however, that such relationship was not shown, unless it was made to appear that the donee occupied such a dominant position toward the donor as to raise the presumption that the latter was without power to assert his will in opposition to that of the donee. But this is not the situation. The rule has a much broader sweep. Its purpose is not so much to afford protection to the donor against the consequences of undue influence exercised over him by the donee as it is to afford him protection against the consequences of voluntary action on his part, induced by the existence of the relationship between them, the effect of which, upon his own interests, he may only partially understand or appreciate.” (Slack v. Rees, 66 N. J. Eq. 447, 448.)
“There is no pretense, even by the defendant, that the old gentleman had the opportunity or advantage of independent advice from any source, and this fact alone has often been held sufficient to set aside deeds and contracts obtained under such conditions.” (Pruitt v. Gause, 193 Ia. 1354, 1359.)
Again, our own court has referred to and applied these principles to a donation in the form of a deed in the case of Barger v. French, 122 Kan. 607, 230 Pac. 253.
“The real question in the case, under the pleadings, is whether a valid gift was made. This depends upon the issues joined as to Mrs. Denning’s mental capacity to comprehend the nature of the transaction, and the allegations as to the conduct of Rev. Mr. Smith, and others representing the church organization, amounting to fraud and undue influence. This should be determined by the evidence pertaining thereto and in accordance with the principles of courts of equity in dealing with such questions. The fact that Rev. Mr. Smith, and those associated with him, were ambitious to get Mrs. Denning’s property, or the value of it, to use for religious purposes, if that is shown to be' a fact, would not justify them in overreaching her, or taking» advantage of her, if the evidence discloses such was done. If the evidence warrants it, there should be a judicious application of the principle of independent advice recognized by courts of equity, and which our legislature has written into the law of wills. (R. S. 22-214; Flintjer v. Rehm, 120 Kan. 13, 241 Pac. 1087, and cases there cited.) We are not expressing a view as to the evidence, or the weight of the evidence, upon this question; we carefully avoid doing so; that is a question for the trial court. We are simply endeavoring to point out the question upon which the case must turn, viz., Was there a gift (conditional or otherwise) of the property in question, intelligently and freely made? and to point out the legal principles to be applied, viz., the principles usually applied by courts of equity in such controversies.” (p. 612.)
We think the facts in the case at bar much stronger for the application of this wholesome rule than those in the case just cited, and they should be applied here. It is not claimed there was any independent advice here; in fact, all the evidence concerning the making and delivery of the deed shows there could not have been any such advice. The record shows that attorney and bankers were on hand a few years earlier, when there was something doing in financial and business matters, but when the deed was drawn up they did not seem to have been wanted or needed. Again we refer to the language and facts in the ease of Smith v. Smith, above quoted, showing presumption of undue influence because of the relation of parent and child and the need of independent advice, and because of an entire lack of such advice conclude that this attempted conveyance should not stand as valid and legal.
The judgment of the trial court is reversed and the cause remanded, with instructions that further proceedings be in accordance with the views herein expressed.
Burch, Marshall ano Hutchison, JJ., dissenting. | [
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The opinion of the court was delivered by
Dawson, J.:
A petition for a rehearing in this cause, which has had our careful attention, suggests nothing overlooked in our original opinion that would justify a disturbance of the judgment of the trial court, but it does point out a remark in our original opinion which should be corrected in the interest of accuracy. We said:
“Nothing in this record suggests that this action sought to subject defendants to a liability as partners or because they were tenants in common.” (p. 276.)
There was an allegation in plaintiff’s petition that defendants were partners. That allegation, if proved, would have served to bind all the defendants for any act or statement of any of them concerning matters pertaining to plaintiff’s employment, according to the general law of partnerships; otherwise, of course, the several defendants could only be bound so far as they individually participated in the contract of employment and in the breach of its obligations. But the mere fact that a plaintiff alleges more than he can prove, or fails in part of his proof, does not necessarily ruin his case. The trial court disposed of plaintiff’s allegation of partnership in its sixteenth instruction, which reads:
“You are instructed that under the evidence in this case, the defendants did not own the property described in the amended petition as partners, but that they owned it as tenants in common, each defendant owning an undivided one-fourth interest therein, and that therefore, without being expressly or impliedly authorized, as herein elsewhere instructed, one of the defendants did not have the right to bind another defendant in reference to any trans action concerning the sale of this property, and that before any one of the defendants could be required to sell his interest in the property in question, he must give either express or implied authority to sell it, as herein instructed.”
This court cannot concede that plaintiff framed his cause of action on one theory and recovered on another. The cause was the same throughout — against four men for services performed under a contract of employment.
The rehearing is denied. | [
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The opinion of the court was delivered by
Hopkins, J.:
The action was one to set aside a deed to certain real estate on the ground of lack of mental capacity of the grantor, fiduciary relation between the grantor and grantee, undue influence upon the grantor and nondelivery. Plaintiffs prevailed, and defendant appeals.
The facts briefly are these: The deceased, father of these litigants, had for many years lived in Smith county, and at the time of his death was possessed of 160 acres of land (in controversy), a Ford automobile worth' $125, $1,400 in cash, and a mortgage for $2,500. Following the death of his wife in April, 1924, he first lived with his daughters and then with a grandson, defendant’s son, and then in February, 1925, went to live with the defendant at Reamsville, a small inland town some fourteen miles from Smith Center. The defendant operated a grocery store. The plaintiffs lived some miles away on farms of their own. On February 5, 1925, deceased went alone to Smith Center to the office of Henry Clark, an old friend, and had him draw a deed conveying the 160 acres of land to his son, the defendant. A room was built for deceased at the son’s house and he resided there until his death on July 5, 1925. There was evidence that some four weeks before he died he requested his son and daughter-in-law to go to their store and remove certain papers belonging to him from the safe; that the son’s wife took a pillow slip, got the papers, returned to the room and handed them over to him; that the only persons present were deceased, his son and wife, and a carpenter, Hancock, who was building the room onto the son’s home for the father; that after he was handed the papers, he handed the deed back to her saying that he intended it to be for Pete, the son; that he made certain assignments of the money he had in the bank to Pete. The witness Hancock testified there was no actual handing of the papers to the son, and that the son said nothing, did not acknowledge the receipt of the deed or the certificates of deposit in any way, did not thank his father or “open his head,” and that he looked shocked. The son and his wife then took the papers back to the store and put them in the safe. Deceased’s daughters were present during his last illness and helped to care for him. After the funeral there was a conversation between them and defendant as to paying the funeral expenses, and the latter remarked to let it go, that he didn’t know whether there was money enough to pay them from the estate. Later one of the daughters had another conversation with him in which he told her he had paid the expenses and “drawed out” the money in the bank; that his father had given it to him. He also claimed that the father had given his automobile to his (defendant’s) son. Two neighbors testified the deceased made statements that he intended to keep his property as long as he lived, and when he died he wished his children to have it in equal shares. The testimony of the notary who drew the deed was that the deceased appeared to be rational at the time of the transaction. The defendant testified that he had said nothing to his sisters about the delivery to him of the deed because his father had asked him not to. It also appears that the father’s paper were removed from the bank in Smith Center and put in the safe in the son’s store on the suggestion of the son that they would be more accessible to him.
The principal questions in the case are as to whether there was an actual delivery of the deed, and if delivered, whether through the undue influence of the defendant, and whether a fiduciary relationship existed between father and son.
In rendering judgment the trial court had a statement made of record in which, among other things, it was said:
“They [plaintiffs] do urge two things, they urge the deed was not delivered, and that there was a fiduciary relation existing between the defendant and his father. If the facts show a fiduciary relation existed between them it would be the duty of the son, the defendant, to show good faith in all the transactions that led up to the execution and delivery of the deed. The evidence as to a fiduciary relation is almost entirely circumstantial in this case. Possibly one exception; there is a statement by one of the witnesses, . . . that the old gentleman, Van Cleave, the father, took his papers out of the bank down there because his son wanted him to, and took them up and put them in his son’s vault. This is undenied. The further circumstances show that the son built a room on his house to take care of his father, shows that he expected to go there and live and make his home there the rest of his days, and did. It is not the natural thing for a father to give all of his property to one of his children, and disinherit the others, but under the defendant’s story in this case, that is just exactly what his father did, gave him ah of the property, and left the daughters without any. But he could do that if he wanted to, and it was honestly and fairly done. He told his old neighbors up there in his own neighborhood that he wanted his children to share equally in the property. . . . I believe taking the circumstances altogether, they do so tend to show fiduciary relation. The evidence about the delivery of the deed is rather unsatisfactory ... as far as the actual delivery of the deed is concerned. ... Of course, if the burden is upon the defendant to show good faith, he hasn’t shown it, I don’t believe, on his part. The finding of the court will be that the deed should be set aside.
“I will make the further finding, each party to this suit is found to be the owner of an undivided one-third interest in the land described in the petition, and then I will order the land partitioned.”
The defendant’s attempted explanation of the various happenings, including assignment of the two certificates of deposit transferring $1,400 in cash and the alleged gift of the automobile were clearly unsatisfactory. It was a fact case resolved by the trial court against the defendant on sufficient evidence. The general finding of the court for plaintiffs included a finding of nondelivery of the deed.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action by the buyer of a cow to recover the purchase price from the vendor, together with items for veterinarian’s charges, cost of feed, and expense of trucking the cow. The cow died in the possession of. the buyer some three months after she was delivered to him.
The sale was made on August 21, 1925, but the cow, a registered Holstein, was delivered to defendant September 25, 1925. A few days before the delivery, the cow had. bloated on alfalfa and the vendor had “tapped” her left side. When plaintiff came to pay for the cow and take her away defendant apprised him of this fact and offered to release him from his bargain. The cow, however, was a very valuable one, and plaintiff was anxious to become her owner, so he paid the agreed price, $300, and hauled her away in a truck. No ill effects flowed from the bloating and incision, but a few weeks later she began to go down in flesh and showed symptoms of ill health, and this evil condition became progressive, and eventually she died on December 23, 1925. A veterinarian made a post-mortem examination which revealed that her stomach was laden with nails, 22 rifle cartridges, baling wire and other metals and particles of gravel. Some of the wires had penetrated the stomach wall, causing raw places and adhesions, and one of the articles had entered the lining of the heart. The veterinarian ventured the opinion:
“These articles might have been, in the cow’s stomach for five or six months. Might take longer than six months for the number.of metals to accumulate . . . No way to tell the exact length of time. . . . The articles probably caused gastric disturbances; . . . they caused gastritis, and one of the articles which entered the lining of the heart killed the cow.”
Plaintiff’s petition alleged that defendant represented that the cow would calve in March, 1926, and that plaintiff bought her for the purpose of raising calves, and that defendant had warranted and guaranteed that the cow would breed, all of which was untrue, and that plaintiff had purchased the cow in reliance thereon. Plaintiff also alleged that the cow died as a result of having eaten nails', wire and metals, which were in the cow’s stomach at the time plaintiff purchased her from defendant.
Defendant’s answer joined issue on all questions of fact from which a liability on his part might be deduced.
A jury was waived and the cause was tried by the court, which filed a written opinion summarizing the evidence and containing informal findings of fact and conclusions of law favorable to defendant.
Judgment was entered accordingly, and plaintiff appeals, contending that the trial court reached a wrong conclusion. This argument is based upon the proposition that the cow was sold on defendant’s representation that she was capable of producing a calf, and that she was sound and all right, while the condition of the cow, as later revealed by the foreign contents of her stomach, proved that she was not capable of producing a calf, and that the evidence fairly showed that the nails, wires, cartridges, etc., were in her stomach at the time she was sold, and in consequence she was not sound at the time he purchased her.
Defendant testified that he had not given any warranty or guaranty concerning the cow’s condition; that she had already given birth to six calves; that she was only eight years old, and had been bred on July 7, 1925; that he did not guarantee her to be with calf; and defendant also testified that this particular fact could not be foretold with assurance. Plaintiff admitted on the witness stand that he had no reason to doubt that the cow was bred on July 7 as represented. But unless covered by an express warranty a statement as to when a cow will calve is only an expression of opinion. In Smith v. Johns et al., 113 Ore. 351, one of the headnotes reads:
“Statement by seller of dairy cows as to time when cows become ‘fresh’ held not ground for rescission, being merely the statement of an opinion.”
The evidence also tended to show that aside from the recent tapping for alfalfa bloat, when the cow was delivered to plaintiff on September 25 she appeared to be in good condition. And as to the tapping the testimony reads:
“It was just the same as if she wasn’t ever tapped. You could never have told it.”
The plaintiff himself testified that from appearances the cow - was all right when she was delivered to him.
About a month after the delivery of the cow, October 26, plaintiff notified defendant that the cow was not with calf, but said nothing about her being out of good physical condition at that time. The trial court’s finding was that aside from the recent bloating and tapping “the cow was in good condition” when delivered to plaintiff.
The Court: “I don’t think a person observing the cow would be able to tell at the time Mr. McCullough got her from Mr. Bales, that she was suffering from the things that eventually caused her death. . . . Don’t think there was any guilt on the part of Bales that she was with calf or that she had produced calf. . . . Bales didn’t know there was anything wrong with the cow or that these foreign substances were in her system. She didn’t die as the result of tapping.” <
The pertinent law is to this effect: Where a latent unsoundness of an animal exists unknown to the seller and where he makes no representation as to its soundness, he is not liable for any loss or damage sustained by the vendee through subsequent development of whatever disease or other defect may have afflicted the animal at the time of the sale. This rule was applied in bygone times to the purchase and sale of slaves (Brooks v. Cannon, 2 A. K. Marsh. [Ky.] 854; Shenault v. Eaton, 4 Yerg. [Tenn.] 98). It has been applied in the sale of horses (Lindsay v. Davis, 30 Mo. 406), in the sale of cattle (Morris v. Thompson, 85 Ill. 16; Puls v. Hornbeck et ux., 24 Okla. 288, 29 L. R. A., n. s., 202, and note), and in the sale of hogs (Warren v. Buck, 71 Vt. 44, 76 A. S. R. 754).
In Rhynas v. Keck, 179 Ia. 422, which was an action for damages on an alleged implied warranty that hogs sold by defendant were fit for slaughter for human food, when in fact they were infected with hog cholera, the jury expressly found that the defendant seller did not know, when he sold the hogs, that they were infected with disease. Defendant prevailed, but we can only take space to quote part of the syllabus:
“There is no implied warranty, in an executed contract of sale, against the existence of latent and nondiscoverable disease in animals sold for human consumption, even though the vendee pays a ‘sound’ price therefor.
“On the subject of implied warranties, the following principles are recognized :
“There is no implied warranty of soundness when unsoundness is hidden, is difficult to discover, and is unknown to the vendor.” (Syl. ¶¶ 1, 2. See, also, 24 R. C. L. 202, 333, 347; 35 Cyc. 69, 70.)
In the older decisions the rule even went so far as to hold that although the seller might know of some intrinsic defect or vice in the animal or thing being sold which would materially affect its value, he would not be answerable to the buyer because of a mere failure to disclose the facts (Beninger v. Corwin, 24 N. J. L. 257; Paul v. Hadley, 23 Barb. 521), but the modern trend of decided cases calls for a fairer standard of business ethics. (See annotation, Dfity of Seller to Disclose Defect in Animal, L. R. A. 1917C, 619 et seq.)
It is also settled law that where an animal is sold under an implied special warranty no liability attaches to the buyer because of defects not covered thereby. Thus, in Barton v. Dowis, 315 Mo. 226, 51 A. L. R. 494, there was a sale of a herd of hogs under an implied warranty that the animals were fit for breeding purposes. The hogs died of the cholera, and the buyer sued the vendor for damages. A judgment in plaintiff’s favor was reversed, the court saying:
“The implied warranty that the hogs purchased by plaintiff were fit for breeding purposes was not a warranty that they would not communicate a disease to other hogs. A warrantor is bound only by the terms of his covenant. If the hogs were afflicted with disease which rendered them unfit for breeding purposes, then that defect, it may be conceded, would be covered by the implied warranty. That warranty means that they were healthy and capable of procreation; that they would reproduce the kind and variety they were represented to be. There is no evidence to show that the hogs purchased by the plaintiffs were not good for breeding purposes — the purpose for which they were bought.
“Where a stallion was purchased for breeding purposes, carrying an implied warranty, the contract did not include a warranty that he was free from a disease which would be transmitted to an offspring. (Briggs v. Hunton, 87 Me. 145, 47 Am. St. Rep. 318, 32 Atl. 794. See, also, 24 R. C. L. 202; Johansmeyer v. Kearney, 37 Misc. 785, 76 N. Y. Supp. 930.)
“The implied warranty that the hogs were good for breeding could not by any stretch be construed as a covenant to hold the plaintiff harmless from any disease which the purchased hogs might have communicated to his other herd.” (p. 231.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.;
Appellant was charged in three counts with being a persistent violator of the intoxicating liquor law. The first count charged unlawful possession, the second count charged a sale, and the third count charged the maintenance of a nuisance — and each count charged a prior conviction. The trial resulted in a verdict of guilty on the first count and of not guilty on the second and third counts. He has appealed, and complains, first, that incompetent evidence, prejudicial to him, was received. When the officers arrested defendant at the place where he was charged with maintaining a nuisance they found, among other things, a 44-40 Colt revolver and cartridges for it, and took them along. These were offered in evidence as tending to show the kind of place he was maintaining, and the means he had prepared to protect it. Since they were offered only to support the charge contained in the third count of the information, and since'the defendant was fdund not guilty on that count, the error, if any, in their admission in evidence is unimportant.
There was evidence that,'on the way to jail, defendant asked the officers who arrested him and who had him in custody, "if this thing could not be fixed in some way so he would not have to come in with us, if it could be settled and that would be the end of it.” He was told that could not be done. At the trial the county attorney commented on this in his argument to the jury. Complaint is made of that. It was a proper subject of comment.
Perhaps the county attorney overstated the evidence relating to that matter when he said the defendant had not denied making such a proposition. The record shows that in his testimony he did deny making any proposition relative to a settlement, and said that he asked the officers to let him come down to the sheriff’s office in the morning, and told them he would do so. Such overstatement of facts by an attorney in his argument does not require a reversal. Attorneys in all cases in argument to the jury should state the evidence fairly and accurately, when they state it at all, for such tends to avoid confusion and to promote the proper administration of justice. But the jury is the judge of the evidence — of what has been testified to by the witnesses — as well as of the weight of the evidence, and the court usually in the, instructions, and attorneys frequently in their arguments, tell the jury their duty in this respect. There is no suggestion that the jury was not so told in this case; neither does the record disclose that the jury did not perform its duty in this respect.
The judgment of the court below is affirmed.
Hopkins and Hutchison, JJ., not sitting. | [
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The opinion of the court was delivered by
Marshall, J.:
This is an action on three promissory notes given by the defendant to the plaintiff for a tractor. The defense was that the tractor had been sold under a written warranty which had failed. Judgment was rendered on the pleadings in favor of the plaintiff against the defendant, who appeals.
The petition set out three promissory notes of $500 each, one due on September 1, 1925, one due on September 1, 1926, and one due on September 1,1927. The petition alleged that each note provided that it should “become due at the option of the holder upon default in full payment at maturity of any of said three notes, and also for default in any condition of said chattel mortgage.” The mortgage provided that “if the mortgagee . . . shall deem themselves insecure . . . the whole amount herein secured shall, at the option of the payee, immediately thereafter be and become due and payable.” The petition also alleged that each' note had been declared due and payable; and that payment of the notes had been demanded and refused.
The answer alleged:
“That at the time of the purchase of said tractor, said agent promised and agreed that when the tractor was received by defendant he would be present and assist in starting the operation of the tractor. That when the tractor was received defendant advised said agent and requested that he be present when the tractor was put into operation, to which said agent agreed, but that he failed to be present and failed to investigate the operation of the said tractor when said tractor was received and put into operation. Defendant started the operation of the tractor by attaching it to a combine harvesting machine, which is light work for that size tractor. The tractor immediately developed a serious knock and failed to develop sufficient power that such size tractor should have, and defendant immediately complained verbally to said agent about such defect, and said agent promised and agreed to visit the farm of defendant where the tractor was and to investigate and cure such defects, but such agent failed so to do. Thereafter, a number of times, the defendant verbally informed said agent of such defects and requested the agent to remedy them and to fix said tractor in a proper and workable condition, but said agent failed to visit said tractor or to pay any attention to defendant’s requests. On the second day of July, 1925, the defendant attached said tractor to a four-bottom plow, which is a heavier load than a combine harvesting machine, but such a load the tractor in question should easily pull. The knock in the engine then was very much more pronounced, and it failed to develop the power for which it was intended. Defendant then verbally complained to said agent again about such defects. On the said second day of July, 1925, said agent and plaintiff’s agent from Wichita, Kan., came out to defendant’s farm, and on looking over the tractor advised the defendant to put in new spark plugs and represented that this would cure the defects, and they promised! to return and see how it worked. New spark plugs were put in, but they did not remedy or cure the defects complained of in the tractor, and said agent, Loren Chitwood, and plaintiff’s agent from Wichita failed to return as they had promised and agreed.
“Defendant endeavored to use the tractor for a number of days, but could not do efficient work. On the 6th day of July, 1925, defendant notified plaintiff in writing of the defects that appeared in the tractor, and on or about the 12th day of July, 1925, the said agent, Loren Chitwood, and an agent of plaintiff’s from Wichita, took down the tractor and made some adjustments and repairs, and then they said the tractor was all right, but said defects were not cured and after one day’s work the knock became as bad as ever and to such a pronounced extent that it appeared dangerous to keep working the tractor, and that it failed to develop sufficient power.
“A copy of said letter, marked ‘Exhibit A,' is hereto attached and made a part hereof.”
The letter marked “Exhibit A” contained the following language:
“About the middle of June John Stoops purchased, through Loren Chitwood, your agent in this territory, a 20-35 Oil Pull tractor. He started into his harvest with it which is light work, but it knocked considerably and two or three days after he started out, he complained to your agent about the knock. He promised to come out and investigate it but failed to do so.”
Other correspondence between the plaintiff and the defendant followed, and on July 18, 1925, the plaintiff wrote to the attorney for the defendant who had conducted the correspondence for him as follows:
“We received your letter of the 14th inst. making further complaint on the 20-35 oil tractor delivered to Mr. Stoops on the above order on June 10, 1925, and wired our Wichita manager to give this matter his immediate personal attention.”
The order signed by the defendant for the tractor contained the warranties on which it was sold. The order was in part as follows:
“Said machinery is warranted to be well made and of good material and with proper use capable of doing as good work as any other machine of the same kind, size, rated capacity, working under like conditions, but any machine or part thereof not manufactured for or by vendor or which is secondhand, rebuilt or repaired, is not warranted, by statute or otherwise.
“Purchaser shall not be entitled to rely upon any breach of above warranty or to rescind this contract or to any claim or setoff against the vendor because of any breach unless; (a) notice of the defect or breach particularly describing the same, and specifying the time of the discovery of the same, is given by registered letter addressed to vendor at its head office, posted within four days after such discovery; (b) such defect or breach appears within ten days after the first use of the goods; (c) the vendor fails to remedy the defect or breach by substitution of parts or otherwise within a reasonable time after receipt of such notice, which substitution it shall have the right to make. Purchaser shall render necessary and friendly assistance to vendor in and about remedying the defect. If vendor fails to remedy the defect purchaser shall have the right immediately to return the defective goods or parts in as good condition as when received by him to the place from which they were received, and shall thereupon give vendor immediate written notice of such return by registered letter addressed and mailed to vendor at its head office. Thereupon the money paid and security given by purchaser on account of the purchase price of the goods returned shall be promptly returned by vendor, and vendor shall be released from all further claim. Failure to so return the goods or to give the aforesaid notices shall be taken as conclusive evidence that the warranty is satisfied. When at the request of the purchaser some person is sent to remedy or repair machinery and the same is found to have been carelessly or improperly handled, the expense incurred by vendor in putting it in working order shall be paid by the purchaser. No attempt by vendor or its representatives to remedy any defects shall constitute a waiver of any of the provisions hereof, and if a mechanical expert visits the machine and does not leave it working properly, purchaser shall give immediate notice in writing or by prepaid telegram to vendor at its head office, stating specifically the failure or neglect complained of.
“There are no representations, warranties or conditions express or implied, statutory or otherwise, except those herein contained, and no agreement collateral hereto shall be binding upon either party unless in writing hereon or attached hereto signed by purchaser and accepted by vendor at its head office.”
“(Printed along margin: ‘Purchaser acknowledges receipt of copy hereof and that this order contains all agreements and representations connected with this purchase and sale.’)”
The answer alleged that the tractor was purchased on June 10, 1925, and implied, but did not directly allege, that it was immediately put into operation by attaching it to a combine harvesting machine. The answer alleged that when the tractor was used, it immediately developed a serious knock and failed to develop sufficient power; that after testing it on the combine harvesting machine, the tractor was attached to a four-bottom plow1, when the knock became more pronounced and sufficient power was not developed; and that on July 6, 1925, the defendant in writing notified the plaintiff of the defect in the tractor. The answer virtually disclosed that no written notice was given to the plaintiff within four-days after the discovery of the defect. The plaintiff in its brief says:
“The appellant first used this machinery June 10, 1925, on a combined harvester and thresher which he says is a light load for such a tractor and is lighter work than plowing.”
The defendant in his brief says:
“It [the tractor] was tried out on a combine harvester-thresher about June 10, 1925.”
There is no dispute about the time when the tractor was first used by the defendant, nor when the first written notice was sent to the plaintiff at its head office.
Three conditions of the warranty are involved: Notice of the defect must be given within four days after its discovery, such defect must appear within ten days after the first use of the tractor, and the notice must specify the time of the discovery of the defect. Those conditions were not complied with by the defendant because written notice of the defect in the tractor was not mailed to the plaintiff at its head office until July 6, 1925, twenty-six days after the discovery of the defect. The defendant argues that his failure to send notice as required in the warranty was waived by the plaintiff by its sending workmen to repair the defect in the tractor and make it work.
The order for the tractor should be again examined. After reciting the conditions of the warranty, the order says:
“If vendor fails to remedy the defect purchaser shall have the right immediately to return the defective goods or parts in as good condition as when received.”
It also provides that—
“No attempt by vendor or its representatives to remedy any defects shall constitute a waiver of any of the provisions hereof.”
The order contemplates that the plaintiff, the seller of the tractor, will make an effort to repair it if on the purchaser’s testing it it is found to be defective, and provides that an attempt to remedy the defect shall not constitute a waiver of the required notice. Those were valid provisions of the order when it was made, and continued to be valid provisions of it binding on both the plaintiff and the defendant until the completion of the transaction, or until other terms were agreed on. No other terms are alleged in the answer. The defendant relies on the warranty with which he did not comply, and relies on a waiver of the conditions of a warranty when the order specifically says that the acts which the defendant contends waived the warranty shall not constitute a waiver.
We quote from 35 Cyc. 427 as follows:
“Want of or defects in the notice required by the contract may be waived by the seller, by a request that the buyer shall give the article an additional trial or test, or by a promise to remedy all defects; and a delay in giving notice is waived if it is caused by the efforts of the seller or his agent to make the machine work properly. If the seller or his authorized agent acts on the notice received and undertakes to remedy the defects it is a waiver of the objection that the notice was-not in the proper form, or was not given in time. The theory of the cases is that as the notice is for the benefit of the seller, if he acts on it he waives any objection thereto.”
The weight of authority supports the rule stated by 35 Cyc., but there is authority to the contrary, among which is a decision of this court, Implement Co. v. Biddle, 110 Kan. 365, where this court said:
“A threshing machine was sold under the terms of a written warranty, the material parts of which are set out in the opinion. The warranty required written notice of the defects within six days from, the first day of the use of the threshing machine. Yerbal notice given to the manager of a branch house of the machine company’s business did not comply with the terms of the warranty, and the warranty was not waived by the company sending workmen to repair the machine, nor by the promises of such manager to make the machine satisfactory.” (Syl.) ■
In Implement Co. v. Biddle, supra, the written contract under which the threshing machine was sold contained warranties with conditions substantially the same as the warranty and conditions contained in the order under which the tractor in the present action was sold.
In Silo Co. v. Carter, 98 Kan. 279, in an action to recover the purchase price of a silo sold to the defendant, this court said:
“In the contract the buyer agreed that if upon receipt of the silo any parts were found to be defective or missing he would át once notify the seller in writing and give him reasonable time to replace the parts and that when such replacements, were made the seller’s responsibility would cease. ■ The buyer did not give the seller written notice of the defects until January 18 following the delivery, nor was any notice given except to the local agent who made the sale. After the notice was given the seller entered into negotiations with the buyer in regard to remedying the defects and expressed a willingness to supply what was lacking and defective. Held, that the delay of the buyer in giving the written notice was waived by the seller.” (Syl. ¶ 3.)
In Silo Co. v. Carter, supra, the silo was ordered August 1; it could have been shipped Augüst 5; it was delivered September .20; and the seller was notified on January 18, four months after the silo arrived. The order which constituted the contract for the sale of the silo did not contain any express warranty of any kind. It did contain the following:
“If upon receipt of silo, any part or parts are found defective or missing, I will at once notify the Western Silo Company in writing and give them reasonable time to replace all such parts, and at such time as such replacements are made their responsibility ceases.”
Implement Co. v. Biddle, supra, and Silo Co. v. Carter, supra, do not conflict with each other.
There was no error in rendering judgment in favor of the plaintiff on the pleadings.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hopkins, J.:
The action was one to recover damages for the wrongful issuance of an injunction. Plaintiff prevailed and defendants appeal.
The facts substantially are these: Plaintiffs secured a judgment in Morris county against J. C. Hopper and W. I. Bowman. Execution was sent to Ness county, where a levy was made on some three thousand dollars’ worth of personal property. It was advertised by the sheriff, but before the sale J. C. Hopper filed an injunction action restraining and enjoining the sale of the property. While the injunction action was pending and some nine months thereafter, W. I. Bowman, one of the defendants under the original judgment in Morris county, filed a petition in bankruptcy. The plaintiff, S. A. Bowman, who was restrained and enjoined from selling the property above mentioned, attended court in Ness county and endeavored to have the injunction suit disposed of. It was eventually dismissed and the injunction dissolved in 1925. The present action was then brought against J. C. Hopper and his bondsmen for damages for having procured the injunction preventing the sale of the property first mentioned. Trial resulted in a judgment for plaintiffs, from which defendants appeal, contending that a restraining order issued at the commencement of the proceedings was effective for a few days only; that the record fails to show issuance of an injunction; fails to show filing of any motion to dissolve the restraining order or injunction; that the legal title to the property levied upon was in C. L. Wiehl, president of a bank in St. Joseph, by virtue of certain notes and chattel mortgage held by him; that the judgment in the W. I. Bowman bankruptcy proceedings is res adjudicata as to the present plaintiffs, and that the alleged damages were not a sufficient basis for recovery.
While the evidence disclosed by the record is meager, it appears to simply and clearly dispose of the various contentions of the defendants. It shows that on March 12, 1923, a restraining order was issued upon a bond being furnished, signed by Hopper, Cook, Beards-lee and Taylor. The bond was approved March 13, 1923. The execution was returned to Morris county and filed April 4, 1923, with the return of the sheriff: “No sale; injunction issued by J. C. Hopper on goods unsold.” Bowman testified that from the filing of the suit by Hopper until September, 1925 (with the exception of the term in February of that year), he attended all terms of court and endeavored to get the cause heard; that the court dismissed the injunction suit September 25, 1925, and the restraining order was dissolved. He showed employment of counsel and his expenses in attending court. As to whether or not the injunction continued in force, the record discloses:
“Mr. Pirtle (counsel for plaintiff): I want to introduce the files in case No. 3274, in which the injunction was granted. There is no objection to that?
“Mr. Farley (counsel for defendants): No; if that is the injunction case.
“Mr. Pirtle: I want to introduce part of the clerk’s record showing this was dissolved on September 25, 1925. Do you have any objection to that?
“Mr. Farley: No; if that is what the record shows.
“Mr. Pirtle: That is what the record shows. It is admitted that the injunction was dissolved on September 25, 1925, and the case dismissed. I want to introduce as part of the evidence, plaintiff’s exhibit ‘D,’ which is the notice to Hopper, Cook, Beardslee and Taylor, served on them by W. J. Pirtle March 19, 1927. Do you want to look at it?
“Mr. Farley : That is all right.”
The parties might have introduced other and further testimony-showing the existence of the injunction. It appears, however, to have been understood and conceded by both sides that the injunction was in force and effect until its dissolution and dismissal of the case in September, 1925. While a restraining order does not technically operate as a temporary injunction (except for the briefest practical time, to be followed up with a hearing for a temporary injunction), yet by neglect of the party who procured the restraining order to follow it up or by reason of inaction on the part of the court itself,, the restraining order may become, in effect, a temporary injunction, which it appears to have done in the case at bar.
A contention by the defendants that the property levied on under the original execution was not subject to levy because there was a chattel mortgage upon it cannot be sustained. After the original judgment was obtained by plaintiffs in Morris county and levy made in Ness county, defendant Hopper commenced the injunction action, claiming the property levied upon was his. He procured the injunction and prevented the sale of the property by that claim. After dissolution of the injunction in September, 1925, and dismissal of the injunction action, another execution, issued from Morris county under the original judgment, was levied upon a considerable part of the same property belonging to Hopper and which remained in Ness county.
A contention that the proceedings in the district court were stayed by bankruptcy proceedings of W. I. Bowman cannot be sustained for the reason that plaintiff’s original judgment in Morris county had been obtained, execution issued and levied on property in controversy and sale advertised and enjoined nine months previous to the filing of the bankruptcy proceedings of W. I. Bowman.
Various other objections to the judgment have been considered, and while, as above stated, the record is meager, there appears sufficient evidence to sustain the findings of the trial court, and no error. appears which would warrant a reversal.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hopkins, J:
The action was one to recover on a promissory note. The defense was no consideration and that the nóte was executed for the accommodation of the plaintiffs and another. The court directed a verdict for plaintiffs and defendants appeal.
The facts are substantially these: Plaintiffs were real-estate agents in Texahoma, Okla. J. F. Branstetter was a real-estate agent, operating from Nickerson, Kan. Branstetter took Jesse Langford to Oklahoma for the purpose of selling him some land, which Langford agreed to buy.. The land was owned by W. J. Branstine, who had listed it with plaintiffs for sale. When it came time to execute the papers Branstetter feared that W. C. Smith, who was also in the real-estate business, might claim a commission, and it was suggested in the presence of "Cecil or Neild that the deed to the property be executed to the defendant Bridges, a brother-in-law of Langford. This was accordingly done. The papers were sent to Bridges’ bank and executed by him and his wife for the accommodation of Langford and plaintiffs. Afterwards Bridges conveyed the land to Langford, Langford originally having paid $1,500 cash on the deal.
Langford testified substantially that he was a resident of Reno county, Kansas; that Branstetter got him to go down and look at this particular land, the first time in January, 1920; that Branstetter was connected with one Smith in the real-estate business at that time; that they stayed with Smith all night but did not buy; went back the second time in March and decided to buy through Branstetter and Cecil or Neild; that Branstetter suggested that they make out the papers in Mr. Bridges’ name for a couple of weeks so Smith would not come on to them for his part of the commission; that Cecil was present, and all three participated in the conversation; that he was just an agent; that both sets of papers were prepared, one for Bridges, and then one from Bridges to him at the same time; that mortgages were made out and he was to take them over. They were made at the same time the deeds were made and made from Bridges to Branstine. The papers were sent to O. J. Windiate at Nickerson; Bridges was not down there, and had not talked to him about buying this land; that he came home and told Bridges about it. The deeds had not come yet; told him they wanted to do it that way in order to save a commission to Smith. Bridges was not interested in the land; that Langford paid $1,500 cash that day. The purchase price was $6,000; that Bridges made him a deed to this land two weeks or a month later; don’t know how there came to be two notes. They said that was the way they wanted to fix it; that Langford didn’t question it. Bridges or his wife had never been interested in this land. He had not seen the land prior to that time; that Branstetter was not his agent. Branstetter had in the meantime changed from the Smith agency to the Cecil-Neild agency. Never employed Branstetter as his agent in any way or paid him anything; did not pay Cecil and Neild anything; that Cecil, Branstetter and he were present when this deal was closed up. Branstine was not there. They fixed up the papers.
On cross-examination, he testified that he thought Cecil made out the deed, did the writing, the typewriting part of it — made both deeds; that the papers were all sent to the Nickerson State Bank to Mr. Windiate, the deeds and mortgages and all for Mr. Windiate to have his brother-in-law and sister sign, and that he supposed they signed it; that it was the agreement that he (Langford) was buying the land and not Bridges; that Bridges did not have a thing in the world to do with it; that it was done to accommodate Cecil and Branstetter.
Branstetter and Bridges testified to substantially the same state of facts as Langford. For plaintiffs, Cecil denied the testimony of defendants, and there was also for consideration the deed to Bridges, notes and mortgages, Bridges to Branstine, and indorsement of the note in controversy by Branstine. Was the court warranted in directing judgment for plaintiffs? We think not. At best there remained a controverted question of fact as to whether Bridges actually purchased the property and in consideration therefor executed the note sued on, or merely executed the note for the accommodation of plaintiffs and Langford — a question of fact which under numerous authorities should have been ascertained by the jury. (See Bank v. Houser, 95 Kan. 351, 148 Pac. 740; Means v. Bank, 97 Kan. 748, 156 Pac. 701; Smith v. Paper Co., 101 Kan. 274, 166 Pac. 484; Lower v. Shorthill, 103 Kan. 534, 176 Pac. 107; Beachy v. Jones, 108 Kan. 236, 195 Pac. 184; National Bank v. Williams, 117 Kan. 501, 232 Pac. 252; Smith et al. v. Gregg, 117 Kan. 507, 232 Pac. 217; Bank v. Lovett, 123 Kan. 405, 256 Pac. 147.)
The judgment is reversed with directions to grant a new trial. | [
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The opinion of the court was delivered by
Marshall, J.:
This is an action to set side a deed conveying real property from the defendant S. L. Hill to his wife, the defendant Emma L. Hill, and to subject the land to the payment of a judgment rendered in favor of the plaintiff and against S. L. Hill. The defendants answered, and alleged that at the time the deed was made the property was their homestead and had been for a long time prior thereto. The plaintiff contended that the homestead had been abandoned. Judgment was rendered in favor of the defendants, and the plaintiff appeals.
The action was tried by the court without a jury, and special findings of fact were made as follows:
“First. That the plaintiff, at the time of filing the above entitled cause, was a judgment creditor of the defendant, S. L. Hill, upon a judgment duly re covered in the above-entitled court, and at the time said suit was filed said judgment, and no part thereof, had been paid.
“Second. That in the month of October, 1925, and long prior to the institution of the suit wherein plaintiff recovered judgment against S. L. Hill, as aforesaid, the defendant S. L. Hill and his wife, Emma L. Hill sold their outside personal property, or the most thereof, and, taking a part only of their household goods and effects, left the farm in controversy in this lawsuit in charge of a tenant and went to or near Webb City, Mo., at which place they obtained an equity in a small tract of about seven acres of land and made some improvements on it and set up housekeeping there. It appears from the evidence that the defendants took only such household goods as would supply their temporary needs, storing the balance of their household effects on the farm in question in this lawsuit and with their daughter who resided near by.
“Upon arriving at Webb. City, Mo., both of the defendants, in conversations with parties living at hand, made statements which in substance clearly indicated they were trying out the residence in Webb City and were undecided as to whether they would abandon their home in Kansas and take up a permanent abode in Missouri. And shortly thereafter, in conversations with certain witnesses, they indicated they had formed a dislike for the Missouri situation and that they were coming back to their home in Kansas.
“Third. There is a plain inference, from the above and foregoing facts, that the defendants neither of them at any time intended to abandon their homestead in Kansas, to wit: on said eighty acres of land, and take up another homestead in Missouri or elsewhere; that whatever they did in the premises was temporaiy only.
“Fourth. That in the month of February, 1926, defendant, S. L. Hill, conveyed by warranty deed the real estate described in plaintiff’s petition to the defendant Emma L. Hill, his wife. That at said time there was no suit pending against defendant, S. L. Hill, the suit in which plaintiff obtained judgment against the said S. L. Hill not having been filed until some time thereafter.”
In the main, these findings recited the evidence on which the first conclusion of law by the court was reached. That conclusion was in effect a finding of fact and was as follows:
“That the real estate in question is the homestead of the defendants. That they never abandoned the same, but that the same has been their continuous homestead since the year 1919, and is their homestead at the present time.”
In addition to the evidence recited in the findings of fact, there was evidence which tended to prove that the defendants at the time they moved off the property in Coffey county intended to return to it and occupy it as their homestead; that their move to Missouri was only temporary; that they at all times intended to return to the property in Coffey county, and that they never intended to abandon it as their homestead.
1. The plaintiff contends “that there was no competent evidence before the court on which it could have predicated its judgment, ex cepting the testimony of the Hills themselves as to their intention, and their statements of intention are so contradictory and at variance with their acts and conduct, as shown by their own testimony, that their statements of intention that their absence in Missouri was to be temporary only and with a full intention of returning and not abandoning their Kansas homestead, are unfounded.” Part of the conduct of the defendants was inconsistent with and contradictory to their testimony concerning their intention to return; but another part of their conduct was consistent with and corroborated their testimony concerning that intention. That brings this case within the often declared rule of this court that where findings of fact are made by a trial court and those findings are supported by evidence, they will not be disturbed in this court. Among the last decisions following this rule are Wilson v. Stafford, 124 Kan. 382, 260 Pac. 627; Moss v. Hiles, 124 Kan. 401, 260 Pac. 526; Brown v. Fidelity State Bank, 124 Kan. 421, 260 Pac. 654; and Simnitt v. Kneemeyer, 124 Kan. 790, 262 Pac. 554.
2. The plaintiff argues that incompetent evidence was admitted on behalf of the defendants. The evidence complained of was the testimony of witnesses in Missouri who testified concerning the declared intention of the defendants to return to the property in Kansas. Declarations of the defendants that they did not intend to return to their home in Kansas would have been admissible against them. The defendants could testify concerning their intention even if evidence had been introduced to show that they had stated that they did not intend to return to Kansas. Evidence to show the acts and conduct of the defendants had been introduced. One inference that might have been drawn from the acts and conduct of the defendants was that they had abandoned the homestead. The evidence of the declarations of S. L. Hill while the defendants were living in Missouri contradicted that inference. That brings the evidence of the declarations of S. L. Hill somewhat close to the rule declared in State v. Petty, 21 Kan. 54, where this court said:
“When a witness is assailed on the ground that he narrated the facts differently on a former occasion, it is ordinarily incompetent to sustain him by proof that on other occasions his statements were in harmony with those on the trial. To this rule there are exceptions. Thus, where the impeachment goes to contradict the witness by prior inconsistent declarations, and charges him with a recent fabrication of his testimony, it is proper to show that the same account was given by him to other persons anterior to the date of the alleged fabrication. In order, however, that the confirmatory statements of the witness shall be admitted, it must clearly appear that they were made antecedently to the contradictoiy declarations given in evidence.” (Syl. ft 2.)
That rule has been followed in State v. Hendricks, 32 Kan. 559, 4 Pac. 1050; Cloud County v. Vickers, 62 Kan. 25, 61 Pac. 391; Stirn v. Nelson, 65 Kan. 419, 70 Pac. 355; and Cereal Co. v. Alexander, 75 Kan. 537, 542, 89 Pac. 923. The defendants owned the land in Coffey county. They were in possession of it by a tenant. In State v. Gurnee, 14 Kan. 111, this court said:
“Declarations made by a person in possession of land, as to the extent of his possession, are admissible as part of the res gestos.”
In Hubbard v. Cheney, 76 Kan. 222, 226, 91 Pac. 793, this court used the following language:
“The declarations of persons in possession of real property which illustrate the character of their possession and explain their claims of ownership- are admissible to show the character and extent of their claims. (The State v. Gurnee, 14 Kan. 111.) The rule has been applied in cases where the possession and ownership of personal property was in controversy. (Stone v. Bird, 16 Kan. 488; Reiley v. Haynes, 38 Kan. 259, 16 Pac. 440; 5 Am. St. Rep. 737.)”
The declarations of a person claiming a homestead interest in the land have been introduced in evidence for the purpose of establishing that interest.
In Cincinnati Leaf Tobacco Warehouse Co. v. Thompson, 105 Ky. 627, the court declared that—
“Declarations made by the homesteader that his town residence was temporary and that he intended to return to the farm, made before his financial embarrassment, are competent.” (Syl. ft 2.)
To the same effect are Benbow v. Boyer, 89 Ia. 494; Mills v. Mills, 141 Mo. 195; Gaar, Scott & Co. v. Burge, 49 Tex. Civ. App. 599; Woolfolk v. Ricketts, 48 Tex. 28.
In 29 C. J. 962 it is said:
“Declarations, unless otherwise immaterial and irrelevant, of the homesteader, or of his wife, are admissible on the issue of abandonment of homestead rights.”
In 6 Encyc. of Ev. 543, 544, the following language is used:
“The acts and declarations of the husband and wife not only before but at the time of and after the acts constituting the alleged abandonment, if not inconsistent with, but tending to explain, their real purpose and intention, are entitled to consideration on the question of abandonment. Likewise, their acts and declarations during their absence from the homestead premises tend ing to show either an intention to permanently abandon, or to return and reoccupy the same are relevant and entitled to weight.”
The evidence was competent.
3. The plaintiff complains of the exclusion of the evidence of a witness who was put on the stand by the plaintiff to testify concerning a conversation had with defendant S. L. Hill about the sale of the land. The court excluded all of the evidence of the conversation except such as may have concerned S. L. Hill’s going away. The counter abstract contains the following:
“Q. Have you stated all the conversation you had with Mr. Hill relative to his going away? A. I didn’t talk very much to him, only he said he was going.”
“Q. The sum and substance of that conversation was he said he was going down to Missouri? A. Going down to where his son was, I believe.”
The defendants were then living on the land. It was their homestead. They had the right to sell it. Whatever may have been said about the sale was incompetent, except that which concerned the purpose of making the sale and of their going away; that appears to have been admitted.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
Plaintiff obtained a verdict and judgment against defendant under the workmen’s compensation act, and the sole question for review relates to a complaint that the trial court coerced the jury to render its verdict.
The circumstances were these: In Sedgwick county, where this action arose, the district court follows a custom of calling juors for two weeks’ service and then releasing them. It also has a custom of having no sessions of court on Saturday afternoon.- In this case the cause was submitted to the jury at 3:25 p. m., on Friday of the second week of the jury’s customary term of service. At 10:20 a. m. Saturday, the jury presented to the court the following note:
“We, the jury, find a disability partial in character but permanent in quality resulting to the plaintiff from the injury. Can we allow less than S6 per week? — Foreman, L. R. Fields.”
Having been instructed on that point, the jury retired, and about an hour later asked an additional instruction on the meaning of the word “substantially” as used in the court’s instructions. That matter being dispatched, the following colloquy of court, counsel and jurors occurred:
“The Court: Gentlemen, do you think you will soon arrive at a verdict or be able to answer the question?
“The Foreman: I believe we can. . . .
“The Court: You have all served your time?
“The Foreman: Yes, sir.
“The Court: Of course you don’t want to come back Monday morning?
“The Foreman : No.
“The Court: Do you think you will have a verdict by half-past one?. . .
“Counsel for Defendent: I don’t understand that your honor is trying to limit? . . .
“The Court: I don’t want them to come back Monday morning. The terms of these jurors have expired, and I do not want them to come back Monday morning if I can help it. If we can receive their verdict by two o’clock I would like to do it to accommodate them.
“Counsel for Defendent : I want you to understand that they can come back Monday or spend the whole afternoon in trying to arrive at a verdict. If Mrs. Sites [official stenographer] cannot be here we can get another reporter.
“The Court: They think they can do so by half-past one, and if they can I will receive their verdict; and if they cannot I will instruct them further about when to come back.
“Counsel for Plaintiff : The only thing your honor is trying to do is to inquire if they in their opinion can reach a verdict by two o’clock. You are not trying to restrict them or limit them in any way.
“The Court: No, sir. If you can arrive at a verdict by one or one-thirty, I will be here to receive your verdict, and not require you to come back Monday morning; but if not, then at one-thirty I will further instruct you about how long to continue your deliberations.
“Counsel for Defendant: Why not excuse them and let them come back Monday morning?
“The Court: They don’t want to lose Monday.
“Counsel for Plaintiff: I think we can get another reporter.
“The Court: Of course, if you gentlemen would just as soon come back Monday morning — are there any jurors who would just as leave come back; are all the jurors willing to come back Monday morning? If so, hold up your hands.
“A Juror: I would like to get off Monday, if I could.
“The Court: Well, then, gentlemen of the jury, I will be here at half-past one to receive your verdict if you are ready to return one; and if you are not, I will give you further instruction about how long you shall deliberate. You will now retire in charge of the bailiff.”
A verdict for plaintiff was returned at 1:30 p. m.
Defendant insists that this episode shows that the jury’s verdict was brought about through coercion; that the fair implication of the trial court’s remarks was that unless the jury came to a prompt agreement and brought in a verdict within a couple of hours they would have to come back on Monday, which, of course, they would not wish to do. Counsel say:
“That the trial court’s remarks affected the deliberations of the jury is obvious from the punctiliousness with which the verdict was returned. One-thirty was the zero hour and at one-thirty they advanced to the court room, their objective obtained. The barrage laid down by the trial court cleared the way of all entanglements.
“This is not a case where the court was impressing upon the jury a duty to agree — here a penalty was declared, an hour-glass placed upon their deliberations, with the penalty sure and certain.”
In support of this contention, counsel cite cases from other jurisdictions holding that anything that savors of constraint or coercion of a jury by the trial judge to bring about a verdict is error With that general doctrine this court has no quarrel, but the fair import of the court’s remarks will hardly bear a coercive significance. Moreover, the jurors knew without being told that until they arrived at a verdict or until the trial court became satisfied that a verdict could not be arrived at within a reasonable time and with due regard to all matters proper to be 'Considered under such circumstances, they could not expect to be discharged from jury service. It needed no hint — no coercive intimation — from the trial court to tell them that such was the exigency confronting them.
Appellant’s contention that the jury’s verdict was induced by coercion cannot be sustained. See Karner v. Railroad Company, 82 Kan. 842, 109 Pac. 676; Sibley v. Cottonmills Co., 85 Kan. 256, 116 Pac. 889; State v. Young, 109 Kan. 526, 200 Pac. 285; State v. Eatherly, 185 Mo. 178, notes, 105 A. S. R. 569, et seq.; 38 Cyc. 1855 et seq.; 16 R. C. L. 298.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff prosecutes this action to recover the amount due under a contract for driving piling, and to recover damages sustained by reason of the defendants refusing to permit the plaintiff to complete the performance of the contract. Judg ment was rendered in favor of the plaintiff for the amount due under the contract and for the damages sustained, totaling $18,315.73. The defendants appeal.
The contract on which the plaintiff seeks to recover read as follows :
‘'Contract for Installation of Piling.
Aug. 18, 1925.
“Torson Const. Co., Kansas City, Mo.
“The undersigned, T. W. Hemingway, at Gulfport, Miss., this day enters into contract with the Torson Construction Co. of Kansas City, Mo., and it is understood and agreed by both parties hereto that the said T. W. Hemingway contracts to drive the piling at the rate of thirty-three cents per lineal foot to grade; also he further agrees to drive all of the sheet piling at the rate of five cents per lineal foot to grade, and all in accordance with the plans and specifications and approval of the engineers of the jobs known as the Blue river and Gooseneck sewers of Kansas City, Mo.
“Said T. W. Hemingway further agrees to drive all piling the maximum depth of twenty feet from top of ground with leader piles.
“It is also hereby agreed by both parties that the Torson Construction Co. will withhold twenty per cent of the cost of the finished contract until final completion and acceptance of said contract.
“It is also understood and agreed that if any of this work done on this contract by T. W. Hemingway is proven either faulty or defective through negligence, the said T. W. Hemingway hereby agrees to pay for all damages thereby caused. Signed: T. W. Hemingway.
“Accepted: Torson Const. Co. — By Chas. M. Torson.”
The court permitted evidence to be introduced to show the meaning of the phrase “to grade” as used in the contract. Forty special questions were answered by the jury.
1. The defendants contend that it was error for the court to admit evidence to show what was understood by the parties in the expression “to grade.” This contention is based on the argument" that the contract was plain and unambiguous, and for that reason evidence to explain its meaning was inadmissible. The plaintiff con- * tends that it was necessary to introduce evidence to show what the expression “to grade” meant and what it was understood to mean to the parties under the contract. The solution of this problem depends on the reading of the contract.
The contract may be read and reread, but its meaning cannot be ascertained except by the aid of evidence outside of it. The expression “to grade” is a technical term used in construction work and does not always mean the same thing. Plans and specifications and the approval of engineers are mentioned in the contract. Plans and specifications were introduced in evidence, but evidence to explain them was introduced so that the court and jury might understand them. Witnesses familiar with the term “to grade” as used in construction work testified concerning its meaning. Some of those witnesses testified that the expression meant one thing, others that it meant another. There was evidence introduced which tended to prove what the parties to the contract understood by the expression when the contract was signed. There was evidence introduced which tended to prove that the engineers mentioned in the contract had approved the work that had been done by the plaintiff; that estimates based thereon had been made by those engineers; and that the defendants had been paid by the city of Kansas City, Mo., for the work done by the plaintiff. The question is not what the evidence tended to prove, but whether the contract was of such a nature as permitted the introduction of evidence to ascertain its meaning. ' The court holds that the contract could not be interpreted without evidence to prove the meaning of the expression “to grade.” It was, therefore, not error to admit evidence to prove that meaning.
2. The defendants say it was the duty of the court to construe the contract; that the plaintiff was erroneously allowed to show a state of facts other than those alleged in his petition; and that the verdict was the result of the admission of incompetent evidence emphasizing immaterial issues. These three propositions are based on the contention that evidence to explain the meaning of the contract was inadmissible. These contentions necessarily fail because evidence was admissible to show the meaning of the contract.
In Royer v. Silo Co., 99 Kan. 309, 161 Pac. 654, this court said:
“Where an ambiguous expression is used in a written contract, it is proper to show by evidence what the parties understood and intended by the expression, and to submit to the jury, with proper instructions, the interpretation of . the expression as used in the contract.” (Syl. ¶ 2. See, also, Seymour v. Armstrong, 62 Kan. 720, 64 Pac. 612; Barrett v. Coal Co., 70 Kan. 649, 654, 79 Pac. 150; Rettiger v. Dannelly, 91 Kan. 61, 63, 136 Pac. 942; Riley v. Foster, 95 Kan. 213, 148 Pac. 246; Frazier v. Railway Co., 97 Kan. 285, 288, 154 Pac. 1022.)
3. Tire defendants say that—
“Plaintiff having, as we have shown, failed to perform his subcontract, and abandoned it, there was no foundation either in law or fact for the damages allowed in the sum of $13,259.13 for piles subsequently driven by Torson Construction Company which Hemingway claimed he should have been allowed to drive under the subcontract. The court ordered a reduction of $3,000 of the judgment, which was remitted.”
There was evidence which tended to prove that the defendants refused to permit the plaintiff to complete the contract; that they contracted with other parties to drive part of the piling provided for in the contract between the plaintiff and the defendants; and that the plaintiff was damaged by reason of the refusal of the defendants to permit the plaintiff to drive all of the piling as provided for in the contract. The question was submitted to the jury on the evidence, and the jury found the facts. Those facts are now conclusive.
The defendants filed a motion to set aside a number of the answers to special questions submitted to the jury. It is argued that it was error to refuse to set aside those answers. This argument is based on the contention that the contract was not ambiguous and that evidence to explain its meaning was not admissible.
No error has been shown; the judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.;
The question to be considered in this action relates to the application of the rule of res adjudícala to the facts set ■ forth in plaintiff’s petition. Edmond C. Fletcher brought an action against Percy L. Kellogg, as executor of the estate of Sherman Kellogg, deceased, to recover $31,103.70 for legal services rendered to Sherman Kellogg in his lifetime and for certain expenses incurred in connection with those services. He filed a petition in the probate court of Johnson county setting up his claims and asking for an allowance, but that court sustained a demurrer to his pleading and disallowed his claim. An appeal was taken to the district court, where a demurrer of defendant to plaintiff’s petition was sustained apparently upon the ground that the matters involved had been adjudicated in a prior action between the same parties. Plaintiff assigns error on that ruling.
The petition is a voluminous pleading of fifty-four pages, containing much argumentative matter with citations of decisions. From the averments therein it appears that William Pitt Kellogg, a resident of the District of Columbia, died testate on August 10, 1918, and in his will Sherman Kellogg, a resident of Kansas, was made a devisee and residuary legatee. Sherman Kellogg, desiring to contest an item of the will which affected the residuary estate and the money and property which would come to him, entered into a contract with the plaintiff, who was practicing law in the courts of the .District of Columbia, to contest the item of the will mentioned upon a contingent basis, which provided that fees should only be paid out of the excess of the money or property recovered over and above that expressly given in the will.
Under the employment plaintiff brought a series of actions without success in the courts of the District of Columbia to annul an • item of the will and to protect the interest of Sherman Kellogg in the estate of his deceased brother. Kellogg became dissatisfied because nothing was being accomplished in the steps taken in his behalf, wrote plaintiff canceling the contract and stating that he did not desire any further steps to be taken by plaintiff with reference to the estate. In the same connection he asked for a statement of the moneys plaintiff had collected out of the estate.-
The plaintiff at first contested the right of Kellogg to discharge him and also his right to discontinue pending actions, but it is alleged in the present action that plaintiff then elected to treat the contract of employment as canceled and rescinded, and has since claimed the right to recover the reasonable value of the services previously rendered as upon quantum meruit, together with, all expenses incurred by plaintiff in connection with his services. ■ He further alleged that he waived all claims for damages which he might have claimed against Kellogg by reason of the breach of the contract of employment.
Later Kellogg brought an action against plaintiff in the District of Columbia for an accounting and for equitable relief as to numerous charges of indebtedness in dispute between the parties. To Kellogg’s petition the plaintiff filed an answer and counterclaim, in which he asked for reasonable compensation as upon a quantum meruit for the work and labor he had done in behalf of the plaintiff in thé several actions brought before and after his discharge. Kellogg joined issue with plaintiff on his counterclaim, denying indebtedness and making specific denials as to certain allegations with respect to services rendered. The issues of the case were referred to an auditor upon whose findings judgment was entered in favor of Kellogg for $1,574.45, and the court also decreed the cancellation of a certain note and enjoined plaintiff from prosecuting an action brought for the collection of that note.
An appeal was taken from that judgment to the court of appeals of the District of Columbia, and it was there affirmed. (Fletcher v. Kellogg, 6 F. 2d, 476.) The plaintiff undertook to obtain a review of the case in the supreme court of the United States, but that court on October 12, 1925, denied plaintiff’s petition for a writ of certiorari, and the judgment has become a finality. It appears that Sherman Kellogg died during the pendency of that appeal, and the executor of the estate was substituted as defendant, and the present action was brought against the executor.
By the record it is clear that the issues involved in the first action were identical with those pleaded in the second. There was identity of parties, identity of the cause of action and of the relief demanded, and'identity of the facts essential to maintain the action, and the judgment in the first action was rendered by a court of unquestioned jurisdiction. Plaintiff contends that the judgment in the first action was void and therefore subject to collateral attack. It is said that the court did not have the power or jurisdiction which it assumed to exercise, and that the judgment was not responsive to the pleadings and proof and is therefore void. As already stated, the plaintiff in the first action asked for the reasonable value of the services rendered on the basis of quantum meruit, as he has done in the present action. Defendant met the claim by a reply which expressly brought that claim in issue. The cause was referred to the auditor of the court with the direction to ascertain and report the nature and extent of the legal services claimed to have been rendered, together with the time and labor devoted to that purpose, and also to find the reasonable value of the services actually rendered for and in behalf of Kellogg in certain proceedings, which were enumerated, upon which plaintiff’s claim was based, and also to find what money plaintiff had expended in that behalf, together with his expenses incurred in the proceedings. Upon the evidence produced, the auditor made findings and reported, and upon these the judg ment was entered. It is argued that the court, in entering judgment and in the review by the appellate court, did not mention the plaintiff’s counterclaim nor state that his claim was based on quantum meruit, but did refer to his contract of employment which had been canceled by Kellogg. The failure to mention in detail the pleadings by which the issues were joined was not important nor was such mention necessary, and the reference to the contract of employment and its cancellation was evidently stated as a part of the history of the case with a view of showing the relation of the parties and the basis of the claim for the services performed as upon the quantum meruit, and to ascertain therefrom if any liability arose for those services. The fact that the court did not refer in terms to the case as one on quantum meruit does not argue that the nature of the cause was not understood or considered. Doubtless there were other rules and terms applied in the consideration of the case, that went unmentioned. The nature of the cause of action was distinctly pleaded and the ground of relief not open to dispute, and there was no occasion for extended comment in that respect. In the opinion of the court of appeals it is stated that the action was brought for an accounting between the parties, and after relating the making of the contract and its cancellation, the court referred to the fact that plaintiff denied the right of Kellogg to cancel unless he was paid $25,000 for the services rendered. The court then stated:
“No settlement was effected by the parties, and the defendant claims that the plaintiff, by thus canceling the contract, prevented him from completely performing it, thereby earning the contingent fee promised by it, and consequently that he is entitled to recover upon a quantum meruit for the services actually performed by him under the contract. This claim is disputed by the plaintiff, and is the chief issue in the case.” (p. 477.)
In view of this statement of the issues, how can it be contended that the issue in the case was misunderstood or not given consideration? The court said that plaintiff claimed compensation fór his services as upon quantum meruit, and not only that, but that it was the chief issue in the case. Plaintiff cites a number of cases holding that if a court acts and determines matters in excess of its jurisdiction or enters a judgment upon a matter outside of the issues, the judgment is without force; but manifestly the present case does not fall within those decisions. The issues were well defined and upon them evidence was received and judgment thereon rendered. The judgment is general in form and must be deemed to be a final adjudication of the issues and merits of the action. (State v. Tillotson, 85 Kan. 577, 117 Pac. 1030.) Everything litigated on a former trial between the parties, or which was incidental and might and should have been litigated, is res adjudicata. In the recent case of Snehoda v. National Bank, 115 Kan. 836, 840, 224 Pac. 914, it was said:
“It is a general rule of law, indeed an elementary one, that in a lawsuit between litigants in their ordinary capacity, so far as relates to a subsequent action on the same claim, not only is everything adjudicated between them which the parties may properly choose to litigate, but also everything incidental thereto which could have been litigated under the facts which gave rise to the cause of. action.” (See other cases there cited.)
From the record it appears that the cause of action in the first suit was the same as in the second, there being identity of parties and also identity in the facts essential to the maintenance of the action. The judgment in the first action must therefore be regarded as a final and conclusive adjudication of the plaintiff’s claim and as constituting a bar to the maintenance of this action. It follows that the judgment must be affirmed. It is so ordered. | [
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The opinion of the court was delivered by
Hutchison, J.:
This is an action by a lot owner in the city of Iola to recover treble damages against the Southwestern Bell Telephone Company for cutting trees on his lot without permission when the same were not interfering in any way with the use of the telephone line. The jury found by general verdict and answers to special questions in favor of the plaintiff for actual damages. The court rendered judgment for treble damages. The telephone company appeals.
As we see it, there are four questions involved: (1) Was the company liable for the acts of Bloom, the man who cut the trees, ' or was he an independent contractor? (2) What is the correct measure of actual damages for trees cut and removed? (3) Are treble damages allowable in such case? (4) If allowable, can the actual damages ascertained by the jury be proportionately augmented by the court as a matter of law to equal treble damages? The evidence in this case shows that the wire chief of the telephone company made a survey of the city of Iola, as was his custom to do there and elsewhere once a year, and indicated on a blue print map the location of trees in the entire city which needed to be trimmed or removed in order to avoid their interference with the telephone lines. He then employed one Bloom to do this necessary trimming and cutting, showing and explaining to him the blue print and directing him to obtain permission of the owner of each lot before trimming or cutting any tree thereon. There were no trees indicated on the blue print as needing trimming or cutting on the lot of the plaintiff, but Bloom made a mistake in thinking there were, also in thinking one Stratton, the owner of the adjoining lot, was the owner of this lot. He called Stratton by phone and asked his permission, which he gave. He then, in the absence of the owner, cut down and removed seven elm trees, found by the jury to be worth $30 each, and one vine on woven-wire fence on rear of lot, worth $7.50, and in doing so broke and injured the fence, valued by the jury at $15. An employee of the telephone company hauled the trees away after they had been placed by Bloom in the alley at the rear of the lot. Bloom was working for the telephone company by the piece on an oral contract. About a year previous the plaintiff had told employees of the company not to cut or trim any trees on his lot, but when they might interfere with the line to let him know and he would trim them himself. The trees when cut were from ten to sixteen feet in height and the wires were about twenty-two feet above the ground. The jury found that Bloom, at the time the trees were cut, was in the employ of the defendant company and that the injury was done in a wanton and grossly negligent manner, but did not award any treble damages. The action was brought under R. S. 21-2435, which is as follows:
“If any person shall cut down, injure or destroy or carry away any tree placed or growing for use, shade or ornament, or any timber, rails or wood standing, being or growing on the land of any other person . . . the party so offending shall pay to the party injured treble the value of the thing so injured, broken, destroyed or carried away, with costs, and shall be deemed guilty of a misdemeanor, and shall be subject to a fine not exceeding five hundred dollars.”
It will be observed this, section contains a criminal provision authorizing conviction of a misdemeanor punishable by fine. With that portion of the section we are not particularly concerned in this case, except to note that treble damages permitted by this act are in the nature of a punishment to prevent trespass and destruction of property.
The defendant claims it should not be held liable for the acts of Bloom and maintains he was an independent contractor. We think the evidence fully justified the jury in finding that he was in the employ of the defendant and that the defendant directed and controlled the time, manner and means of his executing the work. Bloom was furnished a carefully prepared blue print and fully instructed and directed as to the way and manner to execute the .work. His work simply intervened between that of the wire chief, who designated the trees to be cut, and the drayman of the defendant who removed them after they were cut and placed in the alley by Bloom. An independent contractor is defined in the case of Pottorff v. Mining Co., 86 Kan. 774, 122 Pac. 120, as follows:
“An independant contractor generally is one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to control of his employer, except as to the result of his work.” (Syl. ¶ 2.)
In the case of Maughlelle v. Mining Co., 99 Kan. 412, 161 Pac. 907, the owner of a mine and equipment was held not liable for the injury to a workman when it had leased the mine and equipment and the lessee had full charge of the operation and work and was to pay the owner 10 per cent of the net earnings, notwithstanding the owner reserved the right to inspect the mine twice a -year and have access to the books and records of the lessee.
In Railroad Co. v. Madden, 77 Kan. 80, 93 Pac. 586, where the railroad employed another to burn the grass on the right of way for $25 per mile and by his negligence the fire escaped and destroyed some stacks of hay, it was held that the work was performed as a part of the operation of the railroad and that the railroad company could not by delegating the work to an independent contractor avoid the liability placed upon it by statute.
In the case of Nelson v. Cement Co., 84 Kan. 797, 115 Pac. 578, it was-held that the courts should “look to the substance of the contract and all the circumstances in order to determine the actual relation which the owner of the property sustains to the persons employed. The mere fact of nominal employment by an independent contractor will not relieVe the master, of liability where the servant is in fact in his employ.”
“If an employer in fact assumes the relation of master to the servants of one whom he has engaged to produce a given result the duties and the responsibilities which the law imposes upon such a relation attach." (Railway Co. v. Loosley, 76 Kan. 103, syl. ¶ 6, 90 Pac. 990.)
“A packing company employed a transfer company to convey its employees to and from their work and directed and controlled the transportation! Held, that having assumed the responsibility of the transportation of its employees the company owed them the duty to provide vehicles that were reasonably safe and the obligation to see that the drivers should exercise reasonable care in operating them.” (Phillips v. Armour & Co., 108 Kan. 596, syl. ¶ 1, 196 Pac. 245.)
In the light of all the evidence and the pleadings in this case, under the above and other definitions and interpretations of an independent contractor, we are convinced that Bloom, the man who cut the trees, was not an independent contractor such as to relieve the telephone company from liability for his act in doing so.
As to the measure of actual damages or the method of ascertaining the actual damages, the most reasonable and practical way is to find the value of the trees injured rather than the difference in the value of the lot before and after their removal, as outlined and distinquished in Barker v. Railway Co., 94 Kan. 61, 145 Pac. 829. There is, however, a contention in this case as to whether the value of a tree is its replacement value or its independent and natural value. In the case of Railway Co. v. Lycan, 57 Kan. 635, 47 Pac. 526, it is classed with a building or other appurtenance to the land. Replacement value would for numerous reasons be a very unfair test. The element of depreciation would make replacement improper for a building. It would be equally unfair to the owner of a tree while he was waiting for it to acquire the extent of shade, size and beauty of the one removed. In Paola v. Wentz, 79 Kan. 148, 153, 98 Pac. 775, it was said concerning a shade tree removed by the city from the curb line of an abutting owner that “sentiment and utility combine to give it value.”
“Where a particular thing attached to the soil, and, therefore, a part of the reality, but which has a distinct value as such, susceptible of definite measurement, is injured or destroyed, the evidence in an action to recover damages therefor may properly be directed to the value of such specific thing as ‘a part of the land, and, in actions of this kind, is ordinarily the best and most satisfactory evidence.” (Railway Co. v. Lycan, supra, syl. ¶ 3. See, also, Collins v. Morris, 97 Kan. 264, 270, 155 Pac. 51.)
The findings of the jury as to actual damages are fully within the evidence admitted at the trial. The case of Wright v. Brown, 5 Kan. 600, long ago settled the question in Kansas as to the right to recover treble damages under R. S. 21-2435 and without any proof or finding of malice.
“Section 1 of chapter 114, Gen. St. [R. S. 21-2435], gives treble damages for certain trespasses therein mentioned, without regard to the motive of the offender; so that the statute applies as well to cases where there was no malicious motive or vicious intent, as where either of these feelings actuated the trespasser.” (Syl.)
It is urged that in Wagstaff v. Schippel, 27 Kan. 450, this decision is reversed or modified, but a careful reading of the same fails to reveal such intention. Nothing is said in it by Justice Brewer about the earlier decision interpreting this same section. He was" interpreting the criminal feature of the section, and the moral turpitude he mentioned as being in the offense of cutting down trees on another’s land he read into the statute as a wrong “independent of the statute.” (p. 459.)
The trial court in this case recognized an error on its part in charging the jury as to the element of malice and wanton and gross negligence being necessary for recovery, and the jury found there was such. ■ This finding was immaterial and the plaintiff waived the error, as he could do. The court on motion of the plaintiff allowed and added the treble damages. There is abundant authority for such procedure where it is clear, as in this case, there is no duplication.
“The usual practice is for the jury to find single damages and for the court to treble them, and the court must do so. . . . The upper court will treble the damages on appeal if the trial court does not.” (38 Cyc. 1173. See, also, Galvin v. Gualala Mill Co., 98 Cal. 268; Jensen v. Railway Company, 25 S. D. 506; Cox v. Penna. R. R. Co., 240 Pa. St. 27; Guild et al. v. Prentis et al., 83 Vt. 212; Hurlbut v. Union Telephone Co., 168 Wis. 125.)
We reach the conclusion that it is not error for the court to treble the damages when the jury has only found actual damages with full knowledge of the decision in C. K. & W. Rld. Co. v. Watkins, 43 Kan. 50, 22 Pac. 985, wherein this court expressed a preference by saying “they ought to be assessed by the jury.” We still adhere to that as the proper way, but say it is not error for the court to assess them when the jury only assess actual damages.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
The defendant was convicted of the felony defined by R. S. 21-937, the pertinent part of which declares—
“Any person, who shall knowingly . . . persuade, induce, entice, or procure, or assist in persuading, inducing, enticing or procuring any female person for the purpose of prostitution ... or concubinage . . . to go from one place to another within this state for the purpose of prostitution . . . or concubinage shall be deemed guilty of a felony.”
The information with preliminary recitals alleged:
“That heretofore and to wit on or about the 9th day of May, a.d. 1927, at and within the county of Montgomery and' state of Kansas, the above-named defendant, Charles Clark, then and there being, did then and there willfully, wrongfully, unlawfully and feloniously persuade, induce, entice and procure one Lillian Smalley, a female person, to go from one place to another within the state of Kansas for the purpose of prostitution and concubinage; all contrary to . . . the form of the statute,” etc.
Defendant filed a motion to quash on four grounds, two of which read:
“4. That said information attempts to charge two offenses in the same count, and is bad for duplicity.
“2. That offenses attempted to be charged are not stated with such a degree of certainty as to the place where said offenses occurred that the court could pronounce judgment upon conviction according to the rights of the ease.”
This motion was overruled, and the cause was called for trial. At the conclusion of plaintiff’s opening statement counsel for defendant made the following oral motion:
“Comes now the defendant, and moves-the court to require the state to elect on which offense they are now seeking to go to trial, as to whether or hot they seek to go to trial on inducing, enticing and persuading one Lillian Smalley to go from one place to another in Montgomery county, Kansas, for the purpose of prostitution, or whether they seek to go to trial on inducing, enticing and persuading Lillian Smalley to go from one place to another in the county of Montgomery in the state of Kansas on the charge of concubinage.”
This motion was overruled, and the state presented its evidence, which tended to show that the woman in the case, Lillian Smalley, met defendant in Caney and he gave her money to buy a railway ticket to Independence. Defendant went with her to the latter place. They rented a room at 418 South Ninth street and lived there in adulterous association for a week and a half. Their landlord ordered them to leave, and she went to Tulsa, Okla., for two days, and defendant sent her money for a railway ticket to return to Independence. She came, and defendant met her at the depot and they secured rooms at’ 415 North Fourth street and resided there in adulterous relationship for two or three days. Then they moved to 308 North Fourth street and lived there in adulterous intercourse. At this stage of the state’s evidence, this incident is recorded:
[Counsel for Defendant]: “We object; I don’t know what offense the state is relying on. I think they ought to take up one of these; they have a half a dozen in here now they are attempting to prove. I think they ought to stand on some one of them.
“The Court: I don’t think they have two separate offenses; it is willfully, wrongfully, unlawfully persuade, entice and induce Lillian Smalley, a female person, to go from one place to another in the state of Kansas for prostitution or concubinage.
[Counsel for Defendant] : “I presume they are relying on some one offense. *
“The Court: Maybe they don’t know until they get through; if there is none proven here your motion to dismiss should be made.”
The foregoing is only a partial summary of the evidence, but will serve to develop the legal questions with which we are presently concerned.
The jury returned a verdict as follows:
“We, the jury in the above-entitled cause,' on our oath find the defendant, Charles Clark, guilty of persuading, inducing, enticing or procuring or assisting in persuading, inducing, enticing, or procuring a female person for the purpose of prostitution or concubinage, to go from one place to another within this county and state for the purpose of prostitution or concubinage, all in the manner and form charged by the information.”
Defendant’s motions in arrest of judgment and for a new trial were overruled, and he was sentenced to penal servitude for a term of from one to five years. He appeals, first urging that the information charged two offenses in one count, and in support of this point he cites State v. Goodwin, 33 Kan. 538, 6 Pac. 899, where it was held:
“Where an information charges that a defendant took away a female under the age of eighteen years from her father, without his consent, for the purpose of prostitution and concubinage, there is a joinder of two distinct offenses in one count, and therefore the information is bad, for duplicity.” (Syl. ¶ 3. See, also, State v. Schwitzer, 27 Kan. 499; State v. Anderson, 34 Kan. 116; State v. Longton, 35 Kan. 375.)
The prosecution in that case was under R. S. 21-428, which reads:
“Every person who shall take away any female, under the age of eighteen years, from her father, mother, guardian, or other person having legal charge of her person, without their consent, either for the purpose of prostitution or concubinage, shall upon conviction thereof be punished by confinement and hard labor for a term not exceeding five years.”
We would not say there is a fundamental distinction between that section of the crimes act and the one under which this prosecution was based. Rather would we frankly confess that the lapse of forty odd years since the Goodwin case was decided has changed the attitude of courts towards the administration of criminal law. (State v. Seidel, 113 Kan. 390, 392, 214 Pac. 565.) Much that was said in the Goodwin case is still good law. We still recognize that prostitution and concubinage are quite different criminal acts, and cases may and sometimes do arise where court and counsel must preserve the proper distinction between them. Such a situation would develop if part of the evidence tended to show the accused had taken away the female for the purpose of concubinage and another part of the evidence tended to show that the taking was for the grosser purpose of prostitution. In any such case, doubtless much that is said in State v. Goodwin will continue to be both instructive and important. . But in the present case there was no hint in the evidence or otherwise that the defendant had any purpose to devote the woman to prostitution when he induced her to go with him from one place to another within this state. The defendant was never misled by'the technically duplicitous words “prostitution and concubinage” contained in the information. He simply planted his objection in the record for whatever it might be worth, and in this appeal it is worth nothing, for the good reason that he was not prejudiced thereby. The criminal code, section 293, R. S. 62-1718, provides:
“On an appeal, the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect substantial rights of the parties.”
In State v. Fleeman, 102 Kan. 670, 171 Pac. 618, where a conviction was had under another section of the statute, there was a motion to quash the information which had alleged that defendant feloniously kept “a place where prostitution, fornication and concubinage was practiced, permitted and allowed.” This court said:
“The defendant" says he was charged in a single count with numerous felonies —keeping a place where prostitution was practiced, keeping a place where fornication was practiced, keeping a place where concubinage was practiced, and several others. He further says he was bewildered by uncertainty whether he should prepare to meet evidence that he kept the place, or only assisted in keeping it, and evidence that he owned the place, or merely leased it. The statute creates a single offense — keeping a place for unlawful sexual commerce on premises for -which the keeper is responsible. The keeping may be by one who keeps, or maintains, or who assists in keeping, or maintaining. The place may be a house, or any other place. The commerce may be prostitution, fornication, or concubinage, and the place may be one distinctively for such commerce, or one where such commerce is practiced, or is permitted, or is allowed. Responsibility for the premises may be by virtue of ownership, or lease, or control. The substance of the offense is keeping a vicious place, and only one offense is committed if all the immoral practices named be indulged there.” (p. 676.)
And the same reasoning should be applied to the section of the statute with which we are now concerned. The substance of the offense was that of getting the woman to go from one place to another within this state for any such illicit sexual commerce as that denounced by the statute.
When a case shall arise where the distinction between prostitution and concubinage is material, doubtless the courts will properly protect the rights of the. accused as was done in State v. William, 106 Kan. 778, 189 Pac. 906, where defendant was prosecuted in one count for taking away a female child for the purpose of prostitution, and on another count for taking her away for the purpose of concubinage. Defendant was convicted on count 1 and acquitted on count 2. This court said:
“There was some evidence against William which might have justified a verdict and judgment on the second count, but the jury acquitted him on the latter charge. . . .
“This court i§ constrained to hold that the foregoing evidence (all questions of its competency aside) does not prove the charge that the defendant took this girl away from her parents' for the purpose of prostitution. . .
“Since the jury acquitted the defendant upon the only charge which the evidence tended to establish, and the evidence entirely fails to prove the charge upon which defendant was convicted, the judgment cannot stand.” (pp. 779, 781.)
In State v. Tucker, 72 Kan. 481, 84 Pac. 126, it was held that the principal element in the crime of taking away a female child, without the consent of her parents, for the purpose of prostitution or concubinage was the unlawful purpose involved in the taking, and that the offense would be complete although the child was not actually debauched in either fashion as a result of such unlawful taking. (See, also, State v. Bussey, 58 Kan. 679, 50 Pac. 861.)
The court holds that the trial court’s ruling on the motion to quash the information was not prejudicially erroneous. (State v. Fleeman, 102 Kan. 670, 171 Pac. 618, syl. ¶¶ 4, 5.) And as at no stage of the trial nor in the introduction of evidence for either party did any practical question arise whereby defendant’s guilt or innocence depended upon any essential difference between prostitution and concubinage, the trial court’s ruling on defendant’s motion requiring the state to elect was nonprejudicial.
The same conclusion must be reached touching defendant’s point that the defendant’s several acts in getting the woman to go from one abode to another in Independence, if proven, would constitute separate offenses. In a somewhat analogous case, State v. Robinson, 124 Kan. 245, 259 Pac. 691, the defendant was convicted on one count of obtaining money by false pretenses. He did obtain five separate sums of money pursuant to a continuous but progressive scheme of false pretenses. It was urged that error inhered in dealing with defendant’s several acquisitions of ill-gotten money as one offense. This court said:
“It seems to be defendant’s contention that he should have been prosecuted on separate and independent counts for each particular sum he and his co-defendants obtained from Hale, viz.: Count one, for the first sum of money, $3,500, they got from Hale; count two, for the next sum, $5,000, so taken; count three, for the next sum, $7,500; count four, for the next $6,000; and count five, for the final sum, $6,500. It is possible a prosecution and conviction of defendant on five separate counts with separate and consecutive sentences thereon might have been upheld. But the state’s theory of the case was a rational one, and one well supported by the evidence — that Robinson and his associates abstracted all these sums of money from Hale pursuant to a single definite plan, and that the repeated receipts of these sums of money were but incidents of one continuing offense. . . .
“The information was in fact a bill of particulars, but certainly defendant had no just complaint thereof. . . . The motion to quash was properly overruled.” (pp. 248, 249.)
Another objection to the judgment relates to the competency of the woman’s testimony. She was the state’s principal prosecuting witness. Defendant asserts that the sheriff and county attorney kept her in jail and would not permit him to see and talk to her concerning her testimony. That incident did not render her testimony incompetent. If defendant had not waived a preliminary examination he would have discovered what would be the nature of the woman’s testimony against him.
' Defendant’s final point is — and his testimony at the trial was to this effect — that he and the woman were merely living together as man-and wife without being married to each other, and that he was therefore guilty of adultery, but he was not charged with that offense. That was a good point to urge on the trial court and jury, but it avails naught on this appellate review. Doubtless it is possible for a man to live in adulterous association with a woman, being liable only for the minor penalties of the crimes act for so doing, and without violating the provisions and incurring the drastic penalties of the later statute under which this prosecution was brought, but to do so he must watch his step more carefully than this defendant did.
There is no prejudicial error in the record and the judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action to ascertain the lawful beneficiary of an insurance policy. *
On August 6, 1925, one Stanley R. Smith, a minor 17 years of age, applied for and received a life insurance policy for $1,000 issued by the plaintiff. The boy’s mother, Sadie Catherine Smith, was named as beneficiary. The policy was taken out with her consent and approval, and she and her son had an oral agreement that in consideration of her paying the premium he would not change the beneficiary during her lifetime. In consonance with this agreement she gave the lad $50 with which to pay the premium, and the policy was placed in her keeping. The policy, however, in express terms did provide that the insured had the right to change the beneficiary.
Some months later the insured took the policy from his mother’s custody without her knowledge, and notified the insurance company that he desired to change the beneficiary from his mother to Ágnes T. Wilkinson, designated as fiancee of the insured. The company complied and Miss Wilkinson’s name was inserted accordingly.
A few weeks later the insured committed suicide. Not until then did the mother know of the change in the designated beneficiary. Miss Wilkinson gave the insurance company formal notice and proof of death and demanded the insurance. The mother also claimed the insurance on the ground that the insured was a minor; that the insurance contract was made with her advice and approval; that the policy was taken from her custody and the change of beneficiary made without her knowledge or consent, and that the change was void.
Confronted with this situation, the insurance company took the initiative to have these conflicting demands adjudicated. It brought this action, impleaded both claimants, set up the facts so far as it was concerned therewith, paid the $1,000 into court and retired from the lawsuit, leaving the two claimants to fight it out.
Issues were joined by appropriate pleadings. Miss Wilkinson was a minor, and by her guardian ad litem she first demurred to and then traversed all the allegations of the mother’s answer and cross petition. Ere this lawsuit was tried below Miss Wilkinson married one Sandion, thereby attaining her majority.
The evidence for the mother tended to establish the facts as set out above. The. testimony for the named beneficiary disclosed nothing of present consequence.
The trial court found “that all the allegations in the answer and cross petition ... of Sadie Catherine Smith are true,” and gave judgment accordingly.
The defeated claimant appeals.
To justify the judgment appellee relies on two propositions, the first of which was the oral contract between herself and her son whereby in consideration of her paying the premiums she was entitled to keep the policy in her custody, and the beneficiary was not to be changed in her lifetime without her consent. Appellant contends that the plaintiff’s testimony pertaining to this contract was incompetent, and the contract itself not binding. So far as concerns the competency of the evidence, it does not violate the code rule invoked against it. (R. S. 60-2804.) The insurance company had paid the money into court. It had waived every defense of law, fact and of procedure of which it might have availed itself. Appellant in this lawsuit does not occupy the position of “the adverse party” as “executor, administrator, heir at law, next of kin, surviving partner or assignee” of the insured; and the established policy of this court is to construe strictly statutory and other rules of evidence which limit judicial inquiry to- ascertain the truth. (Armstrong v. Street Railway Co., 93 Kan. 493, 503, 144 Pac. 847; Cadwalader v. Pyle, 95 Kan. 337, 148 Pac. 655; Collins v. Hayden, 104 Kan. 351, 179 Pac. 308; Flack v. Brewster, 107 Kan. 63, 190 Pac. 616; Hall v. Wilson, 121 Kan. 606, 249 Pac. 668.) The court holds that evidence to prove the oral contract of mother and son was competent; the contract itself was not against public policy; and as the insurance company itself is not complaining about it, there is no reason in equity or good conscience why it should not be enforced.
This leaves it unnecessary to consider the other proposition relied upon by appellee to uphold the judgment — the mother’s right as heir of her minor son to disaffirm the change in the contract substituting appellant’s name for appellee’s as beneficiary. But see Insurance Co. v. Brubaker, 78 Kan. 146, 96 Pac. 62, syl. ¶ 3; 31 C. J. 1066; 14 R. C. L. 234.
Other matters discussed in appellant’s brief have been carefully noted. They suggest nothing which would permit the judgment to be disturbed, and it is therefore affirmed. | [
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The opinion of the court was delivered by
Marshall, J.;
The plaintiff sued to quiet title to a strip of land along the west side of lots 7 and 8 in Duncan’s addition to Arkansas City. The defendants answered and claimed that they owned the property.' The action was tried on an agreed statement of facts. Judgment was rendered in favor of the plaintiff, and the defendants appeal.
On October 12, 1908, and for some time prior thereto, the plaintiff was the owner of and in the possession of lots 7 and 8 of Duncan’s addition to Arkansas City. On that day he with his wife deeded a strip of land on the west side of the property to the Southwestern Interurban Railway Company. The deed to that company contained the following:
“Provided, that said tract of land is granted to the party of the second part by the parties of the first part for the purpose of a right of way for its line of interurban railway; and that in the event said party of the second part shall fail to construct a line of interurban railway upon and along said strip of land, and shall fail to operate cars over the same, or if. said line of railway shall be abandoned by said company, then and in that event this deed shall become void and inoperative, and the title to the land herein conveyed revert to the grantors herein, their heirs, successors or assigns.”
On May 8, 1911, the plaintiff with his wife executed a-general warranty deed conveying to the defendant Samuel Baird “lots seven (7) and eight (8) in Duncan’s addition to- Arkansas City, Kan., according to the recorded plat thereof.” That deed, immediately after the description of the lots, contained the following:
“Except a strip of land along the west side of said lots and extending their entire length, which tract is occupied by the Southwestern Interurban Railway Company track heretofore conveyed to said Interurban Ry. Company.”
The only, question presented concerns the interpretation of the deeds. The deed to Samuel Baird did not convey all of lots 7 and 8. It conveyed all of lots 7 and 8 except what was occupied by the Southwestern Interurban Railway Company track. The deed from Collins and wife to the Interurban Railway Company provided that if the railway should be abandoned, the deed should be void and the title conveyed should revert to George T. Collins and his wife, and to their heirs, successors or assigns. No heirs are shown. The deed to Baird does not make the latter a successor of Collins in any interest to the land in controversy, and the deed to Baird did not convey the land to him. Collins retained all the title to the strip in controversy except what had been conveyed to the railway company. When that company abandoned the railway the full title to the land reverted to Collins. The language in each of the deeds is plain, unambiguous, and does not need any aid to its interpretation.
The judgment is affirmed. | [
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The opinion of the court was delivered by
HKjtchison, J.;
This is a consolidation of two actions brought by the two plaintiffs separately against the same defendant, a newspaper publishing company, to recover damages for the publication of an article which the plaintiffs claim was false and libelous, and published by the defendant company maliciously and without probable cause. Issues were joined, trial had to a jury, and verdict and judgment rendered in favor of defendant, from which judgment the plaintiffs appeal.
Three grounds of error are especially urged by the appellants: First, the giving and refusing of instructions; second, the interruption of counsel by the court in the argument and preventing their arguing certain features of the case; and, third, the admission and rejection of evidence.
Counsel for appellants very properly designate the vital issue in the case as being whether the affidavit of H. E. Randall was privileged and the publication of it qualifiedly privileged. The determination of this question will practically settle the questions of error complained of under the three distinct headings above stated.
The preliminary question raised by appellee as to the sufficiency of the abstract and the right to supplement it at a late date has been informally disposed of in the interest of a full, complete and fair presentation of the whole record and all the questions involved, rather than the exclusion of anything deemed important by the enforcement of a severe rule.
I The affidavit of Randall, which was the basis of the published article in the newspaper, was made before a justice of the peace in Reno county and filed with such officer in connection with a search and seizure proceeding in his court. The necessary preliminary steps had been taken to procure a warrant to search certain places and seize certain personal property said to have been stolen and to bring the property before the justice of the peace. The sheriff had executed the warrant and had made his return, showing he had found the property, stating where it was found. Randall’s name was mentioned in the return, which led to his being interviewed concerning the possession of the property. Aftqr such interview he made an affidavit, went with the attorney who assisted him in preparing it to the office of the justice, swore to it there, and left it with the justice, who filed it and placed it among the papers in the search and seizure case. The affidavit contains the names of both plaintiffs, describes the missing property, states an arrangement between himself (Randall) and the plaintiffs, made with a party named as their agent, admits the possession of the property in question, and states it was removed by him under an agreement with the plaintiffs herein.
The reporter on the newspaper found the affidavit with the justice, made notes from it, and investigated the subject to which it related by interviews with the sheriff making the return, and the attorney, who, with permission of the county attorney, had instituted the search and seizure case. Through these interviews the reporter learned of a conversion case being prosecuted by these plaintiffs in the district court of Reno county involving this same property, and from this affidavit and the additional information obtained from the sheriff and attorney the reporter says he wrote the newspaper article that was published, except that he did not write the headlines thereof.
The newspaper article does not follow the language of the affidavit nor pretend to give the details of it. It entirely omits any reference to the first long paragraph of the affidavit, which concerns the relation between Randall and one Haynes, who is in no way connected with either of the cases mentioned and referred to in the newspaper article. The article commences with a brief history of the events leading up to the bringing of the conversion case by the plaintiffs, the sudden disappearance of the property involved therein, the procuring of the search and seizure warrant and the finding of the property, and then mentions things contained in the affidavit about the' taking of the property and the arrangement with the plaintiffs that it should be taken. The article concludes with a statement accredited to the attorney to the effect that Randall agreed that the conversion action would be withdrawn “in order to prevent criminal action being brought against them” (undoubtedly referring to the plaintiffs herein). The complication is referred to once in the heading and twice in the body of the article as a conspiracy. The article speaks of the taking of the property with the knowledge of the plaintiffs, whereas the affidavit says it was done through an arrangement with them. There is a subhead in the article, “Knew of removal.” The affidavit at one place introduces some qf the statements with the remark, “as I am informed and believe.”
'Was such an affidavit privileged and such an article in a newspaper qualifiedly privileged? ■ It is contended, in the first place, that the Randall affidavit was no part of a judicial proceeding and therefore not entitled to be privileged in any way. It told who took the property, where it was, and by what right or authority it was taken. The finding of the property by the sheriff on a search and seizure warrant is not the end of the case. The justice of the peace shall order the property delivered to the owner after receiving satisfactory proof of the ownership, and he shall take the examination of the persons accused and dispose of the property accordingly. (R. S. 62-1807 to 62-1811.) Whether the justice used and acted upon this proof is not shown, but it was certainly of the kind needed to enable him to dispose of the property and close the case, and he is presumed to have done his duty. Again, this affidavit was evidence in the case given before and accepted by the justice and must be treated like so much testimony given in the case. The neglect of the court to make a formal order, if there was such neglect, would not change the character of the evidence as privileged in a regular judicial proceeding. The section referred to on this subject in 17 R. C. L. 347 shows there is a conflict in the decisions on ex parte proceedings and cases just started. This proceeding, however, was carried clear through to the end. The case of Nixon v. Dispatch Printing Co., 101 Minn. 309, was an ex parte case — a petition for divorce left or filed with the clerk, never in any manner came before the court or judge. The case of Byers v. Meridian Ptg. Co., 84 Ohio St. 408, was where a complaint had been filed against a person for perjury, but no action had been taken by the justice of the peace and no warrant issued. The case of Sweet v. Post Publishing Co., 215 Mass. 450, was where there was a mistaken identity of person, and the comment applied to the wrong person. Tire case of Wills v. Jones, 13 App. D. C. 482, is the worst kind of an ex parte case. There the publisher filed a bill in equity himself and then immediately published the contents thereof and comments thereon.
1 We have no hesitancy in calling the search and seizure case before the justice a judicial proceeding and the affidavit of Randall a proper paper to be filed therein, and such as is expected and. required by statute to be filed in order to furnish the justice with the “satisfactory proof” referred to in the statute, and therefore a privileged document, except as to Randall, the maker thereof.
Next, Was the published article, even though based in part on a privileged paper used in a judicial proceeding, qualifiedly privileged? The following quotations announce the recognized rules for the determination of this question:
“Judicial proceedings do not protect statements made therein, except such statements as may fairly or reasonably be made in such proceedings. But still we think that the interests of justice require that courts should construe all things said in judicial proceedings liberally, so as to protect the persons making the statements from unreasonable prosecutions for slander or libel.” (Bailey v. Dodge, 28 Kan. 72, 82.)
“The report must present fully and fairly an impartial account of the proceedings. It must also be accurate, at least in regard to all material matters. The publication may consist of an abridged or condensed statement. It is not necessary that the report be verbatim. A substantially accurate report may be privileged although of only a part of the proceedings. But it must contain the substance of the thing it undertakes to present, or the whole purport of any special, separable part. It must not give undue prominence to inculpatory facts, and depress or minify such facts as will explain or qualify the former, and must not omit material points in favor of the complaining party, or introduce extraneous matter of a nature injurious to him. In short, the report must be characterized by fair-mindedness, honesty, and accuracy.” (36 C. J. 1274.)
Was the article characterized, by fair-mindedness, honesty and accuracy? Was it within the limits of the rales above stated, which are necessary to make it qualifiedly privileged? We have with some care endeavored to set out the principal features pointed out by appellants as deviations from the affidavit or violations of the rule of fairness, honesty and accuracy. Certainly the omission from the published article of entirely extraneous matter contained in the affidavit is not in any way unfair to the plaintiffs. No particular complaint is made by appellants except as to its being a deviation from the affidavit of the brief history of the conversion and search and seizure cases, none of which is found in the affidavit, and no good reason has been assigned why such history was harmful or injurious. The concluding sentence of the article is accredited to the attorney as being stated by Randall in'connection with the affidavit. It states that the conversion action will be dismissed to prevent criminal action against them. We must not overlook the fact that one of the actions mentioned in the affidavit and the one in which it was filed was a criminal action. The whole proceeding is based upon the belief that the property in question had been stolen, and the affidavit shows who took the property and that it was by arrangement with plaintiffs. If the statements in the affidavit were true, then the proximity is too close to permit of differentiation. Again, the word conspiracy is used in the article and not in the affidavit; and the statement that plaintiffs had knowledge of the removal — and the subhead to the same effect — was used, while the affidavit refers to the making of an arrangement, and once denominates it as an agreement. These words and statements, while not literally accurate or exact quotations, are reasonable inferences, and are not in any way exaggerations or overstatements, but different language only, with substantially the same import and plainly within the reasonable meaning of the language of the affidavit.
“In determining whether a newspaper article is libelous per se, headlines and the body of the article must both be regarded. Each statement must be considered in connection with the others, and the whole must be fairly and reasonably construed.” (Jerald v. Houston, 124 Kan. 657, syl. ¶ 4, 261 Pac. 851.)
We think the published article was fully within the limits prescribed for the publishing of the privileged affidavit and therefore was qualifiedly privileged.
“Pertinent and material allegations in an answer to a petition filed in an action pending in a district court are absolutely privileged.; and a demurrer to a petition in an action for libel based on such allegations is properly sustained, although it is alleged in the petition that the allegations of the answer were willfully and maliciously false.” (Bugg v. Insurance Co., 114 Kan. 549, syl., 220 Pac. 258. See, also, Coleman v. MacLennan, 78 Kan. 711, 98 Pac. 281.)
This conclusion substantially settles the three specific errors assigned, except as to the presumption and inference of malice from the injurious character of the publication, which entered into the contention on each of the three particular assignments of error. The learned counsel for appellants commendably maintained a thoroughly consistent course throughout the trial and the review in this cause, closely adhering all the time to the theory that the publication was not qualifiedly privileged, and concluded, therefore, that the jury could properly presume and infer malice. But these are questions of law to be decided by the court, and if the published article is qualifiedly privileged, then there can be no implied or inferred malice. This fully accounts for the differences between counsel for appellants and the trial court as to instructions, limitation of argument to the jury, and the introduction of evidence. They were simply following two different theories. We think the trial court was right; that it was not a matter to go to the jury; that the published article was qualifiedly privileged; that malice could not be inferred from it.
“Whether, upon a particular state of facts, a communication is privileged is a question of law to be determined by the court.” (Richardson v. Gunby, 88 Kan. 47, 51, 127 Pac. 533.)
“Malice is not presumed from the false and injurious character of the publication, although it may be inferred from the language used, if it is of a disproportionate, exaggerated and sensational character. Otherwise it must be made to appear by extrinsic evidence.” (Carver v. Greason, 104 Kan. 96, syl. ¶ 2, 177 Pac. 439. See, also, Kirkpatrick v. Eagle Lodge, 26 Kan. 384.)
The instructions given were upon this theory of the case and those refused were upon a theory entirely at variance with it. The errors complained of as to the admission and rejection of testimony can be accounted for and explained the same way. We find no error in the giving or refusing of instructions and no prejudicial error in the admission or rejection of testimony.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The defendant appeals from a conviction of robbery 'in the first degree.
1. Seven different complaints are made concerning the admission and exclusion of evidence. All have been examined. No good purpose will be served by discussing them at length. There is no merit in any of them.
2. The defendant says that “the court erred in refusal of instructions asked for by the appellant.” No requested instruction is set out in the abstract. For that reason, the court cannot say there was error in refusing to give requested instructions.
3. It is contended that “the court erred in giving instructions on material matters of law.” Part of the instructions read as follows:
“The material allegations of the information charging robbery in the first-degree, are in substance as follows:
“(1) That in Wyandotte county, Kansas, on or about the 17th day of December, 1925, the defendant did make an assault upon one W. H. Nelson;
“(2) That such assault was made with the intent on the part of the defendant to rob said W. H. Nelson;
“(3) That the defendant, in the presence and against the will of said W. H. Nelson, by putting him in fear of some immediate injury to his person, did steal, take and carry away the property mentioned in the information, or any part thereof, being 'the property of said W. H. Nelson and not the property of the defendant.
“Therefore, unless you find from the evidence beyond a reasonable doubt that each and all of these material allegations have been proven, you cannot find the defendant guilty of robbery. However, if you do find from the evidence that.these material allegations have been proven beyond a reasonable doubt, it will be your duty to find the defendant guilty of robbery in the first degree, as charged in the information.
“An assault is an attempt, with force or violence, to do bodily injury to another within reach, and may consist of any act tending to such injury, accompanied by circumstances denoting an intent coupled with the present ability to commit such injury.”
The defendant says:
“It is not contended that it is necessary that a weapon of any kind be used to commit robbery in the first degree; but when an allegation is made that a revolving pistol, not a German Luger automatic gun like Foot-and-a-Half Butler carried at the time of appellant’s arrest, was used by appellant to commit the crime against Mr. Nelson, it is contended that the charge should be proven as laid, and the trial judge committed prejudicial error when he instructed the jury in No. 1 that the material allegation was an assault only.”
The abstract does not set out the information filed against the defendant. He says that on “January 18, 1926, stereotyped information charging Robert E. Murphy, Ered McClure (appellant) and John Doe with robbery in the first degree against W. H. Nelson, in which he lost money and other personal property valued at $1,625, was filed by the county attorney of Wyandotte county, Kansas.”
The defendant, when he says “the trial judge committed prejudicial error when he instructed the jury in No. 1 that the material allegation was an assault only,” misreads the instruction.
4. Complaint is made of the following instructions given by the court:
“The defendant relies upon the defense known in law as an alibi, which is in substance that he was not present at the scene of the alleged crime at the time it was committed, and as to this defense you are instructed that the defendant is not required to prove by the preponderance of the evidence or beyond a reasonable doubt that he was not present at said time and place; but before he can be convicted it must be proven by the evidence to your satisfaction beyond a reasonable doubt that he was present at said time and place and actually committed the offense charged in' the information.
“Evidence has been introduced by the defendant relating to his character and reputation for good citizenship; and as to this you are instructed that you should consider such testimony, together with all other testimony in the case, in determining the guilt or innocence of the defendant; but even if you find from the evidence that prior to the time of the alleged robbery the defendant’s character or reputation for good citizenship was good, this would not constitute a defense if he committed the acts constituting the crime charged in the information.”
These instructions should be read in connection with the one which immediately preceded them. That instruction read as follows:
“In this case, as in all criminal cases, it is necessary that each and every one of the twelve jurors be satisfied by the evidence beyond a reasonable doubt of the guilt of the defendant before a verdict of guilty can be returned against him; and if each and all of the jurors entertain a reasonable doubt as to the guilt of the defendant, you will return a verdict of not guilty.”
When these instructions are read together it will be seen that they sufficiently stated to the jury that if, after having considered the evidence concerning the absence of the defendant from the place of the crime at the time of its commission and the evidence of his good character, there was no reasonable doubt of the guilt of the defendant, he might be convicted. He was given the full benefit of his evidence on these two subjects.
Other matters are presented as follows:
“That the verdict', judgment and sentence were procured by corruption of representatives of the state of Kansas.
“That the evidence . . . did not prove that he was guilty beyond a reasonable doubt.
“The court erred in refusing to grant appellant a new trial. . .
“The court erred in passing an unlawful sentence upon appellant.”
There is no valid basis for either of thesé contentions.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one to foreclose a real-estate mortgage covering several tracts of land. The petition alleged the mortgage was a first lien on certain tracts and a second lien on others. All defendants except John Judd and his wife joined in an answer praying that plaintiff’s mortgage be canceled. Judd claimed a first mortgage lien on one tract. Judd was awarded a first lien and plaintiff was awarded a second lien on the tract covered by 'the Judd mortgage; plaintiff prevailed as against the other defendants, and the defendants other than Judd appeal.
The Oswego State Bank failed, and on April 18, 1924, John E. Wagner was placed in charge. Defendant Charles S. Perkins was indebted to the bank on unsecured notes amounting to $10,739. Negotiations for settlement of the indebtedness followed. Perkins was owner of several tracts of land encumbered by mortgage, and was willing to give the bank a mortgage on all of them except his homestead. Wagner desired a mortgage on all of them, including the homestead. Wagner and Perkins inspected the tracts, and Perkins placed a valuation on them which was sufficient to pay his indebtedness and leave his homestead clear; provided he were given time. Wagner declined to take a mortgage unless it included the homestead, and placed the notes in the hands of an attorney, with direction to sue unless Perkins gave a mortgage such as Wagner desired. Perkins then consented to give a mortgage on all his land, provided he were given two years’ time in which to pay and the rate of interest were reduced to six per cent. Wagner assented to those terms. The mortgage was prepared and executed, was dated August 12, 1924, was filed for record the next day, and contained the following provision:
"Second. This mortgage is also executed upon the express condition that the above mortgagor may and does have the privilege to sell any tracts of land described herein and apply the amount received therefor first to the payment of the taxes, principal and interest upon any prior lien on said tract, and the balance to be applied on this mortgage, and this mortgage is given upon condition that said second party will release said tract when sold from the provisions of this mortgage.”
Subsequently Perkins began to scheme to defeat the mortgage, and finally chose to make use of the quoted provision to accomplish his purpose. He made warranty deeds as follows:
September 9, 1926, to John Judd, a first mortgagee, for a consideration of $1,476.56;
September 10, 1926, to H. L. Schneider, a first mortgagee, for a consideration of $4,900;
September 12, 1926, to B. P. Alger, Perkins’ aunt, for a consideration of $10, subject to a mortgage for $6,500, with accrued interest and taxes;
September 20, 1926, to William F. Perkins, Perkins’ son, for a consideration of $8.02, subject to a'mortgage of $3,200, with accrued interest and taxes;
September 27, 1926, to Clinton A. Perkins, Perkins’ son, for $11.77, subject to two mortgages amounting to $3,600, with accrued interest and taxes;
September 28, 1926, to William F. Perkins, Perkins’ son, for a consideration of $11.55, subject to mortgage for $1,500, with accrued interest and taxes.
The deeds were filed for record by Perkins on September 30, 1926, and the recording fees were paid by Perkins. In connection with these deeds, Perkins took from the grantees option contracts to repurchase all the tracts except one of 200 acres of pasture land deeded to William F. Perkins. The option contract which Schneider gave Perkins provided for a warranty deed to Perkins on payment of $4,900, with semiannual interest at seven per cent, and taxes, until August 1,1930, and in the meantime Perkins was to have possession of the land and the profits derived from it. The other option contracts were of like tenor, except as to dates of expiration and terms of repurchase.
The bank’s mortgage had been assigned to the Oswego Finance Company, and on the day the deeds were filed for record Perkins wrote the finance company as follows:
“I have sold the several tracts of land upon which your company holds a mortgage assigned from the Oswego State Bank, and herewith hand you check amounting to $31.34, being the balance above the first and second mortgages, with accrued interest and taxes on the several tracts for which they are sold, and herewith request and demand the release according to the second clause of the said bank mortgage providing for said release, together with all papers in connection with same. . . .”
The finance company' instituted an investigation, discovered what had occurred, and on November 18, 1926, brought suit to foreclose its mortgage. The issues relating to the Judd mortgage will be left at one side for the present, and the codefendants of Judd and wife will be referred to as the defendants.
The defendants joined in an answer, and later joined in an amended answer. The material portions of the amended answer may be summarized as follows: The attorney to whom Wagner delivered the Perkins'notes for suit had full power and authority as agent and attorney of the bank to adjust the Perkins indebtedness with him; and the attorney represented he was agent and attorney of the bank and the bank commissioner. Perkins explained his financial condition to the attorney. For the purpose of deceiving and defrauding Perkins, the attorney represented he would prepare a mortgage to the bank such that if Perkins desired to dispose of any or all of his land in any manner satisfactory to him so he could extend or adjust prior indebtedness, the bank would release its mortgage on demand. If any land were sold for more than the prior encumbrance, interest and taxes, the excess should be paid to the bank, and the bank would release its mortgage. Perkins consented to give such a mortgage. A few days later the attorney presented to Perkins the mortgage sued on, and represented it would permit Perkins to dispose of his land as he saw fit for the purpose of adjusting prior indebtedness, and the bank would be required to release its mortgage on demand at any time Perkins disposed of any tract or tracts for the purpose stated. Relying on these representations, which were made to deceive and defraud, Perkins and wife executed the mortgage. The representations were the sole consideration on which the mortgage was executed, and it would not have been executed but for the representations. Subsequently, for the purpose of adjusting indebtedness, Perkins sold and transferred by deed the lands described in the six deeds referred to above, copies of which were attached to the answer. Tender of $31.34, the sale price of the several tracts above mortgages, accrued interest, and taxes, and demand for release of plaintiff’s mortgage, were pleaded, and the prayer was for cancellation of the mortgage, for statutory damages for failure to release, and for an attorney fee.
The reply to the answer denied under oath that the attorney referred to was agent for the bank or bank commissioner, and denied the charges of fraud.
The answer opened wide the gate to admission of parol evidence concerning how the second paragraph came to be inserted in the mortgage and what the parties intended by it. The facts were, the attorney was not agent of the bank or bank commissioner to negotiate settlement of Perkins’ indebtedness. He acted under Wagner’s direction, and what he did was subject to Wagner’s approval. He made no representations whatever to Perkins to induce him to sign the mortgage, and made no representations whatever regarding privilege of Perkins under the second paragraph of the mortgage. When the parties met to prepare the mortgage, Perkins produced a slip of paper, and asked that its contents be inserted in the mortgage. Wagner read the slip, and said in effect it would be all right for Perkins to sell the land, but it must be sold for a reasonable price; unless it were sold for a reasonable price Wagner could not expect approval of the bank commissioner. Perkins agreed to this, and the matter contained in the slip became paragraph 2 of the mortgage. Nothing was said about transferring land to the holders of first mortgages and the bank releasing its mortgage, and nothing was said about privilege of Perkins to transfer land to whomever he saw fit and in any manner he saw fit. Of course the court found no fraud was practiced in procuring the mortgage.
Assertion of fraud in the answer was an admission that the second paragraph of the mortgage did not provide for release on the making of deeds to adjust prior indebtedness, because if the paragraph did so provide, representations relating to how the mortgage would be drawn, and what it provided for when drawn, were fulfilled. The demand for release, however, appearing in the letter of September 30, 1926, to the finance company, copied above from the amended answer, was based squarely on the second paragraph of the mortgage. The court dealt with this phase of the floundering answer by finding that the alleged sales evidenced by the deeds, did not meet the requirements of the mortgage or the intention of the parties, and were all on insufficient consideration — that is, under the requirements of the mortgage.
The mortgage recited that it was subject to prior mortgages. Privilege to renew any of these mortgages was'granted, and the renewals were to retain priority. Then followed the second paragraph, which dealt with sales — sales for prices producing amounts received to be applied, and balances to be applied in fulfillment of the purpose of the security. If this were not obvious from a reading of the mortgage, doubt as to meaning was dispelled by the evidence showing the intention of the parties. Conceding, however, the mortgage meant that Perkins could demand a release of a tract of land on giving a deed by way of adjustment of prior indebtedness on that tract, he did not spend the month of September, 1926, in that kind of business. He engaged, as the court specifically found in respect to the Schneider and Alger deeds, in an effort “to defeat, by alleged sales, the mortgage lien of the plaintiff.”
The deed to Schneider conveyed a tract of 70 acres adjoining the .city of Oswego, known as the golf course tract, and a tract of 25 acres in the same section. The fair market value of the golf course tract was $150 per acre, and the fair market value of the other tract was $65 per acre. The stated consideration of the deed was $4,900, and the deed contained a warranty against encumbrances. As indicated above, the option contract permitted repurchase for $4,900, with interest, on or before August 1, 1930, and in the meantime Perkins was to continue in possession, enjoying the privileges and súbject to the burdens of owner.
John Hellwig held a first mortgage on 120 acres of land in a certain quarter section. Hellwig was approached with regard to taking a deed and giving back a contract, but he declined to do so. Perkins’ aunt, B. P. Alger, held a mortgage for $1,500 on the remaining 40 acres of the quarter section. When Hellwig refused to “adjust” his indebtedness, the whole quarter section was deeded to Alger. The deed recited it was subject to a $6,500 mortgage- on the portion of the land covered by Hellwig’s mortgage. The fair market value of the 40 acres on which the improvement stood was $200 per acre, and the fair market value of the remaining 120 acres was $65 per acre. The deed recited a consideration of $10, but Alger paid nothing, assumed nothing, and gave back an option contract which left Perkins beneficial owner.
William F. Perkins was given a deed for a tract of pasture land containing 200 acres. The deed recited a consideration of $8.02, and recited it was subject to a mortgage of $3,200 to the Federal Land Bank. The, fair market value of the land was $25 to $30 per acre. This deed was dated September 20, 1926. It seems that in his business of adjusting indebtedness it became necessary for Perkins to use his son, William F., a second time. Therefore, on September 28, 1926, William F. was given a deed for a forty-acre tract. He testified he purchased the tract from his father and his father delivered a deed to him. The expressed consideration was $11.55. He testified as follows:
“Q. Now as to the 40 acres, you took that subject to the mortgage upon it? A. Yes, sir.
“Q. And the principal and accrued interest on that mortgage was $1,701.32, the 1925 tax $29.17; 1926 tax $28, and interest to June 1, 1927, $10.26, a check for $11.55 making a total consideration of $1,815.10. A. Yes, sir.”
On November 2, 1926, a little more than a month after his deeds were recorded, William F. Perkins made a sworn financial statement to the American State Bank of Oswego for the purpose of obtaining credit. In the statement he said he owned no real estate. When confronted with the statement while he was on the witness stand, he was unable to give any explanation of the discrepancy between his testimony given under oath and the financial statement made under oath.
It is idle to contend that these transactions had for their purpose ,or their effect adjustments of indebtedness to prior lienholders. In August, 1924, when the bank’s mortgage was given, the prior mortgages were all in good standing; interest was paid and taxes on the land were paid. • After that, Perkins defaulted in payment of interest and taxes. He told Hellwig his reason for doing so was that if he paid interest and taxes the bank or the finance company would have more equity in the land. No grantee in any deed assumed any indebtedness, and all the deeds warranted against the bank’s mortgage. When John Judd was approached with respect to taking a deed and giving an option contract, Perkins said he and his attorney had been talking and planning how they would make the finance company release its mortgage, and he told his attorney he had a better plan. That plan was evidently the one he was proposing to Judd. On November 1, 1925, approximately nine months before Perkins undertook to carry the deed and option plan into effect, he made a financial statement to the American State Bank of Oswego for the purpose of obtaining a loan. He testified the statement spoke the truth as it appeared to him at the time it was made, and then sought to give the impression it was fixed up so he could borrow money, and he “got by” with it. It covered all the land embraced in the deeds subsequently given. Three hundred eighty-two acres were valued at $70 per acre, and 160 acres, on which were $20,000 worth of improvements, were valued at $125 per acre. The total encumbrances were stated to be $25,100, and Perkins’ equity in the land was $21,640. The statement was in Perkins’ own handwriting. Other evidence indicates the ulterior purpose of the so-called adjustment of indebtedness; but the foregoing is sufficient to show the court’s conclusion that the mortgagors did not by their “alleged sales meet the mortgage requirements for a sale,” that the deeds were for inadequate considerations, and that Perkins was engaged in an effort to defeat plaintiff’s mortgage, were sustained by sufficient evidence. The result is, the court did not err as against defendants in refusing to cancel the mortgage and in foreclosing the mortgage.
The court stated the following finding relating to the Schneider transaction:
“The court finds from the evidence, and from the attitude and conduct of defendant Henry L. Schneider, and from the taking of the deed of defendants Charles S. Perkins and wife Eleanor A. Perkins, copy attached to defendants’ answer as an exhibit, he had for his purpose a furthering of the efforts of defendants Perkins and Perkins to defeat, by alleged sales, the mortgage lien of the plaintiff herein on said premises, and had for his intention to merge his mortgage for $5,000, recorded in book 89 of mortgages at page 498 of the records in the office of the register of deeds in Labette county, Kansas, into said conveyance, and did merge his mortgage therein.”
The conclusion was, plaintiff’s mortgage was a first lien on the land conveyed by the Schneider deed. Schneider contends the question of merger was not raised by the pleadings.
Plaintiff’s mortgage recited it was subject to a list of mortgages, one of which was Schneider’s. The petition alleged, however, plaintiff’s mortgage was a valid and subsisting first lien upon the land. The petition also contained the following:
“Fifth. That the interests of the defendants and each and all of them are subject to and inferior to the plaintiff’s mortgage, and plaintiff is entitled to have the mortgage decreed a prior lien to each and all of the claims, right, title and interests of said defendants and each and all of them in and to said property described in plaintiff’s mortgage and each and every part thereof.”
The prayer of the petition was for a first lien, and that the defendants be barred from any right, title, interest, claim or equity in the described land, except right of redemption. The essential allegation of the petition was that Schneider’s interest was inferior to plaintiff’s mortgage. (Short v. Nooner, 16 Kan. 220.) The petition was not challenged for insufficiency, or by motion to make more definite. Schneider joined in the answer of Perkins which, besides pleading fraud, read as follows:
“3. The defendants Charles S. Perkins and Eleanor A. Perkins further aver that thereafter, and for the purpose of adjusting their indebtedness to prior lienholders, they sold and transferred by deeds the lands described in the several deeds of conveyance set out by copy and attached to their original answer herein, for the consideration following, to wit: B. P. Alger for the sum of $8,884.70; Henry L. Schneider for the sum of $5,600.96; John Judd for the sum of $1,475.56; C. A. Perkins, 40 acres, for the sum of $4,220; William F. Perkins for the sum of $4,320 for one tract, and William F. Perkins for other tract, 40 acres, the sum of $1,810.”
As indicated, a copy of the deed to Schneider was attached to the answer. Plaintiff replied as follows:
“First. Plaintiff admits the execution of a certain deed of Charles S. Perkins and Eleanor A. Perkins to Henry L. Schneider, and admits that the said Henry L. Schneider accepted said deed, and said transaction was without the knowledge or consent of plaintiff, and alleges the fact to be that any and all claims and liens of the said Henry L. Schneider upon the said real estate covered by said deed, were merged in said deed, and that plaintiff is entitled to first lien upon the premises described in said deed to Henry L. Schneider.”
The answer contained new matter designed to defeat plaintiff’s mortgage, not merely as a second lien, but altogether. The reply of merger bore specifically upon the subject of superiority of plaintiff’s mortgage over any interest Schneider might have in the land, considered in relation to the deed. It was strictly consonant with the petition, and constituted no new basis of relief, because a first lien under any state of facts was claimed in the petition. Therefore, the reply did not constitute a departure (Hunter v. Allen, 74 Kan. 679, 88 Pac. 252). If it were a departure it was not objected to in the district court, the defect was waived (Clay v. Hildebrand Bros. & Jones, 34 Kan. 694, 9 Pac. 466), and after judgment on the merits this court will consider all the pleadings, including the reply (Barrett v. Butler, 5 Kan. 355, 360).
Schneider has filed an elaborate brief on the subject of merger. This court has been very liberal in allowing a mortgagee who took title to preserve and enforce his mortgage lien whenever it was to his interest to do so, and it is not necessary to review the cases. Merger takes place when two interests in land meet in the same person in the same right, as when a mortgagee acquires the fee. There can be no occasion for an owner to keep up a charge on land of which he is seized in fee simple. Equity, however, will preserve the lien of the mortgage if such be the intention, actual or presumed, of the person in whom the estates unite. His intention is to be determined as a question of fact. When there is no direct proof, intention may be derived from a variety of circumstances, and generally an intention to keep a mortgage alive will be presumed from interest to do so. The presumption is indulged to preserve priority of lien and to protect against other liens, encumbrances and asserted interests. Equity, however, resorts to presumption and extends protection in order to accomplish just and beneficial results; and evidence ordinarily regarded as quite indicative of intention there should be no merger, such as retention of evidence of debt and security, may be of no force when justice demands merger should not be prevented. (McClain v. Weise, 22 Ill. App. 272.)
The fact is, the criterion of intention is largely a fiction, because even when intention has been manifested as plainly as possible, merger will be prevented or enforced, under unanticipated conditions subsequently arising, as equity may require.
In 2 Jones on Mortgages, 7tH ed., § 863, it is said:
“A mortgage will not be kept alive in aid of a fraud or wrong. Although in equity a mortgage substantially satisfied may be kept alive when this is requisite to the advancement of justice, this is never allowed when the result will be, through the forms of law, to aid in perpetrating a fraud or an injury. . . . Since equity undertakes to prevent a merger only when this is necessary to effect justice, it will also enforce a merger-when to keep the mortgage alive would involve a fraud or wrong upon some innocent party.”
In the opinion in the case of Campbell v. Knights, 24 Me. 332, the syllabus reads:
“When the equity of redemption is purchased by the mortgagee, the general rule is, that the mortgage may be considered as still subsisting, when it is for his interest that it should be, to protect himself against any other charge or encumbrance upon the estate; but whenever it would be inequitable, or contrary to the clear intention of the parties, or conducive to fraud, the mortgage is regarded as extinguished.”
In the opinion in the case of York v. Robbins, 240 S. W. 603 (Tex. Civ. App.), the court said:
“Whatever may be the circumstances, or between whatever parties, equity will never allow a merger to be prevented and a mortgage or other security be kept alive, if this result would aid in carrying a fraud or other unconscientious wrong into effect under the color of legal forms. Equity only interposes to prevent a merger in order thereby to work substantial justice.” (p. 607.)
Schneider took a deed to land worth $11,825, on which he held •a mortgage for $4,900. In a conversation with the president and two stockholders of the finance company who visited him at Springfield, Mo., shortly before the company commenced its foreclosure suit, he said he had a deed to the land, paid nothing for the land above the mortgage, and the land was worth more than he paid for it. The president testified as follows:
“He told me that he held a mortgage on this tract of $5,000; that Mr. Perkins told him he couldn’t pay the taxes or the interest, hadn’t been able to pay it, and he was willing to give him a deed to satisfy the mortgage; and he thought this property was well worth his mortgage and it would be a good investment to him, and he took a deed to it for the $5,000 consideration.”
Schneider knew of plaintiff’s mortgage when he took the deed. With plaintiff’s mortgage released or canceled, no reason would exist for keeping apart his interests as mortgagee and owner. Interest and taxes until 1930 would reduce but slightly the wide mar gin of value above the encumbrance, and in view of all the circumstances, it was likely to be of great advantage to be owner rather than mortgagee. Assuming, therefore, that Schneider was not originally privy to Perkins’ scheme to defeat plaintiff’s mortgage, there was evidence to support a finding of merger. To a first mortgagee of ordinary prudence, however, it would have seemed strange that a second mortgagee would contract to release a mortgage taken as security for a debt, on the simple deeding away of the land, when the land was known to be worth more than the first mortgage; and in view of what happened, the court was justified in finding the deed to Schneider had for its object a furthering of Perkins’ purpose to defeat the second mortgage. Schneider became a party to the scheme by joining in the Perkins answer, which included the vicious and unwarranted charge of fraud. He did not so much as refer to his mortgage in the answer, but adopted Perkins’ declaration that the land was sold to him for a stated consideration and had been conveyed to him by an exhibited deed. The result was, the mortgage merged in the fee, unless equity intervened to save its priority over a lien which he was striving to annihilate by upholding a fraud. The most that equity could do in that situation was to maintain austere aloofness. While prevention of merger would not effectuate the fraud, equity could not maintain its standards and volunteer rescue from a predicament created by fraud.
The court made findings relating to Alger’s deed identical with those relating to Schneider’s deed. On behalf of Alger the following dilemma is proposed: There was a sale, or there was no sale. If there was a sale, Alger was entitled to a release. If there was no sale, lien of plaintiff’s mortgage is inferior to hers. It is also contended by Alger that plaintiff admitted sales were made. Plaintiff admitted nothing except execution of the pleaded deeds and acceptance of them by the grantees. If .there was a genuine sale which complied with the terms of the second paragraph of plaintiff’s mortgage, Alger was entitled to a release. If there was a sham sale to defeat plaintiff’s mortgage, equity leaves her where it finds her, and she must abide the consequences. The sale to Alger was a sham.
Defendants contend fraud was not pleaded in the petition or reply. Defendants tendered an issue with respect to the purpose of the deeds. They pleaded the deeds were made pursuant to sales for the purpose of adjusting indebtedness. Plaintiff replied by general denial. When the trial of the issues was over, the true purpose of the deeds was exposed.
John Judd was importuned to take a deed from Perkins and give an option to repurchase; and a conditional arrangement of that character was partially carried out. Judd told the whole story as he understood it in an answer and cross petition wherein he prayed for cancellation of an option contract which he had signed and which found its way to Perkins’ possession, prayed for cancellation of a deed from Perkins which was recorded but not delivered to him, set up his mortgage, and prayed for foreclosure and a first lien. Perkins replied by giving his version of what occurred. The court determined the issues in favor of Judd, and granted the relief which he prayed for. The court has fully considered this branch of the case, but this opinion cannot be extended to the length necessary for formal discussion of it, and the judgment in Judd’s favor is approved.
All defendants except Judd joined in a motion for new trial based on a number of grounds. The motion was without merit, and was properly denied. The motion for new trial was denied, and final judgment was rendered on July 5, 1927. On July 23, all defendants except Judd perfected an appeal to this court. On September 6, Schneider filed a supplemental motion for new trial, which was denied on September 9. Schneider then appealed from the order of July 5 denying his original motion for new trial, appealed from the final judgment rendered on the same day, and appealed from the order made on September 9 denying the supplemental motion for new trial.
The supplemental motion for new trial, filed long after the time allowed for filing a motion for new trial had expired, was a document not known to the civil code, and was of no legal efficacy. The ground of the supplemental motion was that Schneider was unavoidably prevented from being present at the trial and from defending on the merits. The proper procedure to obtain vacation of a judgment on that ground is prescribed by R. S. 60-3011 and 60-3012. The court refused to strike the supplemental motion from the files, and then denied it. It was filed during the term at which the judgment was rendered, and the court had discretion to reconsider the judgment, but refusal to vacate or modify as the result of exercise of discretion is not reviewable here. Plaintiff is willing to waive the irregularity in procedure, and because the attorneys who filed the supplemental motion are nonresidents, this court has examined it.
The motion states that after Perkins conferred with Schneider concerning the subject of Schneider taking a deed, and concerning release of the second mortgage under a provision in the mortgage, Schneider learned from Perkins that a suit had been filed in Kansas, and the holder of the second mortgage had refused to make a release. Schneider was not personally served with process, and only learned of the case in a casual manner from Perkins. Schneider did not see the pleadings or know anything of them, and understood the only matter involved was Perkins’ right to a release. Schneider did not know his mortgage was involved. He was told an attorney employed by Perkins would attend to the case in court, and it was not necessary for him to employ counsel, as his interests were not involved. He was not advised when the case would be tried, and learned the date of trial after judgment was rendered.
The motion did not disclose “unavoidable casualty or misfortune preventing the party from . . . defending.” (R. S. 60-3007.) The motion did not deny that Schneider knew he was a party defendant in the suit filed in Kansas. Being a nonresident, he could not be personally served in the state, and he did not deny he was served with an appropriate kind of process. There is just one standard of diligence for a man who has been made a defendant in a lawsuit and has been notified in a manner provided by law. He must attend to the case, or take the consequences. In determining what he shall do, he takes the risk of the reliability of his sources of information and of the advice he receives, in the absence of misconduct of the opposite party.
Nothing prevented Schneider from defending, and he is not in a position to deny that he did defend. He was represented throughout the proceedings by an attorney who made a defense in his behalf which, had it been successful, would have given him what he now desires, a first lien. Representation by that attorney is not denied or repudiated. On the contrary, Schneider appropriates the benefit of the representation by recognizing the original motion for new trial, filed on his behalf by the attorney, as his own. The second motion is entitled “Supplemental motion for new trial.” In appealing to this court he speaks of the original motion for new trial as his motion, and he specifically appeals from the order denying that motion.
At the hearing of a motion-for new trial the court takes into consideration the pleadings and all the evidence offered at the trial: (R. S. 60-3004.) Testimony given at the trial by several witnesses is so out of harmony with certain statements of fact contained in the supplemental motion that the court was authorized to discredit it; and under all the circumstances, no error was committed in denying the supplemental motion for new trial.
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The opinion of the court was delivered by
Burch, J.:
The action was one for damages resulting from personal injury to plaintiff’s daughter who, in attempting to cross a city street, collided with a passing automobile when she emerged from behind a standing street car. Plaintiff recovered, and the street-car company appeals.
Cleveland avenue in the city of Wichita crosses Tenth street and extends north and south from, the intersection. Defendant operates an electric street railway on Cleveland avenue. The cars are one-man cars. On the day of the accident the motorman of a southbound car permitted his car to stand on the track while he went to a filling station which occupies the corner east of Cleveland avenue and north of Tenth street. The south end of the car was north of the north line of Tenth street a distance estimated by witnesses to be from twenty-five to forty feet. The car was not on a crosswalk and was not in front of an intervening street. Dur ing the five or six minutes the motorman was away from the car the accident occurred.
Plaintiff lived on the west side of Cleveland avenue. Her daughter Eleanore was ten years old. There was testimony that Eleanore left the" front porch of her mother’s home, went out to the street car, procured some pennies from a cousin who was on the street car, and then went around the north end of the car. Eleanore testified she was going to the filling station. Before she went back of the street car, and while she was back of the street car, she looked, and saw no automobile coming. She then walked around behind the street car. After she had gone beyond the east side of the street car just a little way, she saw an automobile coming from the south, and could not get out of the way. Since contributory negligence is not involved, the facts of the accident as related by adult, disinterested witnesses may be fold. There was no one on the street car at the' time of the accident. Children were playing in front of the Shelden home. Eleanore jumped down off the curb on the west side of the street, ran quartering across the street toward the filling station, and ran around the north end of the standing car. Fred Shellhammer was driving his automobile northward on the east side of the street, at a rate of speed estimated at from eight to twelve or fifteen miles per hour. When he was opposite the rear end of the street car, Eleanore ran into the side of the automobile and was thrown westward toward the street-car track. Shellhammer was sued with the street-car company, and a verdict was returned in his favor.
The petition alleged the street-car company was negligent in that the motorman violated an ordinance of the city of Wichita which reads as follows:
“That no car shall be allowed to stop on a crosswalk nor in front of an intervening street except to prevent danger to persons in the street or to avoid collision; nor shall any car be left standing in any street or highway unless the same is waiting for passengers. . . . Any employee of an individual, company or corporation, owning or operating an electric street railway, who shall violate any of the provisions of this section or aid or abet the same shall be deemed guilty of a misdemeanor, and on conviction shall be fined in any sum not less than five dollars nor more than twenty-five dollars.”
With a verdict for plaintiff the jury returned the following special findings of fact:
“1. Was the street car in question standing still at the time of the accident? A. Yes.
“2. Did Eleanore Shelden walk behind the street car-and in front of the automobile of Shellhammer, defendant? A. Behind the street car and into the side Of automobile.
“3. Did the automobile of the defendant, Shellhammer, knock Eleanore Shelden back of the street car? A. Yes.
“4. If you find for the plaintiff against the defendant the Wichita Railroad and Light Company, state what particular act or acts of negligence on the part of the railroad company was or were the proximate cause of the injury complained of. A. Leaving street car standing unattended in violation of city ordinance.”
The theory was that the street car prevented Eleanore from seeing the automobile and prevented Shellhammer from seeing Eleanore. She did not pause and look for an approaching automobile at the place where she should have looked. Had she done so, she could have avoided injury. Shellhammer, who exercised due care, could not prevent the accident after she appeared on the east side of the street car. Children and adults do sometimes run and walk and drive from behind standing and moving vehicles which obstruct vision, into the paths of other vehicles in motion, and the type of accident was such that it was just as likely to occur when the street car was moving, or when it was lawfully standing still. It was essential to recovery by plaintiff that the street-car company should be negligent in permitting the street car to be at rest between the Shelden house and the filling station. The negligence on which the verdict was based was violation of the city ordinance, and nothing else is open to consideration.
The ordinance made breach of its requirements punishable by fine' of the guilty employee. It made no-provision for private right of action, and plaintiff may not recover unless the ordinance was enacted to protect her as an individual against consequences of the conduct of which she complains. The ordinance was a traffic ordinance. It was enacted to relieve public travel on the streets of the city from blockade, congestion, and delay. The command of the ordinance was not to obstruct crosswalks and cross streets unless in an emergency, and to keep cars moving when not taking on or discharging passengers. It was not framed to provide individual pedestrians and automobile drivers with clear views, and because the object was to promote public and not private interest, the ordinance did not protect against the particular kind of hazard which was encountered.
The principle involved is well established. In the case of Gorris v. Scott, L. R. 9 Exch. [1874] 125, an order of privy council authorized by act of parliament required that animals brought .by sea to British ports should be carried in vessels divided into pens constructed in a prescribed manner, in order to prevent the introduction or spread of contagious or infectious diseases. Sheep in course of transportation were swept overboard at sea. The loss would not have occurred if the vessel had been equipped with pens as the order required. The headnotes read:
“When a statute creates a duty with the object of preventing a mischief of a particular kind, a person who, by reason of another’s neglect of the statutory duty, suffers a loss of a different kind, is not entitled to maintain an action in respect of such loss.
“The object of the statute and the order being to prevent the-spread of contagious disease among animals, and not to protect them against perils of the sea, the plaintiffs could not recover.”
In the opinion by Kelly, C. B., it was said:
“If we could see that it was the object, or among the objects of this act, that the owners of sheep and cattle coming from a foreign port should be protected by the means described against the danger of their property being washed overboard, or lost by the perils of the sea, the present action would be within the principle [of liability for breach of statutory duty],
“But, looking at the act, it is perfectly clear that its provisions were all enacted with a totally different view; there was no purpose, direct or indirect, to protect against such damage; but, as is recited in the preamble, the act is directed against the possibility of sheep or cattle being exposed to disease on their way to this country. . . . But the damage complained of here is something totally apart from the object of the act of parliament, and it is in accordance with all the authorities to say that the action is not maintainable.” (p. 129.)
In the opinion by Pigott, B., it was said:
“Admit there has been a breach of duty; admit there has been a consequent injury; still the legislature was not legislating to protect against such an injury, but for an altogether different purpose; its object was not to regulate the duty of the carrier for all purposes, but only for one particular purpose.” (p. 130.)
In the opinion by Pollock, B., it was said:
“Suppose, then, that the precautions directed are useful and advantageous for preventing animals from being washed overboard, yet they were never intended for that purpose, and a loss of that kind caused by their neglect cannot give a cause of action.” (p. 131.)
In the case of Lang v. New York Cent. R. R. Co., 255 U. S. 455 (1921), a brakeman was injured in the course of a switching opera tion when a car on which he was riding came in contact with a standing car which lacked a drawbar, draft timber, and coupling apparatus. The purpose of the switching operation was not to couple the moving car to the defective car; but if the defective car had been supplied with a proper coupler, the injury would not have occurred. Recovery was predicated on breach of the safety appliance act. The opinion of the court dealt quite unnecessarily with the doctrine of proximate cause, and it was held that failure to equip the defective car with an automatic coupler was not proximate cause of the injury. It was also held, and the court need not have gone further, that although the brakeman belonged to the class of persons which the statute was designed to protect, the statute protected against risk involved in coupling cars, and not against risk involved in collision of cars. The headnote reads:
“Where a brakeman, whose duty and purpose were to stop a string of switched cars before they reached a car standing on a siding awaiting unloading, was injured in a collision with it, having failed to stop the moving cars in time, held, that the fact that the standing car lacked a drawbar and coupler on the end where the impact was, did not render the railroad liable for the injury, even if their presence would have prevented it, since the purpose of the requirement of automatic couplers is to avoid risks in coupling and not to provide a place of safety between colliding cars.” (p. 455.)
In the case of Franklin v. Houston Electric Co., 286 S. W. 578 (Tex. Civ. App., 1926), a city ordinance required street cars to stop at designated places to take on passengers, and provided that vehicles should not approach nearer than ten feet from a car stopped to take on passengers. At a proper place plaintiff signaled a car to stop. The car did not stop. The movement of the car raised a cloud of dust, which prevented the driver of an automobile following the car from seeing plaintiff in time to stop, and plaintiff was struck by the automobile and injured. Plaintiff predicated liability of the street-car company on violation of the ordinance. The contention was that if the ordinance had been observed, the street car would have stopped, the automobile driver could have seen plaintiff and would have stopped, and the injury would have been avoided. Recovery was denied on the ground the ordinance did not apply. The headnotes read:
“Generally, one neglecting to perform specific duty imposed by statute or municipal ordinance is liable to those for whose benefit it was imposed for injuries proximately caused by such neglect, but injury must be such as legislation was intended to prevent.
“Ordinance requiring that street cars be stopped at designated places to discharge and take on passengers held not intended to protect intending passenger from being struck by vehicle following street car as result of failure to stop.
“Ordinance prohibiting drivers of vehicles from approaching nearer than ten feet to street car, stopped to take on or discharge passengers, imposes no duty on street-car company to stop car to protect intending passenger from being struck by vehicle following it.” (p. 578.)
The decisions which have been reviewed, and others, are discussed in connection with the subject of proximate cause in Green’s Rationale of Proximate Cause, ch. 1, §3. The principles recognized have been approved by this court. In the case of Denton v. Railway Co., 90 Kan. 51, 133 Pac. 558, a statute provided that railway cars should not be permitted to stand on a street crossing for a longer period than ten minutes without leaving an opening in the traveled way. Plaintiff was struck on a crossing by a switch engine, and charged the railway company with negligence because of violation of the statute, in consequence of which the driver of the automobile in which plaintiff was riding was prevented from seeing the switch engine. In the opinion, prepared by Mr. Justice Mason, it was said:
“In order for the violations of a statute to constitute actionable negligence the injury complained of must be of the sort the legislation was intended to guard against. [Citations.] The rule referred to results from a special application of the broader principle that the object of the statute must be looked to in order to determine who may invoke its benefit. The test whether an individual injured by the violation of a penal statute may recover damages from the wrongdoer is whether the legislature intended to give such right. . . . Evidently the purpose of the statute was to prevent obstacles to travel, not to sight; the injury in the mind of the legislature was that resulting from delay in crossing, not from collisions with a moving train.” (pp. 53, 54.)
In the instant case the purpose of the ordinance was to facilitate movement of traffic, not to provide observational opportunity. The cases of Pinson v. Young, 100 Kan. 452 (storage of dynamite), and Burrell v. Horchem, 117 Kan. 678 (blinding light of automobile driven by boy), are distinguished because the regulations involved were designed to insure the personal safety of individuals.
In the brief for plaintiff it is said that violation of the city ordinance stands first in line in cause of the accident. Since the ordinance did not protect against the particular hazard encountered— obstructed view — but protected the general public interest in un obstructed flow of street traffic, the court is not concerned with questions of proximate and remote cause. Since the regulation did not relate to the risk, a review of the many cases decided by applying the rule of proximate cause is unnecessary.
The judgment of the district court is reversed, and the cause is remanded with direction to render judgment for the Wichita Railroad and Light Company. | [
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The opinion of the court was delivered by
Herd, J:
This is an appeal from the district court’s order affirming the order of the Kansas Corporation Commission (Commission) amending the Basic Proration Order (B.P.O.) for the Kansas Hugoton Gas Field to allow infill drilling. The appeal of Williams Natural Gas Company (Williams) and Northern Natural Gas Company (Northern) has been consolidated with that of Panhandle Eastern Pipeline Company (Panhandle) and Kansas Power & Light Company (K.P.L.). Appellant Williams was formerly Northwest Central Pipeline Corporation, and Gas Service Company, an intervenor, has merged into K.P.L.
Appellees Mobil Oil Corporation (Mobil), Anadarko Petroleum Corporation (Anadarko), Santa Fe Minerals, Southwest Kansas Royalty Owners Association (Southwest), Mesa Operating Limited Partnership (Mesa), Tenneco Oil Company (Tenneco), Amoco Production Company (Amoco), and Cities Service Oil & Gas Corporation (Cities Service) join the Commission as proponents of its order.
The facts concerning the Hugoton Field are well known, having been recited in innumerable cases dealing with commission regulation but for ready reference we repeat them here. The Hugoton Field is the largest known reservoir of natural gas in the world. Colorado Interstate Gas Co. v. State Corporation Comm., 192 Kan. 1, 4, 386 P.2d 266 (1963), cert, denied 379 U.S. 131 (1964). It extends south from Kansas into Oklahoma and Texas. The Kansas portion of the field was discovered in 1922 and covers over two and one-half million acres. Approximately 90% of the gas produced from the Kansas Hugoton Gas Field is commingled in integrated pipeline systems with gas produced from various other states and distributed throughout many parts of the country. See Colorado Interstate Gas Co., 192 Kan. at 4-7. The purchase and sale of such gas is subject to regulation as interstate commerce by the Federal Energy Regulatory Commission (FERC), under the Natural Gas Policy Act (N.G.P.A.) of 1938, 15 U.S.C. § 3301 et seq. (1982). Northern Gas Co. v. Kansas Comm’n., 372 U.S. 84, 9 L. Ed. 2d 601, 83 S. Ct. 646 (1963).
The Commission first exercised its jurisdiction over the Kansas Hugoton Field on March 21, 1944, when it issued the B.P.O. pursuant to G.S. 1935, 55-701 et seq., finding the field was a common source of supply. See Colorado Interstate Gas Co., 192 Kan. at 6. The purpose of the B.P.O. is to ensure orderly development of the field by prescribing regulations for the production of gas from the field. The B.P.O. attempts to ensure that each owner will recover, without waste, that amount of gas underlying his or her land. The Commission retains jurisdiction over the field for the purpose of issuing further orders as necessary. The B.P.O. has been amended many times since it was first issued, as additional geological and engineering information has been gained by development of the field.
This case began on July 31, 1984, when Cities Service, an owner and operator of approximately 500 wells, or about 12.5% of the leasehold interests in the Kansas Hugoton Field, filed an application with the Commission to amend the B.P.O. to allow an optional infill well (an additional well) on each Basic Proration Unit (B.P.U.) of 480 acres or more in the Kansas Hugoton Field. The infill application was filed pursuant to the Kansas conservation statutes, K.S.A. 1987 Supp. 55-703 and K.S.A. 55-703a. Cities Service alleged the latest engineering and geological evidence demonstrated that the one well allowed in each B.P.U., as originally established in the B.P.O., was insufficient to effectively and efficiently drain the unit. A B.P.U. is that acreage attributed to a well for die purpose of assigning production limits (well allowables) as established by the B.P.O. It generally consists of 640 acres, but may be larger or smaller, in which case its allowable is adjusted based on the ratio of the unit’s acreage to 640 acres. Production from the field is regulated by the Commission pursuant to K.S.A. 1987 Supp. 55-703 through semi-annual determinations based upon market demand.
The Commission has historically allowed only one well to each B.P.U. because it found one well sufficient to adequately drain the unit. Cities Service asked that the proration formula be modified so that one-half the acreage in each B.P.U. over 480 acres be attributed to the existing well and one-half to the infill well. Cities Service alleges the field is so heterogeneous in lithology and permeability that a significant volume of gas is trapped within pods which are not efficiently drained by existing wells. Cities Service alleges infill drilling is necessary immediately because pressures are declining to the point where some gas will never be recovered if not produced in the near future.
Williams, Northern, Panhandle, and K.P.L. intervened in opposition to the application. K.P.L. is a natural gas public utility which purchases a large amount of its gas from the Kansas Hugoton Field, both directly from producers and indirectly as part of its purchases from interstate pipelines. Williams, Northern, and Panhandle are interstate pipelines which purchase and transport natural gas from the Kansas Hugoton Field and sell the gas in both intrastate and interstate markets.
The administrative procedure in this case was extensive. From the date of Cities Services’ filing to February 15, 1985, all parties to this appeal participated in numerous prehearing proceedings before the Commission involving matters of timing, procedure, issues, and the prefiling of testimony. These hearings required briefing and oral argument. Between February 15,1985, and July 15, 1985, direct and rebuttal testimony was prefiled with the Commission. During the same time discovery was conducted.
The Commission hearing began on July 29, 1985, and continued until December 5, 1985, with 52 days of testimony and oral argument. The transcribed record of the hearing contains 12,000 pages, not including the prefiled testimony, and required fifty volumes to transcribe. There were numerous exhibits introduced representing the work and testimony of sixty expert witnesses. The amount of evidence presented in the prefiled testimony and at the hearings is said to be unprecedented in conservation hearings before the Commission.
On April 24, 1986, the Commission issued its order amending the B.P.O. to allow the drilling of a second well on each B.P.U. containing 480 acres or more. The Commission found:
“[T]he geological evidence establishes the Kansas Hugoton Gas Field is a heterogeneous, discontinuous reservoir. The depositional characteristics are so variable that permeability, porosity, and reservoir quality change significantly over distances of less than one mile and occur throughout the entire field. Permeability barriers, i.e., where permeability is so low that movement of gas is reduced to an extremely slow rate or is stopped completely, exist in the formation or zones within the individual proration units throughout the field, thereby restricting tire vertical and lateral flow of gas. This results in isolated discontinuous productive zones in the field which are not in pressure communication with the existing well and are not being effectively or efficiently drained by the existing well on the proration unit. Furthermore, a significant portion of the productive intervals within each proration unit, although in pressure communication with the existing well, consists of poor, low permeability reservoir rock which prevents one well from effectively or efficiently draining the proration unit. To the end of preventing waste, an infill well on each basic proration unit of 480 acres or more within the field is necessary to effectively and efficiently drain portions of the reservoir on each proration unit in the field which cannot be effectively and efficiently drained by the existing well on said proration unit.”
The Commission further found that the engineering evidence confirmed the geological evidence.
On May 15, 1986, the Commission granted a rehearing. Williams then filed two petitions for judicial review which were decided in Northwest Cent. Pipeline Corp. v. Kansas Corp. Comm’n, 241 Kan. 165, 735 P.2d 241 (1987).
On July 18, 1986, the Commission issued its order on rehearing, affirming its amendment to the B.P.O. with regard to the drilling of an optional infill well on each B.P.U. of 480 acres or more, but modifying the April order in some respects. The Commission decided the fixed locations adopted in the April order were to be amended to permit flexible location of the infill wells. The Commission also modified the means of assigning allowables and certain other matters. The July order incorporated all findings of fact and conclusions of law made in the April order which were not inconsistent with the July order. Motions for further rehearing were denied.
The final order resulted in the assignment of allowables to both the existing well and the infill well without altering the boundaries of the existing B.P.U.. The new formula divides the B.P.U. acreage factor between the original and the infill well and provides that each well shall be separately metered and accumulate overage and underage based on its own production status.
The Commission determined the localized studies of approximately 100 wells were sufficient to make a projection from which it issued a field-wide order; It reasoned the only alternative to a field-wide projection would be to conduct an exhaustive individual hearing on each B.P.U., which would be time-consuming and impracticable, as well as extending beyond the burden of proof necessary to sustain Cities Service’s application.
The Commission determined an additional well on each B.P.U. would permit the recovery of between three and one-half to five trillion cubic feet (Tcf) of natural gas which would be wasted without an infill drilling program. The recovery of three Tcf of gas would be equivalent to more than 10 years of production from the field at current rates. It was estimated that such a quantity of gas would satisfy all of K.P.L.’s requirements through the year 2050.
The Commission found an additional well on each B.P.U. necessary for effective and efficient drainage to prevent waste and protect correlative rights pursuant to K.S.A. 1987 Supp. 55-703(a). It found the recovery of these additional reserves would also fulfill the statutory objective of permitting producers “to ultimately produce approximately the amount of gas underlying the developed lease,” and that consumers would benefit from the availability of the additional reserves. To the end of satisfying estimated future market demand, the Commission’s order permitted some drilling to commence January 1, 1987, with additional drilling spread over a four-year period.
On July 18, 1986, Southwest petitioned for review in the district court despite having intervened in support of Cities Service’s application—thus, the misleading caption of this case. Southwest objected to the Commission’s four-year timetable which delayed drilling.
Southwest is a voluntary association of mineral owners and oil and gas lessors in the Kansas Hugoton Field. Southwest has been in existence since 1948 and includes members from each of the Kansas counties in which the field is located. Southwest supports infill drilling as a furtherance of its members’ interests. It has now dropped its objection to the amended B.P.O. and joins appellees in support thereof.
Appellants herein cross-appealed from Southwest’s petition, and on March 19, 1988, the district court affirmed the Commission’s orders. It denied motions for a new trial or to amend judgment after oral argument on the motions. This appeal followed.
I. THE SCOPE OF JUDICIAL REVIEW
Let us first consider the scope of judicial review of a Commission order. The responsibility of this court is to determine if the district court reviewed the Commission’s orders in accordance with its statutory responsibility. Shawnee Mission Med. Center v. Kansas Dept. of Health & Environment, 235 Kan. 983, 989, 685 P.2d 880 (1984). Under the Act for Judicial Review of Agency Actions, the party seeking change of an order has the burden of showing the district court that an agency’s order is invalid for one of the following reasons:
“1. The agency action, or the statute or rule and regulation on which the agency action is based, is unconstitutional on its face or as applied;
“2. the agency has acted beyond the jurisdiction conferred by any provision of law;
“3. the agency has not decided an issue requiring resolution;
“4. the agency has erroneously interpreted or applied the law;
“5. the agency has engaged in an unlawful procedure or has failed to follow prescribed procedure;
“6. the persons taking the agency action were improperly constituted as a decisionmaking body or subject to disqualification;
“7. the agency action is based on a determination of fact, made or implied by-the agency, that is not supported by evidence that is substantial when viewed in light of the record as a whole, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this act; or
“8. the agency action is otherwise unreasonable, arbitrary or capricious.” K.S.A. 77-621(c).
In determining whether the agency action is invalid for one of the foregoing reasons, the reviewing court must take into account the rule of harmless error. K.S.A. 77-621(d). Appellants contend the Commission has violated items numbers (2), (5), (7), and (8). Whether the Commission has.violated number (7) is in issue in several different findings by the Commission.
Neither the district court nor an appellate court may substitute its judgment for that of the administrative agency. Pork Motel, Corp. v. Kansas Dept. of Health & Environment, 234 Kan. 374, 673 P.2d 1126 (1983). So long as the record contains competent evidence in support of the decision of the Commission, its decision is reasonable and.must be upheld by this court. Kansas Transport Co., Inc. v. State Corporation Commission, 202 Kan. 103, 446 P.2d 766 (1968). The Commission is vested with wide discretion and its findings have a presumption of validity on review. Central Kansas Power Co. v. State Corporation Commission, 221 Kan. 505, 561 P.2d 779 (1977). The Commission is presumed to act fairly, reasonably, and impartially. Cain v. Kansas Corporation Commission, 9 Kan. App. 2d 100, 673 P.2d 451 (1983), rev. denied 235 Kan. 1041 (1984).
However, the Commission is required to provide in its orders the basis for its decisions. Central Kansas Power Co. v. State Corporation Commission, 181 Kan. 817, 316 P.2d 277 (1957); K.A.R. 82-l-232(a)(3). The lack of express findings of the basic evidentiary facts underlying the decision will not be supplied by implication and “courts will not search the record in order to ascertain whether there is evidence from which the ultimate finding could be made.” Kansas Public Service Co. v. State Corporation Commission, 199 Kan. 736, 744, 433 P.2d 572 (1967).
It is not necessary, however, for the Commission to “state just what weight it gives each factor covered by the evidence. . . . [I]t is for the Commission to determine the weight it shall be given, not the courts.” Colorado Interstate Gas Co., 192 Kan. at 21. “Nothing can be gained by making a comparison of conflicting testimony. The commission is the trier of facts. The commission had the expertise through its staff to sift and evaluate . . . conflicting testimony.” Central Kansas Power Co. v. State Corporation Commission, 206 Kan. 670, 679, 482 P.2d 1 (1971).
The Commission is empowered to prevent waste, avoid uncompensated drainage, and assure orderly development and production of natural gas in Kansas. K.S.A. 55-701, -702. Prevention of waste is the primary purpose of the gas conservation laws. Kansas-Nebraska Natural Gas Co. v. State Corporation Commission, 169 Kan. 722, 732, 222 P.2d 704 (1950), reh. denied 170 Kan. 341, 225 P.2d 1054 (1951). “Waste” is defined as including economic, underground, or surface waste. K.S.A. 55-702. K.S.A. 55-701 prohibits waste not only in the production of gas, “but for such purposes as would constitute waste.” 169 Kan. at 732. (Emphasis supplied.)
II. DISTRICT COURT ACTION
(1) The first issue under this title is whether the district court erred in failing to make separate and distinct findings on each material issue.
The district court is required under K.S.A. 77-621(b) and K.S.A. 60-252 to weigh the evidence from the record in order to make a separate and distinct ruling on each material issue on which its decision is based. See Colorado Interstate Gas Co., 192 Kan. at 17. The district court made the following findings:
“The Court, after a review of the record, the briefs filed herein, and hearing arguments of all counsel, being fully advised in the premises finds:
“1. Pursuant to Journal Entry filed October 10, 1986, it was established that this Court pursuant to Chapter 55 of the Kansas Statutes Annotated has jurisdiction to review the State Corporation Commission of the State of Kansas orders of April 24 and July 18,1986, issued in Docket C-164; that the orders sought to be reviewed are effective in Stevens County, Kansas; and, that venue for judicial review of the orders exists in Stevens County, Kansas.
“2. The Commission’s action, and the statutes, rules and regulations governing their action, was constitutional.
“3. The Commission’s acts were within the jurisdiction conferred by law.
“4. The Commission resolved all issues requiring resolution.
“5. The law was correctly interpreted and applied by the Commission.
“6. Lawful procedures were followed.
“7. Substantial evidence supports the Commission’s findings of fact.
“8. The Commission’s actions were not unreasonable, arbitrary or capricious.
“9. The burden of proving the invalidity of agency action is on the party asserting invalidity, and no such showing has been made in this case.
“IT IS FURTHER CONSIDERED, ORDERED AND DECREED that the findings of fact and conclusions of law expressed in the Orders of the Kansas Corporation Commission dated April 24, 1986 and July 18, 1986 are hereby adopted as the Court’s findings of facts and conclusions of law.”
Appellants argue this judgment gives no indication whether the district court actually considered the evidence independently, or, if it did, how it measured the evidence. Appellants therefore ask that a Special Master be appointed to make specific factual findings as in Colorado Interstate Gas Co., 192 Kan. at 4, if the case is not remanded for specific findings. A special master was required in Colorado Interstate Gas Co. only because the district court refused to give the findings of fact and conclusions of law which supported its decision to overrule the Commission’s findings and conclusions.
It is well accepted that the reviewing court has the discretion to adopt Commission findings as its own and is only required to give specific findings where it overrules Commission findings. In Colorado Interstate Gas Co., 192 Kan. at 17, we held the reviewing court must make its own findings “if the reviewing court does not adopt the findings of fact and conclusions of law of the Commission.” (Emphasis supplied.) Here, the district court adopted the Commission findings; therefore, it need not make its own detailed findings. This issue is without merit.
(2) The second issue regarding district court action is whether that court should have permitted the introduction of newly discovered evidence. Appellant Williams claims newly discovered evidence concerning market demand shows the Commission erred in concluding infill drilling should not be delayed until January 1, 1989, but should instead begin January 1, 1987.
The Commission’s staff recommended that the four-year phase-in for infill drilling not begin until January 1, 1989, based on its estimation there would be no market demand for additional production until 1993. The Commission rejected its staff s proposal, finding its estimates undervalued.
K.S.A. 77-619 allows the court to receive additional evidence on review of any agency action. The decision is, however, discretionary with the court. The district court found the Commission’s findings to be supported by substantial competent evidence. These findings included the Commission’s determination that infill drilling in 1987 was to be allowed in the interests of preventing waste, and not just because of market demand. Prevention of waste is the Commission’s primary responsibility. Williams did not meet its burden of showing the district court abused its discretion. Abuse of discretion is defined as arbitrary or unreasonable judicial action, such that no reasonable person could disagree as to its impropriety. Stayton v. Stayton, 211 Kan. 560, 562, 506 P.2d 1172 (1973). We find no abuse of discretion by the district court.
III. JURISDICTION
(1) We next turn to multiple jurisdictional issues. The first is whether appellants are correct in their claim that the Commission lacked subject matter jurisdiction because the evidence of lack of permeability is inconsistent with the Commission’s finding that the Kansas Hugoton Gas Field is a common source of supply.
The challenged finding provides:
“7. Regarding the Commission’s authority to prorate two separate reservoirs by one order, the Commission agrees with NWC, Northern and KPL that it cannot regulate in such a manner. However, contrary to what some parties may interpret the April 24, 1986, order to imply, the Commission considers the Hugoton Chase Group to be one common source of supply despite the heterogeneity and discontinuities found to exist in the field. At page 6, paragraph 7 of the April 24,1986, order, the Commission notes that the field is a common source of supply. Nonetheless, the April 24, 1986, order should be further modified to expressly provide that none of the evidence presented in this docket has changed the Commission’s long standing finding that the Chase Group of the Hugoton Reservoir is a single common source of supply.”
Appellants contend the Commission was arbitrary and unreasonable in finding the field a common source of supply after finding the field is permeated with barriers to the horizontal flow of natural gas requiring infill wells for proper drainage of the field. They argue there is less evidence in the case at bar than there was in Zinke & Trumbo, Ltd. v. Kansas Corporation Comm’n, 242 Kan. 470, 749 P.2d 21 (1988), that the entire field is a common source of supply.
Inconsistency within an administrative decision may render it arbitrary. Coggins v. Public Employee Relations Board, 2 Kan. App. 2d 416, 420-21, 581 P.2d 817, rev. denied 225 Kan. 843 (1978). Appellants note Justice Fatzer’s dissent in Class I Rail Carriers v. State Corporation Commission, 191 Kan. 201, 216-17, 380 P.2d 396 (1963), in which he would have reversed on the ground the Commission’s basic findings of fact were “wholly inconsistent” with its ultimate conclusion.
K.S.A. 55-702 provides, without definition, that the term “common source of supply” shall include “that portion lying within this state of any gas reservoir lying partly within and partly without this state.” K.A.R. 82-3-101(a)(14) (1987 Supp.) provides: “ ‘Common source of supply’ means each geographic area or horizon definitely separated from any other area or horizon which contains, or appears to contain, a common accumulation of oil, gas or both.”
Appellants argue that a “common source of supply” cannot include zones with permeability barriers so complete that they completely stop the movement of gas into other areas deemed part of the common source.
Appellants note the term “reservoir” used in K.S.A. 55-702 is defined by the Natural Gas Policy Act, 15 U.S.C. § 3301(6) (1982), as: “Any producible natural accumulation of natural gas, crude oil, or both, confined (A) by impermeable rock or water barriers and characterized by a single natural pressure system; or (B) by lithologic or structural barriers which prevent pressure communication.”
They next contend K.A.R. 82-3-101 (1987 Supp.) is erroneous if read to exclude the concept of pressure communication. This is because K.S.A. 1987 Supp. 55-703(a) gives the Commission authority to regulate developed leases, while that portion of a unit overlying an area of trapped gas must be accounted for as undeveloped.
Appellants finally note the Commission employs the definition of “pool” contained in K.S.A. 1987 Supp. 79-4217(4) for severance tax exemption, which definition shows the greatest inconsistency in the Commission’s holdings. A “pool” is defined as “an underground accumulation of oil or gas in a single and separate natural reservoir characterized by a single pressure system so that production from one part of the pool affects the reservoir pressure throughout its extent.” K.A.R. 82-3-101(a)(47) (1986 Supp.) (since amended) defined “pool” as “a common source of supply as officially named.”
We agree that a reservoir completely isolated from other reservoirs may not be held within the same common source of supply. Our examination of the record, however, reveals there was adequate substantial competent evidence to support the finding of the Commission that the Kansas Hugoton Field is a common source of supply.
The Commission has always acknowledged that the Hugoton Field consists of multiple horizons. See Colorado Interstate Gas Co. v. State Corporation Commission, 192 Kan. 1, 4, 386 P.2d 266 (1963), cert, denied 379 U.S. 131 (1964). Prior to its latest amendment, paragraph (c) of the B.P.O. stated, “[T]he number of gas-producing horizons varies between wells and tracts, most of them containing from three to five gas-producing zones.” These horizons have been consistently regulated by the Commission as a common source of supply for over 40 years without challenge. Cities Service simply brings additional data which explains that the reservoir is heterogeneous to an extent that one well per B.P.U. cannot always be expected to drain the unit within an economically reasonable time.
Testimony explained that the pools in the field are not separate reservoirs because they are part of the same geological series of gas that moved into the area at one time and, over geological time, the gas would move as part of the same reservoir system. A witness for appellants testified that, over geological time, one well could theoretically drain the entire field.
It is evident from reading the Commission’s orders as a whole that its language in finding that the movement of gas is “stopped completely” in some instances by barriers throughout the field is based upon the period of time within which the production of gas would be of benefit to society as distinguished from geological time. Appellants’ evidence shows that, over time, the gas may be predicted to move as part of the same reservoir system. In later arguments on different issues, appellants acknowledge the evidence shows the gas is not completely trapped. We agree.
This is not a case as in Zinke & Trumbo, 242 Kan. 470, where the Commission failed to make a finding that the area covered by its order was one common source of supply. Nor is it similar to Zinke & Trumbo in the evidence supporting the Commission’s jurisdiction. In Zinke & Trumbo, the Commission simply stated that the Morrow sand underlying the entire acreage involved in the dispute would be governed by its order. There was no evidence that Morrow sand within a geographical area could not cover different common sources of supply; on the contrary, the evidence was that it does. Further, the order went on to encompass land which has no Morrow sand.
We find substantial competent evidence supports the Commission’s finding that the Kansas Hugoton Field is a common source of supply. Findings which may be construed to the contrary are granted the “escape clause” provided by the legislature for administrative bodies under the harmless error rule, K.S.A. 77-621(d). Zinke & Trumbo, 242 Kan. at 475. “Agency action will not be upset because of harmless error.” In re Certif. of Need App. by Community Psychiatric Centers, Inc., 234 Kan. 802, 805, 676 P.2d 107 (1984). We thus hold the Commission had subject matter jurisdiction of Cities Service’s application.
(2) The next jurisdictional issue is whether the Commission lacks in personam jurisdiction of the parties because notice was not personally served on all royalty owners. The constitutional test of adequate notice is one of reasonableness. Mathews v. Eldridge, 424 U.S. 319, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976); Mullane v. Central Hanover Tr. Co., 339 U.S. 306, 94 L. Ed. 865, 70 S. Ct. 652 (1950); Ryan, Kansas Administrative Law with Federal References, Ch. 9, p. 15 (2d ed. 1985) (citing Rydd v. State Board of Health, 202 Kan. 721, 451 P.2d 239 [1969]). Appellants claim this deficiency violates the constitutional standards of due process and the Commission’s regulations. They argue that, although the proceedings before the Commission were initiated as a rule-making procedure, they become adjudicatory in nature, requiring due process. The right under due process to personal service as well as publication notice when the whereabouts of the parties is easily obtainable applies to administrative proceedings which are quasi-judicial in nature and which adversely affect the parties’ rights. Neeley v. Board of Trustees, Policemen's & Firemen's Retirement System, 205 Kan. 780, 473 P.2d 72 (1970).
K.A.R. 82-3-135(c)(3) (1987 Supp.) provides:
“The person who initiated the proceeding shall provide any additional notice required by any rule, regulation or statute which applies to the hearing or is necessary to provide due process to any person whose property may be affected by the hearing.”
Cities Service therefore made personal service by mail on the royalty owners of Cities Service, on some 137 operators of wells, and on all 10 of the pipeline purchasers in the field. Cities Service also caused a notice of hearing to be published in a local newspaper in each of the eleven counties in the Kansas Hugoton Field and also in the Wichita Eagle-Beacon.
The Commission found notice was proper and that it had jurisdiction of all necessary parties. However, in its April order, it mistakenly found that notice was mailed to all royalty owners, rather than just those of Cities Service.
Appellants contend notice to the over 10,000 royalty owners besides Cities Service’s was necessary in order to comport with due process and the mandate of K.A.R. 82-3-135(c)(3) (1987 Supp.) that notice be served to any person whose property may be affected by the hearing. Appellants contend these owners had a property interest in the proceedings, and their names and addresses were necessarily on file with either the operator of the unit or the purchaser of the gas and thus easily ascertainable.
Appellants rely upon Harry R. Carlile Trust v. Cotton Petroleum, 732 P.2d 438 (Okla. 1986), cert, denied 483 U.S. 1021, 107 S. Ct. 3232 (1987), in support of their contention the Commission’s orders are invalid for lack of jurisdiction. The Carlile Trust court found the Oklahoma Corporation Commission acted in a legislative capacity when it exercised is rulemaking powers to prevent waste and protect correlative rights, but in its adjudicative capacity when it applied the general rules to the facts.
The Carlile Trust case is distinguishable from this case in two very significant respects. In Carlile Trust, the Oklahoma Corporation Commission, unlike the Kansas Corporation Commission, had the authority to order compulsory pooling. It did so. The Oklahoma Supreme Court held compulsory pooling affected significant property interests of every interest owner in the Hugoton Field, and held the Commission violated due process by relying on publication notice when the interest owners’ names and addresses were readily available. Also, in Carlile Trust, the due process issue was raised by an injured party. 732 P.2d at 445.
In the case at bar, the Commission’s order does not effect an involuntary change in existing property rights, but merely authorizes the optional drilling of a second well on each production unit after a justification hearing of which adjoining landowners are given personal notice.
It is contended royalty owners could be adversely affected by infill drilling because their economic interests conflict with the operators due to the flexibility permitted in locating the well. For instance, an operator who owned leases on adjoining tracts could realize the benefit of one infill well that drained more than one unit to the detriment of royalty owners of the tract being drained.
It is also pointed out that some royalty owners could be injured because their operators have less economic capability to drill additional wells than others, thus losing for the owner the increased income from the new well as well as possible drainage from an adjacent infill well drilled by a more financially secure operator.
These arguments ignore this salient point: The order does not change the contractual duty of the operator to the royalty owner, with its implied covenant to prevent drainage. The operator is liable to the owner for such loss. See Rush v. King Oil Co., 220 Kan. 616, 556 P.2d 431 (1976). Also, gas leases are construed to contain an implied covenant to reasonably develop the owner’s land. Renner v. Monsanto Chemical Co., 187 Kan. 158, 167, 354 P.2d 326 (1960).
The contractual relationship between the operators and royalty owners places a prudent operator standard on the operator. Notice to all operators, which was given, thus protected the interests of the owners. Therefore, every party who might be adversely affected received actual notice through personal service, publication notice, or contractual obligations. It thus appears notice was reasonable under constitutional standards. This is not the determinative argument of the issue, however. The appellants do not claim violation of due process because of the notice afforded them. They make their argument on behalf of all the royalty owners who were not personally served with notice. The object of appellants’ concern, the royalty owners, makes no objection. Southwest, which represents royalty owners, was not only an active participant in the action, but supported infill wells.
It is a cardinal rule of constitutional law that only an injured party may raise a question of a violation of rights (McGowan v. Maryland, 366 U.S. 420, 429, 6 L. Ed. 2d 393, 81 S. Ct. 1101 [1961]; State v. Thompson, 221 Kan. 165, 172, 558 P.2d 1079 [1976]), subject only to limited exceptions not here applicable. Phillips Petroleum Co. v Shutts, 472 U.S. 797, 86 L. Ed. 2d 628, 105 S. Ct. 2965 (1985). We hold appellants lack standing to raise the issue of lack of notice to royalty owners.
(3) The next jurisdictional issue is whether the Commission erred in amending paragraph (t) of the B.P.O. without notice at the same time it authorized an infill well on each unit.
Prior to April 24, 1986, paragraph (t) provided:
“To avoid the drilling of unnecessary wells and to prevent waste, no wells hereafter drilled in said common source of supply shall be assigned an allowable unless the Commission, after notice and hearing, finds that undue or uncompensated drainage is occurring beneath a tract on which said well is located, or that there is an actual need for additional wells to furnish gas to fulfull the market demands for gas from said field.”
The Commission amended (t) as follows:
“To avoid the drilling of unnecessary wells and to prevent waste, no wells hereafter drilled in said common source of supply shall be assigned an allowable unless the Commission, after notice and hearing, finds that under all the circumstances appearing, such well is drilled pursuant to its Order issued July 18, 1986, in Docket No. 164-C, or undue or uncompensated drainage of gas is occurring beneath the tract on which such well is located, or that there is an actual need for additional wells to furnish gas to fulfill the market demands for gas from said field.”
The amendment was proper pursuant to K.S.A. 1987 Supp. 55-706 and the language of the Commission’s prior orders retaining jurisdiction for the purpose of entering such further orders as it deems necessary. Furthermore, K.A.R. 82-3-134 allows exceptions to the density provisions in a field covered by a proration order to allow the drilling of more than one well on a unit established by the order.
Appellants protest their lack of notice that such an amendment was contemplated. K.S.A. 1987 Supp. 55-605 states that “notice shall state the time and place of hearing and contain such other information as will briefly and adequately disclose the matter to be considered or the relief sought.” Appellants cite Day v. State Corporation Commission, 185 Kan. 165, 341 P.2d 1028, modified 185 Kan. 382, 345 P.2d 651 (1959), in which we held the Commission could not unilaterally grant an exception to the rules of the B.P.O. if the B.P.O. did not allow the granting of an exception. Instead, the Commission was constitutionally required to call a hearing for the purpose of amending the B.P.O. so that exceptions could be granted within a framework applicable to all producers and landowners in the field. Day differs from the instant case in that here a hearing was called for the purpose of amending the B.P.O. Appellants contend, however, that the Commission was required to give notice specifying that paragraph (t) was to be amended.
It is obvious from the notice given that Cities Service’s requested amendment of the B.P.O. to allow infill wells might require amendment of other provisions to insure proper implementation of the order. The notice specified that amendment of the B.P.O. was being sought to allow the drilling of infill wells. The need to make amendments to specific paragraphs of the B.P.O. to allow infill drilling was recommended in testimony prefiled six months in advance of the hearing, and was responded to specifically by a witness for Williams. Thus, appellants had reasonable notice to prepare objections to the amendment of specific paragraphs of the order.
The amendment to paragraph (t) is merely a housekeeping amendment to make the infill amendment to paragraph (p) workable. We hold the notice afforded the parties hereto was broad enough to cover such an amendment.
(4) The final jurisdictional issue is whether the Commission lacked jurisdiction because of preemption by federal regulations to make an order which could, under certain circumstances, result in an increase in the price of gas. Appellants argue the infill proceeding was a de facto well classification under the N.G.P.A., 15 U.S.C. § 3301 et seq. (1982), intended to increase the price of gas and an indirect attempt to evade the exclusive federal scheme for the regulation of the price of natural gas sales in interstate commerce.
Under the Natural Gas Act (N.G.A.), 15 U.S.C. § 717 et seq. (1982), the transportation of natural gas in interstate commerce, the sale in interstate commerce of natural gas for resale for public consumption, and the natural gas companies engaged in such transportation or salé are all subject to the exclusive regulation of federal agencies. The act is a comprehensive scheme of federal regulations of all wholesales of natural gas in interstate commerce. Phillips Petroleum Co. v. Wisconsin, 347 U.S. 672, 682, 98 L. Ed. 1035, 74 S. Ct. 794, reh. denied 348 U.S. 851 (1954).
Natural gas prices are regulated under the N.G.P.A., which was instituted during a period of natural gas shortages. The N.G.P.A. established wellhead ceiling prices for sales of old natural gas dedicated to interstate commerce (§ 104) and ceiling prices for gas produced from new onshore production wells (§ 103). Most of the gas produced from the existing wells in the Kansas Hugoton Field is regulated pursuant to § 104, currently priced at an average price of approximately 60 cents per thousand cubic feet (Mcf). The price for gas from a “new onshore production well” under § 103, however, is currently priced at approximately $3.25 per Mcf. 18 C.F.R. § 271.101 (1988). However, because of current gas supply, the actual price bargained for is lower than the regulated price.
It has been consistently held that state regulatory bodies cannot effect price increases for the state’s production under the guise of conservation measures. Transcontinental Pipe Line v. State Oil & Gas Bd., 474 U.S. 409, 88 L. Ed. 2d 732, 106 S. Ct. 709, reh. denied 475 U.S. 1091 (1986) (following Northern Gas Co. v. Kansas Comm’n., 372 U.S. 84, 9 L. Ed. 2d 601, 83 S. Ct. 646 [1963]).
The instant case differs from Northern and Transcontinental in that those cases dealt with orders which instructed interstate pipeline purchasers to take ratably from producers. The United States Supreme Court struck down the orders for two reasons. First, the ratable take orders fell within the limits of the comprehensive regulatory scheme created by Congress. Second, without ratable take requirements, purchasers were free to choose a less costly purchasing pattern, in keeping with Congress’ determination that supply, demand, and price of natural gas be determined by market forces.
We adhered to this reasoning in our use of a two-prong test in Northwest Cent. Pipeline Corp. v. Kansas Corp. Comm’n, 240 Kan. 638, Syl. ¶ 1, 732 P.2d 775 (1987), in which we upheld the Commission’s order amending paragraph (p) of the B.P.O. We stated:
“In determining whether a state corporation commission’s order improperly interferes with federal regulation of natural gas in interstate commerce, a two-part test is employed: (1) Whether the order falls within the limits of a comprehensive federal regulatory scheme rather than within the category of regulatory questions reserved for the states; and (2) whether the effect of the order will be to impair interstate market forces.”
We found the order, which provided limits on production for each well in the field, was
“primarily directed at the production of gas rather than the marketing thereof and is necessary for the prevention of waste and the protection of correlative rights. Further, any effect upon interstate sales of gas is incidental rather than the objective of the order. Accordingly, the order does not transgress federal regulation of natural gas in interstate commerce.” Northwest Cent. Pipeline Corp., 240 Kan. 638, Syl. ¶ 3.
The United States Supreme Court has held that Congress has carefully circumscribed the field of federal regulation so as not to supplant the state authority over the production or gathering of natural gas. Colorado Interstate Co. v. Comm’n., 324 U.S. 581, 598, 89 L. Ed. 1206, 65 S. Ct. 829 (1945); Colorado-Wyoming Co. v. Comm’n., 324 U.S. 626, 89 L. Ed. 1235, 65 S. Ct. 850 (1945).
The present amendment of the B.P.O. is directed solely to the production and gathering of natural gas. It has no direct application to purchasers, such as appellants, but is directed to landowners and producers.
Legitimate state action may not be found unlawful simply because such regulation may affect the profits of companies doing business in interstate commerce:
“It is obviously correct that any change in rates of production of gas sold in interstate commerce has an effect on the interstate market. But that alone does not eliminate the jurisdiction of the Kansas Corporation Commission. If so, the FERC would have total jurisdiction over all gathering and production of gas which is sold in interstate commerce.” Northwest Cent. Pipeline Corp., 240 Kan. at 645.
The legislative history of the N.G.P.A. states that:
“The legislation does not contemplate that FERC will intrude into the traditional conservation functions performed by the states. This is a matter reserved to the state agencies who, in the exercise of their historical powers, will continue to regulate such matters as drilling locations, completion techniques, production rates, etc.” 124 Cong. Rec. 38,366 (1978).
The Joint Explanatory Statement of Committee on Conference states:
“In some instances, a State or Federal agency may designate a proration unit for a reservoir which it later determines cannot effectively or efficiently be drained by a single well. In such cases, the State or Federal agency may allow another well to be drilled on the same proration unit. The conferees do not intend a new well to be disqualified as a new onshore production well in such cases. The important factor in that determination is whether the portion of the reservoir covered by the unit will be effectively and efficiently drained by a single well.” H. R. Conf- Rep. No. 1752, 95th Cong., 2d Sess. 81, reprinted in 1978 U.S. Code Cong. & Ad. News 8998.
This congressional statement of intent is consistent with the testimony of Richard Pierce, an authority on the N.G.P.A. who testified before the Commission. According to Pierce, Congress recognized it was frequently necessary to drill additional wells on a proration unit to enhance deliverability and the ultimate recovery of reserves.
The Natural Gas Act, 15 U.S.C. § 717(b) (1982), clearly limits FERC’s authority as follows:
“The provisions of this chapter shall apply to the transportation of natural gas in interstate commerce, to the sale in interstate commerce of natural gas for resale for ultimate public consumption for domestic, commercial, industrial, or any other use, and to natural gas companies engaged in such transportation or sale, but shall not apply to apy other transportation or sale of natural gas or to the local distribution of natural gas or to the facilities used for such distribution or to the production or gathering of natural gas.” (Emphasis supplied.)
The Commission made a specific finding the proceeding was held under the conservation statutes and not under the N.G.P.A. and the corresponding Kansas statute, K.S.A. 66-1,185. A separate application on a well-by-well basis is required to increase the price under the N.G.P.A. 18 C.F.R. § 271.305 (1988), K.S.A. 66-1,185, and K.A.R. 82-3-500 et seq.
Subject to the review and approval of FERC, a state agency having regulatory jurisdiction with respect to production of natural gas, such as the Commission, may be authorized under the N.G.P.A. to make a “determination” for the purpose of applying the definition of new wells under § 103(c). 15 U.S.C. § 3413(c) (1982), 18 C.F.R. § 274.103 (1988), 18 C.F.R. § 274.501(a)(2) (1988), 18 C.F.R. § 275.202 (1988). However, such determination must be made “in accordance with procedures applicable [to such agency] under the law of its jurisdiction for making such determinations.” 18 C.F.R. § 274.103 (1988). Such determination is also limited by FERC rules for making § 103 determinations set out in 18 C.F.R. § 271.301 et seq. (1988) and § 274.101 et seq. (1988).
In 1979 the Kansas Legislature passed an enabling statute which provided “(a) The state corporation commission shall have such jurisdiction as is required to provide compliance with and carry out the requirements of the provisions of the [N.G.P.A.]. . . and with the rules and regulations adopted by [FERC] pursuant to such acts, and the state corporation commission shall adopt such rules and regulations deemed necessary for such purpose.” K.S.A. 66-1,185. The Commission implemented the legislative mandate with rules and regulations for making well classification determinations under the N.G.P.A. K.A.R. 82-3-500 et seq.
Under 18 C.F.R. § 271.305(b)(1) (1988), the “jurisdictional agency”—the Commission—must “explicitly find” that the new well is necessary to “effectively and efficiently” drain the unit in order for its production to qualify for the maximum lawful price under § 103.
Appellants complain the term “effective and efficient” used in the Commission’s order was not set out in the original B.P.O., the Kansas Statutes, or the Commission regulations. The original B.P.O. uses the term “adequately and sufficiently.”
In its July order, the. Commission found the April order “should be modified to expressly provide that: (1) the finding of effective and efficient requested by Cities Service is interchangeable with the phrase adequate and sufficient and the Basic Proration Order should be amended to include the effective and efficient language which appears to be the language currently prevailing in the industry.”
Appellants argue the term is used by the Commission to match the term “effective and efficient” used in the N.G.P.A. of 1978, 15 U.S.C. § 3301 et seq. (1982), as a basis for § 103 price reclassification. The Commission found that any impact its “effective and efficient” finding might have on well classification proceedings is a matter for future determination.
Although the classification procedure which determines whether an infill well is necessary to effectively and efficiently drain a unit is usually made on a well-by-well basis, 18 C.F.R. § 274.207(a)(1) (1988) allows the Commission to request alternatives to the filing requirements of 18 C.F.R. § 274.204 (1988), including the requirement that geological evidence and engineering data be submitted for each well.
The Commission has applied to the FERC for such an alternative filing procedure. If the application is granted, the Commission will use the evidence from this infill proceeding rather than take evidence from each separate infill well classification application. However, the Commission is still required by 18 C.F.R. § 274.204 (1988) to process each infill well application on a well-by-well basis, K.S.A. 55-705b; K.A.R. 82-3-300; and each applicant is required to send notice to its purchasers pursuant to 18 C.F.R. § 274.201(d) (1988). If the purchaser timely protests, the matter is then set for hearing. K.A.R. 82-3-502 (1987 Supp.).
Once the Commission determines a well qualifies for a § 103 price, it must notify the FERC, which retains the authority to decide whether the determination was based on substantial competent evidence. 18 C.F.R. § 275.202(a)(l)(i) (1988). Any interested parties, such as interstate purchasers, may protest on this ground to the FERC. 18 C.F.R. § 275.203(b)(1) (1988).
Appellants contend if an infill well was actually needed on any unit to prevent waste or fulfill market demands, the Commission could have invoked paragraph (t) of the B.P.O. Instead, the Commission found that separate notice and hearing for each well would be “time consuming, impracticable, and burdensome.”
Appellants argue the Commission’s actions in dividing the basic proration unit allowable between the existing well and the infill well, providing for the assignment of individual allowables for the infill wells, and requiring each well to be separately metered and to accumulate overage and underage based on its own production, shows the Commission’s true objective is to increase prices. It should be noted, however, that the B.P.O. prevents underage accumulated by the existing well to be reassigned to the infill well, absent a showing the existing well is not capable of operating.
The Commission rejected appellants’ proposal of a proration formula where “the infill well would be assigned an allowable based on the ratio of its deliverability to the unit’s deliverability.” (Emphasis supplied.) Instead, the Commission arrived at a formula for assigning separate well allowables to the existing well and to the infill well which considers both deliverability and the acreage to be attributed to each well in the unit. For those units having only one well, the acreage factor would continue to be the number of acres attributed to the unit divided by 640. For those units with an infill well, the acreage factor would, in effect, be divided between the original well and the infill well on a percentage basis; i.e., 70-30% of the acreage factor during the four-year phase-in stage of the program, 60-40% during the fifth year, and 50-50% thereafter. The deliverability factor continues to be determined by the ability of each well to produce gas against 70% of the average field pressure of the wells in the Kansas Hugoton Field.
Appellants cite evidence from the record supporting their contention the order will ultimately result in higher prices which will hurt consumers. A K.P.L. witness presented an exhibit which projected Northwest Central as incurring additional gas costs in excess of $1.2 billion through 1992 from infill drilling, with a cost to Kansas customers of K.P.L. of approximately $480 million.
However, even if higher ceilings are allowed, the actual price of gas remains one of negotiation between the purchaser and the producer based on market demand, as would be the drilling of additional wells. After a careful review of the Commission’s order in light of appellants’ cogent arguments, we find it does not require a purchaser to buy greater quantities of gas or to buy from any particular well or gas field. It merely permits a producer the option of drilling an additional well on each production unit for the purpose of properly draining the unit. The stated purpose of the order is to assist in the effective and efficient gathering and production of natural gas from the Kansas Hugoton Field. This is the facet of regulation specifically reserved for state regulatory bodies. If the Commission’s order ultimately results in a higher price for gas, it will be purely incidental to the drilling of an infill well and not the purpose thereof. We hold the Commission’s jurisdiction in this case is not preempted by federal regulation.
IV. EVIDENTIARY SUPPORT FOR THE COMMISSION’S ORDER
(1) The issue is whether substantial evidence supports the Commission’s finding that an infill well may be required to effectively and efficiently drain a production unit because of permeability barriers. Appellants argue no substantial evidence supports the Commission’s finding that isolated zones of gas exist because such zones were not physically located or quan tified by witnesses. Appellants produced evidence before the Commission showing why they rejected the theory of isolated zones.
There was, however, other evidence supporting the theory that isolated and discontinuous zones exist in each proration unit in the entire field. While the evidence was controverted, there was substantial competent evidence supporting the Commission’s finding. Therefore, we are not authorized to disturb it on appellate review.
(2) The next evidentiary issue is whether localized studies accepted by the Commission can provide a basis for finding such barriers exist on a field-wide basis where the Commission had rejected field-wide studies as unreliable due to the heterogeneous nature of the Hugoton Field.
Appellants argue Cities Service was the only appellee to present evidence supporting a field-wide order. Other appellees studied a limited area of the field and did not extend their results field-wide. Because the Commission rejected Cities Service’s estimate of additional recoverable reserves, appellants argue it rejected the only field-wide quantification offered of the anticipated effects of infill drilling of the field.
However, Mobil’s geological witness testified her localized study could be projected to the entire Kansas field. The study showed great variability in porosity and permeability which, the witness concluded, showed the existing bore holes were not effectively and efficiently draining the formation.
Further, Amoco’s witness testified the geological data established that a relationship exists between the depositional characteristics of the rock in part of the field and permeability. He testified this factor provides a reliable basis for extending the test results in cored wells to areas of the field which have not been cored.
The Commission responded to appellants’ argument as follows:
“29. It has been argued that the localized studies conducted by the geologists for the proponents cannot be extrapolated field-wide. The Commission disagrees. Collectively, the proponents have submitted substantial quantities of data concerning the geological characteristics of the Hugoton Field. This data base is adequate to make a reasonable field-wide extrapolation. The only alternative would be to conduct an exhaustive study for each proration unit. This alternative approach would be time-consuming, impracticable, and burdensome, as well as extending beyond the burden of proof necessary to approve the application of Cities Service.
“30. Furthermore, the geological evidence, particularly that presented on behalf of Amoco Production Corporation, established that a relationship exists between the depositional characteristics of the rock in the Chase Group and permeability. The existence of such a relationship is a powerful tool for extending what is seen irt'cored wells to other areas in the field which have not been cored.”
We find substantial competent evidence to support the Commission’s findings that localized geological studies can be extended field-wide in spite of its refusal to admit Cities Service’s field-wide studies on reserves.
(3) The next evidentiary issue is whether substantial evidence supports the Commission’s finding that infill drilling will protect correlative rights and prevent waste. K.A.R. 82-3-101(16) (1987 Supp.) defines correlative rights as follows:
“ ‘Correlative rights’ means that each owner or producer in a common source of supply is privileged to produce from that supply only in a manner or amount that will not:
“(A) injure the reservoir to the detriment of others;
“(B) take an undue proportion of the obtainable oil or gas; or
“(C) cause undue drainage between developed leases.”
Appellants contend the Commission erred in finding infill wells were necessary to protect correlative rights because no contention was made that uncompensated drainage across unit boundaries was occurring.
Appellants concede it is possible that additional production could be required to protect correlative rights in order to maintain pressure equilibrium, as indicated by Northwest Cent. Pipeline Corp. v. State Corporation Comm’n, 237 Kan. 248, 699 P.2d 1002 (1985), vacated and remanded 475 U.S. 1002, 89 L. Ed. 2d 289, 106 S. Ct. 1169 (1986), aff d on remand 240 Kan. 638, 732 P.2d 775 (1987). They argue, however, that there is no evidence this was the reason for the Commission’s conclusion. They note the Commission’s own consultant did not find any significant pressure differences that would lead him to conclude uncompensated drainage was occurring. They argue that rather than being protected under the new order, correlative rights are in jeopardy from the temptation for operators to “corner-shoot” the wells since they are given flexibility in locating them.
However, the amended B.P.O. prohibits an infill well from being located closer than 1,250 feet from a unit boundary line and 1,000 feet from any other well producing “from the same source of supply.” Also, the infill well could not produce without first obtaining an allowable. This can be achieved only after giving notice by mail to any adjoining royalty owner, as required by paragraph (t) of the amended B.P.O., pursuant to K.A.R. 82-3-300. Further, any drainage is a breach by the lessee of the implied covenant to protect against drainage, for which the royalty owner can recover damages. Renner v. Monsanto Chemical Co., 187 Kan. 158, 354 P.2d 326 (1960).
We agree with appellants, however, that there is no substantial competent evidence to support the Commission’s finding that infill drilling is required to protect correlative rights. Although the amended B.P.O. corrects any possibility that correlative rights might be jeopardized by the authorization for infill wells, it has no relationship to conditions prior to the amendment of the B.P.O.
Two questions are thus presented. The first is whether the Commission has authority over the field when action is unnecessary to protect correlative rights. We hold it clearly does. The prevention of waste is the Commission’s foremost function. K.S.A. 55-701; Colorado Interstate Gas Co. v. State Corporation Comm., 192 Kan. 1, 6, 386 P.2d 266 (1963), cert, denied 379 U.S. 131 (1964).
Production may be regulated under K.S.A. 55-603 when required because of conditions “(a) constituting waste as herein defined, or (b) independently of waste, under conditions injurious to the respective correlative rights of the producers therein.” (Emphasis supplied.) In Aylward Production Corp. v. Corporation Commission, 162 Kan. 428, 176 P.2d 861 (1947), we held the Commission had the authority to amend its rules upon its finding such amendment was necessary to prevent waste or injury to correlative rights.
The second question presented is whether the Commission’s error in finding its order necessary to protect correlative rights invalidates the order. We hold it does not, as the order is necessary to perform the primary function of preventing waste. It is thus harmless error under K.S.A. 77-621(d).
Appellants argue, however, that there is not substantial competent evidence to support the Commission’s finding that its order is necessary to prevent waste. The second part of the issue is thus whether there is substantial competent evidence to support the Commission’s specific finding that “without infill drilling, substantial reserves will not be recovered, thus causing physical waste.” There is substantial competent evidence in the record that infill drilling will result in substantially increased reserves. Even a K.P.L. witness, an engineer, testified that infill drilling would recover an additional 1.5 to 3 Tcf from the field. Because of the many variables to be considered, there was considerable variance in the estimates of the quantity of gas which could be recovered from infill drilling. The Commission’s estimate of 3.5 to 5 Tcf additional reserves is within the range of evidence, and thus should stand. See Kansas-Nebraska Natural Gas Co. v. State Corporation Commission, 217 Kan. 604, 617, 538 P.2d 702 (1975).
Appellants argue against reliance on the studies in evidence, claiming they do not prove porosity is accompanied by sufficient permeability to allow production in commercial amounts. They also contend the studies do not conclusively prove that gas, rather than water or some other substance, is below the surface.
Appellants further argue that if gas pockets do exist, some are in pressure communication with existing wells and some are not. If they are, the existing wells will eventually drain them. There was testimony that one well could effectively and efficiently drain the whole field over geological time. If they are not in pressure communication, the gas pockets will remain in place until future market demand requires they be produced. Appellants contend substantial evidence thus does not support the Commission’s finding that gas will be lost without infill drilling.
The Commission- stated:
“62. Some of the opponents to infill drilling have advocated that infill drilling should be delayed until the present gas surplus is gone. The Commission rejects this contention for several reasons. First, such a contention ignores this Commission’s duty to prevent waste and protect correlative rights. The record demonstrated that physical waste will result from the delay of infill drilling. Pressures in the field are declining to a point which make it difficult to obtain a satisfactory completion of a wellbore utilizing modern completion techniques. Furthermore, once reservoir energy is dissipated, it cannot be replaced. Reservoir energy is necessary for effective and efficient production of the remaining reserves. Likewise, as reservoir pressure decreases, recovery from low permeability zones becomes more difficult. Consequently, a substantial delay in infill drilling will result in a lower ultimate recovery, thereby causing waste.”
Appellants argue this might be true of an oil field, but in a gas field, declining pressure only indicates that drainage is efficient. They note that the same witness who testified the gas must be released before pressure further declined conceded that areas not in communication with the existing well bores cannot be imperiled by delay in infill drilling. He also stated that the low pressure areas of the field are the result of drainage by existing wells.
There is evidence, however, the appellants are incorrect in their assertion that declining pressure only indicates drainage. There is evidence that, as reservoir pressure goes down, recovery from low permeability zones does decrease, resulting in waste. Such evidence shows that gas will be lost without infill wells. Tenneco’s petroleum engineer testified his studies caused him to conclude that formation heterogeneties exist within the field which result in non-uniform drainage. He testified this meant that unless a second well is drilled in each unit, a significant amount of gas will be left in the ground. He estimated 41% of the gas under the area he studied would not be recovered without an infill well.
A witness for Cities Service testified a delay in infill drilling will result in waste. Mobil’s engineer testified pressures in the field are nearing a critical point below which modern completion techniques cannot be used effectively.
A petroleum engineer witness for appellant K.P.L. testified that as much as 10% of the gas remaining in the field might eventually be abandoned. On cross-examination, he acknowledged drafting a letter in which he stated two Tcf of reserves would be lost without infill drilling.
We hold substantial competent evidence supports the Commission’s finding that waste would occur unless infill wells were authorized.
(4) The next evidentiary issue is whether the Commission erred in finding that delay in infill drilling will result in irretrievable loss of gas and thus be wasteful. There was testimony from Mobil’s engineer that reservoir pressure had lowered to the point where action was critical in order to prevent waste. K.P.L.’s own witness agreed that, as reservoir pressure decreases, so does recovery from low permeability zones. He testified that a delay in infill drilling would result in lower ultimate recovery. Cities Service presented witnesses who agreed with K.P.L.’s testimony.
Appellants point out that K.P.L.’s witness had earlier testified no appreciable loss of gas would occur if drilling were delayed 60 years. They argue the witnesses relied upon by the Commission rebut its own claims concerning loss of gas because the areas from which it expects increased production are those which exhibit pressure at or above initial reservoir pressures. In that case, appellants note, it is evident the gas has not been produced in over 40 years of production in the field, and is not likely to be lost if infill drilling is further delayed.
Again, there is controverted evidence on the issue, but it is not for us to weigh the evidence. We only determine if substantial competent evidence was introduced supporting the Commission’s findings. We find such evidence was introduced.
(5) Let us next consider whether substantial evidence supports the Commission’s conclusion that infill drilling is necessary for recovery of slow-draining gas in order to prevent waste because gas not produced within the next 50 years is without economic value.
Appellants argue this finding, which they believe controlled the Commission’s final order, is not a legal basis for finding the existing wells do not effectively and efficiently drain the field. They argue there is no support in the statutes or the Commission regulations which allow a ruling which finds slow drainage to be waste.
Findings of irretrievable loss with delayed drilling aside, the record provides evidence for the Commission’s finding that gas not recoverable within 50 years is not economically valuable. In Republic Natural Gas Co. v. State Corporation Commission, 173 Kan. 172, 179, 244 P.2d 1196 (1952), we acknowledged that “[b]y the very nature of the business of conserving the gas supply the time element must be considered.”
Appellants argue, however, that the rate of depletion in the field is determined not by the number of wells but by the market demand for gas. They contend the evidence shows existing wells can satisfy the market deniand in the future. They argue Cities Service’s study showing increase in production from infill wells was fatally flawed by an assumption that demand would increase.
The Commission made the following finding in regard to appellants’ argument that slow drainage is not waste:
“It has been contended that effective and efficient drainage must be defined solely in geologic terms. The Commission disagrees. As shown by the reservoir simulation model study conducted by Amoco, substantial quantities of commercially recoverable gas that are in pressure communication with the existing’well on the proration unit will take in excess of 180 years to recover, assuming maximum production rates against a line pressure of 25 p.s.i.a. The modeling study conducted by Mobil’s engineers revealed the existing 5.8 Bcf of reserves connected to the present wells in the 25 well Nix study area would not be produced in less than 100 years without infill drilling. Cities Service has submitted evidence supporting its contention that it will take an additional 106 years to recover the remaining recoverable reserve connected to the existing wells without infill drilling. Furthermore, gas which will not be produced within 50 years has little or no economical value. [Citation omitted.] Regardless of whether it will take 100 years or 180 years to recover the gas connected to the existing wells, tire Commission finds such a time period for recovery does not result in effective and efficient drainage of the reservoir.”
Substantial competent evidence supports the Commission’s findings.
(6) The next issue is whether substantial evidence supports the Commission’s finding that a market will exist for the natural gas produced by infill wells. Appellants argue the evidence showed existing wells can meet the market demand through at least 1993 and that storage gives “plenty of lead time to infill drill” when additional reserves become necessary. They argue the existing market cannot absorb the higher N.G.P.A. § 103 prices which may result from the order. Testimony was presented that the productive capacity of the Field is over 200 Bcf (billion cubic feet) in excess of market demand. It was also conceded by Amoco and Mobil witnesses that the price of gas affects demand.
K.P.L. argues the Commission ignored evidence which showed infill drilling will be economically wasteful. Kansas law requires the Commission to consider all forms of waste. Kansas-Nebraska Natural Gas Co. v. State Corporation Commission, 169 Kan. 722, 732, 222 P.2d 704 (1950), reh. denied 170 Kan. 341, 225 P.2d 1054 (1951). The Commission considered appellants’ evidence but rejected it in favor of evidence showing waste would result from delay in drilling.
There was evidence in the record that the “gas bubble” is about to burst. Several pipelines purchasing gas from the field testified the gas surplus would be gone within the next two or three years. The Commission found the evidence showed con sumers are in a better position when they are assured availability of long-term gas supplies rather than waiting and taking emergency action when there is a shortage.
The Commission therefore held the infill program would commence on January 1, 1987, and be phased in over four years, with each operator to have the yearly option of drilling infill wells on 25% of its units, the option to be on a cumulative basis.
Appellants criticize the studies relied upon by the Commission. A witness for Amoco did a study which caused him to conclude there may be a shortfall in deliverability by 1989. Appellants criticize his use of peak demands in the study because he did not take into account the function of storage in meeting such demand.
Appellant K.P.L. also argues the Commission erred by failing to balance the costs of infill drilling against its benefits. However, the Commission found the evidence showed infill drilling would be economical for the producer. Appellants contest this finding, but also contend the Commission erred in relying on producer economics. The benefit to producers, they say, will come not from increased production but merely from being able to charge higher prices for gas already committed to specific markets. They argue the costs of the program as a whole must be balanced against the benefits as a whole. Cities Service conceded this itself.
The Commission lists other evidence it considered on the issue of market demand, however. It ultimately found-that the recovery of reserves through infill drilling was a benefit to society which outweighed the costs of drilling. We hold this finding is supported by substantial competent evidence. We held in Colorado. Interstate Gas Co., 192 Kan. at 18, that the legislature has lodged with the Commission the determination of which method it should use or which factors it should consider in making its determination of market demand.
The Commission admitted the evidence on the present and future market demand for natural gas over appellees’ objections. Appellees argued market demand was irrelevant to the Commission’s determination under the conservation laws. The Commission held market demand was in issue pursuant to K.S.A. 1987 Supp. 55-703 and paragraph (t) of the B.P.O. The Commission staff argues evidence of economic impact may have a bear ing on the market demand, which in turn, has a direct relationship with the field’s ability to produce. The end price of natural gas unquestionably has an impact on production trends and patterns in the Hugoton Field. The staff maintains that price disparities within the Hugoton Field can result in production disparity which in turn can impair correlative rights.
In Colorado Interstate Gas Co., we held that while prevention of waste is the Commission’s primary responsibility, it also has a responsibility to “allow sufficient production to meet the market demand if such can be done without waste.” 192 Kan. at 24.
Appellants argue the Commission violated K.A.R. 82-1-232(a)(3) by not giving “a concise and specific statement of the relevant law and basic facts” which persuaded it that an adequate market exists for infill gas. Failure by the Commission to follow its own rules is error. We have held the Commission is required to give clear and complete findings of essential facts on which its orders rest. Kansas Public Service Co. v. State Corporation Commission, 199 Kan. 736, 744, 433 P.2d 572 (1967). The Commission is not, however, required to explain why it did not accept every piece of evidence presented. We find the Commission adequately explained its finding that a market exists for infill gas.
V. MINIMUM WELL ALLOWABLES
The final issue is whether the Commission erred by departing from its past practice without a reasonable basis in its ruling on minimum wells. Where the Commission rules in a manner inconsistent with a previous decision, the law requires it explain its change in position. Atchison, T. & S. F. R. Co. v. Wichita Bd. of Trade, 412 U.S. 800, 808, 37 L. Ed 2d 350, 93 S. Ct. 2367 (1973).
Appellants argue the Commission’s final order, with its potential of granting an allowable in excess of the production costs of a minimum well, creates a departure from previous rulings. “Minimum” wells are those which would normally receive an assignment of less than 65 Mcf per day allowable under the standard proration formula. In the past, the Commission has decided a minimum well should be granted an allowable sufficient to pay the well’s operating expenses, which was determined to be 65 Mcf.
Thus, in its minimum well order here, the Commission set the allowable at 65 Mcf per day, per well. Appellants argue that while the costs of operating an infill well and an existing well are the same, prices charged for an infill well’s production may be six times that from existing wells.
They also protest that the order will result in an inequitable shift in allowables to minimum wells. The Commission determines market demand every six months and determines the field’s total deliverability. Allowables are allocated to each individual well on the basis of its “adjusted deliverability”—its measured deliverability adjusted by its acreage factor. Any well which is assigned an allowable less than the minimum—65 Mcf—but is capable of producing the minimum, is assigned the minimum. By computer, the Commission then checks the field, with minimum well allowables assigned first and the rest of the wells assigned on a pro rata basis. The allocation process is repeated until no new minimum wells are created. Evidence was presented that this method will shift approximately 3.6% of the field allowable to minimum wells. There was evidence such a shift “wasn’t significant enough to worry about.”
Appellants requested the Commission to assign an allowable of 65 Mcf per day to each proration unit, so that if two wells were on one unit, each well would receive an allowable of 32.5 Mcf.
Cities Service opposed the proposal, arguing the setting of a minimum of less than 60 Mcf per day would create artificial “stripper wells.” A “stripper well” is a well which does not produce enough to recover its cost. Congress has granted such a well higher maximum prices than infill wells.
Cities Service’s argument fails, however, because in order to qualify for stripper status, a well must not only produce at less than 60 Mcf; it must also be producing “at its maximum efficient rate of flow,” a qualification which would exclude most wells. U.S.C. § 3318(b)(1)(B) (1982). The Commission has previously indicated that the assignment of an allowable is not a determination of the well’s maximum efficient rate of flow.
The issue is decided, however, because the Commission has not in this instance been inconsistent with its previous decisions; in fact, it has consistently insisted that allowables be granted on a well-by-well basis rather than by the production unit. The Commission had a reasonable basis for its ruling. It found allowables must be assigned to each individual well to prevent premature abandonment.
The judgment is affirmed. | [
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The opinion of the court was delivered by
McFarland, J.:
This case concerns whether or not child support payments are automatically terminated during the period when a minor child spends a summer school recess with his noncustodial parent. The district court held that the obligation terminated during summer recess. The Court of Appeals affirmed the district court in an unpublished opinion filed October 7, 1988, relying on Brady v. Brady, 225 Kan. 485, 592 P.2d 865 (1979). The matter is before us on petition for review.
The facts may be summarized as follows. The parties were divorced in 1977. They had two minor children whose custody was awarded to the mother. In 1982, the parties agreed that custody of son Michael should be changed to the father. In 1985, custody of son Christopher was changed to joint custody with the mother having primary custodial care. The order reflecting the change in custodial status fixed child support at $250 per month, to be abated during the summer period when Christopher would live with the father. Christopher remained with the father through the 1986-87 school year. On February 3, 1987, custody was changed officially to the father and the mother was directed to pay $300 per month child support through the court trustee’s office. There were no summer visitation or abatement provisions in the order. Christopher lived with the mother for two and one-half months in the summer of 1987. The mother paid no child support payments for June, July, or August of that year in reliance on the fact that the father had not been required to pay child support payments while Christopher had been with her in the summer under the 1985 order. In November of 1987, the court trustee served a notice on the mother that she was three months delinquent in her child support payments. This action resulted therefrom.
The district court held that the obligation to pay child support automatically terminated while Christopher lived with the mother during the summer of 1987 and would likewise terminate under future like circumstances. The father appealed and the Court of Appeals affirmed under authority of Brady v. Brady, 225 Kan. 485.
It is apparent that some of the language used in the Brady opinion has caused confusion and needs clarification. The facts in Brady are summarized as follows. There were three minor children in Brady for whose support the father was ordered to pay a lump sum of $250 per month. Subsequently, Mike, the oldest child, moved in with the father on a permanent basis, where he remained until he reached the age of majority in 1974. Sans court order the father reduced his monthly payment by one-third when Mike moved in with him. Karen reached the age of majority in 1975 and the father, again without a court order, reduced his payments by approximately one-half, paying $85 per month for the remaining child, Lori. In 1976, the mother filed a contempt action against the father, challenging the propriety of all prior reductions.
The district court held the father had no obligation to pay for Mike’s support after he moved in with the father and no obligation to pay Karen’s support after she reached the age of majority. The vehicle used to grant this relief was K.S.A. 60-260(b)(6). The mother appealed, contending the district court lacked jurisdiction to modify past due child support payments and that the lump sum was not divisible.
Our holding in Brady, as reflected in the syllabus, is as follows:
“Child support may be modified at any time circumstances render such a change proper, but the modification operates prospectively only.” Syl. ¶ 1.
“Accrued, unpaid child support payments cannot be modified under K.S.A. 60-260(b)(6). Similarly, relief from prospective unpaid child support payments should be sought under K.S.A. 1978 Supp. 60-1610(a) by proper motion of the party rather than K.S.A. 60-260(b)(6). (Remarks to the contrary in Besse v. Besse, 1 Kan. App. 2d 217, 220, 563 P.2d 518, rev. denied 223 Kan. clxxi [1977] are disapproved.)” Syl. ¶ 2.
“When a fixed sum payable periodically is awarded as support for more than one child, and where the trial court does not specify the amount per child, justice is better served by dividing the sum proportionately.” Syl. ¶ 3.
“Under K.S.A. 1978 Supp. 60-1610(a) any order requiring either parent or both parents to pay for the support of any child until the age of majority shall terminate when such child attains the age of eighteen (18) years, unless by prior written agreement approved by the court such parent or parents specifically agreed to pay such support beyond the time such child attains the age of eighteen (18).” Syl. ¶ 4.
“An order for support of a child ‘until further order of the court’ does not mean that payments will accrue after the child becomes of age until the court makes a further order. The order terminates when the child attains majority without further order.” Syl. ¶ 5.
“Under the provisions of K.S.A. 60-2105 the Supreme Court is required in any case pending before it to 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.” Syl. ¶ 6.
Thus, we adhered to our longstanding rule that child support payments can be modified only prospectively but held that the reaching of majority automatically terminates any obligation for support of that child (unless there is a court approved agreement to the contrary). Syllabus ¶ 5 does not, however, fully reflect the holding of the court on the subject contained therein. In the corresponding portion of the opinion, we stated:
“When a child attains the age of majority, or when a child goes to live with the other parent, or when a child dies, the obligation to pay support for that child should automatically cease and terminate unless the agreement provides otherwise.” 225 Kan. at 491. (Emphasis supplied.)
It will be recalled that the trial court’s order stated the father’s obligation to pay stopped when Karen reached the age of majority and when Mike went to live with the father. This language from Brady was relied on by the Court of Appeals in affirming the district court. It is this language which needs clarification.
There is no hint in Brady that Mike’s move to the father’s residence was expected or anticipated to be temporary in nature. It was viewed by both parties as a permanent change of residence. Death of a child or that child’s attainment of the age of majority are, obviously, permanent changes of status. In Brady, we are speaking of certain events triggering a termination of the child support for that child. “Termination” is defined by Webster’s Third New International Dictionary 2359 (14th ed. 1961), in pertinent part, as “end in time or existence: CLOSE, CESSATION, CONCLUSION.” When a termination of something occurs, there is no expected resumption thereof. The child support obligation for Karen and Mike thus was terminated by the specified triggering events. We clarify our holding in Brady to restrict termination of the child support obligation to situations where a permanent change of residence has occurred.
In contrast, the move by Christopher to the mother’s home, in the case before us, was a temporary arrangement for a finite period—a visit. It would be inappropriate to speak of any relief from the obligation to pay child support for the period of the visit as being a termination of the obligation. Rather, the term “abatement” would be more appropriate. Webster’s New Collegiate Dictionary 2 (5th ed. 1977) defines “abate,” in pertinent part, as “a: to reduce in degree or intensity: ... b: to reduce in value or amount: make less ... 3: DEDUCT, OMIT” and “abatement” is defined as “1: the act or process of abating: the state of being abated 2: an amount abated.”
The mother herein does not contend that the fact Christopher lived with her for two-and-one-half months by agreement terminated any further obligation on her part to pay child support. Rather, she believes the circumstances warranted an abatement of her obligation for the period of the visit. These circumstances are not encompassed within our holding in Brady. Whereas we recognize, as did the trial court, that there are equitable considerations weighing in the mother’s favor herein, to affirm the trial court and the Court of Appeals would open up the already difficult problem of child support collection to endless litigation as to whether child support for a particular week or month should be abated. We must further recognize that the temporary absence of a child from the custodial parent has no effect on the amount he or she must pay for utilities, house payments, car payments, etc., all of which necessarily continue during the child’s temporary absence. Provision for the prospective abatement of child support during temporary changes in residence can be made a part of the applicable orders of support and the parties thereto will then know their respective financial obligations and expectations. The rule that accrued unpaid child support payments may not be modified is harsh under some circumstances, but it promotes at least a degree of stability in the difficult area of child custody and support.
We conclude the district court and Court of Appeals erred in holding that the child support obligation terminated during the summer visitation period under the authority of Brady.
The trial court’s judgment (and the opinion of the Court of Appeals) also allowed prospective abatement of the mother’s obligation to pay child support under like circumstances. Ah though we do not approve of the rationale employed by either court to support this portion of the judgment, it is clear there was, in effect, a modification of the child support order. The trial court heard the relevant evidence and was fully informed on the status of the parties and their respective expenditures on Christopher. The court had jurisdiction to modify the order for future support and it did so. We find no abuse of discretion therein.
The judgments of the district court and Court of Appeals are affirmed in part and reversed in part, and the case is remanded for further proceedings. | [
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|
The opinion of the court was delivered by
McFarland, J.:
These consolidated appeals arise from litigation concerning the ownership of certain joint tenancy accounts. More specifically, we are asked to determine the legal effect of the actions by one joint tenant in causing additional names to be added to the original joint tenancy accounts. Essentially, the trial court held that the addition of more persons did not destroy the nature of the joint tenancy ownership but made the accounts four-party joint tenancy ownership rather than the original two-party joint tenancy ownership. On appeal from such determination, the Court of Appeals reversed the trial court, holding that the addition of the two persons severed the original joint tenancies and thereby converted the ownership interest of the original joint tenants into that of tenancy in common, but that the added parties were joint tenants with the original joint tenant who had added their names. The matter is before us on petition for review.
The Court of Appeals opinion herein is found at 12 Kan. App. 2d 571, 752 P.2d 690 (1988). The facts underlying this litigation and the procedural course of the litigation are lengthy and complex. The Court of Appeals’ summary thereof is adequate, and, to avoid possible confusion, we adopt the same and set it forth herein (except for those portions which relate to issues not before us):
“Paul and Ida Ludwig were husband and wife for 33 years. Edward, plaintiff in this action, is Ida’s son by a previous marriage. Dennis Ludwig and Elvira Fisher, defendants in this action, are Paul’s children by a previous marriage.
“In August 1985, the health of both Paul and Ida began to decline. Ida was diagnosed as having senile dementia and, therefore, incapable of handling her business affairs. In October 1985, Ida was placed in a nursing home and Paul moved in with his daughter Elvira.
“Paul and Ida held their life savings in three joint tenancy accounts at Argentine Savings and Loan Association (Argentine). Two of these accounts were certificates of deposit (accounts No. 10588 and No. 845) and one was a passbook account (account No. 174). The signature cards for accounts 845 and 174 indicate Paul and Ida signed as ‘owners (grantors).’
“On August 9, 1985, Paul and his son Dennis went to Argentine Savings and Loan Association and Paul instructed an employee of Argentine to add the names of Dennis and Elvira to the joint tenancy accounts. The names of Dennis Ludwig and Elvira Fisher were typed on the signature card and certificate of deposit for account 10588 and on the signature card and passbook for account 174. New cards were not made out. Dennis signed the signature cards for both accounts. Elvira signed the cards later and returned them to Argentine. The names of Dennis and Elvira were typed on the certificate of deposit for account 845. Employees of Argentine testified that a new signature card was prepared for account 845 and that Dennis and Paul signed it. Elvira testified she signed and returned the signature card to Argentine. This new signature card for account 845 could not be located and was not produced at trial. Only the original signature card bearing Paul’s and Ida’s signatures was produced.
“The signature cards for accounts 174 and 845 provided:
“ ‘SPECIFIC CONDITIONS FOR JOINT ACCOUNTS: Ownership of this savings account is vested in the names appearing on the reverse side hereof, as joint tenants with the right of survivorship and not as tenants in common. It is understood that any one of the owners who shall first act shall have power to act in all matters related to this savings account whether the other owners be living or not.’
The card for account 10588 included similar language. Paul, Ida, Dennis, and Elvira were named as the account holders on the face of the passbook and on both of the certificates of deposit. On all three accounts, their names were followed by the phrase ‘as joint tenants with the right of survivorship and not as tenants in common.’
“Two days before Paul’s death on May 8, 1986, Dennis withdrew two-thirds ($18,249.32) of passbook account 174, which contained $28,237.06. On May 8, 1986, Dennis and Elvira withdrew all of the proceeds of account 10588 ($22,790.02) and then divided the proceeds into three equal checks of $7,596.67. Dennis and Elvira placed one of the checks in a certificate of deposit in the names of Ida Ludwig and Edward Robertson. On May 14, 1986, Dennis and Elvira delivered that certificate of deposit and the passbook for account 174, along with personal items belonging to Ida, to Edward. On May 23, 1986, Elvira withdrew all funds ($2,501.89) from account 845. On May 28,1986, Edward was named guardian and conservator of his mother.
“On June 6, 1986, Edward filed a petition against . . ., Dennis, and Elvira, seeking imposition of a constructive trust on all monies derived from accounts 174,10588, and 845, or judgment against the defendants. Edward alleged that the names of Dennis and Elvira were added without authority; that monies were withdrawn from the accounts without authority; that the monies in the accounts were largely the result of Ida’s contributions; and that Paul’s will superseded such illegal contracts. The court granted an ex parte restraining order impounding the funds derived from the accounts. Edward filed an amended petition, alleging the joint tenancy accounts were not entered into with the consent of all parties and that Ida was incapable of consenting to the creation of the accounts.
“Defendants filed an amended answer and counterclaim, alleging that, after Paul’s death, Edward and the defendants entered into a settlement by which the funds in the joint accounts were divided. Defendants claimed Edward breached the agreement by bringing this action. . . .
“[At trial, following] the close of Edward’s case, defendants moved for a directed verdict and an order setting aside all restraining orders. The court first sustained both motions as to accounts 174 and 10588. Then, after the continuance of the trial to a later date to hear additional evidence, the court also sustained both motions as to account 845. Defendants’ counterclaim was dismissed.
“The district court granted defendants’ motion for involuntary dismissal of Edward’s claim as to accounts 174 and 10588 on two different theories. First, the court found Edward had acquiesced in the division of the accounts by accepting and not paying over to Paul’s estate the one-third split. Second, the court found Ida and the defendants were joint tenants with equal ownership, and the division of the accounts fairly represented this equal ownership. As to account 845, the court found by the preponderance of the evidence that Paul intended to make Elvira a cotenant on the account with himself, Ida, and Dennis. Elvira was ordered to pay each of her [two] cotenants one-third of the account.
“The court found the addition of defendants’ names to accounts 174 and 10588, along with their signatures on the signature cards for these accounts, created an enforceable contract by which defendants, Paul, and Ida became joint tenants with the right of survivorship with identical interests in the accounts. Following Paul’s death, the joint tenancy continued under the terms of the contract with each party possessing the power to dispose of the funds in each account under the terms of the contract. The court found, however, that it had the power to impose a constructive trust on the funds to avoid unjust results. The division of accounts 10588 and 174 into equal shares among the joint tenants made the imposition of a constructive trust unnecessary. However, once it found the parties were cotenants as to account 845, the court imposed a constructive trust on proceeds from the account and ordered Elvira to pay equal shares to Edward and Dennis.” 12 Kan. App. 2d at 572-75.
The Court of Appeals adequately summarized the general principles of law relative to joint tenancy ownership of property in Kansas, as follows:
“The distinctive characteristic of a joint tenancy is the right of survivorship. Upon the death of one of the joint tenants, the property descends to the survivor or survivors. The right of survivorship terminates only when the entire estate, without the tenants having disposed of their title or otherwise terminating the tenancy, comes into the hands of the last survivor. Johnson v. Capitol Federal Savings & Loan Assoc., 215 Kan. 286, 291, 524 P.2d 1127 (1974).
“Although the presumption of joint tenancy with the right of survivorship as it existed under the common law has been abolished by statute (K.S.A. 58-501), a valid joint tenancy may be created by a contractual arrangement which confers equivalent legal rights and obligations upon the parties concerned. In re Estate of Smith, 199 Kan. 89, 93, 427 P.2d 443 (1967) (citing Malone v. Sullivan, 136 Kan. 193, 14 P.2d 647 [1932]). K.S.A. 58-501 requires that the language used in such a grant clearly indicates a joint tenancy is intended. In re Estate of Smith, 199 Kan. at 93.
“K.S.A. 58-501 provides in pertinent part:
“ ‘Real or personal property granted or devised to two or more persons including a grant or devise to a husband and wife shall create in them a tenancy in common with respect to such property unless the language used in such grant or devise makes it clear that a joint tenancy was intended to be created .... Where joint tenancy is intended as above provided it may be created by:
“ ‘(a) Transfer to persons as joint tenants from an owner or a joint owner to himself or herself and one or more persons as joint tenants.’
“In determining whether a joint tenancy account is created, general contract principles are applied. In re Estate of Powell, 222 Kan. 688, 690-91, 567 P.2d 872 (1977); Eastman, Administrator v. Mendrick, 218 Kan. 78, 82, 542 P.2d 347 (1975); Smith, 199 Kan. 89, Syl. ¶ 1. A joint tenancy account is created when the depositor signs a signature card naming himself and another ‘as joint tenants with right of survivorship and not as tenants in common.’ Johnson, 215 Kan. at 290 (quoting Edwards v. Ledford, 201 Kan. 518, 524, 441 P.2d 834 [1968]). These ‘magic words’ meet the clarity requirement of K.S.A. 58-501 and create an enforceable written contract. Johnson, 215 Kan. at 290; Edwards, 201 Kan. at 524. The provisions of the signature card constitute a contract in writing between the depositor and the bank, enforceable according to its terms, and a parol understanding at variance with such terms is inadmissible in the absence of fraud or mutual mistake. Powell, 222 Kan. at 690-91; Eastman, 218 Kan. at 82; Johnson, 215 Kan. at 290; Edwards, 201 Kan., at 524-25.
“Under common law, ‘four unities’ had to be present to create a joint tenancy: (1) interest—the tenants must have one and the same interest; (2) title—the interests must accrue by one and the same instrument or conveyance; (3) time—the interests must commence at one and the same time; and (4) possession—the property must be held by one and the same undivided possession. If any one of these unities is lacking, the estate is not one in joint tenancy. Simonich, Executrix v. Wilt, 197 Kan. 417, 421, 417 P.2d 139 (1966). Joint tenancy bank accounts created by contract have been held to satisfy the requirements of the ‘four unities.’ Edwards, 201 Kan. at 526; Simonich, 197 Kan. at 424.” 12 Kan. App. 2d at 575-77.
There is no claim herein that the creation of all three accounts did not establish valid joint tenancy ownership in Paul and Ida. The issue before us is whether or not Paul could unilaterally extend the joint tenancy accounts to four-party rather than two-party ownership. Put another way, was Ida’s consent necessary to add additional names to the accounts? Edward argues that the addition of the names was a nullity, and that Ida, as sole survivor, is entitled to all the proceeds in the accounts. Alternatively, Edward argues that the addition of the names severed the joint tenancy and rendered the ownership to be as tenants in common between Paul and Ida. Therefore, Paul’s one-half interests in the accounts would be assets of his estate.
The district court held that the addition of the names created valid four-party joint ownership in the accounts. The district court further held that it was Paul’s intention that Ida, Dennis, and Elvira should each receive one-third of the proceeds. Inasmuch as this division had already occurred as to accounts Nos. 174 and 10588, no court order was needed to accomplish it. The district court imposed a constructive trust upon the proceeds of account No. 845 and directed the same be awarded one-third each to Ida, Dennis, and Elvira. As an additional basis for its determination, the district court held that Edward had acquiesced in the division of accounts Nos. 174 and 10588 by accepting one-third of each of the two accounts.
The Court of Appeals held: (1) no acquiescence had occurred; (2) the addition of the two names severed the joint tenancy; (3) Ida was entitled to one-half of each account as a tenant in common; and (4) the addition of the two names created a valid joint tenancy among Paul, Dennis, and Elvira in Paul’s one-half interest in each of the accounts. So, under the Court of Appeals opinion, one-half of the proceeds is awarded to Ida, with Dennis and Elvira each receiving one-fourth.
We believe the resolution of this issue lies in the language of the instruments creating the original joint tenancy accounts. Paul and Ida signed the signature cards. The signature cards for accounts Nos. 174 and 845 provide:
“SPECIFIC CONDITIONS FOR JOINT ACCOUNTS: Ownership of this savings account is vested in the names appearing on the reverse side hereof, as joint tenants with the right of survivorship and not as tenants in common. It is understood that any one of the owners who shall first act shall have power to act in all matters related to this savings account whether the other owners be living or not.” (Emphasis supplied.)
The card for account No. 10588 included similar language.
By executing these instruments, Ida granted to Paul virtually unlimited authority over the accounts and their proceeds. During his lifetime, he could have withdrawn the proceeds, given them to Dennis and Elvira, created new joint tenancy accounts with just himself and Dennis and Elvira, or otherwise disposed of the proceeds. Cloaking Paul with the “power to act in all matters related to this savings account” must be held to include the power to add additional names to the accounts. Clearly, Paul had authority to enlarge the joint tenancy ownership as he did. Therefore, valid four-party joint ownership of the accounts was created.
The district court further held that it was Paul’s intention that each of the three surviving joint tenants should recover one-third of the proceeds. It is the position of Dennis and Elvira that, while they were under no legal obligation to share the proceeds equally with Ida, they did so “to honor their deceased father’s wishes and directions.” Neither Dennis nor Elvira makes claim to more than one-third of each account and each asks only that the district court’s division of the proceeds be affirmed. Therefore, there is no claim before this court that either Dennis or Elvira should be awarded more than one-third of the proceeds of the accounts.
We agree with the Court of Appeals that the district court improperly held that Edward has acquiesced in the three-way split of accounts Nos. 174 and 10588. The rationale in the Court of Appeals opinion adequately explains its rejection of this ground, and our resolution of the central issue renders this question extraneous. A number of procedural and evidentiary issues were presented to the Court of Appeals. Review of its disposition of these issues was not sought. After examining the same, we are satisfied they were properly determined and the result we have reached does not require their inclusion herein.
The judgment of the Court of Appeals is reversed. The judgment of the district court is affirmed.
Six, J., not participating. | [
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Per Curiam-.
This is an original proceeding in discipline. It was filed by Bruce E. Miller, Disciplinary Administrator, against Charles W. Sauer, an attorney of Overland Park, Kansas, who has heretofore been admitted to practice law in this state. The matter was regularly heard by a panel of the Kansas Board for Discipline of Attorneys. Respondent, though regularly notified of the hearing, did not appear before the panel either in person or by counsel. After hearing the evidence, the panel recommended disbarment.
Charles W. Sauer was the subject of a disciplinary proceeding heard by this court earlier this year, In re Sauer, 243 Kan. 157, 753 P.2d 1285 (1988). The facts found by the panel and adopted by the court in that case were that Sauer had undertaken some legal work for a client, accepted a $400 retainer, performed no services, failed to return the client’s telephone calls or letters, failed to return the $400 retainer, and failed to respond to telephone calls and letters from an attorney who was appointed to investigate the client’s complaint. The panel recommended indefinite suspension and this court concurred. On April 29, 1988, Charles W. Sauer was indefinitely suspended from the practice of law.
The facts in this proceeding parallel those of the earlier disciplinary matter. On October 7, 1986, Sauer accepted a retainer of $500 from a client, Jeannie L. Boyle, to represent David Ninci in a dispute between Mr. Ninci and his employer. Sauer failed to render any professional services for Mr. Ninci; failed to respond to inquiries by Ninci and Boyle; failed to return the $500 retainer despite numerous attempts to secure its return; failed to respond to letters and telephone calls from J. Bradley Short, an attorney appointed by the Johnson County Bar Association to investigate this matter; and, further, failed to cooperate with the office of the Disciplinary Administrator. The panel found that Sauer has abandoned his law practice, his clients, and the legal profession. The panel recommended disbarment.
Respondent did not file exceptions to the panel report. He has not appeared in this court, either in person or by counsel. Based upon the record before us, we agree with and adopt the panel’s conclusions and recommendation.
It Is Therefore Ordered that Charles W. Sauer be and he is hereby disbarred from the practice of law in this state.
. It Is Further Ordered that Charles W. Sauer shall forthwith comply with the provisions of Rule 218 (1988 Kan. Ct. R. Annot. 134).
It. Is Further Ordered that the costs of this proceeding be assessed to the respondent, and that this order be published in the official Kansas Reports. | [
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The opinion of the court was delivered by
McFarland, J.:
Robert Gene Prouse appeals his jury trial convictions of child abuse (K.S.A, 1987 Supp. 21-3609) and first-degree felony murder (K.S.A. 21-3401).
On February 15, 1987, defendant and his wife, Susan Prouse, brought their seven-week-old daughter, Felicity, to the emergency room of the Caldwell Hospital. The baby was not breathing. CPR was administered. Twenty minutes later Felicity was pronounced dead. The examining physician, Dr. Ray Stowers, observed multiple contusions and abrasions on the child’s face and a large hematoma behind the right ear. He asked defendant how these, injuries occurred. Defendant said the child had fallen from her crib two or three weeks earlier and that, a few days previously, the family cat had scratched the child’s eyelid. Defendant further stated the child had received no injuries the day of her death, and she was not breathing when he found her. Dr. Stowers-believed defendant’s explanation was inconsistent with the observed injuries and notified the Sumner County Medical Examiner. An autopsy was performed the following day by Dr. David Dejong.
The autopsy revealed a traumatic separation of the parietal, occipital, and temporal bone plates. The parietal bone plate was totally loose and fell from the skull upon the rolling back of the scalp. A subdural hematoma consisting of clotted and liquified blood was observed. Multiple external bruises and contusions to the head were observed. There were no injuries to any part of the body other than the head. Dr. Dejong concluded the injuries and death were the result of child abuse. The separation of the bony plates was due to a single localized blow occurring probably within hours of death but possibly within “a day or two before that.” He stated the injury could not have resulted from a fall from her crib. Multiple blows to the head were the probable causes of the various contusions and abrasions.
The subsequent investigation revealed defendant had been alone with the child during the day in question until approximately 6:00 p.m. when the wife returned from work. Shortly after that the child was discovered not to be breathing. A babysitter had been with the child the day before. She observed no injuries except for the cat scratch over the eye. Defendant again stated there had been no accidental injuries on the day of the child’s death and that nothing unusual had occurred.
Defendant was charged with first-degree felony murder and child abuse. He was also charged with involuntary manslaughter (K.S.A. 1987 Supp. 21-3404) and endangering a child (K.S.A. 21-3608). Defendant could not be found guilty of all four charges. He could be found guilty of (1) felony murder with child abuse as the collateral felony, or (2) involuntary manslaughter with endangering a child as the unlawful act not amounting to a felony, or he could be found not guilty. The jury found defendant guilty of first-degree felony murder and child abuse. Defendant appeals therefrom.
For his first issue, defendant contends the district court abused its discretion in admitting three of the nine autopsy photographs. The six unobjected-to photographs show the external injuries prior to any alteration of the body by autopsy. The three objected-to photographs show the internal head injuries with the scalp rolled back. Defendant contends the three photographs were gruesome, inflammatory, and repugnant.
The admission of photographs into evidence is within the discretion of the trial court unless it is shown such discretion is abused. State v. Kendig, 233 Kan. 890, 893, 666 P.2d 684 (1983).
A similar issue was raised in State v. Lucas, 243 Kan. 462, 759 P.2d 90 (1988), involving comparable photographs. In Lucas, Syl. ¶ 7, we held:
“Although special care must be taken in admitting photographs taken after the pathologist has intervened, lest the evidence be made more grisly than neces sary, those photographs which are relevant and material in assisting the jury’s understanding of medical testimony are admissible.”
The three photographs herein assisted the jury’s understanding of Dr. Dejong’s testimony as to the separation of the bones, the subdural hematoma, and the force necessary to cause such injuries. We find no abuse of judicial discretion in the admission of the photographs.
For his second issue, defendant contends the trial court erred in the admission of certain rebuttal testimony.
Defendant presented testimony that he was a person of great self-control who never became angry. Further, defendant testified “there isn’t anything a child could do to upset me.”
The State called Sherri Manske as a rebuttal witness. She testified she had . lived with defendant from October 1984 to January 1985. Living with them were her four-month-old baby and another child about a year older. She testified that the baby’s crying upset defendant and that he would cover up the baby’s mouth to stop the crying. This happened several times even though she told him not to do it. She testified she had seen displays of temper by defendant and that he had become physically violent on one occasion by throwing the furniture around. The couple had split up over this last incident.
The use and extent of rebuttal evidence rests in the sound discretion of the trial court and its ruling will not be reversed unless it appears the discretion was abused to a party’s prejudice. State v. Richard, 235 Kan. 355, 360, 681 P.2d 612 (1984); State v. Weigel, 228 Kan. 194, 200, 612 P.2d 636 (1980); State v. Lovelace, 227 Kan. 348, 353, 607 P.2d 49 (1980).
In their briefs, the parties go off on a tangent as to whether or not the rebuttal testimony was precluded by K.S.A. 60-447, which provides:
“Subject to K.S.A. 60-448 when a trait of a person’s character is relevant as tending to prove conduct on a specified occasion, such trait may be proved in the same manner as provided by K.S.A. 60-446, except that (a) evidence of specific instances of conduct other than evidence of conviction of a crime which tends to prove the trait to be bad shall be inadmissible, and (b) in a criminal action evidence of a trait of an accused’s character as tending to prove guilt or innocence of the offense charged, (i) may not be excluded by the judge under K.S.A. 60-445 if offered by the accused to prove innocence, and (ii) if offered by the prosecution to prove guilt, may be admitted only after the accused has introduced evidence of his or her good character.”
K.S.A. 60-447 is inapplicable herein. The complained-of testi mony was not offered to prove guilt. Rather, the purpose of such testimony was to refute certain testimony introduced by defendant as to his great self-control and inability to become upset with a child. This was clearly proper rebuttal evidence.
As we held in State v. Lovelace, 227 Kan. 348, Syl. ¶ 7:
“Rebuttal evidence is that which contradicts evidence introduced by an opposing party. It may tend to corroborate evidence of a party who first presented evidence on the particular issue, or it may refute or deny some affirmative fact which an opposing party has attempted to prove. It may be used to explain, repel, counteract or disprove testimony or facts introduced by or on behalf of the adverse party. Such evidence includes not only testimony which contradicts the witnesses on the opposite side, but also corroborates previous testimony. The use and extent of rebuttal rests in the sound discretion of the trial court and its ruling will not be reversed unless it appears the discretion has been abused to a party’s prejudice.”
For his third issue, defendant contends it was error for the trial court to instruct the jury on felony murder because child abuse is not an independent collateral felony and, accordingly, merged into the felony-murder charge.
This same issue was before the court in State v. Lucas, 243 Kan. 462, which was decided subsequent to the trial herein. In Lucas, we analyzed the existing Kansas case law relative to felony murder, which was summarized in Syl. ¶¶ 1-4 as follows:
“The purpose of the felony-murder doctrine is to deter those engaged in felonies from killing negligently or accidentally, and the doctrine should not be extended beyond its rational function which it was designed to serve.”
“In order to apply the felony-murder doctrine: (1) the underlying felony must be one which is inherently dangerous to human life; and (2) the elements of the underlying felony must be so distinct from the homicide so as not to be an ingredient of the homicide.”
“In determining whether an underlying felony is inherently dangerous to human life so as to justify a charge of felony murder, the elements of the underlying felony should be viewed in the abstract, and the circumstances of the commission of the felony should not be considered in making the determination.”
“Time, distance, and the causal relationship between the underlying felony and the killing are factors to be considered in determining whether the killing is a part of the felony and, therefore, subject to the felony-murder rule.”
The collateral felony must, therefore, be felonious conduct other than the lethal act itself. Thus, a homicide occurring during the commission of an independent felony, such as aggravated robbery, rape, or kidnapping, comes under the felony-murder statute (K.S.A. 21-3401). However, the lethal act itself cannot serve as the independent collateral felony necessary to support a felony-murder conviction. Thus, an aggravated battery (K.S.A. 21-3414) resulting in the death of the victim merges into the homicide and cannot serve as the collateral felony for felony-murder purposes. For further illustration, consider the situation where a robber shoots the victim during the commission of an aggravated robbery. If the victim lives, the robber could be convicted of the two separate felonies he or she committed—aggravated battery and aggravated robbery. If the victim dies as a result of the injuries so received, the robber may still be convicted of two felonies—felony murder and aggravated robbery. However, if the only felonious conduct involved is the cause of the victim’s death, then the doctrine of merger prevents the prosecution from splitting the act into a felony murder and a collateral felony charge. Therefore, an aggravated battery cannot serve as the collateral felony for felony murder. We then held in Lucas that designating an aggravated battery against a child as child abuse does not avoid the merger doctrine and result in two independent felonies. Specifically, we held in Lucas:
“A single assaultive incident of abuse of a child (K.S.A. 1987 Supp. 21-3609) which results in the death of a child merges with killing and constitutes only one offense. The coupling together of prior acts of abuse of a child with the lethal act of abuse into one collective charge of abuse of a child does not prevent the operation of the merger rule. Language to the contrary found in State v. Brown, 236 Kan. 800, 696 P.2d 954 (1985), is disapproved.” 243 Kan. 462, Syl. ¶ 5.
We further observed:
“If additional protection for children is desired, the Kansas Legislature might well consider legislation which would make the death of a child occurring during the commission of the crime of abuse of a child, or aggravated battery against a child, first- of second-degree felony murder.” 243 Kan. at 473.
We granted a rehearing in State v. Lucas. The original opinion therein has been affirmed this date. 244 Kan. 193, 767 P.2d 1308 (1989). In accordance therewith, the first-degree felony murder and child abuse convictions must be reversed and the case remanded for trial .on appropriate charges.
For his fourth issue, defendant contends the trial court erred in failing to instruct on the full range of lesser homicide offenses. By virtue of the result reached in the preceding issue, this issue is moot.
For his final issue, defendant contends the trial court erred in requiring the prosecution to elect between two theories of the means of commission of the involuntary manslaughter charge and in instructing the jury on the sole remaining theory as to the means of commission.
As will be recalled, the jury was instructed on alternative counts. Defendant could have been: (1) convicted of felony murder and child abuse; (2) convicted of involuntary manslaughter and endangering a child; or (3) found not guilty. These instructions parallel the information except that the involuntary manslaughter charge in the information provided two means of its commission as follows:
“and on or about February 15,1987 said Robert Gene Prouse, in Sumner County, Kansas did then and there unintentionally kill a human being, to-wit: Felicity Prouse; without malice, while in the wanton commission of an unlawful act not amounting to a felony, to-wit: Endangering a Child by causing or permitting her to suffer unjustifiable physical pain or mental distress or to be placed in a situation where her life, body, or health were endangered in violation of K.S.A. 21-3608; said unlawful act being prohibited by a statute enacted for the protection of human life or safety; or did unintentionally kill a human being, to-wit: Felicity Prouse; without malice while in the commission of a lawful act, to-wit: disciplining Felicity Prouse; in an unlawful or wanton manner, to-wit: by striking her head or causing her head to strike another object as a means to stop some behavior by the child such as crying which said Robert Prouse did not approve of. K.S.A. 21-3404 INVOLUNTARY MANSLAUGHTER Class D Felony.”
K.S.A. 1987 Supp. 21-3404 defines involuntary manslaughter as:
“(a) Involuntary manslaughter is the unlawful killing of a human being, without malice, which is done unintentionally in the wanton commission of an unlawful act not amounting to felony, or in the commission of a lawful act in an unlawful or wanton manner.
“(b) As used in this section, an ‘unlawful act’ is any act which is prohibited by a statute of the United States or the state of Kansas or an ordinance of any city within the state, which statute or ordinance is enacted for the protection of human life or safety.”
The involuntary manslaughter charge herein used endangering a child as the unlawful act element for one means of committing the crime, and the doing of a lawful act in an unlawful or wanton manner for an alternative means of commission of the crime. On its own motion, the trial court forced the State to elect as to the means of commission. Defense counsel made no objection to the forced election and did not request both theories of commission be submitted to the jury. In fact, defendant’s proposed instruction included only the first theory of commission. A litigant may not invite and lead a trial court into error and then complain of the trial court’s action on appeal. State v. Salton, 238 Kan. 835, Syl. ¶ 1, 715 P.2d 412 (1986). Further, we are satisfied this matter had no bearing on the outcome of the trial.
We believe, however, that it is appropriate to address the matter as it could arise again in a retrial herein. The defense cites cases dealing with a trial court’s duty to instruct on all lesser included offenses pursuant to K.S.A. 1987 Supp. 21-3107(3). Involuntary manslaughter was a charged crime, not a lesser included offense herein. Likewise, this does not involve an amendment of an information by the State. Rather, the effect was the trial court deleted part of the charge on its own motion.
Inasmuch as the involuntary manslaughter charge in the information was one count alleging two different means of commission, presumably the instruction and verdict form would have presented the whole charge to the jury without the court’s intervention. Hence, had defendant been convicted of involuntary manslaughter, it would be impossible to determine which means of commission the jury had found occurred. A challenge to the sufficiency of the evidence supporting the conviction would reveal this problem.
We believe that the proper method to be employed would be to charge the two different alleged means of commission as alternative counts of involuntary manslaughter. This would separate the elements instructions and the verdict forms and enable a reviewing court to determine precisely what the jury found. Further, it would prevent the jury from hybridizing the two means into some means of commission not specified in the statute defining involuntary manslaughter.
This conclusion is consistent with State v. Saylor, 228 Kan. 498, 618 P.2d 1166 (1980), wherein we held:
“It has long been the law of Kansas that an accusatory pleading in a criminal action may, in order to meet the exigencies of proof, charge the commission of the sam^ offense in different ways. In such a situation, a conviction can be upheld only on one count, the function of the added counts in the pleading being to anticipate and obviate fatal variance between allegations and proof. Thus, it has been held proper to charge by several counts of an information the same offense committed in different ways or by different means to the extent necessary to provide for every possible contingency in the evidence. Williams v. Darr, 4 Kan. App. 2d 178, 180-81, 603 P.2d 1021 (1979); State v. Hagan, 3 Kan. App. 2d 558, 598 P.2d 550 (1979); State v. Pierce, et al, 205 Kan. 433, 469 P.2d 308 (1970); State v. Emory, 116 Kan. 381, 226 Pac. 754 (1924); and State v. Harris, 103 Kan. 347, 175 Pac. 153 (1918).
“Where there is a question in the mind of the prosecutor as to what the evidence will disclose at trial, the correct procedure is to charge the defendant in the alternative under those subsections of K.S.A. 1979 Supp. 21-3701 which may possibly be established by the evidence. This may properly be done under Kansas law by charging several counts in the information to provide for every possible contingency in the evidence. By so doing, the jury may properly be instructed on the elements necessary to establish tire crime of theft under any of the subsections charged and the defendant will have no basis to complain that he has been prejudiced in his defense.” 228 Kan. at 503-04.
The defendant’s convictions of first-degree felony murder and child abuse are reversed and the case is remanded for trial on appropriate charges. | [
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Elliott, J.:
Mary McCleary filed this wrongful death suit for the death of her son, Christopher Leech, who was killed when the all-terrain vehicle (ATV) he was riding struck a pickup truck at a county road intersection.
McCIeaiy sued Jeremy L. Boss, driver of the truck; adjoining landowners Ray and Gladys Chastain; and the Labette County Commissioners. McCleary appeals the trial court’s order granting summaiy judgment in favor of all defendants.
We affirm.
On the afternoon of the accident, Christopher and several other children were taking turns riding an ATV back and forth to a stop sign at the comer of a rural intersection. The children were traveling on a north/south road controlled by a stop sign. The east/west road was a through road without a stop sign. Eleven-year-old Angie Hammans was driving the ATV with Christopher as a passenger when the ATV struck the truck being driven westward by Boss.
In a negligence case, plaintiff must establish a duty, breach of the duty, damages, and a causal connection between the duty breached and the damages. The existence of a duty is a question of law, while whether a duty has been breached is a question of fact. C.J.W. v. State, 253 Kan. 1, Syl. ¶ 1, 853 P.2d 4 (1993).
Normally, the presence or absence of negligence and causation are also questions of fact. However, these issues may be resolved by summaiy judgment where the facts of the case will support only one conclusion and reasonable minds could not differ as to that conclusion. Lay v. Kansas Dept. of Transportation, 23 Kan. App. 2d 211, 215, 928 P.2d 920 (1996).
Jeremy L. Boss
Plaintiff’s claim against Boss was based on evidence that Boss was driving partially left of center, although he was traveling in the normal worn path on the road. The trial court concluded the uncontroverted facts were that the ATV either failed to stop or failed to yield to Boss, who had control of the intersection, and that this was the sole cause of the accident.
The question here is whether a reasonable person could conclude the positioning of Boss’ truck a few feet left of center was the cause of the accident.
Here, Christopher died because the driver of the ATV failed to stop or failed to yield the right of way to Boss’ truck. If the ATV had stopped and proceeded with caution, the Boss truck should have been seen. Even if Boss were negligent in driving partially left of center, the negligence of the ATV driver was the intervening, proximate cause of the accident. Further, the accident was not a natural and probable consequence of any negligence on the part of Boss. No reasonable person could conclude that any negligence by Boss was the cause of the accident.
The trial court did not err in granting summary judgment for Boss.
Labette County
The County contended it complied with any statutory or common-law duty to maintain the intersection and that it was immune under the Kansas Tort Claims Act (KTCA), K.S.A. 75-6101 et seq.
In the present case, plaintiff concedes that the Manual on Uniform Traffic Control Devices for Streets and Highways (MUTCD) governs when a stop sign must be placed, but contends that factors governing where a stop sign should be placed are governed by the American Association of State Highway and Transportation Officials (AASHTO). Regardless of whether the trial court was correct in ruling the County was immune under the KTCA' compare Toumberlin v. Haas, 236 Kan. 138, 143-44, 689 P.2d 808 (1984); Carpenter v. Johnson, 231 Kan. 783, 790, 649 P.2d 400 (1982); Force v. City of Lawrence, 17 Kan. App. 2d 90, Syl. ¶ 4, 838 P.2d 896, rev. denied 251 Kan. 937 (1992), the placement of the stop sign could not have been the proximate cause of the accident.
Regardless of the placement of the stop sign, the driver of the ATV had a duty to proceed cautiously to make sure the intersection was clear. K.S.A. 8-1528(b).
Plaintiff’s argument that the ATV driver could have stopped at the stop sign where tire view was obstructed and lawfully proceeded across the intersection without again checking for oncoming traffic flies in the face of the clear language of K.S.A. 8-1528(b). Here, it was the ATV driver’s failure to stop and/or yield the right-of-way which caused the accident. No reasonable person could conclude that the placement of the stop sign was the cause of the accident.
Plaintiff also argues the County negligently failed to remove vegetation which obstructed the view at the intersection. The Toumberlin court addressed a similar issue and concluded the county did not have a duty to clear unusual obstructions which lie off the traveled portion of the roadway. Toumberlin, 236 Kan. at 143-44, quoted with approval from Lyke v. State Highway Comm., 160 Kan. 709, 711, 165 P.2d 228. (1946): “ Tf there were obstructions to the view from the side it simply placed upon the plaintiff a greater degree of care in his approach to the intersection/ ”
Here, the alleged visual obstruction did not he on the traveled portion of the roadway; therefore, the County had no duty to remove it. The trial court did not err in granting the County summary judgment.
Ray and Gladys Chastain
The trial court granted summaiy judgment for the Chastains on the basis that any foliage on the Chastain property could not have obstructed the view of a driver whose eyes were even with the stop sign, and that assuming such foliage was present, it could not have caused Christopher s death.
Plaintiff’s claim against the Chastains was based on K.S.A. 8-2011(a), which provides it is the duty of owners of realty to remove trees, shrubs, etc., which obstruct the view of a driver and, thus, constitute a traffic hazard.
The defense expert testified that assuming a driver’s eye was even with the stop sign and not behind it, there were no obstructions on the Chastain property which would have obscured the driver’s view. On appeal, plaintiff’s argument focuses on whether a driver who stops at a sign and whose eyes are behind the sign and not even with it, would have an obstructed view due to the vegetation on the Chastains’ property. This question is irrelevant because this case involved an ATV, not a car.
Further, as discussed above, even if a driver who stopped at the sign had an obstructed view, the driver had a duty to proceed cautiously to a point where he or she had a clear view and could cross the intersection safely. The trial court properly concluded the vegetation on the Chastain property could not have caused the accident. See Goodaile v. Cowley County, 111 Kan. 542, 207 Pac. 785 (1922).
In short, the trial court properly concluded this tragic accident was caused by the 11-year-old driver of the ATV failing to stop and/ or yield the right-of-way. The trial court did not err in granting summary judgment in favor of all defendants.
Affirmed. | [
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Knudson, J.:
This consolidated appeal is brought by the Citizens’ Utility Ratepayer Board (CURB) and various telecommunication providers from orders of the Kansas Corporation Commission (KCC) implementing the Kansas Telecommunications Act, K.S.A. 1996 Supp. 66-2001 et seq. (Kansas Act). The.Kansas Act was enacted to both complement and comply with the Federal Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (1996) (Federal Act).
Appellant CURB represents residential and small commercial ratepayers in this proceeding. See K.S.A. 66-1223.
Appellants Kansas City Fiber Network L.P. and Multimedia Hyperion Telecommunications are providers of private line and competitive access services in Kansas and have filed a joint brief. We will, hereafter, refer to these appellants collectively as KCFN.
Appellants CMT Partners, Topeka Cellular Telephone Company, Inc., and AirTouch Cellular of Kansas, Inc., are providers of commercial mobile radio service (cellular telephone service) and have filed a joint brief. We will, hereafter, refer to these appellants collectively as CMT.
There have been numerous intervenors in this proceeding. However, the only intervenors to file briefs are the State Independent Alliance, the Independent Telecommunications Group, Columbus et al., and Southwestern Bell Telephone Company (SWBT). SWBT is the largest local exchange carrier providing local telephone service in Kansas.
CURB’S appeal is from the final orders entered by the KCC on December 27, 1996, and February 3, 1997. KCFN’s and CMT’s appeals are from the same orders and reach, this court by transfer from Shawnee County District Court. Although initially one or more of the parties expressed concern as to this court’s jurisdiction, the issue was not briefed, and we conclude this court has jurisdiction pursuant to K.S.A. 1996 Supp. 66-118a(b).
Multiple issues are raised on appeal, but at the heart of the controversy is whether the Kansas Act and the KCC’s orders implementing that Act violate or are inconsistent with the Federal Act, We conclude the KCC’s final orders are not in compliance with the Federal Act and must be set aside.
Background of Telecommunications Regulation .
Our review begins from the period following the court-ordered divestiture of local operating companies by American Telephone and Telegraph Company (AT&T) in United States v. American Tel. and Tel Co., 552 F. Supp. 131 (D.D.C. 1982), aff’d 460 U.S. 1001, 75 L. Ed. 2d 472, 103 S. Ct. 1240 (1983).
The following information provides a history of telephone regulation in Kansas and the opposing perspectives regarding the role of the KCC. See Moline & Drexel, The TeleKansas Debate: Incentive Regulation or Deregulation?, 4 Kan. J.L. & Pub. Poly 41 (Winter 1995).
After divestiture, SWBT came before the KCC with a rate application on January 1, 1984. Under this application, the KCC approved local rates for basic telephone service that have remained unchanged up to the present time. In 1990, an alternative regulatory plan called TeleKansas was agreed upon between the KCC and SWBT. Under that plan, the KCC abandoned historic rate-based regulation in favor of price regulation. SWBT agreed not to increase basic rates and agreed to expend an additional $140 'million to modernize its infrastructure within Kansas. TeleKansas was intended to provide SWBT with price flexibility not afforded by traditional rate-based regulation. The plan was not without skeptics, who voiced concerns that SWBT’s profits would not be subject to KCC scrutiny. The KCC and SWBT agreed TeleKansas would conclude in 1995 with a review of SWBT’s earnings. Interested parties and the KCC would then assess the benefits and costs of price regulation versus traditional rate-of-retum regulation and reconsider the regulatory scheme that best promoted quality telecommunication service and a first-rate infrastructure in Kansas.
In 1993, SWBT wanted the KCC to agree to continue with price regulation after TeleKansas expired. The KCC was reluctant to do so without investigating SWBT’s earnings. After SWBT was unable to reach agreement with the KCC, it was instrumental in persuading the Kansas Legislature in 1994 to extend TeleKansas until March 1, 1997. See K.S.A. 1996 Supp. 66-1,197.
This prevented the KCC from investigating SWBT’s earnings, while continuing the caps on basic local service. Additionally, this legislation required SWBT to spend an additional $64 million on infrastructure within the state of Kansas. No rate reductions were imposed.
The 1994 legislature also adopted S. Con. Res. 1627 (L. 1994, ch. 371), which directed the KCC to proceed as follows:
“Be it further resolved: That the Corporation Commission shall upon passage of this resolution open one or more generic dockets to investigate the level of competition for each regulated or flexibly regulated telecommunications service under its jurisdiction. In addition the commission should:
(a) Periodically assess the level of competitiveness of such services and emerging services with the intent of encouraging development of effective competition for telecommunications services where feasible, including the removal of existing barriers to entry;
(b) establish a classification system for telecommunications services based on the degree of competition faced by providers of the particular service;
(c) establish standards and procedures by which the rates, terms and conditions of telecommunications services are regulated in accordance with their classification as in clause (b) above;
(d) ensure that regulated services will not subsidize competitive or unregulated services;
(e) define universal service, determine the extent to which it has been achieved in every region of the state and establish appropriate policies to insure universal service in high-cost areas of the state;
(f) define criteria for provision of “basic telephone service’ and the availability and provision of such service in a competitive environment;
(g) develop a procedure for ensuring the quality of telecommunications services; and
(h) define ‘lifeline telephone service’ and specification as to the appropriate means of funding the provision of such service.”
In compliance with the above resolution, in April 1994, the KCC established docket 190,492-U, In the Matter of a General Investigation into Competition within Telecommunications Industry in the State of Kansas. Phase I of the docket dealt with the probable direction of the industry and the role of the KCC to promote competition and insure quality service and products for the consumer at affordable and reasonable costs. An order on Phase I of the docket was issued in May 1995 that determined three major features of the current regulatory structure should be modified:
“I. Universal service mechanisms must be revised to be competitively neutral and sustainable in a more competitive environment.
“II. An alternative to traditional ratebase/rate of return regulation must be established.
“III. Existing barriers to competition must be reduced or eliminated wherever a cost effective means of doing so is available.”
On February 8, 1996, the Federal Act was signed into law. This historic legislation mandates that local telecommunications markets be opened to competition.
In April 1996, the KCC scheduled hearings for August 1996 on Phase II of docket 190,492-U, intended to result in specific orders regarding regulation of the industry. In late May 1996, the KCC revised its Phase II procedural orders to accommodate the recently enacted Federal Act and expanded the scope of the upcoming hearings to include issues of rate rebalancing, universal service funding, and intrastate access rate reductions.
On May 17, 1996, the Kansas Act was signed by Governor Graves. Unquestionably, the Kansas Act was a response to the winding down of TeleKansas and the enactment of the Federal Act. The legislation was intended to “ensure that consumers throughout the state realize the benefits of competition through increased services and improved telecommunications facilities and infrastructure at reduced rates.” K.S.A. 1996 Supp. 66-2001(b).
Issues Preserved for Appeal
Before turning to the particulars of this litigation, we first must consider the contention of the KCC and SWBT that we lack jurisdiction to consider some of the issues raised by CURB because its petition for reconsideration does not comply with the requirements of K.S.A. 1996 Supp. 66-118b and K.S.A. 1996 Supp. 77-529(a).
CURB’S petition for reconsideration of the December 27,1996, order makes several detailed challenges to the order and then briefly fists 16 supplemental issues for rehearing and reconsideration. In its February 3, 1997, order the KCC denied reconsideration of the supplemental issues on the basis that CURB had not stated the grounds upon which it requested reconsideration with sufficient specificity as required by K.S.A. 1996 Supp. 66-118b and K.S.A. 1996 Supp. 774529(a).
K.S.A. 1996 Supp. 66-118b provides that a party seeking review of a KCC order must petition for reconsideration of the order in accordance with K.S.A. 1996 Supp. 77-529. A party may not rely upon any ground in a court proceeding that was not “set forth” in the petition for reconsideration. Under K.S.A. 1996 Supp. 77-529(a), the party must file a petition for reconsideration “stating the specific grounds upon which relief is requested.”
The degree of specificity required in a petition for reconsideration is discussed in Peoples Natural Gas v. Kansas Corporation Commission, 7 Kan. App. 2d 519, Syl. ¶ 1, 644 P.2d 999, rev. denied 231 Kan. 801 (1982). The purpose of requiring matters to be raised in the petition for reconsideration is to inform the KCC and other parties where mistakes of law and fact were made in the order. 7 Kan. App. 2d at 525. The allegations of the grounds upon which the party considers the order to be unlawful or unreasonable must be sufficiently specific and direct to apprise the KCC and opposing parties of the actual points relied on. A general or mere allegation of unlawfulness or unreasonableness is insufficient to preserve an issue for judicial review. 7 Kan. App. 2d at 526.
This standard was restated in In re Application of Southwestern Bell Tel. Co., 9 Kan. App. 2d 525, Syl. ¶ 2, 685 P.2d 304, rev. denied 236 Kan. 875 (1984). The party seeking review in the Southwestern Bell case was American Telephone and Telegraph Information Systems (AT&T-IS). In its application for rehearing, AT&T-IS had contended that the KCC order contravened the Supremacy Clause of the United States Constitution because the tariff ordered effected a de facto transfer of a wire asset in violation of federal judgments which required that the wire remain an asset of Southwestern Bell. The court found that it was not necessary for AT&T-IS to further elaborate on this argument and that this reference to the Supremacy Clause was sufficient to comply with the specificity requirement. 9 Kan. App. 2d at 536. However, a separate allegation, which simply stated that the KCC order was unlawful and contrary to an order of the Federal Communications Commission (FCC), was found to be insufficiently specific to preserve the matter for judicial review because it did not “state the manner in which” the KCC order contravened the federal order. 9 Kan. App. 2d at 537. In considering other arguments made by AT&T-IS, the court ruled that mere references to violations of the Constitution did not give adequate notice of the arguments being made and were not sufficiently specific. 9 Kan. App. 2d at 537-38.
We conclude all but one of the supplemental issues were raised with sufficient specificity to meet statutory requirements. Although perhaps not a model for clarity and detailed explanation, the issues as stated by CURB are sufficiently specific to apprise the KCC and the other parties of the arguments being made and of the manner in which tie order is claimed to be erroneous or, unlawful.
The supplemental issue designated “n” in CURB’S petition for reconsideration alleges the KCC’s order “is not based on substantial competent evidence, fails to provide adequate findings and is unlawful.” This does lack necessary specificity required under K.S.A. 1996 Supp. 77-529(a).
We would further note the supplemental issue designated “e,” a claim that the KCC may not have been objective in its application of the Kansas Act, was not briefed on appeal and is accordingly . deemed waived or abandoned. See Friends University v. W. R. Grace & Co., 227 Kan. 559, 561, 608 P.2d 936 (1980).
The determination we have made leads to a new question that must be resolved. The supplemental issues properly presented in CURB’S petition were not considered on their merits by the KCC. The question arises as to whether they ought to be remanded for consideration.
Some of the claims were covered in requests for reconsideration filed by other parties and were addressed by the KCC in its order on reconsideration. The other supplemental issues either make constitutional claims or present matters requiring judicial determination. We conclude this court is the proper forum to first consider and decide those issues. See Zarda v. State, 250 Kan. 364, 367, 826 P.2d 1365, cert. denied 504 U.S. 973 (1992).
The Federal Act
The Federal Act is historic legislation intended to deregulate the telecommunications industry, open local and long distance markets to competition, and ensure universal telephone service for all citizens at affordable rates. CURB, KCFN, and CMT contend the Kansas Act and the subsequent actions taken by the KCC violate the Federal Act. It is, therefore, necessary that we consider certain key provisions of the Federal Act. We will then review the Kansas Act and the orders entered by the KCC.
Section 253 of the Federal Act prohibits a state by statute or regulation from prohibiting or unreasonably impeding the ability of any telecommunications entity from providing interstate or intrastate service. 110 Stat. 70.
We note the concept of universal service is crucial in the calculus of deregulation. As the nation moves from monopolistic regulation to market competition, the quality of telecommunication service to the consumer must be preserved at an affordable cost.
Section 254(a) provides that a Federal-State Joint Board on Universal Service is to recommend to the FCC the definition of services to be supported by federal universal support mechanisms. 110 Stat. 71.
Section 254(b) and (c) read as follows:
“(b) Universal service principles. The Joint Board and the Commission shall base policies for the preservation and advancement of universal service on the following principles:
(1) Quality and rates. Quality services should be available at just, reasonable, and affordable rates.
(2) Access to advanced services. Access to advanced telecommunications and information services should be provided in all regions of the Nation.
(3) Access in rural and high cost areas. Consumers in all regions of the Nation, including low-income consumers and those in rural, insular, and high cost areas, should have access to telecommunications and information services, including interexchange services and advanced telecommunications andinformation services, that are reasonably comparable to those services provided in urban areas and that are available at rates that are reasonably comparable to rates charged for similar services in urban areas.
(4) Equitable and nondiscriminatory contributions. All providers of telecommunications services should make an equitable and nondiscriminatory contribution to the preservation and advancement of universal service.
(5) Specific and predictable support mechanisms. There should be specific, predictable and sufficient Federal and State mechanisms to preserve and advance universal service.
(6) Access to advanced telecommunications services for schools, health care, and libraries. Elementary and secondary schools and classrooms, health care providers, and libraries should have access to advanced telecommunications services as described in subsection (h).
(7) Additional principles. Such other principles as the Joint Board and the Commission determine are necessary and appropriate for the protection of the public interest, convenience, and necessity and are consistent with this Act.
“(c) Definition.
(1) In general. — Universal service is an evolving level of telecommunications services that the Commission shall establish periodically under this section, taking into account advances in telecommunications and information technologies and services. The Joint Board in recommending, and the Commission in establishing, the definition of the services that are supported by Federal universal service support mechanisms shall consider the extent to which such telecommunications services—
(A) are essential to education, public health, or public safety;
(B) have, through the operation of market choices by customers, been subscribed to by a substantial majority of residential customers;
(C) are being deployed in public telecommunications networks by telecommunications carriers; and
(D) are consistent with the public interest, convenience, and necessity.” 110 Stat. 71-72.
Section 254(f) provides that the obligation and duty of the states shall be as follows:
“A State may adopt regulations not inconsistent with the Commission’s rules to preserve and advance universal service. Every telecommunications carrier that provides intrastate telecommunications services shall contribute, on an equitable and nondiscriminatory basis, in a manner determined by the State to the preservation and advancement of universal service in that State. A State may adopt regulations to provide for additional definitions and standards to preserve and advance universal service within that State only to the extent that such regulations adopt additional specific, predictable, and sufficient mechanisms to support such definitions or standards that do not rely on or burden Federal universal service support mechanisms.” 110 Stat. 73.
Section 254(i) explicitly mandates that “[t]he Commission and the States should ensure that universal service is available at rates that are just, reasonable, and affordable.” 110 Stat. 75.
Section 254(k) prohibits telecommunications carriers from using services that are not competitive (for example, local exchange basic service) to subsidize services that are subject to competition. It also requires states to establish “any necessary cost allocation rules, accounting safeguards, and guidelines to ensure that services included in the definition of universal service bear no more than a reasonable share of the joint and common costs of facilities used to provide those services.” 110 Stat. 75.
The Kansas Act
Public policy is set forth in K.S.A. 1996 Supp. 66-2001, which reads:
“It is hereby declared to be the public policy of this state to:
(a) Ensure that every Kansan will have access to a first class telecommunications infrastructure that provides excellent services at an affordable price;
(b) ensure that consumers throughout the state realize the benefits of competition through increased services and improved telecommunications facilities and infrastructure at reduced rates;
(c) promote consumer access to a full range of telecommunications services, including advanced telecommunications services that are comparable in urban and rural areas throughout the state;
(d) advance the development of a statewide telecommunications infrastructure that is capable of supporting applications, such as public safety, telemedicine, services for persons with special needs, distance learning, public library services, access to internet providers and others; and
(e) protect consumers of telecommunications services from fraudulent business practices and practices that are inconsistent with the public interest, convenience and necessity.”
The duties of the KCC stated in the Act include:
“(a) Adopt a definition of ‘universal service’ and ‘enhanced universal service,’ pursuant to subsections (p) and (q) of K.S.A. 1996 Supp. 66-1,187;
“(c) on or before July 1, 1996, the commission shall initiate a proceeding to adopt guidelines to ensure that all telecommunications carriers and local exchange carriers preserve and enhance universal service, protect the public safety and welfare, ensure the continued quality of telecommunications services and safeguard the rights of consumers;
“(h) on or before January 1, 1997, establish the Kansas universal service fund pursuant to K.S .A. 1996 Supp. 66-2008, hereinafter referred to as the KUSF, and make various determinations relating to the implementation of such fund.” K.S.A. 1996 Supp. 66-2002.
In K.S.A. 1996 Supp. 66-2005(b), the legislature provided that each local exchange carrier (LEC) is to file a regulatory reform plan during 1997 and may elect price cap regulation or traditional rate of return regulation.
An LEC is defined as “any telecommunications public utility or its successor providing switched telecommunications service within any local exchange service area, as approved by the commission on or before January 1, 1996.” K.S.A. 1996 Supp. 66-1,187.
K.S.A. 1996 Supp. 66-2005(u) provides: “No audit, earnings review or rate case shall be performed with reference to the initial prices filed as required herein.”
The Kansas Act mandates that, subject to KCC approval, all LECs are to reduce intrastate access and toll charges for long distance services over a 3-year period with the objective of equalizing interstate and intrastate rates in a revenue neutral manner. In addition, the Kansas Act provides:
“The commission is authorized to rebalance local residential and business service rates to offset the intrastate access and toll charge reductions. Any remaining portion of the reduction in access and toll charges not recovered through local residential and business service rates shall be paid out from the KUSF pursuant to KS.A. 1996 Supp. 66-2008.” (Emphasis added.) K.S.A. 1996 Supp. 66-2005(c).
The legislature then provided for the funding of the KUSF in K.S.A. 1996 Supp. 66-2008, which states, in material part:
“On or before January 1, 1997, the commission shall establish the Kansas universal service fund, hereinafter referred to as the KUSF.
“(a) The initial amount of the KUSF shall be comprised of local exchange carrier revenues lost as a result of rate rebalancing pursuant to subsection (c) of K.S.A. 1996 Supp. 66-2005 and subsection (a) of K.S.A. 1996 Supp. 66-2007. Such revenues shall be recovered on a revenue neutral basis. The revenue neutral calculation shall be based on the volumes and revenues for the 12 months prior to September 30, 1996, adjusted for any rate changes.
“(b) The commission shall require every telecommunications carrier, telecommunications public utility and idreless telecommunications service provider that provides intrastate telecommunications services to contribute to the KUSF on an equitable and nondiscriminatory basis. Any telecommunications carrier, telecom munications public utility or wireless telecommunications service provider which contributes to the KUSF may collect from customers an amount equal to such carriers, utility’s or provider’s contribution.” (Emphasis added.)
Only LECs that provided switched local exchange services in the state prior to January 1, 1996, are to serve as the carrier of last resort within their exchanges and shall be eligible to receive KUSF funding. K.S.A. 1996 Supp. 66-2009.
The KCC’s Final Orders
The KCC issued its final order on December 27, 1996, and its order denying reconsideration on February 3, 1997. Highly summarized, ihe orders provide, in material part:
1. Intrastate toll and access rates for long distance service will be reduced by $111.6 million over a 3-year period with the objective of equalizing interstate and intrastate rates in a “revenue neutral, specific and predictable manner.”
2. The initial amount of the KUSF shall offset revenues lost by the LECs as a result of the reduction in long distance rates.
3. Every telecommunications carrier, telecommunications public utility, and wireless telecommunications service provider shall contribute to the KUSF based upon the carrier’s share of total intrastate retail revenues.
4. “Rate rebalancing” under the Kansas Act is irrelevant since the KCC has opted to offset the rate reductions by assessments rather than rate increases.
5. Payments, to and distributions from the KUSF to the LECs may be offset to avoid unnecessaiy fund transfers.
6. Rates for pay phone calls shall be increased to $.35, and the free call allowances for directory assistance are eliminated.
Analysis
(a) KCC jurisdiction of wireless providers
CMT contends the KCC has illegally exercised jurisdiction over it in violation of K.S.A. 66-1,143(b), which provides: “[N]o radio common carrier shall be subject to the jurisdiction, regulation, supervision and control of the state corporation commission.” CMT argues that K.S.A. 1996 Supp. 66-2008(b), which requires wireless providers to contribute to the KUSF, impermissibly confers jurisdiction.
Section 254(f) of the Federal Act gives states the authority to require every telecommunications carrier that provides intrastate services to contribute to a state universal service program. 110 Stat. 73. Requiring CMT to make an equitable contribution to the KUSF is distinguishable from its regulation by the KCC. The federal district court of Kansas has concluded that this provision does not conflict with 47 U.S.C. § 332(c)(3)(A) (1994). In its ruling, the federal court stated that the KUSF.contribution imposed by the KCC was not a regulation of rates or market entry, but was simply an additional cost of doing business. Mountain Solutions v. State Corp. Com'n of Ks., 966 F. Supp. 1043, 1048 (D. Kan. 1997).
We agree with the reasoning in Mountain Solutions. The KUSF contribution cannot be characterized as an exercise of jurisdiction contrary to K.S.A. 66-1,143(b).
(b) The constitutional issues of vagueness and improper delegation of legislative authority
CURB maintains that the concept of “revenue neutrality” as used in K.S.A. 1996 Supp. 66-2005(c) and K.S.A. 1996 Supp. 66-2008(a) is unconstitutionally vague. CMT also claims the legislature’s use of the terms “revenue neutral” and “equitable and nondiscriminatory” in 66-2008 without definition or standards constitutes an improper delegation of power to the KCC. CMT further claims that the legislature has improperly delegated its taxing authority to the KCC.
Interpretation of the Kansas Act is a question of law. The constitutionality of a statute is presumed, and all doubts must be resolved in favor of its validity. Guardian Title Co. v. Bell, 248 Kan. 146, 149, 805 P.2d 33 (1991). The statute in Guardian Title applied only to title insurers and agents. The Supreme Court noted that it did not apply to the average citizen, but to a heavily regulated industry with specialized knowledge of the industry and its terms. 248 Kan. at 150, 152.
Likewise, the challenged portions of the Kansas Act do not proscribe the conduct of individual citizens or regulate the public at large. The language is directed at the KCC and its implementation of statutory mandates in the telecommunications area. The statute applies to a highly specialized, closely regulated industry.
CURB contends that “revenue neutrality” has no commonly accepted meaning and that the term is so vague and indefinite that the parties use it to support contradictory positions. We do not agree. The fact that the parties may have different opinions of what the phrase requires does not. mean the statute is unconstitutional. Cf. Boatright v. Kansas Racing Comm’n, 251 Kan. 240, 244-45, 834 P.2d 368 (1992).
CMT argues that the KUSF contribution assessed on its intrastate revenues is a tax and there is no constitutional authorization for the legislature to delegate its taxing authority to the KCC. A “tax” is a forced contribution to raise revenue for the maintenance of governmental services offered to the general public. Executive Aircraft Consulting, Inc. v. City of Newton, 252 Kan. 421, 427, 845 P.2d 57 (1993). The KUSF is not for the benefit of the general public. The monies from the KUSF are to be distributed only to certain qualifying members of the telecommunications industry. K.S.A. 1996 Supp. 66-2008(c). We conclude the KUSF assessment is not a tax.
CMT also argues that “revenue neutral” and “equitable and nondiscriminatory” are not defined in the Kansas Act, are vague, and are inadequate standards for the KCC to follow. CMT further argues that the legislature has given the KCC insufficient guidelines for rate rebalancing and for funding the KUSF and that there are inadequate standards to control the actions of the KCC.
A statute delegating legislative authority must fix reasonable and definite standards to establish the manner and exercise of the power delegated. The legislature may, however, enact statutes in broad outline and authorize an administrative agency to fill in the details. In testing a statute for adequacy of standards, the character of the administrative agency is important. What is a sufficient standard varies somewhat according to the complexity of the areas sought to be regulated. Standards may also be inferred from the statutory purpose. The trend is to require less detailed standards and guidance to administrative agencies in order to facilitate the administration of laws in areas of complex social and economic problems. Great leeway should be afforded the legislature in setting such standards. See State v. Ponce, 258 Kan. 708, 712-13, 907 P.2d 876 (1995); Guardian Title, 248 Kan. at 154.
Matters concerning public utilities have been recognized as being highly complex, and the KCC is recognized to have vast ex pertise and discretion in regulating utilities. Kansas Gas & Electric Co. v. Kansas Corporation Comm’n, 239 Kan. 483, 495, 720 P.2d 1063 (1986).
We agree with the KCC and SWBT that the term “revenue neutral” is commonly used in the regulatory arena and has a recognized meaning. Technical terms and phrases, and other words and phrases in a statute that have acquired a peculiar and appropriate meaning, are construed according to those meanings. Boatright, 251 Kan. at 245. The words “equitable and nondiscriminatory” have an understandable meaning that gives adequate direction to the KCC. It is within the expertise of the KCC to apply those standards in the decision-making process. No unlawful delegation of legislative authority has been shown.
(c) The concept of revenue neutrality and the prohibition against audits
We believe there are two basic, fatal flaws in the KCC order centering on the $111.6 million access reduction and the establishment of the KUSF that arise out of the concept of revenue neutrality in K.S.A. 1996 Supp. 66-2008(a) and K.S.A. 1996 Supp. 66-2005(c) and the prohibition against audits and earnings review in K.S.A. 1996 Supp. 66-2005(u).
The revenue neutral concept is foreign to the Federal Act and was obviously intended by the Kansas Legislature to protect revenues by incumbent LECs facing a $111.6 million loss of earnings as a result of reductions in long distance rates and toll charges. Additionally, the legislature authorized the KCC to rebalance local residential and business service rates to offset the $111.6 million reduction but, in any event, there was to be no audit, earnings review, or rate case with reference to an LEC’s initial prices filed pursuant to K.S.A. 1996 Supp. 66-2005(b). This legislation is inconsistent with the provisions of the Federal Act, specifically §§ 254(b)(4), (b)(5), (f), and (i), and prevented the KCC from performing its regulatory responsibilities in general and insuring compliance by carriers with § 254 (k) of the Federal Act.
As we have already observed, the purpose of the KUSF is to ensure that all Kansans have access to universal service at afford able rates. It is impossible for the KCC to determine an affordable rate for universal service without being -able to perform an audit or earnings review of the incumbent LECs. While it is true that basic telephone rates have not increased in Kansas since 1984, the industry has seen an incredible explosion of new technology that results in substantial economies of scale with a reduction in the per line cost for basic telephone service*
What is the cost of basic telephone service in Kansas? We have no answer from the record before us. What is the cost to provide universal service? We have no answer from the record before us. The funding level of $111.6 million for the KUSF was preordained by the Kansas Legislature once the concept of revenue neutrality and the prohibition against investigation of profits was written into the Kansas Act. Modification of local telephone rates was made highly problematical. There would have been inadequate regulatory review to determine the propriety of any rate changes. This made inevitable the KCC decision to set the funding level of the KUSF in an amount equal to the intrastate access and toll reductions.
The result is a final order that fully protects incumbent LECs by shifting lost revenues from one corporate pocket to another while requiring all other providers and consumers to bear the financial burden of “revenue neutral” regulation. The funding methodology also precludes meaningful review of whether LECs are using services that are not competitive to subsidize services that are subject to competition. Finally, the KCC order has created a $111.6 million fund that bears no rational relation to the concept of universal service and its cost.
We conclude the record on appeal does not contain substantial competent evidence to support the KCC’s actions regarding the KUSF as required under K.S.A. 77-621(c)(7). In addition, the orders were made without foundation in fact and are unreasonable, arbitraiy, and capricious, contrary to K.S.A. 77-621(c)(8).
We also note CURB’S contention that to prohibit the KCC from considering costs or earnings of the incumbent LECs impermissibly conflicts with its statutory mandate as a regulatory agency. The KCC has the obligation to ensure that telecommunications rates, charges, and tolls are just and reasonable. It has the authority to investigate whether rates or schedules are in any respect unfair, unjust, unreasonable, inefficient, unjustly discriminatory, or unduly ■ preferential. See K.S.A. 66-1,187 et seq. We agree. The statutory prohibition against audits and the concept of revenue neutrality are clearly inconsistent with the obligation of the KCC to ensure just and reasonable rates and charges for the consumers of Kansas.
(d) Compliance of KCC final orders with the Kansas Act
Because of the reasons we have concluded the KCC orders must be reversed, the various issues concerning whether its final orders are in conformity with the Kansas Act are largely rendered moot. Upon remand, the KCC must comply with the Federal Act in establishing local rates and funding of the KUSF. In this context, its order must be consistent with §§ 254(f), (i), and (k). Compliance should result in contributions to the KUSF by individual entities on an “equitable and nondiscriminatory” basis, as required under K.S.A. 1996 Supp. 66-2008(b).
CMT and KCFN maintain that KUSF contributions under the KCC orders are not made on an equitable and nondiscriminatory basis. In part, their argument is that the revenue neutral requirement in the Kansas Act gives the LECs an unfair competitive advantage. Also, an equal assessment maybe discriminatory or create a barrier to competition. These concerns have merit. As we have stated, without a thorough analysis of cost information, the equitable and nondiscriminatory standard of K.S.A. 1996 Supp. 66-2008(b) cannot be shown to have been met. We have no doubt that the KCC, upon remand, will give these issues careful consideration.
CMT has also asserted that the KCC orders have a discriminatory impact against wireless companies. It argues that the wireless companies have developed their own infrastructure to serve customers, that their situation is unlike that of any landline provider of telecommunications services, and that it is anti-competitive to force them to subsidize the incumbent LECs. The KCC noted that the wireless companies did not provide evidence at the hearing to establish a basis for treating them differently from other providers. This is correct, but we conclude the absence of evidence was due to CMT not being given proper notice of the proceedings or a reasonable opportunity to prepare for the hearings. Here again, these concerns that have been raised by CMT have merit and, upon remand, should be given a proper airing and consideration by the KCC.
(e) The allocation of costs attributable to the local loop
Another difficulty is the methodology relied upon to determine payouts from the KUSF to the LECs. Local loop cost is the cost of providing access to the telecommunications network. The loop consists of the wires that connect the customer s premises to the central office serving the customer. The same loop facilities provide all services; for example, local, interstate, and advanced services. Approximately 75% of the cost of basic residential service is the cost of the local loop. However, the amount of support to be paid LECs from the KUSF was based upon allocating 100% of the loop costs to basic local service.
Section 254(k) of the Federal Act directs the states to establish safeguards and guidelines to ensure that services related to universal service “bear no more than a reasonable share of the joint and common costs of facilities used to provide those services.” 110 Stat. 75. We believe the KCC orders unduly burden the basic local service consumer with loop costs that are attributable to other services. Upon remand, the KCC should make reasonable effort to ensure that a reasonable apportionment of the costs of the local loop are made.
(f) Notice issues
For all of the foregoing reasons stated, we conclude the KCC’s final orders establishing, implementing, and funding the KUSF must be set aside and this matter remanded to the KCC for further hearing and consideration in accordance with this opinion. Our opinion also requires that the KCC’s decision to allow an increase in pay phone and directory assistance rates must also be set aside since that decision was part and parcel of the KUSF funding decision.
Upon remand, the KCC must disregard the concept of revenue neutrality as expressed or implied in K.S.A. 1996 Supp. 66-2005(c) and K.S.A. 1996 Supp. 66-2008, as it is wholly inconsistent with the Federal Act and the public policy of Kansas as expressed in K.S.A. 1996 Supp. 66-2001. Likewise, the KCC must disregard the provision of K.S.A. 1996 Supp. 66-2005(u) that prohibits any audit or earning review. The KCC cannot meet its general regulatory responsibilities or those mandated under the Federal Act without a complete and thorough review of the earnings of the LECs.
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Rulon, J.:
This is an appeal by Cessna Aircraft Company, self-insured employer and the Workers Compensation Fund from an order entered by the Workers Compensation Board (Board). We affirm in part and dismiss in part.
Claimant Donnelda Burnside began working for Cessna Aircraft Company (Cessna) in August 1972 as a sheet metal assembler. Claimant had to work overhead and lift parts over her head that weighed well in excess of 10 pounds. Claimant testified that on April 2, 1981, she was holding a bucking bar (a big piece of heavy metal regularly used by sheet metal assemblers) while a co-employee was driving rivets, when she felt a sharp pain in her right shoulder. Claimant further testified that the bucking bar had hit her in the shoulder.
Cessna provided treatment for claimant at its medical department, and she returned to work. Claimant’s shoulder continued to worsen over the next several months, however, and every time she worked her arm would swell. Claimant testified that on June 11, 1981, Cessna took her off from working on aircraft fins where she was reaching over, and transferred her to building doors. Claimant indicated she still had to buck the rivets and that her shoulder condition worsened. The Cessna medical department referred claimant to Robert Rawcliffe, M.D., and claimant was placed on medical leave from July 6 until August 7, 1981. Claimant returned to work on August 7, 1981, with restrictions of a 35-pound lifting limit and no overhead work.
Claimant continued to work with conservative medical care until May 10, 1982, but was assigned to work which exceeded her restrictions. Claimant testified that after Cessna placed her on leave on May 10, 1982, she never went back to work. Various physicians treated claimant during the 1981-82 period, but Dr. Rawcliffe was the main doctor treating claimant. Rawcliffe was the only doctor testifying at the hearing.
On September 13,1994, claimant filed an application for hearing with the Division of Workers Compensation stating the date of her accident as April 2, 1981, and each and every working day thereafter. Claimant further alleged the accident was caused by bucking rivets and other related work activities. Cessna had prepared an employer’s report of accident on June 18,1981, but had never filed the report with the office of the Director of Workers Compensation. At the regular hearing, the parties stipulated that Cessna had never filed the accident report.
At the regular hearing on February 22, 1995, the administrative law judge (ALJ) held that “[t]he Claimant met with personal injury by accident arising out of and in the course of employment with the Respondent [Cessna] after April 2,1981, and each working day thereafter to May 10,1982.” The ALJ further found that claimant’s September 13, 1994, application for hearing was timely filed, as supported by the holding in Childress v. Childress Painting Co., 226 Kan. 251, 597 P.2d 637 (1979).
The ALJ held that claimant had demonstrated by a preponderance of the evidence that she was entitled to an award for permanent disability and found the Kansas Workers Compensation Fund (Fund) liable for 100% of the award.
The Fund appealed the award to the Board on September 21, 1995. The Board entered a decision on April 23,1996, finding the award of the ALJ should be modified. The Board also relied upon Childress in holding claimant’s application for hearing was timely filed in accordance with the requirements of K.S.A. 1980 Supp. 44-534(b). The Board reasoned that because “the parties stipulated the accident report was never filed as required by statute, the three-year period that claimant had to file her application for hearing never commenced.”
The Board further concluded the equitable doctrine of laches did not prevent claimant from recovering because the Board only reviews those questions of law and facts presented to the ALJ. The Fund did not raise laches as a defense before the ALJ. The Board found that even if it were to consider the laches argument on the merits, this would not preclude claimant’s recoveiy. The Board specifically concluded the laches defense could not be used in a workers compensation proceeding because such defense is “not contained in die Kansas Workers Compensation Act which is complete, exclusive and establishes its own procedures, rights, obligations and defenses.”
The Board found claimant sustained personal injury while working for Cessna on April 2, 1981, and also “sustained additional permanent injury due to the work she performed between April 1981 and May 10, 1982.” Furthermore, the Board held that because Cessna had “failed to prove it had knowledge before April 1981 that claimant had an impairment that constituted a handicap, the Workers Compensation Fund is not responsible for any of the benefits payable as a result of the April 2, 1981 accident.” The Workers Compensation Fund, however, was responsible for the payment of benefits resulting from the May 10, 1982, accident. In reaching its decision, the Board stated:
“Dr. Rawcliffe’s testimony is uncontroverted that claimant’s condition worsened because she continued to work and violated her work restrictions and limitations. His testimony is also uncontroverted that claimant would not have the nature of the impairment she has today but for the preexisting cervical disc disease. The evidence is clear that respondent returned claimant to work in August 1981 with knowledge of her permanent restrictions and ongoing problems. Therefore, re spondent knew claimant was impaired and that the impairment was significant enough to constitute a handicap in her obtaining or retaining employment. The evidence is also clear and uncontroverted that claimant exceeded her restrictions and she sustained additional permanent injury and worsened symptoms due to the work she performed after August 1981. Under these facts, the Workers Compensation Fund is responsible for the entirety of the Award for the second accident.”
On May 23, 1996, Cessna filed this appeal from the Board’s award of April 23, 1996. Cessna’s appeal was filed within 30 days of the Board’s order. The Fund filed a cross-appeal from the Board’s order more than 30 days after the Board entered its order.
JURISDICTION
First, we must decide if the Fund filed a timely appeal to this court from the Board’s order.
In Jones v. Continental Can Co., 260 Kan. 547, 920 P.2d 939 (1996), the Fund appealed a Board order issued on September 29, 1995. The Fund filed the appeal on November 1, 1995, and claimed the appeal was timely filed with the 3 days added for service by mail. The respondent and the insurance carrier contended the Fund’s appeal was untimely “because it was not filed within 30 days of the date of the Board’s final order as required by K.S.A. 1995 Supp. 44-556(a).” 260 Kan. at 550. The Continental Can court held the 3-day mailing rule did not apply in worker's compensation cases. Justice Larson said:
“The Workers Compensation Act provides its own time limit for appeal without reference to Chapter 60 and in preemption of K.S.A. 1995 Supp. 77-613. The statutory basis for applying the provisions of the Code of Civil Procedure to workers compensation appeals was removed by the legislature. This leads us to a strict application of th'e wording of K.S.A. 1995 Supp. 44-556(a) . . . .”
“Having gone the full circle in the wake of the many legislative changes, we are back to the clear statement and rule of Bushman Construction Co. v. Schumacher, 187 Kan. 359, 362, 356 P.2d 869 (1960), which states:
‘Our decisions are replete that the Workmen’s Compensation Act undertook to cover every phase of the right to compensation and of the procedure for obtaining it, which is substantial, complete and.exclusive, and we must look to the procedure of the act for the methods of its administration. Rules and methods provided by the code of civil procedure not included in the act itself are not available in determining rights thereunder.’
“Such a result is consistent with the rule that where a statute provides for an appeal, the appeal is govémed by that statute rather than general statutes concerning the right to an appeal. [Citation omitted.]” 260 Kan. at 557.
The Continental Can court explained that although the time limits imposed by Supreme Court rules can be waived because they are not jurisdictional,, this rule does not apply when a statute, such as the Workers Compensation Act, , imposes the time limits for filing a notice of appeal. The Continental'Can court held that the Fund had not appealed within the appropriate time limits imposed by the Workers Compensation Act. For the Fund to timely perfect its appeal from a Board’s final order, the “appeal must be filed with the Court of Appeals within 30 days of the date of the order. Three additional mailing days are not permitted.” 260 Kan. 547, Syl. ¶ 6.
Here, the Fund asserts it did not have to file a separate and distinct notice of appeal because Cessna filed a timely notice of appeal. The Fund did not file an appeal but instead filed a cross-appeal. We are convinced that because there are no special provisions in the Workers Compensation Act for cross-appeals (as in the Code of Civil Procedure), the Fund must follow the rules under K.S.A. 1996 Supp. 44-556(a) as our Supreme Court ordered in Continental Can.
The Board’s order held Cessna responsible for the benefits due claimant from the accident of April 2,1981, and the Fund responsible for the benefits for her injury sustained on May 10,1982. The Fund’s argument that Cessna’s timely appeal was sufficient for the Fund’s appeal to be timely is not persuasive considering that one of the Fund’s issues asserts that Cessna should be estopped from asserting liability against the Fund. Even if the Fund’s logic is applied, the Fund is limited to those issues raised by Cessna on appeal. Therefore, the only issue properly presented in this appeal is whether K.S.A. 44-534 and/or laches bars claimant’s claim.
The Fund further argues that it did not file its cross-appeal out of time because this court denied claimant’s motion to dismiss the Fund’s appeal. The Fund claims that the matter has been decided by this court and the doctrine of res judicata should apply. Such reasoning is misplaced. This court may have denied claimant’s motion to dismiss the Fund’s appeal, but this denial does not auto matically grant this court jurisdiction to hear the Fund’s cross-appeal. Under K.S.A. 1996 Supp. 44-556(a), “[a]ny party may appeal from a final order of the board by filing an appeal with the court of appeals within 30 days of the date of the final order.” Following the strict interpretation principles mandated by our Supreme Court in Continental Can, we conclude the Fund filed its appeal well beyond the 30-day statutorily mandated time limit. Consequently, this court lacks jurisdiction to hear the issues raised by the Fund, and such issues are dismissed.
UNTIMELINESS
Cessna claims that claimant’s action for compensation is untimely due to her failure to file a timely application for hearing under K.S.A. 44-534(b). In the alternative, Cessna argues claimant’s action is untimely under the doctrine of laches.
A. Untimeliness and KS.A. 44-534(b)
The scope of appellate review regarding workers compensation claims was discussed in Copeland v. Johnson Group, Inc., 24 Kan. App. 2d 306, 311-12, 944 P.2d 179 (1997). The Copeland court stated:
“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 undér 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).”
Although claimant’s injuries occurred in 1981 and 1982, the first order regarding those injuries was not issued until 1995. As such, our scope of appellate review follows the rules established for those cases filed on or after October 1, 1993. See K.S.A. 1996 Supp. 44-556(c); Gleason v. Samaritan Home, 260 Kan. 970, 985, 926 P.2d 1349 (1996).
Claimant contends that her application for hearing was timely, given the parties’ stipulations to the following facts:
“(1) the ‘Employer’s Report of Accident’ prepared on June 16,1981 for claimant’s injury of April 2,1981, was never filed with the Office of the Director of Workers Compensation, according to the-records of the Division of Workers Compensation and (2) according to the records of the Division of Workers Compensation, no ‘Employers Report of Accident’ was ever filed with the Office of the Director of Workers Compensation for any accidental injury alleged by claimant in this case.”
Claimant argues the application of the reasoning in Childress, 226 Kan. 251, to this case eliminates the time limit for filing the application for hearing because Cessna never filed a report of the accident. In Childress, the court interpreted K.S.A. 1978 Supp. 44-557(c). The current version of K.S.A. 44-557(c) states that “[n]o limitation of time in the workers compensation act shall begin to run unless a report of the accident as provided in this section has been filed at the office of the director if the injured employee has given notice of accident as provided by K.S.A. 44-520.” K.S.A. 44-557(c). The Childress court held that when
“an accident report is not filed by the employer within 28 days of the date of the accident or within 28 days after the employer has knowledge of the accident, then (1) the claimant must commence the proceeding before the director by serving a written claim for compensation on the employer within one year of the date of the accident, and (2) there must be on file, in the office of the director, an application for a hearing, within three years of the date on which the employer files with the director a report of the accident.” 226 Kan. at 254.
Cessna admits the Childress decision has been cited for the proposition that if an employer files an accident report late, the 3-year period does not begin to run until the employer’s accident report is filed. See Sparks v. Wichita White Truck Trailer Center, Inc., 7 Kan. App. 2d 383, 385, 642 P.2d 574 (1982). Cessna argues this case, however, is factually dissimilar from Childress and requires a different result. Cessna argues that
“[t]he record in this claim reflects that an accident report was prepared by the Registered Nurse at Cessna and dated June 16,1981. The parties have stipulated that the report is not on file at the Director’s Office. The report reflects, on its face, an error in the claimant’s Social Security Number. The passage of over 13 years from the date of the report until the claimant’s Application for Hearing have made impossible any explanation for the incorrect Social Security Number or how that error on the face of the report affected the filing in the Director’s Office.”
Cessna claims its preparation of the accident report within approximately 74 days of the original 1981 injury and the length of claimant’s unexplained delay in filing her application for hearing “should mitigate against the strict application of the Childress holding.”
Cessna’s arguments are not persuasive. The language of Childress is clear that the time limitation to file a claim does not start running until the required accident report is filed. Claimant’s incorrect social security number does not change the fact that Cessna never filed the required accident report with the Director.
Cessna argues this case is distinguishable from Childress on its facts, but aside from the claimant’s incorrect social security number, Cessna presents no other distinguishable facts in this case to show why Childress should not apply to claimant’s claim. Filing an accident report is an absolute statutory prerequisite, and Cessna admits no such report was filed. Kansas cases support strict statutory adherence to encourage employers to file the accident reports so that the Director has notice and can inform the worker of his or her rights to compensation. See Wilson v. Santa Fe Trail Transportation Co., 185 Kan. 725, 347 P.2d 235 (1959); Morgan v. Inter-Collegiate Press, 4 Kan. App. 2d 319, 322, 606 P.2d 479 (1980). Therefore, the only way to distinguish this case from Childress would be to conclude that the Childress holding was not meant to apply to a claim filed after such an egregious length of time. Statutory and case law, however, explicitly provide that the period of time within which to file a workers compensation claim is tolled until the employer files its accident report.
B. Application of the Doctrine of Laches
Distilled to its essence, Cessna claims the claimant’s application for benefits should be estopped by the doctrine of laches. However, Cessna cites no Kansas cases or statutory authority to support this argument. Furthermore, there is some question if this argument is properly before this court. Even if we assume we have jurisdiction to decide this issue, Cessna is not entitled to any relief. Under the “strict application” principles announced in Continental Can, there is no statutory authority in Kansas which would permit the doctrine of laches to time bar a claimant’s application for workers compensation benefits, because the Kansas Workers Compensation Act is complete within itself.
Affirmed in part and dismissed in part. | [
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Lively, J.:
Excel Corporation (Excel) appeals the decision of the Workers Compensation Board (Board). Excel contends the Board erred in determining the date claimant Karla Alberty’s accident occurred.
On January 20,1988, Alberty began work for Excel as a whizzard knife operator. Excel operates a beef slaughter house in Dodge City, Kansas. Alberty’s work involved the repetitive use of knives and hooks to debone and clean meat.
On October 10, 1989, Alberty experienced right shoulder pain after feeling a pop in her shoulder. On October 18, 1989, Alberty filed an accident report with Excel.
In December 1989, Alberty began experiencing pain and cramping in her hands..
On January 23, 1992, Alberty began treatment with Dr. Trotter for a long time lump on her right thumb. Trotter treated her con servatively with anti-inflammatory medication. On March, 12, 1992, Trotter felt her thumb pain had been resolved.
On March 31, 1992, Alberty returned to Dr. Trotter with complaints of pain and paresthesia in both her hands and wrists. Trotter treated Alberty for tendinitis and placed her on light duty with work restrictions against the use. of hooks, knives, and vibratory tools. Excel transferred Alberty to quality assurance in packoff. On June 4, 1992, Dr. Trotter further restricted Alberty regarding use of her right arm.
On October 20,1992, Dr. Trotter referred Alberty to Dr. Garcia, an orthopedic specialist. Garcia diagnosed Alberty with carpal tunnel syndrome and recommended bilateral carpal tunnel release surgery by Dr. Amawi. Alberty did not have surgery.
On January 4,1993, Alberty began treatment with Dr. Melhom, an orthopedist specializing in hand, wrist, and arm problems. Melhom performed various tests and implemented a conservative course of treatment for Alberty. He injected her right shoulder with steroids and continued her work restrictions of no hooks or knives.
On March 3, 1993, Alberty filed an application for hearing with the Workers Compensation Division. She alleged that in January 1992, and every working day thereafter through the present, she suffered injuries to both shoulders, arms, elbows, wrists, and hands.
Alberty began maternity leave in the summer of 1993. During leave, she continued to have some numbness in both hands. When Alberty returned to work from maternity leave, she was placed back on light duty status.
On November 16, 1993, Dr. Melhom released Alberty because she was at maximum medical improvement. On November 19,
1993, Alberty returned to her position in the quality assurance department.
On February 1, 1994, Alberty returned to Dr. Melhom for a physical impairment rating. Melhom noted that Alberty “has been doing her regular work activities defined as regular work, repetitive tasks 6 [hours] per 8 [hour workday], no hooks, knives, Or scissors and is doing quite well. In fact, she is in the Quality Assurance Department right now, and she has task rotation as part of her work environment.” Again, Dr. Melhom approved the work Alberty was performing. On February 2, 1994, Alberty was again placed on light duty through February 19, 1994. Since approximately January 1992, Alberty has continued to work every working day, except during her maternity leave, through the present.
The case was submitted on stipulated evidence to the administrative law judge (ALJ). The parties agreed that Alberty’s permanent partial general disability was 8.5 percent. The issues before the ALJ were the date of the accident and the Workers Compensation Fund liability. Fund liability is not an issue in this appeal.
The ALJ analyzed the case under Condon v. Boeing Co., 21 Kan. App. 2d 580, 903 P.2d 775 (1995), determined that Dr. Trotter put Alberty on work restrictions on January 23, 1992, and found that this was the date of Alberty’s accident.
Based on a January 23,1992, date of accident, the ALJ awarded Alberty compensation under the 1987 Workers Compensation Act. She was awarded compensation for permanent partial disability of $24.49 per week for 213 weeks and compensation for permanent partial general disability of $24.49 for 202 weeks. The total award was $10,163.35.
The Board disagreed with the ALJ and held that February 19, 1994, the last day Alberty worked on light duty before accepting a permanent accommodated position in packoff, was the date of accident. Based on a date of accident of February 19,1994, the Board awarded Alberty compensation under the 1993 amendments to the Workers Compensation Act. She was awarded $288.08 per week for 35.28 weeks of permanent partial disability, for a total award of $10,163.46.
What is the date of accident for injuries resulting in upper extremity tendinitis and bilateral carpal tunnel syndrome when the claimant continues to work for the respondent in an accommodated position?
The parties dispute the appropriate standard of review. Alberty states that if the Board’s finding of February 19, 1994, as the date of accident is supported by substantial competent evidence, viewed in a light most favorable to the prevailing party, this court must affirm. Excel argues that the Board applied the wrong legal test to the question of the date of accident; therefore, this court’s standard of review is de novo.
The 1993 workers compensation amendments limited review of all orders issued after October 1, 1993, 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. Berry v. Boeing Military Airplanes, 20 Kan. App. 2d 220, 223, 885 P.2d 1261 (1994).
“In workers compensation cases, the law in effect at the time of the injury governs the rights and obligations of the parties.” Osborn v. Electric Corp. of Kansas City, 23 Kan. App. 2d 868, Syl. ¶ 8, 936 P.2d 297, rev. denied 262 Kan. 962 (1997).
The date of accident is important in this case because if Alberty’s date of accident is deemed to be prior to July 1, 1993, as the ALJ found, Alberty’s award will be paid out at a rate proportional to her impairment, 8.5 percent, over the remaining portion of the 415-week statutory period. See K.S.A. 1992 Supp. 44-510e(a). If, however, the date of accident is determined to be after July 1,1993, Alberty’s award will be paid out at the maximum weekly rate for a shorter period of time. See K.S.A. 44-510e(a). The total amount of the award will not be affected.
In Berry, this court held that the last date the claimant worked before the claimant’s condition necessitated withdrawal from work was the date of accident in carpal tunnel cases:
“The date of ‘occurrence’ of [carpal tunnel syndrome] is also the last day of work. This is the date on which claimant’s condition became so painful and debilitating that he could no longer perform his job functions. This was the date, in fact, on which he became ‘disabled’ as a result of carpal tunnel syndrome. The selection of the last day of work as the date of occurrence or date of accident satisfies the philosophy of the Workers Compensation Act and does not offend a logical approach to the issue.” 20 Kan. App. 2d at 229.
The Berry court considered and rejected the date “diagnosed” or the date the condition “manifested itself” as the date of occurrence in carpal tunnel cases because, considering the statute of limitations, those dates might prejudice a worker who, despite pain and discomfort, continued to work long after his or her carpal tun nel was diagnosed. 20 Kan. App. 2d at 228. The court stated that finding the last day of work to be the date of injury in carpal tunnel cases simplifies the process and offers the least potential prejudice to future claimants. 20 Kan. App. 2d at 230.
In Condon, 21 Kan. App. 2d 580, this court considered a repetitive trauma case where the claimant’s condition did not require him to leave his job. In Condon, the claimant no longer worked for the respondent, but she had been subject to a general layoff that had nothing to do with her medical condition. This court held that when a worker suffering from micro-trauma work injuries is laid off in a general layoff and not because of a medical condition, the date of injury is the date the claimant’s physician ordered work restrictions. Any work subsequent to that date would not have significantly contributed to claimant’s condition. 21 Kan. App. 2d at 588.
The facts in the instant case are similar to the facts in Condon in that Alberty’s carpal tunnel syndrome has not necessitated that she leave her employment with Excel.
The ALJ applied the reasoning articulated in Condon and found that “the date at which point the work subsequent to that date would not have significantly contributed to the claimant’s condition is January 23, 1992. This is the date the claimant was examined by Dr. Trotter and placed on restrictions.” Findings in a workers compensation case that are supported by substantial competent evidence will be upheld. Substantial evidence in workers compensation cases 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. Condon, 21 Kan. App. 2d at 587-88. There is not substantial competent evidence to support January 23,1992, as the date the doctor first put Alberty on work restrictions. Dr. Trotter’s notes are very clear that he put Alberty on work restrictions for the first time on March 31, 1992. There are no employment records in the file to dispute that date.
On appeal, the Board rejected January 23, 1992, as the date of accident because there was evidence that Alberty sustained injury to her upper extremities after that date. The Board noted that on November 27, 1992, Excel wrote Dr. Melhom, indicating that Alberty s symptoms continued to worsen despite her transfer from a whizzard knife operator to a quality assurance position in packoff. The Board held that February 19, 1994, the last day of work on light duty before Alberty accepted a permanent accommodated position in packoff, was the date of accident. This finding is inconsistent with Condon.
Alberty was. first given work restrictions on March 31, 1992, when Dr. Trotter limited her to no work with hooks, knives, and vibratory tools. Under Condon, the date of accident in a repetitive trauma case is the last day of work before work restrictions are implemented. Therefore, this court finds that March 31, 1992, is the date of Alberty s accident.
It should be noted, however, that if Alberty’s medical condition had caused her to quit working, the Berry holding would have been applicable, and the date of her accident would have been her last day of work.
The order of the Workers Compensation Board is reversed and remanded with instructions to enter an award consistent with that of the ALJ pursuant to K.S.A. 1992 Supp. 44-510e(a).
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Royse, J.:
Thad U. Zorn appeals from the district court’s order upholding suspension of his driver’s license.
The parties have stipulated to the underlying facts: Zorn was arrested in Emporia, Kansas, on April 30, 1995, and charged with following too closely and driving while under the influence of intoxicating liquor or drugs. Sergeant Mark Locke administered a breath alcohol test which showed that Zorn had a breath alcohol concentration of .15. Zorn subsequently requested an administrative hearing pursuant to K.S.A. 1996 Supp. 8-1002.
The administrative hearing was conducted on August 1, 1995. The arresting officer and Sergeant Locke both testified at the hearing. At the hearing, Zorn objected that there was no proof that the officer or the testing machine were certified as of April 30, 1995. Because the hearing officer had brought the wrong file to the hearing, she did not have with her the affidavit prepared by the Kansas Department of Health and Environment (KDHE) showing certification of the officer and the testing device.
At the close of the evidence, Zorn requested a dismissal of the suspension order because there was no evidence admitted to show that the machine and the officer were certified when his breath test was administered. The hearing officer stated she would take the case under advisement. She further stated that she would check her file when she returned to Topeka and, if the file contained the KDHE affidavit of certifications, she would suspend Zorn’s driving privileges. On August 2, 1995, she issued an order suspending Zorn’s driving privileges.
Zorn sought judicial review of the suspension order. The district court affirmed the suspension, after reviewing the parties’ Agreed Statement of Facts. The KDHE affidavit certifying the officer and the testing equipment as of April 30, 1995, was attached as an exhibit to the parties’ Agreed Statement of Facts.
On appeal, Zorn argues that the hearing officer exceeded the scope of her authority by taking the case under advisement and by considering the KDHE affidavit which had not been admitted during the hearing. Zorn further argues that the district court erred by ignoring the error committed by the hearing officer and by considering the KDHE affidavit. Because we consider the second issue to be dispositive of this appeal, we will address it first.
The Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq., applies when a licensee seeks review of the administrative order suspending his license by filing a petition for review. Angle v. Kansas Dept. of Revenue, 12 Kan. App. 2d 756, Syl. ¶ 1, 758 P.2d 226, rev. denied 243 Kan. 777 (1988). K.S.A. 1996 Supp. 77-618 provides that judicial review of an agency action shall generally be confined to the agency record. There is an exception to this general rule, however, for review of driver’s license suspensions.
“Judicial review of disputed issues of fact shall be confined to the agency record for judicial review as supplemented by additional evidence taken pursuant to this act, except that review of:
(c) orders of the division of vehicles, other than orders under K.S.A. 8-254 and amendments thereto, which deny, cancel, suspend or revoke a driver’s license shall be in accordance with K.S.A. 8-259 and amendments thereto.” K.S.A. 1996 Supp. 77-618.
K.S.A. 1996 Supp. 8-259(a), moreover, provides:
“The action for review shall be by trial de novo to the court. The court shall take testimony, examine the facts of the case and determine whether the petitioner is entitled to driving privileges or whether the petitioner’s driving privileges are subject to suspension, cancellation or revocation under the provisions of this act.”
These statutes are clear and unequivocal. They clearly provide that judicial review of an order suspending a driver’s license is not confined to the agency record.
This conclusion is further supported by the statutory provisions regarding the affidavit from KDHE. K.S.A. 1996 Supp. 8-1002(i) provides:
“At a hearing pursuant to this section, or upon court review of an order entered at such a hearing, an affidavit of the custodian of records at the Kansas department of health and environment stating that the breath testing device was certified and the operator of such device was certified on the date of the test shall be admissible into evidence in the same manner and with the same force and effect as if the certifying officer or employee of the Kansas department of health and environment had testified in person. Such affidavit shall be admitted to prove such reliability without further foundation requirement.” (Emphasis added.)
Zorn relies on Zurawski v. Kansas Dept. of Revenue, 18 Kan. App. 2d 325, Syl. ¶ 4, 851 P.2d 1385, rev. denied 253 Kan. 864 (1993), which held that the district court’s de novo review in a driver’s license suspension case is limited to those issues raised at the administrative hearing. In particular, Zurawski held that any objection to evidence submitted at the administrative hearing must be raised during the administrative hearing. While Zurawski held that new issues may not be raised during district court review of a driver’s license suspension, that decision did not purport to construe 77-618 or 8-259.
Zorn contends the district court violated the principles set forth in Zurawski by considering the KDHE affidavit as substantive evidence and by failing to address whether the hearing officer erred by considering the affidavit when it was not available at the administrative hearing. One problem with this contention is that there is nothing in the record to indicate that the parties submitted the KDHE affidavit to the district court only for limited purposes. The parties’ Agreed Statement of Facts simply refers to the attached KDHE affidavit of certifications. Second, as the district court noted, Zorn has never raised any substantive objection to the affidavit. Third, it is clear that certification was an issue in the administrative hearing. The district court, therefore, acted consistent with the rule of Zurawski in making a de novo review of the certification issue. Finally, Zorn’s contention overlooks the statutory provisions discussed above, which make clear that the district court is not limited to the evidentiary record created during the administrative hearing.
Zorn’s implication that the district court must conduct a de novo review of the license suspension order on the basis of the administrative hearing record is not only inconsistent with the statutory provisions, but it is also impractical. The “record” from such administrative hearings is sketchy at best, consisting of whatever notes the hearing officer took during the hearing. See Furthmyer v. Kansas Dept. of Revenue, 256 Kan. 825, 828, 888 P.2d 832 (1995). The hearing officer maintains no audio recording of the evidence presented, and there is no transcript of the hearing. The legislature has elected not to require the Department of Revenue to maintain an official record such as is provided for in K.S.A. 77-532. In light of these practical concerns, it is not surprising that driver’s license suspension cases often refer to the fact that the district court, rather than relying on some agency record, heard testimony and/or took additional evidence. See, e.g., Vandever v. Kansas Dept. of Revenue, 243 Kan. 693, 694, 763 P.2d 317 (1988); Lira v. Billings, 196 Kan. 726, 731, 414 P.2d 13 (1966); Zurawski, 18 Kan. App. 2d at 326, 330; Angle, 12 Kan. App. 2d at 758.
For all these reasons, we conclude that the district court did nor err in considering the KDHE affidavit, even though that affidavit was not admitted during the administrative hearing. In light of this conclusion, we need not examine Zorn’s claim that the administrative hearing officer exceeded the scope of her authority by considering an affidavit which was not admitted during the administrative hearing.
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|
Green, J.:
This is an appeal by Nikki L. Lafoe from jury convictions of two counts of aggravated battery and one count each of DUI and failure to maintain a single lane. In pretrial and post-trial motions, Lafoe contended that he should have been charged with simple battery instead of aggravated battery. Lafoe also argued that his DUI and traffic convictions were mtiltiplicitous with his convictions for aggravated battery. On appeal, Lafoe repeats these arguments. He further argues that the trial court committed reversible error in overruling his objections to the closing remarks of the prosecutor. We disagree and affirm.
After working a double shift, Lafoe played poker and drank several beers. While driving home, Lafoe crossed the center line and collided with an oncoming car. It is undisputed that the occupants of the car, Robert and Joan Wame, suffered severe and multiple injuries. Although Lafoe refused a sheriff officer’s request to take a blood test, blood drawn for medical reasons revealed that his blood alcohol level was .172.
A jury convicted Lafoe of one count of aggravated battery in violation of K.S.A. 21-3414(a)(2)(A), a level 5 person felony; one count of aggravated battery in violation of K.S.A. 21~3414(a)(2)(B), a level 8 person felony; one count of operating a vehicle with a blood alcohol level above .08, a class B misdemeanor; and one count of failure to maintain a single lane. Lafoe received concurrent sentences of 41 months for the level 5 aggravated battery, 10 months for the level 8 aggravated battery, 6 months for the DUI, and was fined $25 for failing to maintain a single lane.
In pretrial and post-trial motions, Lafoe unsuccessfully argued that he was improperly charged with aggravated battery. He contended that the proper charge for his offense was simple or misdemeanor battery. Lafoe reasoned that when the legislature repealed the vehicular battery statute, the legislature contemplated that the former crime of vehicular battery would now be classified as simple or misdemeanor battery. Nevertheless, finding that K.S.A. 21-3412 and K.S.A. 21-3414 were clear and unambiguous, the trial court denied each motion. Whether the trial court erred in denying Lafoe’s motions on this ground raises a question of statutory interpretation. Interpretation of a statute is a question of law over which this court has unlimited review. See State v. Arculeo, 261 Kan. 286, 290, 933 P.2d 122 (1997).
Lafoe frames the issue as.follows: “The question is whether the legislature intended that this crime [vehicular battery] remain a misdemeanor, under K.S.A. 21-3412, or elevate it to a level five person felony, K.S.A. 21-3414, with the same penalties that would be imposed if the victim died, involuntary manslaughter, K.S.A. 21-3404.” Lafoe argues that the legislature intended that his acts be treated as a battery, not an aggravated battery, and that the legislature did not intend that he should receive the same punishment for a reckless act resulting in great bodily harm as he would for a reckless act resulting in death.
In support of this argument, Lafoe quotes comments from two sources. First, Lafoe quotes a passage from the Summary of Legislation, p. 126 (June 1992), which states:
“The crimes of battery and aggravated battery are expanded to include reckless acts. Previously, reckless acts causing bodily harm or great bodily harm were not adequately covered by law, e.g., drive by shootings into a house. Vehicular battery, under K.S.A. 21-340SÍ, is repealed under the rationale that this criminal act is covered under the revised battery statute under KS.A. 21-3412." (Emphasis added.)
Second, Lafoe quotes a Judicial Council comment on the aggravated battery statute, which was drafted by law professor Emil Tonkovich and summarized in his article, The Kansas Criminal Code: 1992 Amendments, 41 Kan. L. Rev., Crim. Proc. Ed. 73, 84 (1993). The comment and article state that a reduced penalty for a reckless aggravated battery is provided to avoid a reckless act resulting in great bodily harm carrying a higher penalty than a reckless act resulting in death (involuntary manslaughter).
We disagree with Lafoe’s interpretation of the battery statute. Moreover, before we can undertake the task of construing and interpreting an ambiguous statute, we must first find that the statute is ambiguous and, thus, justify the construction and interpretation of the statute. As it was so clearly stated in Brown v. U.S.D. No. 333, 261 Kan. 134, 142, 928 P.2d 57 (1996):
“The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted. Stated another way, ‘[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.’ [Citation omitted.] The court will not read into a statute that which the legislature has plainly excluded. [Citation omitted.]” (Emphasis added.)
In the instant case, the statutory language is clear and unambiguous. Simple or misdemeanor “[bjattery is: (a) Intentionally or recklessly causing bodily harm to another person; or (b) intentionally causing physical contact with another person when done in a rude, insulting or angry manner.” K.S.A. 21-3412. In comparing the elements of misdemeanor battery and aggravated batteiy, this court determines that the legislature intended to distinguish between misdemeanor and aggravated battery based on the use of a weapon or the level of harm inflicted. For example, if the reckless conduct results in great bodily harm, the offender can be prosecuted under K.S.A. 21-3414(a)(2)(A). However, if the reckless conduct results in bodily harm with a deadly weapon, the offender can be prosecuted under K.S.A. 21-3414(a)(2)(B). Here, the jury made this exact distinction, determining that Lafoe recklessly caused Robert Wame great bodily harm, a severity level 5 offense; but that he recklessly caused Joan Wame bodily harm with a deadly weapon in a manner whereby great bodily harm, disfigurement, or death could have been inflicted, a severity level 8 offense.
Finally, the legislature intended that a reckless act causing great bodily harm carry the same punishment as a reckless act causing death. This conclusion is supported by the Judicial Council comment stating that the punishment for a reckless aggravated battery is reduced from a level 4 to avoid a reckless act resulting in great bodily harm carrying a higher penalty than a reckless act resulting in death. 41 Kan. L. Rev., Crim. Proc. Ed. at 84. Because Lafoe’s construction of the statute would lead to confusion and injustice, Lafoe’s argument fails.
Next, Lafoe argues that his convictions for operating a vehicle with a blood alcohol level over .08 and aggravated battery are multiplicitous. Our standard of review on questions of multiplicity is plenary. State v. Perry, 16 Kan. App. 2d 150, 151, 823 P.2d 804 (1991).
“The Supreme Court has stated that multiplicity is ‘the charging of a single offense in several counts of a complaint or information.’ [Citation omitted.] The primary concern with multiplicity is that it creates the potential for multiple punishments for a single offense, which is prohibited by the double jeopardy clause of the Fifth Amendment of the United States Constitution and section 10 of the Kansas Constitution Bill of Rights. [Citations omitted.]” State v. Eastridge, 20 Kan. App. 2d 973, 975, 894 P.2d 243 (1995).
“The traditional test of whether charged offenses are multiplicitous is whether each charge requires proof of a fact not required in proving the other.” 20 Kan. App. 2d at 975. “Multiplicity does not depend on whether the facts proved at trial are actually used to support the convictions of both offenses; rather, multiplicity turns on whether the necessary elements of proof of the one crime are included in the other.” State v. Mason, 250 Kan. 393, Syl. ¶ 3, 827 P.2d 748 (1992); see State v. Utterback, 256 Kan. 340, 342, 886 P.2d 808 (1994).
The jury was instructed that “[r]eckless conduct is conduct done under circumstances that show a realization of the imminence of danger to the person of another and a conscious and unjustifiable disregard of drat danger.” Lafoe reasons that because he was charged with aggravated battery based upon reckless conduct, “it was necessary for the state to prove the DUI in order to establish the element of reckless conduct necessary for the aggravated battery charges, thus, the DUI conviction is multiplicitous with the aggravated battery charges.”
Lafoe was charged with two counts of aggravated battery. In each, the jury was instructed that it could find that Lafoe recklessly caused the Wames great bodily harm or that Lafoe caused the Wames bodily harm with a deadly weapon. As to the DUI charge, the jury was instructed that the State had to prove that Lafoe drove or attempted to drive, and that while driving he had a blood alcohol concentration of .08 or more. Applying the Mason analysis, the State was not required to prove Lafoe’s blood alcohol level to demonstrate reckless conduct. The jury could have found that Lafoe was reckless in working a double shift, staying up to play poker, consuming several beers, and then attempting to drive. Therefore, the State was not required to prove Lafoe’s blood alcohol level, or even that he was intoxicated, to prove that he was reckless. Because Lafoe'confuses what the State may prove with what the State must prove, Lafoe’s argument fails.
Lafoe’s final claim of error is that the trial court erred in overruling his objections to prosecution comments during closing argument. He argues that the prosecutor improperly appealed to the jury’s personal interests and commented upon facts not in evidence. Lafoe directs this court to the following portions of the State’s closing argument:
"[PROSECUTOR:] This is not an accident. It’s a collision. Even Mr. Wame, when he was testifying, referred to it as an accident. We have all been taught from the time we were hide, oh, did you hear about the accident down the road where two cars ran into each other? Did you hear about the man in the accident where the man drove his car into his ex-wife’s car and killed her? That’s not an accident. It’s a homicide. We’ve got to change our thinking in these kind of cases. This is a collision; it’s not an accident.
"[DEFENSE COUNSEL]: Your Honor, I’m going to object to the characterization of ‘our thinking’ that coincides on a personal belief with the belief of the community, and that’s objectionable under State versus Jordan.
“THE COURT: Thank you. Overruled.
“[PROSECUTOR:] Number six, ladies and gentlemen, the time of day; let’s look at that. It’s a Sunday morning and it’s 10:30. People are on their way with their families to church. The roads have all kinds of cars.
“[DEFENSE COUNSEL]: Objection, Your Honor, as to other people on their way to church. That’s not a fact in this case.
“THE COURT: Overruled.
“[PROSECUTOR]: Your Honor, Sunday morning, 10:30, logical inference.
“It’s not 2:30 in the morning after the bars have closed, ladies and gentlemen, when the roads are empty. It is 10:30 on a Sunday morning. Reckless conduct.”
Lafoe argues that because the trial court overruled his objections, he suffered prejudice and was denied a fair trial. The State counters that the comments were reasonably related to the evidence or reasonably inferred from the evidence. The State further argues that even if this court finds that the comments were improper, any error was harmless.
Quoting from State v. Green, 254 Kan. 669, 684, 867 P.2d 366 (1994), our Supreme Court in State v. Hays, 256 Kan. 48, 68, 883 P.2d 1093 (1994), stated:
“ ‘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. [Citation omitted.]’ ”
Under the facts of this case, the prosecutor’s comments do not meet Greens gross and flagrant standard. Thus, the trial court’s failure to sustain the objection does not constitute reversible error.
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Lewis, J.:
Plaintiff Lawrence R. Bold maintained that defendant Larry S. Spitcaufsky was guilty of breach of a fiduciary duty and that the breach of that duty damaged plaintiff in excess of $50,000. The trial court granted summary judgment in favor of defendant, and plaintiff appeals.
Plaintiff and defendant were, the owners of stock in a closed corporation known as Rosedale Bancshares, Inc., which we shall refer to as Rosedale. Plaintiff was a minority shareholder, and defendant was the majority shareholder in Rosedale.
There came a time where it was proposed that the corporation would borrow money from the stockholders and issue to the lender “convertible” promissory notes. These notes were on the one hand simply obligations of the corporation which would be repaid in dollars over a certain period of time at a specified interest rate. However, at the option of the holder, the notes could also be repaid by converting them into shares of stock of the corporation at a prearranged price.
The problems between plaintiff and defendant were exacerbated by the fact that a third party was interested in buying the bank owned by Rosedale for a price considerably in excess of 1.3 times book value. Under the convertible notes, defendant was in a position to convert the notes into Rosedale stock at a designated price of 1.3 times book value. The profit factor in this conversion is obvious. When defendant converted the notes into Rosedale stock, he not only stood to make a substantial profit, but he also diluted plaintiff’s ownership interest.
Although the corporation appears to have issued at least seven different convertible notes between February 25, 1991, and October 18, 1993, plaintiff’s lawsuit involved only one of those notes. The petition alleges, in pertinent part:
“16. In May 1995, Defendant purported to convert the ‘convertible note’ date[d] October 18,1993 into 18,913 shares of Rosedale stock at $8.46 per share.
“17. Defendant’s conversion of said ‘convertible note’ dated October 18,1993, was a breach of fiduciary duties to Plaintiff as a minority shareholder.
“18. As a direct result of Defendant’s breach of fiduciary duties as described in ¶ 17, Plaintiff suffered damages.”
Thus, it is clear that this action is based on one convertible note issued for $160,000 which was, in fact, converted in May 1995. Plaintiff will be limited to whatever damages, if any, the conversion of this note caused to him. The other notes issued, whether converted or not, are basically irrelevant to this action and, in all probability, plaintiff will be unable to file any sort of action based on any notes other than the note involved in this litigation.
The plaintiff’s petition alleges that defendant’s breach of fiduciary duty occurred when he converted the note in question in May 1995. However, the trial court focused on other events. Defendant argued that if there was a breach of fiduciary duty, it occurred when the shareholders and the board of directors authorized the issuance of the convertible note in question.
The trial court accepted the position of defendant in granting the motion for summary judgment.
The question in this case involves the statute of limitations and, for that reason, the dates on which certain events took place are most important. The note on which plaintiff bases his lawsuit was authorized by the shareholders of Rosedale at a meeting held on September 19, 1993. The board of directors of Rosedale voted to issue the convertible notes to defendant on September 22, 1993. Defendant acquired a $160,000 convertible note on October 18, 1993. Defendant converted the note in question into Rosedale stock on May 8, 1995. This lawsuit was fled on September 26, 1995.
Based on the facts and the dates set forth above, the trial court granted summary judgment to defendant because it found that the 2-year statute of limitations under K.S.A. 60-513(a)(4) had expired. The trial court concluded that the breach of fiduciary duty by defendant occurred, if it occurred at all, at the time of the stockholders’ and board of directors’ meeting in September 1993. Plaintiff’s lawsuit was not filed within 2 years of either of those events.
Plaintiff appeals from the decision of the trial court.
STANDARD OF REVIEW . .
In this case, the trial court granted defendant’s motion for summary judgment on the grounds that his cause of action was barred by the statute of limitations. “Summary judgment is proper where the only question or questions presented are questions of law.” Fletcher v. Nelson, 253 Kan. 389, 391, 855 P.2d 940 (1993). This court’s standard of review 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).
IS PLAINTIFF’S CAUSE OF ACTION BARRED BY THE STATUTE OF LIMITATIONS?
There appears to be no disagreement among the parties as to the dates recited above. The question is whether plaintiff’s cause of action was barred by the statute of limitations. We conclude that it was not, and we reverse the decision of the trial court.
We begin by observing that it is often difficult in this state to determine when a statute óf limitations begins to run and when an action is time barred. There have been a number of somewhat contradicting and confusing appellate opinions on the subject in the last few years. We approach the issue with some trepidation. Nevertheless, this is a task which must be undertaken and a problem which must be solved, and we do not shrink from it.
K.S.A. 60-5l3(a)(4) requires that actions for breach of fiduciary duty be brought within 2 years'. Boyle v. Harries, 22 Kan. App. 2d 686, Syl. ¶ 7, 923 P.2d 504 (1996). “Kansas has always imposed a very strict fiduciary duty on officers and directors of a corporation to act in the best interest of the corporation and its stockholders.” Newton v. Homblower, Inc., 224 Kan. 506, 514, 582 P.2d 1136 (1978). Despite all of the above, it is sometimes difficult to determine when a cause of action “accrues.” The fact is, the breach of duty which underlies the claim may have taken place sometime prior to the actual accrual of the cause of action and the starting of the statute of limitations.
Accrual of a cause of action is a term of art and is explained by K.S.A. 60-513(b), which provides, in relevant part:
“[T]he causes of action listed in subsection (a) shall not be deemed to have accrued until'the act giving rise to the cause of action first causes substantial injury, or, if the fact of injury is not reasonably ascertainable until some time after the initial act, then the period of limitation shall not commence until the fact of injury becomes reasonably ascertainable to the injured party, but in no event shall an action be commenced more than 10 years beyond the time of the act giving rise to the cause of action.” (Emphasis added.)
In this case, the trial court granted summary judgment to defendant and explained itself as follows:
“The Court is inclined to and will sustain the motion to dismiss. Let me give you an idea as to my reasoning, counsel. It appears to me that the breach of fiduciary duiy by Mr. Spiteaufsky occurred in September of 1993. And while I might have disagreement with the ruling in the Cornett v. Roth case, I’m obligated to follow that decision.
“And in that case Justice Holmes wrote that ‘Assuming a fiduciary duty or a contractual duty existed, any alleged breach of that duty was clearly ascertainable at the time the agreements were entered into.’
“Now I think the situation is identical in this case in that assuming that a fiduciary contractual duty existed, and I think that that contractual or fiduciary duty is borne out by the record in the case at bar, then any breach of that duty was clearly ascertainable in September of 1993. The record is clear that Mr. Bold, in fact, objected to the action taken by Mr. Spiteaufsky at that meeting in September of 1993.
“I adopt, as the uncontroverted facts, the statement of uncontroverted facts No. 1 through 7 in the defendant’s brief as my findings of fact and find and determine that the motion to dismiss should be sustained and that the cause of action of plaintiff is, in fact, barred by the statute of limitations. Having determined that the claim is barred by the statute of limitations, it’s unnecessary to reach the other two grounds, and I decline to do so.”
As we view the problem, it is not fatal to plaintiff’s lawsuit that the breach of duty occurred in September 1993. We say this because we have concluded that even if the breach of the fiduciary obligation occurred in September 1993, plaintiff’s cause of action for damages did not “accrue” at that time. We conclude that plaintiff was not damaged in any substantial fashion by the breach in 1993 and did not, in fact, suffer substantial damage until the note was converted in May 1995.
In this opinion, we will assume that the breach of fiduciary obligation occurred in September 1993. It is obvious that plaintiff knew, or should have known, that the breach of duty had taken place. However, that knowledge alone does not mean that the cause of action for breaching that duty accrued on the date of the breach. K.S.A. 60-513(b) provides that a cause of action does not accrue “until the act giving rise to the cause of action first causes substantial injury.” (Emphasis added.) It is the question of when injury first occurred on which we must focus.
In this case, the claimed act causing injury is the breach of a fiduciary obligation. The claimed injury was the conversion of a note, acquired in October 1993, into Rosedale stock in May 1995. Whatever defendant may have done prior to May 1995 caused no injury to plaintiff. Plaintiff’s damages were caused by the conversion of the note in May 1995. This action was filed within 2 years of the date the breach of fiduciary obligation first caused substantial injury.
When the note was approved and issued in September 1993, plaintiff suffered no damage. The shareholder of a corporation, even a closed corporation, does not suffer damages when his or her corporation properly borrows money and issues a note. The fact is that unless and until that note was converted, it was nothing more than a debt of the corporation to be repaid in dollars according to its terms. Until the note was converted, it could not and it did not cause plaintiff to suffer any substantial damage. On the date it was approved and issued, any damages plaintiff might suffer in the future were purely speculative and dependent on whether the note would be converted into corporate stock. Plaintiff’s damages occurred when the note was converted into stock. This diluted plaintiff’s ownership in the corporation and reduced the value of his stock.
The trial court relied on the decision in Cornett v. Roth, 233 Kan. 936, 666 P.2d 1182 (1983), in making its decision. We do not consider Roth to be controlling or even particularly relevant to the issues presented in this case. Roth did not discuss, nor did it involve, an issue under K.S.A. 60-513(b). In Roth, there was apparently no question as to when substantial injury first occurred.
In Roth, the Supreme Court affirmed the trial court’s decision that the plaintiff’s action was barred by the statute of limitations. The issues were framed around the question of when the breach of fiduciary duty occurred. There was no issue on the question of when the act giving rise to the cause of action first caused substantial injury.
In addition, the plaintiffs in Roth were damaged immediately upon the signing of the agreement. The claim of damages was that the defendant had violated his fiduciary duty by preparing an agreement that called for inadequate payments which were unsecured. There were no contingencies involved; the payments began immediately, and plaintiff suffered immediate damage.
In Roth, the court dealt with a situation in which substantial injury was caused at the same time the breach of duty took place. This is not always true, as 60-513(b) demonstrates. There are and can be occasions when a duty is breached but causes no damage. In those cases, the cause of action does not accrue until the breach first causes substantial injury. A cause of action cannot be sustained when no damage is shown. Even if defendant breached his fiduciary duty to plaintiff by causing the shareholders and the board of directors to authorize the issuance of these convertible notes, plaintiff was not injured by that breach. Plaintiff’s damages did not occur until the notes were converted into stock.
Our decision is illustrated by State, ex rel., v. Masterson, 221 Kan. 540, 561 P.2d 796 (1977). In that case, a county treasurer was sued to recover funds which had apparently been embezzled. Although the actual embezzlement occurred throughout the term of office, the Supreme Court held that the cause of action did not accrue until the treasurer failed to pay over the funds to a successor trustee. In other words, the treasurer may have violated his duty to the public by embezzling the funds, but no substantial injury was caused to the public until the term of office was completed and the funds were not paid to a successor trustee. The Supreme Court elaborated:
“In general, a cause of action accrues so as to commence the running of the statute as soon as the right to maintain a legal action arises, the true test being at what point in time the appellant could first have filed and prosecuted his action to a successful completion.” 221 Kan. at 547.
See Yeager v. National Cooperative Refinery Ass’n, 205 Kan. 504, 512, 470 P.2d 797 (1970); Knight v. Myers, 12 Kan. App. 2d 469, 474, 748 P.2d 896 (1988) (“[A] cause of action accrues as soon as the right to maintain a legal action arises.”).
As in Masterson, the plaintiff in this case could not have filed and maintained an action against defendant for a breach of duty unless and until he suffered some injury or some damage by that breach. Until such time as the note was converted, plaintiff’s damages were purely speculative and were not sufficient to support the filing of an action.
Although complete certainty is not required, “[d]amages cannot be awarded when they are too conjectural and speculative to form a sound basis for measurement.” Johnson v. Baker, 11 Kan. App. 2d 274, 276, 719 P.2d 752 (1986). In the law, a cause of action cannot be sustained when no damages can be shown. See Hoffman v. Hang, 242 Kan. 867, 870-72, 752 P.2d 124 (1988). In Roe v. Diefendorf, 236 Kan. 218, 222-23, 689 P.2d 855 (1984), the court stated:
“We hold the use of the term ‘substantial injury’ in the statute [60-513(b)j does not require an injured party to have knowledge of the full extent of the injury to trigger the statute of limitations. Bather, it means the victim, must have sufficient ascertainable injury to justify an action for recovery of the damages, regardless of extent. An unsubstantial injury as contrasted to a substantial injury is only a difference in degree, i.e., the amount of damages. . . . Therefore, we construe the phrase ‘substantial injury’ in K.S.A. 60-5l3(b) to mean ‘actionable injury.’ ” (Emphasis added.)
In this case, defendant had an option — he could elect to collect money under the note or he could elect to convert the note into stock. Until he elected to convert the note to stock, there was no damage. Failure to take elective action does not present a cause of action. See Mildfelt v. Lair, 221 Kan. 557, 561 P.2d 805 (1977); Souder v. Tri-County Refrigeration Co., 190 Kan. 207, 373 P.2d 155 (1962); Hedges v. Keas, 180 Kan. 540, 306 P.2d 181 (1957).
We hold that plaintiff’s cause of action did not accrue until May 1995 when defendant converted the note to Rosedale shares. It follows that plaintiff’s action was filed within the period of the statute of limitations, and the trial court’s order to the contrary is reversed.
Defendant argues in the alternative that the question of when a substantial injury occurs is a question of fact which must be decided by a jury. Certainly, it may be true that when evidence as to the accrual of a cause of action is subject to different interpretations, it is or may be a question of fact. In this case, however, there is no factual uncertainty in the material facts as to when the cause of action accrued. For that reason, we can and do decide as a matter of law when the cause of action accrued. See McCaffree Financial Corp. v. Nunnink, 18 Kan. App. 2d 40, 54-55, 847 P.2d 1321 (1993).
MOTION TO STRIKE
Plaintiff filed a motion asking this court to strike portions of defendant’s brief. These portions of defendant’s brief assert alternative arguments on appeal. Plaintiff argues that defendant is barred from raising these arguments because he failed to object to the trial court’s ruling and failed to preserve the issues for appeal.
We conclude that plaintiff’s argument is without merit. Defendant raised both of his arguments as alternative grounds in his motion for summary judgment. The trial court acknowledged the arguments but declined to rule on them because it disposed of the case on a statute of limitations issue.
We find the issues are properly raised and deny plaintiff’s motion to strike.
DERIVATIVE ACTION
Defendant argues that summary judgment was also appropriate in this case because plaintiff failed to bring this case as a derivative action. We disagree.
In Richards v. Bryan, 19 Kan. App. 2d 950, 879 P.2d 638 (1994), we considered the question of whether an action should be brought as a derivative action or as an individual damage suit. In that opinion, we said:
“Therefore, we conclude that if a corporation is closely held, a court, in its discretion, may treat an action raising derivative claims as a direct action if it finds to do so will not (1) unfairly expose the corporation to a multiplicity of actions; (2) materially prejudice the interests of creditors in the corporation; or (3) interfere with a fair distribution of the recoveiy among all interested persons.” 19 Kan. App. 2d at 965.
The three-part test set out above requires findings of fact which were not addressed by the trial court in this case and which would almost certainly be disputed by the parties. The resolution of the derivative lawsuit issue involves disputed questions of fact and is not appropriate for summary judgment,' Mitzner, 257 Kan. at 260-61.
NO BREACH OF FIDUCIARY DUTY
Defendant argues that the trial court’s decision should be affirmed because it could have granted summary judgment on the ground that there was no breach of fiduciary duty since defendant did not receive any preferential treatment. Defendant bases his argument on the fact that all shareholders, including plaintiff, had the right to purchase the convertible notes in question. While defendant claims that the fact he did not receive preferential treatment is shown by the uncontroverted facts, we find that these facts were controverted by plaintiff. The trial court made no ruling on the issue because it did not reach the issue. We conclude this issue was not appropriate for summary judgment because it involved a controverted issue of material fact. See Mitzner, 257 Kan. at 260-61.
We reverse the trial court’s decision granting summary judgment on the ground of the statute of limitations and remand the matter for further proceedings consistent with this opinion and, if necessary, for a trial on the merits.
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Marquardt, J.:
Randall C. Sanford appeals his convictions by a jury of two counts of aggravated robbery and two counts of kidnapping.
On July 26, 1994, at 11:40 p.m., two armed men, wearing dark-colored pantyhose over their heads, dark clothing, and gloves, entered the Coachlite, a bar in Kansas City, Kansas. The two men told Vesta Martin, the bartender, and Roger Pape, a customer, that it was a holdup and ordered them to get down on the floor. One of the robbers told Martin to take the money from the cash register, which was approximately $1,000 in bills and rolled quarters, and to put it into a white bag.
The other robber ordered Pape to empty his billfold. After one of the robbers ripped out the telephone lines, Martin and Pape were ordered into the men’s restroom and told to get on the floor and not to come out for 10 minutes or the robbers would “blow [their] heads off.”
About an hour after the robbeiy, Officer Danny Ruth of the North Kansas City, Missouri, police department observed the vehicle that Sanford was driving go over a curb while turning into a parking lot. Officer Ruth pulled in behind Sanford’s vehicle just as the occupants were exiting — Sanford from the driver’s seat, Anthony Pica from the front passenger seat, and Kim Sanford, Sanford’s wife, from the back seat. Sanford was arrested for driving under the influence and taken to jail.. Although the vehicle was registered to Kim, the dispatcher notified Officer Ruth that the license plate on the car was listed as stolen. The vehicle was then towed.
During an inventory search of the vehicle, a white bag containing approximately $1,000 in bills and quarters was found under the front passenger seat along with a .357 magnum. A flashlight, half a pair of dark-colored pantyhose, a pair of gloves, and two short-sleeved shirts were found on the back seat. Another pair of gloves was later found in the vehicle.
Pica and Kim were also taken into custody by the police. At the time that Sanford posted bond and was released, the Missouri police were not aware of the robbery. Upon his release, Sanford left the state and was later arrested in Minnesota. Kim was released on the same day that she was arrested, but Pica remained in police custody and was eventually convicted of carrying a concealed weapon.
Rita Sanford, Sanford’s sister-in-law, reported to the Missouri police that her husband’s gun was missing. The gun that was found in Sanford’s vehicle was later identified as the missing weapon. According to Sanford’s brother, both Pica and Sanford knew about and had access to the gun.
At trial, Pica testified against Sanford. Pica and Sanford had known each other for about 25 years. Pica’s testimony about the robbery was similar to that given by the two victims, except that Pica testified that Sanford was the only one with a gun. Pica testified that after the robbery, he and Sanford went out behind the bar to Kim’s car, where she was waiting. After putting the money and gun into the car, Pica and Sanford drove around, drinking and talking, until Sanford’s car went over a curb and they were stopped by the police. Pica testified that he had put his own gloves in the car, but that Sanford’s gloves and pantyhose were “gone.”
Pica served 6 months in the Clay County jail on the concealed weapon charge before being transported back to Wyandotte County to face the charges in this case. Pica and Sanford were then placed together in the same cell. Sanford typed a letter for Pica to sign, which stated that Sanford had nothing to do with the robbery. Pica testified that Sanford had him sign the letter in front of a notary.
Shirley Ann Campbell Brown, a night bartender at the Mill Street Tavern, and Mary Sue Emily, her friend, were at the Mill Street Tavern on the evening of the robbery. Emily testified that she had seen Sanford with Kim and Pica at the tavern that evening and that Sanford, Kim, and Pica left together around 8:30 p.m.
Brown testified that although she knew Sanford as a customer, she did not know him personally. Brown saw Sanford come into the tavern between 8 and 8:30 p.m. and then leave with Kim and Pica about 10 minutes later.
Outside the presence of the jury, Sanford stated at trial that he was knowingly waiving his right to testify. The defense then rested without presenting any evidence.
On March 29, 1995, a jury found Sanford guilty on all counts as charged. Sanford then filed a motion for judgment of acquittal or, in the alternative, a new trial on the basis of various trial errors, including those raised on appeal. Sanford was appointed new counsel after his trial counsel, Max Goracke, withdrew due to Sanford’s claim of ineffective assistance of counsel. Sanford’s new counsel then filed an additional motion for a new trial or judgment of acquittal. A hearing was held on the motions, and they were denied. Sanford was sentenced to a controlling prison term of 206 months.
Sanford appeals, claiming that the prosecutor made improper remarks during voir dire and in closing argument, that there was insufficient evidence to convict him, that testimony about his federal warrant should not have been allowed, that the jury instruction on the burden of proof was erroneous, and that he had ineffective assistance of counsel.
Sanford bases his claim of ineffective assistance of counsel on Goracke: (1) advising Sanford not to testify; (2) filing a notice of alibi and then failing to withdraw it prior to trial after deciding not to develop an alibi argument; (3) not cross-examining Pica as to whether he feared Sanford; (4) misstating the evidence during closing argument; (5) failing to bring to the trial court’s attention a letter that was written by Sanford in which he requested different counsel; and (6) failing to contact any of Sanford’s named alibi witnesses.
Although we find that Goracke’s failure to contact Sanford’s named alibi witnesses constitutes ineffective assistance of counsel, we do not find merit in any of the other issues raised.
Kansas courts follow a two-pronged test in evaluating claims of ineffective assistance of counsel:
“ ‘First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Sec ond, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reháble.’ ” Taylor v. State, 252 Kan. 98, 103, 843 P.2d 682 (1992).
The inquiry under the first prong is whether counsel’s assistance was reasonable under all the circumstances. See State v. Rice, 261 Kan. 567, Syl. ¶ 14, 932 P.2d 981 (1997). “Judicial scrutiny of counsel’s performance must be highly deferential, and . . . every effort [should] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” 261 Kan. 567, Syl. ¶ 14. A defendant must overcome a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance. 261 Kan. 567, Syl. ¶ 14. Under the second prong, a defendant must show that a reasonable probability exists that the result of the proceedings would have been different if not for counsel’s errors. 261 Kan. 567, Syl. ¶ 15. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” 261 Kan. 567, Syl. ¶ 15.
An “appellate court is to review de novo the trial court’s analysis of the performance and prejudice components, which are mixed questions of law and fact.” Rice, 261 Kan. 567, Syl. ¶ 16.
We find no reversible error in Goracke’s failure to withdraw the notice of alibi, in his advising Sanford not to testify, in his cross-examination of Pica, and in his statements during closing argument.
However, Goracke’s failure to contact the alibi witnesses, whose names Sanford had given him, is another matter. Goracke testified that based on conversations that he had regarding the alibi claim with Sanford, Kim, and Dallas Wolfe of the Mill Street Tavern, he decided not to put on any alibi witnesses. Goracke testified further that Kim had originally told him that she and Sanford left the Mill Street Tavern at 11 p.m. After Goracke informed Kim that this testimony would not provide Sanford with an alibi, Kim changed her testimony. Although Goracke believed Kim to be his key witness, he thought that she would perjure herself if called to testify.
. The other alibi witnesses were all friends, acquaintances, or relatives of Pica. Goracke stated that he did not see any reason to contact these individuals because he believed that they would be hostile witnesses and to have them testify could easily backfire.
Goracke attempted to call some of the other alibi witnesses, but was only able to contact Wolfe, who told him that no one at the tavern would help. Goracke testified that he did not see any reason to continue his search for alibi witnesses because it would only be a waste of resources. Sanford testified that Goracke told him that he would hire an investigator to find the alibi witnesses, but that he never did. Goracke admitted that he and Sanford had discussed hiring an investigator, but he did not recall telling Sanford that he would hire one.
It is not improper for an attorney to refuse to use a supporting witness when the attorney believes that the witness will either commit perjury or be hostile. Here, Goracke did not question the potential witnesses to determine whether they were hostile, to his client or whether they could provide an alibi. Although many of the witnesses were friends, acquaintances, or relatives of Pica, they were also friends, acquaintances, and relatives of Sanford and might not have been hostile.
Choices made by counsel after a less than complete investigation can be reasonable, but only to the extent that the decision to limit or forego certain investigation is reasonable under the circumstances. Strickland v. Washington, 466 U.S. 668, 690-91, 80 L. Ed. 2d 674, 104 S. Ct. 2052, reh. denied 467 U.S. 1267 (1984). Sanford and his wife claimed to have been with several people during the evening of the robbery. Although these witnesses might have provided an alibi, Goracke made only a perfunctory attempt to contact them.
Goracke’s decision not to investigate further, either personally or through a hired investigator, was not reasonable under the circumstances. See Bryant v. Scott, 28 F.3d 1411, 1416-19 (5th Cir. 1994); Sullivan v. Fairman, 819 F.2d 1382, 1391-92 (7th Cir. 1987).
We must then decide whether Goracke’s failure to investigate prejudiced Sanford by determining whether the testimony Sanford could have presented created error so serious as to deprive him of a . fair trial.
At the post-trial motion hearing, Kim testified that on July 26, Sanford and his daughter picked her up from work at 5 p.m., they stopped to get something to eat, and then they went over to the Mill Street Tavern. Kim and Sanford dropped Sanford’s daughter off at home sometime before 7 p.m. and then went back to Kim’s house so that she could change before they went to a birthday celebration. When Kim and Sanford could not find the house where the birthday party was being held, they went back to the Mill Street Tavern at around 9:15 p.m., where they met up with the people from the birthday party. Kim, Sanford, and their friends all played pool and darts until almost midnight, at which time they all decided to go to another bar. Just as everyone was leaving, Pica came into the tavern. Pica, his sister, and another friend rode with Kim and Sanford in Kim’s car to the next bar. Kim testified that she had left her car unlocked while she was at the Mill Street Tavern. Kim, Sanford, and Pica decided to go to yet another bar located in North Kansas City, Missouri. Right after Sanford pulled into the parking lot of the last bar, he was detained by the police.
In addition to Kim’s testimony, Sanford offered the testimony of three other individuals regarding his alibi, although two of the three were not much help. Jimmy Covington, Sr., testified that his wife, Pica, Kim, Sanford, and Dianne Watson all got together on July 26 for his birthday. Covington was not able to recall the events of July 26 or when things occurred because he was drunk by 3 or 4 o’clock in the afternoon and did not sober up until the next morning. Lorena Pica, Pica’s sister-in-law and Sanford’s sister, testified that in August 1995, she was part of a three-way telephone conversation with Sanford and Covington. During that conversation, Sanford kept asking Covington if he remembered certain events, and Covington kept saying that he could not remember.
Dianne Watson testified that early in the day on July 26, she, Sanford, Sanford’s daughter, and the Covingtons sat outside the Mill Street Tavern waiting for it to be opened up by Wolfe so that they could go inside and celebrate Jimmy Covington’s birthday. While it was still daylight, Sanford left the tavern with Kim and his daughter and later returned with just Kim. Sanford was with Watson, Kim, and the Covingtons the rest of the evening until they left to go to another bar, the Quarry, sometime between midnight and 12:30 a.m. Pica arrived at the tavern just about the time the party was leaving and decided to ride with Sanford and Kim to the Quarry. The entire group arrived at the Quarry sometime between 12:30 and 1:00 a.m. Shortly thereafter, Pica, Kim, and Sanford left the Quarry together.
Based on Watson’s testimony, Sanford and Kim were at the Mill Street Tavern at the time that the robbery occurred, but Pica was somewhere else until at least 15 minutes after the robbery had occurred. Watson was a close friend of Pica’s sister and she did not know Sanford very well; thus, she would have little reason to lie. On the other hand, during the first part of her testimony, Watson stated that she had consumed a beer every 20 to 30 minutes and that nobody was watching the time that day. It is possible that cross-examination on these points might have damaged Watson’s credibility.
Nevertheless, if Goracke had combined Watson’s testimony with Kim’s, he could have provided an explanation as to: Sanford’s whereabouts that evening, placing Sanford at the tavern at the time of the robbery; the presence of the stolen license plate on the car; the incriminating items that were found in the car, which were the strongest physical evidence of Sanford’s guilt; and how Pica could have had access to Kim’s car, placing the items there unnoticed. Thereafter, the jury might have been more inclined to focus on the weaknesses in tire State’s case, which were: the lack of an explanation as to the whereabouts of the second gun and pantyhose; Pica’s insistence that there was only one gun despite the victims’ assertions that each robber had a gun; and the discrepancies in the testimony of Brown, Emily, and Pica regarding the time Sanford left the Mill Street Tavern.
Although it is a close call, we believe that the testimony of Kim and Watson could have created a reasonable doubt for the jury. Defense counsel’s failure to make more than perfunctory attempts to contact alibi witnesses and to investigate further, either personally or through a hired investigator, was not reasonable under the facts presented. Therefore, Sanford’s convictions are reversed, and the case is remanded for a new trial.
Because the case is being remanded, we will not address the other issues raised on appeal.
Reversed and remanded. | [
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|
Gernon, J.:
Albert Thomas appeals his convictions of three counts of residential burglary and four counts of felony theft, contending that two of the theft counts are multiplicitous and that there is not sufficient evidence on one of the burglary convictions. He also raises issues concerning jury instructions, both in failing to instruct and in giving an improper instruction. Finally, he alleges error in calculating the amount of “good time” credit he was entitled to receive.
At the outset, the State concedes that the sentencing court erred in calculating the good time credit. The court mistakenly used the 1995 amendment to K.S.A. 21-4706 instead of the 1994 version which was in effect when the present offenses were committed. See State v. Riley, 259 Kan. 774, 776, 915 P.2d 774 (1996). Consequently, the district court is directed to file an amended journal entry correcting the error in the amount of good time credit available to Thomas.
Thomas asserts it was reversible error for the trial court to instruct the jury the way it did on the burden of proof. Thomas made no contemporaneous objection, so we must examine the instruction to determine whether, as worded, it was clearly erroneous.
“ ‘An instruction is clearly erroneous only if the reviewing court reaches a firm conviction that if the trial error had not occurred there is a real possibility the jury would have returned a different verdict. [Citation omitted.]’ ” State v. DePriest, 258 Kan. 596, 605, 907 P.2d 868 (1995) (quoting State v. Whitaker, 255 Kan. 118, 125, 872 P.2d 278 [1994]).
The instruction given to the jury is a direct quote from PIK Crim. 3d 52.02 and provided in part as follows:
“The State has the burden to prove the defendant is guilty. The defendant is not required to prove he is not guilty. You must presume that he is not guilty until you are convinced from the evidence that he is guilty.”
Thomas faults the use of the words “not guilty” rather than a statement that the defendant is “presumed innocent,” arguing that the wording diminishes the presumption of innocence. The Kansas Supreme Court recently rejected an identical argument in State v. Clark, 261 Kan. 460, 474-75, 931 P.2d 664 (1997).
Thomas next contends that the court should have instructed on the lesser included offense of misdemeanor theft.
The threshold for felony theft is $500 under the law in effect at the time of the crimes involved here.
The value of stolen property is determined at its fair market value at the time of the theft. State v. Owens, 248 Kan. 273, 285, 807 P.2d 101 (1991); State v. Bryant, 22 Kan. App. 2d 732, 738, 922 P.2d 1118, rev. denied 260 Kan. 996 (1996). An owner is qualified to render an opinion on the value of the items stolen. 22 Kan. App. 2d at 738.
In Bryant, this court held that while “misdemeanor theft is clearly a lesser included offense of felony theft, it is not necessary to give the instruction where the value of the stolen goods is established to be over the felony limit and where there is no evidence of a value of less than the felony limit.” 22 Kan. App. 2d at 738.
The testimony by every witness indicated values above $500. No testimony concerning the values was presented by Thomas. Thomas also had the opportunity to cross-examine those who testified as to values.
A trial court has a duty to instruct on all lesser included offenses supported by the evidence admitted in a case. Here, there was simply no disputed evidence concerning the values.
Thomas also challenges the sufficiency of the evidence on one of the burglaries — that of the Leelawath apartment.
Our standard of review requires us to look at the evidence and determine whether that evidence, when viewed in the light most favorable to the prosecution, convinces the court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Knighten, 260 Kan. 47, 52, 917 P.2d 1324 (1996).
Here, Watcharas Leelawath testified that his apartment was broken into and several items were stolen, including a necklace with a distinguishable medallion. As part of his investigation into the burglary, Detective Pattrick questioned two individuals, Holly Bennett and Thomas King, who implicated Thomas in the burglary. Bennett stated that Thomas had committed several burglaries in Lawrence and that they had sold some of the property acquired from the burglaries at a pawn shop and to King. The detective testified that King said he had purchased a necklace from Thomas which, after being seized, was found to match Leelawath’s stolen necklace. At trial, Leelawath also identified several items seized from the pawn shop as being his stolen property.
We conclude there was sufficient evidence, when applying the standard of review, to convict Thomas of this offense.
The next issue raised by Thomas concerns the multiplicity of charges, in that he was convicted of two counts of theft from one burglary. Thomas contends he only had one general intent to steal the properly in a single apartment and was not aware the property was owned by two different people.
We accept consideration of this issue, though raised for the first time on appeal, to prevent a denial of fundamental rights. See State v. Dubish, 234 Kan. 708, 718, 675 P.2d 877 (1984).
Whether charges are multiplicitous is a question of law, over which this court’s scope of review is unlimited. Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991). Multiplicity involves “the charging of a single offense in several counts of a complaint or information.” State v. Freeman, 236 Kan. 274, 280, 689 P.2d 885 (1984).
“The concern with multiplicity is that it creates the potential for multiple punishments for the same offense, which is prohibited by the double jeopardy clause of the Fifth Amendment of the United States Constitution and section 10 of the Kansas Bill of Rights.” State v. Edwards, 250 Kan. 320, 329, 826 P.2d 1355 (1992).
Thomas relies primarily on State v. Stoops, 4 Kan. App. 2d 130, 603 P.2d 221 (1979). Stoops challenged two of his theft convictions as being multiplicitous because they violated the single larceny doctrine. The theft charges in question arose from a burglary of a machine shop where various tools belonging to the shop owner and an employee were stolen.
This court noted that while the single larceny doctrine had been applied to other contexts in Kansas, the appellate courts had never addressed whether the doctrine applies when a defendant is charged with two separate thefts for taking property owned by two different people from the same place and at the same time. 4 Kan. App. 2d at 136. The court recognized:
“Out of the thirty-five states that have considered the question, thirty-four appear to have adopted the single larceny theoiy. In summarizing the annotation, the author of Annot., 37 A.L.R. 3d 1407, states at 1409-10:
‘The overwhelming majority of jurisdictions follow generally the so-called “single larceny doctrine”; that is, that the taking of property belonging to different owners at the same time and place constitutes but one larceny. Various rationales have been propounded in support of this position, perhaps the most common one being that such taking is one offense because the act of taking is one continuous act or transaction, and since the gist of the offense is the felonious taking of property, the legal quality of the act is not affected by the fact that the property stolen belonged to different persons.
‘Other rationales supporting the rule are concerned with the harshness of the punishment which might result from a contrary holding, or with the unconstitutionality of the double jeopardy to which a defendant would be subjected under a contrary decision.’ ” 4 Kan. App. 2d at 136-37.
The court further noted:
“If we were to adopt the single larceny doctrine, it seems to us the test to be applied to determine if there are separate offenses or only a single offense should be based on whether the evidence discloses one general intent to steal or distinct and separate intents. Each case necessarily would have to be decided on its own facts, and a defendant could be convicted of separate thefts only if the evidence showed the offenses to be separate and distinct and not committed pursuant to one intention, one impulse, or one plan.
“As set forth earlier in this opinion, the Supreme Court has allowed a series of misdemeanor thefts to support a grand larceny conviction under the ‘single larceny doctrine’ where the thefts were part of a single plan or scheme, or a single larcenous impulse. [Citation omitted.] It seems highly inconsistent to allow multiple misdemeanor thefts to be combined to reach a level of felony theft on one hand and on the other to convict a person of multiple thefts when that person intended only a single theft and had no reason to know the property belonged to more than one person.” 4 Kan. App. 2d at 139-40.
We find that given the record here, Thomas is correct that the single larceny doctrine should be applied. We conclude that when an individual commits a theft and takes property belonging to more than one individual, without a reasonable notice that the property belongs to separate individuals, as part of a single plan or scheme, then that taking constitutes a single theft. See Annot, 37 A.L.R.3d 1407.
Accordingly, Thomas’ conviction on one count of theft from the Davis apartment is reversed, and the sentence associated with it is vacated. Further, for the purposes of his criminal history, the district court is directed to notify the Department of Corrections as to our rulings concerning this conviction and the good time credit issue.
Affirmed in part, reversed in part, and remanded with directions. | [
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|
Rulon, J.:
Defendant Michael Boyle Riles appeals his conviction and sentence for aggravated batteiy. We affirm in part and dismiss in part.
On November 12, 1994, defendant shot his 16-year-old son in the face but asserted at trial the shooting was accidental. Defendant was charged with aggravated battery under K.S.A. 21-3414. At the close of die State’s case in chief, defendant moved for dismissal of the charge, arguing that abuse of a child under K.S.A. 21-3609 is a more specific offense than aggravated battery. The district court denied defendant’s motion and eventually instructed the jury on aggravated battery under K.S.A. 21-3414(a)(l)(A) (intentional bodily harm) and the lesser included offenses of aggravated battery under K.S.A. 21-3414(a)(l)(B), (a)(2)(A), and (a)(2)(B). The jury found defendant guilty of aggravated batteiy under K.S.A. 21-3414(a)(1)(A). Later, the court denied defendant’s motion for departure, sentencing him to 41 months’ imprisonment, which is within the presumptive sentence of the guidelines grid.
SPECIFIC OFFENSE
Defendant asserts the State should have charged him with the more specific offense of abuse of a child, rather than the general offense of aggravated battery. The district court denied defendant’s motion to dismiss, finding the State was not required to charge abuse of a child rather than aggravated battery because abuse of a child is not a more specific offense. “[T]he rule that a more specific statute should prevail over a general statute” is a rule of statutory construction applied to determine legislative intent. State v. Williams, 250 Kan. 730, 734, 829 P.2d 892 (1992). Interpretation of a statute is a question of law, over which this court has unlimited review. In re Tax Appeal of Boeing Co., 261 Kan. 508, Syl. ¶ 1, 930 P.2d 1366 (1997).
K.S.A. 21-3609 provides that: “Abuse of a child is intentionally torturing, cruelly beating, shaking which results in great bodily harm or inflicting cruel and inhuman corporal punishment upon any child under the age of 18 years.” K.S.A. 21-3414(a)(l)(A) provides that aggravated battery is “[ijntentionally causing great bodily harm to another person or disfigurement of another person.”
“The rule that a more specific statute should prevail over the general statute is merely a rule of interpretation which is used to determine which statute the legislature intended to be applied in a particular case.” State v. Hill, 16 Kan. App. 2d 280, Syl. ¶ 1, 823 P.2d 201 (1991), rev. denied 250 Kan. 806 (1992). When there is no conflict between the statutes because they govern two independent crimes, there is no reason to resort to rules of interpretation to determine which statute governs. Hill, 16 Kan. App. 2d at 283. Abuse of a child and aggravated battery are two separate crimes, and a defendant may be convicted of both. See State v. Young, 14 Kan. App. 2d 21, 31, 784 P.2d 366, rev. denied 245 Kan. 788 (1989). Aggravated battery involves the intent to injure and the actual infliction of bodily harm. Neither of those are required to prove abuse of a child. In re Berkowitz, 3 Kan. App. 2d 726, 744, 602 P.2d 99 (1979). Abuse of a child involves cruel and inhuman corporal punishment, intentional torture, cruel beating, or severe shaking of a child under 18. This is a separate crime from aggravated battery, not a more specific version of that offense. The crimes are directed at two different actions. See State v. Helms, 242 Kan. 511, 513, 748 P.2d 425 (1988).
Defendant asserts that K.S.A. 21-3609 protects a specific class of victims (children under the age of 18 years) from certain types of physical contact, while K.S.A. 21-3414(a)(l)(A) is amore general statute dealing with a greater variety of conduct. Usually, the general versus specific statute distinction applies in cases such as where one statute generally governs sex crimes and another statute specifically governs those sex crimes against a relative. See Williams, 250 Kan. at 736. This is not the factual circumstance here. We are satisfied the district court did not err in denying defendant’s motion to dismiss.
LESSER INCLUDED OFFENSE
Defendant next asserts the district court erred in not instructing the jury on the offense of abuse of a child because abuse of a child is a lesser included offense of aggravated battery. The court’s duty to instruct as to a lesser included offense exists even if the defendant does not request the instruction at trial. K.S.A. 21-3107; State v. Cummings, 242 Kan. 84, 91, 744 P.2d 858 (1987).
An included crime is “a crime necessarily proved if the crime charged were proved.” K.S.A. 21-3107(2)(d). Defendant asserts that in proving the identity of the victim, the State necessarily proved the victim was defendant’s son, who was under 18 years old. According to defendant, to prove the act was intentional, the State showed defendant’s conduct was in response to inappropriate behavior by defendant’s son. Defendant contends his act of shooting his son, under these circumstances, could rationally have been found to constitute the infliction of “cruel and inhuman corporal punishment” within the meaning of K.S.A. 21-3609.
Kansas courts use a two-prong test to determine whether a crime is a lesser included offense under K.S.A. 21-3107(2)(d). State v. Fike, 243 Kan. 365, Syl. ¶ 1, 757 P.2d 724 (1988). First, the court determines if all of the statutory elements of the lesser crime are among the statutory elements required to prove the crime charged. Fike, 243 Kan. 365, Syl. ¶ 1. If so, the lesser crime is a lesser included crime of the crime charged. The statutory elements of abuse of a child are not among the statutory elements required to prove aggravated battery. Abuse of a child requires proof that the child is under the age of 18; aggravated battery does not have this age requirement. See State v. Young, 14 Kan. App. 2d 21, Syl. ¶ 5. Abuse of a child is not a lesser included offense of aggravated battery under the first prong of Fike.
Under the second prong of the Fike test, the lesser crime may be a lesser included crime under K.S.A. 21-3107(2)(d) if “the factual allegations of the charging document and the evidence required to be adduced at trial in order to prove the crime charged would also necessarily prove the lesser crime.” Fike, 243 Kan. 365, Syl. ¶ 1. The factual allegations of the charging document for aggravated battery and the evidence required at trial to prove aggravated battery do not necessarily prove abuse of a child, and neither requires evidence that the victim was under 18 years old. See Young, 14 Kan. App. 2d 21, Syl. ¶ 5. Here, although evidence was produced at trial that the victim was under 18 years old, this information was not required by either the charging document or the elements of aggravated battery. “The mere fact that the evidence adduced in proving the crime charged may also prove some other crime does not make the other crime a lesser included offense under K.S.A. 21-3107(2)(d).” State v. Gibson, 246 Kan. 298, 300, 787 P.2d 1176 (1990).
Equally important, an instruction on a lesser included offense is “ unnecessary where the defendant’s testimony precludes a conviction for the lesser offense.’ ” State v. Allison, 16 Kan. App. 2d 321, 325, 823 P.2d 213 (1991) (quoting State v. Hill, 242 Kan. 68, 73-74, 744 P.2d 1228 [1987]). Defendant contended at trial that the shooting was accidental; he testified the gun went off when he dropped it on the floor. If the shooting was accidental, as defendant contends, it would not be corporal punishment, and the abuse of a child statute would not apply. There was no duty of the district court to give an instruction on abuse of a child.
MITIGATION FACTOR
Finally, the defendant claims the sentencing court erred when finding that his lack of prior criminality is not a mitigating factor for sentencing purposes.
Defendant filed a motion for durational and dispositional departure. The court denied defendant’s motion and imposed a presumptive sentence. On appeal, defendant alleges the court erred in finding that a lack of prior arrests is not a mitigating factor for sentencing purposes.
Defendant claims K.S.A. 22-3602(a) applies, which provides: “Except as otherwise provided, an appeal to the appellate court . . : may be taken by the defendant as a matter of right from any judgment against the defendant in the district court.” (Emphasis added). K.S.A. 22-3602(e), however, provides: “For crimes committed on or after July 1, 1993, an appeal by . . . the defendant relating to sentences imposed pursuant to a presumptive sentencing guidelines system as provided in K.S.A. 21-4701 etseq. and amendments thereto, shall be as provided in K.S.A. 21-4721 and amendments thereto.” Appeal from a sentence imposed for felony offenses committed on or after July 1, 1993, is limited to the grounds specified in K.S.A. 21-4721. State v. Gonzales, 255 Kan. 243, 247, 874 P.2d 612 (1994). Defendant’s claim that K.S.A. 22-3602(a) somehow controls here is without merit.
For any felony committed on or after July 1, 1993, there is no appellate review of a sentence within the presumptive range for the crime. K.S.A. 21-4721(c)(l); State v. McCallum, 21 Kan. App. 2d 40, Syl. ¶ 3, 895 P.2d 1258, rev. denied 258 Kan. 862 (1995). Denial of a motion to depart is not appealable when the sentence is within the presumptive sentence grid block. State v. Miller, 260 Kan. 892, 899, 926 P.2d 652 (1996); State v. Myers, 20 Kan. App. 2d 401, Syl. ¶¶ 1, 2, 888 P.2d 866 (1995).
Defendant asserts that Myers does not control here. He contends the sentencing court in Myers found insufficient evidence in the record to support the application of the mitigating factor, but here the court held as a matter of law that a lack of previous criminality is not a mitigating factor because the matter is already taken into account in the criminal history categorization. Defendant’s argument as to why the court erred in denying his motion for departure is not persuasive. This court is simply without jurisdiction to hear this claim unless a statutory exception exists.
This court’s jurisdiction to hear an appeal of a presumptive sentence is limited to the grounds specified in K.S.A. 21-4721(a) (departure sentence) and K.S.A. 21-4721(e) (partiality, prejudice, oppression, or corrupt motive, and illegal sentences). McCallum, 21 Kan. App. 2d at 46; State v. Ware, 262 Kan. 180, Syl. ¶ 2, 938 P.2d 197 (1997).
Defendant’s only contention is that K.S.A. 21-4721(e) applies. He asserts his sentence resulted from “ ‘oppression’ due to the failure to allow the defendant to exercise this statutory right.” When a defendant receives a presumptive sentence and he or she does not claim an error in crime severity level or criminal history, “there is a strong legislative presumption that the sentence is not the result of partiality, prejudice, oppression, or corrupt motive.” State v. Starks, 20 Kan. App. 2d 179, Syl. ¶ 9, 885 P.2d 387 (1994). The burden is on a defendant to prove that his or her sentence was the result of partiality, prejudice, oppression, or corrupt motive. Starks, 20 Kan. App. 2d at 183 (citing State v. Haywood, 245 Kan. 615, 620-21, 783 P.2d 890 [1989]). Defendant has provided no evidence or argument as to how the sentence was the result of partiality, prejudice, oppression, or corrupt motive, or that the sentence was illegal. Consequently, this court has no jurisdiction to hear defendant’s appeal of the sentencing court’s denial of his departure request.
Defendant claims this court should follow other state court decisions on this issue. Kansas case law, however, is clear that this court lacks jurisdiction to hear an appeal of a presumptive sentence unless a statutory exception exists. None of those exceptions exist here. There is no need to look to other jurisdictions to resolve this issue.
Affirmed in part and dismissed in part. | [
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Brazil, C.J.:
In this appeal, we are considering the liability of a landlord for injuries to a plaintiff bitten by a dog owned by the tenants.
Loretta Colombel sued the tenants, Kay and Allen Milan, and the landlords, Michael and Kiersten Dodson.
The trial court dismissed the case against the Dodsons. Colombel appeals. We affirm.
Colombel suffered severe and permanent injury and disability as a result of an attack by the Milans’ dog at their residence. Colombel brought suit against the Dodsons as landlords, alleging that they had knowledge of the dangerous and vicious propensities of the Milans’ dog. Colombel claims that the Dodsons were negligent in allowing the dog to be maintained on their property.
Our standard of review of a grant of a motion to dismiss for failure to state a claim has recently been stated in Ripley v. Tolbert, 260 Kan. 491, Syl. ¶¶ 1, 2, 921 P.2d 1210 (1996):
“Disputed issues of fact cannot be resolved or determined on a motion to dismiss for failure of the petition to state a claim upon which relief can be granted. The question for determination is whether in the light most favorable to plaintiff, and with every doubt resolved in plaintiff’s favor, the petition states any valid claim for relief. Dismissal is justified only when the allegations of the petition clearly demonstrate plaintiff does not have a claim.
“In considering a motion to dismiss for failure of the petition to state a claim for relief, a court must accept the plaintiff’s description of that which occurred, along with any inferences reasonably to be drawn therefrom. However, this does not mean the court is required to accept conclusory allegations on the legal effects of events the plaintiff has set out if these allegations do not reasonably follow from the description of what happened, or if these allegations are contradicted by the description itself.”
In addition, “it is our duty to determine whether those pleaded facts and inferences state a claim, not only on the theory which may be espoused by the plaintiffs, but on any possible theory we can divine.” Noel v. Pizza Hut, Inc., 15 Kan. App. 2d 225, 231, 805 P.2d 1244, rev. denied 248 Kan. 996 (1991).
Whether Colombel stated any valid claim for relief depends upon whether a landlord may be held liable under Kansas law for the injuries a third party suffers due to the actions of his or her tenants’ vicious dog on the leased property. To recover in a negligence action, the plaintiff must prove a duty was owned by the. defendant to the plaintiff, a breach of that duty, and that the breach of duty was the proximate cause of damages sustained by the plaintiff. The existence of a duty is a question of law, subject to unlimited review by this court. Cessna Aircraft Co. v. Metropolitan Topeka Airport Authority, 23 Kan. App. 2d 1038, Syl. ¶ 3, 940 P.2d 84, rev. denied 262 Kan. 959 (1997).
The Dodsons contend that the law to be applied to this case is the law of injuiy-by-animal and not the law of premises liability. They argue that they cannot be held liable for the injury inflicted by their tenants’ dog since under the law of torts pertaining to injuxy-by-animals, only the owner or keeper of the animal can be held liable. In addition, they argue that even if the law of premises liability were to apply to the present case, they would not be liable because none of the exceptions to the rule exempting landlords from liability for injuries occurring on the leased premises apply. Colombel admits that as a general rule there is no liability placed upon a landlord for injuries occurring due to defective conditions on leased property. However, she urges us to hold that when a landlord knows that his or her tenant owns a vicious animal, the landlord has a duty to remove the animal by terminating the lease.
The leading case in Kansas on the subject of landlord liability for premises defects is Borders v. Roseberry, 216 Kan. 486, 532 P.2d 1366 (1975). In Borders, a social guest of a tenant slipped and fell on ice that had accumulated on the front steps of the leased property. In that case, our Supreme Court adopted the rule that whe¡n a landlord is not in possession of the leased property, he or she has a very limited duty to the tenant or to third persons entering the land for defective conditions existing thereon. 216 Kan. at 488.
However, the Borders court recognized that there are several exceptions to the general rule of nonliability of landlords for premises defects. 216 Kan. at 488-92. Liability may be imposed upon the landlord in the following situations:
(1) when there are dangerous conditions known to the lessor and unknown to the lessee;
(2) when there are conditions dangerous to persons outside of the premises;
(3) when the premises are leased for admission of the public;
(4) when parts of the land are retained in the lessor’s control which the lessee is entitled to use;
(5) when the lessor contracts to repair the premises; and
(6) when the lessor is negligent in making repairs.
Colombel argues that the theory of liability behind the exception holding the landlord liable for conditions dangerous to persons outside of the leased premises is applicable to the present case.
This exception does not apply in the present case because Colombel has only alleged that the dog attacked her and another neighbor on the property; she has not alleged that it is dangerous to those outside of the leased property. Although the Dodsons may have known of the existence of the allegedly vicious dog at the time the lease was entered into, there are no cases in Kansas where a dog is considered a structural defect. None of the other exceptions that have been recognized in Kansas to the general rule that the landlord is not liable for injuries that occur on the leased property or for the torts of his or her tenants have been alleged to apply to this case. If premises hability were to apply to this case, the landlord would not be held hable unless a new exception is created.
The Restatement (Second) of Torts § 509(1) (1976) applies to the possessors of a dangerous animal, providing:
“A possessor of a domestic animal that he knows or has reason to know has dangerous propensities abnormal to its class, is subject to liability for harm done by the animal to another, although he has exercised the utmost care to prevent it from doing the harm.” (Emphasis supplied.)
According to the Restatement, harborers of vicious animals can also be held liable for injuries inflicted by them. Section 514 of the Restatement states:
“One who, although not in possession, harbors a wild animal or an abnormally dangerous domestic animal, is subject to the same hability as if he were in possession of it.”
Comment a explains the act of harboring as follows:
“Thus a person harbors a dog or cat by permitting his wife, son or household servant to keep it in the house or on part of his land that is occupied by the family as a group. On the other hand, the possession of the land on which the animal is kept, even when coupled with permission given to a third person to keep it, is not enough to make the possessor of the land hable as a harborer of the animal. Thus a father, on whose land his son lives in a separate residence, does not harbor a dog kept by his son, although he has the power to prohibit the dog from being kept and fails to exercise the power or even if he presents the dog to his son to be so kept. The same is true when a master permits his servant to keep a dog in a house or part of the premises that is given over to the exclusive occupation of his servant. So, too, he does not become a harborer of a dog that he permits a friend to keep on his land unless he takes it into his home and thus makes it, as it were, a member of his household.” Restatement (Second) of Torts § 514 Comment a.
The Restatement definition of harboring appears to preclude liability of a landlord since even a parent who gives permission to a child to keep a vicious dog on land owned by that parent cannot be held liable for the injuries inflicted on a third person by that dog. Even though the owner of the land has the power to expel an abnormally dangerous animal and chooses not to do so, under the Restatement, he or she is not made a harborer of the animal and therefore liable for its acts.
Kansas follows the common law of injury-by-animal. Under the common law, no one but an owner, possessor, keeper, or harborer of an animal can be held liable for it actions. In the present case, the Dodsons were not possessors, harborers, owners, or keepers of the dog. Under Kansas law as it now stands, they cannot, therefore, be found liable for the injury caused by the dog.
Furthermore, in Kansas, the landlord is not the insurer of the safety of the tenant and third persons. Borders, 216 Kan. at 488. There are no cases in Kansas imposing liability on a landlord for the injuries inflicted upon a third person by a tenant’s dog. Rather, in Kansas we have a rule which restricts such liability. This rule is based on the idea that when a landlord leases premises to a tenant, the landlord relinquishes possession and control of the premises. Borders, 216 Kan. at 488. As discussed above, this rule is subject to several exceptions, none of which apply to the case at bar. Under the law in Kansas as it is now, Colombel failed to state a claim upon which relief can be granted.
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|
Wahl, J.:
John E. Guebara appeals from his convictions, after a jury trial, for aggravated battery and failure to stop and remain at the scene of a personal injury accident.
Guebara was caught in a line of traffic at a construction site at the intersection of Highway 50 and Farmland Road in Finney County. The line of cars was waiting for a pilot car to return and escort them through the construction site. Guebara decided he did not want to wait and moved into the turn lane intending to take a left turn on Farmland Road. Randie Whitt, the flag person on duty, stepped in front of the line of traffic to stop Guebara’s minivan. Guebara stopped.
As might well be anticipated, the testimony is conflicting. Guebara testified that Whitt was screaming at him, waving a stop sign which she was carrying, and hit his minivan with the sign. Whitt and Guebara exchanged profanities. Whitt asked someone else at the scene to record Guebara’s tag number. Guebara got out of his car and told the man to go ahead and record the tag number because he had done nothing illegal. Guebara returned to his vehicle at about the time the pilot car was ready to lead the eastbound traffic through the construction. Guebara testified that he believed Whitt wanted him to get back in line. Since he was already at the front of the line, he swerved in front of the line and followed the pilot car.
Guebara testified that Whitt was standing about 6 to 8 feet away from the minivan and to his left. He testified that he veered to his right to get back into the fine without hitting Whitt and without any intention of hitting her.
Steve Ramos, a passenger in Guebara’s minivan during the incident, testified that when Guebara returned to the minivan, Whitt was standing in front of the vehicle on the driver’s side. Ramos testified that, as Guebara began to follow the pilot car, Whitt hit the minivan with the sign and her fists. Ramos did not see the minivan hit Whitt. Neither did he see Guebara attempt to steer the van in her direction.
Andy Guebara, the defendant’s son, was also a passenger in the minivan. From his position in the middle seat, he saw.,Whitt run toward the car and hit it with either her hand or the stop sign. Andy testified that Guebara stopped after Whitt hit the minivan. Andy did not recall Guebara’s getting out of the minivan during the incident, but he testified that, as Guebara began to follow the pilot car, Whitt struck the vehicle again with the sign. Andy did not see Whitt fall to the ground.
Whitt testified that she did not see a turn signal activated on Guebara’s minivan. She told Guebara to get back into line and go through the construction site, intending for him to move to the front of the line and follow the pilot car. Whitt testified that, as Guebara began to follow the pilot car, she attempted to move out of the way, but he veered toward her. She testified that the front bumper of the minivan hit her left leg. She testified that she fell to one knee after being hit. Whitt testified that after being hit, she struck the minivan with her fist and with the stop sign.
Mike Hiner, the co-worker Whitt asked to record Guebara’s tag number, testified that he had a brief exchange with Guebara before Guebara got back into the minivan. Hiner testified that after the pilot car turned around, he saw Guebara pull forward before he was supposed to, and Whitt stepped in front of the minivan to stop him. Hiner testified that he heard a “large thumping sound,” and saw the minivan collide with Whitt. After this, Hiner saw Whitt step back and grab her knee.
Billy Hawk, driver of the pilot car, also witnessed the incident. Hawk testified that he saw Guebara attempt to pull into the fine of traffic and Whitt stepped in front of Guebara’s minivan. Hawk saw the minivan hit Whitt on the leg. He then saw Whitt hit the minivan with her sign.
Guebara complains that the district court erred in declining to instruct the jury on the lesser included offense of battery.
“The defendant has a right to have the court instruct the jury on all lesser included offenses established by substantial evidence, however weak, unsatisfactory, or inconclusive the evidence may appear to the court. Even the unsupported testimony of the defendant alone, if tending to establish such lesser offense, is sufficient to require the court to so instruct. However, the evidence must be substantial and there must be evidence which, when viewed in a light most favorable to the defendant, would justify a jury finding in accordance with the defendant’s theory.” State v. Harmon, 254 Kan. 87, Syl. ¶ 1, 865 P.2d 1011 (1993).
Guebara was charged with aggravated battery pursuant to K.S.A. 21-3414(a)(2)(B), which prohibits “recklessly causing bodily harm to another person with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted.” K.S.A. 21-3412(a) defines simple battery as “[intentionally or recklessly causing bodily harm to another person.”
Defense counsel requested that during the instructions conference the simple battery instruction be given. The trial court refused to give this instruction, relying upon State v. Manzanares, 19 Kan. App. 2d 214, 866 P.2d 1083 (1994).
Manzanares involved a high-speed automobile chase. After an argument, the defendant in his van chased his estranged wife’s car at speeds of 50 to 60 miles per hour. During the chase, the defendant’s van struck the victim’s car from the rear at least once, and he then rammed his van into the side of her car. After a jury trial, Manzanares was convicted of aggravated battery and reckless driving. On appeal, Manzanares argued that the district court erred in failing to instruct the jury on battery as a lesser included offense of aggravated battery. A part of his argument was that the jury could have found that his van was not a deadly weapon. A panel of this court ruled that the district court had properly put the question of whether the van was a deadly weapon to the jury. The panel went on to note that had the jury determined the van was not a deadly weapon, Manzanares would have been found not guilty. 19 Kan. App. 2d at 219.
Manzanares was decided under a different statutory scheme and is factually distinguishable from the case before us. Also, the use of the van in Manzanares was much more violent and reckless than defendant’s use of the van here. To the extent, however, that Manzanares can be read to hold that battery is not a lesser included offense of aggravated battery, we disapprove that interpretation.
The jury could have found, under the facts of this case, that the minivan was not used as a deadly weapon. Nevertheless, it still could have found that Guebara recklessly or intentionally caused bodily harm to Whitt, thus supplying the necessary elements of battery. The State argues that Guebara’s only defense at trial was that nothing had happened. While this may be true, the evidence presented by the State would be sufficient to convict Guebara of simple battery if the jury found that the minivan was not used as a deadly weapon in this situation.
Under K.S.A. 21-3412, unlike the battery statute applicable in Manzanares, reckless conduct resulting in bodily harm to the victim is sufficient to constitute a battery. K.S.A. 21-3414(a)(2)(B) also requires reckless conduct but does not mention intentional conduct.
The court erred in not instructing the jury on simple battery as a lesser included offense of aggravated battery.
Guebara complains that the jury was not properly instructed on the definition of a deadly weapon. Both parties cite case law for the standard of review which provides that refusal of a trial court to give a specific instruction must be viewed in the light most favorable to the requesting party. State v. Scott, 250 Kan. 350, Syl. ¶ 4, 827 P.2d 733 (1992); State v. Hunter, 241 Kan. 629, 644, 740 P.2d 559 (1987). This standard of review, however, is designed for instructions on all theories supported by evidence. The question before us is simply whether the district court correctly defined “deadly weapon.” This is a question of law over which this court’s review is unlimited. See Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991).
The jury was instructed that “[t]he term ‘deadly weapon’ is defined as a weapon dangerous to life or likely to produce bodily injury from the use made of it or with which death may easily and readily be produced.”
This was the instruction given by the trial court in Manzanares. 19 Kan. App. 2d at 218. Guebara argues that this instruction was grammatically confusing and created three separate categories for a deadly weapon, two of which are almost per se definitions, causing any weapon dangerous to life to be a deadly weapon despite how it is used.
The Kansas Supreme Court has previously 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.” State v. Hanks, 236 Kan. 524, 537, 694 P.2d 407 (1985) (citing Black’s Law Dictionary 487 [4th ed. 1968]); see State v. Adams, 12 Kan. App. 2d 191, Syl. ¶ 2, 737 P.2d 876 (1987). The Kansas Supreme Court has also ruled that whether a weapon is used as a deadly weapon is a question of fact for the jury. State v. Colbert, 244 Kan. 422, 428, 769 P.2d 1168 (1989) (defendant struck the victim on the head with a gun). The Colbert court held:
“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 [weapon] and the victim is insufficient to meet tire use of a deadly weapon requirement.” 244 Kan. at 426-27.
The district court’s rationale for using the Manzanares instruction rather than the Hanks instruction was that the facts of the instant case were more similar to Manzanares, and the court deemed the Manzanares instruction to be more clear. The Manzanares instruction, however, conflicts with established case law. Especially troublesome is that, under the Manzanares instruction, the jury could have found the minivan to be a deadly weapon by determining that it was “likely to produce bodily injury from the us0e made of it.” 19 Kan. App. 2d at 218. This definition conflicts with the Hanks definition, which requires at least “serious bodily injury.” 236 Kan. at 537. Indeed, the instruction given in the instant case necessarily includes all weapons, which would make the use of the word “deadly” in the statute quite irrelevant. Under the rules of statutory construction, “[i]t is presumed the legislature understood the meaning of the words it used and intended to use them.” Bank of Kansas v. Davison, 253 Kan. 780, 788, 861 P.2d 806 (1993) (quoting Boatright v. Kansas Racing Comm’n, 251 Kan. 240, Syl. ¶ 8, 834 P.2d 368 [1992]).
The State contends that this court has already approved in Manzanares the specific instruction used. The instruction, however, was not challenged in Manzanares. If it had been, the instruction would have been ruled error, as this court is bound by precedent of the Kansas Supreme Court. State v. Horn, 20 Kan. App. 2d 689, Syl. ¶ 3, 892 P.2d 513, rev. denied 257 Kan. 1095 (1995). The definition of “deadly weapon” used by the trial court in its instruction to the jury was overly broad. In this, the court erred. On remand, the Hanks definition should be used.
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The opinion of the court was delivered by
Harvey, J.:
This is an action in ejectment. It was tried to the court, judgment was rendered for plaintiff for possession of the premises, but a money judgment was rendered in favor of defendants against plaintiff. From this plaintiff has appealed.
The plaintiff, who owned a farm in Chase county, entered into a written contract with the defendants by which he agreed to sell the farm to them, and they agreed to buy it, for $12,600, of which $2,500 cash was “paid as earnest money,” and they agreed to pay $10,100 five years from date of contract, with interest at six per cent, payable annually, with the privilege of paying $100 or any multiple thereof at any interest-paying time. Defendants were to pay the taxes, and were put in possession of the property. Plaintiff’s deed to defendants was to be executed and placed in escrow in the bank, where the payments were to be made. The contract contained a provision, not now important, respecting an oil and gas lease. Time was made the essence of the contract, and it provided that if defendants failed to make any of the payments, or to perform any of the covenants on their part, “this contract shall, at the option of the party of the first part [the vendor], be forfeited and determined, and the party of the second part [the vendee] shall forfeit all payments made by him on this contract, and such payments shall be retained by the said party of the first part in full satisfaction and in liquidation of all damages by him sustained; and in case said second party has entered into possession of said premises the said first party shall have the right to reenter and take possession of the premises aforesaid.”
Plaintiff executed the deed and placed it in escrow. Defendants paid the $2,500 cash and went into possession of the premises March 1, 1922, and remained in possession until dispossessed by the order of the court in this case, March 1, 1927. They paid the taxes for 1922, 1923 and 1924, and the first half of 1925. They paid the interest on the deferred payments, due February 23, 1923, 1924 and 1925. On February 23, 1926, interest of $606 on the deferred payment was not made, and on March 5, 1926, the plaintiff served written notice on defendants that he declared the contract forfeited and determined in accordance with its terms, and demanded immediate possession of the premises. Possession not being given, this action was brought.
Plaintiff’s petition alleged the above facts and prayed judgment for possession. Defendants’ answer admitted the execution of the contract, but alleged they had been induced to execute it by false and fraudulent representations of plaintiff respecting the value of the property and the fertility of the soil, and for. this reason asked that the contract be canceled, that they recover all payments made, and damages in the sum of $500. As a second defense they repeated the allegations of misrepresentation, but averred they had been in possession of the property for three years; that its reasonable rental value was $300 per year; and they asked for the recovery of all payments made, less the reasonable rental value. In an amended answer they alleged that at the time they went into possession of the property there were eighteen acres of growing wheat on the land, in which a third person had an interest, of the value of $250, which suni they sought to recover; that at the time the contract was made there was an oil and gas lease on the property which plaintiff extended, to their damage in the sum of $1,305, and further averred "that plaintiff is not entitled to a cancellation of the contract for the reason that the same was unreasonable, oppressive and unjust; that shortly before the filing of the action by plaintiff, defendants tendered plaintiff $400 on the last interest-pay ing date, and orally requested plaintiff to extend them time to pay the remaining $206, which plaintiff refused. They prayed that plaintiff be denied any relief, and in the event the court should decree a forfeiture of the contract, that plaintiff be adjudged to reimburse defendants in such sum as the court might deem just and proper, and that defendants recover the sums of $250 and $1,305 above mentioned.
The evidence disclosed no fraud of plaintiff which induced the execution of the contract, nor any damage to defendants by reason of the wheat crop or the oil and gas lease. Defendants produced evidence of the reasonable rental value of the property of $5 to $7 per acre per annum, and that there had been a decided decrease of land values between the date of the contract and the date of trial, variously estimated by the witnesses at from $10 to $50 per acre. The court found that the value of the real estate had depreciated $10 per acre; that defendants had used the land five years, and that its reasonable rental value was $525 per year, making total damages which plaintiff has suffered of $3,500; that defendants had paid $2,500 cash, $1,818 interest, and $350 taxes, amounting to $4,668; that the defendants had defaulted in the interest and taxes, as provided in the contract; that the parties, when entering into the contract, did not take into recognition the probable damages that might be suffered by the plaintiff upon the default of the defendants. The court concluded, as a matter of law, that the contract should be canceled and set aside, and that the provisions of the contract that plaintiff retain all sums paid on the contract prior to default constitute a penalty rather than liquidated damages. The court adjudged that the contract of purchase be set aside; that plaintiff recover possession of the real property, and defendants were ordered to relinquish possession to plaintiff on or before March 1, 1927; that defendants have and recover from plaintiff the sum of $1,168 as an equitable adjustment between the damages proved by plaintiff and the fair value of the rental of the property and the payments on the principal, interest and taxes made by defendants, and that defendants have a lien upon the real property to secure the payment of that sum.
A preliminary question is presented. The case was tried and judgment entered January 6, 1927. Defendants did not vacate the premises March 1, and plaintiff filed a motion for a writ of assistance, which was presented and sustained, and a writ was issued placing plaintiff in possession. Defendants have moved to dismiss this appeal, contending that plaintiff has recognized and acted upon the judgment of the court by applying for and obtaining a writ of assistance, and that he is now estopped from prosecuting this appeal. The point is not well taken. Plaintiff gave notice of appeal “from all rulings, orders, decisions and judgments in the above entitled cause adverse to” plaintiff. A party may appeal from a part of a judgment. (R. S. 60-3306.) The judgment adverse to plaintiff in this case was the money judgment in favor of defendants. That part of the judgment which canceled the contract and decreed that plaintiff was entitled to possession of the premises was in favor of the plaintiff in accordance with the prayer of his petition, and was not appealed from by the notice of appeal. Plaintiff, therefore, is not precluded from prosecuting this appeal because he sought to enforce that portion of the judgment in his favor and from which no appeal was taken.
Plaintiff contends that the court erred in rendering a money judgment against him in favor of defendants. This contention must be sustained. Ordinarily when one contracts to purchase real property and makes a payment to bind the bargain, or as earnest money, and agrees to make future payments, and time of making such payments is made the essence of the contract, and the contract contains a provision that if the purchaser defaults in future payments the contract shall become void, or be forfeited, and the vendor shall retain payments made as liquidated damages, and the purchaser makes default in the future payments, by reason of which default the contract is forfeited or held void, the purchaser is not entitled to the return of any portion of the payments previously made. (Long v. Clark, 90 Kan. 535, 135 Pac. 673; Drollinger v. Carson, 97 Kan. 502, 155 Pac. 923; Bentley v. Keegan, 109 Kan. 762, 202 Pac. 70, and authorities there cited. See, also, 39 Cyc. 1381, 1889, 1894.) It is inconsistent to hold that the contract is forfeited because of the failure of defendants to make payments due plaintiff by reason of the contract, and at the same time to hold that defendants have paid under the contract more than was due plaintiff, for if the latter holding be true, why not require plaintiff to give defendants credit for such overpayments, in which event there would be no default by reason of nonpayment.
Let us look at the judgment from another viewpoint. If the court had found in this case that the land had decreased in value, from the date of the contract to the time of trial, as much as $25 per acre (and there was evidence from which that finding might have been made), then, following the method of computation made by the court, not only would the contract have been forfeited or set aside, but plaintiffs should have recovered a money judgment against defendants — a situation clearly not within the contemplation of the parties. We shall not further speculate to determine the judgment which should have been entered if the land had increased in value, and this method of computation were carried out.
We have pointed out these inconsistencies in the judgment rendered to demonstrate that the judgment is not based either on the contract as written, nor upon equitable consideration of the real nature of the business transaction between the parties.- The judgment was not based on the contract as written, for had it been, the contract would have been declared void or forfeited for nonpayment, and there would have been no money judgment in favor of defendants against plaintiff. Plaintiff declared upon the contract as written, and was entitled to judgment thereon in an action at law unless the court deemed it inequitable so to enforce it in view of the real transaction between the parties. Neither of the parties, nor their counsel, aided the court much in reaching a proper conclusion based upon equitable consideration of the real nature of the business transaction between the parties. The business transaction, of course, was a sale of real property for part payment in cash, the balance to be paid at a future date. The contract and deed in escrow should, in equity, have been construed as an equitable mortgage to secure the balance of the payment of the purchase price. (Chambers v. Anderson, 51 Kan. 385, 32 Pac. 1098; 41 C. J. 299.) Had the case proceeded on that theory it would simply have been the foreclosure of a mortgage given for more than two-thirds of the purchase price of the property. Defendants would have had credit for all their payments made and would have been entitled to pay the remainder within the time fixed by the statute for redemption. (R. S. 60-3439.) But defendants nowhere asked that this be done. All their defenses were predicated upon a theory to try to get some money back which they had paid, a thing they were not entitled to, either in an action at law or in equity. As it turned out, considering the time it took to get the case to trial, in view of the feigned issues presented, defendants had the use of the premises for as long a period as they would have had them if there had been a prompt foreclosure of the contract and deed as an equitable mortgage; hence, defendants are not-injured by the course of procedure, and plaintiff would not be injured were it not for the money judgment against him. This can be corrected.
The judgment of the court below is reversed with directions to set aside the money judgment in favor of defendants and against plaintiff. | [
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The opinion of the court was delivered by
Burch, J.:
The action is one of quo warranto to oust the governing body of the city of Kansas City from exercise, of power granted by chapter 133 of the Laws of 1927 to issue tax bills to pay for special improvements. This form of municipal security has not been generally used in this state. Contractors in Kansas City hesitate to accept tax bills in.payment for work done without assurance of their constitutional validity, and the attorney-general has permitted the name of the state and his name to be used to. obtain a declaratory judgment coinciding with his own opinion that the securities are authorized by sound legislation.
It is urged the statute is void for reasons which may be disposed of in the order in which they are presented:
“1. It violates section 17 of article 2 of the constitution of Kansas, as it is a special act on a legislative subject where a general law can be made applicable, and violates the provisions of said section which say that all laws of a general nature shall have a uniform operation throughout the state, and shall be construed and determined by the courts of the state.”
The statute applies to “any city of the first class now having or hereafter acquiring a population of over 110,000,” and the objection is based on the fact that the city of Kansas City is at present the only city in the state qualified to exercise the power granted by the statute. The objection was fully answered by the decision in the case of Parker-Washington Co. v. Kansas City, 73 Kan. 722, 85 Pac. 781. That decision dealt with tax bills issued by the present defendant pursuant to authority granted by chapter 112 of the Laws of 1905, which the act of 1927 in effect duplicates. The decision in the Parker-Washington case has been cited and its authority has been recognized in the opinions in the following cases: Clarke v. Lawrence, 75 Kan. 26, 34, 88 Pac. 735; State v. Butler County, 77 Kan. 527, 534, 94 Pac. 1004; Railway Co. v. Cowley County, 97 Kan. 155, 156, 155 Pac. 18; City of Topeka v. Wasson, 101 Kan. 824, 826, 168 Pac. 902; State, ex rel., v. Russell, 119 Kan. 266, 237 Pac. 877; Ashley v. Wyandotte County Comm’rs, 121 Kan. 408, 411, 247 Pac. 859; State, ex rel., v. Board of Education, 122 Kan. 701, 707, 253 Pac. 251.
“2. It violates section 1 of article 12 of the constitution of Kansas in that it is a special act conferring corporate powers.”
Since under the authorities cited the act is a general act, it is not a special act, and in the Parker-Washington case it was specifically held that the tax-bill law of 1905 was not a special act conferring corporate power, although when the act was passed the city of Kansas City was the sole present beneficiary of the grant of power.
“3. It violates section 5 of article 12 for the constitution of Kansas which requires that the power of taxation, assessment, borrowing money, contracting debts, loaning credit, etc., be restricted so as to prevent the abuse of such power.”
In the case of Hines and Others v. The City of Leavenworth and Others, 3 Kan. 186, it was held this provision of the constitution was addressed to the legislature and not to the courts, and the subject of what restrictions may be essential and proper is wholly under control of the political department of the government. The Hines case has been cited in the opinions in the following cases: City of Emporia v. Norton, 13 Kan. 569, 584; City of Newton v. Atchison, 31 Kan. 151, 155; Wulf v. Kansas City, 77 Kan. 358, 362, 94 Pac. 207; State, ex rel., v. City of Wichita, 100 Kan. 399, 403, 164 Pac. 290.
The principle involved was applied in Belleville v. Wells, 74 Kan. 823, 827, 88 Pac. 47.
“4. It violates amendment fourteen of the constitution of the United States, which guarantees to all .persons that they shall not be deprived of life, liberty or property without due process of law.”
It is not pointed out in what manner the statute violates the fourteenth amendment. If because of charges against private property, the principle involved is precisely the same as if the usual method of financing public improvements by bond issue were employed. The principle that the legislature may authorize charges against abutting and adjacent property for public improvements was enunciated in the case of Hines and Others v. The City of Leavenworth and Others, 3 Kan. 186, and the principle was approved in the tax-bill case of French v. Barber Asphalt Paving Co., 181 U. S. 324, which up to the present time has not been modified, qualified, or overruled.
“5. It violates the fifth amendment of the constitution of the United States in that its application results in taking property for public use without Just compensation and without due process of law.”
Ever since the decision in 1833 of the case of Barron v. Mayor and City Council of Baltimore, 7 Pet. 243, it has been understood by the bench and bar of the country that the fifth amendment is a limitation upon the power of the federal government only, and does not apply to the states. Other cases dealing with the subject may be found in the annotation following the text of the amendment in the Revised Statutes of Kansas, page xcvii. The annotation col lates the cases to the year 1923. Subsequent cases to the same effect are: Southern Ry. Co. v. Durham, 266 U. S. 178; Corrigan v. Buckley, 271 U. S. 323. This court recognized the doctrine in the case of State of Kansas v. Barnett, 3 Kan. 250, decided in 1865. The Barnett case was followed in the case of State v. Newton, 74 Kan. 561, 87 Pac. 757.
“6. It violates section J6 of article 2 of the constitution of the state of Kansas in that it revives and amends the provisions of R. S. 13-1018.”
The fallacy of this objection was exposed in the tax-bill case of Parker-Washington Co. v. Kansas City, 73 Kan. 722, 85 Pac. 781. That case has been cited as authority upon the same subject in the opinions in the following cases: Bank v. Pearce, 76 Kan. 408, 410, 92 Pac. 53; State v. Pauley, 83 Kan. 456, 464, 112 Pac. 141; Costello v. Riley County, 91 Kan. 532, 536, 138 Pac. 639; Milling Co. v. Junction City, 98 Kan. 253, 255, 157 Pac. 1174 (citing cases antedating the Parker-Washington case); State v. Coletti, 102 Kan. 523, 528, 170 Pac. 995.
Feeling that the statute had not been sufficiently assailed, writers of a brief supporting the statute invite the court’s attention to the following:
“Plaintiff does not complain that the bill contains more than one subject clearly expressed in its title. If such claim were made, it could have no merit. Stewart v. Thomas, 64 Kan. 515; State of Kansas, ex rel. Richard J. Hopkins as Attorney-general, v. Posey, 109 Kan. 552; State of Kansas v. Jerry Scott, 109 Kan. 166.”
The court agrees and is quite confident there are a lot of other provisions of the constitution which the statute does not violate.
From the foregoing it is manifest there was no room to doubt the validity of the statute. In the opinion in the case of Wheat Growers Ass’n v. Goering, 123 Kan. 508, 512, 256 Pac. 119, the court said:
“Defendant’s constitutional objections to the statute are so transparently ill founded that they only require mention to import their own refutation.”
In the case of Conigan v. Buckley, 271 U. S. 323, the court said:
“The mere assertion that the case is one involving the construction or application of the constitution, and in which the construction of federal laws is drawn in question, does not, however, authorize this court to entertain the appeal; and it is our duty to decline jurisdiction if the record does not present such a constitutional or statutoiy question substantial in character and properly raised below, f Citations.] And under well-settled rules, jurisdiction is wanting if such questions are so unsubstantial as to be plainly without color of merit and frivolous. [Citations.]” (p. 329.)
The same may be said concerning resort to the declaratory judgment act. There must be actual controversy, and the function of the court is to decide controversies, not to sell municipal securities. In order to make his office as serviceable to the people of the state as the law contemplates the attorney-general must-be liberal in permitting use of the name of the state; but he should not be importuned to do so when the thoroughly settled law leaves no room for actual controversy.
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Penland, J.:
Russell Maggard challenges the sentence imposed by the district court pursuant to the Habitual Criminal Act (HCA).
On January 9, 1991, Maggard was convicted of two counts of arson for acts committed in 1988. The district court sentenced him to two consecutive terms of 5 to 10 years. The court then enhanced Maggard’s sentences to two consecutive prison terms of 10 to 20 years, pursuant to the HCA.
On appeal, this court reversed Maggard’s sentences and remanded for resentencing. In State v. Maggard, 16 Kan. App. 2d 743, 756, 829 P.2d 591, rev. denied 251 Kan. 941 (1992), we ruled that the State had failed to present sufficient evidence to warrant imposition of the HCA.
On June 2, 1993, the district court resentenced Maggard and imposed the same sentences under the HCA. Maggard appealed. Both parties subsequently filed a joint motion to reverse the district court based on State v. Richard, 252 Kan. 872, 850 P.2d 884 (1992). The parties stipulated that the district court had failed to make findings consistent with K.S.A. 21-4601 and K.S.A. 1993 Supp. 21-4606. This court vacated Maggard’s sentences and remanded.
The State again moved to impose the HCA at the resentencing hearing. Maggard objected on double jeopardy grounds. To establish Maggard’s criminal history, the State offered into evidence three journal entries of felony convictions in Missouri. Maggard objected to the admission of the journal entries. The district court ruled that the State had presented sufficient evidence to sentence Maggard under the HCA. It reimposed Maggard’s original sentences. The district court also computed what Maggard’s sentence would be had the crime occurred on or after July 1, 1993, under the Kansas Sentencing Guidelines Act (KSGA). The district court determined that Count I fell into grid box 5-B and Count II fell into grid box 7-1. Maggard objected to the severity level the court assessed for Count I. He now appeals the sentences imposed by the district court.
Maggard first contends that double jeopardy protections prohibit the State from attempting to enhance a defendant’s sentence under the HCA when it failed to present sufficient evidence justifying enhancement in a prior proceeding.
At Maggard’s original sentencing, the State moved to impose the HCA. The court granted the motion and sentenced Maggard under the HCA. On appeal, this court reviewed the evidence presented by the State to justify imposition of the HCA. It noted that the State used the following evidence: (1) the testimony of the author of the presentence investigation report; (2) the testimony of a deputy sheriff of Johnson County; and (3) a certified document from Missouri that provided minimal details of the defendant’s Missouri convictions. This court found the evidence insufficient to establish Maggard as a habitual criminal. Maggard, 16 Kan. App. 2d at 754. Maggard contends the State had one chance to provide sufficient evidence to justify sentencing him under K.S.A. 21-4504, and its attempt to present further evidence following our determination it had failed to prove its case in the prior proceeding violates his protections against double jeopardy. Determining whether a violation of the Double Jeopardy Clause has occurred involves a question of law over which this court has unlimited review. See State v. Holt, 260 Kan. 33, Syl. ¶ 5, 917 P.2d 1332 (1996).
No published opinion in Kansas has discussed double jeopardy implications when an appellate court remands a sentencing determination based on insufficient evidence. Our appellate courts have remanded sentencing cases to allow the State another opportunity to offer sufficient evidence, without commenting on the double jeopardy implications of such remand. Indeed, in Maggard’s prior appeal, this court expressed the possibility that the defendant might be resentenced under the HCA. Maggard, 16 Kan. App. 2d at 755-56.
State v. Strickland, 23 Kan. App. 2d 615, 933 P.2d 782 (1997), rev. denied 262 Kan. 968 (1997), involved the second appeal of a defendant who challenged the determination of his criminal history. In the prior appeal, this court determined the State had failed to establish defendant’s criminal history because its documentary evidence did not meet the authentication requirements. State v. Strickland, 21 Kan. App. 2d 12, 900 P.2d 854 (1995). On remand, the State presented the authenticating documents. Without raising the double jeopardy issue explicitly, defendant argued the State could not introduce additional evidence during resentencing when it had failed to produce sufficient evidence at the original sentence enhancement proceeding. We rejected defendant’s arguments and noted “the connotation of an appellate court remanding for re-sentencing is such that the entire sentencing process is to occur again, unless directed otherwise.” 23 Kan. App. 2d at 623. The opinion did not address, however, the precise double jeopardy issue Maggard now raises or discuss the cases he cites in support of his contention.
“The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution provides that no person shall be subject to be twice put in jeopardy of life or limb for the same offense. The Clause is enforceable against the states via the Fourteenth Amendment. North Carolina v. Pearce, 395 U.S. 711, 717, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969). Equivalent double jeopardy protection is found in Section 10 of the Kansas Constitution Bill of Rights. See State v. Cady, 254 Kan. 393, 396-97, 867 P.2d 270 (1994). The Double Jeopardy Clause shields persons from ‘(1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense.’ 254 Kan. at 396.” Holt, 260 Kan. at 44-45.
In North Carolina v, Pearce, 395 U.S. 711, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969), the defendants appealed their original convictions and on retrial received greater sentences. The Court held that neither the Double Jeopardy Clause nor the Equal Protection Clause imposes an absolute bar to a more severe sentence upon a reconviction. The Pearce Court did recognize, however, that the Due Process Clause prevents a trial court from increasing a sentence based on vindictiveness towards a defendant who has successfully attacked a conviction. 395 U.S. at 723-26.
Burks v. United States, 437 U.S. 1, 57 L. Ed. 2d 1, 98 S. Ct. 2141 (1978), addressed a somewhat different double jeopardy issue. In that case, a jury convicted the defendant, but the appellate court overturned the conviction based on insufficient evidence. The Court held that the State could not retry the defendant. It characterized the reversal as an implied acquittal. “The Double Jeopardy Clause forbids a second trial for the purpose of affording the prosecution another opportunity to supply evidence which it failed to muster in the first proceeding.” 437 U.S. at 11.
“Since we necessarily afford absolute finality to a jury’s verdict of acquittal — no matter how erroneous its decision — it is difficult to conceive how society has any greater interest in retrying a defendant when, on review, it is decided as a matter of law that the jury could not properly have returned a verdict of guilty.” 437 U.S. at 16.
The Supreme Court again addressed the double jeopardy implications in sentencing in United States v. DiFrancesco, 449 U.S. 117, 66 L. Ed. 2d 328, 101 S. Ct. 426 (1980). The government sought to enhance the defendant’s sentence under the “dangerous special offender” statute, 18 U.S.C. § 3575 (1976). The court increased the sentence by 1 year. The State appealed, arguing the lower court abused its discretion by pronouncing an enhanced sentence of only 1 year. DiFrancesco argued the government’s appeal placed him in double jeopardy. The Court held that double jeopardy did not apply. It ruled that the government could attempt to enhance the sentence further in another proceeding, noting that “the pronouncement of sentence has never carried the finality that attaches to an acquittal.” 449 U.S. at 133.
In Bullington v. Missouri, 451 U.S. 430, 68 L. Ed. 2d 270, 101 S. Ct. 1852 (1981), the Supreme Court applied the rationale of Burks and created an exception to the principle that double jeopardy does not apply to sentencing proceedings. Bullington was convicted of capital murder by a jury. Missouri law provided only two possible sentences for capital murder — death or life imprisonment. The statutes in effect at the time required the trial court to hold a separate presentencing hearing for a capital murder defendant. At the hearing, the court was required to use the same jury that convicted the defendant. The jury received evidence regarding mitigating or aggravating circumstances of the crime. A jury that imposed the death penalty had to designate in writing the aggravating circumstances it found beyond a reasonable doubt. It also had to be convinced beyond a reasonable doubt that the aggravating circumstances justified imposition of the death penalty. If the jury could not reach a unanimous decision, the defendant would receive life imprisonment. 451 U.S. at 434-35.
Bullington’s jury rejected the death penalty for life imprisonment. The court subsequently granted Bullington a new trial. The State again sought the death penalty and specified its intent to rely on the same aggravating circumstances it sought to prove at the first trial. The trial court ruled the State could not do so without violating double jeopardy. The United States Supreme Court agreed.
The Court began its analysis by noting the well-established rule that the Double Jeopardy Clause forbids the retrial of a defendant who has been acquitted of the crime charged. It also noted the Court’s resistance to extending that principle to sentencing.
“The imposition of a particular sentence usually is not regarded as an ‘acquittal’ of any more severe sentence than could have been imposed. The Court generally has concluded, therefore, that the Double Jeopardy Clause imposes no absolute prohibition against the imposition of a harsher sentence at retrial after a defendant has succeeded in having his original conviction set aside. [Citations omitted.]” 451 U.S. at 438.
The Court concluded, however, that the principle should not apply when the sentencing proceeding involved resembles a trial on the issue of guilt or innocence.
The Court looked at the Missouri death penalty proceedings as set out by statute and focused on the fact that in such proceedings, a jury only had two choices of punishment — death or life imprisonment. It also emphasized that in Missouri, the State had to establish aggravating circumstances justifying the death penalty beyond a reasonable doubt. In DiFrancesco, the government only had to prove the defendant’s offender status by a preponderance of the evidence. The Court also discussed the difference in anxiety a defendant feels at a death penalty proceeding as compared to other sentencing hearings. It equated such anxiety with that experienced by a defendant during the guilt phase of a criminal trial. 451 U.S. at 440-46.
The Court concluded that a death penalty proceeding in Missouri resembled a trial on the issue of guilt or innocence. It then discussed the Burks principle that the State may not retry a defendant when a reviewing court has reversed the conviction based on the State’s failure to present sufficient evidence. The Court read the jury’s decision to choose life imprisonment for Bullington as an implied acquittal of the charge that Bullington’s actions warranted the death penalty. Just as the State cannot attempt to convict a defendant on a charge of which he or she has been acquitted, the Court held that the State could not attempt to impose a sentence for an offense of which the defendant had been “acquitted.” The Court noted that in the usual sentencing proceeding, it is impossible to conclude that a sentence less than the statutory maximum amounts to a decision to the effect that the State has failed to prove its case. However, “[b]y enacting a capital sentencing procedure that resembles a trial on the issue of guilt or innocence . . . Missouri explicitly requires the jury to determine whether the prosecution has ‘proved its case.’ ” 451 U.S. at 444. “A verdict of acquittal on the issue of guilt or innocence is, of course, absolutely final. The values that underlie this principle . . . are equally applicable when a jury has rejected the State’s claim that the defendant deserves to die.” 451 U.S. at 445.
The Eighth Circuit extended the Bullington rationale to Missouri’s persistent offender statute in Bohlen v. Caspari, 979 F.2d 109 (8th Cir. 1992), rev’d on other grounds Caspari v. Bohlen, 508 U.S. 971, 125 L. Ed. 2d 660, 113 S. Ct. 2958 (1994). The trial court sentenced Bohlen as a persistent offender. The appellate court affirmed the conviction but, finding no evidence of prior convictions in the record, reversed and remanded for a hearing to determine whether the State could prove Bohlen’s persistent offender status beyond a reasonable doubt. The State presented evidence at the resentencing hearing, and the court again sentenced Bohlen as a persistent offender. The Eighth Circuit ruled that the State violated double jeopardy by attempting to prove Bohlen’s status a second time.
The Eighth Circuit noted that the persistent offender sentencing procedure in Missouri had features similar to those in the capital sentencing hearing in Bullington. The persistent offender statute required that (1) the charging document plead all essential facts warranting a finding that the defendant is a persistent offender; (2) the evidence establish that the facts as pleaded warrant a finding beyond a reasonable doubt that the defendant is a persistent offender; and (3) the trial court make findings of fact that warrant a finding beyond a reasonable doubt that the defendant is a persistent offender. 979 F.2d at 112-13. The court concluded:
“[W]e find that Bullington dictates that the implicit acquittal rationale of Burks must apply to the Missouri persistent offender sentencing scheme to bar a second enhancement hearing where there has been a finding of insufficient evidence of persistent offender status. Missouri considers persistent offender sentencing serious enough to set up a statutory enhancement procedure with protections similar to a trial on guilt or innocence. That procedure is sufficiently similar to trial procedures that it triggers double jeopardy protection. In a persistent offender hearing, the trial court has two alternatives: to find that the defendant is a persistent offender beyond a reasonable doubt or not. The outcome of this decision greatly affects the possible length of the defendant’s sentence. By placing the burden of proof beyond a reasonable doubt on the state, Missouri has indicated that the state should bear most of the risk of error. It is a hallmark of our system of jurisprudence that ‘the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offense.’ [Citation omitted.]” 979 F.2d at 113.
The Fifth Circuit arrived at the same conclusion in the earlier case of Bullard v. Estelle, 665 F.2d 1347 (5th Cir. 1982),judgment vacated on other grounds Estelle v. Bullard, 459 U.S. 1139, 74 L. Ed. 2d 987, 103 S. Ct. 776 (1983). After Bullard was convicted and sentenced, the appellate court held that the State’s evidence was insufficient to sentence Bullard as a habitual offender. The State again attempted to establish Bullard as a habitual criminal. In considering the double jeopardy implications involved, the Fifth Circuit noted that the Texas proceedings required the State to prove the defendant’s prior convictions beyond a reasonable doubt. The Fifth Circuit concluded that Bullington applied and that double jeopardy was violated.
The Sixth Circuit recently addressed the same issue in Carpenter v. Chapleau, 72 F.3d 1269 (6th Cir.), cert. denied 519 U.S. 835, 136 L. Ed. 2d 61 (1996). Carpenter was convicted on five different counts. The State introduced evidence that Carpenter had been convicted of four prior felonies for the purpose of sentencing him as a persistent felony offender. Under Kentucky law, proof of two or more prior felonies permitted a jury to find the defendant a persistent felony offender in the first degree (PFO I). Despite the evidence presented by the State, the jury convicted Carpenter of two counts of persistent felony offender in the second degree (PFO II), which required proof of only one prior felony conviction. Carpenter was convicted on another charge. To enhance the sentence, the State sought to convict Carpenter of being a PFO I by introducing evidence of three of the same prior felony convictions it had introduced as evidence in the first trial. The jury convicted him of PFO I, and his sentence was enhanced.
Carpenter appealed, claiming the State had violated his protection against double jeopardy by convicting him of being a PFO I after a jury had refused to convict him of that status in a prior proceeding. He claimed that the first jury’s PFO II determination amounted to an implicit acquittal of PFO I status. The Sixth Circuit disagreed:
“It is true that PFO proceedings in Kentucky share some characteristics of Missouri’s death penalty proceedings discussed in Bullington. As in Bullington, the state must prove each element of PFO status beyond a reasonable doubt . . . and the PFO status is determined in a separate proceeding. [Citation omitted.] However, we are unconvinced that the anxiety and ordeal suffered by a defendant during a death penalty proceeding are in any respect comparable to those experienced by a defendant in a PFO proceeding.” 72 F.3d at 1273-74.
The court continued:
“In a death penalty trial, the jury considers facts bearing on the guilt or innocence of the accused and circumstances surrounding the underlying crime. In Kentucky’s sentence enhancement proceedings, however, the jury’s determination of PFO status is completely independent of the facts surrounding the underlying crime for which the defendant was convicted. We do not believe the Double Jeopardy Clause is implicated in such a proceeding.” 72 F.3d at 1274.
The Sixth Circuit cited the New Mexico case decided by the Tenth Circuit, Linam v. Griffin, 685 F.2d 369 (10th Cir. 1982), cert. denied 459 U.S. 1211 (1983). In that case the court refused to apply Bullington and permitted a retrial on a sentence enhancement charge because tibe government’s sentence enhancement convictions were overturned for trial error. The Linam case thus differs from this one in that the reviewing court did not base reversal on insufficiency of the evidence.
Bullington and the cases that followed indicate that double jeopardy may apply when a sentencing proceeding involves a hearing comparable to a trial determining guilt or innocence. The HCA in effect at the time of Maggard’s offenses does not call for such proceedings. K.S.A. 21-4504 (Ensley 1988) sets out a range of sentences a court could impose upon a finding that the defendant had prior felony convictions. A judge, not a jury, makes the determination of whether a defendant constitutes a second or third offender, and the State has only to present competent evidence of the former convictions; it does not have to meet the “beyond a reasonable doubt” standard. The Bullington rule should not apply given the differences between Kansas’ sentencing procedure under the HCA and the procedures used in jurisidictions involving trial-like proceedings. Unlike the death penalty proceeding in Bulling-ton, a court considering imposition of the Kansas HCA does not consider facts relating to the underlying crime. The guilt of the defendant as to the underlying crime has been established; the court need only determine the defendant’s status as an offender, and it does this in a very nontrial-like procedure.
Maggard’s contentions must fail. Double jeopardy considerations do not prevent the State from attempting to establish the defendant’s status as a habitual offender, even when it provided insufficient evidence in a prior proceeding.
Maggard next contends the State failed to present sufficient evidence during resentencing to support imposing the HCA against him.
At the resentencing hearing, the State presented certified and authenticated copies from Missouri of the complaints and journal entries identifying three felony convictions for Russell Maggard. One document from Douglas County, Missouri, showed that in 1965, “Russell Maggard” pleaded guilty to felony stealing. A journal entry from another county shows that in 1968, “Russell Ray Maggard” pleaded guilty to first-degree murder. A journal entry from Clay County, Missouri, showed that in 1989, “Russell R. Maggard” was convicted of one count of first-degree arson, one count of second-degree arson, one count of stealing a motor vehicle, and one count of first-degree property damage. When the State offered the exhibits into evidence, defense counsel objected on the grounds of hearsay and relevance. Maggard’s counsel stated, ‘We would object to [State’s exhibit] 1, 2 and 3 also on grounds of relevance. And yes, those documents cited a defendant by the name of Russell Maggard, but without more to relate those documents to my client all we have is shared similarity in names and that’s insufficient.”
In State v. Strickland, 21 Kan. App. 2d 12, 14, 900 P.2d 854 (1995), this court held that copies of documents coming from courts of other states need to be certified or attested, as well as comply with authentication requirements. In this case, the State presented certified and authenticated copies of complaints and journal entries to prove criminal history. “Generally, proof of prior felony convictions to invoke the Habitual Criminal Act [21-4504] is made by using certified or authenticated copies of journal entries of convictions from other states or counties. This is the best possible evidence of a prior felony conviction.” Maggard, 16 Kan. App. 2d at 753. “Absent a denial of identity or rebuttal evidence, proof beyond the identity of the name in the document is not required for admission of the evidence. [Citation omitted]. . . . Additionally, Identity of name is prima facie evidence of identity of person,’ and proof must be offered to overcome that presumption. [Citation omitted.]” State v. Greever, 19 Kan. App. 2d 893, 900, 878 P.2d 838 (1994).
Maggard contends the certified and authenticated documents from Missouri do not constitute sufficient competent evidence because he sufficiently raised the issue of identity at the resentencing. Maggard confuses raising the issue of identity with denying identity. He never denied he was the Russell Maggard who committed the crimes identified in the Missouri documents. Defense counsel merely asserted that the State’s evidence was insufficient to establish identity.
In Greever, this court considered the defendant’s claim that the trial court abused its discretion by invoking the HCA because it did not have competent evidence of prior convictions. Greever argued that because he did not concede the issue of identity, the journal entries of conviction did not amount to sufficient evidence proving that he had committed prior crimes. The court disagreed and noted that Greever did not deny that he was the same person named in the journal entries. “Greever’s attorney only noted that ‘there’s been no proof, no evidence submitted that this defendant is the same defendant that was in the charges that they’ve provided exemplary copies to, and I think it’s incumbent upon the State to prove that the defendant did commit those three offenses.’ ” 19 Kan. App. 2d at 900. The court ruled: “Given the similarity in names, the admissions by Greever’s counsel, the lack of denial of identity, and the failure to provide any rebuttal evidence as to identity, admission of these journal entries as evidence of prior convictions was not an abuse of judicial discretion.” 19 Kan. App. 2d at 901.
As in Greever, defense counsel in this case did not deny that his client was the one identified in the Missouri documents; nor did Maggard present any rebuttal evidence to overcome the presumption created by the similarity of names that he committed the crimes described in the journal entries.
In addition to noting the similarity and unusual nature of the names, the district court also based its ruling on information contained in the presentence investigation report:
“[I]n addition to that, I note that in the presentence investigation the defendant recounted to the presentence investigators apparently that he had obtained his GED in December of 1975 while incarcerated in the Missouri Department of Corrections. Also, under Employment, the defendant reports being employed by Gaines Poultry shortly after being granted parole in 1987. These entries in the presentence investigation and facts reflected in the presentence investigation are consistent with the periods of incarceration and the places of incarceration reflected by State’s Exhibits 1, 2, and 3. And I think that adds weight to the proposition that these convictions relate to this defendant. And the Court finds that the State has sustained the burden of proof and established these convictions.”
The district court did not abuse its discretion in finding the State had presented competent evidence justifying imposition of the HCA. The court considered the certified and authenticated journal entries, as well as other corroborating evidence.
Finally, Maggard contends the court erred in finding one of the arson counts to be a severity level 5 offense.
Because resentencing occurred after July 1, 1993, the district court computed what Maggard’s KSGA sentence would be had the crime occurred on or after July 1, 1993, as K.S.A. 21-4724(f) requires. The district court determined that Count I fell into grid box 5-B and Count II fell into grid box 7-1.
Maggard was convicted of two counts of arson in violation of K.S.A. 21-3718 (Ensley 1988) for acts committed in 1988. Count I involved a fire at the Hawthorne subdivision in Overland Park, and Count II involved a fire at the Westbury subdivision. The statute in effect at that time classified arson as a class C felony and made no distinction based on the amount of damage to the property involved. K.S.A. 21-3718 (Ensley 1988). The legislature amended the arson statute following passage of the KSGA. The statute now classifies arson as a severity level 5 nonperson felony if the property is damaged to the extent of $50,000 or more; severity level 6 nonperson felony if the damage is between $25,000 and $50,000; severity level 7 nonperson felony if the damage is less than $25,000. K.S.A. 21-3718. Because Maggard was charged prior to the amendments, the complaint against him does not allege the amount of property damage involved in the two counts.
A similar problem occurred in State v. Whitaker, 260 Kan. 85, 917 P.2d 859 (1996). Whitaker was convicted of aggravated battery against a law enforcement officer. Although Whitaker committed his crimes prior to the effective date of the KSGA, the resentencing occurred after the KSGA took effect. In compliance with K.S.A. 21-4724(f), the sentencing judge computed the appropriate KSGA sentence and assigned a severity level of 3 to the aggravated battery against a law enforcement officer offense.
The elements of aggravated battery against a law enforcement officer changed with the enactment of the KSGA. The amended statute changed the definitions of aggravated battery against a law enforcement officer and assigned different severity levels to the various manners in which the crime could be committed. The statute as amended assigned a severity level of 3 if the crime was committed by “ ‘intentionally causing great bodily harm to another person or disfigurement of another person.’ ” 260 Kan. at 91.
The Supreme Court considered whether the sentencing court properly classified Whitaker’s offense as a severity level 3 crime. In support of his contention that the severity level should be 6 and not 3, Whitaker pointed out that the State did not charge or prove at trial the element of “intentionally causing great bodily harm or disfigurement.” In analyzing the issue, the court commented:
“Under Fierro, 257 Kan. 639, Syl. ¶ 5, and our later decision in Farris v. McKune, 259 Kan. 181, Syl. ¶ 2, 911 P.2d 177 (1996), we decided that in applying K.S.A. 21-4724, the Department of Corrections (DOC) or the sentencing judge must convert a pre-KSGA crime to an analogous post-KSGA crime. The sentencing judge is required to compute the guidelines classification ‘by looking at actual conduct and by applying the actual acts committed to the comparable crime in effect after July 1, 1993.’ Fierro, 257 Kan. at 651. Any uncontested information may be considered to determine what the actual conduct of the offender was. Farris, 259 Kan. 181, Syl. ¶ 3. Here, even though it was unnecessary for the State to prove an intent to cause great bodily harm for Whitaker to be convicted of aggravated battery against a law enforcement officer, if the facts show such an intent Whitaker’s crime may be assigned a severity level of 3 based on that intent.” 260 Kan. at 92-93.
The court then reviewed the facts in the record and found evidence that Whitaker possessed an intent to cause great bodily harm. The court concluded that a severity level 3 was proper.
In this case, the court received evidence at the resentencing hearing concerning the damage resulting from Maggard’s acts. James Bynan operated the business of Aurora Homes, Inc., and owned the duplex structure in the Hawthorne subdivision that the defendant destroyed by fire in 1988. He testified that the damage to the two homes amounted to $170,000 each. Chief Chuck Backer, who served at the Overland Park Fire Department at the time of the fires, testified that the defendant had been convicted of setting the Hawthorne fire, as well as starting a fire at a residence in the Westbury subdivision, where the extent of damage was less than $50,000.
The trial court properly classified Count I as a severity level 5 felony because the amount of damage involved exceeded $50,000. It also properly classified Count II as a severity level 7 felony because the State ultimately did not prove that damages exceeded $25,000.
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|
Rogg, J.:
Kenneth Doolin appeals from the denial of his K.S.A. 60-1507 petition for retroactive sentence conversion under the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 etseq.
On September 30, 1992, Doolin was convicted by a jury of attempted aggravated robbery, conspiracy to commit aggravated robbery, and aggravated battery. The State’s evidence at trial revealed that Doolin shot a store clerk three times while attempting to rob a convenience store with another individual on June 26,1992. The store clerk was seriously injured but survived the shooting.
Doolin was sentenced to 5 to 20 years’ imprisonment on the attempted aggravated robbery count, 1 to 5 years on the conspiracy to commit aggravated robbery count, and 5 to 20 years on the aggravated battery count. The trial court ordered the sentences to run consecutively. Doolin’s convictions were affirmed by this court in State v. Doolin, No. 69,388, unpublished opinion filed February 25, 1994.
On August 13,1993, the Department of Corrections (DOC) notified Doolin that he was ineligible for sentence conversion based on his aggravated battery conviction, which it classified as a severity level 4 crime. Doolin subsequently filed a petition under K.S.A. 60-1507, claiming that he was eligible to have his indeterminate sentence converted to a guidelines sentence. He argued that under State v. Houdyshell, 20 Kan. App. 2d 90, 95, 884 P.2d 437 (1994), the DOC incorrectly classified the aggravated battery as a severity level 4 instead of a severity level 7 crime. Doolin further claimed his criminal histoiy category was I.
The district court denied Doolin’s petition without holding an evidentiary hearing, finding that his claims were without merit on their face. The court found Doolin’s contention regarding the severity level was irrelevant because he was ineligible for conversion even if the aggravated battery was classified as a severity level 7 offense. The court noted Doolin was ineligible because his other convictions were severity level 5 crimes and his criminal history category was E rather than I. Doolin timely appeals.
Doolin argues that the district court erred in denying his petition without holding a hearing or appointing counsel. He maintains that without an evidentiary hearing, the court did not have sufficient evidence to rule on his challenges to the assigned severity level for the aggravated battery conviction or his criminal history determination.
An evidentiary hearing on a K.S.A. 60-1507 petition is not required if the motion and the files and records of the case conclusively show that the movant is not entitled to relief. K.S.A. 60-1507(b). The burden is on the movant to allege facts sufficient to warrant a hearing on the motion. State v. Jackson, 255 Kan. 455, 463, 874 P.2d 1138 (1994). If no substantial issues of fact are presented by the motion, the district court is not required to appoint counsel or hold a hearing. Rhone v. State, 211 Kan. 206, 208, 505 P.2d 673 (1973).
Doolin claims the DOC improperly assigned a severity level 4 to his aggravated battery conviction because the State never alleged or proved the essential element of intent to cause great bodily harm during his trial.
Doolin was convicted of aggravated battery pursuant to K.S.A. 21-3414 (Ensley 1988), which provides:
“An 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 harm 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.”
In 1993, the statute was amended to read in pertinent part, as follows:
“(a) Aggravated battery is:
(1)(A) Intentionally causing great bodily harm to another person or disfigurement of another person; or
(B) intentionally causing bodily harm to another person with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted; or
(C) intentionally causing physical contact with, another person when done in a rude, insulting or angry manner with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted.
“(b) Aggravated battery as described in subsection (a)(1)(A) is a severity level 4, person felony. Aggravated battery as described in subsections (a)(1)(B) and (a)(1)(C) is a severity level 7, person felony.” K.S.A. 1993 Supp. 21-3414.
Under the old statute, Doolin had to unlawfully touch or apply force with intent to injure the victim. See K.S.A. 21-3414 (Ensley 1988). However, under the 1993 version, Doolin must have intended to cause great bodily harm to the victim for the crime to rise to severity level 4. See K.S.A. 1993 Supp. 21-3414.
In State v. Fierro, 257 Kan. 639, 650, 895 P.2d 186 (1995), the court noted: “In converting a sentence, the legislature intended that the Department of Corrections use records available to it to determine what the defendant did when the crime was committed and convert that crime to an analogous crime existing after July 1, 1993.” The court held that the actual conduct of the defendant controls the manner in which a guidelines sentence is computed by applying the acts committed to the comparable crime in effect after July 1,1993. 257 Kan. at 650; see State v. Whitaker, 260 Kan. 85, 94, 917 P.2d 859 (1996). Consequently, the only real issue in this case is whether, based on the facts of the case, the DOC correctly found that Doolin intended to cause great bodily harm.
Generally, whether bodily harm is great is a question of fact. 260 Kan. at 94. The State, relying on State v. Valentine, 260 Kan. 431, 921 P.2d 770 (1996), contends that Doolin committed a severity level 4 aggravated battery as a matter of law. In that case, Valentine shot the victim four or five times, one gunshot severing the victim’s spine and paralyzing him from the waist down. On appeal, Valentine argued that the trial court erred in failing to instruct the jury on severity level 7 aggravated battery as a lesser included offense of severity level 4 aggravated battery based on State v. Ochoa, 20 Kan. App. 2d 1014, 895 P.2d 198 (1995). The Supreme Court rejected this argument, stating:
“A ‘through and through’ bullet wound in the abdomen does not present a question of fact as to whether it is mere bodily harm or great bodily harm. This constitutes great bodily harm. See State v. Whitaker, 260 Kan. 85, 917 P.2d 859 (1996). There may be instances where a bullet wound is not ‘great’ bodily harm when, for example, it grazes the skin, but we cannot envision a ‘through and through’ bullet wound, as occurred in Ochoa, that does not amount to great bodily harm. That part of Ochoa, inconsistent with this opinion, is disapproved. As such, we have no difficulty in finding that a bullet wound which severs the spinal cord and causes paralysis, a much worse wound than a through and through bullet wound, qualifies as great bodily injury as a matter of law.” 260 Kan. at 435.
Here, the evidence presented at trial indicates that Doolin shot the store clerk three times with an assault rifle. The clerk was shot in the calf, the upper right leg, and the left hip. The clerk underwent 8 hours of emergency surgery, and his hip socket and hip bone sustained so much damage that it was necessary to replace them with artificial ones. The jury found Doolin guilty of aggravated battery beyond a reasonable doubt based on this conduct. While the record is not clear whether the bullet wounds were “through and through” wounds, we find as a matter of law that the injuries sustained by the clerk were serious enough to constitute great bodily harm. See State v. Valentine, 260 Kan. at 435; State v. Whitaker, 260 Kan. at 94. Accordingly, the DOC properly assigned a severity level 4 to the offense.
Doolin next argues that the district court erred in finding that his criminal history was a category E without requiring the State to present sufficient evidence to meet its burden of proof. He correctly notes that when a defendant challenges prior convictions set forth in the criminal history worksheet, the State has the burden of producing evidence, by a preponderance of the evidence, to establish the disputed convictions in the worksheet. K.S.A. 1993 Supp. 21-4715(a) and (c).
However, since Doolin committed a severity level 4 aggravated battery as a matter of law, the challenge to his criminal history is moot as to this sentencing because that conviction’s presumptive sentence is imprisonment, excluding him from retroactive application of the guidelines to his sentence for this offense. K.S.A. 1993 Supp. 21-4724(b)(l). In State v. Lunsford, 257 Kan. 508, Syl. ¶ 1, 894 P.2d 200 (1995), the Supreme Court held: “If a defendant is ineligible for conversion on any crime for which he or she is serving a sentence, he or she is ineligible for retroactive application of the sentencing guidelines.” (Emphasis added.)
Doolin argues that the consecutive nature of his sentences distinguishes this case from Lunsford. However, there is nothing in Lunsford indicating that its holding is limited to cases involving concurrent sentences. Thus, under Lunsford, since Doolin’s sentence for aggravated battery is not eligible for conversion, his other sentences for attempted aggravated robbery and conspiracy to commit aggravated robbery are also rendered ineligible for conversion.
Although the district court incorrectly relied on the contested criminal history in concluding that Doolin was ineligible for conversion, a trial court’s decision that reaches the right result will be upheld even though the court relied on the wrong reason for its decision. See Cabral v. State, 19 Kan. App. 2d 456, 466, 871 P.2d 1285, rev. denied 255 Kan. 1000 (1994). Thus, the district court did not err in denying Doolin’s K.S.A. 60-1507 motion.
However, while the current sentence is not affected by Doolin’s criminal history, the determination in this case will follow Doolin in regard to any future sentencing on a new conviction. This is Doolin’s opportunity to raise the issue. For this reason, we remand the criminal history issue to the trial court for the appointment of counsel and an evidentiary hearing. The determination made by the court after hearing should be conveyed to all appropriate authorities.
Affirmed and remanded with directions. | [
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|
Green, J.:
This is an appeal by Chimane D. Reno from a judgment dismissing a paternity suit against the putative father of her two children. On appeal, Reno contends the trial court lacked subject matter jurisdiction to enter an order requiring genetic testing of her, her children, and the putative father of the two children. Additionally, Reno contends that the trial court improperly ordered genetic testing of the parties before determining whether the tests were in the best interests of the children. We disagree and affirm.
In the summer of 1996, the Kansas Department of Social and Rehabilitation Sendees (SRS) filed a paternity action against Lonnie E. Miller. The petition joined Reno, the mother, and L.M. and C.M., the minor children, as co-plaintiffs. The petition for paternity alleged that Miller was the father of both L.M. and C.M.
The trial court ordered genetic testing of Miller, Reno, L.M., and C.M. According to the order compelling genetic testing, SRS was the party that moved for the testing and was the only party present for the hearing. Although Miller was not present, he demonstrated his approval of the order by having signed it earlier. When the genetic testing revealed that Miller was not the biological father of L.M. and C.M., the trial court dismissed the paternity action against him.
Reno first argues that because she was not given notice of the action, the trial court lacked subject matter jurisdiction to make any rulings in the case. To address this issue, we must consider K.S.A. 38-1116. K.S.A. 38-1116(a) states that the trial court will have jurisdiction when an action is brought under the Kansas Parentage Act (KPA), K.S.A. 38-1110 etseq. The petition for paternity clearly states that this action was filed under K.S.A. 38-1110 et seq., K.S.A. 39-709, K.S.A. 39-718b, K.S.A. 39-755, and K.S.A. 39-756. Therefore, under K.S.A. 38-1116, if this action was properly brought under the KPA, the trial court had subject matter jurisdiction.
According to the petition, and undisputed by Reno, Reno assigned her support rights to SRS. Under K.S.A. 39-755(a), “[i]n cases where [SRS] is deemed to have an assignment of support rights . . . [SRS] is authorized to bring a civil action in the name of the state of Kansas or of the obligee whose support rights are assigned . . . .” SRS brought such an action and named Reno as a party to the suit.
Reno does not contend that SRS lacked authority to bring the suit; rather, Reno argues that under K.S.A. 1996 Supp. 38-1117(a), she was entitled to notice in addition to being joined as a necessary party.
“Interpretation of a statute is a question of law, and our review is unlimited.” In re Tax Appeal of Boeing Co., 261 Kan. 508, Syl. ¶ 1, 930 P.2d 1366 (1997). Additionally, “[w]hen 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).
K.S.A. 1996 Supp. 38-1117(a) states:
“[T]he child, the mother, each man presumed to be the father under K.S.A. 38-1114 and amendments thereto and each man alleged to be the father shall be made parties or, if not subject to the jurisdiction of the court, shall be given notice of the action in a manner prescribed by the court and shall be afforded the opportunity to be heard.” (Emphasis added.)
K.S.A. 1996 Supp. 38-1117(a) clearly uses the word “or” rather than “and” when setting forth the joinder and notice requirements to the child, the mother, and the fathers. The result is that the plain language of K.S.A. 1996 Supp. 38-1117(a) states that the child, the mother, the presumed fathers, and the alleged fathers shall be made parties to the suit; however, if the aforementioned individuals are not made parties to the suit, then they shall be given notice of the action.
In this case, Reno was joined as a party to the action as a co-plaintiff. Under K.S.A. 1996 Supp. 38-1117(a), the trial court was not required to give Reno notice of the action. Therefore, the trial court had subject matter jurisdiction over this action.
Reno next argues that the trial court erred in not holding an evidentiary hearing to determine whether paternity testing was in the best interests of the children. Reno chiefly relies upon the Kansas cases of In re Marriage of Ross, 245 Kan. 591, 783 P.2d 331 (1989), and Florida Dept. of HRS v. Breeden, 21 Kan. App. 2d 490, 901 P.2d 1357 (1995), to make her argument.
The Kansas Supreme Court held that in some parentage actions an evidentiary hearing on the best interests of the child must pre cede an order for paternity testing. Ross, 245 Kan. at 602. This type of hearing is now commonly referred to as a Ross hearing.
In Ross, R.A.R. was bom during the marriage of Sylvia and Robert Ross. Two years after R.A.R. was bom, Robert and Sylvia divorced. Sylvia was given primary custody of R.A.R., and Robert was granted visitation rights and ordered to pay child support. One year later, Robert was granted joint custody of R.A.R. Two years after Robert was granted joint custody, Sylvia filed a petition, pursuant to the KPA, alleging Charles Austin was the biological father of R.A.R., requesting a guardian ad litem be appointed for R.A.R., and requesting that all parties submit to paternity blood testing.
Upon the guardian ad litem’s recommendation, a blood test was ordered. Subsequently, Charles filed a “ ‘motion to dismiss the paternity action for failure of the court to determine the best interests of the child.’ ” 245 Kan. at 593. The trial court denied the motion, stating that “ ‘it had previously been determined it was in R.A.R.’s best interests for his biological father to be determined.’ ” 245 Kan. at 593. The trial court further mled that testimony would be limited to the determination of biological parentage, and Robert and Charles would not be permitted to introduce evidence of R.A.R.’s best interests.
As a result of the paternity test, Charles was found to be R.A.R.’s biological father. The trial court ordered Charles to pay child support to Sylvia and ordered R.A.R.’s visitation schedule with Robert to remain unchanged.
In reversing the trial court’s order for paternity testing, the Kansas Supreme Court stated:
“When a marital relationship has been terminated, children of the marriage need for the court to provide stability in their lives, to acknowledge that their perception of time is different from that of an adult, and to take into consideration their past relationship with their parents. Prior to ordering a blood test to determine whether the presumed parent is the biological parent, the district court must consider the best interests of the child, including physical, mental, and emotional needs. The shifting of paternity from the presumed father to the biological father could easily be detrimental to the emotional and physical well-being of any child.” 245 Kan. at 602.
This court considered the Ross decision in Breeden. In Breeden, Valarie Petit, the mother of F.E.P., made an assignment of her rights to child support to Florida Department of Health and Rehabilitative Services (FHRS). FHRS and Valarie filed a petition alleging that at the time of F.E.P.’s birth, Valarie Petit was married to Patrick Petit. Under Kansas law, Patrick is the child’s presumed father. However, in the petition, FHRS and Valarie alleged that Steven Breeden, a Kansas resident, was the biological father of F.E.P.
In comparing the facts of Breeden to Ross, this court stated:
“In a case brought under K.S.A. 38-1115(b), the ultimate issue involved is support, not custody or visitation. The KPA contains no mandate that the best interests of the child be the criteria used to determine initial support.
“However, and most importantly for the child’s benefit, the Ross court also relied on the effect of a paternity determination on the existing relationship with the presumed father as a justification for requiring a best interests of the child hearing. The Ross court chastened: ‘The court has not only bastardized the child and relieved the presumed father of all necessity of support, but it has placed the obligation to support the child on the biological father, who has never had a bonding relationship with the child.’ ” 21 Kan. App. 2d at 501-02.
Based upon the public policy that courts must “ ‘act in the best interests of the child when imposing legal obligations or conferring legal rights on the . . . father/child relationship,’ ” the Breeden court held that “a trial court is required to have a Ross hearing before ordering blood tests in a paternity proceeding pursuant to K.S.A. 38-1115(b).” 21 Kan. App. 2d at 503 (quoting Ross, 245 Kan. at 597).
Unlike Ross and Breeden, the children in this case were not bom to a marriage. Furthermore, no evidence exists in the record that Miller was the presumed father of the two children. See K.S.A. 1996 Supp. 38-1114. Finally, Miller was the only alleged father involved in this action. Because these distinguishing factors were not present in either Ross or Breeden, the trial court was not required to conduct a Ross hearing before ordering genetic testing in this matter.
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Wahl, J.:
Galen Decker appeals from the trial court’s dismissal for failure to state a claim in his action asking the trial court to set aside an office lease entered into by the Kansas Department of Social and Rehabilitation Services (SRS) and KA.NSA Development Corporation (KDC).
SRS published notice of its desire to rent an office location prepared to its specifications for its field office in Liberal, Kansas. KDC’s proposal to prepare and lease such office space for a 10-year term was accepted by SRS. Decker also presented a proposal, but it was not selected. Decker filed an action against SRS, claiming the lease should be set aside or he should receive damages based on SRS’s failure to select the office space by a competitive bid process. KDC was originally a defendant in the action but was dismissed on Decker’s motion.
SRS filed a motion to dismiss the suit, claiming Decker failed to state a claim on which relief could be granted. Decker filed a motion for summary judgment. The trial court granted SRS’s motion to dismiss and denied Decker’s motion for summary judgment. Decker filed a timely notice of appeal.
The standard of review on a motion to dismiss for failure to state a claim is set out in Noel v. Pizza Hut, Inc., 15 Kan. App. 2d 225, 231, 805 P.2d 1244, rev. denied 248 Kan. 996 (1991):
“In essence, we [appellate courts] are required to assume that the facts alleged by the plaintiffs are true, and we are required to make any reasonable inference to be drawn from those facts. In addition, it is our duty to determine whether those pleaded facts and inferences state a claim, not only on the theoiy which may be espoused by the plaintiffs, but on any possible theory we can divine.”
Further, in Davidson v. Denning, 21 Kan. App. 2d 225, Syl. ¶ 1, 897 P.2d 1043 (1995), rev. denied 259 Kan. 659 (1996), we held:
“When a motion to dismiss under K.S.A. 60-212(b)(6) raises an issue concerning the legal sufficiency of a claim and the trial court receives and considers matters outside the pleadings, the motion shall be treated as one for summary judgment and disposed of as provided under K.S.A. 60-256.”
The trial court made factual findings based, at least in part, on the affidavit Decker filed with his motion for summary judgment. Therefore, this case should be considered as a summary judgment case.
“Summary judgment is proper where the only question or questions presented are questions of law.” Fletcher v. Nelson, 253 Kan. 389, 391, 855 P.2d 940 (1993).
“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 of material fact and that the moving party is entitled to judgment as á matter of law.” Mitzner v. State Dept. of SRS, 257 Kan. 258, 260, 891 P.2d 435 (1995).
In the case before us, there appears to be no genuine issue of material fact. This court must, therefore, determine whether SRS was entitled to judgment as a matter of law.
Decker alleged that SRS was required to select its “build to suit” lease pursuant to K.S.A. 75-3739(a), which provides:
“All contracts for construction and repairs, and all purchases of and contracts for supplies, materials, equipment and contractual services to be acquired for state agencies shall be based on competitive bids, except that competitive bids need not be required: (1) For contractual services when, in the judgment of the director of purchases, no competition exists; or (2) when, in the judgment of the director of purchases, chemicals or other material or equipment for use in laboratories or experimental studies by state agencies are best pin-chased without competition, or where rates are fixed by law or ordinance; or (3) when, in the judgment of the director of purchases, an agency emergency requires immediate delivery of supplies, materials or equipment, or immediate performance of services; or (4) when any statute authorizes another procedure or provides an exemption from the provisions of this section.”
Determination of the issue before us requires interpretation of K.S.A. 75-3739(a). “Interpretation of a statute is a question of law. An appellate court’s review of a question of law is unlimited.” Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, Syl. ¶ 1, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995).
“When 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). “ ‘The 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 statute if it is reasonably possible to do so.’ ” Guardian Title Co. v. Bell, 248 Kan. 146, 151, 805 P.2d 33 (1991).
We can distill the issue into whether the “build to suit” lease is a contract for construction and repairs or a purchase of or contract for supplies, materials, equipment, or contractual services. The document itself is entitled “Real Estate Lease.” The lease term is for 10 years. The work required to prepare the building to meet SRS specifications would probably not be performed over a significant portion of those 10 years, if during any portion of that time. Although KDC would probably have to do some construction work in order to meet the SRS specifications, the major part of the agreement between SRS and KDC is a real estate lease, not a contract for construction and repairs. K.S.A. 75-3739(h), another subsection within the statute which refers to when competitive bidding is required, applies to leases, stating:
“Except as otherwise specifically provided by law, no state agency shall enter into any lease of real property without the prior approval of the secretary of administration. Such state agency shall submit to the secretary of administration such information relating to any such proposed lease as the secretary may require. The secretary of administration shall either approve, modify and approve or reject any such proposed lease.”
It is a well-accepted principle of statutory construction that
“tg]eneral and special statutes should be read together and harmonized whenever possible, but to the extent a conflict between them exists, the special statute will prevail unless it appears the legislature intended to make the general statute controlling.” Kansas Racing Management, Inc. v. Kansas Racing Comm’n, 244 Kan. 343, 353, 770 P.2d 423 (1989).
K.S.A. 75-3739(h) applies directly to leases and, therefore, is specifically applicable to the factual situation at hand, while K.S.A. 75-3739(a) is not.
The competitive bid procedure is under the supervision of the director of purchases. K.S.A. 75-3740. Under K.S.A. 75-3739(h), the procedure for getting leases approved by the secretary of administration does not involve the director of purchases. Leases are specifically provided for in a manner different from contracts for construction and repairs.
The trial court was correct, as a matter of law, in holding the K.S.A. 75-3739(a) competitive bid procedure was not applicable to the present case.
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Smith, J.:
Kevin L. Adams appeals the district court’s dismissal of his habeas corpus petition. He contends he should have been conditionally released from his current sentence and should be currently serving his sentence for a subsequent conviction.
Adams has been serving a controlling prison sentence of 3 to 12 years. His conditional release date was originally set at April 5, 1995; his maximum release date is April 5, 2001. The case developed as follows:
March 24,1994: Adams was paroled. . ,
September 4,1994: Adams was arrested for violating the conditions of his parole, and new criminal charges were filed.
September 15, 1994: A hearing officer found probable cause that Adams violated the conditions of his parole.
January 23, 1995: Adams was convicted on a new charge.
March 30,1995: Adams was sentenced to 13 months’ imprisonment for the new conviction. The sentencing court found that Adams’ sentence begins date was October 27, 1994, and he was credited on that sentence with the 154 days between October 27,1994, and March 30,1995.
April 5, 1995: Adams’ conditional release date for his original offense arrived.
April 18,1995: Adams was recommitted to the state prison from the county jail.
May 10, 1995: Adams’ conditional release was revoked, and he was passed until May 1996 for further action.
Adams filed this habeas corpus action claiming that because his conditional release date arrived while he was on parole, he should have been discharged from his 3- to 12-year sentence and he should currently be serving his subsequent 13-month sentence. The district court denied Adams’ petition, finding the Kansas Parole Board (Board) properly revoked Adams’ conditionial release so that he was still serving his 3- to 12-year sentence and would serve his subsequent 13-month sentence thereafter. Adams appeals.
. Adams argues that pursuant to K.S.A. 22-3717(f), he should have been conditionally released on April 5,1995, from his current sentence and he should currently be serving his subsequent 13-month sentence. Resolving this issue requires construing the applicable statutes and administrative regulations. Generally, interpretation of statutes is a question of law, and this court’s review of such issues is unlimited. Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, Syl. ¶ 1, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995). The statutes governing this issue are supplemented by regulations promulgated by the Board. K.S.A. 22-3717(m). This court gives great weight to an agency’s interpretation of its own regulations. Hickey v. Kansas Corporation Comm’n, 244 Kan. 71, 76, 765 P.2d 1108 (1988).
The pertinent' part of K.S.A.. 22-3717(f) provides that if a person commits a crime after July 1,1993, while on parole, and the person is not eligible for retroactive application of the sentencing guidelines, “the new sentence shall not be aggregated with the old sentence, but shall begin when the person is paroled or reaches the conditional release date on the old sentence.” Adams claims that under this statute, he should have been conditionally released on April 5, 1995, and should have started serving his subsequent 13 month sentence, Adams’ claim is misplaced. The above-mentioned part of K.S.A. 22-3717(f) simply provides that a sentence for a crime committed while on parole must run consecutive to rather than concurrent with the sentence for which the offender has been paroled. K.S.A. 22-37l7(f) in no way requires any inmate’s conditional release and certainly does not require the conditional release of an inmate awaiting a parole revocation hearing.
K.S.A. 1996 Supp. 75-5217(d) governs parole violations and provides, in.pertinent part:
“In the event the released inmate reaches conditional release date as provided by K.S.A. 22-3718 and amendments thereto after a finding of probable cause ... of a violation of the released inmate’s conditions of release, but prior to a hearing before the Kansas parole board, the secretary of corrections shall be authorized to detain the inmate until the hearing by the Kansas parole board. The secretary shall then enforce the order issued by the Kansas parole board.”
This statute indicates that Adams was properly kept in confinement while awaiting his parole revocation hearing, despite the arrival of his conditional release date. Although this statute provides that the Secretary of Corrections shall enforce the Board’s revocation order, this statute does not define the scope of the Board’s authority in fashioning that order.
The Kansas Administrative Regulations define the Board’s authority in fashioning orders pursuant to a revocation of parole or conditional release. K.A.R. 45-10-1 provides in pertinent part:
“(b) Conditional releasees shall be placed under parole supervision in the same manner as parolees. Conditional releasees shall be subject to the same terms and conditions as parolees while under supervision. If probable cause is established that a conditional releasee has violated the conditions of release, the conditional releasee may be returned to confinement upon determination of the secretary of corrections and thereafter, subject to the final hearing and order of the board, considered in the same manner as a parole violator. . . .
“(c) A parolee who achieves conditional release status while on parole, shall continue under supervision of the parole officer. The conditions of parole shall not be changed by the parolee reaching conditional releasee status.”
This regulation indicates that a parole violation, in substance, also constitutes a violation of conditional release. Here, Adams’ conditional release date arrived prior to his parole revocation. Thus, he achieved conditional release status while on parole and awaiting his parole revocation hearing. Because the conditions of parole are the same as the conditions of conditional release, Adams violated the conditions of his conditional release.
K.A.R. 45-9-3(a) provides, in pertinent part:
“The board may require an inmate whose parole has been revoked to serve all or any part of the remaining time on the sentence up to the original conditional release date, plus all good time forfeited by the board. The board may require an inmate whose conditional release has been revoked to serve all or any part of the remaining time on the sentence.”
As explained above, by the time of the revocation hearing, Adams was on conditional release. The Board responded by revoking his conditional release. Thus, the second sentence in K.A.R. 45-9-3(a) quoted above governed the Board’s authority regarding its revocation order: The Board had the authority to order Adams to serve all or any part of the time remaining on his 12-year sentence.
Adams argues that he was prejudiced by the Board’s delay in holding the parole revocation hearing. To be entitled to habeas corpus relief due to a delay in the parole revocation hearing, Adams must show both that he suffered prejudice as a result of the delay and, also, that the delay was unreasonable. Parker v. State, 247 Kan. 214, 216, 795 P.2d 68 (1990). To this end, K.A.R. 45-9-2(a) provides that parole revocation hearings “shall be held without unnecessary delay.”
In Parker, the habeas petitioner was arrested for violating parole by committing new crimes, and the parole revocation hearing was delayed for 7 months during which time the State prosecuted Parker for the new offenses. Parker was incarcerated about a month and a half for violating parole before he became effectively incarcerated for the new offenses; after the prosecution of the new offenses, he was incarcerated another 2 months before the parole revocation hearing. In sum, he spent 3% months incarcerated while awaiting his parole revocation hearing. The court held that, taking into account the prosecution of the new charges, the delay in holding the parole revocation hearing was not unreasonable. 247 Kan. at 216.
Parker is factually on all fours with the instant case. Here, Adams was arrested for the parole violation and the new offenses on September 4, 1994. The State prosecuted Adams for his new offense. Adams’ sentence begins date for his new offenses was October 27, 1994, and he was credited on that sentence with the 154 days between October 27, 1994, and March 30, 1995. The revocation hearing was held on May 10, 1995. Thus, Adams spent about a month and a half incarcerated for the parole violation before the State initiated the prosecution of the new charges; Adams spent about 2 months awaiting his revocation hearing following the prosecution of the new charges. As in Parker, the delay of the revocation hearing was not unreasonable.
Adams placed himself, the Board, and the district court in this predicament by committing new crimes while he was on parole, just 8 months before his conditional release date. The inability of the district court and the Board to complete both the new criminal prosecution and the revocation hearing prior to Adams’ conditional release date stems from the timing of Adams’ own criminal actions rather than on a denial of any of Adams’ rights.
Lastly, Adams argues that under K.A.R. 44-6-124(g), the Board should have revoked some of his good time credits rather than revoking his conditional release.
Adams’ reliance on K.A.R. 44-6-124(g) is misplaced. K.A.R. 44-6-124(g) deals with disciplinary infractions while in prison, not with parole violations. Moreover, as explained above, if a revocation hearing takes place after the releasee’s conditional release date, the Board may revoke the conditional release and require the offender to serve all or any part of the remainder of the sentence; the Board is not restricted to revoking the releasee’s good time credits. Adams’ revocation hearing took place after his conditional release date. As explained above, the timing of the revocation hearing was not improper. The Board properly exercised its authority by revoking Adams’ conditional release and passing him to be reviewed a year later.
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The opinion of the court was delivered by
Dawson, J.:
This was an action to recover a real-estate dealer’s commission of $200. Judgment on the pleadings and on defendant’s opening statement was entered in plaintiff’s behalf, and defendant appeals.
The defendant, George T. Stevenson, of Turón, Kan., owned a farm near Cayuga, N. Y., which he desired to sell, and to that end he employed the plaintiff, .John Collopy, a Reno county real-estate dealer, to find a buyer. Collopy got in touch with one Eber T. McDonald, of Cayuga, N. Y., and induced McDonald and Stevenson to enter into a written contract for the sale of the farm at an agreed price of $7,500, of which 'sum $4,800 was to be paid by assuming a mortgage on the farm and the balance of $2,700 was to be paid in cash when the title was accepted. The contract contained the usual provision that the seller was to furnish an abstract showing good, clear and unencumbered record title except the specified mortgage, and the abstract was to be timely submitted to the buyer for examination. The contract further provided:
“. . . Said party of the second part [McDonald] hereby agrees to and does hereby deposit with the State Bank of Turón, Turón, Kan., in the sum of $500 as a forfeit in case the second party fails to pay the balance of said consideration.
“It is further agreed that first party is to pay a commission on this sale of $400 as follows: John Collopy, Turón, Kan., $200, and Eber T. McDonald of Cayuga, N. Y., $200. Commission to be paid when deal is closed.
“Geo. T. Stevenson. (Seal.)
“Eber T. McDonald. (Seal.)”
Defendant’s answer admitted he signed the contract, but alleged that McDonald was merely a coagent of plaintiff; that McDonald was negotiating to sell the land to the tenant on the farm, one Decker, of Cayuga, N. Y.; that Decker never signed the contract; that McDonald was a man of small means and unable to pay the $2,700 cash; that Decker was unable financially to purchase the property; and that plaintiff never did produce a purchaser ready, able and willing to buy the farm.
Defendant’s opening statement repeated and amplified the facts admitted and alleged in his answer — -that Decker raised the $500 which McDonald deposited in the Turón bank in accordance with the written contract and made arrangements to borrow the balance of the $2,700, but about that time the fact theretofore undisclosed by Stevenson came to light, that the first mortgage of $4,800 was already past due and in default, in consequence of which the money loaner who was to furnish the required balance of cash refused to loan it; and the holder of the mortgage also insisted, “That mortgage is due, and I want my money.” Because of this state of affairs Decker did not buy the farm; and following the failure of McDonald to pay the balance of the purchase price Stevenson forfeited the $500 in the Turón bank to his own use.
At the conclusion of defendant’s' opening statement a short colloquy of court and counsel occurred:
[The Court] : “Well, you got the $500 and you got a written contract.
[Counsel for Defendant]: “No, sir; I don’t want your honor to make that statement before the jury.
[The Court] : “You got $500 and made a written contract.
’ [Counsel for Defendant] : “No, sir; not with any purchaser.”
In disposing of the case, the pleadings and defendant’s opening statement, the court rendered a memorandum opinion,'viz.:
[The Court] : “I am irresistibly impressed in my mind with the fact that the plaintiff is entitled to recover in this case. There is no question but that the contract involved is a valid and enforceable contract, especially as there was no agreement or pretended claim of any agreement to the contrary. In fact, it was partially executed in the extent at least of part payment of $500, which was accepted by the defendant and retained. When the defendant accepted this $500 and retained the same, he verified the contract in every respect, confirmed its regularity and binding force, and as long as he retained the $500 he is estopped from claiming that it was and is no contract. You can’t disaffirm and keep the fruits of a contract.
“Therefore, with this idea, judgment will be rendered for the plaintiff for the $200.”
Defendant appeals, invoking the general rule that before earning his commission a real-estate dealer must find a purchaser ready, able and willing to buy at a price and on terms agreeable to the owner. He contends that neither McDonald, the nominal party to the contract, nor Decker, the undisclosed purchaser for whom McDonald was acting, qualified as a purchaser under the foregoing rule. The fact that defendant had no direct dealings with Decker and may not have known of him was immaterial. (Land Co. v. Eddy, 111 Kan. 766, 208 Pac. 611.) When defendant joined in a written and enforceable contract with McDonald for the sale of the property he accepted the latter as a qualified purchaser.
In Leinback v. Dyatt, 112 Kan. 782, 212 Pac. 894, it was said:
“Questions are raised as to the financial ability of some of the buyers, including the plaintiff. Where the seller accepts a buyer produced by his agent, so far as to enter into a contract of sale with him, his liability for the commission is no longer affected by the question of the buyer’s ability to pay.” -(p. 785.)
In Lorts v. Herbert, 113 Kan. 113, 115, 213 Pac. 811, it was said:
“But here there was an outright sale of the lease for $24,000 — $5,000 in cash and the balance in ninety days. That the parties stipulated as to the consequences which would flow from Alderman’s default of final payment, or from defendant’s failure to- furnish satisfactory abstract, detracted not at all from the consummation of the contract of sale. When that contract was made, plaintiff’s commission was earned. The terms of payment agreed to by buyer and seller, and the question whether those terms were subsequently complied with or breached, and the consequences of any breach, were matters which did not affect the rights of plaintiff.”
Our reports are full of decisions to the same effect. (Lyman v. Wagner, 90 Kan. 12, 132 Pac. 988; Hutton v. Stewart, 90 Kan. 602, 135 Pac. 681; Avery v. Howell, 91 Kan. 297, 137 Pac. 785; Triplett v. Feasel, 105 Kan. 179, 182 Pac. 551; Hartman v. Speck, 123 Kan. 436, 256 Pac. 137.)
Defendant emphasizes the concluding language of the contract, “Commission to be paid .when deal is closed.” He argues that the deal was never closed, and cites Gould v. Stewart, 111 Kan. 41, 206 Pac. 309, to support his contention. In that case no commission was to be paid unless the exchange of farms was consummated. The exchange was never made; the contract itself was apparently unenforceable since one of the parties thereto failed in a suit for specific performance; and the real-estate broker’s own version of his employment was that his commission was dependent on “whether the deal stood up and the trade went through.” “Otherwise,” he said, “you know, I don’t get anything.”
In the case under review the contract was not only enforceable but was enforced according to its alternative terms — forfeiture of McDonald’s $500 if he failed to pay the balance of the purchase price, which .was one of the expressly stipulated ways in which the deal could be closed.
The judgment is affirmed. | [
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Boyer, J.:
Tomas Vega-Fuentes, defendant, appeals from.the sentence imposed for two counts of possession of cocaine with intent to sell. We vacate the sentence and remand.
On May 15, 1995, defendant pled no contest to two counts of possession of cocaine with intent to sell. The factual basis for the pleas showed the crimes were committed on August 1, 1994. The trial court ordered a presentence investigation (PSI) report and set sentencing for July 28, 1995. The PSI report indicated that defendant’s criminal history included two prior misdemeanor convictions and three prior municipal ordinance violations. One misdemeanor conviction was for battery, a person crime. One municipal ordinance violation was for battery and another was for assault on a law enforcement officer, also person crimes. These three convictions or violations were converted to one person felony pursuant to K.S.A. 1994 Supp. 21-4711(a), giving defendant a criminal history category of D.
Defendant filed written objections to his criminal history as determined in the PSI report, contesting identity and arguing that prior municipal ordinance violations should not be scored in criminal history. In order to give the parties time to prepare for an evidentiary hearing on the criminal history issues raised by defendant, the trial court continued sentencing until September 21, 1995. At that hearing, the State presented certified copies of the uniform notice to appear and complaint , issued in each municipal case. The State also called the arresting officer in each case to testify regarding defendant’s identity. After hearing argument, the trial court denied defendant’s objection to the use of the municipal violations in criminal history and found his criminal history category was D.
Defendant’s primary argument on appeal is that the trial court erred in scoring his prior municipal ordinance violations for criminal history purposes. This issue involves the interpretation of the sentencing guideline statutes. Statutory interpretation is a question of law over which this court has unlimited review. Phillpot v. Shelton, 19 Kan. App. 2d 654, 657, 875 P.2d 289, rev. denied 255 Kan. 1003 (1994).
K.S.A. 1994 Supp. 21-4710 sets forth the types of prior convictions which are to be scored in determining a defendant’s criminal history category. Under that statute, prior convictions include “[c]onvictions and adjudications for violations of municipal ordinances or county resolutions which are comparable to any crime classified under the state law of Kansas as a person misdemeanor, select nonperson class B misdemeanor or nonperson class A misdemeanor.” K.S.A. 1994 Supp. 21-4710(a). The statute also provides: "All person misdemeanors, class A nonperson misdemeanors and class B select nonperson misdemeanors, and all municipal ordinance and county resolution violations comparable to such misdemeanors, shall be considered and scored.” K.S.A. 1994 Supp. 21-4710(d)(7).
While K.S.A. 1994 Supp. 21-4710 specifically refers to municipal ordinance violations, K.S.A. 1994 Supp. 21-4711(a), which governs the aggregation of person misdemeanors, does not. K.S.A. 1994 Supp. 21-4711 provides in relevant part:
“In addition to the provisions of K.S.A. 1994 Supp. 21-4710 and amendments thereto, the following shall apply in determining ah offender’s criminal history classification . . . :
“(a) Eveiy three prior adult convictions or juvenile adjudications of class A and class B person misdemeanors in the offender’s criminal history, or any combination thereof, shall be rated as one adult conviction or one juvenile adjudication of a person felony for criminal history purposes.”
Defendant argues that the above penal statutes should be construed to mean that while municipal ordinance violations may generally be scored in criminal history, they may not be aggregated to constitute a person felony. Defendant cites State v. Floyd, 218 Kan. 764, 544 P.2d 1380 (1976), for the premise that, absent a clear legislative intent to do so, a municipal ordinance violation cannot be used to enhance the penalty for a later violation of a statute.
A panel of this court relied on Floyd in deciding State v. Dunn, 21 Kan. App. 2d 359, 900 P.2d 245 (1995). The Dunn court was faced with interpreting the 1993 version of 21-4710 which, unlike the 1994 version at issue in this case, did not contain any language expressly including municipal ordinance violations as convictions which must be scored. The court explained that “[i]n order to include municipal convictions, we would be required to construe the statute as saying something which it does not clearly and expressly state.” 21 Kan. App. 2d at 361. Following the reasoning of Floyd that criminal statutes must be strictly construed against the State, the court held that “K.S.A. 1993 Supp. 21-4710(d)(7) does not permit the use of a municipal conviction in computing a defendant’s criminal history.” 21 Kan. App. 2d at 363-64.
The State argues that Dunn authorizes the use and aggregation of municipal ordinance violations in criminal history after July 1, 1994. While Dunn notes that the 1994 amendments to K.S.A. 21-4710 expressly include municipal ordinance violations, Dunn is not authority for the State’s argument that municipal ordinance violations may be aggregated after July 1, 1994. The Dunn court only discussed the aggregation statute, 21-4711(a), to explain why the defendant’s criminal history was so drastically affected by a single municipal ordinance violation. However, the issue of whether municipal ordinance violations could be aggregated after July 1, 1994, was not before the Dunn court.
Therefore, this issue appears to be one of first impression. We must rely simply upon principles of statutory construction in resolving the issue. The fundamental rule of statutory construction is that the intent of the legislature governs where that intent can be ascertained. In ascertaining legislative intent, courts must consider the several provisions of an act in pari materia, construing them together and bringing them into workable harmony. Thus, in construing one part of an act, the court may look at other parts of the act. State v. Gonzales, 255 Kan. 243, 248, 874 P.2d 612 (1994). In support of defendant’s position, criminal statutes must be strictly construed against the State. Dunn, 21 Kan. App. 2d at 361. Furthermore, the legislature clearly knows how to amend the statutes to include municipal ordinance violations in criminal history. If the legislature had intended that municipal ordinance violations be subject to the aggregation rule of K.S.A. 1994 Supp. 21-4711(a), it could have amended that subsection to say so.
Following the rationale of Floyd and Dunn, we conclude that K.S.A. 1994 Supp. 21-4711 does not permit the aggregation of , municipal court convictions to constitute a person felony for criminal history purposes.
Defendant also argues the State failed to meet its burden of proving defendant’s prior municipal ordinance violations for battery and assault on a law enforcement officer. Specifically, defendant contends that the evidence presented was insufficient because the uniform notice to appear and complaint issued in each case only showed the municipal ordinance violation for which he was cited, but did not show the municipal ordinance violation of which he was convicted.
The State has the burden of proving disputed criminal history issues. K.S.A. 1994 Supp. 21-4715(c). The use of certified or authenticated copies of journal entries of prior convictions is ordinarily the best possible evidence of criminal history. State v. Staven, 19 Kan. App. 2d 916, 918, 881 P.2d 573 (1994). Whether the State has met its burden of proof is a question of fact, and appellate review is limited to determining whether substantial competent evidence supports the trial court’s findings. State v. Hankins, 19 Kan. App. 2d 1036, 1049, 880 P.2d 271 (1994).
The first uniform notice to appear and complaint cites defendant with battery and lists a fine of $100. On the reverse side of the notice, under “Record of Court Action,” a box is checked indicating that defendant pled guilty and was fined $100 plus costs. The back of the form does not, however, fist the charge to which defendant pled guilty.
The second uniform notice to appear and complaint cites defendant with disorderly conduct and assault on a law enforcement officer and lists respective fines of $100 and $200. On the reverse side of the notice, under “Record of Court Action,” a box is checked indicating that defendant pled no contest to two different charges. He was fined $100 on one charge and $200 on the other, plus costs. Again, the back of the form does not list the charges to which defendant pled no contest.
Under these circumstances, where all of the information regarding the citation, plea, and fine is contained in one document, and the fines listed on the front and back of each form are the same, it is reasonable to conclude that defendant pled guilty or no contest and was convicted of violating the ordinance noted on the front of the notice. The two notices constitute substantial competent evidence to support the trial court’s ruling that defendant had prior municipal ordinance violations for battery and assault on a law enforcement officer.
In fight of our conclusions regarding K.S.A. 1994 Supp. 21-4711, it is unnecessary to consider other sentencing issues raised by defendant.
Sentence vacated and case remanded. | [
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|
Elliott, J.:
The International Association of Firefighters, Local No; 64, and retired firefighters James Long and Ronald Cooper sought damages and declarative and injunctive relief based on the improper calculation of retirement benefits under a local pension plan administered by the Kansas Public Employees Retirement System (KPERS). The trial court ruled the City of Kansas City, Kansas, (City) must recalculate retirement benefits by including lump sum payments for accumulated sick leave, vacation time, and compensatory time averaged over 36 months. At the same time, the trial court allowed 79 additional named plaintiffs and 50 unnamed plaintiffs to intervene in the judgment.
The City appeals, and we affirm in part, reverse in part, and remand.
Long and Cooper were employed by the City as firefighters until their retirements in 1992 and 1993. Plaintiffs were “special members” of the Kansas Police & Firemen’s Retirement System (KP&F) and contributed 3 percent of their compensation to the retirement plan. Regular members of KP&F, on the other hand, contribute 7 percent of their compensation to the retirement plan. For a history of KP&F and the retirement system in general, see Galindo v. City of Coffeyville, 256 Kan. 455, 456-59, 885 P.2d 1246 (1994).
K.S.A. 13-14a08 provides that the City’s local plan must pay a retiree monthly benefits of 50% of the retiree’s “monthly salary at the date of retirement.” Monthly salary at the date of retirement is not defined.
While KPERS administers the City’s retirement plan, it remains the City’s responsibility to withhold contributions, send those contributions to KPERS, and advise KPERS of the employee’s monthly salary at time of retirement. When plaintiffs retired, each received a lump sum payment for unused vacation and sick leave. The City deducted a 3 percent contribution to KP&F from the lump sum payments, but did not include the lump sum payments as part of plaintiffs’ monthly salaries certified to KPERS. As part of their lawsuit, plaintiffs requested class certification for all special members of KP&F, whether active employees or retirees.
The trial court ruled the lump sum payments must be included in plaintiffs’ final income for purposes of calculating retirement benefits.
The trial court then ordered the parties to agree on an equitable method of adding the lump sum payments to plaintiffs’ final income, dismissed KPERS from the suit, and found that “no class certification is necessary as all retirees [sic] benefits are to be recalculated.”
The City attempted to appeal, but we dismissed that attempt as interlocutory. The parties could not agree on a method of adding the lump sum payments to final income. The trial court adopted plaintiffs’ proposed formula which averaged the lump sum payments over the 36 months preceding retirement. In granting intervention, the trial court found that no prejudice would result to the City because any potential statute of fimitations problems would be easily discoverable once the additional plaintiffs were identified.
The City argues the trial court erred in ordering it to recalculate retirement benefits by including the lump sum payments averaged over 36 months because neither K.S.A. 13-14a08 nor the City’s local plan requires the lump sum payments to be included in final income. Interpretation of a statute is a question of law subject to plenary review. Galindo, 256 Kan. at 463.
The only Kansas case touching on this issue is Galindo, and while not directly on point, that case does provide background and some guidance as to the appropriate remedy. There, as here, a firefighter (Galindo) was a special member of KP&F. There, as here, Galindo received a lump sum at retirement for unused sick leave and vacation time. There, as here, the City of Coffeyville withheld 3 percent of the lump sum but did not include the lump sum payment in its certification of Galindo’s final monthly salary to KPERS.
But in Galindo, Coffeyville recognized the inequity of withholding 3 percent without including those payments in calculating the retiree’s final monthly salary. Eventually, Coffeyville unilaterally revised the formula to average the lump sum payment over the preceding 36 months to arrive at the final monthly salary.
When Galindo sued, the trial court found the lump sum payments were not salary under K.S.A. 13-14a08, but also found Coffeyville’s actions did not amount to a material breach of contract since those actions resulted in a higher retirement benefit than Galindo should have received. The Supreme Court affirmed, but on a different rationale.
The Supreme Court construed “salary” as used in K.S.A. 13-14a08 to mean “a periodic payment dependent upon time.” 256 Kan. at 465. Unfortunately for us, the Supreme Court did not explain whether lump sum payments for unused sick leave, etc., fall within that definition. Rather, the court focused on whether Coffeyville’s unilateral modification of the formula was reasonable and whether it resulted in a disadvantage to Galindo.
The Supreme Court noted Coffeyville’s new formula was an attempt to correct the inequity there involved and found the new formula to be “a reasonable change to accommodate changing conditions while maintaining the integrity'of the system.” 256 Kan. at 468.
In summary, Galindo recognized that it is inherently unfair to deduct 3 percent for KP&F as a lump sum payment which is riot also a part of the formula for calculating final salary for retirement benefits. On the other hand, Galindo did not squarely address whether K.S.A. 13-14a08 requires the inclusion of those lump sum payments in a retiree’s final monthly salary.
In the present case, the City has done nothing to remedy the ' Galindo inequity, so the trial court fashioned its own remedy. It ordered the City to include the lump sum payments in final income by averaging that sum over 36 months. Was this an appropriate remedy? To answer that question we must resolve the issue left unresolved by Galindo: Does the term “salary” in K.S.A. 13-14a08 include lump sum payments for unused vacation, sick leave, and compensatory time? We answer the question in the negative.
The Galindo court said only that “salary” means a periodic payment dependent upon time. 256 Kan. at 465. “Periodic” is defined as “occurring at regular intervals” or “occurring repeatedly from time to time.” Webster’s Third New International Dictionary 1680 (1961). By definition, then, a lump sum payment which occurs once upon retirement cannot be a periodic payment. The trial court in Galindo agreed, ruling that lump sum payments should not be designated as wages because they would artificially inflate an employee’s final monthly salary and, thus, discriminate. See 256 Kan. at 462.
The trial court erred in ruling that the lump sum payments must be included in final income under K.S.A. 13-14a08. That leaves us with the question of how to best remedy the inequity of the City’s deducting a 3 percent contribution from the lump sum payments. Fortunately, Galindo seems to provide the answer. Justice Lockett, speaking for the Galindo court, said: “The City could have refunded the three percent it deducted from the . . . lump sum paid at retirement, . . . plus interest.” 256 Kan. at 468.
We hold that is the appropriate remedy for the inequity involved in the present case.
The City also argues the trial court abused its discretion in allowing additional plaintiffs to intervene. Whether to grant a motion to intervene rests in the trial court’s discretion. McDaniel v. Jones, 235 Kan. 93, 107, 679 P.2d 682 (1984).
Here, the trial court found that plaintiffs’ motion, although filed 3 years after the suit was filed, was not untimely because the City knew from the outset that plaintiffs were seeking class certification and the trial court’s earlier judgment stated that similarly situated parties were to be provided relief.
McDaniel supports the trial court’s decision in the present case. See 235 Kan. at 109. The City does not deny that the additional plaintiffs’ claims and the present case have a common legal issue, and the trial court adequately addressed the City’s concerns by ruling that potential statute of limitations defenses would be easily discoverable once the additional plaintiffs were identified.
Under the facts of this case, the trial court did not abuse its discretion in allowing permissive intervention under K.S.A. 60-224(b).
We affirm the trial court’s order allowing permissive intervention subject to statute of limitations defenses. We reverse the trial court’s order requiring the lump sum payments to be included in calculating final monthly salary and remand with directions to enter a judgment requiring the City to refund to plaintiffs the 3 percent it deducted from the lump sum payments, plus interest. | [
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Rulon, J.:
Respondents David R. McKune, et al., appeal the district court’s grant of relief to a habeas corpus petition concerning a prisoner’s refusal to participate in prison rehabilitative programs. We reverse.
The facts here are undisputed and are as follows:
Petitioner Francis Nemechek is serving five consecutive life sentences in the state prison in Lansing for five first-degree murders that he committed between December 1974 and August 1976.
On January 12,1993, Nemechek and the Kansas Department of Corrections signed a “Program Agreement” where Nemechek agreed to participate in substance abuse treatment and a sex offender treatment program. Above Nemechek’s signature on the agreement, he noted that he did not want to sign the agreement but was pressured to do so.
On March 23, 1995, David McKune, the warden at the Lansing prison, issued a memorandum stating that as of May 1, 1995, inmates on medium security status who refused to participate in recommended counseling programs would be moved to a more restrictive housing unit. Oh June 12, 1995, McKune issued another statement clarifying that inmates on medium security status who refused to participate in such programs would be placed on “unassigned for cause” (UAC) status for at least 90 days, making them ineligible for employment with incentive pay; such inmates would also be transferred to the maximum security unit of the prison for the duration of their UAC status.
In the meantime, in April 1995, Nemechek filed a prison grievance claiming that under Payne v. Kansas Parole Board, 20 Kan. App. 2d 301, 887 P.2d 147 (1994), requiring him to participate in such counseling programs was an ex post facto violation. Nemechek sought the deletion of the two treatment programs from the program agreement and an injunction prohibiting prison authorities from denying him good time credit or transferring him to a more restrictive environment for his refusal to participate in the treatment programs. McKune responded to Nemechek’s grievance with a written statement that an inmate’s future housing would be contingent on the inmate’s future decisions regarding participation in recommended counseling programs. Nemechek appealed to the Secretary of Corrections, who affirmed McKune’s actions.
Nemechek filed this habeas corpus action in district court maintaining that under Payne, requiring him to participate in the treat- • ment programs was an ex post facto violation. Nemechek alleged that transferring him to a more restrictive prison environment for refusing to participate in counseling programs constituted, punishment and the denial of a liberty interest subject to judicial scrutiny. Nemechek sought an injunction ordering McKune to remove the counseling programs from his program agreement and to refrain from placing him on UAC status for his refusal to participate in those treatment programs.
The district court found that placing- Nemechek on' UAC status for his refusal to participate in the counseling programs would be an ex post facto violation under Payne. The court further reasoned the statute requiring.completion of such programs as a condition of parole was passed after Nemechek committed his crimes. As such, the court ordered McKune not to take any action against Nemechek for his refusal to participate in the counseling programs. McKune appeals.
McKune argues the district court erred in granting Nemechek’s requested relief because requiring Nemechek’s participation in rehabilitative programs as a condition of his maintaining medium security status does not amount to a punishment or a penalty for ex post facto purposes. In Lamb v. Kansas Parole Board, 15 Kan. App. 2d 606, Syl. ¶ 8, 812 P.2d 761 (1991), this court said:
“Two critical elements must be present for a criminal or penal law to be ex post facto: It must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it. A criminal law disadvantages the offender if it punishes an act not punishable when committed, imposes additional punishment to that then prescribed, aggravates the crime, or alters the legal rules of evidence.”
Recently, in Lile v. Simmons, 23 Kan. App. 2d 1, 3-4, 929 P.2d 171 (1996), this court concluded that a prison inmate lacked a sufficient liberty interest in his or her prison security status to implicate due process considerations so that the courts would not review prison authorities’ decisions on such matters.
The issue here is whether the new prison policy of requiring inmates to participate in recommended counseling programs to maintain their medium security status is an ex post facto violation. Nemechek admits in his petition that because he is serving a life sentence, he is ineligible for good time credits. Thus, placement on UAC status could not possibly prejudice him with regard to good time credits.
In Dominique v. Weld, 73 F.3d 1156 (1st Cir. 1996), a habeas petitioner brought an ex post facto claim against Massachusetts prison authorities under circumstances, extremely similar to the case at hand. The petitioner challenged a regulation requiring him to participate in a sex offender treatment program as a condition of placement in a prison security classification with associated privileges, including a certain prison work program. The Dominique court concluded the regulation did not amount to an increased penalty for the petitioner s offense for ex post facto purposes but was merely an alteration* in the administrative operation of the prison that attended to his prison sentence. 73 F.3d at 1163.
We conclude the security classification system that the inmate complains of here is an administrative function of the day-to-day operations of the prison. Reasonable application of a prison security classification system does not amount to increased punishment for an inmate’s original offense. More specifically, where an inmate is ineligible for good time credits because he or she has been sentenced to life in prison, placing an inmate on unassigned for cause status for refusing to participate in recommended rehabilitation programs does not amount to an ex post facto increase in punishment for the inmate’s crime of conviction.
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Marquardt, J.:
Alfonso Adkins appeals his conviction for driving with a suspended license while having at least two prior sus pended license convictions. Adkins asserts that his conviction must be reversed because he did not have proper notice of one of the underlying suspensions.
On December 20, 1994, Adkins was unable to provide proof of insurance when he was stopped by the police for failing to keep his vehicle in a single lane. Adkins was charged with one count of driving while his license was canceled, suspended, or revoked; one count of failure to provide proof of automobile liability insurance; and one count of failure to maintain a single lane.
On October 2, 1995, Adkins filed a motion asking the district court to dismiss the charge of driving with a suspended license because he did not receive valid notice of one of the suspensions on which the current charge was based. Adkins argued that although he had been notified that his license would be suspended if he failed to provide proof of insurance within 30 days, he had not been notified at the end of the 30 days that his license had been revoked.
The State argued that the notice procedure specified in K.S.A. 8-255(d) was inapplicable because Adkins’ license had been suspended pursuant to the Kansas Automobile Injury Reparations Act (KAIRA), K.S.A. 40-3101 et seq., which has its own notice procedures and only incorporates by reference some of the hearing pro cedures of K.S.A. 8-255. Under K.S.A. 40-3118(e), Adkins was only entitled to notice that unless he took the specified action required by KAIRA, suspension would occur after the 30 days had expired. K.S.A. 40-3118(e) does not provide for additional notice to be sent upon suspension.
Following a hearing on November 3,1995, the district court held that the notice procedures of K.S.A. 40-3118(e), rather than those of K.S.A. 8-255(d), were applicable in this case. While the district court noted that K.S.A. 8-255(d) specifically states that notification is to be sent upon the suspension, revocation, or disqualification of driving privileges “as authorized by this act,” Adkins’ driving privileges had been suspended under KAIRA. The district court denied Adkins’ motion to dismiss.
A bench trial was held on March 27, 1996, on the following stipulated facts: (1) On May 17, 1993, notice of the impending suspension of Adkins’ Kansas driver’s license was mailed by the Kansas Department of Revenue (Department) to Adkins’ last known mailing address; (2) Adkins’ license was suspended on June 16, 1993, for failure to maintain insurance;. (3) Adkins’ certified driver’s record reflected that he had been convicted of driving while his license was suspended two times within the preceding 5 years — September 11, 1992, in Sedgwick County District Court case 91TR16707, and July 30, 1992, in Wichita Municipal Court case 92TM10104; (4) Adkins’ certified driver’s record reflected that Adkins’ license had not been reinstated prior to or as of December 20, 1994; and (5) Adkins failed to provide proof of insurance when stopped by the police on December 20, 1994.
At trial, Adkins renewed his motion to dismiss and asked the court to consider his prior arguments. The district court denied the motion and found Adkins guilty on all counts. Adkins timely appeals.
Although Adkins had attacked the sufficiency of the notice of suspension in district court, he did so on a ground entirely different from that which he now asserts on appeal. Adkins argued in district court that additional notice needed to be sent pursuant to K.S.A. 8-255(d) upon actual suspension of his license. The district court rejected that assertion, and Adkins does not contest that ruling on appeal. Therefore, this issue is abandoned. See State v. Wacker, 253 Kan. 664, 670, 861 P.2d 1272 (1993).
Adkins now argues that the Department did not comply with the necessary notice provisions of K.S.A. 40-3118. The State asserts that Adkins may not raise this issue for the first time on appeal.
Although an issue not raised before the district court generally may not be raised for the first time on appeal, an appellate court may choose to address a new issue “where the newly asserted theory involves only a question of law arising on proved or admitted facts and which is finally determinative of the case.” Burney v. Kansas Dept. of SRS, 23 Kan. App. 2d 394, 397, 931 P.2d 26 (1997); see State v. Bell, 258 Kan. 123; 126, 899 P.2d 1000 (1995).
K.S.A. 40-3118 requires every owner of a vehicle that is registered in this state to maintain continuous financial security (liability insurance) on his or her vehicle and allows the Director of Vehicles to demand proof of such insurance at any time. K.S.A. 40-3118(e) provides:
“Whenever the director shall receive prima facie evidence, as prescribed by this section, that continuous financial security covering any motor vehicle registered in this state is not in effect, the director shall notify the owner by registered or certified mail or United States post office certificate of mailing that, at the end of 30 days after the notice is mailed, the registration for such motor vehicle and the driving privileges of the owner of the vehicle shall be suspended, pursuant to such rules and regulations as the secretary of revenue shall adopt, unless: (1) Within the thirty-day period, such owner shall demonstrate proof of continuous financial security covering such vehicle to the satisfaction of the director; or (2) within the thirty-day period such owner shall request a hearing with the director. Upon receipt of a timely request for a hearing, the director shall afford such person an opportunity for hearing within the time and in the manner provided in K.S.A. 8-255 and amendments thereto. If, within the thirty-day period or at the hearing, such owner is unable to demonstrate proof of continuous financial security covering the motor vehicle in question, the director shall suspend the registration of such motor vehicle and the driving privileges of the owner of the vehicle, unless the failure is due to a cause beyond the reasonable control of the owner upon proof deemed satisfactory by the director.” (Emphasis added.)
A review of the record reveals that the notice Adkins received did not inform him of his right to request a hearing before the Director.
On appeal, Adkins argues that because the notice was defective, the defect rendered the suspension void, which in turn voided his subsequent conviction. The State argues that it is aware of no authority for Adkins’ assertion. Resolution of this issue requires interpretation of a statute. The interpretation of a statute is a question of law over which this court exercises unlimited review. See State v. Green, 257 Kan. 444, Syl. ¶ 4, 901 P.2d 1350 (1995).
Case law interpreting the notice provisions of other statutes related to drivers’ rights provides useful authority in analyzing the issue raised by Adkins. The first question is whether the language of K.S.A. 40-3118(e) requires that a driver be notified of the right to request a hearing. In Barnhart v. Kansas Dept. of Revenue, 243 Kan. 209, 212-13, 755 P.2d 1337 (1988), the Kansas Supreme Court considered the notice language of K.S.A. 1985 Supp. 8-1001(f)(1), which stated that upon a driver being requested to take a blood alcohol test, he or she “shall be given oral and written notice” of his or her rights concerning the test, and found it to be clearly mandatory.
Similarly, in State v. Lovett, 17 Kan. App. 2d 450, 452, 839 P.2d 53, rev. denied 252 Kan. 1094 (1992), this court found the following language of K.S.A. 8-255(d) to be mandatory: “Upon suspending, revoking or disqualifying the driving privileges of any person as authorized by this act, the division shall immediately notify the person in writing.” The court explained:
“The statute is plain, clear, and unambiguous. ... It does not indicate that the DMV may or should notify such person; it says it ‘shall immediately’ notify such person in writing. This is clearly a case of a mandatory command by the legislature. See Barnhart v. Kansas Dept. of Revenue, 243 Kan. 209, 212-13, 755 P.2d 1337 (1988).” 17 Kan. App. 2d at 452.
Likewise, the language of K.S.A. 40-3118(e) regarding the required notice is plain and unambiguous: “[T]he director shall notify the owner” that his or her driving privileges shall be suspended within 30 days of the date of the notice unless he or she either (1) provides proof of insurance or (2) “requests] a hearing with the director.”
It is not necessary to use the exact statutory language in the notice as long as there has been substantial compliance with the statute. See Barnhart, 243 Kan. at 213. “To substantially comply with the requirements of the statute, a notice must be sufficient to advise the party to whom it is directed of the essentials of the statute.” 243 Kan. at 213. The right to request a hearing with the Director is a mandated part of die notice requirement in K.S.A. 40-3118. The notice given to Adkins was, therefore, defective, and the subsequent suspension of his driver’s license was void.
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Knudson, J.:
Gordon E. Gross appeals from the district court’s denial of his motion requesting sentence modification under K.S.A. 21-4724 of the Kansas Sentencing Guidelines Act (KSGA). Gross argued unsuccessfully before the district court that his aggravated battery conviction should be classified as a severity level 7 offense rather than a severity level 4 offense, thus making him eligible for modification of sentence.
We affirm.
In 1990, Gross was charged with attempted first-degree murder and felony theft after he stabbed a man in the chest numerous times and took the victim’s car. A preliminary hearing was held, and Gross was bound over for trial on both charges. Pursuant to a plea agreement, an amended Information was filed charging Gross with aggravated batteiy and felony theft; the attempted first-degree murder charge was dropped. In the amended Information, the aggravated battery charge read: “Gordon E. Gross, did then and there willfully, wrongfully, unlawfully and feloniously touch or apply force to the person of Kenny George, Rural Route 2, Cherry-vale, Montgomery County, Kansas, with intent to injure said person or another, which was done with a deadly weapon to-wit: a filet knife.”
Gross pled no contest to both charges, and consecutive terms of imprisonment were imposed by the district court.
The Department of Corrections, in its guidelines report, concluded Gross’ aggravated battery conviction was comparable to a severity level 4 aggravated battery conviction and, therefore, he was not eligible for modification of sentence under K.S.A. 21-4724. Gross challenged the report by filing this motion pursuant to K.S.A. 60-1507. After appointment of counsel and hearing, the district court concluded the aggravated battery conviction was correctly categorized as a severity level 4 offense and that Gross was not eligible for sentence modification.
Gross maintains, on appeal, that the district court erred; the aggravated battery conviction should be classified as a severity level 7 offense, not a severity level 4 offense.
In determining whether to modify a sentence under the KSGA for a crime committed prior to July 1, 1993, the court is to look at the actual conduct committed and to apply that conduct to an analogous crime under the KSGA. See State v. Fierro, 257 Kan. 639, 651, 895 P.2d 186 (1995). The court may consider any uncontested information to determine the actual conduct of the offender. See State v. Whitaker, 260 Kan. 85, 92-93, 917 P.2d 859 (1996).
The district court in its ruling concluded that the comparable crime under the KSGA was a violation of K.S.A. 21-3414(a)(l)(A), which states aggravated battery is “[intentionally causing great bodily harm to another person or disfigurement of another person,” a severity level 4 offense.
Gross argues that the uncontested facts of his case establish only that he intended to injure another person and that intent to cause great bodily harm was disputed. He contends that the appropriate statutory provision is K.S.A. 21-3414(a)(l)(B), which prohibits “in tentionally causing bodily harm to another person with a deadly weapon, or in any manner whereby great bodily harm, disfigurement or death can be inflicted,” a severity level 7 offense.
Gross stabbed the victim six to nine times with a knife. At the plea hearing, in an effort to satisfy the district court as to Gross’ criminal intent, defense counsel asked that the district court consider as part of the factual basis to support his plea, Gross’ statements made during interrogation that he thought he had killed the victim and hoped that the victim would die. Subsequently, at the K.S.A. 60-1507 hearing, Gross stipulated that his acts had caused great bodily harm to the victim.
We conclude the uncontested facts and the admissions by Gross are sufficient to establish his specific intent to cause great bodily harm. However, we also have concluded Gross’ specific intent is not a determinative factor as to whether there should be modification of his sentence.
Prior to its amendment in 1992, the crime of aggravated battery under K.S.A. 21-3414 was a specific intent crime. See State v. Diaz & Altemay, 232 Kan. 307, 311, 654 P.2d 425 (1982). This statute required not only purposeful conduct but that the act be done with the specific “intent to injure.” However, K.S.A. 21-3414 now requires only that the underlying act be intentional rather than accidental; there is no longer a statutory requirement of a specific intent to injure. Under these circumstances, the State is not required to prove that Gross intended the precise harm or the result that occurred. See State v. Mountjoy, 257 Kan. 163, Syl. ¶ 7, 891 P.2d 376 (1995).
In reaching this conclusion, we are aware of the dicta in State v. Whitaker, 260 Kan. at 90-94, that implies aggravated battery is still a specific intent crime. However, in Whitaker, involving aggravated battery against a law enforcement officer, the Supreme Court held that the record did support the district court’s finding that great bodily harm had occurred and, therefore, the crime was appropriately classified as a severity level 3 offense. 260 Kan. at 94. We are persuaded that if the issue was squarely presented to the Supreme Court, it would conclude aggravated battery is no longer a specific intent crime.
Gross admits he intentionally caused great bodily harm to the victim by repeatedly stabbing him with a knife. Because his purposeful conduct would constitute a violation of K.S.A. 21-3414(a)(1)(A), the district court did not err in its determination that Gross is not eligible for modification of sentence.
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The opinion of the court was delivered by
Marshall, J.:
The defendant appeals from an order appointing a receiver at the commencement of the action, which is prosecuted to dissolve the defendant corporation and to declare that. 5,465 shares of its capital stock had been issued in violation of law, that less than twenty per cent of its authorized capital stock had been paid in actual cash or any property equivalent thereto, and that the defendant is unlawfully usurping corporate.privileges in the state of Kansas and is abusing its privileges.
The petition asked that “a receiver be appointed to manage the corporate property and business of said defendant under the supervision of the court and to wind up the affairs of said defendant com pany, and for such other and further relief as to the court may seem just and equitable.” On the hearing of the application for the appointment of a receiver, the plaintiff submitted in evidence its verified petition, and the defendant introduced other evidence in its behalf. The evidence tended to prove that the Cities Service Company was operating gas-distributing systems in Wichita, Hutchinson and Newton; that it procured the incorporation of the defendant company at an authorized capital stock of $550,000; that thirty-five shares of such stock were sold to seven directors for $3,500 in cash-; that, with the permission and authorization of the public utilities commission, the Cities Service Company sold to the defendant and the defendant purchased the Hutchinson gas plant, and in payment therefor issued its notes to the Cities Service Company amounting to $550,000, secured by mortgage, and issued the remaining capital stock which, at the request of that company, was delivered to William P. Lehrer, who holds it for the benefit of anyone concerned as his interest may appear; that the application for permission to purchase the plant stated the reproduction value of the plant new was $675,000; and that, at the time of the hearing, $102,913.69 had been paid on the notes. The defendant, in open court, offered to comply with' any order which the court might make for the correction of any corporate abuses or practices which might be found to exist.
The journal entry of the judgment appointing the receiver recites that—
“It appearing to the court from the verified petition of plaintiff and the evidence introduced that the allegations in plaintiff’s petition are true and that the defendant, the Hutchinson Gas Company, was created for the use and benefit of the Cities Service Company, a foreign corporation; and that there never were any bona fide incorporators of the Hutchinson Gas Company, and that the office of treasurer of the Hutchinson Gas Company was kept and maintained in Kansas City, Mo., and that the books and records of the Hutchinson Gas Company-, excepting customers’ meter accounts, for more than six months have been kept in Kansas City, Mo.; and that the said defendant corporation is perverting and abusing its corporate privileges as aforesaid; and that a receiver should be appointed therefor to manage its corporate affairs and business under the supervision of the court; and that A. W. Eagan was a suitable and proper person to be appointed receiver of the Hutchinson Gas Company.”
There are six assignments of error, but they may be reduced to one, which is that under the evidence introduced the receiver should not have been appointed. The statement by the court that the Hutchinson Gas Company was created for the use and benefit of the Cities Service Company, and that there were never any bona fide incorporators of the Hutchinson Gas Company, made as a reason for the appointment of a receiver, was without foundation in law. Subsidiary corporations are organized every day for the purpose of enabling parent corporations to carry on their business properly. Such corporations are not prohibited by law and are necessary under modern industrial conditions. The office of the treasurer of the Hutchinson Gas Company was maintained in Kansas City, Mo., but the defendant offered in open court to maintain it in Hutchinson. The statement that the defendant is perverting or abusing its corporate privileges was a conclusion of fact which did not have support in the evidence, although that conclusion may have been based on the fact that the $550,000 stock of the Hutchinson Gas Company was issued without permission from the public utilities commission. The evidence disclosed that when that stock was issued, the Hutchinson Gas Company was not operating as a public utility, and for that reason was not under the control of the public utilities commission, and that commission did not have power to say whether or not stock should be issued. Authority to issue the stock was granted by the state charter board when the Hutchinson Gas Company was incorporated.
The petition alleged that the defendant had filed with the secretary of state an affidavit showing that the entire authorized stock of the company had been paid in property equivalent to actual cash, that the property consisted of the plant located in the city of Hutchinson, and that the property was substantially in excess of the authorized capital of the company; but the petition further alleged that the affidavit was not true.
The receiver was appointed soon after the commencement of the action and before issues were joined between the plaintiff and the defendant. There has been no trial of the allegations of the petition except such as was had when the receiver was appointed. The Hutchinson Gas Company is operating the gas plant in the city of Hutchinson, and through that plant is furnishing gas to domestic consumers in that city. Until there is some active violation of law, or some disobedience of an order of a court, a receiver should not be appointed to take charge of the property of the defendant before issue has been joined on the matters alleged in the petition and before trial has been had thereon.
In City of Topeka v. Water Co., 58 Kan. 349, 49 Pac. 79, the court said:
“Courts are extremely reluctant to adjudge forfeitures of corporate privileges and franchises; and being vested with some discretion in proceedings brought for that purpose, will ordinarily do so only where no other adequate remedy is available.” (Syl. ¶ 1.)
In State v. Water Co., 63 Kan. 317, 65 Pac. 257, the state prosecuted an action to oust the defendant from exercising the functions and powers of a corporation under the laws of this state for failing to file with the city clerk a sworn report required by law. The court there said:
“There are adequate' and available remedies other than the forfeiture of corporate franchises. This being so, it has been frequently decided by this court that a proceeding like the present will not lie.” (p. 318.)
In Albach v. Fraternal Aid Union, 100 Kan. 511, 517, 164 Pac. 1065, the court said:
“In the facts alleged and the relief prayed for in this action the proceeding in effect is quo warranto. Except in most unusual cases, such an action can only be maintained in the name of the state by its proper legal representative —the attorney-general, or, perhaps, by the county attorney. And even if so maintained, the relief to be given is to some extent discretionary with the court. (City of Topeka v. Water Co., 58 Kan. 349, 353, 49 Pac. 79.) Where, as most likely in the case at bar, the result would be t.o wreck an institution that is doing a beneficial and humanitarian work notwithstanding some possible defects in its financial or economic structure, the state’s responsible legal representative should consider well whether such action should be instituted (The State v. Bowden, 80 Kan. 49, 56, 57, 101 Pac. 654), and the court would consider with profound solicitude whether the remedy prayed for was not worse than the evil complained of.”
A receiver should not have been appointed. It was an abuse of discretion for the court, before issues joined and before trial, to appoint a receiver to take charge of the property of the defendant.
The judgment is reversed; the order appointing a receiver is set aside; the court is directed to require the receiver to make his final report; and, upon that report being filed and approved, the receiver should be discharged from further duty. | [
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The opinion of the court was delivered by
Hutchison, J.:
Louis Hoffman, for himself and as executor for his brother, Phillip Hoffman, deceased, appeals from the judgment of the district court in two separate cases, the first involving the construction of the will of another brother, Andrew Hoffman, deceased, and the other a consolidated case involving the claims of Louis Hoffman -for himself for $9,000 against the estate of Andrew Hoffman and for him as executor of the estate of Phillip Hoffman for a like amount. These two claims were originally filed in the probate court and were disallowed there. Appeals were taken to the district court, and, after hearing and similar decision there, were appealed to this court. They involve the question of partnership and unsettled differences in that connection. The decision of both courts as to both claims was against the claimants. The case involving the construction of a will was one where Andrew Hoffman made his two brothers residuary legatees in his will and. later married, leaving at the time of his death a wife and child surviving him. The will was executed April 21, 1910, when he was a single man, naming his brothers, Louis and Phillip, as residuary legatees, and Louis as executor. On June 19, 1917, he married the plaintiff, Carol Hoffman, and on December 28, 1918, Norman Hoffman, a son, was born to.them. Andrew Hoffman died May 19, 1923. His will was regularly probated and Louis was-appointed executor. He regularly filed an inventory listing the real and personal property of the deceased, and listed the personal property in which the deceased was joint owner with himself and his brother Phillip. On October 13, 1923, Carol Hoffman, the widow, and Norman Hoffman, the son, by his next friend, his mother, filed a petition in the district court of Barton county asking the court to construe the will, setting up a copy of the will made long before his marriage and the birth of the child, also a description of all the land owned by him at the time of his death, praying that all adverse claims be quieted and that the land be partitioned between them. Louis and Phillip were parties defendant. They entered their appearance and took time to plead, but did not file answers. Judgment was rendered March 8, 1924, in favor of plaintiffs, the land was accordingly partitioned between plaintiffs, and sheriffs deed was issued to them for separate portions equal to one-half for each.
Phillip Hoffman died in the latter part of the year 1924 and Louis was appointed executor of his estate. Sometime prior to December 30,1924 (the date not given), Louis filed for himself and for the estate of Phillip petitions for new trial in the action to construe the will of Andrew, and on December 30, 1924, he was given leave of court to withdraw them from the files. He refiled the same or similar petitions on March 6, 1926, alleging partnership between the three Hoffman brothers and a joint ownership of all the land that stood in the name of Andrew at the time of his death, and further alleging fraud practiced by the successful parties in obtaining the judgment or order on March 8, 1924, in that promises were made that division of the land and an accounting would be made after the will was construed, which induced and influenced appellants to wait for such settlement out of court- instead of asserting their rights in the case to construe the will and partition the property. Issues were joined on the questions of fraud in obtaining the judgment of March 8,1924, and on the question of partnership in the land. After hear ing all the evidence and at the close of the trial the court found “that the evidence adduced fails to support any of the allegations in the said petitions” and rendered judgment against the petitioners and in favor of the plaintiffs, from which judgment, after the overruling of a motion for a new trial, the petitioners appeal.
This case rests almost entirely upon questions of fact as to fraud and partnership. There are two preliminary questions as"to statutes of limitations. Appellees insist that this action by petitioners is maintained under R. S. 60-3005, which limits the time of filling such petitions to one year after date of judgment. But we can see no good reason why appellants could not avail themselves of the benefit of R. S. 60-3007 and R. S. 60-3008, which give two years when brought under the fourth subdivision of the former section.
Again, it is suggested that the refiling of the petitions was more than one year after the withdrawing of the petitions filed earlier, and contrary to the limitation of R. S. 60-311. It was more than one year after the withdrawing of the earlier petitions, but there are other complications here involved as to the application of this section to petitions for new trials where judgments have already been rendered, and it is not necessary to make this point a decisive feature of the whole case.
Appellants insist that they made a strong showing of fraud wherein plaintiffs induced the defendants to default instead of making their defense. There is some evidence to that effect the same as there is some to show there existed a partnership between the three brothers, but there was a conflict as to both lines of evidence, and many of the witnesses qualified their statements as to partnership by saying it was as to a partnership in farm machinery, farm work and crops. The usual order of making proof under such petitions is first to establish the fraud, and then when that is established to the satisfaction of the court, proceed with the proof on the real issue — in this case, partnership — for unless there was fraud the petitioners would not at this late date have a right to establish and show a partnership. On the other hand, it would avail the petitioners nothing if they did prove fraud unless they established a partnership. In this case both lines were tried together and, as quoted above, the court found the evidence failed to support any. of the allegations of the petitions. It is necessary for the petitioners to prove both fraud and partnership before they can prevail. We think these findings are fully supported by the evidence.
“Rule followed that the trial court’s, findings of fact, when based upon sufficient though disputed or conflicting testimony, will not be disturbed on appeal.” (Meador v. Manlove, 97 Kan. 706, syl. ¶ 6, 156 Pac. 731.)
We have purposely omitted any reference to one question raised by appellees, namely, that of res adjudicata, contained in the answer 'in this case and also in the findings of the other case. Both cases were in progress of trial at the same time, and, strictly speaking, it was more nearly like another action pending than res adjudicata, when appeals have been taken in both cases. The files in this court show appeals in both cases, although the abstracts do not show a perfected appeal in the second case. This second case was filed in the probate court May 2, 1925, as two claims against the estate for $9,000 each, based on partnership accounts, as stated above. Judgment was rendered in the probate court against the claimants October 15, 1925. The cases were appealed to the district court and were there decided the same way March 2, 1926. It will be observed that the petitions in the original case were refiled four days after the adverse decision in the district court on the claims, so that the case of the claims was tried in the probate court and district court between the withdrawal of the petitions and the refiling of them in the original case, and this confuses the application of the doctrine of res adjudicata when both cases are appealed. But the court found in this second case not only that the matter had been adjudicated, but also that there was no partnership relation existing between these brothers other than that shown by the inventory.
“Rule followed that a trial court’s reasons for a judgment are immaterial when the judgment itself is correct.” (Quinton v. Kendall, 122 Kan. 814, syl. ¶ 11, 253 Pac. 600.)
We find no error in this finding and judgment. The judgments in both cases are affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
Plaintiff recovered a judgment for $2,345 on an accident insurance policy issued by the defendant to the plaintiff. The defendant appeals from the judgment against it. The plaintiff appeals from the judgment of the court refusing to allow interest from the time the defendant was notified of the accident and injury to the plaintiff until the verdict was returned.
This is the second appearance of this case in this court. The former opinion will be found at Beeler v. Continental Casualty Co., 121 Kan. 642, 249 Pac. 579. That appeal was from a judgment in favor of the defendant on its demurrer to the evidence of the plaintiff. The judgment was reversed, and a new trial was directed.
At the close of the evidence for the plaintiff on the trial from which this appeal is taken, the defendant demurred to the evidence of the plaintiff. That demurrer was overruled. Of that order the defendant complains and argues that the question is presented on a set of circumstances which render the former decision of this court uncontrolling. This necessitates a recital of some of the facts shown by the evidence introduced on the second trial. The plaintiff was operating an oil and gas well supply house, and had been so doing for a number of years. On May 8, 1922, while atemptifig to sell some pipe to a customer, the plaintiff slipped and fell and struck his back on some eight-inch pipe. He got up and continued his work until May 29, when he became ill. On that day, he consulted a physician and was treated by him for biliousness. That treatment was followed for a few days, when'the plaintiff again visited the physician, who again examined the plaintiff and again stated that the plaintiff’s illness arose from biliousness, and continued to treat him therefor. Shortly thereafter the plaintiff went to- another physician, who examined him and stated that he was suffering from malaria, and treated him therefor. The plaintiff did not receive any benefit from the treatment of either of those physicians. After the consultation with the second physician the plaintiff went to Kansas City, Mo., for treatment by physicians at that place. He was there examined; and the physicians there stated that the cause of the plaintiff’s illness was his tonsils, which were somewhat affected. They were removed, but the plaintiff did not improve. He returned to his home at Independence, Kan., where he consulted with and was treated by an osteopathic physician, who stated that there was a slight misplacement of some of the plaintiff’s vertebrae. Treatment was given by the osteopath for that condition, and the plaintiff improved slightly, but continued to be ill. Afterward he went to Guthrie, Okla., and was there treated by a chiropractic physician, who stated that there was some misplacement of the vertebrae.. The plaintiff improved under that treatment. After a number of months the plaintiff was able to return to his work. When he returned to his work he concluded that the cause of his injury had been his fall on the pipe. He immediately wrote the defendant, notifying it of that fact. That was on October 10, 1923, sixteen months after the accident had occurred. Until that notice was given to the defendant the plaintiff had not attributed his condition to the injury sustained by him in his fall and had not believed that the fall had caused that condition.
The policy on which the plaintiff seeks to recover contained the following provision:
“Written notice of injury on which claim may be based must be given to the company within twenty days after the date of the accident' causing such injury. In event of accidental death immediate notice thereof must be given to the company.”
The policy also provided that—
“Failure to give notice within the time provided in this policy shall not invalidate any claim if it shall be shown not to have been reasonably possible to give such notice, and that notice was given as soon as was reasonably possible.”
1. The defendant contends that the provision of the policy concerning notice was not complied with, and that for that reason the demurrer to the evidence of the plaintiff should have been sustained. While the evidence of the plaintiff on the present trial differed in slight particulars from the evidence introduced on the former trial, yet the facts which that evidence tended to prove are substantially the same as those which the evidence on the former trial tended to prove, so much so that the declaration of law stated in Beeler v. Continental Casualty Co., 121 Kan. 642, 249 Pac. 579, becomes the law of this case. This court there said:
“In an insurance policy which indemnified the holder against accidental injuries, and required the holder to give notice to the insurance company within twenty days after the date of any accident causing an injury to the insured, but where the policy also provided that—
“ ‘Failure to give notice within the time provided in this policy shall not invalidate any claim if it shall be shown not to have been reasonably possible to give such notice and that notice was given as soon as was reasonably possible,’
it is held, under the evidence and peculiar circumstances narrated in the opinion, the question whether plaintiff gave notice of his accident and injury as soon as was reasonably possible was one of fact for the determination of a jury and not subject to disposition as a matter of law.” (Syl.)
The demurrer to the evidence was properly overruled.
2. The defendant complains of certain instructions. It says:
“No. 7 is erroneous and prejudicial, for the reason that it does not correctly state the facts and assumes to state that plaintiff’s injury commenced immediately, when in fact plaintiff admitted both in his petition and his evidence that he went about his business for a period of twenty-one days before he realized that there was anything the matter with him.
“Nos. 11, 12 and 13 are erroneous, as they do not state the law correctly.
“No. 14 is erroneous and prejudicial, as it attempts to single out and point out part of the evidence most favorable to the plaintiff and without reciting the evidence correctly pertaining to the matter.”
The instructions complained of ■ cover six printed pages of the abstract. Instruction No. 7 stated the plaintiff’s claim concerning his fall and his injury. Instruction No. 11 quoted the part of the policy which concerned total disability and stated the conditions under which total disability would apply. Instruction No- 12 set out the part of the policy concerning partial disability and stated the conditions under which partial disability would apply. Instruction No. 13 defined the terms “immediately,” “at once,” and “from the date of the accident,” and stated the conditions under which the jury could find that the plaintiff had been totally disabled.
Instruction No. 14 recited some of the facts which the plaintiff’s evidence tended to prove and then stated to the jury:
“In this connection, you are instructed that whether the plaintiff believed or had reasonable cause to believe that his sickness and illness was the result of said fall or not, are for you to determine under all of the facts and circumstances of this case, and in determining this fact you may take into consideration the state and condition of plaintiff’s health at and immediately before the accident or fall, if you find that he sustained such a fall as alleged by him, his conduct and treatment thereafter, the diagnosis of the various physicians and surgeons who examined and treated him, and all other facts and circumstances shown by the evidence which throw any light upon the determination or ascertainment of the cause of his illness, and if you believe and find from the evidence that plaintiff sustained a fall as alleged by him and that said fall was severe, but that at the time he suffered no serious results, but later became ill, that he consulted physicians and surgeons with reference to his illness and the cause thereof, and that plaintiff did not in fact believe until on or about the 10th day of October, 1923, that his illness and suffering had been caused by said fall, and that he acted in good faith, and that under all of these facts and circumstances, he did give notice as soon as was reasonably possible to the defendant, your verdict will be in favor of the plaintiff and against the defendant; and if you do not so find and believe, your verdict will be for the defendant.”
No good purpose will be served by further analyzing the instructions. After a careful examination, no reversible error is found in any of them.
3. The defendant says:
“The court by submitting to the jury question 3, led the jury to believe that it didn’t make any difference' about the notice unless the defendant were in some way prejudiced.”
Question No. 3 and the answer thereto read as follows:
“Was the defendant prejudiced in any manner by not receiving notice of plaintiff’s claim for indemnity until about the 10th or 12th of October, 1923? A. No.”
The defendant issued to the plaintiff a policy of accident insurance. It provided that written notice of injury must be given to the defendant within twenty days after the accident causing the injury, unless it was shown that it was not reasonably possible to give such notice, and that notice was given as soon as it was reasonably possible. The plaintiff suffered an accident. He did not know that he was injured thereby, and did not definitely learn that fact for a long time thereafter. As soon as he learned that he had been injured by the accident he notified the defendant. The court is unable to perceive wherein the defendant was in any way prejudiced by the delay in giving the notice so long as such notice was given according to the terms of the contract. Under the rule declared in Beeler v. Continental Casualty Co., 121 Kan. 642, 249 Pac. 579, it was for the jury to say whether or not notice had been given as required by the policy.
4. The defendant argues that the judgment was excessive and that the court erred in refusing to reduce it. The judgment was rendered for $2,345, which did not include interest. The policy provided for the payment of a weekly indemnity of $35 during the period of total disability and for the payment of one-half that amount during the period of partial disability. Concerning total disability and partial disability, the jury answered special questions as follows:
“Q. 6. If you find that plaintiff was totally disabled at any time after May 8, 1922, when did such total disability commence and when did it end? A. May 29, 1922, to August 20, 1923.
“Q. 7. If you find that plaintiff was partially disabled, when did such partial disability commence and when did it end? A. May 8, 1922, to August [May] 29, 1922, and August 20, 1923, to September 10, 1923.”
The jury found that the plaintiff was totally disabled for sixty-four weeks and partially disabled for six weeks. Sixty-four weeks at $35 a week would amount to $2,240, and six weeks at $17.50 a week would amount to $105, a total of $2,345, the amount of the verdict and judgment.
5. The plaintiff appeals from the refusal of the court to allow interest from October 18, 1923, to January 24, 1927. About October 18, 1923, the defendant received notice of the plaintiff’s injury. On January 24, 1927, the verdict of the jury was returned. The defendants filed a motion for a new trial on January 25, 1927, and filed a motion for judgment notwithstanding the verdict on January 26, 1927. The journal entry of judgment shows that those motions were denied on April 19, 1927. On May 10, 1927, the plaintiff filed his motion to be allowed interest from October 18, 1923, to January 24, 1927. The action was tried at the January term of the district court of Montgomery county in 1927. The next term of the district court in that county began on the first Monday in March, 1927, and another term began on the first Monday in May, 1927. The journal entry of judgment contains the following:
“Now on this 4th day of June, 1927, the same being one of the judicial days of the regular May, 1927, term of the above-named court, the above-entitled cause comes on for hearing on a disagreement between the attorneys for the respective parties upon the claim of the plaintiff for interest at the rate of six per cent per annum from the 18th day of October, 1923, to January 24, 1927, in the sum of 8459.60, the same to be added to the judgment of §2,345 and aggregating the total sum of 82,805.60 [§2,804.60]; thereupon, the claim of defendant that no judgment was entered in said cause until the 19th day of April, 1927, when the motions of the defendant for judgment in its favor and its motion for new trial were overruled. The plaintiff appears by Chester Stevens, his attorney, and the defendant appears by Banks, O’Brien & McVey, its attorneys, and the court having heard the motion and application of the plaintiff for interest as aforesaid, having heard the motion and application of the defendant that interest on the $2,345 be not allowed to commence until April 19, 1927, and having examined his minutes and being fully advised in the premises finds that the plaintiff is not entitled to interest prior to the date when the verdict was returned, .and that judgment should be entered on the verdict as of January 24, 1927, for $2,345 in favor of the plaintiff and against the defendant, and that said judgment should draw interest at the rate of six per cent per annum from the 24th day of January, 1927; to which ruling adverse to the plaintiff, the plaintiff duly excepted, and to which ruling adverse to the defendant, the defendant duly excepted.”
The plaintiff did not file any motion for a new trial. The plaintiff’s motion to be allowed interest was not filed until after the term of court at which the verdict rendered had expired, and the succeeding term of court had also expired, and another term of court had commenced.
The action was one to recover money under a contract which stipulated that certain sums should be paid under named conditions. Section 41-101 of the Revised Statutes provides that interest at six per cent shall be allowed for any money after it becomes due. The money which the defendant agreed to pay became due when it was notified of the accident and injury.
Section 60-3007 of the Revised Statutes, in part, reads:
“The district court shall have power to vacate or modify its own judgments or orders, at or after the term at which such judgment or order was made . . . for mistake, neglect or omission of the clerk, or irregularity in obtaining a judgment or order.”
We quote from Vail v. School District, 86 Kan. 808, 809, 122 Pac. 885, as follows:
“The statute (Civ. Code, § 596) authorizes the district court to vacate or modify its own judgments or orders at or after the term, for mistake, neglect or omission of the clerk, or irregularity in obtaining a judgment or order. It is argued that after the term ended the court lost control of the judgment and that no legal reason existed for setting it aside, and various decisions of this court are cited. In Clevenger v. Hansen, 44 Kan. 182, 24 Pac. 61, the record showed that the judgment was entered for a larger sum than the plaintiff was entitled to under his petition and it was held proper for the district court to modify it at a subsequent term. In Tobie v. Comm’rs of Brown Co., 20 Kan. 14, the special findings authorized a judgment for $9.33, and the district court erroneously entered judgment for $129.33, and it was held proper to modify it according to the special findings at a subsequent term. In Small v. Douthitt, (Dass. Ed.) 1 Kan. 317, a judgment was held properly corrected at a subsequent term nunc pro tunc, a mistake having been made in the recital of the amount in default of which the sale should be made.”
In Clevenger v. Hansen, 44 Kan. 182, the judgment was obtained January 29, 1886, and the application to modify the judgment was filed May 9, 1888.
In Tobie v. Comm’rs of Brown Co., 20 Kan. 14, the date of the rendition of the judgment is not shown, but the following language is found in the opinion:
“At the October term, 1875, the court stated to the counsel of the respective parties to the action, that if an application should be made upon the part of the board of county commissioners to reduce the amount of the said judgment of §129.33 to $9.33, as originally asked for in the motion of the board at the August term, the application would be granted. In pursuance of this intimation, at the April term, 1876, the defendants in error filed their written motion and application to have the judgment changed and modified in accordance with the special findings of fact, which was resisted by the plaintiff in error, and upon the hearing, the court at said April term modified the judgment by reducing it to $9.33, as the amount of the recovery for damages, and assessed the costs against the plaintiff in error; and this change or modification of the judgment is complained of.” (p. 16.)
In Seeds v. Bridge Co., 68 Kan. 522, 75 Pac. 480, this court said:
“If the special findings are such as to require the entry of a judgment thereon, notwithstanding the general verdict, a judgment entered upon such general verdict is irregular and as such may be set aside at a subsequent term of court.” (Syl. HI.)
In Cooper v. Rhea, 82 Kan. 109, 107 Pac. 799, the court declared that — ”
“Under the provision (Civ. Code, § 568, subdiv. 3; Gen. Stat. 1901, § 5054, subdiv. 3) that a judgment may be set aside at a subsequent term ‘for mistake, neglect or omission of the clerk, or irregularity in obtaining’ it, a court may vacate a'judgment rendered on the pleadings because of a misapprehension as to what allegations they in fact contained.” (Syl. HI.)
These cases are analogous to the one now under consideration. Under these authorities the court had power to make the requested change in the judgment. The plaintiffs were entitled to interest on $2,345 at six per cent from October 18, 1923, to the date of the judgment. That interest is shown by the record to amount to $459.60,
The judgment in favor of the plaintiff is modified by increasing the amount thereof from $2,345 to $2,804.60, and as thus modified it is arffimed. | [
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The opinion of the court was delivered by
Hopkins, J.:
This action is similar in many respects to Wheat Growers Ass’n v. Rowan, post, p. 710. Substantially the same misrepresentations were alleged and proved and the court’s findings in effect the same. Some additional matters in this case require discussion, but what is said in the former case with reference to the right of the defendant to depend upon the alleged misrepresentations is controlling here.
In this case, defendant’s application for membership was executed December 29, 1921. On November 6, 1924, he executed a proxy which reads:
“That the undersigned, member or members of the Kansas Wheat Growers Association, does, or do, hereby constitute and appoint C. 0. Trower, attorneys, or attorney, of the undersigned, with power of substitution to each, for and in the name of the undersigned to vote at the special meeting of the members of said association to be held at its office in Wichita, Kan., on Thursday, the sixth day of November, 1924, and on such other day and at such other place as the meeting may thereafter be held, by adjournment or otherwise, with all the powers the undersigned would possess if personally present. A majority of said attorneys as shall be present and shall act at the meeting (or if only one shall be present and act, then that one) shall have and may exercise all the powers of the said attorneys thereunder.”
The record does not disclose that the proxy was actually used and voted, but the fact that the defendant, almost three years after joining the plaintiff association, executed the proxy, shows beyond question that he still claimed rights and benefits under and by virtue of his membership in the association. He thereby acknowledged his obligations to the association and waived any right he might have had at that late date to rescind the contract. (Wheat Growers Ass’n v. Rowan, 123 Kan. 169, 254 Pac. 326; Wheat Growers Ass’n v. Oden, 124 Kan. 179, 257 Pac. 975, and cases cited.)
The plaintiff contends that there should be an allowance of attorney’s fees to be fixed by the court. The statute provides:
“The by-laws and the marketing contract may fix as liquidated damages specific sums to be paid by the member or stockholder to the association upon the breach by him of any provision of the marketing contract regarding the sale or delivery, or withholding the products, and may further provide that the member will pay all costs, premiums for bonds, expenses, and fees in case any action is brought upon the contract by the association.” (R. S. 17-1616.)
Paragraph 18c of the contract between the parties reads:
“If the association brings any action whatsoever by reason of a breach or threatened breach hereof, the grower agrees to- pay to the association all costs of court, costs for bonds and otherwise, expenses of travel, and all expenses arising out of or caused by the litigation, and any reasonable attorney’s fees expended or incurred by it in such proceedings, and all such costs and expenses shall be included in the judgment and shall be entitled to the benefit of any lien securing any payment thereunder.”
In Mo. Pac. Rly. Co. v. Merrill, 40 Kan. 404, 19 Pac. 793, an action to recover damages under chapter 155 of the Laws of 1885 (R. S. 66-232 and 66-233), it was said that “what is a reasonable attorney’s fee is a question of fact, which should be submitted and determined the same as any other fact arising in the case.” (p. 409.)
In Ft. S. W. & W. Rld. Co. v. Karracker, 46 Kan. 511, 26 Pac. 1027, it was held that the trial court erred in rendering judgment for an attorney’s fee against the company without submitting the question to a jury. Referring to the Merrill case, the court said:
“This indicates that the question of the allowance of a reasonable attorney’s fee should be presented for hearing at the same time the case is tried upon its merits, and to the same tribunal, and if so, it would also seem that the demand for a reasonable attorney’s fee should be set forth, in some manner, in the plaintiff’s petition.” (p. 519.)
In Ft. S. W. & W. Rly. Co. v. Tubbs, 47 Kan. 630, 26 Pac. 612, it was said that— -
“The question of attorney’s fees was one of the issuable facts in the case, and should have been submitted with the other facts to the jury and been determined in the same way.” (p. 637.)
In Gray v. Railway Co., 89 Kan. 325, 131 Pac. 555, it was held to be error for the court to fix the attorney fee. This court said:
“The amount of attorney’s fees, if any, to which a plaintiff is entitled in such a case is a question for the determination of the jury, to be tried by the jury as .other questions of fact in the case are tried.” (p. 328.)
In Blount v. Building & Loan Association, 97 Kan. 77, 154 Pac. 222, an action brought to recover the penalty for failure to release a real-estate mortgage, under the provisions of section 5202 of the General Statutes of 1909 (R. S. 67-309). it was held to be. error for the court to refuse to submit to a jury the question as to the amount of attorney’s fees. It will be noted that these were distinctively actions at law. In another line of cases, sounding in equity, it has been held that the court might allow attorney’s fees. Elliott v. Oil Co., 106 Kan. 248, 187 Pac. 692, was an action to cancel of record an oil and gas lease which had been forfeited and for statutory damages for $100 and for an attorney’s fee expressly allowed by statute in actions of that kind. It does not appear to have been a jury trial, and so far as its main features were concerned, cancellation of the lease, the action sounded in equity rather than in law. The question whether there should have been a jury trial on plaintiff’s right to an attorney’s fee seems not to have been raised. The decision was that an attorney’s fee should have been allowed, but as no evidence of the extent and worth of the attorney’s services were presented, the fee would have to be limited to the fair value of what services he had performed, which the trial court was apprised of without formal evidence — for example, the attorney’s services disclosed by the files in the case, the briefs if any, what preparation he had made for, trying the case as manifested by the way he did try it. To that extent, at least, the trial court knew what services plaintiff had performed, and the court could thus make a partial allowance without further proof. But this court did not intend to rule as a matter of law that an allowance of attorney’s fees, or the value of his service, is never a jury question. In the instant case, the attorney’s fee is a matter of contract, a contract sanctioned by express statute, but to be enforced as any other valid contractual obligation, in a court of general jurisdiction. An agreement of parties that this court might fix an attorney’s fee is ordinarily unenforceable here for the reason that jurisdiction is not thus conferred on this court. Its original jurisdiction is that defined by the constitution, and its appellate jurisdiction is conferred by statute. It has no other jurisdiction, and so the matter of fees earned by plaintiff in this court under its contract with defendant is recoverable only in a court having original jurisdiction of contractual obligations.
Various authorities cited by plaintiff supporting the theory that the court might fix and allow attorney’s fees without formal proof have been considered, but we conclude that in actions like the present the parties claiming such fees should plead and prove their right thereto the same as would be required in order to recover on any other provision of the contract. In the absence of agreement as to the allowance for attorney’s fees, the parties cannot recover without pleading and proof. In this case, there was evidence that $150 would be a reasonable attorney’s fee. If the trial court gave credence to that evidence, the plaintiff would, therefore, be entitled to judgment for that amount in addition to its damages for failure of the defendant to deliver his wheat according to contract. The evidence discloses that the defendant disposed of a total of 4,584 bushels of wheat which should have been delivered to the plaintiff. According to the contract the plaintiff was entitled to recover twenty-five cents -per bushel.
The judgment is reversed and the cause remanded, with instructions to enter judgment for plaintiff for the amounts due. | [
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The opinion of the court was delivered by Johnston, C. J.:
This was an action for the specific performance of a verbal contract alleged to have been made between the plaintiff, Hattie Lorena Bowen, and her mother, Eleanor Katherman, under which the plaintiff claimed that she had become the owner and entitled to the possession of an eighty-acre farm in Douglas county. The plaintiff pleaded that her mother owned the farm and that a contract had been made between them, in substance that sometime in 1905 her mother agreed that if plaintiff would remain on the farm, cultivate it and raise crops thereon, care for the live stock, and from the proceeds of the farm pay a mortgage thereon of $1,050, pay the funeral expenses of plaintiff’s father, who died shortly before that time, and should pay certain debts left unpaid by her father, and further should care for her mother as long as she lived, giving her such care as a daughter usually gives to a mother, the farm should become the property of the plaintiff upon the death of her mother. The heirs of Eleanor Katherman, other than plaintiff, were made defendants, and several of them joined in an answer denying the averments in plaintiff’s petition, set out the various interests that the heirs had in the farm, and demanded partition. The cause went to trial before the court without a jury, and upon the evidence produced by the respective parties the court found that the allegations of the plaintiff’s petition were not true and that she was not entitled to specific performance nor any other relief, and that the land in question descended to the parties to the action in shares that were set out. Costs were adjudged in favor of the defendants and partition of the property was ordered. The plaintiff appeals, and the substantial question raised is that the decision of the court is contrary to the evidence.
An inspection of plaintiff’s brief discloses that it challenges no procedural errors, but is confined to a discussion of the testimony and urges that it preponderates greatly in favor of the plaintiff, required a judgment sustaining her claim, and that therefore the decision was contrary to law. The plaintiff produced testimony to the effect that persons had heard her mother say that plaintiff should have the farm after she got through with it. Plaintiff’s husband testified that he heard Mrs. Katherman say “when she died Hattie [the plaintiff] was to have the farm,” but nothing was said about a contract having been made to that effect. Another witness said that Mrs. Katherman told her that after she was gone Hattie was to get the farm, that Hattie had helped her to pay off the mortgage and the back debt. Another witness testified that Mrs. Katherman in talking to plaintiff and another daughter said if they would stay at home with her and help pay off the mortgage she would divide the farm between them, and one daughter said that she could not stay, when Mrs. Katherman stated, “Which one stays gets the place when I am through with it at my death.” Still another testified that she heard Mrs. Katherman say she had given Hattie the place. On cross-examination that witness was asked if she had heard Mrs. Katherman say that she had made a bargain of that kind with Hattie, and answered, “She didn’t call it a bargain exactly, she just said when she was done with it it would go to Hattie.” To the question, “She didn’t say whether she and Hattie had a contract to that effect?” the witness answered, “She never spoke of a contract.”
.There was testimony tending to show that plaintiff was living in the home when her father died in 1905, and that she remained there and helped her mother care for the home and in the management of the farm until plaintiff was married in 1908. It appears that she and her husband then rented the farm upon the basis that they would pay as rental two-fifths of the product of the farm to the mother and retain the remainder. They lived in the home with plaintiff’s mother, and operated the farm on a rental basis up to and including the year 1912. Thereafter plaintiff and her husband moved away and rented a farm a few miles distant which they worked for a period of two years, when they moved to another farm in the vicinity and operated it for three years, and then moved upon another rented farm about three miles away where they lived until the death of plaintiff’s mother.
There is testimony that during these periods plaintiff went home occasionally, as often as two or three times a week, and when there she assisted her mother in various ways. No writing of any kind was produced tending to show the making or existence of a contract. Plaintiff did introduce evidence to the effect that her mother had at' one time made a will, which those who saw it said it contained a devise of the farm to plaintiff. The will it appears had been deposited with the probate judge of the county; but after being there for a time it was withdrawn by plaintiff’s mother and taken to her home and placed in a drawer of a dresser. After her death a search was made for the will, which was unsuccessful, and it has never been found. There is nothing in the record to show whether it was purposely destroyed by the maker or what became of it. There was no attempt to prove or establish a'lost will, and manifestly the evidence was introduced to show that the mother of plaintiff at one time had in mind a purpose to give the property to her.
It was shown that in 1905, when Mr. Katherman died, there was a mortgage on the farm of $1,050, an obligation for funeral expenses and a few other items of indebtedness, amounting in all to about $1,300. These obligations it was shown were paid out of the products of the farm. The plaintiff took an active part in helping her mother care for the home and the farm and gave her such'attention and care as a loyal daughter usually gives to a mother. It further appears that shortly after her father’s death plaintiff left the home and worked in a telephone exchange and in business houses, which took her away from home at least three winters.
Mrs. Katherman, the mother, was in good general health and gave personal attention to the management of the farm. She made the contracts for the rental of the place and collected the rents from the tenants. She also employed mechanics to make improvements on the place, including the building of corn cribs, repair of outbuildings, and these services were paid for by Mrs. Katherman herself. The employees and tenants testified that none of the contracts were made by or through the plaintiff, but that they dealt directly with the plaintiff’s mother. One of the tenants who had operated the farm for ten years said he never had any dealings with the plaintiff or received any directions from her as to the crops to be planted, but had all his dealings with Mrs. Katherman, and paid all rents directly to her.
The testimony tends to show that Mrs. Katherman was a vigorous, independent and capable woman, who gave close attention to her business and the operation of her farm. It is true she was unlettered and could not read or write. She intrusted the plaintiff, when at home, to attend to her banking business and the writing of checks, but it is conceded that she collected and handled the money that was deposited in the banks. As to the matter of writing checks, there was testimony that in 1917 Mrs. Katherman had paid each of her children $200 with checks, and smaller amounts later to her grandchildren. These were prepared by plaintiff, and on the lower corner of each she had written the words, “Paid in full of her estate”; and this indorsement it is argued showed that Mrs. Katherman intended these amounts to cover any interest the children might ever claim in the estate after her death. It may be stated that there is evidence to the effect that plaintiff, who drew the checks said that these checks which were given to the children eight years before Mrs. Katherman’s death, “were presents from Grandma.”
Mrs. Katherman had, it appears, seven daughters and one son, as well as several grandchildren, her heirs, and interested in her estate, but it is clear that plaintiff was at home a longer time and rendered more service to the mother than any of the other heirs. It was shown, however, that others of her children came home frequently and visited the mother, and once when she fell and was injured two of her daughters came home and cared for her for several weeks. The important question and the turning point in the case is whether the oral contract was made to the effect that plaintiff was to have the farm for the promised services to be rendered to her mother, and if made was it so fully performed as to take it out of the purview of the statute of frauds, and also is it so free from inequity as to require a court of equity to decree specific performance.
In a case of a similar kind it was held that the specific performance of such a contract rests largely in judicial discretion, and that unless the existence of the contract is clearly and certainly established by the proof, and is without inequitable conditions it will not be enforced. (Anderson v. Anderson, 75 Kan. 117, 88 Pac. 643.) As to the matter of proof it has been held that:
“Before an oral agreement will operate as a transfer of land it must appear that it is certain and definite in subject matter and purpose and has been proved by clear and satisfactory proof, but it is not essential that it be established by direct evidence.
“If the facts and circumstances brought out in the evidence, including the acts of the parties, are such as to raise a convincing implication that the contract was actually made and satisfy the court of its terms and performance, and that there would be no inequity in its enforcement, it is sufficient.” (Bichel v. Oliver, 77 Kan. 696, syl. ¶¶ 2, 3, 95 Pac. 396. See, also, James v. Lane, 103 Kan. 540, 175 Pac. 387.)
Quite a number of cases of this kind have arisen recently in this jurisdiction, and in respect to them it has been said:
“Of course this is the sort of case where the triers of the facts, and especially the trial judge, must be alert to see that estates are not plundered through false and fraudulent claims, and where there must be careful and conscientious sifting of the evidence. But such claims may be bona fide, and when they are such and are established by clear and convincing evidence, they are perfectly legitimate and must be respected and enforced.” (Bateman v. Franklin, 114 Kan. 183, 185, 217 Pac. 318.)
The earlier decisions of the question in this court demonstrate that the owner of property may dispose of it as he pleases, and if it be clearly shown that he orally agreed to give his property or a part of it for exceptional services, which were fairly and fully performed, courts of equity will decree specific performance. (Meador v. Manlove, 97 Kan. 706, 156 Pac. 731; Pantel v. Bower, 104 Kan. 18, 178 Pac. 241; Nash v. Harrington, 110 Kan. 636, 205 Pac. 354; Hickox v. Johnston, 113 Kan. 99, 213 Pac. 1060; Hutchinson v. Hutchinson, 120 Kan. 154, 242 Pac. 480; Rooney v. McDermott, 121 Kan. 93, 246 Pac. 183.)
To take an oral contract for transfer of land out of the statute of frauds by alleged acts of performance, the acts relied on must clearly appear to have been done in pursuance of the contract and not because of some filial or other relation. (Owens v. McNally, 113 Cal. 444, 36 Cyc. 645.) While plaintiff produced testimony tending to show the existence of the contract alleged, there is evidence and many circumstances tending to refute the claim of plaintiff, and it therefore became the function of the trial court to weigh the evidence, including the contradictions and conflicts, and determine the veracity of the witnesses and the truth in the case. In view of the standard of proof required in such cases, it cannot be said that there were no grounds for a holding by the court that the evidence did not show clearly and convincingly that the alleged contract was actually made or that the claimed services were performed in pursuance of the contract. So far as the alleged will is concerned, it was within the possession of Mrs. Katherman, and as it was not found, but had been removed from the place and the envelope in which it had been kept, the presumption in the absence of evidence to the contrary is that she destroyed it. (28 R. C. L. 384.) If the will contained the devise as claimed it might be argued that the farm had not previously been given to the plaintiff under the contract, and if it was destroyed or revoked by the testatrix, as she had a right to do, it might be argued that the testatrix had concluded to let the property descend to her heirs under the law. Of course, if a valid agreement had been made and performed and the right to it became vested in the plaintiff, it could not be defeated by a different disposition of it in a later will. (Nash v. Harrington, supra.) Plaintiff, as we have seen, however, is relying on the contract and not on the will, and the trial court has in fact held that no such contract existed. In view of the discretion vested in the court already mentioned, and the conflicts in the evidence as well as circumstances which were adverse to the plaintiff’s claim, we cannot say that the court abused its discretion or erred in its finding and judgment. The plaintiff’s contention on this appeal really is that the evidence preponderates in her favor, but preponderance does not avail to overthrow a judgment for defendants, supported as it is by competent though conflicting evidence.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
In this action plaintiffs seeks to recover damages against the city of Topeka and J. Torsney for the death of their twelve-year-old daughter, who was drowned in a cement swimming pool in Gage Park on June 16, 1926. The court sustained the demurrer filed by each defendant to the petition, and plaintiffs appeal.
The petition, in addition to the general statement of facts, alleges that the city had constructed and was maintaining such cement swimming pool in the park, naturally attractive in every way to young people in its construction and beautiful surroundings, but with a drop-off of about four feet without suitable warning or danger signals and protection, and without the presence of guards to rescue those unaccustomed to swimming and unable to help themselves; that their young daughter and her girl cousin, one year older, on June 16, 1926, were attracted to such pool and surroundings, rented a locker and bathing suits about five o’clock in the afternoon and went in swimming, no others being in the pool at the same time. They were drowned, their bodies being found beyond the drop-off, where the water was about nine feet deep. The petition further alleges that the city operated such pool for hire and had the defendant Torsney in charge of it under a written contract, attaching a copy thereof to the petition. It is further alleged that the death of the plaintiff’s daughter was due to the negligence of both defendants.
The attached agreement provides, among other things, that the city, for a valuable consideration, sold and granted to Torsney the exclusive privilege to operate all the concessions in the park for a definite period, including the time of the accident; that in operating such concessions the city is to maintain supervision and control over the park and to have complete control and supervision at all times as to cleanliness and sanitary condition; that Torsney is to furnish suitable persons to be on guard and save the lives of any and all persons using the swimming pool, whose duty it shall be to be present at all times when there are bathers in the pool, for the purpose of assisting and protecting anyone whose life may be in danger from drowning in the pool; that the commissioner of parks and public property of the city shall at all times have the general supervision of the park and property, and that Torsney, in the operation of the concessions granted, shall at all times observe such rules and regulations as may be laid down from time to time by such commissioner; that all rates and charges are enumerated in the contract and Torsney is required to give the city a bond for $5,000 to hold the city harmless from all expenses, damages and costs.
As far as the city is concerned this is not a new question, it having been held that a swimming pool in a city park is not an attractive nuisance:
“A swimming pool in a public park of a city, constructed of concrete and equipped with the usual swimming-pool accessories, is not a nuisance, although attractive to children.” (Gilliland v. City of Topeka, 124 Kan. 726, syl., 262 Pac. 493.)
It was there held that the maintenance of such well-equipped swimming pools was within the exercise of the governmental power of a city, and there could therefore be no liability for damages against the city. The unfortunate accident is to be most seriously regretted, and the fond parents have the sympathy of all who know of the accident,' but we must recognize the modern tendency to furnish artificial swimming pools instead of the natural swimming holes and to locate them in the most convenient places for use and enjoyment, viz., in parks. In this most recent expression of our court, it is stated in the opinion:
“The swimming pool was an artificial pool constructed of cement. It had a sloping bottom which provided varying depths of water, and was equipped with a diving platform, springboards, a bathhouse, and other swimming-pool accessories. While attending a Sunday-school picnic in the park the child went into the pool, got beyond his depth and was drowned. No life guard was on duty at the time. Plaintiffs stand on the proposition that the swimming pool with its equipment and appurtenances was a nuisance attractive to children, and consequently that the city may not avoid liability by invoking the doctrine of exercise of governmental power in maintaining the swimming pool. The swimming pool was doubtless attractive to children, but it was not a nuisance, producing public annoyance, inconvenience, discomfort or hurt. It was a feature of the park tending to promote public health, happiness and welfare. The accident to plaintiffs’ child was a misfortune greatly to be deplored, but it did not change the essential nature of the place.”
The doctrine of cities not being liable in damages for the negligence or even wrongdoing of its officers or agents in the exercise of their governmental functions has been repeatedly affirmed in Kansas. In Harper v. City of Topeka, 92 Kan. 11, 139 Pac. 1018, it was declared with reference to a natural swimming pool maintained in a city park as follows:
“Ordinarily, cities and other municipal corporations in the exercise of their governmental functions are not liable in damages for any neglect, or even wrongdoing, of their officers in the discharge of such duties unless such liability is expressly imposed upon them by law.” (p. 13.)
In the case of Hibbard v. City of Wichita, 98 Kan. 498, 159 Pac. 399, it was held that “the maintenance of a zoological garden in a public park by a city is a governmental function, and the city is not liable in damages for injuries inflicted on visitors by animals through the negligence of the city’s officers or agents in not properly confining the animals.” In the case of Rose v. City of Gypsum, 104 Kan. 412, 179 Pac. 348, it was held that, while it was the duty of the city and its officials to forbid and prevent an automobile race on its streets, the city was not liable in damages for negligence of its officers in the discharge of such governmental duties. The same principle was adhered to and maintained in the cases of Bailey v. City of Topeka, 97 Kan. 327, 154 Pac. 1014, and Gorman v. City of Rosedale, 118 Kan. 20, 234 Pac. 53. No good purpose can be served in further enumerating the decisions which hold that a city is not liable in damages for loss sustained through the negligence of its officers or agents while in the exercise of its governmental functions.
There is no question as to the demurrer of the city of Topeka being properly sustained by the trial court; but let us consider and see whether or not a different rule should prevail as to the demurrer of the defendant Torsney, whose negligence is alleged in the petition as being the same as that of the city, and futher as being the lessee of the pool from the city by virtue of a contract between him and the city, which is set out in full as an exhibit to the petition. A careful examination of the agreement attached to the petition does not show it to be a lease from the city to defendant Torsney. It can more properly be called a concession, with the city reserving to itself and the commissioner of parks and public property full and complete control and supervision over the entire park and the property therein, and the right to impose from time to time rules and regulations as to the operation of the concessions granted. We think, as was said concerning an apparently similar agreement in the Bailey case above cited, that “the concessions granted do not amount to the leasing of any part of the park . . . nor do they involve the loss of control over it by the public ofiicers.” (p. 329.) If the defendant Torsney does not have a lease, but only a concession, with absolute super vision and control to be exercised over him at all times by the city and its officers, he cannot be said to be an independent contractor, but more properly an agent or employee of the city. An independent contractor is defined in Pottorff v. Mining Co., 86 Kan. 774, 122 Pac. 120, to be “one who, -exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to control of his employer, except as to the result of his work.” (Syl. ¶ 2.) See, also, Railroad Co. v. Madden, 77 Kan. 80, 93 Pac, 586; Nordgren v. Southwestern Bell Telephone Co., 125 Kan. 33, 262 Pac. 577.
At most, the defendant Torsney was an employee or agent carrying out the orders and directions of the city and its officials, particularly the commissioner of parks and public property. His negligence in the discharge of duties along the line of governmental functions would be much, if not identically, the same as that of his superior officer, the commissioner of parks and public property, and it has been held that the negligence of such officers does not render them liable individually for damages, because the duty neglected was not owed to the individual complaining, but to the public.
“The neglect of a public officer to perform a; public duty can constitute an individual wrong only when some person can show that the performance thereof involved a duty owing to himself as an individual, and that by reason of its nonperformance he has suffered a special and peculiar injury.” (Construction Co. v. Sedgwick County, 106 Kan. 410, syl. ¶ 1, 186 Pac. 492.)
In that opinion it was said:
“The individual members, acting as a board, were required to give notice by publication for the calling of the election. The board failed to give the proper notice and the election was void, but the duty it owed in this respect was not to the appellant; it was to the public alone.” (p. 416. See, also, 2 Cooley on Torts, 3d ed., 446.)
A special reason assigned why defendant Torsney should be liable is because he failed and neglected to be on guard himself and to maintain guards when bathers were in the pool, to save the lives and to assist and protect those in danger of drowning. This was a contractual duty which he owed to the city under the terms of the agreement. A breach of his duty in this respect would make him liable to the city, but not to the public. No individual can say that any duty to him has been violated by the neglect of Torsney to provide a life guard. The agreement made it the duty of Torsney to render a particular service which was of value to the individual members of the public, but it created no liability for any harm caused to them by its breach. The individuals as such are not in themselves entitled to such a service, and it is certainly not a legal, enforceable duty at the command of the public or any individual member thereof. It was held in Dixon v. Railway Co., 104 Kan. 404, 179 Pac. 548, that “an ordinance which requires the abutting owner to repair sidewalks which become dangerously defective, and authorizes the city to make such repairs at his charge if he fails to do so within ten days of the receipt of an official notice of what has been determined to be necessary, does not render such owner liable to a pedestrian who is injured by reason of a defect in the walk.” (Syl. ¶ 2.) We think the crucial test as to a recovery from the defendant Torsney for his neglect to furnish guards or to comply with any other requirement of his contract is whether or not the party complaining of the breach stands in privity with such contract. If he does not so stand, he cannot recover.
“Where a city contracts with a water company to furnish a supply of water for use in extinguishing fires, such supply to be paid for by a levy of taxes upon the taxpayers of the city, and by the terms of the city ordinance, which the water company accepts, the water company agrees 'that it will pay all damages that may accrue to any citizen of the city by reason of a failure on the part of the company to supply a sufficient amount' of water, or a failure to supply the same at the proper time, or by reason of any negligence of the water company,’ there is no such privity of contract between a citizen or resident and the water company as will authorize him to maintain an action against it for the injury or destruction of his property by fire, caused by the failure of the water company to fulfill its contract.” (Mott v. Water Co., 48 Kan. 12, syl., 28 Pac. 989.)
The petition fails to state a cause of action against defendant Torsney. The ruling of the trial court in sustaining both demurrers is affirmed.
Harvey and Hopkins, JJ., concur in the decision as to the city of Topeka, but dissent as to the conclusion reached concerning J. Torsney. | [
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The opinion of the court was delivered by
Marshall, J.;
The plaintiff commenced this action to foreclose a mortgage givejn by the defendants Dan F. Callahan and Esther D. Callahan, his wife, on certain real property situated in King- man county. Judgment of foreclosure was entered, but the mortgage lien was made subject to the lien of the Farmers State Bank of Kingman and of Charles W. Johnson, its receiver. The plaintiff appeals.
The action was tried on an agreed statement of facts, which was, in part, as follows:
“That the Farmers State Bank of Kingman, Kan., was a Kansas banking corporation and had been such for more than ten years prior to the commencement of this action; that on or about the 16th day of January, 1924, said bank became insolvent and closed its doors, and on February 1, 1924, a’ receiver was appointed therefor, and it was deemed necessary at said time to collect the double liability upon the capital stock of said bank; . . . that Ora J. Callahan died intestate a resident of Kingman county, Kansas, on or about the 20th day of October, 1918, leaving as her sole and only heirs at law the defendant, Dan F. Callahan, her husband, and three minor children; that at the time of her death the said Ora J. Callahan was the owner of thirteen and one-third shares of the capital stock of the Farmers State Bank of King-man, Kan.; that said stock stood upon the books of said bank in her name and so stood in the name of said Ora J. Callahan on the books of said bank at the time said bank became insolvent and closed its doors. That Dan F. Callahan was, on or about the first day of November, 1918, duly appointed and qualified as administrator of the estate of Ora J. Callahan, deceased, and that said estate has never been settled. . . . That the double liability upon said thirteen and one-third shares of stock of the said Ora J. Callahan has never been paid, but that a judgment was recovered in the district court of Kingman county, Kansas, in case No. 8,094, on or about the 2d day of April, 1926, against the said Dan F. Callahan as administrator of the estate of Ora J. Callahan, deceased, in the amount of 81,486.60, with six per cent interest from said date until paid, which judgment has never been paid, but has been filed and allowed in the probate court of Kingman county, Kansas, as a claim of the sixth class against said estate; that the estate of Ora J. Callahan, deceased, had no personal property, and said administrator at this time has no personal property in his hands with which to pay said judgment.
“That for more than ten years prior to January 16, 1924, Dan F. Callahan was a majority stockholder of the Farmers State Bank of Kingman, Kan., and had been president of said bank and at the time of the closing of said bank was a director .thereof and the owner of 247% shares of the capital stock of said bank, of the par value of 8100 per share; that on or about the-day of May, 1925, cause No. 8,097 was filed in the district court of Kingman county, Kansas, by said bank and its receiver, against said Dan F. Callahan, ■to recover upon said double liability, and on December 14, 1925, a judgment was rendered in said court and cause in favor of said bank and its receiver and against said Dan F. Callahan for the double liability upon his said stock in the amount of 827,490.97 with interest from said date; that said judgment, nor any part thereof, has ever been paid and is still due and owing from said Callahan.
“That the said Dan F. Callahan, for some time prior to the closing of said bank, had been indebted to the Fidelity National Bank and Trust Company of Kansas City, Mo., in the approximate amount of the note and mortgage sued upon by said plaintiff herein; that said Callahan was never indebted to said plaintiff, Dayton F. Glenn, but that on or about the 1st day of July, 1924, in order to secure said indebtedness due and owing said Fidelity National Bank and Trust Company, said D. F. Callahan and his second wife, Esther Callahan, executed and delivered the renewal note secured by said mortgage as set out in plaintiff’s petition and amended petition herein, and said renewal note and mortgage were executed to said Fidelity National Bank and Trust Company in the name of the plaintiff herein, Dayton F. Glenn, merely for convenience, but for the indebtedness owing to said Fidelity National Bank and Trust Company by said D. F. Callahan; that said mortgage was filed for record in the office of the register of deeds of Kingman county, Kansas, on December 6, 1924.
“That for a number of years prior to January 16, 1924, the Fidelity National Bank and Trust Company of Kansas City, Mo., had acted as one of the Kansas City correspondents of said Farmers State Bank of Kingman, Kan., and on January 16, 1924, the Farmers State Bank of Kingman, Kan., had on deposit with the Fidelity National Bank and Trust Company an account of approximately $1,800 which said account was during the first few months of the receivership withdrawn by said receiver and the accounts of said two banks finally settled.
“That on March 24, 1927, an execution was issued out of the district court of Kingman county, Kansas, in case No. 8,097, and on March 26, 1927, the sheriff of said county levied the same upon the interest of the said Dan F. Callahan in all the lands and tenements described in plaintiff’s petition. That no prior execution had been issued in said case.
“That said Farmers State Bank of Kingman, Kan., through its duly constituted officers, had during all the time previous to January 16, 1924, filed with the state bank commissioner in his office at Topeka, Kan., and with the county clerk in her office in Kingman, Kan., reports as required by law, showing full and complete lists of all the stockholders of said bank.”
The judgment recites that—
“The court further finds that the defendants, the Farmers State Bank of Kingman, Kan., and Charles W. Johnson, receiver thereof, have a first and prior lien, prior to the lien of said plaintiff, upon all of the above-described lands and tenements by reason of the double liability judgments of said bank and its receiver in cases Nos. 8,094 and 8,097 of the district court of Kingman county, Kansas, and that said liens of said defendant bank and its receiver are first and prior hens upon said above-described lands.”
1. The plaintiff argues—
“1. That said judgment was given in response to a statute (supra) the provisions of which are in violation of the due process and equal protection of the law clause of the federal constitution, fourteenth amendment..
“2. That the judgment was given in response to a statute (supra) the provisions of which are in violation of section 18 of the bill of rights of the state constitution, which section guarantees that no person shall suffer injuries to property without due process of law.”
Section 9-156 of the Revised Statutes, the statute that is questioned by the plaintiff, reads:
“At any time after the closing of any incorporated bank, if it shall appear to the receiver thereof that the assets of such bank are insufficient to pay its liabilities, it shall be the duty of such receiver to immediately institute proper proceedings, in the name of the bank, for the collection of the liability of the stockholders of such bank; all sums so collected to become a part of the assets of such bank and to be distributed pro rata to the creditors thereof in the same manner as other funds: Provided, That all transfers of property by a stockholder after the closing of any such bank, and before the payment of the double liability as provided by this act, shall be absolutely void as against said double liability. No action by any creditor against any stockholder of such bank for the recovery of such liability shall be maintained unless it shall appear to the satisfaction of the court that the receiver has failed to commence action as herein provided.”
The part of the statute that is questioned is the following:
“All transfers of property by a stockholder, after the closing of any such bank and before the payment of the double liability as provided by this act, shall be absolutely void as against said double liability.”
The provision of the constitution of the United States on which the plaintiff relies is the last part of the fourteenth amendment, which reads:
“No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.”
Section 18 of the bill of rights of the constitution of the state of Kansas, on which the plaintiff relies, reads:
“All persons for injuries suffered in person, reputation, or property, shall have remedy by due course of law, and justice administered without delay.”
Does the restriction on the alienation of the property of a stockholder in a bank violate the constitution of the United States or of the state of Kansas?
We begin the discussion of this question by quoting from the syllabus in State, ex rel., v. Robinson, 1 Kan. 17, as follows:
“A statute will not be declared unconstitutional, unless its infringement of the superior law is clear, beyond substantial doubt.”
That principle has been repeatedly declared by this court. Among the decisions are Leavenworth County v. Miller, 7 Kan. 479, 480; Comm’rs of Wyandotte Co. v. Abbott, 52 Kan. 148, 157, 34 Pac. 416; Rural School District v. Davis, 96 Kan. 647, 648, 152 Pac. 666; State, ex rel., v. Gardner, 122 Kan. 508, 510, 252 Pac. 463.
The statute questioned is, in effect, a restriction against a stockholder in a state bank, prohibiting him from transferring his property after the bank has -closed before he has paid his double liability created by the statute. The argument of the plaintiff is, in effect, that a property owner has an unrestricted, uncontrolled right to alienate his property, either real or personal. There are many restrictions on the right of alienation of property.
The statute of frauds, in section 33-102, provides that “every gift, grant, or conveyance of lands, tenements, hereditaments, rents, goods, or chattels . . . made . . . with intent to hinder, delay, or defraud creditors of their just and lawful debts or damages, or to defraud or to deceive the person or persons' who shall purchase such lands, tenements, hereditaments, rents, goods or chattels, shall be deemed utterly void and of no effect.”
Another restriction on the alienation of real property is found in the statute of frauds in section 33-105, as follows:
“No leases, estates or interests of, in or out of lands, exceeding one year in duration, shall at any time hereafter be assigned or granted, unless it be by deed or note, in writing, signed by the party so assigning or granting the same, or their agents thereunto lawfully authorized by writing, or by act and operation of law.”
These statutes have been in effect for years.
The title to a homestead on which a husband and wife may live may be in the husband. He may have purchased the property with his money, but he cannot alienate it without the joint consent of his wife. (R. S. 60-3501.)
Either the husband or the wife may own land not occupied as a homestead, but neither can convey the land so as to give a full, absolute, indefeasible title to the whole of it without the consent of the other. (R. S. 22-108.)
Neither the husband nor the wife can mortgage his or her exempt personal property unless the mortgage be executed by both. (R. S. 58-312.)
Another example of a restriction on alienation of property, one closely parallel to the present situation, is found in the bank ruptcy law of the United States, which renders ineffective a debtor’s transfer of his property when made within four months preceding the filing of the petition in bankruptcy, the effect of which transfer is to enable any one of his creditors to obtain a greater percentage of his debt than any other of his creditors of the same class.
If the merchant disposes of the whole or any part of his stock of merchandise or fixtures pertaining thereto otherwise than in the ordinary course of his business, except under certain conditions, the transfer is void as against his creditors. (R. S. 58-101.)
A public utility or common carrier may not issue stocks, certificates, bonds, notes or other evidences of indebtedness, payable at periods of more than twelve months after the date thereof unless it obtains from the public service commission a certificate stating the amount, character, purposes and terms on which such stocks, certificates, bonds, notes or other evidences of indebtedness are proposed to be issued. (R. S. 66-125.)
A public utility cannot transact business in this state until it has obtained a permit from the public service commission certifying that public convenience will be promoted by the transaction of its business. (R. S. 66-131.)
A public utility cannot assign, transfer, or lease its franchise without the consent of the public service commission. (R. S. 66-136.)
Stock in a corporation is transferable only on its books in such manner as its by-laws may prescribe. (R. S. 17-604.)
An owner of property who desires to control the disposition of it at his death must do so by will, which must conform with certain requirements. (R. S. 22-202.)
Creditors of a deceased person do not share equally in the collection of their claims against his estate. Their claims are classified in five different classes, and preference is made in favor of the first,, second, etc. (Laws of 1925, ch. 161, § 1.)
Where the owner of personal property sells all of it to another after it is assessed, and does not retain sufficient to pay the taxes thereon, the property, after it has been sold, is liable for the taxes on it. (R.'S. 79-317.)
These illustrations conclusively establish that there are many restrictions on the right of an owner to transfer his property. In none of these instances can a purchaser acquire rights in property in violation of the statute except under conditions not here necessary to state. The plaintiff took what Callahan could legally dispose of, nothing more; he took the mortgage subject to the conditions imposed by statute, the validity of which he is questioning.
Banking is a business in which the public is interested; for that reason, it is subject to control by the state. (Schaake v. Dolley, 85 Kan. 598, 118 Pac. 80; Barber County v. Bank Commissioner, 113 Kan. 180, 188, 213 Pac. 1054.) To what extent may that control go?
In State Savings, etc., Bank v. Anderson, 165 Cal. 437, 443, it was said that—
“The business of banking being»therefore subject to the regulation by the state in the exercise of its police power, such power of regulation is supreme and subject to no limitation so far as the fourteenth amendment to the federal constitution is concerned, except that such regulation must be reasonable.”
In Meffert v. Medical Board, 66 Kan. 710, 72 Pac. 247, this court said:
“The clause in the fourteenth amendment to the constitution of the United States, ‘nor shall any state deprive any person of life, liberty, or property, without due process of law,’ is not a limitation upon the police power of the state to pass and enforce such laws as-in its judgment will inure to the health, morals and general welfare of its people.” (Syl. IT 3.)
In Noble State Bank v. Haskell, 219 U. S. 104, 111-113, the court said:
“It may be said in a general way that the police power extends to all the great'public needs. . . . There are many things that a man might do at common law that the states may forbid. He might embezzle until a statute cut down his liberty. We cannot say that the public interests to which we have adverted, and others, are not sufficient to warrant the state in taking the whole business of banking under its control. On the contrary wo are of opinion that it may go on from regulation to prohibition except upon such conditions as it may prescribe. In short, when the Oklahoma legislature declares by implication that free banking is a public danger, and that incorporation, inspection and the above-described cooperation are necessary safeguards, this court certainly cannot say that it is wrong.”
In 6 R. C. L. 197 it is said:
“The fourteenth amendment to the constitution of the United States does not interfere with the proper exercise of the police power of the several states.”
A long list of cases is there cited †<? support that rule.
In Bernheimer v. Converse, 206 U. S. 516, 533, concerning the liability of a stockholder in a Minnesota corporation, the supreme court of the United States said:
“By becoming a member of a Minnesota corporation, and assuming the liability attaching to such membership, he became subject to such regulations as the state might lawfully make to render the liability effectual.”
When the Callahans became stockholders in the Farmers State Bank, they voluntarily subjected themselves to such laws of this state governing banking as existed at that time and to such future laws as might be passed under the police power of the state. It is a fact, of which the court may well take judicial notice, that men who become sureties for others or incur liabilities which they do not expect to pajr will often resort to every possible means to avoid payment of the liability. Stockholders in banks do not expect to pay the double liability. When they see a possibility of being obliged to pay that liability they frequently dispose of their stock, if they can do so, and thereby escape payment. They will sometimes dispose of their property for the purpose of defeating payment. The purpose of the statute is to meet that situation and compel payment when the liability arises. The statute is within the police power of the state. It does not violate any part of the fourteenth amendment to the constitution of the United States, ñor section 18 of the bill of rights of the state of Kansas.
It is not reasonable to suppose that the Fidelity National Bank and Trust Company, the Kansas City correspondent of the Farmers State Bank of Kingman, did not know who were the stockholders and officers of the latter bank, and it is not reasonable to assume that the Kansas City bank did not know that Dan F. Callahan was a stockholder and an officer of the Kingman bank when the indebtedness sued on was created and when the mortgage sought to be foreclosed was given. At that time the Kansas City bank knew that the Kingman bank was insolvent, that it had been closed, and that a receiver had been appointed for it, and that payment of that bank’s balance in the Kansas City bank had been made to the receiver. The circumstances surrounding the giving of the mortgage indicate that it was given by Callahan to evade the statute under consideration. The debt sued on was one owing to the Kansas City bank and the mortgage was given to secure the payment of that debt. For convenience the debt was made payable to the plaintiff and the mortgage was given to him. This puts the plaintiff in the position of one who acquires property from a person whom he knows does not have the power to dispose of it.
2. The plaintiff contends that the actions against the Callahans were barred by the laches of the receiver in commencing them. The bank was closed on January 16, 1924. The actions against the Callahans were commenced in May, 1925. The notes and mortgage were executed on July 1, 1924. The liability of the Callahans as stockholders was one created by statute. That would bring the actions to recover thereon within the second subdivision of the statute of limitations, section 60-3006 of the Revised Statutes. Such an action must be brought within three years from the time it accrues; but it is not the statute of limitations that is relied on by the plaintiff: He relies on laches. It was the Callahans that should have complained of the delay in commencing the actions against them, not the plaintiff.
In 21 C. J. 217 it is said:
“There is no absolute rule as to what constitutes-laches or staleness of demand, and no one decision constitutes a precedent in the strict sense for another. Each case is to be determined according to its own particular circumstances. In other words, the question of laches is addressed to the sound discretion of the chancellor, and his decision will not be disturbed on appeal unless it is so clearly wrong as to amount to an abuse of discretion.”
In Hudson v. Herman, 81 Kan. 627, 107 Pac. 35, this court said:
“Laches is an equitable bar to relief depending on all the circumstances of the case, and except in instances of clear error the judgment of the trial court denying its effectiveness will not' be disturbed.” (Syl. If 7.)
To the same effect is Dusenbery v. Bidwell, 86 Kan. 666, 121 Pac. 1098.
Under the circumstances of this case there was no room for the application of the rule known as laches. The statute of limitations had not run against the actions by the receiyer to recover from the Callahans. The actions could have been commenced sooner, but they were begun within a reasonable time after it was learned that they would- be necessary. The plaintiff in his reply in the present action did not plead laches in the prosecution of the actions against the Callahans, nor was such laches called to the attention of the trial court, so far as the abstracts show. The statement is made in the brief for the receiver that the attention of the court was not called hereto.
In Rooney v. McDermott, 121 Kan. 93, 246 Pac. 183, this court-said:
“Ordinarily, to be effective, laches must be pleaded; and where it is neither pleaded nor proved, it is no defense to an action to recover an interest in land.” (Syl. ff2.)
The actions against Dan F. Callahan, and Dan F. Callahan as administrator of the estate of Ora J. Callahan, to recover the liability must have been prosecuted by the receiver. He was not personally interested in those-actions; he represented the state when he took over the Farmers State Bank to wind up its affairs for the benefit of its creditors and of its stockholders. The receiver was not barred by laches from prosecuting the actions against the stockholders, nor from attempting to subject the land in controversy to the payment of the judgments that had been rendered against the Callahans.
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The opinion of the court was delivered by
Dawson, J.:
Here we have an appeal- in a divorce case, and an original proceeding in habeas corpus which can be disposed of as incidental to the appeal.
Plaintiff and defendant were married on February 23, 1927, and on May 20 of the same year she brought this action for a divorce on the grounds of extreme cruelty, habitual drunkenness, and impotency.
Defendant answered with a general denial and cross petition charging extreme cruelty on the part of the wife, and praying for a divorce in his behalf and for a disposition of property — the residence of the discordant couple, certain shares of corporate stock, bank deposits, and an automobile.
On issues joined the cause was tried by a referee, who made a detailed .report favorable to defendant, and judgment was entered in his, behalf against plaintiff, viz.:
“The findings of the report of the referee herein are hereby allowed and approved; defendant is granted an absolute divorce from the plaintiff; and .plaintiff is hereby ordered to comply with the orders concerning the property of plaintiff and defendant and pay said two thousand dollars (82,000) into court (allowance of six hundred dollars [$600] being made for the award to the plaintiff), deliver the car to the sheriff of Reno oounty, Kansas, and return the household goods taken from the residence property. And it is further decreed, ordered and adjudged that the defendant be given immediate possession of the real estate described in the defendant’s answer and cross petition.”
• Plaintiff appeals, not complaining about the divorce being awarded to defendant instead of herself, but aggrieved at the trial court’s judgment concerning the property, which, she says, was disposed of •in disregard of the letter and the spirit of the statute, the pertinent part of which reads:
“ ... If the divorce shall be granted by reason of the fault or aggression of the wife, the court shall order restoration to her- of the whole of her property, lands, tenements, and hereditaments owned by her before, or by her separately acquired after such marriage, and- not previously disposed of, and also such share of her husband’s real and personal property, or both, as to the court may appear just and reasonable; and she shall be barred' of all right in all the remaining lands of which her husband may at any time-have been ‘seized. . (R. S. 60-1511.)
Plaintiff’s first complaint is concerned with the trial court’s disposition of the residence property under this statutory rule. According to the referee’s' findings which were approved by the trial court, the residence property was conveyed to the plaintiff shortly before the marriage “for the purpose of protecting her in case of his death,” and it was agreed by the parties that after they were married she would reconvey the property to defendant. It also appears that she complied with this agreement, and such a deed was executed by plaintiff and acknowledged before a notary. The deed disappeared, however, and it was not recorded. It cannot be said that the residence property was unqualifiedly owned by the wife before the marriage so as to bring it strictly within the statutory provision that the whole of the property owned by the delinquent-wife before her marriage should be restored to her. Whether the residence property should be divided between the husband and wife, or awarded in toto to one or the other, is primarily a question for the trial court, if the letter and spirit of the statute giving the erring wife a just and reasonable share of her husband’s real and personal property is otherwise duly respected. This latter point may presently be passed until the other items of property disposed of by the judgment have been separately considered.
The trial court ordered plaintiff to deliver $1,400 in cash to defendant. Touching this item the facts were these: Plaintiff had $600 of her own at the time of her marriage. Defendant gave her $200 in cash to open a bank account in her own name, but at her request he permitted her to deposit this $200 in his account in the First National Bank of Hutchinson and to check on his account. Seventeen days before she sued defendant for a divorce she checked out $1,000, and four days before she filed that action she checked out a second $1,000. She deposited these sums to her own account in a bank in Wichita. The trial court’s order required her to surrender this $2,000 less the $600 conceded to be her private funds at the time of her marriage. The mathematics of this item are slightly inaccurate, however, if there is nothing else erroneous about it. In requiring her to restore the $2,000 less the amount concededly her own, the. $200 should have been deducted as well as the $600. Manifestly the court’s order to make restitution of the money should not have been for a greater sum than $1,200.
We will next consider the judgment order concerning the return of the automobile. The referee’s finding reads:
“Defendant purchased the Buick sedan in this city after they were married, and at the time of the purchase the plaintiff requested that she be given the automobile in her own name. There was an objection on the part of the defendant, but he finally agreed with plaintiff, who suggested herself that she give to the defendant a diamond ring of the value of fifteen hundred dollars ($1,500); that he would make out' a bill of sale to her of this automobile, and the bill of sale was made out and delivered to the plaintiff by defendant, but that the plaintiff failed and refused to deliver to the defendant the diamond ring which she valued at about fifteen hundred dollars.”
Plaintiff complains of this ruling because it not only involves the propriety of the return of the car, but because it seems to violate the statute and the rules of substantive law. Whose automobile was it? Surely the plaintiff’s. Not only was the evidence of the parties to that effect, but the bill of sale which the defendant caused to be executed to plaintiff and which he himself delivered had the legal effect of vesting the title in her. (Denny v. Faulkner, 22 Kan. 89, syl. ¶2; Fontron Loan & Trust Co. v. Korzuszkiewicz, ante, p. 725, 266 Pac. 649, this day decided; Fredenburg v. Horn et al., 108 Ore. 672, syl. 15, 30 A. L. R. 1153, 24 R. C. L. 17; 35 Cyc. 335, 336.)
In the absence of an express contract, of which a mortgage is the most common example, there is no such thing as a vendor’s lien in Kansas law. (Felzien v. Wieck, 118 Kan. 194, 234 Pac. 944, and citations.)
In 35 Cyc. 322 et seq. it is said:
“It is not essential to a transfer of the property in goods sold that the price should be actually paid, even where the buyer is not entitled to possession until such payment is made. . . . The title will also pass as against creditors and subsequent purchasers without payment, if there has been a delivery to the buyer.”
“While sales made for cash or cash on delivery are not strictly speaking conditional sales, they are frequently so called, and are conditional in the sense that payment is to be precedent to or at least concurrent with delivery. So it is ordinarily held that where the sale is expressly for cash or cash on delivery, no title passes to the buyer until payment is made, unless the condition as to payment is waived by the seller, although there may have been a delivery of the goods.” (p. 323.)
“Other cases, however, apply the general rule previously stated in regard to unconditional sales, holding that, if the goods are specific and the contract is otherwise complete, the property, unless a contrary intention appears, passes at once, subject to the seller’s lien [where vendor’s lien follows the goods — not in Kansas], so as to place the goods at the risk of the buyer, although he is not entitled to possession until payment is made or tendered.” (p. 325.)
“The condition as to payment or security is one which may be waived by the seller, in which case title to the goods sold will vest in the buyer, although the condition -has not been performed. Such condition will ordinarily be held to be waived by an unconditional delivery of the goods by the seller to the buyer without requiring payment or security.” (p. 327.)
The referee found that defendant’s objection to placing the title to the automobile formally in plaintiff’s name (the car itself apparently having already been given to her) was overcome by defendant, “who suggested herself that she give to the defendant a diamond ring of the value of $1,500.” This was not a finding that she acquired the car pursuant to a contract of barter and exchange. And even if there had been an outright barter and sale of the car for the ring by defendant to plaintiff, and she failed to deliver the agreed consideration for it, defendant, having given her an unqualified bill of sale, would have no lien on the car for the delivery or payment. It therefore appears that so far as the disposition of the automobile was concerned the referee’s recommendation and the trial court’s order were erroneous and made in disregard of the law of sales as well as that express mandate of the statute:
“. . . The court shall order restoration to her [a wife divorced for her fault or aggression] the whole of her property ... by her separately acquired after such marriage. . . .”
The same rule necessarily applies to the corporate stock of the United Power and Light Corporation of Kansas which defendant had caused to be transferred on the books of the corporation to his wife. That transfer operated to pass title and was a constructive delivery. (Hess v. Hartwig, 83 Kan. 592, syl. ¶ 2, 112 Pac. 99; Barnhouse v. Dewey, 83 Kan. 12, 109 Pac. 1081.) There was no finding that this transfer -and gift was conditional, other than that defendant should control the stock and collect the dividends, and the fact that the stock was not manually delivered to her after being transferred on the books of the corporation was of no consequence — the conditions ,of the.gift being what they were. Why should not this gift be upheld according to its terms? It is not only statutory law that property separately acquired by a wife during the marriage shall be regarded as her property (although she is divorced because of her own fault), but the decided cases are to that effect.
Thus in Lister v. Lister, 35 N. J. Eq. 49, the wife was divorced from her husband on the ground .of adultery. During the existence ■of the marriage relation the husband at various times purchased certain parcels of real estate and caused the title of two of them to be conveyed to his wife. He had bought the latter two parcels with his own money, and afterwards used them as his own and paid the taxes on them. Later, he sought to recover title to these lots 'on the theory that they were impressed with a trüst for the benefit of himself and his wife and family. The deed of conveyance contained no intimation of a trust. The court ruled against the complainant. The headnotes read:
“Where lands are bought and paid for by a husband, but the title thereto put in the name of his wife, the ordinary presumption of a settlement, which in this case was fully corroborated by his actions and declarations at the time ■of the purchase and transfer, cannot be rebutted by his subsequent declarations, nor by his present declarations of his intention then.
“Ñor will equity aid him on account of the subsequent, adultery of the wife, and his consequent divorce from her therefor.”
In the opinion it was said:
“Nor can any relief be granted on the ground that the defendant has been guilty of adultery, and the complainant has been divorced from her for that cause. In this connection, it is urged that to permit the defendant, who has been guilty of infidelity towards the complainant, who, for that cause, has by law been divorced from her, not only to deprive him and their children of all benefit of the property in question, but with it to live, perhaps in luxury, with the partner of her guilt, is contrary to equity, and is a wrong for which equity will find a remedy. But that is no ground for relief. In Dixon v. Dixon, 8 C. E. Gr. 316, it was held that a conveyance made by a husband to a trustee, for the use of his wife, on the execution of articles of separation between them, would not be set aside on account of the subsequent adultery of the wife, while living apart from her husband. See, also, s. c., 9 C. E. Gr. 133. The adultery of the wife has been held to be no defense to a suit for specific performance of marriage articles. Sidney v. Sidney, 3 P. Wms. 269. In a suit for an annuity under an agreement of. .separation between husband and wife, a plea of subsequent adultery of the wife and a consequent divorce was held bad. Jee v. Thurlow, 2 B. & C. 547; Field v. Serres, 4 B. & P. 121; Baynon v. Batley, 8 Bing. 256. See, also, Forrest v. Forrest, 9 Abb. Pr. 289. In Seagrave v. Seagrave, 13 Ves. 439, there was a separation between husband and wife on account of the adultery of the latter, and a bond was given by the husband for the support of the wife, and it was held, on bill filed by the wife, that the' fact that she had subsequently been guilty of adultery did not dis-entitle her to relief.” (p. 56.)
From an exhaustive footnote to this case we glean the following:
"Subsequent misconduct of the wife does not affect Or invalidate a settlement, even where a divorce may have been obtained by. the husband therefor. (Bent v. Bent, 44 Vt. 555; Edgerly v. Edgerly, 112 Mass. 175; Orr v. Orr, 8 Bush, 156; Baggs v. Baggs, 54 Ga. 95; Johnson v. Johnson, Walk. Ch. 309; Porter v. Porter, 27 Gratt. 599; Charlesworth v. Holt, L. R. (9 Exch.) 38. See Marrad v. Marrad, L. R. (6 P. D.) 98; Weathersby v. Weathersby, 39 Miss. 652; Huntley v. Huntley, 6 Ired. Eq. 514; Vreeland v. Ryno, 11 C. E. Gr. 160, 12 C. E. Gr. 522.)” (p. 51.)
In Vidkers v. Viakers, 133 Ga. 383, a husband had-conveyed a1 parcel of land to his wife for a nominal money consideration, but the actual consideration was love and affection. Later he bought and caused other parcels of land to be conveyed to her, “because of his great love for her.” Later he was forced to leave her on account of the “boisterous, cross, contentious, impatient and quarrelsome conduct” of his wife. He' claimed that the properties thus standing in the name of the wife were impressed with an implied trust in his behalf, but the court ruled against him, saying:
“But an absolute gift will not be cut down by implication into a trust merely because the donor hoped and believed at the time the gift was made that the donee would share the beneficial interest of the property with him pr with a. third person. 1 . . If a husband buys and pays for land and takes a deed in his wife’s name a -presumption arises that he intends to make an absolute gift to her, and in order to overcome this presumption he must show something which raises an obligation in her to hold the property in trust for him. . . . No such obligation appears from the allegations of the plaintiff’s petition. On the contrary, it is apparent that at the time the legal title was placed in the wife, he intended to make an absolute gift of the property to her, believing and hoping that their domestic life would continue peaceful, and that therefore she would allow him to participate in the enjoyment of the beneficial use of the property; but that subsequently they had a disagreement, and on this account he is seeking to revoke the gift and reclaim the property. An absolute gift cannot, by events transpiring after it is made, be metamorphosed into a trust. Equity will not allow a donor to reclaim property, the title to which he has unconditionally placed in another, merely because he has had a quarrel with the donee.” (p. 384.)
This rule works both ways. In Chase v. Phillips, 153 Mass. 17, it was held:
“A trust deed, by which a married woman settles property belonging to her upon her husband will not be set aside because of his subsequent adultery, if the deed contains no condition that he shall continue chaste.”
In Kinzey v. Kinzey, 115 Mo. 496, 20 L. R. A. 222, where the wife was divorced on account of adultery, her ex-husband sought to recover real estate the title to which he had caused to be vested in the wife and her children during the existence of the marriage relation. But the court ruled against him, saying:
“By the statute law of this state, a married woman who commits adultery forfeits dower in the property of her husband (Rev. Stat. 1889, § 4508), affords a good cause of action to him for a divorce from the bonds of matrimony (§4500), and, if found guilty in such action, forfeits ‘all rights and claims under and by virtue of the marriage’ (§ 4508). While the title of Mrs. Kinzey and her children to the property in question was acquired during the marriage, and indirectly from her husband, and she was found guilty of adultery in the divorce suit, yet these facts did not operate a forfeiture of any of her rights to the property, for the simple reason that those rights were vested rights, acquired by grant, and not ‘under and by virtue of the marriage,’ and upon which the sentence of divorce had no effect. (Bishop, Mar. & Div. § 1623.) But counsel for appellant seem to contend that this case is one calling for the interposition of a court of equity in the interest of morality, upon some theory of fraud to be deduced from the premises by reason of the confidential relations existing between husband and wife. ... It may be true that at the time this settlement was made Kinzey may have thought that as his wife always had been, so she would thereafter always continue to be, faithful to her marital vows, and that, if he had known that she would thereafter prove false to them, he would not have made the settlement upon her and her children that he did make. But that he was mistaken in this reasonable expectation, as subsequent events proved, affords no pretext for the intervention of a court of equity to deprive her of property which he had, upon good consideration, theretofore voluntarily settled upon her. . . . He was simply mistaken in the moral worth and virtue of one of the objects of his bounty. From the consequences of such a mistake of judgment a court of equity cannot relieve him.” (pp. 500, 502.)
Turning next to the appellant’s general grievance that the trial court ignored that feature of the statute which provides that even a wife divorced for her own fault or aggression shall be accorded—
“. . . A share of her husband’s real and personal property, or both, as to the court may appear just and reasonable. . . .”
That statutory provision conferred upon this plaintiff a property right which came into full potency when she was divorced.. It was prejudicial error to disregard it. That the divorce was granted because of her fault was not a ground for disregarding the statute, but laid the precise basis for its allowance. The particular “fault or aggression” of the plaintiff charged in defendant’s cross petition was “extreme cruelty,” and the evidence to support that charge was that she caused him to be arrested and jailed for drunkenness. We were advised in oral argument that the woman was a “gold digger,” but issues were not joined on that point; the divorce was not granted thereon; nor is that propensity a statutory ground of divorce.
We have often said that the trial court has a wide discretion in such matters, and its exercise of that discretion, unless clearly abused, will not be disturbed on appeal. But that discretion must be exercised in whole-hearted good faith. It must be guided by the statute, not by the chancellor’s private opinion of what the statute ought to be.
Both parties cite Snodgrass v. Snodgrass, 40 Kan. 494, 20 Pac. 203, in which it was held:
“Where a wife wrongfully procures the title to the homestead and other property to be transferred direct from the husband to herself, and then drives him from the premises, and he afterward obtains a divorce because of her wrongs, the property should be divided equitably between the parties, and he should have a fair share of the same.” (Syl.)
A later decision to the same general effect was Corbett v. Corbett, 101 Kan. 1, 165 Pac. 815, where it was said:
“In a suit by the husband for divorce the petition alleged that the defendant had induced him by means of threats and duress to convey his real estate to her, and asked that the deeds be canceled. The court canceled the deeds, granted plaintiff a divorce, and divided the real estate between the parties. Held, regardless of whether the evidence justified the cancellation of the deeds, the court on granting the divorce had the power to make an equitable division of the property; and that the division, appearing to be fair and equitable, will not be disturbed.” (Syl.)
Anent the decisions just cited it has to be observed that both take it for granted that there must be some division; and a judgment giving the delinquent wife nothing at all out of her husband’s estate is not a compliance with the statute.
In view of the foregoing, how should this appeal be disposed of? It would be in the interest of the litigants to order a proper judgment in appellant’s behalf and put an end to this controversy, but certain features of the case prevent our doing so. The trial court’s award of the plaintiff’s automobile to the husband is erroneous and must be set aside. The award to the husband of the corporate stock standing in the wife’s name is also set aside, and that transfer in her behalf must be confirmed, subject, of course, to the conditions imposed by the donor, which were that he should control the stock (presumably its voting power) and collect the dividends thereon' during his lifetime. But there is the matter of the $1,400 (corrected to $1,200), which the trial court had power to award to the husband. That finding cannot be disturbed. If plaintiff cannot pay that sum, it can be made a lien on her interest in the corporate stock. (Johnson v. Johnson, 66 Kan. 546, 72 Pac. 267.) As to-the matter of a share of defendant’s property to be awarded the plaintiff as the statute provides, we have not sufficient data upon which-to make an order or even a suggestion other than that this statutory “share” should be whatever is “just and reasonable” under all the circumstances. (Miller v. Miller, 97 Kan. 704, 156 Pac. 695, and citations.)
The judgment of the district court is reversed and the cause remanded for further proceedings consistent herewith.
Turning next to the ancillary case in habeas corpus, the trial court ordered the plaintiff to surrender the automobile and the $1,400 she was supposed to have in a bank in Wichita. She disobeyed this order, and a citation of contempt was issued for her arrest. The record is not clear as to what followed, but according to the sheriff’s, return to the writ a hearing of some sort was had,, following which' the petitioner was found guilty of contempt of court and sent to jail for no specified length of time. Elsewhere it appears that the petitioner offered to show cause why she was not willfully in contempt. This privilege was apparently denied her. According to her verified petition she would have shown that she could not comply with the order for the return of the automobile because the sheriff had seized it,, and that the money in the Wichita bank had all been expended, partly for necessities of life while this litigation was pend-, ing — she having neither asked nor received alimony in the interval— and the balance had been exhausted in necessary .expenses connected with this litigation. ... . .
It need hardly be repeated that courts have inherent .power to enforce their lawful orders'by contempt proceedings, and may send recalcitrants to jail until such proper orders are complied with, but that elementary doctrine implies that the court’s orders can be obeyed. Since the sheriff has seized the automobile and the money is gone, the incarceration of this hapless petitioner until she surrenders the car and produces the money is tantamount to life imprisonment, and therefore void. (U. S. Const., Fourteenth Amendment; Kansas Bill of Rights, § 9; State v. Dent, 29 Kan. 416; In re Pierce, 54 Kan. 519, 38 Pac. 812; Dodson v. Butler, 101 Ark. 416, 39 L. R. A., n. s., 1100 and note; 6 R. C. L. 528.)
In Wohlfort v. Wohlfort, 116 Kan. 154, 163, 225 Pac. 746, it was said:
“But an order committing to jail is the exercise of the ultimate power of a court of equity, and the prudent chancellor is careful that there be no mistake in its use. It should be used only when it is clear, (1) that the original order is reasonable, (2) that the husband is able to comply with it without undue hardship, and (3) that his refusal to comply with it is willful to such a degree as to be contumacious, amounting to contemptuous disobedience. When this situation is made clear, then the chancellor not only has the power, but it becomes his duty, to issue the commitment. The form of the commitment may be important. If the husband has the amount of money he has been ordered to pay and contemptuously disobeys the order, his commitment should be until he pay, for in that' case he has the means to obtain his own release; by making the payment the jail is unlocked to him. If he does not have the money and has no property which he can readily convert into money it is obviously improper to commit him until the money is paid. Such a commitment under those circumstances would be indefinite imprisonment, from which the husband could never release himself.”
The writ is allowed and the petitioner discharged.
Johnston, C. J., and Marshall and Hopkins, JJ., dissent from the rules announced in paragraphs 1 and 2 of the syllabus, and so much of the opinion as pertains thereto. | [
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|
The opinion of the court was delivered by
Hopkins, J.:
We have here three actions consolidated, all for the purpose of holding the Valley State Bank responsible as participant in breaches of trust by its cashier?. C. B. Lambe. They involve separate stages of a series of transactions between Lambe and James Wickens, now deceased. The first case was brought by .the grandsons of Wickens to recover $17,934, alleged to have beeii dissipated through Lambe’s wrongful acts; the second, by the Union National Bank, the successor in trust, to recover the amount óf a trust fund established by the deceased Wickens for the benefit of his sons; and the third, by the Union National Bank, successor in trust, to recover the amount of a trust fund established- for the benefit of the deceased James Wickens during the remainder of his natural life. Plaintiffs recovered $3,210 in the first action, nothing in the second, -and $4,400 in the third. Plaintiffs'and defendants both appeal.
James Wickens was a retired farmer living near Belle Plaine. About 1917 or thereafter (the time not definitely fixed) he moved to Florida. Before going he arranged with Lambe, to look after his business, the history of which is substantially narrated in the court’s findings, which follow:
“1. Before James Wickens went to Florida the only business he transacted with the defendant bank was that of a depositor, and neither the defendant bank nor any officer thereof was familiar or acquainted with the details of his business or investments.
• “2. Before leaving for Florida James .Wickens made a verbal arrangement with C. B. Lambe to give his (Wickens’) business his (Lambe’s) personal attention, and authorized Lambe to collect moneys due Wickens and invest and reinvest the same according to his (Lambe’s) judgment and discretion.
“3. That thereafter, and at all times complained of by the plaintiffs, Lambe, on his own order or by check or otherwise, drew out or charged against the Wickens fund in the Valley State Bank and reinvested them in his discretion.
“4. Neither Wickens nor any of them (Lambe), nor Lambe as trustee, understood or intended that The Valley State Bank should in any way be concerned with or have any supervision or control over such collections or investments.
“5. That from the time of the aforesaid verbal arrangement up until the execution of the trust agreements referred to in the plaintiff’s petition, Lambe took charge of the collections of money due Wickens and invested and reinvested the same according to his own individual judgment and without consulting any officer of the bank. That he made deposits in Wickens’ account and at his discretion drew out various sums therefrom and invested and reinvested the same, and Wickens at times wrote checks thereon, and sometimes Lambe, at the request of Wickens, sent to Wickens drafts for such amounts as he (Wickens) requested. Lambe made reports to Wickens of his investments and collections two or three times a year, going into detail if it was of any considerable amount. All correspondence was carried on between Lambe and Wickens and at no time with the bank or with Lambe as an officer of the bank.
“6. The bank received no compensation or pay for Lambe’s services in handling the Wickens business, and the only benefits received was as a customer of the bank.
“7. Lambe was authorized to invest the Wickens funds in either real estate or personal securities and to make the investments of the Wickens funds in which he did make them.
“8. The bank had no power, authority or right to supervise or control the investments of the Wickens funds or the manner of Lambe’s handling of them.
“9. At the time Lambe made his reports to Wickens he inclosed bank statements of his account, debit slips and checks showing how the funds were being invested.
“10. There was never at any time any record of the investments of the Wickens funds under the control of the bank or in possession of the bank. Lambe kept a complete account of the investments and made reports thereof to the Wickens.
“11. The defendant bank at no time violated any contract, express or implied, between it and the Wickens or any of them, or the Wickens trustee. The only contract between the bank and Wickens or any of them, or the Wickens trustee, was the contract implied from the deposit of funds with the bank by Lambe, their duly authorized agent, to pay the same upon the order of the Wickens or Lambe.-
“12. That the bank at no time appropriated any part of the Wickens funds, either with or without Lambe’s or Wickens’ consent, to the payment of Lambe’s or any other person’s obligation to the bank, except the Edrington note, not now in dispute, and other notes hereinafter specified.
“13. That before the execution of the trust agreements the various investments listed therein were submitted to Wickens, the beneficiaries therein and to their attorneys, with full opportunity on their part to investigate said investments and without any concealment on the part of the bank as to their character or value.
‘.‘14. That said trust agreements were prepared by the attorneys for the beneficiaries without any suggestion from Lambe.
• “15. That the investments therein described were at the time delivered to the attorneys for Wickens and the beneficiaries and by said attorneys redelivered to Lambe for handling and collection, under the terms of the trust agreements.
“16. That Lambe individually, and not as an officer of the bank, was named as trustee therein.
“16%. That on the trial of the cases it was admitted by plaintiffs that the only knowledge which they would be able to show that the bank had of the manner of handling the Wickens funds was such as would be imputed to it by reason of Lambe being an officer of the bank. The board of. directors and officers of the bank had no actual knowledge of said investments.
“17. With knowledge of the investments, the beneficiaries, under the trust agreements, accepted payments from said investments and used the same from that time until Lambe surrendered his trust, and’ up until the time of the trial were accepting the benefits of said investments.
“18. That the defendant bank at no time solicited, induced, or knowingly permitted said investments or any of them, except the Edrington note, not now in dispute, and notes hereafter referred to.^
“19. That no officer of the bank, other than Lambe, knew of the trusteeship or the investments until after the failure of the bank.
“20. C. B. Lambe used the funds of the Wickens estate to pay to the bank a certain McGowan note, originally for $1,200, upon which there is a balance due of about $800; and one note of $800 of O. L. Lane; and two certain other notes, one for $750 and one for $850, known as the McCool notes; and one note number-for $2,600; McCool note and McCool checks to the amount of $1,800. Through the manipulations of the Wickens funds by Lambe, the bank received a benefit of these sums for notes and checks that were due and owing to the bank, but the bank had no knowledge of the way and manner in which the fund was being used by Lambe, and no notes or paper belonging to the bank were ever sold or transferred to Wickens or charged out of any of the Wickens funds, nor was any of the Wickens fund ever used to take up or off the bank’s hands any of the paper except those above found.”
The court concluded that:
“1. Lambe was the cashier of the defendant bank at all times complained of, but his handling of the Wickens funds was solely as an agent and in his individual capacity and not as cashier of the bank, and the only reason that the bank is liable is because of having received the benefits in the payment of the notes referred to.
“2. In all other issues except as to the notes referred to, the bank should be entitled to and is awarded judgment, and each party should pay their own costs, made in the several cases.”
The plaintiffs contend that the undisputed evidence and “the obvious purport of the spoken words and overt acts” between Lambe and Wiekens show that Lambe in undertaking to act for Wiekens was doing so as the cashier of the bank, and that the bank, therefore, rather than Lambe in his individual capacity, was agent for Wiekens. Since the trial court found otherwise, the question is, Was there sufficient evidence to support the finding? We think there was. Among other things, Lambe testified:
“He asked if I wouldn’t give it (his business) my personal attention. I told him I would. . . .
“Did he give you any particular direction about the investments? None except to invest it safely according to my judgment. . . . He told me about these different mortgages and notes he owned and held. He asked me to look after the collections. . . .
“Did he say anything else about investing, about who you would consult? No.
“Who were you to consult? No one.
“Just yourself? Just myself.
“The Court: While you are on this subject, . . . state whether or not any of those notes or contracts were ever in the bank as a part of the assets of the bank. A. No, sir.
“Court: Were those notes ever any of them ever exhibited to the bank
commissioner or bank examiner? A. No; for the simple reason that they didn’t belong to the bank.
“Did you keep them among the bank’s assets? A. No.
“Where did you keep them? In envelopes in private papers in the vault.
“Whose private papers? My private papers.
“Were they listed or noted anywhere in any way on the bank’s records? No. . . .
“Court : Do you know whether or not the directors of the bank ever knew1 anything about your personal transactions with Mr. Wiekens or the Wiekens estate? They did not.
“Did you ever take the matter up and discuss it at any board of directors’ meeting? No.
“So far as you knew, the board of directors knew nothing about it whatever? Nothing whatever.
“Did you ever report it to the bank examiner? No.
“So far as^you know, did the bank examiners, any of them, know anything about it? No. . . .
“As a matter of fact, were any of these contracts or securities listed here ever in the possession of the Valley State Bank? No.
“In whose possession were they when they were in Belle Plainé? In my possession. . . .”
Mr. Wilson, bank examiner, who took charge of the bank, testified:
“When you went down there and took charge, did you have among the assets of the bank any of these notes, contracts or securities sued on in either une of these actions? No, sir.
“Where were those papers and documents, if you know? They were in Mr. Lambe’s lock box.
“Did you ever take possession of them as a representative of the banking department? No. . . .
“Do you know who did turn them over to the sheriff? Mr. Lambe. . . . I think the fact that they were in a private lock box, that I had nothing to do with unless there would have been some valuable securities he had that the banking department would want to take charge of.
“Court: The banking department didn’t take charge of any of these papers that have been offered in evidence.”
With these matters fresh in their minds, a written trust agreement was drawn turning over certain personal property of James Wickens to his grandson and being headed “List of personal assets held by C. B. Lambe, for James Wickens.” No reference was made therein to the bank, but the assets were to be held by C. B. Lambe. There were other documents reciting that “Lambe . . . acknowledges that he has delivered possession to G. Ernest Wickens and brother of all the assets which he has heretofore controlled for •the grandfather,” etc., and “that he has received them back as agent for the purpose of collecting,” etc.; also a document dated December 19, 1925, signed “C. B. Lambe,” resigning both trusts. Mr. Burke, one of the directors of the bank, testified:
“Did you ever know anything about the Wickens estate business there in the bank? Not until after the crash.
“Did you know anything about how Mr. Lambe was handling it? No.
“Had any of the Wickens ever made any complaint to you? No.
“Did you know that Mr. Lambe was trustee or agent of the Wickens? No. . . .
“Did Mr. Lambe at that meeting or any other meeting discuss anything about this Wickens estate? No.
“Did any of you ever discuss .it at any of those meetings you ever had? No, sir.”
Further testimony need not be quoted or analyzed. In our opinion, the court’s findings were amply supported b$ competent evidence.
The plaintiff contends that the bank was liable because of its imputed knowledge of the relationship and transactions between Wickens and its cashier; “that the sole question in the case is, and always is, What circumstances charged the bank with the requisite knowledge of the fiduciary’s wrongful intent?” It is argued that a corporation is assumed to have the relative knowledge which its agents, acting for it in any particular matter, have; that when the agent with guilty knowledge is himself acting for the corporation, so far as affects the matter in hand, “he is the bank; ... his knowledge is to be treated as that of the bank.”
We are of opinion that the facts and circumstances in the instant case are not applicable to plaintiff’s contentions and conclusions. Wickens designated Lambe his agent to collect moneys due Wickens and to invest and reinvest the same according to his (Lambe’s) judgment. Under such arrangement, Lambe for about five years collected money, deposited it, checked it out, made and collected investments and reinvested the proceeds thereof, all at his discretion. He reported to Wickens two or three times a year, sending deposit slips, and entering into detail when the investments were of any considerable amount. He drew out and remitted to Wickens at Wickens’ request. Sometimes Wickens himself checked on the account. There is no doubt, in our opinion, but that Lambe had authority to do all these things in accordance with his discretion and judgment. Such authority is clearly shown by the written trust agreement which carried out what before had been in parol.
Knowledge had by an officer of a corporation is ordinarily not imputed to the corporation except when the officer is transacting business for it. Lambe was not transacting business for the bank when he was making loans for Wickens, which to an extent was in competition with the bank itself. It might be said that Lambe was acting for the bank in paying out the money, but this was not what caused loss to the Wickens fund. Lambe had unquestioned authority to draw Wickens’ money from the bank. It was unwise investments by him which caused the loss. Authorities are cited and the principle under consideration well discussed in a note in L. R. A. 1915C 519:
“There are three ways in which a bank may incur liability and be compelled to make good deposits that have been misappropriated by the fiduciary: (1) By a violation on its part of the contract, express or implied, between it and the owner of the fund. The reason for the bank’s liability is based upon the general principle that the bank cannot discharge its obligation to a depositor except by payment in strict conformity to the contract of deposit.
(2) By appropriating the fund, either with or without the fiduciary’s consent, to the payment of the latter’s debt to the bank. The reason for the bank’s liability is based upon the general theory that the owner of a fund may follow it into the hands of and recover it from any person who has not innocently given value therefor. The action for money had and received is an appropriate form of action in this class of cases. (3) By assisting the fiduciary to accomplish the misappropriation, the bank having knowledge, actual or constructive, that the fraud is being or about to be perpetrated by the fiduciary. The reason for the bank’s liability is that it knowingly makes itself a party to a fraud and must make good the loss that results from the misappropriation.” (See Allen v. Puritan Trust Co., L. R. A. 1915C 519.)
In the Instant case it was the duty of the bank to pay out the funds in question or charge against them on Lambe’s order. It paid the money in strict accordance with the orders given by the authorized agent in control. It is clear that the bank did not knowingly participate in the misappropriation of the funds. (See State, ex rel. Peach Co., v. Bonding & Surety Co., 279 Mo. 535, 215 S. W. 20; U. S. Fidelity Co. v. United States Nat. Bk., 80 Ore. 361, 157 Pac. 156; National Bank v. Insurance Co., 104 U. S. 54, 26 L. Ed. 693; Bank v. Powell, [Ga.] 117 S. E. 264; American Surety Co. v. Grace, [Tenn.] 271 S. W. 739; Ihl v. Bank of St. Joseph, 26 Mo. App. 129, 140, 141.) Nor did it have authority to supervise or control Lambe’s investments of the Wickens funds. He could have withdrawn them all from the bank and deposited them elsewhere had he so desired. (Martin v. Bank, 66 Kan. 655, 72 Pac. 218; Farmers State Bank v. Brenneke, 118 Kan. 251, 254, 240 Pac. 395.)
Knobelock v. Bank, 50 S. C. 259, 27 S. E. 962, was a case somewhat similar to the one at bar. Jacob Small was director and president of the defendant bank, and “took a general interest in and an active supervision over the bank’s business.” He was also executor of the Knobelock estate. Small drew out of the defendant bank a large sum of money on deposit to his credit as “executor,” and misappropriated it. The suit was to hold the bank liable on account of his misappropriation and the bank’s knowledge through him. In the headnote it was said:
“A bank is presumed to know what its president knows-only while he acts within the scope of his agency, and hence it is not imputable with knowledge of his fraudulent intent in drawing a fund from the bank in his private capacity as trustee of the fund, with intent to misappropriate it.”
State, ex rel. Davis, v. Bank, 112 Neb. 840, 201 N. W. 897, is another. There Berge was “cashier and managing officer” of a small country bank. He was also administrator of an estate. As such administrator he checked out or charged against the trust funds. The contention was that in paying them out he was performing a bank duty, and therefore his knowledge of actual or intended misappropriation was imputable to the bank and this made the bank liable. The court, however, said:
“The argument seems to be that-in paying the money out in this case he was acting for the bank to the same extent that he did in receiving the note in the case cited, but the distinction is plain. In receiving the note the bank was benefited; it was the ordinary method of investing its funds; in paying it out the bank received no benefit, and had no interest except to see that it was paid upon the order of the depositor.” (p. 844.)
Cashiers of banks in small country towns frequently act as guardians, executors and trustees, and sometimes for people in investing money in real-estate loans and others. It would be a hard rule to require the bank and its board of directors to supervise, pass upon or control their actions in such matters and be liable for their default. A bank statement would not truly reflect the liabilities of such bank without an investigation of the acts of its cashier as guardian, executor or administrator. There would be no way of knowing the extent of the bank’s liability without such an investigation. Such a rule would, in our opinion, impose an unwarrantable burden of supervision on the part, of the bank, where it had no power or authority to supervise or control. The selection of an agent or trustee is an individual matter, lying within the power of him who makes the selection. He may change his selection and may require such bond or security as he desires. Having sole power of appointment, he has no right to claim that any third person shall be liable for the default of his agent, selected solely by him, unless the third party has participated in the misappropriations to the extent of becoming a party to the fraud. The defendant bank in the instant case had no right to supervise the investment of the funds or the value of the securities taken, nor had it the right to refuse payment of the check or order of Lambe. (Meinhart v. Farmers State Bank, 124 Kan. 333, 259 Pac. 698.)
Various authorities cited and relied upon by plaintiffs have been considered, but need not be analyzed. They are either not applicable to the facts or not controlling.
The defendants have filed a cross appeal in which it is contended that there was no evidence to sustain the court’s twentieth finding. We think the contention not good. We deem the evidence sufficient to support- the finding. Various other questions presented in the briefs practically have been disposed of by what has been said and therefore need not be discussed in detail. Viewing the whole record, we discover no error which would warrant setting aside the trial court’s findings and conclusions.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action against the surety of a bond given to prosecute an appeal from a judgment of a justice of the peace.
The facts were these: Plaintiff held a chattel mortgage on a team of horses, two sows and certain shoats to secure the payment of an interest-bearing promissory note for $180 executed to him by the defendant C. H. Scheller. Plaintiff brought replevin before a justice of the peace to obtain possession of these chattels. Defendant filed a bill of particulars, in which he admitted the execution of the chattel mortgage but alleged the debt had been fully paid; that plaintiff was indebted to defendant on certain specified items for pasturing stock, labor, board, etc., aggregating $569.50, and that plaintiff was entitled to credit thereon on account of defendant’s note of $180 and $10.50 as interest thereon, and also on account of some thirty-one items of varying small sums, all of which were set out in detail, with the alleged result that plaintiff was indebted to defendant for a balance of account in the sum of $240.45.
In a jury trial before the justice of the peace a verdict was rendered in favor of plaintiff for the return of all the mortgaged property, and the value of plaintiff’s interest thereon was found to be $190.50. Judgment was entered accordingly.
Defendant Seheller filed a general appeal bond, which recited his intention to appeal from the judgment, and bound the obligors, including the present appellee, H. M. Crosby, in the sum of $450 that defendant would — ■
“Prosecute his appeal to effect, and without unnecessary delay, and satisfy such judgment and costs as may be rendered against him.”
By leave of the district court defendant amended his bill of particulars, expanding and enlarging its details of debits and credits, but not otherwise changing its general tenor. Plaintiff, also, by leave of court filed an amendment to his bill of particulars setting out certain items of credit due him which did not appear in defendant’s amended bill of particulars.
When the cause came on for trial, the parties appeared and the judgment roll recites:
“The court examines the pleadings and finds that the issues are fully made up in this cause, and sets down said cause for immediate trial; whereupon the court proceeds to impanel a jury to try said cause, and six jurors are found, duly qualified and passed by both plaintiff and defendant, and both parties agree to try said cause to said six jurors; whereupon, upon consultation between parties to said cause and their respective attorneys, it is agreed by said parties to submit said cause to Honorable C. A. P. Falconer, as referee, and that the same be heard by said referee as an accounting; whereupon, the court being duly advised in said cause, does appoint Honorable C. A. P. Falconer, of Atwood, Kan., as referee to try said cause according to said agreement to said parties as an accounting, and said referee is ordered to make a report of his finding of facts and conclusions of law.”
Accordingly the cause was tried before the referee, who made findings of fact and conclusions of law favorable to plaintiff — that plaintiff had a valid mortgage lien on all the chattels specified in the mortgage, that all such chattels should be delivered at once to plaintiff, and that the sum due and owing plaintiff secured by such chattel mortgage was $265.75.
In conformity therewith, the trial court gave judgment in plaintiff’s behalf for the immediate possession of the mortgaged chattels — • one team of horses valued at $85, two sows valued at $60, and fourteen shoats valued at $55, and—
“The court further finds from the report of the referee that there is due on the note and mortgage sued on herein, and on the accounts sued on and adjudicated in this action, as mutual accounts between said parties, of a balance due from said defendant to said plaintiff in the sum of $265.75.”
Np payment or other satisfaction was rendered on this judgment, and the present action was begun on the appeal bond. Plaintiff’s petition alleged.all the pertinent facts. Defendant Crosby, surety on the appeal bond, answered that the bond he signed was given in a replevin action, but on appeal—
“Without the consent of the answering defendant said replevin action was by the said Richard Pearson and said Harold Scheller mutually abandoned, and that said action was changed to a suit on accounting on the mutual accounts between said parties, and that then and thereby and by so doing the said plaintiff in said action, being the same as the plaintiff in the present action, released this answering defendant from any and all liability on said bond.”
The cause was tried on such evidence as the parties adduced, consisting chiefly of the files pertaining to the litigation before the justice of the peace and the district court as set out above. The litigants were both on the witness stand, but their testimony contributed nothing of value on either side of the controversy.
Plaintiff demurred to defendant’s evidence, and his motion for an instructed verdict was overruled. A jury returned a general verdict and special findings in favor of defendant, and judgment was entered accordingly.
Plaintiff brings the case here for review with the usual assignment of errors, only one point of which will need consideration.
It will be noted that the action before the justice of the peace was in replevin — for the possession of mortgaged chattels or their value and for an ascertainment of the indebtedness due plaintiff from defendant. The defense was that plaintiff owed defendant for so many items of account that his indebtedness to plaintiff was extinguished and that a balance of account was due him from plaintiff.
On appeal, the nature of the action was not changed in any material respect. .It still remained an action in replevin, for the possession of mortgaged chattels or for their value, and for the ascertainment of the indebtedness due plaintiff from defendant. The defense remained the same. The pleadings remained substantially the same, although they were amended in the interest of accuracy of the items of account. And certainly the agreement to waive a jury and have the cause tried by a referee did not alter the essential nature of the case. If it had been tried by the court without a jury, or upon an agreed case, or by arbitration and award, the mode of trial would have been different, but the nature of the action would have remained the same. And so the agreement that the appealed case should be heard by a referee as an accounting changed the mode of trial but not the nature of the action. This ought to be manifest by a consideration of the referee’s report and the judgment rendered thereon — possession of mortgaged chattels awarded to plaintiff, or their value, and judgment for the amount due plaintiff.
The defense pleaded by Crosby, the surety on the appeal bond, was essentially a question of law, or a mixed question of law and fact where the element of fact was exclusively determinable from the documents and files pertaining to the trial before the justice of the peace and the trial of the appealed case before the district court, and should have been decided as such. There was no issue of disputed fact for a jury to decide upon conflicting evidence, and plaintiff was entitled to an instructed verdict.
The judgment is reversed, with instructions to enter judgment for plaintiff. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff, a mortgagee of growing wheat, prosecuted this action against Oscar Carlson, the sheriff of Shawnee county, to recover the possession of wheat. The sheriff held the wheat under an execution issued in an action in which the trustees of J. Thomas Lumber Company had procured a judgment against Steven Martinek, the mortgagor of the wheat. Judgment was rendered in favor of the defendant, and the plaintiff appeals.
The contest revolves round the validity of the description of the wheat as set out in the chattel mortgage which was dated November 17, 1924. That description was as follows:
“Thirty-five acres of growing wheat on the J. M. Franklin farm, 35 acres on S. E. %, sec. 1, Rossville township, owned entirely by me without any incumbrance.”
The action was tried on an agreed statement of facts, which contained the following:
“2. Some time prior to the- day of November, 1924, Steven Martinek was the owner of an undivided one-half interest in about sixty-five acres, and the full owner of about ten acres of growing wheat located on what was commonly known as the Agnes Martinek farm, and described as the southeast quarter of section 1, township 10, range 13, Rossville township, Shawnee county, Kansas, said interest amounting to 253 bushels in the 65 acres, and 70 bushels in the 10 acres, on July 9, 1925; and that Steven Martinek also was the owner of an undivided one-half interest in about seventy to eighty acres, the exact acreage not being known, of growing wheat located on what was commonly known as the J. M. Franklin farm, and situated in the north one-half of the northwest quarter of section 11, township 10, range 13, and the northeast quarter of the northeast quarter of section 10, township 10, range 13, Rossville township, Shawnee county, Kansas; said interest amounting on July 9,1925, to 773 bushels. And that the interest of the said Steven Martinek in all of said wheat amounted to one thousand and ninety-six bushels on July 9, 1925.”
On July 9, 1925, the defendant, as sheriff, levied the execution on the 1,096 bushels of the wheat that had been grown on the land described. That 1,096 bushels represented the part of the wheat that belonged to Steven Martinek and was claimed by the plaintiff under the chattel mortgage.
The plaintiff says:
“It being admitted that said chattel mortgage was given for a valuable consideration; that the same was legally recorded in the office of the register of deeds of Shawnee county, Kansas; that the said mortgage was wholly unsatisfied, and the mortgagee in due time declared said mortgage as due and demanded possession of the wheat described in the same, all of which was in the possession of the sheriff under an execution dated subsequent to the recording of said mortgage; that the only question for the court to decide in this action is the question of the validity of plaintiff’s mortgage set out in his petition.”
The defendant argues that the mortgage is void—
“(o) Because the description is uncertain in that it purports to convey thirty-five acres of growing wheat, whereas in fact the fields of wheat aggregated from seventy to eighty acres each, and no particular thirty-five acres was designated.
“(6) The mortgage wholly fails to describe the property sought to be conveyed in that it purports to mortgage the full interest in thirty-five acres of wheat, whereas the mortgagor’s interest was an undivided one-half interest in seventy to eighty acres of wheat in each tract.”
The mortgage did not correctly describe the interest in the wheat owned by the plaintiff. The mortgage described seventy acres of growing wheat. The plaintiff had an interest in about 150 acres of growing wheat. The description of the wheat should have been such as would enable anyone interested to find it or to have enabled anyone with that description to find the wheat on proper inquiry. The mortgage directed anyone interested to wheat growing on two separate tracts of land. Anyone interested could have gone to the land and found the wheat growing thereon, but would have found instead of the number of acres described almost double that number of acres. There was nothing in the mortgage to suggest what part of the wheat on the land was covered by the mortgage. The description of the wheat was so indefinite and uncertain that it could not be identified. (Golden v. Cockril, 1 Kan. 259; Souders v. Voorhees, 36 Kan. 138, 12 Pac. 526; Clark v. Voorhees, 36 Kan. 144, 12 Pac. 529; 11 C. J. 470.) The mortgage was not binding on the execution creditor nor on the sheriff with the execution in his hands. The wheat was subject to levy and sale under that execution.
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The opinion of the court was delivered by
Harvey, J.:
This, is an action for the price of furniture alleged to have been sold by plaintiff to defendant. It was tried to the court, who made findings of fact and conclusions of law and rendered judgment for plaintiff. Defendant has appealed. The story of the controversy is told by the court’s findings, as follows: -
“1. In 1922, the board of county commissioners of Rooks county, Kansas, was constructing a new courthouse at Stockton, Kan., in accordance with the plans, drawings and specifications prepared by the architect, Frank Squires, of Topeka, Kan. The defendant entered into a contract with the said board of county commissioners to furnish certain equipment for the courthouse, including twenty-four benches, and the specifications of the architect provided in detail for the kind of lumber and finish to be used, as well as the construction of the benches. The defendant contracted with the board to furnish and install these benches according to said plans and specifications.
“2. The plaintiff was a corporation doing business at Topeka, Kan., engaged in selling school furniture and supplies, including benches and pews. It was not engaged .in the manufacture of benches, but was a jobber of benches and other furniture manufactured by other companies.
“3. In April, 1922, defendant informed plaintiff that it, defendant, intended to submit a bid for a contract with the board of county commissioners, and submitted to plaintiff two blue prints, one showing the floor plan of the court room and the other showing the dimensions and the side and end elevation of the benches. At the same time defendant also submitted to plaintiff a typewritten paper cut from a page of a copy of the specifications prepared by the architect, which paper contained certain specifications of the construction of the benches. This paper specified:
“ ‘Benches. The court-room benches will be of oak as before specified, ends to be five-ply, veneered on cores with exposed surfaces of quarter-sawed oak. Backs and seats to be of elm with oak finish at top and back. All benches to be shipped set up from factory. Bodies will be gained and glued into ends; seats gained and glued into backs. Seats to have three-inch apron secured by long screws and glue blocks.’
“No other part of the plans and specifications prepared by the architect other than the two blue prints and typewritten paper mentioned in this finding were ever furnished by defendant to plaintiff and the officers and agents of plaintiff, while they could have seen such full plans and specifications upon inquiry and effort, never did see any other part of the plans and specifications of the courthouse and its equipment.
“4. The defendant requested plaintiff to submit to it a quotation of prices for which plaintiff would furnish the defendant twenty-four benches in accordance with the description and detail of the same contained in the two blue prints and typewritten paper before mentioned, and on April 26, 1922, plaintiff quoted to defendant a price of $1,075 for four 17-foot benches and twenty 12-foot benches to be delivered to carrier at Waukesha, Wis., knocked down.
“5. Before this price was quoted the defendant by plaintiff, defendant’s manager had been shown a catalogue of furniture manufactured by the Manitowoc Church Furniture Company of Waukesha, Wis., which company was engaged in the manufacture of furniture of this kind. This catalogue showed a pew body, No. 50, which had a back of three-ply construction and constructed with a compound curved back with a heavy, shaped-out-seat; the catalogue also showed a pew end, No. 851, Colonial style, two- or three-ply in thickness, with heavy solid base. The cut of the pew end in the catalogue showed a form somewhat similar to that shown in the blue print furnished plaintiff by defendant, but did not show two grooves cut around' the outside of the end as shown in the blue print, and that base as shown in the catalogue cut was to rest on the floor, while the blue print showed the end of the base cut so as to fit into a marble base.
“6. At the time plaintiff quoted its prices to defendant, defendant knew that plaintiff would order the benches from the Manitowoc Church Furniture Company, the same to be manufactured by that company and in accordance with the blue prints and typewritten paper furnished plaintiff by defendant.
“7. On July 13, 1922, defendant verbally ordered from plaintiff twenty 12-foot pews and four 17-foot pews to be constructed in accordance with the two blue prints and the typewritten paper before mentioned, and that the four 17-foot pews should have three 4-inch divisipn centers, and that they should be shipped knocked down.
“8. On July 15 defendant, by letter, purported to confirm its verbal order as follows:
“ ‘You are to ship to Stockton twenty 12-foot pews and four 17-foot pews, five-ply, according to drawings and specifications, with the exception where elm is specified on the architect’s specifications white quarter-sawed oak is to be furnished. Your price to us on these pews is one thousand seventy-five dollars ($1,075), freight allowed to Stockton, as quoted in your letter of April 26. We will furnish you within a few days with a sample of the white-oak finish desired on the pews. In the meantime it is understood that you will make a drawing of the pew feet which we can submit to the marble contractor for the grooving of the marble base. This order is to be shipped to us at Stockton marked for Mrs. Eades, county clerk. The cutting of the pews need not be held up, as we imagine it will be a little while before you will be ready for the sample of finish.’
“9. On July 13, 1922, plaintiff sent to defendant an acknowledgment of the receipt of the verbal order theretofore made by defendant to plaintiff in which acknowledgment it was stated that the Peabody School Furniture Company had sold to the Steel Fixture Company, Topeka, Kan., twenty 12-foot pews, four 17-foot pews, $1,075, terms cash, F. O. B. factory, the same to be shipped to the Steel Fixture Company for county courthouse, Mrs. Eades, county clerk, at Stockton, Kan.
“10. Between July 15, 1922, and December 15, 1922, the construction of the benches as specified in the typewritten paper submitted to plaintiff by defendant, as found in finding No. Ill, was modified, altered and changed by the parties by correspondence in that on December 15, 1922, plaintiff was ordered and directed to deliver to defendant four 17-foot pews and twenty 12-foot pews and the ends of which were to be four-ply in place of five-ply, with quarter-sawed oak faces, the seat to be of elm and the backs of plain oak in place of elm. The finish was to be in accordance with a small color block which was delivered by the defendant to plaintiff and the benches were to be delivered to defendant, F. O. B. carrier at Waukesha, Wis., knocked down and crated.
“11. The color block referred to in finding No. X, and which was furnished by defendant to plaintiff, was of light-colored oak wood and finished in light golden oak, there being no stain applied in the varnish and the block was finished so that it showed the grain of the oak, its texture and without concealment. It was the intention of the parties that the color block should not only control the character of varnish and other finish applied to the wood and the manner of its application, but also that the benches should be constructed of woods which were approximately of the color of the wood of which the color block was made.
“12. The verbal order made by defendant to plaintiff in July, 1922, as confirmed by the written confirmation of the defendant and as accepted by the plaintiff by its acknowledgment of July 13, and the correspondence between plaintiff and defendant thereafter, which provided for modifications in the manner of the construction of the pews, did not provide that the pews to be furnished by plaintiff to defendant were to be subject to approval by Frank Squires, the architect, or by the board of county commissioners of Rooks county, Kansas, nor were there any requirements mentioned in reference to the benches equaling a ‘Garnett sample.’
“13. The Manitowoc Church Furniture Company, on the order of plaintiff, manufactured four 17-foot benches and twenty 12-foot benches and shipped the same knocked down and crated to defendant at Stockton, Kan., and they arrived there early in February, 1923. These benches were constructed of seasoned lumber and in a reasonably good and workmanlike manner and the finish applied was of the character of that shown by the color block. The ends were four-ply with quarter-sawed white oak faces; the inside of ends plain sawed oak to conform to backs, seats of elm and backs of plain sawed oak with plain oak apron and oak molding on the top of backs; division ends were furnished for the four 17-foot benches and middle supports for the twenty 12-foot benches.
“14. The inside and outside of the ends were constructed by placing different panels of wood edge to edge, and except as hereinafter found, these panels were of substantially the same color, i.e., as finished, the whole side of the end was all of substantially the same color, that is, of a golden-oak color. There were forty-eight ends and of these two had one quite dark panel each, which showed in marked contrast to the color of the balance of the panels in the end and six had slightly discolored panels in the ends, while two of the ends on one of the two sides thereof had a few dark spots in the wood of one panel and two had small, narrow dark streaks in one of the panels in the end.
“15. When the pews arrived in Stockton in February, 1923, they were crated, and they were removed to the courthouse where they were uncrated by an agent of the defendant, when the texture and color of the woods used and the matching of the same, construction and finish were patent and visible to the eye.
“16. The benches were put together by an agent of the defendant and set up by him in the court room in February, 1923. While thus assembling and setting up the benches this agent of the defendant was informed by one of the county commissioners that the benches were not satisfactory to the county and that they would not be accepted; and defendant’s agent replied that he was working for the defendant, and that he had been ordered to put them up, and that he would do so. At that time the finish, color, texture of woods, matching of lumber and cabinet work became fully known to the board of county commissioners, and also became known to the defendant.
“17. In erecting the benches in the court room defendant cut off five feet of the back, seat and apron of one of the 17-foot benches.
“18. The ends of the benches had been grooved by the manufacturer at the bottom so as to fit into marble bases, and these benches were set into the marble bases and remained as assembled and set up by defendant from some time in February, 1923, to December, 1923, and were used by the public, including two terms of the district court, from February, 1923, to December, 1923.
“19. The defendant, in assembling and setting up the benches did not glue the several parts together at the places where they should have been gained and glued together, but used nails furnished by plaintiff, and in driving the nails caused some of the backs and seats to be splintered, and marred some of the surfaces with hammer marks.
“20. A portion of the back and seat of one of the benches was discolored at the time of the trial, the same having the appearance of being caused by water or exposure to the weather. Whether this, condition existed at the time the benches arrived at Stockton and were examined the court is unable to determine, but if the bench was in this condition at its arrival its condition was patent and plainly visible to the eye.
“21. Soon after the erection of the pews the board of county commissioners complained to the defendant that the benches did not comply with the specifications of the architect, and about'the same time defendant made complaint to plaintiff that the pews as furnished did not comply with the contract between plaintiff and defendant.
“22. On the 5th of April, 1923, by letter, the board of county commissioners notified the defendant that the benches did not comply with the contract between defendant and county and that the benches did not equal ‘the Garnett sample,’ a sample bench which had been shown to the board of county commissioners at the time it let its contract for the benches to the defendant, but of which ‘Garnett sample’ plaintiff had no notice or knowledge until after the benches had been installed; and the board demanded that ‘definite action be taken by your firm to replace these benches according to specifications, contract and sample as to finish, construction and material,’ and called upon the defendant for information as to the disposition to be made of the benches.
“23. On March 14, 1923, defendant notified plaintiff that pews had been condemned and rejected by the board of county commissioners chiefly because of green lumber, and in addition that they did not nearly match in any way the wood sample furnished plaintiff by defendant; also that the backs were elm instead of oak, and that inside of ends were flat-sawed instead of quarter-sawed, and that the commissioners were insisting that the pews be replaced with pews according to specifications and according to the order which defendant had placed with plaintiff.
“24. The defendant never, before August, 1923, notified plaintiff that it would not accept the pews, and plaintiff at no time promised to replace the pews with others or to make any repairs on or to refinish the same to meet any requirements of the defendant or the board of county commissioners.
“25. The erection of the benches and their installation in the court room and the cutting of the back and seat of one of the 17-foot pews was without the knowledge or consent of plaintiff, and the retention and use of the pews in the court room was not caused by any act of plaintiff or by any promise or inducement held out to defendant by plaintiff.
“26. In December, 1923, the benches were taken out of the court room and taken apart and crated by defendant and shipped by it to the. plaintiff a.t Topeka, Kan. Plaintiff has never accepted the return of the benches and the same have been kept in storage at Topeka under a stipulation entered into between the parties.”
The court made three additional findings setting out more fully the correspondence between the parties, which need not be set out. The court made the following conclusions of law:
“1. The submission of the two blue prints and the typewritten paper to plaintiff by defendant, and defendant’s request for plaintiff to submit a price for which it would deliver to defendant the benches shown by the blue prints and typewritten paper, the submission by plaintiff to defendant of its prices for such pews, in which it quoted a net price of one thousand seventy-five ($1,075) dollars, F. O. B. factory at Waukesha, Wis., knocked down, the verbal order of defendant to plaintiff for the pews, with defendant’s written confirmation of July 15, 1922, the plaintiff’s written acknowledgment of the receipt of the verbal order for the pews, in which it was stated that plaintiff had sold to defendant the pews ordered for one thousand seventy-five dollars, the correspondence had between the parties up to and including December 15, 1922, modifying the details of construction of the benches from that ordinarily shown by the two blue prints and the typewritten paper, constituted a contract between the parties, by which the plaintiff agreed to sell and deliver to defendant four 17-foot benches and twenty 12-foot benches, and defendant agreed to buy said benches and pay plaintiff one thousand seventy-five ($1,075) dollars for the same, and the final conditions of said contract were that there should be delivered by plaintiff to defendant four 17-foot benches and twenty 12-foot benches, that there should be forty-eight pew ends and four division ends for the 17-foot benches and back supports for the 12-foot benches; that the benches be shipped knocked down, that the ends were to be four-ply, the pew ends made with quartered oak face, the backs of plain oak and the seats of elm, and that the pews should match in color and quality of finish the sample color block which had been submitted by defendant to plaintiff; and it was agreed between the parties that the price of one thousand seventy-five dollars for the pews was on board cars at Waukesha, Wis., and that the pews should be shipped to defendant at Stockton, Kan.
“2. On account of the eight ends of the forty-eight pew ends furnished having dark-colored panels, whereby the end did not match the color block in color, four of the benches delivered did not comply with the conditions of the contract. The remaining twenty benches were in substantial compliance with the contract in material, construction, color and finish.
“3. Such defects as were in the benches shipped to defendant, and the matters in which any of the benches failed to comply with the conditions of the contract, being all defects and variations patent and apparent to the eye upon inspection before the benches were put together and set up, and the defendant at the time the benches were received at Stockton having reasonable opportunity to inspect the benches before they were put together and installed, and no trial or use of the benches being necessary for the defendant to determine whether the benches complied with the contract, the assembling of the benches and installing them in the court room, nailing the same together and not using glue to put the parts of the benches together, as was intended and shown by the construction, the sawing of five feet off the back and seat of one of the 17-foot benches and allowing the benches to be used from February to December by the public in the court room, including two terms of the district court, which conduct of defendant; and the use' of the benches were not caused, excused or justified by any act, promise or inducement of plaintiff to defendant, constituted an acceptance of the benches by the defendant, and it thereby became liable to plaintiff for the agreed purchase price of one thousand seventy-five ($1,075) dollars. . . .”
It is first argued that the findings of the court, in some respects, are contrary to the evidence. Appellant is not in position to urge that question, for the reason that the evidence has not been transcribed nor abstracted. The case is here on the pleadings and the findings, conclusions and judgment of the court. The only legal question before us is whether the conclusions of law and judgment thereon are supported by the findings of the court, considering the claims of the parties as alleged in the pleadings.
Appellant contends that, since the petition alleged and the court found that the benches were to be manufactured for furnishing the new courthouse there was an implied contract that they would be suitable for that purpose, citing and relying on the doctrine announced in Nixa v. Lehmann, 70 Kan. 664, 79 Pac. 141; Kaull v. Blacker, 107 Kan. 578, 193 Pac. 182; 35 Cyc. 401. This contention does not correctly interpret the findings of the court. It is true, of course, that the benches were manufactured for use in the new courthouse, and plaintiff understood that. But that alone is not controlling here. Plaintiff had the benches manufactured in accordance with plans and specifications submitted to it by defendant, later modified and agreed upon between plaintiff and defendant. It developed that the plans and specifications so agreed upon between plaintiff and defendant did not accord with the plans and specifications for such benches contained in the contract between defendant and the board of county commissioners, and plaintiff was not informed of that fact until after the benches were manufactured and delivered. In other words, defendant contracted to furnish the board of county commissioners benches constructed according to specific plans and specifications, and ordered from plaintiff benches constructed according to different plans and specifications. The rights of the parties to this action depend upon the contract between them. Plaintiff is not bound by provisions of the contract between defendant and the board of county commissioners of which it was not informed. It was plaintiff’s duty to manufacture and deliver the benches in accordance with its contract with defendant, and when it did so it was entitled to pay from defendant in accordance with that contract.
The court found four of the benches delivered did not comply with the conditions of the. contract for the reason that they had dark-colored panels, did not match the color block, nor match in color with the other benches, and that the remaining twenty benches were in substantial compliance with the contract between plaintiff and defendant in material, construction, color and finish. Appellant argues that it should not have been required to receive and pay for these four defective benches, that the contract was for twenty-four benches, not for twenty, and all designed to be used in one room. No doubt defendant could have refused to accept the four benches when they were received; possibly might have refused to accept any of them because of the defective four. But it did not do so. The defects of the four benches were not latent defects, requiring time and use to discover; they were patent and visible to the eye. Notwithstanding these defects defendant did receive the benches, put them together, and set them up and used them, or caused them to be used, for months, and in doing so marred and disfigured them to some extent. So, whatever may have been defendant’s right to have rejected the benches at the time they were received, such right was not exercised, and defendant’s conduct was inconsistent with the exercise of such right.
Appellant contends that the court was not justified in concluding that defendant had accepted the benches as a compliance with its contract with plaintiff, and contends that simply the receipt of an article does not necessarily constitute an acceptance, citing Craver v. Hornburg, 26 Kan. 94. There may, of course, be a receipt of an article under such circumstances that would not constitute an acceptance, but it is clear that the receipt of an article with the intention to retain it does constitute an acceptance. (1 C. J. 378.) Generally, where a buyer has a right to disaffirm a contract and to decline to receive the goods he should exercise such right promptly. When the buyer retains and uses the goods as his own, and especially where in such use he mars and disfigures them without the knowledge or consent of the seller, in such a way that they cannot be returned in the condition in which they were received, the acceptance is regarded as complete and he cannot thereafter be heard to say that he did not accept them. (35 Cyc. 259; Tufts v. Mabie, 7 Kan. App. 129; Dougherty v. Implement Co., 75 Kan. 450, 89 Pac. 900.)
Lastly, it is argued that the use of the benches and delay in returning them was excused by the circumstances. It is true that when plaintiff learned that the board of county commissioners were objecting to the benches because they did not conform with the specifications contained in defendant’s contract with such board, plaintiff proposed to reconstruct or refinish the benches so they would comply with such contract, the additional expense of such work to be paid by defendant. But that was never agreed to by defendant nor by the board of county commissioners. It did not bar plaintiff’s right to recover the price of the benches it manufactured for defendant in accordance with plaintiff’s contract with defendant.
The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
This is a partition suit 'Commenced in Doniphan county to divide the land in that county inherited by five brothers, in which case there has been injected by attachment and by interplea ■of a mortgagee a controversy as to priority of liens on the undivided interest of one of these brothers. The decision was in favor of the mortgagee, and the attachment creditor appeals.
Among the questions raised are that of priority between an unrecorded mortgage and an attachment creditor. Does a suit in which judgment is rendered and later set aside and suit dismissed constitute a lis pendens so as to affect an interest acquired during its pendency? Has a foreign corporation holding a mortgage on Nebraska and Kansas land a right to foreclose the mortgage or enforce the lien thereof in this state without being regularly admitted under the Kansas laws to transact business in this state, and particularly after foreclosing the same mortgage on the Nebraska land? Is an authenticated copy of a deficiency judgment rendered in Nebraska in a mortgage-foreclosure case where the mortgage covered land in Nebraska .and Kansas a sufficient basis for the enforcement of the mortgage lien on the Kansas land included in the mortgage, such judgment being a merger of the note reduced by credits in Nebraska?
Five Overlander brothers were the owners by inheritance of a tract of land in Doniphan county in April, 1922, each owning an undivided one-fifth interest therein. Jesse, one of the five, lived in Nebraska and was indebted to his brother Charles and to the Federal Trust Company, of Lincoln, Neb. April 27, 1922, Rufus M., one of the brothers, commenced this suit to partition the land between the five brothers, making the other four parties defendant. June 26, 1922, Charles commenced an attachment action in Doniphan county against his brother Jesse on several notes given by Jesse to Charles, and attached the undivided one-fifth interest in the Doniphan county land being partitioned. Judgment was rendered in this attachment suit in favor of Charles and against Jesse November 1, 1922, based on publication service. On July 13, 1922, Jesse, in order to secure the Federal Trust Company on his indebtedness to it, executed two notes, one for $4,500 and the other for $1,794, and gave the trust company two mortgages, one being a first mortgage securing the $4,500 note and the other a second mortgage securing the $1,794 note, both describing land .in Nebraska and the Doniphan county land, and the second mortgage reciting that it was subject to the $4,500 mortgage. The first mortgage was filed for record in Doniphan county July 27, 1922, and the second mortgage was not filed in Kansas until April 11,1923. Judgment was rendered in the partition suit February 28, 1923, but instead of dividing the land, it was ordered sold and the proceeds were divided. The sale was not confirmed and the proceeds divided until June 26, 1924, at which time, on account of the mortgage lien and the attachment suit, the proceeds of the one-fifth belonging to Jesse were paid to the clerk of the district court to await the determination of this litigation. On March 21, 1923, the attorney’s for plaintiff in the attachment suit filed two motions, one to set aside the judgment obtained therein on November 1,1922, because it was “wholly void,” and the other to dismiss that cause of action without prejudice. The court on March 21, 1923, set aside the judgment because it was void, and then dismissed the action without prejudice. On the same day, viz., March 21,1923, Charles commenced a new attachment action against Jesse substantially like the former. Judgment was rendered in favor of the-plaintiff in this attachment suit October 16,1923, giving a lien on the-one-fifth interest of Jesse in the Doniphan county land; but judg ment was stayed on account of other litigation pending. Because of the failure of Jesse to pay interest on his notes to the trust company secured by mortgages, a foreclosure proceeding was commenced in Lancaster county, Nebraska, on both mortgages April 14, 1923. Judgment was rendered in that foreclosure action November 6,1923, the land was sold September 23,1924, and a deficiency judgment was rendered January 26,1925, for $3,139.84 with interest. On March 3, 1925, the trust company filed its interplea in this partition suit, based on an authenticated copy of its deficiency judgment, and asked to enforce its mortgage lien on the one-fifth interest of Jesse in the land, or in lieu thereof the proceeds thereof in the hands of the clerk. Issues were joined between the trust company and Charles, the attachment creditor, as to priority of- liens, and, as above stated, the decision was in favor of the trust company.
Appellant claims that because his second attachment suit was commenced on March 21, 1923, and the second mortgage was recorded in Doniphan county April 11, 1923, his attachment lien is necessarily prior to any possible lien of such mortgage unrecorded when his lien attached. Our recording statutes are only for the purpose of imparting notice to subsequent purchasers and mortgagees and not to attachment or judgment creditors. It would make no difference in this case between an attachment creditor and a mortgagee if the mortgage had never been recorded.
“An attachment creditor acquires no greater right in the property seized than the defendant in the attachment owned. . . . The attachment bound the interest of the defendant only, whether that interest was shown by the record or not. The attaching creditor is not a purchaser for value buying upon the strength of a record title.” (Julian v. Oil Co., 83 Kan. 440, 111 Pac. 445.)
The mortgage was given on this land by Jesse July 13, 1922, and any attachment levy made after that date only reached the interest he had left in the land, regardless of the mortgage being recorded or not.
“One purchasing real property sold under attachment proceedings is not a bona fide purchaser for value, but takes only the interest of the defendant in attachment in the property at the time" it was seized.” (Markley v. Investment Co., 67 Kan. 535, syl., 73 Pac. 96.)
“The lien of a mortgage executed before the levying of an order of attachment, but not recorded until afterward, is prior to the lien of the attachment, although the attaching creditor may not at the time of levying of his attachment have had any notice of the mortgage.
“A mortgage duly executed, but not recorded, is not void; it is valid as between the parties thereto, and as to all others who have actual notice thereof; and by such a mortgage a valid interest in the mortgaged property, a valid lien thereon, passes from the mortgagor to the mortgagee, although the records may not show it; and an attaching creditor of the mortgagor can attach only the real interest of the mortgagor, and cannot attach the interest in the mortgaged property which has already passed from the mortgagor to the mortgagee.” (N. W. Forwarding Co. v. Mahaffey, Slutz & Co., 36 Kan. 152, syl. ¶¶ 1, 2, 12 Pac. 705.)
Appellant complains of the placing of the credits from the sale of the Nebraska property toward the payment of the second mortgage note instead of the first, but the decisions above cited showing an unrecorded mortgage to have the same standing as a recorded one when compared with the lien of an attachment creditor wholly dispose of that claim.
Appellant devotes many pages of his brief to uphold his first lien, thought to have been obtained by his first attachment suit, and argues at great length and with many citations that the doctrine of lis pendens applies to anyone obtaining any interest in the attached property after the levy of the attachment. This argument, however reasonable and plausible, entirely fails when it is shown that such attachment levy, lien and judgment were on motion of his own attorneys set aside by the court as void and the suit itself dismissed. Some explanations are made as to the way it happened to be done and the reasons for so doing, but we are here to consider what was done and what now remains. It is urged that whatever might have ultimately been done with this first suit it was lis pendens to the trust company when it took its mortgage while this first action was still pending.
“If an action is dismissed, either voluntarily or involuntarily, under such circumstances as not to preclude another action, but without any reservation of the right to bring a new action, a person acquiring interests in the subject matter of the litigation, before the commencement of the second action, is not bound thereby.” (38 C. J. 40.)
“When an action is commenced by filing a petition and an affidavit for attachment, and a summons is issued, and an order of attachment is obtained and levied upon land, but no service of the summons is had within 60 days from the filing of the petition, the attachment falls, and the land so attached may be conveyed free from any lien on account of such attachment.” (Kincaid v. Frog, 49 Kan. 766, syl. ¶ 2, 31 Pac. 704.)
The serious trouble with this first action, as readily recognized by the court and attorneys, was in the failure to file an affidavit for publication service, as required by law. It simply alleged the de fendant was a nonresident and actual service could not be had upon him in the state.
“Before service can be made by publication, an affidavit must be filed stating that the plaintiff is unable to make service of the summons upon the defendant, and that the case is one of those mentioned in § 72 of the civil code. Without such an affidavit, the attempted service by publication is insufficient.” (Grouch v. Martin, 47 Kan. 313, syl., 27 Pac. 985.)
This judgment being denominated as void both by the attorneys procuring it and the court, it could be set aside any time, and in fact never had any merit or virtue as a judgment or lien and could not constitute a lis pendens to anyone.
Appellant says this is a collateral attack by the trust company on this first attachment suit and judgment. That cannot be correct, because there is no first suit or judgment extant to be attacked collaterally or otherwise. The real fact is the appellant is by his argument seeking to reinstate such suit and judgment. Until it is in some way reinstated or restored, if such were possible, there is nothing concerning it here for us to consider.
It is urged that appellee, being a foreign corporation, has no right to foreclose a mortgage in this state without being regularly admitted under the corporate law to do business herein, and particularly to foreclose a mortgage or enforce a lien to satisfy a deficiency judgment from another state. The language of R. S. 17-507 is sufficient, we think to determine that right, and that it will extend to a deficiency judgment which is a merger of the unpaid part of the original note.
“That foreign, corporations shall have the right to receive, take, purchase, and hold, by mortgage or otherwise, any securities and liens executed, given or transferred or so intended to represent or secure loans upon or purchase-money of lands or other property situated or being in this state, and to sell, assign, transfer, and to sue upon, foreclose or otherwise enforce the same.” (R.S. 17-507.)
“. . . A foreign corporation holding a mortgage on real or personal property in this state may maintain an action to enforce the same without being authorized to engage in business within the' state.” (Stewart v. Falkenberg, 82 Kan. 576, syl. ¶ 4, 109 Pac. 170.)
Appellant contends that because judgment was rendered on the notes held by the trust company in Nebraska and the judgment was partially satisfied from security in that state the courts of Nebraska were limited in their powers as affecting anything that had to do with Kansas property; in other words, if the note was merged into a judgment there it cannot be certified to Kansas as a basis for enforcing a lien on Kansas property, and especially when the Nebraska courts have further changed the judgment by reducing it and certifying only a deficiency judgment. If we understand this contention, it is not supported by the Kansas authorities.
“When the note is reduced to judgment it becomes merged in the judgment and cannot thereafter be made the foundation of a subsequent cause of action, but the merger and extinguishment of the note does not discharge the debt nor extinguish the lien.
“After the merger the judgment is the evidence of the debt secured by the mortgage, and a proceeding to foreclose the mortgage should be founded on the judgment rather than on the original note.” (Rossiter v. Merriman, 80 Kan. 739, syl. ¶¶ 2, 3, 104 Pac. 858.)
“Where a debt which is evidenced by promissory notes is reduced to judgment the creditor has the same right to take possession of property pledged to secure the payment of-such indebtedness that he had before the change in its form.” (Osborne v. Connor, 4 Kan. App. 609, syl. ¶ 2.)
The decision in a very recent case (Houdek v. Brick, 124 Kan. 77, 257 Pac. 753) covers all these points raised by the appellant, differing only with reference to the kind of service had on the defendant. In that case the service in the foreclosure suit in Nebraska was by publication, and later, when enforcing the lien on the Kansas land, the service was personal. The court held that because the Nebraska service was not personal there was no deficiency judgment as a basis to enforce the lien in Kansas, but that the note, not being merged into a judgment, would be the proper basis with credits indorsed for enforcing the lien in Kansas. In the case at bar personal service of summons was had on the defendant in Nebraska and he entered his appearance in the second part of it in Kansas.
There are sixteen special points raised and grounds urged by the appellant in his brief why the lien of the attachment creditor should be prior and superior to that of the mortgagee. We have examined and considered all of them and have discussed the most important of them and have reached the conclusion that they are not well taken. We agree with the trial court in holding that the mortgage lien, based on the merger of the notes into a deficiency judgment, can be properly enforced against the property in Kansas as a prior lien to that claimed by the appellant.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff recovered a judgment in the sum of $12,500 for damages sustained by him from being knocked down by an electric interurban railroad car operated by the defendant. The defendant appeals.
The plaintiff’s evidence established that the defendant was operating a line of electric railroad from the Soldiers’ Home'in Leavenworth county to and into the city of Leavenworth; that the plaintiff desired to get on a car going from the Soldiers’ Home to the city, and for that purpose went, in the nighttime, to a stopping place on the railroad tracks of the defendant; that he had boarded a car at,that place a number of times and was familiar with it; that a paved highway ran along the side of the railroad tracks where the plaintiff was standing; that the paved highway was about three or four feet from the closest rail of the railroad track; that a car approached; that he signaled the car to stop; that he watched the car approaching him; that the car did not stop where the plaintiff stood, but ran past him; and that he then stood so near the railroad track that the step used by passengers to get on the car and extending from the side of the car a distance of approximately one foot, struck him, knocked' him down, and injured him.
Special questions were submitted to the jury, which were answered as follows:
“Questions Requested by Defendant.
“1. Was plaintiff negligent in getting so close to the track of the defendant railway company that the passing car of the defendant railway company could come in contact with him? A. No.
“2. When plaintiff stood on the right of way of defendant railway company in dangerous proximity to the car of defendant railway company, which came in contact with him, was there anything to prevent him from stepping back a foot or two and be in a place of safety? A. Yes.
“3. If you answer the above question in the affirmative, state what it was. A. Victory highway.
“4. Was plaintiff using ordinary care for his own safety when he was struck by the step of the railway company’s car? A. Yes.
“5. What did plaintiff do to prevent his being struck by the step of the car of defendant railway company? A. Signaled car to stop.
“6. When plaintiff came* in dangerous proximity to defendant railway company’s car, did he exercise ordinary care to extricate himself from such dangerous position? A. Yes.
“7. If you answer the above question in the affirmative, state what he did. A; Remained in place provided by company.
“Questions Requested by Plaintiff.
“1. How far was plaintiff standing from the street-car tracks at the time he was struck? A. About’thirty inches.
“2. Was the plaintiff standing at the usual stopping place for the defendant’s street cars? A. Yes.
“3. Was the plaintiff standing at the only place provided by the defendant for passengers to stand while waiting for its northbound street cars? A. Yes.
“4. Was the plaintiff standing as far away from the defendant’s streetcar tracks as he could while standing on the place provided by the defendant for its prospective passengers to stand? A. No.
“5. Did the plaintiff believe that he was standing far enough from the street-car tracks to avoid being struck by the street car? A. Yes.
“6. How fast was the street car running as it approached the place where the plaintiff was standing? A. About twenty miles per hour.
“7. Did the motorman sound any gong or signal of warning as he approached the plaintiff? A. No.
“8. How far away was the plaintiff from the street car when the motorman first saw him standing by the track? A. About 125 feet.
“9. In what distance could the motorman have stopped the street car in question by the use of the means and appliances at his command at the time and place in question, in safety to the passengers and the equipment of the street car? A. Seventy-five feet.
“10. Did the plaintiff wave his hand and strike a match to notify the motorman of his presence and for the motorman to stop the street car when the street car was two hundred feet away? A. Yes.
“11. Did the plaintiff think the street car was stopping? A. Yes.
“12. Did the plaintiff think the street car was going to stop? A. Yes.”
The defendant demurred to the evidence of the plaintiff; that demurrer was overruled. The defendant requested the court to instruct the jury to return a verdict in favor of the defendant, which request was refused. The defendant filed a motion for judgment on the findings of the jury; that motion was denied. These present but one question, and that is: Can the plaintiff recover damages sustained by him when he saw the car approaching and stood so near the track that in passing i't knocked him down and injured him?
The jury in an answer to a specific question found that the plaintiff had not been guilty of negligence, but in answer to other questions found a set of facts which showed that he was guilty of negligence which contributed to his injury.
This court has, on several occasions, decided cases somewhat analogous to the present one.
In Senning v. Interurban Railway Co., 101 Kan. 78, 165 Pac. 863, this court said:
“In an action against an interurban electric railway company the plaintiff’s evidence tended to show these facts: He came to the company’s station about dusk with friends who were leaving. After they had boarded the car and before it started he went down into the space between it and the station platform to look for a coin his little daughter had dropped. The platform was about two feet above the ground and five feet from the track. Passengers were received and discharged by a gangplank laid to the rear steps. As the defendant was stooping over, facing away from the car, it started without any signal being given, and as the front wheels turned in the other direction on a curve the rear step protruded and struck him. Held,
“1. In the aspect most favorable to the plaintiff, he was but a licensee while in the place between the platform and the track, and the company owed him no duty to give him warning of the starting of the car.
“2. If such a duty had been owing to him the omission to perform it would have constitúted mere negligence and not wanton misconduct.
“3. In that case his own failure to use reasonable care for his safety would bar a recovery.” (Syl.)
In Grisham v. Traction Co., 104 Kan. 712, 181 Pac. 119, this court said:
“A woman who is killed while attempting to cross an electric interurban railroad track, in front of a rapidly approaching car, which she sees, or can see if she looks, and which she intends to board as a passenger, is guilty of contributory negligence as a matter of law, and her husband cannot recover the damages sustained by him on account of her death.” (Syl.)
Another case is Weir v. Railways Co., 108 Kan. 610, 196 Pac. 442, where the rule was declared to be that—
“It is the duty of one walking in the street close to a street-car track in which there is a curve, and who is aware of the track on which cars are frequently passing and of the curve in the track, and is capable of taking care of herself, to take heed of the perils of the place and step aside to an available place of safety; and where she fails to do so, even when the front end of the car passes her, and is injured by the hind end of the car as it takes the curve, she will be deemed to be guilty of such contributory negligence as will bar a recovery for the injuries sustained.”
Following these rules, it must be declared that the plaintiff was guilty of such contributory negligence as prevents his recovery. The demurrer to the evidence of the plaintiff should have been sustained. The evidence should not have been submitted to the jury. Judgment should have been rendered in favor of the defendant on the answers to the special questions submitted to the jury. This conclusion is supported by Halbert v. St. Louis & Northeastern Ry. Co., 147 Ill. App. 316; Eckhart v. Marion, etc., Traction Co., 59 Ind. App. 217; Neale v. Springfield Street Railway, 189 Mass. 351; Hutchinson v. Boston & Maine Railroad, 219 Mass. 389; Dotson v. Erie R. R. Co., 68 N. J. L. 679; Loder v. Metropolitan St. Ry. Co., 82 N. Y. S. 957; Creenan v. International Ry. Co., 124 N. Y. S. 360; Garvey v. Rhode Island Company, 26 R. I. 80; Townsend v. Houston Electric Co., [Tex. Civ. App.] 154 S. W. 629; and Kaiser v. Northern Pac. Ry. Co., 203 Fed. 933. Outside this state there are cases to the contrary, but the weight of outside authority supports the conclusion here reached.
The judgment is reversed, and judgment is rendered in favor of the defendant. | [
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The opinion of the court was delivered by
Hutchison, J.:
We are here concerned with the questions of redemption, cotenancy and contribution, especially as to the effect of redemption from a foreclosure sale by the owner of an undivided interest in the oil and gas, where the remainder of such interest is held by the owner of the land, the mortgage being the obligation of the common grantors. The trial court held in favor of the redemption made by the owner of the undivided interest in the oil and gas as excluding all other rights and interests, including that of contribution by one claiming to be a cotenant. From this order the one claiming to be a cotenant appeals.
The Normans owned the land, and, after placing a mortgage on it in favor of the Rutland Savings Bank, conveyed an undivided one-half interest in the oil and gas to Grieves, agreeing to protect him against the mortgage. The mortgage was later foreclosed. Grieves was served by publication and barred. The period of redemption was fixed at eighteen months, ending on December 15, 1926. During that period Grieves came in and asked to be let in to defend, asserting his interest as holder of an undivided one-half interest in the oil and gas. The request was granted and an order made giving him a right to redeem. The order went further, to the extent of quieting his title and barring and foreclosing all others if they failed to redeem on or before December 15, 1926. He redeemed on December 15, 1926, and the sheriff executed a deed to him on December 17, 1926. Shortly after the foreclosure judgment the entire interest of the Normans was conveyed to Rosa B. Scott. On December 18, 1926, three days after the redemption by Grieves, she filed her application to set aside the order of court permitting Grieves to redeem, and also requesting the privilege of contributing to Grieves, as a cotenant of his in the oil and gas interest, her proper proportion of his outlay for redemption. On December 30, 1926, Grieves conveyed the land and all his interests therein by special warranty deed to Angus Carrington, who was represented in court on the hearing of the application of Mrs. Scott. On January 31, 1927, a tender was made by Mrs. Scott to the attorney for Grieves of $28,795.65 as contribution, which was refused. The tender was intended to be the whole amount paid by Grieves for redemption, including interest. Thereafter, on March 30, 1927, the court, after a full hearing, overruled and denied the application of Mrs. Scott, from which order this appeal is taken.
The right of Mrs. Scott to make such application is questioned because she was not a party to the case and did not regularly apply to intervene. Her application showed her to be the owner of the land, holding the interest of the Normans, who were the principal defendants in the case. That entitled her, under the redemption statute, to all the privileges of her grantors. (R. S. 60-3455.) Besides, this question w;as not raised in the tfial court and her application was there fully heard on its merits, as the journal entry recites: “Thereupon, all the matters presented in said application were heard by the court.”
The appellant insists that the order made granting Grieves the right to redeem was for many reasons void; and appellee calls our attention to the fact that no appeal was taken within six months. We will pass both of these points for the present, and consider the second part of the application of Mrs. Scott, as to her right as a cotenant to make proper contribution and be reinstated in the ownership of her undivided one-half interest in the oil and gas.
It is true she occupied a double capacity before redemption was made — that of owner of the land, and also owner of an undivided one-half interest in the oil and gas. Authorities are abundant to show that as owner of the land she would not be a cotenant with Grieves because their interests are entirely different, but not so far as the oil and gas interests are concerned. Is her relationship to him different from that of a third party to whom she or her grantors may have conveyed the remaining undivided half interest in the oil and gas? Would Grieves be heard to say such third party was not a cotenant of his? Our attention is directed to 7 R. C. L. 860:
“On a sale of the common property for the satisfaction of a debt the duty to pay which rests upon one tenant in common alone, his cotenant may purchase the interest in the same manner as a stranger might do so.”
But it must be remembered this is not a purchase made by Grieves. Had he attended the sheriff’s sale and purchased the land and mineral rights as well, the authority would have been applicable; but he did not purchase — he redeemed. He availed himself of a special, equitable privilege granted him by statute. Only a limited few have such privilege. (R. S. 60-3439 to 60-3457.) He did not acquire his interest “as a stranger”; far from it. He and Mrs. Scott were the only ones who could possibly have redeemed. As to acquiring title from different sources, we quote further from the same page of 7 R. C. L.:
“This doctrine is opposed, however, for there are many well-considered cases wherein the courts have refused thus to restrict the general rule that a purchase by one cotenant inures to the benefit of the other, and have declared that that rule applies to. tenants in common who derive their titles from different sources or at different times as well as to those cases wherein the titles of the several cotenants were derived from the same source and at. the same time.”
We have carefully studied the several citations given as exceptions to the general rule, that the purchase of one cotenant inures to the benefit of other cotenants, and they apply to a different state of facts from those in this case. The Normans put the mortgage on before they sold oil and gas rights to Grieves. Both Grieves and Mrs. Scott derive title from the Normans. A comprehensive note in 19 L. R. A., n. s., 591, covering many of the cases cited and others, summarizes the whole matter as follows:
“There are undoubtedly many exceptions to be found in the books to the general rule that the purchase by one cotenant of an outstanding title to, or encumbrance upon, common property, inures to the benefit of all the owners. An extensive search, however, has failed to disclose any other case in which it was held that such general rule would not apply, merely because the encumbrance so purchased was created by a former owner of the property, through whom all the tenants claim title. There are, however, as will be seen hereafter, some cases in which a purchase of. such encumbrance by one cotenant was held not to inure to the benefit of all, but the decision in those cases was not based upon the fact that the encumbrance was created by a common predecessor in title, but was upon altogether different grounds, which would be equally -applicable to the purchase by a co tenant of outstanding titles and encumbrances other than those created1 by one through whom they derived their title. The authorities, however, seem to be unanimous against the conclusion reached in Jackson v. Baird, that the fact that the encumbrance was created by a former owner, through whom all the parties claim title, will, of itself alone, make an exception to the general rule.
“Thus, it was specifically held in McPheeters v. Wright, 124 Ind. 560, 9 L. R. A. 176, 24 N. E. 734, that title could not be acquired by the owner of an undivided interest in land against his cotenant, at a sale under an encumbrance created by a former owner through whom both parties derived title.”
All in the world Grieves bad before he redeemed was his undivided one-half interest in the oil and gas. Mrs. Scott had the same and from the same grantors. We have a statute which gave Grieves the right to redeem, without going into court and asking for it, and we' doubt if the court could give him any more than the statute gave. (R. S. 60-3439.) He was an owner of a title and a defendant in the case.
We have another statute which particularly applied to his situation. It provides as follows:
“When the interests of several tenants in common have been sold on execution, the undivided portion of any or either of them may be redeemed separately.” (R. S. 60-3454.) . ,
While this statute may have special application, yet if a cotenant goes farther and attempts to purchase the entire interest, he does it' for the benefit of himself and the other cotenants. (7 R. C. L.' 873.)
The authorities cited generally and here considered refer to a purchase by a cotenant. This is not a purchase but a redemption. The statement of facts shows Grieves got a deed from the sheriff.; Should the owner get a deed from the sheriff when he redeems? The statutes provide for the giving of a sheriff’s deed to the purchaser if no redemption is made. It also provides for a sheriff’s deed to be issued to the last creditor who redeems. But Grieves was an owner, not a purchaser or creditor. Suppose before the foreclosure suit was commenced he had settled with the mortgagee, or after foreclosure had purchased from the plaintiff the sheriff’s sale certificate. In such case he would have been acting for himself and his cotenant and would have been subrogated to the rights of the mortgagee.
“The general rule is that where one tenant in common, in order to protect his interest, pays a mortgage on the common property, he is entitled to be subrogated to the rights of the mortgagee and to enforce the mortgage as against his cotenants, to the extent of their liability to contribute to the satisfaction of the mortgage.” (7 R. C. L. 873.)
We have a statute prescribing the rights, privileges and duties of cotenants. (R. S. 60-3437.) We also have the statute on redemption by cotenants from foreclosure sales. (R. S. 60-3454.) We have the specific requirement as to their relative rights and duties with reference to the payment of taxes. (R. S. 79-426.) The plain and apparent purpose of all of them is to protect a cotenant in his prop-'ert-y and at the same time protect others holding exactly the same kind of interest in the property. Their relations are fiduciary, and they are not to be permitted to benefit themselves to the detriment of those holding similar interests.
“When two parties jointly own real property, and jointly occupy it harmoniously, one of them cannot, as against the other, claim full title to such real property by adverse possession.” (Shaw v. Bandel, 122 Kan. 343, syl., 251 Pac. 1086.)
“While it is a general rule that one tenant in common may not, as against his cotenant, acquire sole title to the common property by purchase at a sale made to satisfy a lien existing when they became owners, the cotenant may not desire to object.' He may consent that the purchaser take the full title indicated by master’s or sheriff’s deed, he may afterwards voluntarily relinquish his interest, and he may lose it by lack of diligence in electing to call on a court of equity to give him the benefit of the purchase.” (Moon v. Moon, 107 Kan. 466, syl. ¶ 2, 192 Pac. 840.)
Kansas is not without cases where one of the cotenants held other and different interests and additional obligations and duties, as the parties do in this case. In the case of Ehrhart v. Ehrhart, 110 Kan. 759, the daughter received a deed from her parents reserving payment of $100 per annum as long as either of them might live. The daughter died. Her husband continued the payments a while, then ceased. He made a new arrangement with the grantors and received a new deed to himself. On application of his children — with whom he was a cotenant, they being heirs of his wife, their mother — although he owed the additional obligation of paying the $100 per annum, which they did not owe, the court held:
“That the evidence was sufficient to sustain a finding that upon the death of Mary Amelia Ehrhart, the defendant and plaintiffs became the owners as tenants in common subject only to the interest of the grantors; that by the second deed the defendant acquired no right or interest to the exclusion of his children, and that, subject to the rights of the surviving grantor, each of the plaintiffs is the owner of an undivided one-sixth interest, and the defendant of an undivided one-half interest.” (Syl.)
Another Kansas case which meets the contention so stoutly maintained in this case is one where the owner of the land is held to be a cotenant with the farmer who harvested the alfalfa hay thereon.
“The plaintiff contracted with the owner of land on which alfalfa was growing to put up the hay for half. When the contract was performed, title vested in the plaintiff, and he owned half of each stack of hay as a tenant in common with the landowner. The plaintiff’s cotenant could not pass title to more than his share of the hay, and the plaintiff could replevin his share from a person claiming it by purchase from the plaintiff’s cotenant.” (Jewell v. Gann, 100 Kan. 43, syl., 163 Pac. 645.)
Under the authorities and the equities in the case we have no difficulty in concluding that Grieves and Mrs. Scott were cotenants in the oil and gas interest involved, and her offer of contribution of the whole amount of redemption with interest will entitle her to complete restitution of what she received by deed from their common grantors.
Our attention is called to the laches of Mrs. Scott in that she did not resist the application of Grieves in court and did not file her application until three days after redemption was made. She could not have successfully resisted the application of Grieves, and three days is not sufficient delay to indicate her acquiescence or inconvenience the party redeeming.
It is said that Angus Carrington is an innocent purchaser for value from Grieves. When he purchased of Grieves this motion of Mrs. Scott was on file and he took only a special warranty deed. He stood on no higher level than Grieves.
It is finally urged that Grieves was compelled to proceed as he did in order to protect his own interests, which would have been lost if the plan arranged by Mrs. Scott’s husband had been successful. Perhaps so; it looks quite that way. Then he pi’operly would be here .asking for the same protection that Mrs. Scott is now asking. We do these parties no injustice by ascribing to each of them the apparent possession of at least the average intelligence and the usual human inclination to look after one’s own interest first.
Reaching these conclusions, it will not be necessary to decide other points raised in the briefs. The order of the trial court denying the application of Mrs. Scott as to her right of contribution is reversed, and the cause is remanded with directions to grant her that right upon paying into court for the benefit of Grieves or his assigns the •entire amount of redemption paid by him, with interest, and to make such further and necessary orders as will give-Mrs. Scott the full title to the land and an undivided one-half interest in the oil and gas therein. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought by the attorney-general in the name of the state to compel the board of county commissioners of Montgomery county to redistrict the county by dividing it into three commissioner districts as compact and equal in population as possible, in accordance with the requirements of the statute. According to the official census of 1927, the population of the county was 57,438 persons; and prior to July 5,1927, the population of the first district was 8,743, the second district, 18,756, and the third district, 29,939. One of the commissioners, Abe Cline, is willing and has endeavored to effect such a division, but two of the commissioners, Douglas Baker and J. W. Finley, have resisted and are still refusing to join Cline in making a proper statutory apportionment of the county. At the organization of the county in 1869 the county was divided into three commissioner districts fairly equal in area and substantially equal in population. Since that time oil and gas have been discovered and produced in large quantities in the southern part of the county, which has resulted in a large increase in the population of that section, but notwithstanding that increase in population, no substantial change has been made in the territory of the respective districts. There has been agitation and demand for a redistricting of the county, and on June 27, 1927, Cline introduced a resolution to redistrict the county so that each of the three districts would have approximately 19,146 people, being about one-third of the total population of 57,438, as shown by the official enumeration of 1927. The other commissioners declined to second or support the resolution. On July 5, 1927, commissioners Finley and Baker went through the form of redistricting the county with the result that district No. 1 had 9,487 persons, district No. 2, 19,118, and district No. 3, 28,825.
In its petition the plaintiff alleged the disparity in the population of the districts, the failure and refusal of the board to make an apportionment as required by law, and asked that it be compelled to redistrict the county, making the districts fairly compact and substantially equal in • population. Cline filed a separate answer admitting the allegations of the petition and declaring a willingness to redistrict the county. Commissioners Baker and Finley filed an answer admitting the official enumeration made for the year 1927, but alleged that the population as certified by the county clerk to the state board of agriculture was erroneous and excessive. It is alleged that the correct population of the county is about 51,000, that there is an excess of population in the third district of about 5,000, and in the second district of about 2,000, and that by reason of the incorrectness of the census they cannot fairly and impartially redistrict the county.
There is no merit in the defenses alleged by the majority of commissioners. The challenge of the last official enumeration cannot be upheld. It was made in pursuance of the statute which provides that assessors shall enumerate the inhabitants, and make returns, verified by their affidavits, upon blanks furnished by the state board of agriculture, to the county clerk, who shall in turn certify the same to the state board of agriculture which is required to file, classify and publish the census returns and lay the same before the legislature at the next session thereof. (R. S. 11-101 to 11-113.) Among other things it is provided that the willful neglect or refusal to perform the duties as required by the act, shall be a misdemeanor, and upon conviction shall be punishable by a fine of not less than $20 nor more than $100. In making returns to the state board of agriculture, the county clerk is required to make proper footings of the verified census returns and to certify to the accuracy of his copy and footings. The verified and certified enumeration so made is official and is to be used in the application of the statutes requiring the redistricting of counties, the fixing of salaries of county officers and other provisions where the operation of a statute is governed by the population of counties or other municipalities. The official census of 1927 has not been set aside or modified by anyone authorized to challenge it. It has been made by officers acting under official oath and in pursuance of directions of the statute requiring verity and accuracy. Although there may be errors in the enumeration, it must be accepted as official and binding upon the commissioners. They cannot set up their own opinion as to its accuracy and thus avoid the performance of a duty enjoined by law. The statute provides that—
“The board of county commissioners shall, on the day of the organization of the board or as soon thereafter as may be possible, meet and divide the county into three commissioner districts as compact and equal in population as possible and number them respectively 1, 2 and 3, and subject to alteration at least once every three years,” etc. (R. S. 19-204.)
There has'been a manifest disregard of this requirement, as it appears that one of the districts contains at least double the population of another and, as we have seen, the law requires that the districts shall be divided so as to be as nearly equal in population as possible. Even if, as the defendants claim, the county did not contain more than 51,000 people, and the enumeration in two of the districts was excessive and erroneous to the extent claimed, there would be a gross inequality in the apportionment, and redistricting upon that basis would be required. However, when it is redistricted, it is their duty to divide the territory on the basis of the last official enumeration. It is not necessary to comment at length upon their duty under the statute quoted, as the action falls clearly within the case of State, ex rel., v. Labette County, 114 Kan. 726, 220, Pac. 275, where a similar controversy was adequately treated.
Something has been said in the answer that the action demanded would involve the placing of the inhabitants of a city in more than one district, but it has been held that—
“No reason appears why a city may not be divided so that one part lies in one district and another part' in another district so long as the boundary lines of the district follow the boundaries of the city wards and do not interfere with voting precincts.” (State, ex rel., v. Osage County, 112 Kan. 256, syl. ¶ 5, 210 Pac. 619.)
The judgment of the court will be that the board of county commissioners shall within twenty days redistrict the county into three commissioner districts as compact and equal in population as possible, and make report of their action in that respect to this court. Jurisdiction of the case is reserved to see that the judgment of the court is properly carried out. | [
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The opinion of the court was delivered by
Hutchison, J.:
The Postal Telegraph and Cable Company, defendant in this action, appeals from the decision of the trial court overruling its demurrer to the amended petition of the plaintiff.
A seventeen-year-old boy, by his mother as next friend, 'brought this action to recover damages for physical injuries received by him while delivering, or attempting to deliver, a telegraph message for the defendant company, by colliding on his motorcycle with a Dodge truck on one of the streets of Wichita. The amended petition, after stating the employment and the facts of the accident and injury sustained and that the defendant company was operating at the time of the accident and injury under the provisions of the workmen’s compensation act, alleges that the defendant company upon learning of the injury removed the plaintiff to the hospital, where he received medical attention and care of the company’s physician; that while he was still in the hospital the general manager of the company told him the company was operating under the provisions of the workmen’s compensation act, and would pay compensation to him for the injuries sustained in accordance with its terms and provisions, which the plaintiff then and there agreed to accept; that after leaving the hospital plaintiff made numerous requests and demands for such compensation, but the company neglected and failed to pay him anything whatever; that he then had his attorney write the company that if he was not paid an action for damages would be commenced; that following such notice the company called him to its office, and, as an inducement for him to refrain from commencing such action for damages, agreed to make the workmen’s compensation act a basis on which his compensation for the injury should be paid, computed the amount on such basis up to that tiine, and paid it to him in the sum of $109, and paid the doctor and hospital bills on the same basis, to all of which the plaintiff agreed; that since that time the company has failed, neglected and refused to pay any further installments; that plaintiff was earning at the time of the injury $75 per month; that since leaving the hospital his injury is and has been such as to entitle him under the compensation act to compensation for permanent partial disability in the minimum sum of $6 per week, which disability is the direct and proximate result of the injury; and that he has served the usual request and notice for arbitration required by law before commencing this action, which have not been acknowledged or recognized by the defendant company.
The appellant insists that there was no possible claim for damages or liability of the defendant for damages at common law, and therefore there was nothing to compromise; in other words, that the alleged agreement lacked consideration and could not stand, and that to refrain from commencing an action where no common-law liability existed would not support a compromise contract. Appellant refers to the case of Price v. Bank, 62 Kan. 743, 64 Pac. 639, where there was an agreement to forbear issuance of execution on a judgment that had been extinguished, and the court held:
“An agreement to forbear and forbearance from issuing execution on a judgment, which clearly has no legal existence and on which no execution could lawfully issue, are not sufficient consideration for a new promise on the part of a supposed judgment debtor.” (Syl. If 1.)
Appellant also distinguishes between this case and the case of Fuller v. Wright Bros., 106 Kan. 676, 189 Pac. 142, which is undoubtedly the one followed by plaintiff in preparing and presenting this case, calling attention to the difference in the facts upon which common-law liability might be based. In that case, while the plaintiff was standing on an auto truck for the purpose of loading the same with garbage, refuse and ashes, the truck was by the driver thereof suddenly and without warning to plaintiff started up with a violent jerk, causing plaintiff to be violently thrown to the ground and seriously injuring him. It is true in that case there was no serious contention that there might be a common-law liability, while in the case at bar that is the principal contention. The syllabus in that case is as follows:
“Where a workman was injured in the service of his employers under such circumstances as to give him reasonable grounds for a cause of action for damages at common law against his employers, or to base a claim against them under the workmen’s compensation act if their business was conducted under that act, and his employers in good faith believed that they were conducting their business under the provisions of that act, and had purchased and paid for indemnity insurance pursuant to that belief, although they had not formally filed their election with the secretary of state until after the workman had been injured, it was not against public policy for the workman and his employers to agree that he should waive his right to sue for damages at common law, and to claim compensation under the act in lieu thereof; and the mutual agreement of the workman and his employers that the terms of the compensation act should be used as the basis for determining the respective rights and liabilities of the parties, and to measure the compensation, if any, for the plaintiff’s injuries, was a valid, contractual engagement which the court should enforce according to its terms.”
Appellant also cites Udey v. City of Winfield, 97 Kan. 279, 155 Pac. 43, and Carter v. Uhrich, 122 Kan. 408, 252 Pac. 240, to support the contention that there was in fact no original liability in this case and therefore nothing to compromise. Williston on Contracts, and other authorities are also cited to show that such was at one time the rigid rule, both in England and this country; but those same authorities in succeeding paragraphs show a subsequent modification of such rule. Section 135 of 1 Williston on Contracts, continuing, states:
“In the early part of the nineteenth century an advance was made from the position of the earlier authorities, and it was held that forbearance to prosecute a suit which had been already instituted was sufficient consideration without inquiring whether the suit would have been successful or not. . . . And probably at the present time every court would admit this to be true, and hold further that forbearance or a promise to forbear suit upon a doubtful claim is sufficient consideration whether suit has or has not previously begun.”
Elliott on Contracts, volume 1, page 407, on the same subject gives the rule as follows:
“While it is definitely settled that a promise to refrain from resorting to legal means to' enforce a valid obligation may furnish a sufficient consideration for a promise, yet if the claim threatened to be enforced is invalid and worth less, a promise not to attempt to enforce or to refrain from making trouble concerning it is not a consideration recognized by the law as valuable. This doctrine was originally given a rigorous application, but it has been very materially modified by subsequent cases, and it is now held that it is not necessary in a suit on a promise given in consideration of a forbearance from suit that it should appear that there was a good cause of action or a fair and reasonable ground of success in the threatened suit. Forbearance to sue on a claim known to be frivolous and vexatious is not a sufficient consideration, for the reason that the promotion of such suit would be or could be found to be either fraudulent or wanting in good faith, but, short of that, forbearance to sue is a good consideration for a promise founded thereon. It is only essential that the claim be doubtful either in law of equity and asserted in good faith.”
The same rule is stated in 13 C. J. 346, 347:
“The principle followed in perhaps the majority of cases is that one has a right to sue where his claim is reasonably doubtful, and that forbearance to enforce a claim which might reasonably be thought doubtful is a sufficient consideration, on the ground that ‘the reality of the claim whioh is given up must be measured, not by the state of the law as it is ultimately discovered to be, but by the state of the knowledge of the person who at the time has to judge and make the concessions.’ ... A third view is that one has a right to sue when he believes that he has a good cause of action, that it is enough if the plaintiff can show that at defendant’s request he forebore to prosecute a claim which he believed to be well founded, and that it is no answer to show that the claim was not well founded or was not even reasonably doubtful.” (See, also, 6 R. C. L. 659.)
Our own state has adopted this modified view of the original rule to the effect that it is not now a hard and fast rule as to whether or not an actual liability exists, but holds there is a good consideration for forbearance to sue if the claim is reasonably doubtful and pursued in good faith.
“A promise to do an act which one is not otherwise legally bound to perform is a sufficient consideration for a contract to forbear action, notwithstanding the act is one apparently more to the interest of the promisor than of the promisee, and notwithstanding it may be difficult to ascribe a motive to the latter for wishing it done.” (Dendy v. Russell, 67 Kan. 721, syl., 74 Pac. 248.)
In the case of Grunder v. Yeager, 106 Kan. 818, 189 Pac. 922, which was a suit for breach of an oral contract to sell and deliver a Delco lighting plant, the court, in the opinion said:
“It is argued that the agreement' did not constitute a sale. Very true, but it did constitute a contract to sell, which is quite as sacred and binding as any other contract. But it is said there was no consideration — hence no damages. This will not do. Each promise was a sufficient consideration for the other, and no payment was required to make it obligatory.”
The question of consideration for compromise is dismissed in another decision in the same volume as follows:
“While compromises and settlements, like other contracts, must be supported by a consideration, it is enough to support the agreement that there was" a doubtful question, and where the parties to a compromise act in good faith, and one agrees to pay and the other to accept a certain sum in satisfaction of his liability upon a claim, there is sufficient consideration for the compromise.” (Shrader v. McDaniel, 106 Kan. 755, syl. ¶[ 4, 189 Pac. 954.)
We conclude that there could easily exist in the mind of the seventeen-year-old injured boy a reasonable doubt as to the question of the common-law liability of the defendant company when he, through his attorney, threatened to commence an action against the defendant for common-law liability for the injuries sustained, and when he was requested by the manager of the company to refrain from and forbear bringing such action, and promised if he would do so the settlement would be made according to the terms and provisions of the workmen’s compensation act, and then and there computed the damages according to such act to that date and gave him a check for it, and promised to pay the bills of the doctor and hospital. Unless there is something to point out or indicate the opposite, good faith and honesty of purpose are to be presumed. The natural and most rational conclusion from the language of the amended petition is that the plaintiff had an honest and reasonable belief in the possible validity of his claim and was prosecuting it under his attorney’s supervision in good faith.
In the case of Carter v. Uhrich, supra, both parties acted for a time as if they were under the compensation act. Later, the injured party brought an action for civil damages, and the court held “it would be harsh indeed to say that plaintiff was estopped to pursue this action on such account.” Very different from the present action and not an exact converse of it. We think the amended petition sets out a good and sufficient consideration for the promise of the defendant and that the trial court very properly overruled the demurrer of the defendant to the amended petition.
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|
The opinion of the court was delivered by
Harvey, J.:
This is an action authorized by R. S. 22-223 to contest an order of the probate court of Waubaunsee county refusing to admit to probate the will of Andrew G. Carlson, deceased, the probate court having found that the deceased was of unsound mind and not capable of executing or attesting a will as testator at the time of making the alleged will, and was under restraint and undue influence, and that the purported will was neither executed nor attested in conformity to our statute. The plaintiffs in this action aré the devisees and legatees and the executor named in the instrument sought to be established as a will; the defendant is the sister and sole heir of the deceased. The pleadings present the issues of the soundness of mind of Andrew G. Carlson, whether he was under restraint or undue influence at the time the purported will was alleged to have been executed, and whether the purported will was executed and attested in the manner provided by law. The «ase was tried to the court, who, on request of counsel, made findings of fact and conclusions of law. Judgment was rendered for plaintiffs. The defendant has appealed.
Andrew G. Carlson was born in Sweden in 1867. In 1882 he and his sister went with their parents to a farm of 120 acres which their father purchased in Osage county. His sister married in 1895. Andrew never married. He remained at home and worked with his father. In 1897,. more land, 160 acres, was bought, in the name of Andrew, and in 1904 an additional 80 acres. Early in 1906 Andrew was treated for mental trouble for some time at a sanitarium at Kansas City. In July, 1906, he was adjudged insane, in the probate court of Osage county, and committed to the state hospital at Osawatomie for treatment, and was discharged as restored in May, 1908. His father died in December, 1906. In March, 1909, on a new complaint, he was again adjudged insane in the probate court of Osage county and committed to the state hospital at Osawatomie, and was discharged as restored in June, 1911. His mother died in August,, 1909. In November, 1911, he purchased the interest of his sister in the home place of 120 acres.
Sometime in 1911 he went to Eskridge, where he thereafter made his home. He worked at common labor — sometimes at odd jobs, and was a substitute mail carrier. At times he roomed or boarded where he worked, at times he batched; for three or four years prior to June, 1925, he had roomed, or roomed and boarded, with Mrs. M. J. Fuller. In 1923 he bought a lot in Eskridge; the price paid for this is not shown; it was appraised after his death at $300. While his earnings were not large, he was careful in his expenditures, inclined to be thrifty, and he had the rents from his farms.
In the early part of 1925, before his “business” activities began, he had Liberty bonds of the value of $2,000, a bank time certificate of deposit for $500 a note for $200, and a small sum in a checking account. By June 5 all this money had been spent, he had had an overdraft at the bank, which was very unusual for him, and had given a note to the bank for $400, secured by rent money to be received from his land, and most of this was spent. He had bought two lots, for which he paid $1,200, and on this he built a garage to hold one car, later enlarged to hold several, at a cost of about $1,000. This was appraised after his death at $1,000. He bought another lot for $250, and an interest in a party wall for $552. This was appraised after his death at $150. He stated his intention to build a three-story hotel on this lot, with a grocery store on the third floor, and a restaurant on the first floor where he would feed people all they wanted to eat for 25 cents; that he would draw trade from Topeka, and if people did not patronize him he would stable his horses in it. For this purpose he tried to borrow $10,000 to $13,000 from his banker, and from persons who sometimes made loans, but was unable to get it. He offered $4,000 for a building for which the owner asked $2,500. The owner refused to sell it to him because he thought he was mentally incompetent. He tried to buy a used automobile and offered the price of a new one, but the dealer refused to sell it to him because he thought he was incompetent. Notwithstanding that, he went to the bank and tried to borrow the money with which to purchase it, but was refused.
In hiring men to work for him, and buying some of the materials used, he seemed rather exceptionally shrewd and .careful, but his manner was such that some of those who worked for him, and some who sold him material, anticipating that he might be adjudged insane, or have a guardian appointed for him, required payment from him in advance, or at frequent intervals.
Covering the same time of these business activities his personal conduct about town changed radically. Prior to that, although regarded as rather eccentric, there had been nothing especially dis turbing in his conduct, but in March, or early in April, 1925, he began to make speeches and to sing on the public streets. Sometimes his talk or song would be in Swedish, sometimes in English. At times he would attempt to preach; at others he was exceedingly profane, and at times his language was vulgar or obscene in the extreme. His voice was loud, he could be heard for some distance, and he frequently attracted attention by conduct of this character. Some of the boys of the village made fun of him, and he threatened them with physical injury; one of them he threatened to kill. At the post office, in the room used by the public, he bemeaned the father of one of the boys and made threats to him.
Many persons complained of his conduct to the mayor, and on April 10 he notified the county officers at Alma, and the county attorney, probate judge and sheriff went to Eskridge, where a number of the leading citizens of the town met at the office of the justice of the peace and discussed Carlson’s conduct and what should be done. As a result of this the city marshal, Mr. Zinn, swore to a complaint in lunacy, the probate judge issued a warrant, and Carlson was taken into custody and brought before the probate judge.
The officers thought of conducting a lunacy inquiry at that time, but the only active practicing lawyer in town, J. R. Moreland, was requested by the probate court to appear on behalf of Carlson at the hearing, and he declined to do so. Carlson was brought before the court that evening, but no formal hearing was held because of the inability to have an attorney represent him and because of a lack of five days’ notice to him provided by statute. He was interrogated, however, by the probate court and county attorney, and he talked and sang and preached for an hour or more. In these talks he would frequently state what he called “a biography of his life,” at which he would state that he was born on Tuesday at one o’clock a. m. July 25, 1870. How he got this day of the week and year 1870 in his mind in connection with his birth is unknown. His birth was recorded in the family Bible, which was in his possession and perhaps had been since the death of his parents, as July 25, 1867, which was Thursday and not Tuesday.
The result of his informal hearing was that the county officials thought perhaps he might quiet down, or prove at least harmless. He was permitted to go at liberty, but the probate judge instructed the sheriff to keep the lunacy warrant and in the event there should be serious complaint’ later of his conduct to take him in custody. For a few days thereafter he seemed more quiet. He talked with the mayor, with whom he was on friendly terms, and the mayor told him he ought to be more quiet, which he promised to do. He stated he had been told by his attorney, Mr. Moreland, that he would have to be more quiet or he could not keep him out of the asylum.
He kept up his business activities and soon renewed or continued his objectionable personal conduct. He was very obscene in his talk about women, especially those of the Methodist church. His talks on the street were frequent and disturbing. Some persons would walk out of their way to avoid him. To some he told how he fought the guards when he was in the hospital at Osawatomie and how he had fought other persons by kicking them in the groin.
He was sensitive about his bald head, and, although he talked a great deal about it himself, he took offense when the boys or others spoke of it. He was especially bitter toward the city marshal, Zinn, who had signed the complaint in lunacy against him, and made frequent threats to the mayor and others as to what he would do to Zinn. He went to the residence of a physician, went in the house unannounced or uninvited, and told the wife of the ’physician how he had “shook like a rat” the father of one of the boys in the town who had taunted him, and so frightened the physician’s wife that she had a nervous collapse.
Numerous persons made complaint to the mayor of his conduct and of his threats. Among those who so complained was Mrs. Fuller, one of the plaintiffs in this case, who stated that his conduct was such that she could not remain at home, and she talked about going away; she was afraid to talk to him about it.
About four o’clock the morning of June 5 the city marshal, who was night watchman, when walking along the street, saw Carlson digging with a spade and working near his garage. The marshal spoke-to him pleasantly, said something about his being out early. Carlson became very angry, threw down his spade, started toward the marshal, and said, “It is none of your damned business when I go to work.” The marshal, not desiring to engage in an encounter with him, walked on. Carlson followed him for nearly a block, cursing and bemeaning him and telling him how he fought people. Later in the day Carlson complained to the mayor about Zinn interfering with him, stated that Zinn had been hired by C. E. Carroll, of Alma, to put him in the asylum, and that Carroll was employed by his sister — which ideas were pure imagination — and threatened to kill Zinn.
On that morning the mayor notified the county officials of Carlson’s conduct, and the sheriff and his deputy went to Eskridge to take him into custody under the lunacy warrant. The sheriff reached Eskridge about noon, or a little before, saw Carlson on the street, and told him he had come to take him to Alma. Carlson said he would like to go to his room. The sheriff and his deputy went with him. Carlson washed and changed his clothes, sang, preached, was profane and used vulgar and obscene language, especially with reference to pictures of nearly nude women which he had on the walls of his room; much of his talk was disconnected, some in Swedish and some in English.
When he got dressed he said he would like to go to see his attorney, Mr. J. R. Moreland. The sheriff and his deputy went with him to Moreland’s office. There Moreland asked Carlson if a guardian was appointed for him whom he would like to have for his guardian. Carlson said, “Either you or W. K. Waugh.” (Mr. Waugh was in the bank where Carlson kept his account.) Moreland said, “Which would you rather have?” Carlson said, “You.” Something was said there about making some kind of a list of Carlson’s things, and Carlson said to Moreland that he would'like to have him look after his papers. Moreland said, “If you want me to look after your papers, you better get them and bring them here.”
Carlson then asked permission to go to the bank and get some papers. The sheriff or his deputy went with him. They went to both the banks, got no papers, went back to his room, where there he dug through his trunk and other effects and got a small tin box, such as papers are frequently kept in, also a small wooden box, a Swedish Bible, which proved to be their old family Bible, and a- few other effects, which he took back to Moreland’s office.
Soon after returning to the office he indicated to Moreland that he would like to have a private conversation with him. While in this conference Carlson asked Moreland to write his will. More-land declined to do so, but suggested that he might get the sheriff to write it. Moreland called the sheriff and his deputy in and stated to the sheriff that Carlson had some things he wanted to place, or to write down, and asked the sheriff to write. The sheriff remonstrated and said he didn’t have his glasses. Moreland gave his to the sheriff and told him to go ahead and write, and gave him a sheet of paper off a tablet. The sheriff wrote in pencil on two sheets of the tablet paper. Carlson dictating:
“BARCLAY TWP.
S% of SW% S 18-7-14; E% of NW%, NW% of NE14 of in Sex 24-17-13; NE% of S 23-17-13 of al the land is give to P. L. Moreland.
In Esk lots 16-17-18 in block 8 an lots No. 3 Main st. in block 8 is willed to Mrs. M. J. Fuller including all the apem there to belongi.
1 Bay 6 y. old pony 11 yr. old.
two whele cart and harness.
All personaly prop is willed to J. R. Moreland.
J. R. Moreland appointed as Exr.”
Moreland then told Carlson he should sign that, and he did sign it with his name, “Andrew G. Carlson,” and wrote the date “June 5th, 1925.” Moreland then told the sheriff to write the word “Witness,” and asked the sheriff and his deputy to sign as witnesses, and they both signed. Moreland then asked the sheriff to write at the top of the first page of the paper, “The Last Will and Testament of Andrew Carlson,” and the sheriff did. Moreland then stated, “Gentlemen, you know you have written a will.” The sheriff said, “If he did, that was the first one he had ever written.” Carlson asked what he should do with it. Moreland told him to take it with him and give it to the probate judge, pay him a fee of $1 and he would give him a receipt for it. Moreland got an envelope, put the two sheets of paper in it, sealed the envelope and wrote on the outside of the envelope, “Last Will and Testament of Andrew G. Carlson. In case of death notify J. R. Moreland, Exr.” At some time at the office, Moreland, on a piece of scratch paper, took a list of Carlson’s things in his house given him by Carlson. This was later checked up and found to be practically correct with the exception he spoke of having two fur coats, which could riot be found. Carlson told Moreland to pay Mrs. Fuller five dollars he owed her for room and board. (She later presented a claim against his estate for $249.50, explaining that he had acted so queer, she had said nothing for some time about what he owed.)
Soon thereafter the sheriff and his deputy went to Alma, taking Carlson with them. Carlson gave the envelope containing the writing to the probate judge, paid him $1, and the probate judge issued a receipt, which was sent to Moreland. Notice was given Carlson of the hearing for insanity as the 10th of June. He was kept in jail pending that hearing. While in jail he talked, sometimes pretended to preach, sang, frequently used profane, vulgar and obscene language; at times he talked so loud that he could be heard in other offices'of the courthouse. At times when the sheriff went to the jail he was entirely naked. He asked the sheriff repeatedly to have his picture taken while in that condition; said he wanted to have a number of them made and distributed. He wrote a great deal, both before he was taken to jail and while there. Much of this showed lack of unity of thought.
At the hearing on his sanity, which was before a commission in the probate court June 10, he cursed the physicians on the commission and refused to answer their questions. He was especially bitter toward Zinn, the city marshal, who had signed the lunacy .complaint, cursed him and threatened to kill him. He saw A. E. Carroll in the court room, mistook him for his father, C. E. Carroll, and cursed and abused him. When his attention was called to the fact that this was a son, he apologized. 'He made .contemptuous, slurring remarks about the county attorney, Mr. Bowes. He was courteous to the probate judge, whom he said was a friend of his, and answered some questions which he asked him.
The probate judge asked him to make a statement of his property, and he said he would write it. He was given a pencil and paper and wrote the correct description of his farm land, but omitted entirely his property in Eskridge and his personal property. He was asked his age and stated that he was born on Tuesday, at one a. m., July 25,1870. He asked permission to sing. He sang and talked for more than an hour. The probate judge finally told him that that would be enough, and he quit. His talk and singing were in a loud voice, partly in Swedish and partly in English. His talk was disconnected, with a tendency at times to preach, and at other times he was profané.
He was found to be insane; that his disease was of thirty days’ duration; that the cause was supposed to be onanism; that tíre disease is paranoia; that the disease was increasing, was variable; that he had permanent delusions of being persecuted, and that he showed a disposition to injure others. He was committed to the state hospital at Topeka. W. K. Waugh was appointed guardian of his estate. J. R. Moreland complained to the probate judge that he was not appointed. Carlson died at the hospital January 17, 1926.
The above is intended only as a brief statement of some of the ma terial facts, taken, in part from the abstract of the record and in part from the findings of the court, but is not intended to be full and complete, since it is not practicable to attempt to state all of the matters shown by the record.
Turning now to the legal questions presented in this appeal. Some of the findings made by the court were of ultimate facts, but many of them were of evidentiary facts, from which the court's conclusion of soundness of mind sufficient to make the will was derived. The court undertook to state the principal facts indicating soundness of mind, also some of the facts tending to indicate mental incapacity, but a number of requests for further findings of evidentiary facts indicating unsoundness of mind or insanity of maniacal character, some of which were undisputed,'and all or most of them apparently clearly sustained by the evidence, were refused. Appellant complains of the refusal of the court to make such additional findings of fact. The point is well taken and requires a reversal of the case. In Nordman v. Johnson, 94 Kan. 409, 146 Pac. 1125, it was held:
“In a suit tried by the court involving the validity of certain conveyances and a will executed thereafter and the mental capacity of the grantor and testator, it was error for the court to refuse, upon timely request, to make findings of fact covering the material issuable matters put in issue by the pleadings and on which evidence was introduced.”
In the opinion the duty of the court under R. S. 60-2921, in cases tried to the court, to make findings of fact when requested to do so is fully discussed and the earlier cases reviewed. In Wisner v. Chandler, 95 Kan. 36, 147 Pac. 849, the specific question here presented was before the court except that in that case the lower court had found against the will. In the opinion discussing that question it was said:
“In making findings of fact the court stated evidentiary facts from which its ultimate conclusion of testamentary incapacity was derived. It undertook to state all the principal facts indicating unsoundness of mind, including some which served merely to combat the inference of mental capacity. Facts warranting the inference of mental capacity were likewise found, but twenty or more requests for further findings, out of a much longer list, based upon evidence indicating soundness of mind, some of which was undisputed and all of which was clear and highly probative, were denied. The result is the judgment can not be affirmed, because of the rule established by the decision in the case of Nordman v. Johnson, 94 Kan. 409, 146 Pac. 1125.” (p. 37.)
This principle of law was again invoked in Higbee v. Bloom, 108 Kan. 723, 729, 196 Pac. 1080; Mortgage Co. v. Randall, 113 Kan. 62, 213 Pac. 668; Bank v. Commission Co., 113 Kan. 545, 215 Pac. 828; and McLain v. Barr, post p. 286, this day decided.
Complaint is made of the rejection of testimony offered. Defendant undertook to show by the sheriff that what he did in writing, what plaintiffs contend now is the will, was done simply to satisfy a whim of Carlson’s in order that he might have no trouble in taking him to the county seat; that he then thought and believed that Carlson was insane; that he then had custody of him under an insane warrant; that he believed Carlson might become obstreperous if crossed, and that he had no idea when he was writing the instrument or when he signed his name as a witness that, he was in fact writing a will, and that he would not have written it, and would not have signed his name as a witness thereto if he had had any idea there was an effort there made to make a will; that he felt highly imposed upon to think that anyone would contend that what he was there doing was the making of a will. The testimony of the deputy sheriff was to the same effect. This testimony was excluded by the trial court for the reason that it was the mental condition of the testator that was being inquired into, and that what the scrivener or witnesses thought about the matter was of no consequence. It was offered by affidavits on the motion for a new trial. The trial court evidently overlooked the fact that thé due execution and attestation of the will under the law was an issue in the case. Our statute with reference to the execution of a will (R. S. 22-202) omits many of the requirements known to the older law. It is not essential to the due execution of a will under our statute that the witness know the contents of the will; nor is it necessary that witnesses sign in the presence of each other; and, generally speaking, a will executed in conformity to our statute is duly executed for the purpose of probate. (Colman v. Lindley, 115 Kan. 802, 224 Pac. 912.)
But witnessing a will is a matter of great importance and solemnity. (Rice v. Monroe, 108 Kan. 526, 527, 196 Pac. 756.) One who attests and subscribes a will as a witness should do so with the understanding that he is competent to testify on the probate of the will that the testator had mental capacity to make a will and was not under restraint or undue influence. (Lawrie v. Lawrie, 39 Kan. 480, 18 Pac. 499; Hospital Co. v. Hale, 69 Kan. 616, 619, 77 Pac. 537; McConnell v. Keir, 76 Kan. 527, 531, 92 Pac. 540.) The attesting witnesses to a will must not only witness the signing or publishing of it by the testator, but it is also their duty to satisfy themselves that the testator is of sound and disposing mind and memory and capable of executing a will. (Smith et al. v. Young et al., 134 Miss. 738; In re Swan’s Estate, 51 Utah, 410.) “A witness to a will must . . . satisfy himself ... of his (the testator’s) testamentary capacity.” (40 Cyc. 1110; Dunkeson v. Williams, 242 S. W. 653 [Mo.]; Schouler on Wills, 6th ed., §§ 229, 514; Page on Wills, 2d ed., § 332; and see cases collected in annotation 35 A. L. R. 79.) This duty necessarily requires that the attesting witnesses to a will should know and understand that the instrument they are signing as witnesses is a will, and they should do so prepared to testify to the testamentary capacity of the testator, and that he is free, from restraint and undue influence.
We are aware there is a line of authorities to the effect that a witness to a will need not know whether he is witnessing a will or some other instrument, but we do not regard such authorities as being in accord with the duties required by an attesting and subscribing witness to a will under our statute, in accordance with the decision of our court. It was error, therefore, for the court to exclude this evidence. It is true the court made a finding of fact that the attesting witnesses “before its completion knew it purported to be the last will and testament of Andrew G. Carlson.” But this finding necessarily falls, because the court excluded material, competent evidence of the witnesses on that question. Appellees point out that the word “willed” was used-in the writing done by the sheriff, and also that an executor is named, as justifying the court in reaching this conclusion. But this, of course, does not necessarily follow. If the sheriff was simply attempting to appease Carlson by complying with some wish of his in order to avoid trouble with him, and if he really regarded Carlson as then insane, or under restraint or undue influence, what he did in signing the paper as a witness would not amount to an attesting and subscribing to a will as a witness to it. It must be remembered that the probate court refused to admit this instrument to probate as a will, for the reason, among others, that it was neither executed nor attested in conformity to our statute. There is, therefore, no presumption of due execution and attestation as provided in R. S. 22-224, and the burden in this case is on plaintiffs to show due attestation by the subscribing witnesses.
While not specifically referred to by counsel, there is one matter which stands out rather clearly from the record and which should be mentioned. Obviously the case was tried on the theory that every person is presumed to be sane until he is tried and adjudged to be insane, and hence that the burden, of showing insanity, the type of insanity, and how it affected Carlson with respect to the disposition of his property, was on the defendant. In this case consideration of the matter should have been approached from directly the opposite theory. When Carlson was adjudged insane on June 10, the commission which adjudged him insane also found the time previous to that when insanity had existed. They found it existed for thirty days. In Witt v. Heyen, 114 Kan. 869, 221 Pac. 262, we had occasion to consider the effect with respect to such a finding prior to the date of the hearing. It was there held that under a statute requiring the jury or commission to find the duration of the disease prior to the inquest, where a finding of insanity was made and that the disease had existed from a prior date, the finding is conclusive evidence of insanity at the date of the inquest and prima jade evidence of insanity during the prior period overreached by the findings. Applying the rule there stated to the case before us, the adjudication of insanity of Carlson on June 10 was conclusive evidence of his insanity on that date, and the finding by the commission that the condition had existed for thirty days was prima jade evidence of his insanity for a prior period of thirty days. Since June 5, the date of the purported will, was within that time, an inquiry into Carlson’s mental condition should start with a presumption of insanity at that time, and the burden is on plaintiffs, who assert his sanity, to rebut that presumption.
After the evidence in the case was taken and both parties had announced the evidence was closed, the case was taken under advisement and tentative findings of fact submitted to counsel. Defendant moved for a modification of the findings of fact, to strike out some of them, and for the making of additional findings of fact, which request was by the court refused. At the same time she asked that the case be reopened for the introduction of additional evidence. Defendant’s request was that she be permitted to further examine some of defendant’s witnesses and to further cross-examine some of the witnesses for plaintiffs. The court refused this request, and very properly so. The defendant asked leave to introduce additional witnesses and had affidavits from those witnesses as to what their testimony would be. This was overruled for the reason that the testimony was largely cumulative and that no diligence had been shown to present it at the trial. This ruling is complained of. It is a matter that was largely within the discretion of the trial court, and there is nothing in the ruling that approaches an abuse of that discretion unless it can be said to be in connection with the offered testimony of Doctor Perry. Even as to that we are reluctant to say that the court’s ruling was an abuse of discretion, for the defendant might well have anticipated, or have known beforehand, the nature and importance of the testimony of Doctor Perry and had him present at the trial. On the other hand, it would have been conducive to the due administration of justice to have received his testimony. He was the only real expert witness on the question of the insanity of Carlson. Carlson was directly under his care and treatment from the time he entered the hospital, about June 13, until his death in the following January. The witness’ knowledge of the nature of Carlson’s insanity, the manner in which it would naturally evidence itself, the necessary effect of it upon his mental faculties, would have been valuable to the court in this case. This testimony was not cumulative. The testimony of Doctor Perry, as disclosed by his affidavit, tends to show that the business activities of Carlson for the two or three months before he was adjudged insane, relied upon by plaintiffs and found by the court as evidence of his soundness of mind in business matters, were in fact evidences of the hyperactivity of the mania with which he was afflicted, and that these, together with his personal conduct, demonstrated an unsoundness of mind which incapacitated him from comprehending transactions requiring thought and consideration, or rationally or understanding^ completing them. But since the case must be tried again, the error, if any, in refusing to receive the testimony of Doctor Perry becomes unimportant; it can be produced on the retrial.
Appellant specifically complains of the court’s finding that Carlson was subject to monomania on the subject of women, was eccentric and erratic on the subject of religion, but that his mind was not otherwise affected. It is difficult to find the evidence in the record to sustain this finding. His delusions about his being persecuted, his exhibitions of anger and threats to do bodily injury and to kill, and his abnormal, flighty business activities were not associated directly either with women or religion. The finding of the lunacy commission was that his disease was paranoia. The summary of his mental condition as shown by the records of the state hospital is that he “had two previous attacks of insanity; first in 1906, and again in 1909, duration of each attack two years. . . . This attack is said to be of 30 days’ duration and is shown by religious delusions, ideas of persecution, flighty ideas, euphorism, motor-excitement, pressure of activity and busyness.” The final diagnosis was “manic depressive insanity, manic type.” See Wharton & Stifle’s Medical Jurisprudence, 5th ed., § 619 et seq.; Glueck’s Mental Disorder-and the Criminal Law, pp. 358, 359, 370, 432; Singer and Krohn, Insanity and Law, p. 328, for discussion of insanity of this character upon the subject of mental capacity' to comprehend transactions requiring thought and consideration and rationally to complete them.
Appellant contends that the evidence disclosed that Carlson had an insane delusion that his sister desired to get him in the asylum, or to keep him there, in order that she might get his property, and that this delusion is reflected in the instrument sought to be established as his will. The court made an ultimate finding that Carlson had no such delusion, and made evidentiary' findings of fact tending to support such ultimate finding, but refused, although requested to do so, to make evidentiary findings of fact tending to establish the existence of such a delusion, and the further fact that his friends had tried to talk him out of his delusion in that particular, but without success. Since the court was making evidentiary findings it was error not to make findings on this question. See authorities above cited. We 'shall not prolong this opinion by a statement of the evidence bearing on this question, but since the case is to be tried again, simply mention it as a question that should receive due consideration. The rules of law pertaining to such insane delusions are sufficiently discussed in former decisions of this court (Medill v. Snyder, 61 Kan. 15, 58 Pac. 962; Akins v. Akins, 109 Kan. 453, 199 Pac. 922), and other authorities readily accessible. It is familiar law that one laboring under an insane delusion which influences him to make a will in a certain way does not possess testamentary capacity. (Harbison v. Beets, 84 Kan. 11, 18, 113 Pac. 423.) In this connection it will be noted that the commission which adjudged him insane found that he had permanent delusions of being persecuted. Possibly he had these delusions also with reference to Zinn and to C. E. Carroll, but as to these persons, of course, the delusions were not reflected in the writing sought to be established as his will.
On a re trial there should be more specific findings of fact as they relate to that portion of R. S. 22-214 which reads:
“That in all actions to contest a will, if it shall appear that such will was written or prepared by the sole or principal beneficiary in such will, who, at the time of writing or preparing the same, was the confidential agent or legal adviser of the testator, or who occupied at the time any other position 6f confidence or trust to such testator, such will shall not be held to be valid unless it shall be affirmatively shown that the testator had read or knew the contents of such will, and had independent advice with reference 'thereto.”
The court did find that Carlson had no independent advice with reference to making a will; that J. R. Moreland was his legal adviser; and that he directed the preparation of the instrument in question. J. R. Moreland was one of the beneficiaries named therein, also his son and business associate, P. L. Moreland. But the value of the estate, or of the portion attempted to be given to each of the beneficiaries, is not found. It is not argued here whether the attempted gift to the son should, for the purpose of applying the above quoted statute, be regarded the same as though it had been made to J. R. Moreland, hence we express no view on this question at this time.
Other matters are discussed, but we do not regard them as requiring special attention.
After the evidence had been heard and the court had made its' tentative findings, defendant moved to disqualify the trial judge because of his business relations with some of the attorneys for plaintiffs. This motion was overruled, and appellant complains of that ruling. There is no merit in this complaint. We have carefully examined the record and find no reason to suspect that the trial judge was biased or prejudiced either in favor of or against any of the parties to this' action or their counsel.
For the reasons stated in the opinion the judgment of the court below is reversed, with directions to grant a new trial.
Marshall and Hutchison, JJ., dissenting. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action of replevin brought by the Ellis-Swonger Motor Company against J. A. Watt, to recover the possession of a Dodge automobile. Verdict and judgment were in favor of the defendant, and plaintiff appeals.
The plaintiff was a corporation engaged in the motor business in Iola, and its claim was that it had sold an automobile to defendant in September, 1925, and as part of the purchase price defendant had executed a title note for $658.75, under which the title to the automobile was to remain in plaintiff until the note was paid; that payment had not been made and therefore plaintiff was entitled to the possession of the car. Defendant responded by4 admitting the execution of the note and that he had possession of the car, but alleged that when he received the car an agreement was entered into between the parties to the effect that he was appointed as the agent of plaintiff and was authorized to sell Dodge cars and trucks in the city of Garnett. That he was given the exclusive agency for the sale of such vehicles in Garnett, with the privilege of selling cars in outside territory, and that he was to receive a commission of fifteen per cent of the list price of vehicles that were sold in Garnett, and a like commission on cars that he was instrumental in selling in outside territory. He further claimed that be tween September, 1925, and March, 1926, sales were made of motor vehicles in Garnett which at the list prices amounted to $8,320, and from which at the agreed commission there was due to him $1,248, and he asked judgment for the difference between the amount due on the note and the amount due to him on commissions earned, to wit, $575.
Plaintiff denied generally the averments of the answer and also filed a verified special denial that defendant had ever been appointed as the agent of plaintiff or had been given authority to represent plaintiff in the sale of motor vehicles in Garnett or elsewhere. Testimony was given by the defendant tending to show his agency, and that he was given the exclusive right to sell these vehicles in the city of Garnett, and that he was to get a commission on sales in Garnett, whether they were sold by him or another. That if he sold others by his own efforts outside of Garnett, he was to receive the same commission. Proof was offered of sales that were made which amounted to $8,320, on which he was entitled to the commissions.
The principal controverted question was the character of the agency or agreement between the parties and two questions were submitted by the court to the jury. First, “Did the plaintiff and the defendant enter into any agreement with reference to the sale of Dodge automobiles here in Garnett? You can answer that yes or no.” The answer was, “Yes.” The second question was, “If you answer the first question yes, then what was the agreement?” Answer, “Defendant to have exclusive agency for Garnett.” The jury found that defendant was entitled to recover $208.32 and to the cancellation of the note.
The contentions of the plaintiff are that the testimony is insufficient to establish the exclusive agency found by the jury. While plaintiff alleged that there was no agreement of agency of any kind, it was admitted by the plaintiff that an arrangement was made with defendant which was to the effect that if he made sales of cars entirely through his own efforts, he should receive fifteen per cent commission of the list price of such cars, but specifically denied that there was any other arrangement or that any exclusive agency in Garnett was given him.
This is a fact case and like many others which have been brought up on appeal involves only the weight and force of the evidence, a question which has been settled by the jury and whose verdict has received the approval of the court. The findings made rest upon disputed evidence, and an examination of the record discloses competent and substantial evidence produced by defendant in support of the verdict. In this situation we cannot usurp the function of the jury nor go farther than to examine and see that there is sufficient evidence to sustain the verdict. The conclusiveness of such a verdict has been so frequently declared that citations of authority are needless. On the controlling fact, as to the nature of the agency involved, we have not only the evidence of the defendant but of two other supporting witnesses tending to show exclusive agency, and the findings of the jury based -thereon are conclusive upon appeal.
The complaint that the court in its,instructions unduly stressed the claim of exclusive agency and the theory advanced by the defendant does not appear to be borne out by the record. The theory of the plaintiff was presented to the jury, and they were instructed that if they found in favor of the plaintiff a verdict should be returned accordingly, and they were advised of the nature and form of the verdict to be returned by them. It is suggested that the court, must have apprehended that there was danger of the jury rendering an unfair verdict since he told them they were not to try the case as arbitrators and figure out what would be fair without regard to the evidence and the rules of law. He told the jury they were bound by the evidence and the rules of law laid down by the court, and that they should consider the case fairly and impartially and express the truth in their verdict. We see no reason to complain of the instructions, and finding no error in the record the judgment, is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
A motion has been filed by the plaintiffs in which they ask “that they be granted a rehearing in this case, and that the judgment be modified, at least to the extent of placing in the second classification of claims the judgment for George Schmitz in the sum of two'thousand dollars, and for Joseph Schmitz, Jr., in the sum of four thousand dollars.”
The plaintiffs now ask that that part of their elaims which arose for services prior to 1911 as claims of the second class under the law as it existed when Cawood v. Wolfley, 56 Kan. 281, 43 Pac. 236, was decided. That proposition was not presented to the probate court, the -district court, nor to this court until the motion for rehearing or modification was filed. If the plaintiffs intended to urge that point in this court, they should have presented it to the trial court. (Wilson v. Fuller, 9 Kan. 176; Koshka v. Railroad Co., 114 Kan. 126, 217 Pac. 293.) A number of other cases might be cited.
The petition for rehearing and for a modification of the judgment is denied. | [
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The opinion of the court was delivered by
Harvey, J.:
This is a suit to enjoin the sheriff from executing and the register of deeds from recording a sheriff’s deed in a tax-sale proceeding.. The court made findings of fact and rendered judgment for plaintiff. Defendants have appealed.
Personal-property taxes aggregating $8,321.35 assessed against J. N. Richardson for the year 1923 were not paid. A tax warrant was issued and returned unsatisfied. It was then filed with the clerk of the district court, who entered it on the judgment docket and issued thereon a tax warrant having the force of an execution. (R. S. 79-2105.) The sheriff levied this on certain real property and sold the same as the property of J. N. Richardson. The plaintiff in this action claims title to the property levied upon and contends that the property was not, therefore, subject to sale under the tax warrant. This presented the real question to be determined. The regularity of the proceeding in other respects is not questioned. The facts with reference to the title of the property, as shown by the evidence and found by the court, are substantially as follows:
The property in question was originally owned, so far as we need here inquire, by Mrs. Maud Heller, the same having been set off and decreed to her in a divorce action with her husband. It consisted of four lots and a residence of the value of perhaps $10,000. J. N. Richardson was the president and one of the active managing officers of the American State Bank. Mrs. Heller borrowed money of Richardson, or of the bank, transacting the business with Richardson. On March 4, 1920, Mrs. Heller executed her note to J. N. Richardson for $8,000, due in six months, with interest at eight per cent from date (the earlier loans need not be mentioned), On the same day she made to J. N. Richardson a general warranty deed for the real property in question, which property she then occupied as her residence. J. N. Richardson indorsed the note and placed it in the bank, and it was carried as an asset of the bank. It does not appear to have been renewed. On May 4, 1921, C. N. Richardson, the wife of J. N. Richardson, made her check for $8,000 to the American State Bank, and the Mrs. Heller note was marked on the note register of the bank as having been paid. Perhaps Mrs. Heller did not know that J. N. Richardson placed the noté in the bank, and she did not know that Mrs. Richardson had paid the bank the face of the note, and that the same had been marked “paid” on the bank books.
On May 28, 1923, on the advice of his attorney that the deed from Mrs. Heller to him was slightly inaccurate in its wording, J. N. Richardson procured from Maud Heller a quitclaim deed for the property. The American State Bank failed June 14, 1923, and was taken charge of by the bank commissioner, and L. L. Payne was one of the deputy bank commissioners in charge of the bank. On December 28, 1923, Mrs. Heller executed a special warranty deed to L. L. Payne for the real property in question for a consideration of $1,250, which included the furniture, and surrendered the possession of the property to Mr. Payne, who moved into the property and resided there until the time of the trial of this caso.
The evidence disclosed that Mr. Payne really bought the title from Mrs. Heller for the receiver of the American State Bank, and shortly after taking possession of it Payne executed a deed, blank as to grantee, and delivered it to Ray Foley, receiver of the American State Bank. The American State Bank was reorganized as the State Reserve Bank. Payne has paid rent to the bank for the time he has occupied the property. The court found, among other things, that the warranty deed executed by Mrs. Heller to J. N. Richardson was given to secure her note of $8,000 of that date, and was in effect a mortgage; that the title, subject to this mortgage, remained in Mrs. Heller until she sold to Payne, who purchased for the bank. From this the court concluded that Richardson had no title to the property at any time which was subject to levy and sale on execution. This conclusion must be sustained. It is the established rule in this state that a deed given to secure the payment of a debt is in effect a mortgage. (Moore v. Wade, 8 Kan. 380; Dyer v. Johnson, 109 Kan. 338, 198 Pac. 944.) A mortgagee has a lien on the property described in the mortgage, but has no title to the real property prior to foreclosure. This has always been the rule in this state. (Clark v. Reyburn, 1 Kan. 281; Seckler v. Delfs, 25 Kan. 159, 165.) The title to the real property remains in the mortgagor, subject to the mortgage, and he, or his grantee, may show that the prior instrument was in fact a mortgage. (41 C. J. 363.)
When it is once established that a deed, absolute in form, was in fact intended as a mortgage, the relative rights of the parties will be determined by the law governing the relation of mortgagor and mortgagee. (41 C. J. 362.) Applying these well-settled principles of law to the matter, the rights of the parties, so far as this suit is concerned, are readily determined. When on March 4, 1920, Mrs. Heller executed her note for $8,000 to J. N. Richardson, and also executed to him the warranty deed to secure the payment of this note, the deed was in effect a mortgage. We do not regard it as material whether Mrs. Heller dealt with Richardson individually or with him as representing the bank. The fact is, Richardson indorsed the note and placed it in the bank as a part of its assets. The bank thereby became the owner of the note, and since the mortgage is only an incident to the debt, and the transfer of the debt has the effect also of transferring the mortgage, the bank became the owner of the mortgage as well. This situation continued until May 4, 1921, when C. M. Richardson, the wife of J. N. Richardson, gave the bank her check for $8,000, and the note of Mrs. Heller was taken out of the assets of the bank. It is true this check did not include accrued interest on the note to date. Just how that matter was handled was not clearly shown by the record of the bank nor by the evidence, but since the bank owned the note there was no reason why it could not sell the same to Mrs. Richardson for the face of the note if it cared to do so. The bank records do clearly establish, and the'court finds, that the note was taken out of the assets of the bank, and presumably it was turned over to Mrs. Richardson, who had paid the bank for it. This transaction had the effect of transferring to Mrs. Richardson .Mrs. Heller’s note of $8,000 and the mortgage which she had given originally to J. N. Richardson to secure it. So far as J. N. Richardson is concerned, he had no title to the property at any time, and he was not the holder of the mortgage on it any time after he had indorsed the note and turned it into the assets of the bank. And the bank was •not the holder of the note nor the beneficial owner of this mortgage after Mrs. Richardson had paid the bank for the note. During this time Mrs. Heller remained in possession of the property, as she had a right to do as mortgagor, and was the owner of the title, subject to the mortgage. She had a right to sell and convey her interest in this property, and she did sell and convey it by the special warranty deed to L. L. Payne, who purchased for the bank ■for which he was then acting. The bank then procured the interest ■of Mrs. Heller, which was the title to the property subject to the-•$8,000 mortgage then held by Mrs. Richardson.
From this analysis it is clear that J. N. Richardson had no interest in this property subject to levy of execution under the tax warrant at the time that levy was made. C. M. Richardson held a mortgage on it for $8,000 and the plaintiff bank held the legal title subject to such mortgage.
The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
HjuTCHisoN, J.:
The plaintiff in this action, Robert M. Turner, seeks to set aside a deed made by him to his wife many years ago and quiet his title to the land against his adopted daughter, who claims to have inherited an interest in the land on the death of her mother, the wife of the plaintiff, and the interest of her adopted brother by conveyance from him. The trial court found in favor of the plaintiff and against the defendant, and defendant appeals.
The case involves the question of the competency of testimony given by plaintiff said to be respecting a transaction with a deceased person (R. S. 60-2804); also, questions of delivery of the deed, and estoppel.
The undisputed facts are that the land in question is a part of a government homestead in Reno county proved up by the plaintiff, for which he received a patent, and which he and his wife occupied as a homestead. On July 3, 1888, he procured an attorney named Jeff Bowers, now deceased, then residing at Sylvia, in Reno county, to make out a quitclaim deed for him conveying this quarter section to his wife. The consideration named was $1,000. It concludes with the expression, “Executed and delivered in presence of Jeff Bowers.” It was acknowledged before a notary the same day. Ten days later it was left by the plaintiff with the register of deeds of Reno county to be recorded, and was recorded in book 20 on page 473, and by the register of deeds returned to him. He then placed the recorded deed in a little silver-mounted box which he had given to his wife, and on top of which the jeweler had written his wife’s name. It was left in a sideboard, but not locked. It was really her box, but she never had access to it, and he never gave her the deed. He and his wife continued to live on the land, and he still resides thereon.
In 1893 and 1894 he and his wife regularly adopted two children, a boy and a girl, who assumed the surname of the family. The girl, Maude Close, now married, is the defendant herein. The plaintiff did the farming, received the profits, paid the taxes, and maintained the improvements on the place. A part of it was sold by him to Barney McKeown, and his wife and he executed the deed, her name appearing first in the body but second in the signatures. The boy grew to manhood and went to Oklahoma.- The girl, less than a year old when adopted, stayed with the adopted parents on the home place all her life, except a few months, until served with summons in this case. The plaintiff several times offered to purchase the land from his wife. The wife died November 14, 1921, without a will. She had no children except the adopted boy and girl. After his wife’s death plaintiff leased the farm for about eight months to the daughter and her husband. June 1, 1926, he leased the land to E. E. Nelson and H. H. Nelson for five years, with privilege of five more. A copy of the lease prepared and signed by him and introduced in evidence begins as follows: “This indenture, made this 1st day of June, in the year of our Lord 1926, between R. M. Turner and Maude Close, parties of the first part.” It names the Nelsons as second parties and describes the land in question. Some time after the death of- the wife and the com-, mencement of this action the adopted son conveyed to the adopted daughter an -undivided one-fourth interest in this land. The plaintiff at the time of the trial was 76 years old. H'e was the only witness who testified in his behalf.
Now a few statements as to controverted facts. Plaintiff maintained that he made out the deed to his wife and had it recorded because he was in the livery business, which at that time was not very safe, and he wanted his wife to have the farm if anything happened to him, and had no intention of conveying the land to her except to be effective at his death. He says it was never talked of between them and he never in any way recognized her as being the owner of it, or after her death recognized the adopted daughter as having any interest in it; that he never received any consideration for the deed to his wife, but just put it as $1,000 to make it safe and because there was at that time a mortgage of $1,000 on the place. On the other hand, the adopted daughter testified, as did also her adopted brother, the hired man, and several neighbors, to numerous quarrels between the plaintiff and his wife about the ownership of this land, and the daughter and others testified as to offers being made by plaintiff to the daughter for her interest in the land and to conversations about her signing bonds with him because of her interest in the land. The conflicting testimony last above noted will not engage our attention in this case, except for the consideration of the first above-stated assignment of error, viz., Was the testimony of the plaintiff incompetent because it was respecting a transaction had with a person since deceased, as described in R. S. 60-2804? One question and answer would very properly be subject to such objection:
“Q. I will ask you, Did you ever at any time during your wife’s lifetime deliver that deed to her? A. No, sir.?’
This was certainly a transaction within the meaning of the rule of incompetency and one intended to be excluded by the terms of the statute, but, upon objection being made, the court specifically directed that he might only testify as to what he did, and to such question an answer was given. The original answer was not stricken out, but the trial was before the court and there could be nothing prejudicial under such circumstances.
Was there a delivery of the deed? That is the important question in this case. The trial court found there was no delivery, and therefore set the deed aside. The question of delivery is first a question of fact and then a question of law. In this case the facts concerning delivery of the deed are nearly all undisputed, as herein set out in detail. If the substantial and essential facts as to delivery are undisputed then it becomes a question of law.
“The question of the delivery of a deed is largely a question of intention, ordinarily to be determined by the jury or trial court as a question of fact, but when the facts are not controverted the question should be determined by the court as a question of law; and when the facts have been fully tried, leaving only questions of law to be decided, this court may direct the entry of a proper judgment — following Worth v. Butler, 83 Kan. 513, 112 Pac. 111.” (Hoard v. Jones, 119 Kan. 138, syl. ¶ 9, 237 Pac. 888.)
“Where'an issue was fairly tried after full opportunity had been afforded to present the case, and there was no accident or surprise nor any ruling causing a party to withhold his evidence, and all the facts appear to be fully presented by the evidence, leaving only questions of law to be decided, this court may, under the revised code, in the furtherance of justice, direct the entry of a proper judgment by the district court when the judgment of that court is reversed.” (Worth v. Butler, 83 Kan. 513, syl. ¶ 3, 112 Pac. 111.)
This court has frequently said the question of the delivery of a deed is largely a matter of intention, and intention is manifested by acts and words.
“ ‘What constitutes a sufficient delivery of a deed is largely a matter of intention, and the usual test is, Did the grantor by his acts or words, or both, manifest an intention to make the instrument his deed, and thereby divest himself of title?’ (Wuester v. Folin, 60 Kan. 334, 56 Pac. 490.)” (Doty v. Barker, 78 Kan. 636, syl. ¶ 1, 97 Pac. 964.)
Actions usually speak louder than words. They certainly do in this case — first, recording the deed, which obviated the necessity of a manual delivery; second, by letting the matter rest in that shape for more than thirty-three years before his wife died and approximately five years thereafter.
“The recording of the deed by the grantor made it effective as to all persons benefited by it who did not dissent.” (Miller v. Miller, 91 Kan. 1, syl. ¶ 5, 136 Pac. 953.)
“The execution, acknowledgment and recording of a deed raises a presumption of delivery, and the recording of the same with the accompanying circumstances justified the inference of the trial court that the deed had been delivered.
“The fact that after recording the deed it was placed and kept in the grant- or’s box in the vault of a bank does not necessarily negative the theory of a previous delivery, as the grantor had reserved a life estate to himself in the land conveyed.” (Conner v. Cole, 112 Kan. 517, syl. ¶¶ 2, 3, 211 Pac. 615.)
The keeping of the deed after recording it in this case in a box belonging to his wife, but in his possession and control, would not negative the delivery effected by the recording. What purpose could there be in keeping the deed after the record shows the transfer? It makes no difference how it happened to be recorded, whether by accident, mistake or fraud. There are only two ways to remedy the trouble — by getting a reconveyance from the grantee or by asking the’ court to set it aside. In this case there is no claim by the plaintiff, that he ever asked his wife for a deed during her life of thirty-three years after it was recorded, or thought it necessary to come into court for five years after her death, but he did offer to purchase the land from his wife. Counsel for appellee urge that the case of Bruce v. Mathewson, 97 Kan. 466, 155 Pac. 787, is decisive of this case, but there the recording was not done by the grantor, but was against his express orders and directions. The strong presumption of delivery in this case stands without anything to shake or disturb it or to show any different intention than a delivery. We think the undisputed facts in the case are in themselves sufficient to compel the conclusion of law thereon that there was a complete delivery.
“It is not necessary that there should be a manual delivery of a deed to make'it effectual. A constructive delivery or any words or acts showing an intention on the part of the grantor that the deed shall be considered as completely executed and the title transferred are sufficient.
“The recording of the deed in question, as well as other acts of the parties showing an intention of the parties to treat the instrument as a conveyance and as a passing of the title, are held to be sufficient proof of the delivery by the grantor and acceptance by the grantee.” (Kelsa v. Graves, 64 Kan. 777, syl. ¶¶ l, 2, 68 Pac. 607.)
The decision thus reached might very properly dispense with the necessity of considering the third assignment of error, viz., that the plaintiff is estopped by his unusually long delay in making any move to set aside the deed before or after her death, but there are two Kansas cases which are quite decisive in cases of such delajr without any good reason being assigned. In one of them it was only thirteen years that the grantor remained silent after recording the deed in favor of her minor child before she undertook to dispose of the land otherwise, and the court said: “The situation savors strongly of an estoppel, both as to Mrs. Smith and as to her would-be devisee by the will.” (Pentico v. Hays, 75 Kan. 76, 81, 88 Pac. 738.) The other case was one to declare a trust and recover certain real estate.
“Courts of equity seldom encourage speculations in stale and doubtful claims; they seldom encourage the overturning of settlements voluntarily made and long acquiesced in; they seldom encourage the disturbance of titles long vested, long enjoyed, and where all the parties for many years have acted as though they considered all questions with reference to titles as equitably settled and permanently at rest; and where many of the original parties and their witnesses have passed away, and much of their evidence in the meantime has been lost or destroyed; and where the titles can no longer be examined by courts of equity, or any courts, with that certainty of doing justice which could have been done at the beginning, while all the parties and their witnesses were living, and while all the evidence was fresh and easily to be obtained. Peace and repose are generally better in such cases than disturbance and turmoil.” (Yeamans v. James, 29 Kan. 373, syl. ¶ 5.)
The judgment of the district court is reversed and the cause remanded with directions to render judgment for the defendant in accordance with the views herein expressed. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action to quiet title, and it comes to this court as an appeal from a judgment denying plaintiff’s claim of interest in certain Ottawa county lands.
The main facts were these: Heretofore, one Knut J. Knutson, late of Saline county, died testate, devising a life estate in real and personal property with power of diminution to his wife, and providing that after her death his executors should convert all his remaining property into money and divide it as follows: To his four daughters, Hannah, Ella, Hilda and Sophia, 19 per cent each; and to the plaintiff as follows:
“Ninth: I give and bequeath to my son, Knut William Knutson ten (10) per cent of all such proceeds and money.”
To another son, Carl, the devise read:
“Eighth: I give and bequeath to my son, Carl Johan Knutson, fourteen (14) per cent of all such proceeds and money, and I do hereby direct that my executors invest said bequest, bequeathed to Carl Johan Knutson, in real estate, buying as many acres of good farm land in Saline county, Kansas, as said bequest can buy, and deed the same to my said [son] Carl Johan Knutson, for his sole use and benefit during the term of his natural life and providing in the deed therefor that if my said son Carl Johan Knutson die leaving children, then said land shall go to and become the property of his children; but if he dies leaving no children, then the said land shall go to and become the property of my heirs and assigns then living, to be divided equally.”
The testator outlived his wife, so that on his death, on May 27, _ 1918, the executors (one of whom was this defendant) took charge of his estate and administered it. Certain Ottawa county lands were purchased for Carl and title was eventually vested in him in literal accord with the terms of his father’s will.
Shortly after his father’s death, this plaintiff, for a valuable consideration executed to defendant’s assignor, the following instrument:
“Assignment.
“Know all men by these presents, That whereas, Knut J, Knutson, late of Saline county, Kansas, deceased, leaving and bequeathing unto me by and under his last will and testament certain per cent and share of all his money and of all his real property after same having been converted into money; and
“Whereas, In consideration of $1 and other valuable consideration to me paid by C. J. Anderson, the receipt whereof is hereby acknowledged, do hereby sell, assign, transfer and deliver all my right, title and interest of all money and property due or coming to me under the last will and testament of my father, Knut J. Knutson, unto the said C. J. Anderson, her executors, administrators and assigns forever.
“In witness whereof, I have hereunto set my hand this 23d day of July, 1918.
“Knut William: Herman,
“formerly Knut William Knutson.
“Acknowledged . . . Notary Public.”
On June 11, 1922, plaintiff’s brother, Carl Johan Knutson, died single, intestate, and without issue. The controlling question in this lawsuit was whether the assignment conveyed plaintiff’s interest in the Ottawa county lands purchased for Carl, or whether it only conveyed the ten per cent interest specifically apportioned and bequeathed to plaintiff in the ninth paragraph of his father’s will. All these matters were comprehensively stated in plaintiff’s petition. ■Defendant’s demurrer thereto was sustained, and this ruling is assigned as error.
Plaintiff contends that his assignment of July 23, 1918, set out-above, was not susceptible of an interpretation that it conveyed anything except the ten per cent interest specifically bequeathed to him, and that his future contingent interest in the lands purchased by the trustees for the benefit of Carl did not pass to defendant’s assignor by that instrument.
There was no evidence in this case; it'went out on a demurrer; plaintiff’s petition did not allege that the assignment contained a mutual mistake, nor did plaintiff ask to have it reformed. Plaintiff’s petition cannot be strengthened by intimation of illegality gratuitously and exclusively volunteered in plaintiff’s brief. Discussing the assignment his brief proceeds thus:
“There was nothing to prevent the appellee, Alex Hederstedt, when he went to Illinois to purchase for himself the interest of appellant in his father’s estate, from describing in the instrument which he secured from appellant any interest which appellant might subsequently acquire under the eighth paragraph of the will, at least to such an extent that an intention to assign such interest could be inferred from the language used, so as to purge himself from the justifiable suspicion which must now exist, that he not only did not intend to describe such interest, but that he deliberately refrained from so describing it. It would have been very simple for him to use, in a very few words, language sufficient to express such an intention, in such a way that appellant would have been advised of what he was being requested to sign and in such a manner that appellees would not now be required to rely upon technical constructions of such simple words as ‘due’ or ‘coming.’ ”
Perhaps so. But neither was there anything to prevent this plaintiff from alleging in his petition that the defendant, in acquiring title to plaintiff’s interest in this property, committed a breach of his duty as executor. Nothing to that effect is alleged nor is it claimed that the assignment or any part of it is void on that account. Indeed, it was conceded below, and not denied here, that ' the assignment is valid so far as it purported to convey plaintiff’s interest under the ninth paragraph of his father’s will. His contention below was not that the assignment of his interest under paragraph eight was void because of the rule forbidding executors to acquire a personal interest in the estate under their charge, but merely that by the terms of the instrument itself plaintiff’s interest in the lands purchased by the executors did not pass by the assignment.
One of plaintiff’s contentions is that the title to the land purchased by the executors vested in Carl absolutely, regardless of the directions of the will under which the purchase was made, and regardless of the terms of the conveyance which conformed thereto; and that in consequence this plaintiff and his four sisters succeeded to the title as heirs of Carl. We think not. To look no further than the deed itself, the grant was to Carl and to his children if he had such; but failing such, there was a grant over to the other heirs of the father or their assigns living at Carl’s death. The text of the father’s will is clear. It provides for a life interest in Carl in whatever lands the executors should buy for Carl’s benefit, and the will directed that the deed of purchase should also provide that failing issue of Carl—
“Then the said land shall go to and become the property of my heirs and assigns then living.”
The granting clause of the deed recites:
“But if he [Carl] die leaving no children, then said real estate shall go to and become the property of the heirs and assigns then living of K. J. Knutson ... as provided in the eighth section of . . . [his] last will and testament.”
It will be noted that the will and deed both contemplated the possibility that “assigns” of the heirs of the testator might be concerned in the property purchased for Carl’s benefit.
The assignment of 1918 under which defendant claims cannot be fairly limited to mean that only the interest bequeathed in the ninth paragraph of the father’s will passed to the assignee. In literal terms the plaintiff assigned “all my right, title and interest of all money and property due or coming to me under the last will and testament of my father, Knut J. Knutson.” Not his interest under the ninth paragraph alone, but all his interest, which included his interest under the eighth paragraph as well. There is a rule of law — and we have local statutes to the same effect — that when property is the subject of a devise or grant, all the legal and equitable estate of the testator or grantor pertaining thereto shall be construed to pass unless by express reservation or by necessary implication an intention to dispose of a less estate shall clearly appear. (R. S. 22-258; 67-202; 77-201, subdiv. 8; 5 C. J. 944.)
In Miller v. Miller, 91 Kan. 1, 4, 136 Pac. 953, it was said:
“The words ‘conveyances of land,’ mean, of course, the land itself in fee simple absolute. The words, ‘any other estate or interest therein,’ include estates of freehold and less than freehold, of inheritance and not of inheritance, absolute and limited, present and future, vested and contingent, and any other kind a grantor may choose to invent, consistent, of course, with public policy.”
It must therefore be held that the assignment conveyed the interest of plaintiff under the eighth paragraph of his father’s will and also under the terms of the deed, so far as the matter is governed by the language of the assignment; but the question remains whether plaintiff had an assignable interest under the eighth paragraph of his father’s will when that assignment was executed, July 23, 1918. Carl did not die until four years thereafter. If he had married and had left children, they would have taken the property purchased by the executors under the eighth clause of the will. So by the terms of the will, and of the deed also, plaintiff was only a contingent remainderman. Can one who holds only a contingent interest in property sell and convey that interest to a stranger? By the old law and the old decisions he could not do so. (5 C. J. 852; Kales Estates, Future Interests, 2d ed., §§ 96, 320.) However, elsewhere in Mr. Kales’ valuable treatise it is said:
Ҥ 369. Equity was not satisfied with the feudal distinction between reversions and vested remainders on the one hand and contingent remainders on the other as a test of alienability or inalienability. It was unwilling that all transfers of reversions and vested remainders should be given effect. It was equally unwilling that all transfers of contingent remainders should fail. Accordingly it developed its own rules for setting aside transfers or reversions and vested remainders and for giving effect to transfers of contingent remainders.
Ҥ 371. ... So far as alienability is concerned, one is from a modern rationalistic point of view, the same as the other. Barring the rule of destruetibility, one is as uncertain to take effect as the other. Yet by the feudal land law one is alienable and the other is not. Whatever policy there may be in favor of safeguarding the holders of contingent remainders by continuing the rule of inalienability, applies equally to the defeasible vested remainder.
“§ 374. The expectancy of one as the heir of a living person may be released to the ancestor and in equity such a release will be enforced for the benefit of the other heirs. The expectancy of such an heir is assignable in equity to a stranger who may upon the death of the ancestor maintain a bill for specific performance to compel a conveyance. ... It should not be open to doubt that in Illinois the attempt to transfer, upon a proper consideration and where there were no elements of unfairness, a contingent remainder, would operate as an assignment in equity and that specific performance would be given when the remainder vested.” (See, also, extended notes in 33 L. R. A. 266 et seq.; 17 A. L. R. 601 et seq.)
It is no longer open for debate in this jurisdiction that any sort of right or interest in property, vested or contingent, may be the subject of legitimate barter and sale, unless such a construction of the right or interest would be subversive of the clear intention of the testator or grantor through whom the right or interest is derived. (Clendening v. Wyatt, 54 Kan. 523, 38 Pac. 792; Miller v. Miller, supra; Markham v. Waterman, 105 Kan. 93, 181 Pac. 621; Miller v. Sooy, 120 Kan. 81, 242 Pac. 140; Platt v. Woodland, 121 Kan. 291, 246 Pac. 1017; 5 C. J. 851, 854, 855; 2 R. C. L. 606; 1 R. C. L. Supp. 586.)
One feature of Clendening v. Wyatt, supra, is particularly analogous to the one now before us. By the terms of a certain instrument, Clendening and wife quit-claimed “his undivided portion of what he may be entitled to of his mother’s estate, to the said Augustus Wyatt, his heirs and assigns.” In upholding this quit-claim conveyance, the court said:
“It is manifest, however, from the language used that Clendening was bargaining about a future interest which he did not possess at the time, and which he expected to acquire at the death of his mother. In the latter part of the contract it is recited, that ‘the said John Clendening and Kate, his wife, do hereby (in consideration as above), release, remise and forever quit-claim to his undivided portion that he may be entitled to of his mother’s estate to the said Augustus Wyatt, his heirs and assigns.’ He had no interest in the land at the time the contract was made. His mother was then alive, and from the face of the contract it distinctly appears that he was contracting away the undivided and future interest which he expected to acquire from his mother’s estate at the time of her death. There is a specific description of the land in controversy in the contract, showing that the property now sought to be reuovered was within the contemplation of the parties when the contract was made. Such a contract, based upon ample consideration, honestly and fairly made, with one who is capable to contract, may be enforced in equity.” (p. 526.)
In Markham v. Waterman, supra, it was said:
“Of course, one who acquires a remainderman’s interest in property . . . may get little or nothing for his bargain. He may acquire it, however, for no rule of public policy is violated in such a transaction.” (p. 98.)
In view of what has been said and quoted above this court is bound to hold that the interest of plaintiff in the lands purchased by the executors for the benefit of plaintiff’s brother Carl in conformity with paragraph eight of the father’s will-was a legitimate subject of a bargain and sale between plaintiff and defendant’s assignor, at the time the assignment was made in 1918; and that interest passed by the fair import of the language of that assignment.
The other arguments urged against the judgment have been duly considered, but suggest nothing to warrant further discussion.
The judgment is affirmed.
Burch, J., not sitting. | [
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The opinion of the court was delivered by
Hopkins, J.:
The question presented here is whether a petition to recover from the indorser of a nonnegotiable promissory note stated a cause of action. A demurrer to plaintiff’s petition was sustained, and plaintiff appeals.
The petition had attached a copy of the note in question which stated upon its face that it was for 133 shares of the Farmer’s Oil, Ice and Supply Company, of Maxwell. It was executed.by George T. Dinsmore and payable to Adamson. On the back it was indorsed, “B. E. Adamson, A. W. Smith. Without recourse.” The statute provides that—
“It shall be unlawful for any person to take within this state any obligation or promise in writing for which the shares of capital stock of any corporation or the units or shares of any association, syndicate, or common-law trust, or any interest of any kind in any such corporation, association, syndicate or common-law trust, shall form the whole or any part of the consideration, unless, before such obligation or promise in writing is signed by the maker or makers thereof, the person taking or accepting such obligation or promise in writing shall insert in the face thereof above the signature of the maker or makers in plainly legible wilting or print the words, ‘Given for shares in-,’ ‘Given for units in-,’ or ‘Given for interest in-,’ whichever designation shall be suitable to indicate clearly the share or interest for which said obligation or promise in writing is given, and the person taking or accepting the same shall insert in the blank, as above indicated, the name of the corporation, association, syndicate or common-law trust, the shares or units of which or interest in which shall form the whole or any part of the consideration as aforesaid.” (R. S. 17-1219.)
Also, that—
“Any such obligation or promise in writing with the words as provided in section 1 hereof shall be nonnegotiable and subject to all laws governing nonnegotiable commercial paper.” (R. S. 17-1220.)
The intent and meaning of the legislature in passing the above statutes is clear. There can be no question but that the intention was to make a note containing the statement that it was given for certain shares of stock in a corporation, nonnegotiable and subject to all laws governing nonnegotiable commercial paper.
The trial court in a written opinion sustaining the demurrer based its ruling on the statutes quoted and the rule enunciated by this court in Ironworks v. Paddock, 37 Kan. 510, 15 Pac. 574, holding that if a note is nonnegotiable, its indorsement and delivery have the effect of an assignment only; that such indorsement and delivery only transfers the title of the party, and does not render him liable upon his indorsement as if the .note were a negotiable instrument; that such indorsement simply guarantees the note to be genuine and what it purports to be and nothing more. The rule and the liability of an indorser of a nonnegotiable instrument is discussed in 8 C. J. 57, 58, where it is stated that there is much conflict in the decisions. In Foley v. Hardy, 119 Kan. 183, 185, 237 Pac. 925, 42 A. L. R. 1064, this court cited the Paddock case, supra, and stated that “if a note is nonnegotiable its indorsement and delivery have the effect of an assignment.”
“The effect of the indorsement of a nonnegotiable instrument is to transfer the title — it does not create the statutory contract of an indorser provided by the negotiable instruments law.” (Foley v. Hardy, 122 Kan. 616, 619, 253 Pac. 238, and cases cited.)
The question needs no further elucidation. The ruling of the trial court was correct.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Lockett, J.:
Appellant James M. Bauer, a tenured teacher certified to teach social science, power mechanics, general shop, and metals, who had taught general shop and metals for seven years for U.S.D. 452, was nonrenewed by the Board of Education (Board) due to a reduction in force. A nontenured teacher was hired to teach social science and physical education. Bauer claimed that, because he was certified to teach social science, he was improperly terminated by the Board. The district court affirmed the Board’s decision and Bauer appealed. In an unpublished opinion filed March 24, 1988, the Court of Appeals affirmed the district court, determining that “certified” is not synonymous with “qualified.” Therefore, although Bauer was certified, he had not shown that he was qualified to teach social science. We granted review and reverse.
From July 1, 1980, through September 30, 1985, Bauer was certified by the State Board of Education to teach social science, power mechanics, general shop, and metals. A subsequent certificate was issued by the State Board of Education, valid October 1, 1985, through September 3, 1991, for the same subjects. For seven years, Bauer taught auto mechanics and metal shop classes in U.S.D. 452 at Stanton County High School and a small engines class at the district’s junior high school. Although certified to teach junior high social science, Bauer had never taught social science. His total teaching experience, as well as his work experience outside of teaching, was in the field of industrial arts.
Because the 1985 pre-enrollment forms indicated a decline in projected student enrollment in the auto mechanics class, the Board decided not to offer the class. Since Bauer’s remaining classes could be taught by the district’s other industrial arts teacher, who had more seniority than Bauer, the Board voted 7-0 not to renew Bauer’s contract.
The minutes of the Board’s meeting do not reflect any discussion of Bauer’s contract. The resolution adopted by the Board merely stated that the reason for Bauer’s termination was “reduction in force.” At the same meeting, the Board also nonrenewed a junior high school teacher, who was certified to teach social science and physical education. Later, the Board hired an outside nontenured teacher, certified to teach social science and physical education, for the junior high position. Although Bauer was certified to teach social science, the Board never considered Bauer for the social science position.
After he was notified of the reduction in force nonrenewal action, Bauer requested a due process hearing pursuant to K.S.A. 72-5436 et seq. claiming that: (1) the pre-enrollment figures were not correct; (2) without the Board’s approval, the administration had no authority to change the course of study; and (3) the Board did not follow its own policy regarding reduction in force sitúa tions when it terminated Bauer and hired a nontenured teacher to teach a subject that Bauer was certified to teach. This claim was based on the Board policy, titled “Reduction in Professional Staff Work Force,” which states in part:
“1. Teachers not holding a regular Kansas certificate will be terminated first, provided there are teachers who are fully qualified and fully certificated to replace and perform all of the assigned duties of the terminated teachers.
“2. A second step in the reduction of staff, provided all teachers in the areas subject to reduction are fully qualified and fully certificated, would be to review teachers who have exhibited questionable performances as determined by the building principal.
“3. The reduction of staff should be by departments within the school system whenever possible. Should the need arise to reduce the staff in a specific field where all are extremely competent, it may be advisable to reduce the staff in a related field within the same department and transfer the competent instructor to the related field position to strengthen further the department’s staff.
“4. If further reduction is still necessary, then teachers with the least number of years of continuous teaching experience in Unified School District 452 will be terminated first, provided there are fully qualified, fully certificated teachers to replace and perform all the needed duties of the terminated teachers.”
A three-member hearing panel voted 2-1 to uphold the Board’s decision. The dissenting member of the panel recognized that “[t]he burden of proof in these matters rests squarely with the Board (K.S.A. Supp. 1979, 72-5442) and the decision must be made based on substantial evidence (K.S.A. Supp. 1979, 72-5439 [f])”, then agreed with all of Bauer’s claims stating, in part, that hiring a new teacher to teach a subject in which Bauer was certified violated the school’s reduction in force policy. Because the hearing panel decision was not unanimous, the Board was required to consider the opinion of the panel. K.S.A. 72-5443(c). After considering the panel’s opinion, the Board voted unanimously to nonrenew Bauer.
Bauer appealed to the Stanton County District Court. After reviewing the evidence of the decrease in enrollment in Bauer’s classes, the district court found that (1) there was substantial evidence presented by the Board at the due process hearing to nonrenew Bauer’s contract, and (2) the Board had acted properly by nonrenewing the contract.
Bauer appealed. The Court of Appeals affirmed the district court, holding that under Coats v. U.S.D. No. 353, 233 Kan. 394, 662 P.2d 1279 (1983), certification by the State Board of Educa tion is not synonymous with qualification. The Court of Appeals believed that Bauer, in order to have priority over the nontenured teacher for the social science position, had the burden to show that he was both “certified” and “qualified” to teach social science. The Court of Appeals found that Bauer had merely shown that he was certified; therefore, his nonrenewal was proper. The Court of Appeals’ reasoning placed the burden on Bauer to prove that he was qualified to teach social science, even though K.S.A. 72-5442 places the burden to prove Bauer was not qualified upon the Board. We granted review.
Tenure protections are set out in the Teacher Due Process Act, K.S.A. 72-5436 et seq. The purpose of the Tenure of Instructors Act (G.S. 1949, 72-5401 et seq., repealed L. 1974, ch. 301, § 11) and its successor statute, die Teacher Due Process Act “ ‘is to protect competent and worthy instructors and other members of the teaching profession against unjust dismissal of any kind— political, religious or personal, and secure for them teaching conditions which will encourage their growth in the full practice of their profession, unharried by constant pressure and fear, but it does not confer special privileges or. immunities upon them to retain permanently their positions or salary, nor permit their interference with the control or efficient operation of the public school system; and, notwithstanding it grants tenure to those who have taught the requisite period, it nonetheless empowers Boards of Education to discharge them for just cause in an orderly manner by the procedures specified.’ ” Gillett v. U.S.D. No. 276, 227 Kan. 71, 76, 605 P.2d 105 (1980), (quoting Million v. Board of Education, 181 Kan. 230, 310 P.2d 917 [1957]).
The statutory protections of the Act are conferred upon teachers who have successfully completed the required number of years of employment in a school district. See K.S.A. 72-5445. This statutory distinction demonstrates legislative intent to grant tenured teachers substantive rights in their continued employment that are not granted to nontenured teachers.
In order to terminate or nonrenew the employment contract of a tenured teacher, a board of education must follow the procedures set out in K.S.A. 72-5436 et seq. A tenured teacher may be terminated or nonrenewed only if good cause is shown. The board of education’s decision to terminate or nonrenew a tenured teacher must be made in good faith and not be arbitrary, irrational, unreasonable, or irrelevant to the school board’s task of building up and maintaining an efficient school system. Gillett v. U.S.D. No. 276, 227 Kan. at 78.
In his petition for review, Bauer did not challenge the Board’s determination of the necessity for a reduction in force in the industrial arts teaching staff. He claimed that, under the Teacher Due Process Act and Coats v. U.S.D. No. 353, 233 Kan. 394, the Board’s method used to accomplish the reduction in force Was arbitrary and capricious because (1) being certified to teach social science, he should have been considered a viable candidate for the junior high social science position, and (2) the Board improperly determined that the social science vacancy had to be filled by a teacher certified in social studies and physical education.
The Board counters that Coats requires a tenured teacher to be both certified and qualified for a position before being given preference over a nontenured teacher. Therefore, the Board contends, even though Bauer was certified to teach social science, since he had no experience teaching social science, he was not “qualified” for the position and his nonrenewal should be affirmed.
The Court of Appeals, in interpreting our decision in Coats v. U.S.D. No. 353, stated:
“Coats communicates the messages that, in eases such as the one before us, preference is to be afforded to teachers who are tenured, certified, and qualified; that ‘qualified’ is not the equivalent of ‘certified’; and that ‘qualified’ is something other and more than ‘certified.’ This is contrary to Bauer’s argument that ‘certified’ and ‘qualified’ are equivalent.
“In view of the fact that Bauer has not been shown to be other and more than ‘certified’ to teach social studies, we find ourselves compelled by Coats to conclude that on appeal it has not been established that the decision of the district court was erroneous as a matter of law.”
In Coats, we considered the statutory protections of a tenured teacher when there is a reduction in force by a board of education. Coats, a tenured teacher in the Language Arts Department at Wellington Senior High School, was certified by the State Department of Education to teach composition, grammar, and literature in both senior and junior high schools. Coats taught a variety of English courses and served as chair of the Language Arts Department. Due to an enrollment decline in the senior high school, the school administration decided to reduce force in the language arts department. Because Coats had the least seniority of the four senior high English teachers not teaching specialized areas of language arts, her contract was not renewed. Junior high English teachers were not considered for nonrenewal to reduce the force because the school board considered the high school teachers, though certified, unqualified to teach in junior high.
After reviewing case law from other jurisdictions involving nonrenewal of tenured teachers in reduction in force situations, we held that, under Kansas statutes in such cases, school boards should first conduct a good faith examination of the competence, interest, and training of all teachers in the area where the reduction of staff is to occur. Where there are tenured and nontenured teachers in the department and all are qualified, the nontenured teachers should be the first terminated. 233 Kan. at 401-02.
Since Coats was clearly certified and qualified, left unanswered was whether, in all reduction in force nonrenewal cases, certification by the State Board of Education in a subject which the tenured teacher is not currently contracted to teach entitles that tenured teacher to preference over a nontenured teacher in that subject. The Court of Appeals interpreted our language in Coats to hold that, in reduction-in-force nonrenewal cases, preference is to be afforded teachers who are certified and qualified, and that “qualified” is something other and more than certified.
What the Court of Appeals failed to recognize is that, prior to nonrenewing Bauer’s contract, the Board had made no determination regarding Bauer’s qualifications to teach the social science courses. When aboard of education seeks to nonrenew a tenured teacher’s contract in a reduction in force situation, it must examine the teacher’s competence, interest, and training on the record. The due process act protects tenured teachers from dismissal without good cause. Coats, 233 Kan. at 401-02. Good cause must be supported by substantial evidence and the burden of proof is on the Board. K.S.A. 72-5442; Schmidt v. U.S.D. No. 497, 231 Kan. 267, 269, 644 P.2d 396 (1982). Absent good cause, shown on the record, a tenured teacher will be given preference in filling vacancies. Coats, 233 Kan. at 402.
In addition, the Court of Appeals did not consider the broad authority granted to the State Board of Education by the Kansas Constitution and statutes. Kan. Const, art. 6, § 2 provides the State Board of Education with broad supervisory authority over the public school system and local boards of education, specifically:
“The legislature shall provide for a state board of education which shall have general supervision of public schools, educational institutions and all the educational interests of the state . . . .”
K.S.A 72-1394(a) and (b) provide in part:
“(a) The state board of education shall prescribe an examination designed to insure that certification of a person as a teacher is a reliable indicator that the person has the basic knowledge and qualifications necessary to engage in the profession of teaching in this state.
“(b) In order to comply with the requirements of subsection (a), the state board of education shall select an examination which will measure the basic knowledge and qualifications of applicants for certification as teachers and shall provide for administration and validation of the examination.”
Further, K.S.A. 72-1388 provides that the State Board of Education has the sole authority to set standards for the issuance of certificates to teach in the State of Kansas:
“(a) The state board of education, in accordance with law, is authorized to adopt rules and regulations providing for the issuance, renewal, reinstatement and registration of certificates for teachers and other personnel in the state department of education and in schools and institutions under the general supervision of the state board of education.
“(b) In addition to other requirements ... ,the rules and regulations of the state board of education shall include after May 1, 1986, the requirement that applicants for initial issuance of certificates to teach shall take and satisfactorily pass an examination prescribed by the state board.”
Similar legislative intent is found in K.S.A. 72-1381, which provides that the State Board of Education, upon being satisfied as to the general qualifications of an applicant, may issue a special certificate specifying the subjects that the holder of the certificate is authorized to teach.
Our constitution and the legislative enactments support Bauer’s contention that the grant of a certificate from the State Board of Education inherently carries with it a presumption of competence, interest, and training in the subjects designated. The certificate indicates that the teacher has completed a prescribed course of study and successfully passed an examination designed to determine the teacher’s fitness and qualifications to teach in the particular area. Every teacher is entitled to rely on his or her certificate as substantive proof of the teacher’s qualifications to teach the subjects endorsed.
The State Board of Education is statutorily the only agency authorized to set standards for teacher certification. Certification by the State Board of Education, rather than subjective qualifications set up by each local school board, determines that a teacher is qualified to teach the subjects endorsed on the teaching certificate. When a teacher is “certified,” a rebuttable presumption exists that the teacher is “qualified.” It then becomes the burden of the school board to establish the nonexistence of the presumption by substantial evidence.
The Board further argues that Coats should not apply where the vacant position is in a different “department” than the one in which the reduction in force occurs. In oral argument, the Board stated that teachers are only tenured in the departments in which they were contractually hired to teach. The Board cited no authority for this proposition and there appears to be none. State law does not recognize or require schools to divide into departments; schools may determine whether or not to have departments.
Further, the Board’s argument ignores the fact that teachers can become certified in more than one subject in order to protect themselves from loss of employment and to increase their marketability. There is substantial authority for the proposition that, having completed the certification process, the teacher is entitled to consideration for all positions for which he or she is certified. In Massey v. Argenbright, 211 Mont. 331, 683 P.2d 1332 (1984), the Supreme Court of Montana held that the appellant, a business education teacher also certified in physical education, should not have been terminated due to a reduction in force in the business education department, but instead should have been hired in place of nontenured teachers in the physical education department. 211 Mont, at 337. See Berland v. Special Sch. Dist. No. 1, 314 N.W.2d 809 (Minn. 1981).
The Board cites a number of cases which state that a school board must have some discretion to shape the curriculum and define teaching positions. We agree with this proposition. However, none of the cited cases raised the issue of the nonrenewal of a tenured teacher and the subsequent hiring of an outside nontenured teacher to teach subjects for which the tenured teacher was certified to teach.
As we held in Coats, we reject the argument that the school board has absolute discretion to nonrenew whomever it wishes in reduction in force situations. In each case, the statutorily mandated due process protections for tenured teachers require the school board to conduct a good faith examination of the competence, interest, and training of all teachers in the area where the reduction in staff is to occur. Where there is a need for a reduction in force, before a tenured teacher can be nonrenewed, the Board must conduct a good faith examination into all areas in which the tenured teacher is certified. Where there are vacancies in areas in which the tenured teacher is certified, absent good cause, the tenured teacher should be placed in that position. This procedure ensures a fair and equitable decision for the teacher, while allowing school boards the discretion to shape a quality education program for their students.
It appears from the record that the Board was totally unaware that Bauer was certified to teach social science until it considered the findings of the due process panel. Ignoring Bauer’s dual certification and the panel’s findings, the Board failed to consider him for any full- or part-time positions for which he was certified. In addition, the Court of Appeals did not recognize that the Board neither considered Bauer’s social science certification when his contract was nonrenewed nor determined that Bauer was not qualified to teach social science when it considered the due process panel’s findings. Bauer was nonrenewed without good cause.
The Board argues that Bauer was not qualified for the vacant position because he was not certified for both social science and physical education. Bauer contends that the social science position did not include physical education classes. He argues neither of the two junior high social science teachers taught any physical education classes, although they apparently undertook some coaching duties. The only evidence in the record supporting the Board’s argument is one statement by the school superintendent that the replacement “needed” to be someone certified to teach physical education. The record is devoid of any evidence to support the Board’s assertion that the social science position included physical education teaching. The only connection to physical education was a need for someone to assume coaching duties.
By statute, duties such as coaching are considered supplemental and not part of a teacher’s primary contract of employment. K.S.A. 72-5413(o). K.S.A. 72-5412a provides:
“The board of education of any school district may enter into a supplemental contract of employment with any employee of the district. As used in this section ‘supplemental contract’ means a contract for services other than those services covered in the principal or primary contract of employment of such employee, and shall include but not be limited to such services as coaching, supervising, directing and assisting extra curricular activities, chaperoning, ticket taking, lunch room supervision and other similar and related activities. The provisions of article 54 of chapter 72 of Kansas Statutes Annotated which relate to the continuation of teacher contracts and to the due process procedure upon termination or nonrenewal of a teacher’s contract do not apply to any supplemental contract of employment entered into under this section.”
In Hachiya v. U.S.D. No. 307, 242 Kan. 572, 750 P.2d 383 (1988), we held that the provisions of K.S.A. 72-5412a are mandatory and require that the duties enumerated, as well as similar and related activities, are to be performed under a supplemental contract. The statute prohibits a school district from requiring supplemental duties, such as coaching, as part of a teacher’s primary contract. Therefore, a teacher is not required to accept such supplemental duties as part of his or her primary contract of employment. 242 Kan. 572, Syl. ¶ 1. See U.S.D. No. 241 v. Swanson, 11 Kan. App. 2d 171, 717 P.2d 526 (1986); Swager v. Board of Education, U.S.D. No. 412, 9 Kan. App. 2d 648, 688 P.2d 270, rev. denied, 236 Kan. 877 (1984).
Underlying our decision in Hachiya is the concern that including duties such as coaching in a teacher’s primary contract of employment would interfere with the teacher’s right to be free from coercion or intimidation in his or her decision to accept such supplementary duties. 242 Kan. at 578. This same concern applies in this case and leads us to conclude that the Board’s requirement of coaching duties for the social science position was an impermissible joining of primary and supplemental contracts.
The judgments of the Court of Appeals and the district court are reversed. The case is remanded with an order to reinstate James M. Bauer and to determine the amount of back pay owed. The back pay is to be determined by the salary to which Bauer would have been entitled had he taught the social science classes taught by the nontenured teacher hired by the Board.
Six, J., not participating. | [
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The opinion of the court was delivered by
Lockett, J.:
Defendant, Robert C. DeMoss, appeals his convictions of two counts of kidnapping, one count of aggravated assault, one count of aggravated burglary, and one count of criminal damage to property, contending the trial court erred by: (1) failing to give a diminished capacity instruction; (2) giving an instruction on temporary insanity; and (3) giving a voluntary intoxication instruction that precluded the jury from considering evidence of post-traumatic ^tress syndrome. After reviewing the evidence, we find that the instructions given fairly stated the law and did not mislead the jury. We affirm.
Brenda DeMoss and defendant, Robert DeMoss, were married in August of 1982 and divorced in June of 1986. Brenda was employed at Leland Anderson Construction. Because DeMoss had threatened to kill Brenda and everyone who worked with her, Leland Anderson procured a restraining order in June 1986, prohibiting DeMoss from harassing Brenda at her home or place of employment. On July 23, 1986, DeMoss purchased a rifle and then drove from Lawrence, Kansas, to the Leland Anderson Construction office in Topeka, Kansas.
When DeMoss arrived at the officé, he was armed with a rifle and a clip containing eighteen rounds. He also carried a bottle of cognac. Once inside, DeMoss ordered Brenda to go to the office of Carol Scroggins, another employee, where he pulled the phone out of the wall and then forced the two women into the bathroom. A short time later, he moved Brenda from the bathroom into a break area. DeMoss talked about Vietnam, and said it was “judgment day.” DeMoss stated he would shoot Leland Anderson in the head, then shoot Brenda in the head, and finally shoot himself in the heart. After Carol Scroggins joined DeMoss and Brenda in the break room, the three proceeded to the file room where DeMoss either fell asleep or passed out. The two women took the rifle from DeMoss, then went to the office next door and called the police. When the police woke DeMoss, he appeared confused and disoriented.
DeMoss was charged with two counts of kidnapping, and one count each of aggravated assault, aggravated burglary, and criminal damage to property. At trial, DeMoss relied upon the defense of insanity and presented testimony of Dr. James B. Horne, a psychiatrist.
Horne, who examined the defendant after the incident, testified that the defendant suffered from post-traumatic stress disorder (P.T.S.D.), associated with his service as a Marine in the Vietnam War. Horne explained that symptoms of the disorder include: (1) a tendency to reexperience the prior traumatic events through nightmares or daytime reveries; (2) physical symptoms such as hyperactivity, paranoia, and insomnia; and (3) vulnerability to alcohol and drug abuse. When asked how P.T.S.D. related to crime, Dr. Home stated that veterans suffering from P.T.S.D. tend to revert to a combat mentality when they feel helpless and trapped. Horne diagnosed the defendant as also suffering from episodic alcohol abuse and cocaine abuse. Horne noted that defendant’s alcohol abuse antedated his military service in Vietnam.
Horne testified that, in his opinion, these diagnoses would constitute a mental disease or defect. He further testified: “I think that the most decrippling or disturbing or the most potent condition is the post-traumatic stress disorder, and that’s why I listed it first.” However, as to DeMoss’ mental state at the time the crime was committed, Horne stated: “The main factor in crime alleged was alcohol intoxication, acute, with blackout, sleep deprivation. P.T.S.D. contributed to extreme behavior.” On cross-examination, Horne admitted that both P.T.S.D. and alcohol intoxication contributed to the crime, but that on July 23, 1986, DeMoss was legally insane due to alcohol intoxication. Dr. Horne further testified that DeMoss had neither the capacity to understand what was going on at the time of the incident nor the ability to differentiate reality from unreality. Horne testified further:
“Q. Dr. Horne, if I understand you correctly, without the alcohol intake by the defendant, you don’t think he would have—he would have done this act on July 23, 1986?
“A. Right.
“Q. Without the alcohol, he wasn’t insane; was he?
“A. Right.
“Q. What were his symptoms of post-traumatic stress disorder on July 23, 1986?
“A. The, ah, the tremendous sense of injury and betrayal by a wife who had divorced him, the thinking of grabbing a gun and shooting people whenever he feels hurt or injured or made helpless, ah, the making threats, violent threats, I am going to kill you, you so-and-so and so-and-so is real standard but very rare to be actually carried out by any of our guys when they are actually sober.”
At the conclusion of the introduction of evidence, the jury was instructed on the defense of insanity and on voluntary intoxication, and was further instructed that temporary insanity was not a defense if caused by voluntary intoxication. Defense counsel objected only to the last instruction. DeMoss was found guilty of all charges.
In order to understand the issues raised by DeMoss on appeal, a brief discussion of the nature of P.T.S.D. is required. The American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders § 309.89, 247 (3d ed. rev. 1987) (hereinafter cited as DSM III-R) classifies P.T.S.D. as an anxiety disorder. This disorder is one which may be suffered following a traumatic event which is outside the normal realm of human experiences. These events, known as “stressors,” include both natural disasters and deliberate man-made disasters such as military combat, rape, assault, torture, bombing, and death camps. .Stressors of human origin, such as war and military combat, produce more severe and longer lasting disorders than do natural disasters.
Perhaps the best known symptom of P.T.S.D. is the reexperiencing of the traumatic event, which can occur either through recollections of the event, recurrent dreams of the event, or a sudden acting out or feeling that the traumatic event is actually occurring at the moment. This last possibility is known as a “dissociative state” and is the rarest symptom of P.T.S.D., occurring only in extreme cases. Dreams and recollections are far more common.
Additional symptoms include numbing of responsiveness to, or involvement in, the outside world; hyperalertness or exaggerated startle response; sleep disturbances; guilt about the person’s own survival or about the tactics which the person used in order to survive; memory impairment and difficulty concentrating; and avoidance of activities which may cause the person to recall the stressful event. Any and all symptoms may also be intensified by exposure to events which resemble the stressor. This becomes particularly important in terms of the dissociative state and criminal behavior. Other problems associated with P.T.S.D. which become significant when viewed in the context of criminal behavior are the person’s tendency toward increased irritability, impulsive behavior, and unpredictable explosions of aggression with little or no provocation. DSM III-R at 247-51.
We observe that, in the majority of reported cases where a Vietnam War veteran has pled insanity or relied on a diminished capacity defense based on P.T.S.D, the defendant has claimed he experienced a dissociative state at the time of the crime, during which he believed he was back in Vietnam. See State v. Felde, 422 So. 2d 370 (La. 1982) (defendant claimed he believed he was in North Vietnam when he shot a Shreveport, Louisiana, police officer); Miller v. State, 338 N.W.2d 673 (S.D. 1983) (defendant escapee from prison work farm testified he believed he was in Vietnam and believed he was running back home); United States v. Crosby, 713 F.2d 1066 (5th Cir. 1983) (defendant claimed he was in a dissociative state). See generally Comment, Vietnam Stress Syndrome and the Criminal Defendant, 19 Loy. L.A.L. Rev. 473 (1985). Here, it is important to recognize that DeMoss presented no evidence that, at the time of the crime, he was in a dissociative state caused by P.T.S.D.
On appeal, DeMoss alleges that the trial judge’s instructions precluded the jury from considering the effect of P.T.S.D. on both his insanity defense and his defense of diminished capacity. The relevant instructions provided the jury are:
“INSTRUCTION NO. 11
“Voluntary intoxication is not a defense to a criminal charge, but when a particular intent or other state of mind is a necessary element of the offense charged, intoxication may be taken into consideration in determining whether the accused was capable of forming the necessary specific intent or state of mind.
“This instruction applies only to the following charges: (a) The offense of Kidnapping as charged in Count No. 1 and the specific intent to hold Brenda DeMoss in order to inflict bodily injury on Brenda DeMoss or to terrorize said victim; (b) The offense of Kidnapping as charged in Count No. 2 and the specific intent to hold Carol Scroggins t.o facilitate the crime of Aggravated Assault against Brenda DeMoss, or the crime of Murder against Brenda DeMoss or the crime of Murder against Leland Anderson; (c) The offense of Aggravated Burglary as charged in Count No. 4 and the specific intent to commit the felony of Aggravated Assault.”
“INSTRUCTION NO. 12
“Temporary insanity immediately produced by intoxication (by alcohol or drugs) does not destroy responsibility for crime where the accused, when sane and responsible, voluntarily made himself intoxicated.”
“INSTRUCTION NO. 13
“The defendant has denied criminal responsibility because of lack of mental capacity at the time the offenses were committed. In law, this is called insanity. The defendant is not criminally responsible for his acts if because of mental illness or defect, he lacked the capacity either (a) to understand the nature of his acts, or (b) to understand that what he was doing was prohibited by law.
“If you have a reasonable doubt as to his capacity to understand either, then you should find the defendant not guilty because of insanity.
“If you have no reasonable doubt that the defendant had the mental capacity at the time of the alleged offenses to understand both what he was doing and that it was prohibited by law, then you should find the defendant was not insane.”
Initially, DeMoss contends that the trial court committed reversible error by failing to give an instruction on diminished capacity. Since DeMoss relied on an insanity defense at trial, this argument represents an attempt by appellate counsel to change the thrust of DeMoss’ trial defense.
In the trial of a criminal action, the defendant is entitled to have an instruction setting out his theory of defense where there is any evidence whatever to support it. State v. Hunter, 241 Kan. 629, 644, 740 P.2d 559 (1987). We note that trial counsel did not request an instruction on diminished capacity. A party may not assign as error the giving or failure to give an instruction unless he objects to the instruction stating the specific grounds for the objection. Absent such objection, an appellate court may reverse only if the trial court’s failure to give the instruction was clearly erroneous. K.S.A. 22-3414(3); State v. Holley, 238 Kan. 501, 506, 712 P.2d 1214 (1986). The failure to give an instruction is clearly erroneous only if the reviewing court reaches a firm conviction that if the trial error had not occurred there was a real possibility the jury would have returned a different verdict. State v. Patterson, 243 Kan. 262, 268, 755 P.2d 551 (1988).
In State v. Jackson, 238 Kan. 793, 714 P.2d 1368 (1986), we held that evidence of a defendant’s diminished capacity to commit a crime is admissible to negate specific intent but not to remove criminal responsibility. 238 Kan. 793, Syl. ¶ 1. Whether the jury should be instructed on diminished capacity is left to the discretion of the trial court. 238 Kan. at 798. See State v. Maas, 242 Kan. 44, 52, 744 P.2d 1222 (1987).
DeMoss’ contention that a diminished capacity instruction was required here is based on the premise that there was evidence that his alleged diminished capacity at the time of the crime was due to a combination of the effects of P.T.S.D. and drug and alcohol abuse. DeMoss asserts that the failure to give a diminished capacity instruction prejudiced him by preventing the jury from considering the effect of P.T.S.D. on his ability to form the specific intent required for the crimes charged.
DeMoss’ argument on this issue is not persuasive. DeMoss’ own expert, Dr. Horne, stated that at the time the crimes were committed DeMoss’ mental state was the result of voluntary intoxication. The gist of Horne’s testimony was that DeMoss’ P.T.S.D. was an underlying passive condition which could be heightened by the consumption of alcohol. See generally Com. v. Stewart, 377 Pa. Super. 530, 535-37, 547 A.2d 1189 (1988).
Therefore, although P.T.S.D. may have contributed to DeMoss’ penchant for alcohol intoxication, such intoxication was nonetheless the result of a voluntary act. K.S.A. 21-3208(2) provides that evidence of voluntary intoxication may be considered when a specific intent or state of mind is a necessary element to constitute a particular crime. In a case where a specific intent crime is charged and there exists evidence of voluntary intoxication, the court is required to give a voluntary intoxication instruction. State v. Sterling, 235 Kan. 526, 529-30, 680 P.2d 301 (1984). Here, the jury was given a voluntary intoxication instruction which informed it that, if it found that defendant’s diminished capacity was caused by voluntary intoxication, it could consider whether defendant was capable of forming the specific intent required to commit kidnapping and aggravated burglary. Under these facts, no separate instruction on diminished capacity due to the effect of P.T.S.D. was required.
DeMoss’ next contention, which relates to the first, is that it was error to give the voluntary intoxication instruction because it (1) “precluded the jury from considering the evidence of post-traumatic stress disorder by erroneously stressing or focusing the jury’s attention on the diagnosis of episodic alcohol abuse above that of P.T.S.D.” and (2) detracted from a diminished capacity defense. Because no objection to the voluntary intoxication instruction was lodged at trial, we again apply the clearly erroneous standard.
In State v. James, 223 Kan. 107, 574 P.2d 181 (1977), the defendant was charged with first-degree murder. James introduced evidence that he had consumed amphetamine pills on the day of the crime. James’ expert testified that James suffered from a mental disorder, and that on the date of the crime this disorder was heightened by the drug ingestion to the point where James could not distinguish right from wrong. 223 Kan. at 110. The trial judge, over defendant’s objection, gave instructions both on insanity and voluntary intoxication.
On appeal, James argued that the evidence of drug ingestion was not introduced to establish lack of specific intent, but rather to bolster his defense of insanity. We disagreed, stating that temporary insanity immediately produced by intoxication does not destroy responsibility for crime where the accused, when sane and responsible, voluntarily made himself drunk, following State v. Harden, 206 Kan. 365, Syl. ¶ 7, 480 P.2d 53 (1971). We observed that the principles governing alcohol use also apply to a defendant’s use of drugs and then noted there was no testimony that James’ prior use of drugs had led to permanent mental deterioration or disease sufficient to constitute insanity. Had there been such evidence of permanent mental deterioration, the case would have been governed by principles of insanity alone. We then concluded an instruction on the effect of voluntary intoxication and an instruction on the defense of insanity may both be given where (1) there is evidence of intoxication which bears upon the issue of a required specific intent, and (2) the defense of insanity is also relied upon by the defendant. 223 Kan. at 111.
James is controlling here and DeMoss’ attempts to distinguish James fail. According to DeMoss’ expert, DeMoss’ alcohol intoxication, not P.T.S.D., was the major factor contributing to the crime. As in James, there was no evidence that DeMoss’ consumption of alcohol was sufficient to produce “permanent mental deterioration or disease sufficient to constitute insanity.” Also as in James, defendant here relied on an insanity defense. Therefore, the trial judge was correct in instructing the jury on both voluntary intoxication and the defense of insanity.
Finally, DeMoss contends it was error to give, over his objection, instruction 12, which stated that “temporary insanity produced by intoxication (by alcohol or drugs) does not destroy responsibility for the crime where the accused, when sane and responsible, voluntarily made himself intoxicated.” Defense counsel objected to this instruction claiming it confused the jury and negated his defense of insanity due to P.T.S.D. plus intoxication.
In State v. Seely, 212 Kan. 195, 510 P.2d 115 (1973), the defendant (also a- Vietnam veteran), on trial for aggravated battery, testified that he had been drinking heavily on the day of the crime and that he had no memory of the alleged beating of the two victims. Two psychiatrists testified that defendant suffered from a personality disorder which, when altered by alcohol consumption, could result in extremely hostile and destructive behavior. The trial judge gave an instruction similar to the instruction given here, stating that temporary insanity immediately produced by intoxication does not destroy responsibility for crime where the accused, when sane and responsible, voluntarily made himself drunk. We affirmed the trial court’s refusal to give an insanity or involuntary intoxication instruction, stating: “[A]ll the expert testimony, taken in its light most favorable to appellant, indicated that alcohol was the key factor in his loss of control and the sine qua non of all his difficulties.” 212 Kan. at 200. Seely thus stands for the proposition that a criminal defendant may not be entitled to an insanity or involuntary intoxication instruction when voluntary alcohol consumption triggers an underlying personality disorder which by itself would not amount to insanity.
Unlike Seely, here, the jury was instructed on insanity even though Dr. Horne’s testimony at trial indicated that at the time of the crime defendant was legally insane due to alcohol intoxication and not to P.T.S.D. and that alcohol intoxication was the “main factor” in the crime. According to this same testimony, DeMoss’ alcohol-induced insanity was temporary and was produced by DeMoss’ voluntary act. Further, DeMoss made no claim that he was experiencing a dissociative state at the time of the crime. Instead, the expert testimony indicated he was in a drunken state. Under these facts, the trial judge did not err in informing the jury that temporary insanity produced by voluntary alcohol intoxication would not relieve the defendant from criminal responsibility.
Based on the evidence, the jury could have found that DeMoss’ actions were temporarily affected by his voluntary consumption of alcohol. The instructions given the jury fairly stated the law and did not mislead the jury. The jury was properly instructed.
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The opinion of the court was delivered by
Herd, J.:
Dan Saft appeals the district court’s holding that it lacked jurisdiction to modify his previously modified sentence.
Saft pled guilty to kidnapping, K.S.A. 21-3420, reduced from aggravated kidnapping, K.S.A. 21-3421; rape, K.S.A. 21-3502; and aggravated criminal sodomy, K.S.A. 21-3506. He was committed to Larned State Hospital for evaluation prior to sentencing. The presentence investigator recommended Saft be sentenced to 15 years to life on each charge, the sentences to run concurrently, and that probation be denied.
On April 22,1985, the district court followed the investigator’s recommendation and sentenced Saft to a controlling term of 15 years to life imprisonment. On July 10, 1985, Saft filed a timely motion to modify his sentence under K.S.A. 21-4603(3). On June 18, 1986, the court acted upon the motion by modifying Saft’s sentence to 10 to 20 years on each charge, each sentence to run concurrently. The court had the power to grant probation, K.S.A. 21-4603(2)(c), or it could have reduced the minimum term to five years because the reduced charges were all class B felonies. K.S.A. 21-4501(b). In the exercise of its discretion, the district court chose to neither grant probation nor further reduce the sentence.
On October 2, 1986, Saft filed a second motion to modify his sentence. After hearing, the court held it had no jurisdiction to entertain Saft’s motion on the merits because it was filed outside the 120-day period allowed under K.S.A. 21-4603(3). Saft appeals.
The sole issue before us is whether a district court has jurisdiction to modify a sentence pursuant to a motion filed within 120 days from a modification of sentence, but outside the 120 days from the imposition of the original sentence.
The sentencing of a defendant is strictly controlled by statute in Kansas. State v. Osbey, 238 Kan. 280, 288, 710 P.2d 676 (1985). The court’s authority to modify a sentence is found at K.S.A. 21-4603(3), which provides:
“Any time within 120 days after a sentence is imposed or within 120 days after probation or assignment to a community correctional services program has been revoked, the court may modify such sentence, revocation of probation or assignment by directing that a less severe penalty be imposed in lieu of that originally adjudged within statutory limits. If an appeal is taken and determined adversely to the defendant, such sentence may be modified within 120 days after the receipt by the clerk of the district court of the mandate from the supreme court or the court of appeals.”
Saft contends the legislature’s use of the term “within 120 days after a sentence is imposed” means that a defendant has 120 days after each modification to file for another modification. This procedure could presumably go on indefinitely so long as sentence modifications were granted.
The sentence modification statuté has never been interpreted in this way. We have assumed district courts do not have jurisdiction to modify a sentence pursuant to a motion filed after 120 days from the original imposition of sentence, barring those exceptions stated in K.S.A. 21-4603(3). See State ex rel. Owens v. Hodge, 230 Kan. 804, 811, 641 P.2d 399 (1982); State v. Henning, 3 Kan. App. 2d 607, 599 P.2d 318 (1979).
Saft argues the rule of liberal construction of sentencing statutes provided by K.S.A. 21-4601 favors his interpretation of the statute. The construction statute, however, only provides that the sentencing statutes shall be liberally construed “to thé end that” defendants are dealt with in accordance with their individual characteristics. There is no evidence the statutes were not so construed by the sentencing court when it reduced Saft’s original sentence pursuant to the first motion. The same statute provides “that dangerous offenders shall be correctively treated in custody for long terms as needed.” The presentence evaluations found Saft to be a dangerous offender.
We have held K.S.A. 21-4601 requires K.S.A. 21-4603(3) be construed to allow a defendant the opportunity to have his sentence modified when his motion is timely filed. In State ex rel. Owens v. Hodge, 230 Kan. 804, we held the trial court retained jurisdiction over an original motion to reduce sentence filed within 120 days from the original sentence but not decided until after the 120-day period.
This construction is consistent with that of the federal courts. K.S.A. 21-4603(3) is based upon Rule 35(b) of the Federal Rules of Criminal Procedure before its most recent revision effective November 11, 1987. Fed. R. Crim. Proc. 35(b). Federal courts agreed that the time limits of former Rule 35(b) were jurisdictional. “[I]f the motion is untimely under the rule and the sentence is a lawful one, the court is powerless to act.” 3 Wright, Federal Practice and Procedure: Crim. § 587 (1982). Wright states that a defendant does not gain an additional 120 days when the sentence is reduced on a timely motion.
In United States v. Rannazzisi, 443 F. Supp. 916 (S.D. N.Y. 1978), the defendant pled guilty and was sentenced to 18 months in prison. This sentence was reduced within the 120-day period to one year. The defendant then filed a second motion for sentence modification outside the original 120-day period, arguing the same construction of the statute as Saft proposes. The court held it was without jurisdiction to consider the defendant’s motion as the date of the original sentence imposed controlled the timeliness of the motion. The rule was intended to establish “clear lines of demarcation so that all concerned would know exactly when the time for filing would expire.” United States v. Mehrtens, 494 F.2d 1172, 1175 (5th Cir.), cert, denied 419 U.S. 900 (1974). The 120-day time limit protects the courts from repeated motions by sentenced defendants and insures the responsibilities of the parole board are not usurped by courts retaining jurisdiction indefinitely. United States v. Smith, 650 F.2d 206 (9th Cir. 1981).
Were we to ignore the case law and accept Saft’s construction of the statute, the time limits for appeal would be affected as well. Pursuant to K.S.A. 22-3608, a defendant may appeal from judgment “not later than 10 days after the expiration of the district court’s power to modify the sentence.’’ The statute specifies the court’s power to revoke or modify conditions of probation or assignment to community programs “shall not be deemed power to modify the sentence.” It is thus apparent the legislature intended to generally limit a defendant’s time for appeal to 130 days from the original imposition of sentence. State v. Dedman, 230 Kan. 793, 796, 640 P.2d 1266 (1982). To hold a defendant has an additional 120 days after each modification of sentence would also extend appeal time accordingly.
In State v. Myers, 10 Kan. App. 2d 266, 697 P.2d 879 (1985), the Court of Appeals held the 10-day period to file a notice of appeal runs from the filing of the journal entry deciding a motion for sentence modification. In Myers, the defendant filed a motion to modify his sentence, which was denied. One hundred and twelve days after sentencing, he filed a second motion to modify, which was orally denied 126 days after sentencing and memorialized by journal entry 141 days after sentencing. The defendant filed his notice of appeal 147 days after sentencing. The Court of Appeals held the defendant’s appeal was timely pursuant to State ex rel. Owens v. Hodge, 230 Kan. 804, in that the district court retained power to modify the sentence within a reasonable time when the modification motion was timely filed within the 120 days from the original sentencing. In both Myers and Hodge, the appellate courts recognized the defendant must file within the 120 days running from the original imposition of sentence.
In State v. Timmerman, 236 Kan. 414, 691 P.2d 33 (1984), we held the time for filing a motion to modify a sentence is not extended by the filing of a collateral proceeding pursuant to K.S.A. 60-1507. Were it otherwise, a district court would never lose jurisdiction to modify a sentence because a prisoner in custody could file a K.S.A. 60-1507 motion at any time and revest in the sentencing court the jurisdiction to modify the sentence. It is essential that some degree of finality be achieved in the criminal appeal process to prevent endless piecemeal litigation. Hacker v. State, 207 Kan. 195, 197, 483 P.2d 484 (1971).
The legislature, by specifying those instances in which a defendant may move for sentence modification outside the orig inal 120 days, has indicated these to be limited exceptions. Had the legislature intended for other exceptions, it could easily have granted the court authority to modify “within 120 days after a sentence is imposed or modified.”
The specified exceptions are provided by the legislature because defendants who are granted probation or assignment to a community correctional services program generally do not file motions to modify their sentences. Where such favorable conditions are revoked, the legislature then gives the defendants the opportunity to move for a sentence more lenient than “that originally adjudged within statutory limits.” Similarly, a defendant who has lost his appeal is given an opportunity to move for at least a more lenient sentence.
In contrast, there is generally no reason to modify a sentence which has already been modified within the 120 days from the original sentencing. The defendant’s arguments for modification have already been heard and decided. In the instant case, Saft argued at his second hearing that probation was necessary because he was not receiving appropriate medical treatment in prison. This is not a matter to be resolved by sentencing proceedings. K.S.A. 60-1501 et seq. provide the procedures by which a defendant may attack the conditions of imprisonment. See State ex rel. Stephan v. Clark, 243 Kan. 561, 568, 759 P.2d 119 (1988).
We hold the district court did not have jurisdiction over Saft’s second motion to modify his sentence. The judgment is affirmed. | [
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The opinion of the court was delivered by
Six, J.:
Kenneth Gettings, defendant, appeals from jury convictions of burglary and aggravated arson.
Gettings claims the trial court erred by: (1) admitting the statement of a deceased eyewitness based on Gettings’ alleged procurement of the witness’ death; (2) not declaring a mistrial when the State did not produce a prior taped statement of a prosecution witness until after the witness had been examined and cross-examined both at a pretrial hearing and before the jury; and (3) refusing to admit a ballistics report from Arkansas when the defense did not subpoena anyone to testify to the information in the report, and had a previous opportunity at the pretrial hearing to cross-examine a person who had such information.
We find no error and affirm.
FACTS
Gettings’ convictions were based on a fire which occurred in the Wichita apartment of Edward Ross, an acquaintance of his. Ross drank beer one evening with Gettings and with Kevin Whitley, Gettings’ friend and employee. After taking Whitley home, Gettings and Ross drove to Ross’ apartment.
Three or four weeks later, a friend told Ross that there had just been a fire in Ross’ apartment and the police were looking for Ross. Ross saw Gettings and asked for a ride. Kevin Whitley was with Gettings again on that evening. Ross testified that Gettings was driving recklessly. Ross, a transvestite, saw a purse that he had left in his apartment earlier that evening sitting on the seat of Gettings’ truck. Ross said that Gettings smelled like smoke. Ross finally asked Gettings to let him out because of the way Gettings was driving.
Ross, Gettings, and Whitley were ultimately questioned about the ñre. Ross told the police he had seen Gettings and Whitley on the night of the fire. Gettings stated that he had not heard about the fire until he gave Ross a ride the night of the fire. Although Whitley said he knew nothing about the fire, he appeared to be nervous; consequently, the police asked him to come to the City Building. Whitley was interviewed by Captain Ernest Mower, a fire investigator for the Wichita Police Department, who had determined that the.fire in Ross’ apartment had been intentionally set by the use of flammable liquid. There was evidence that a window in the apartment had been broken prior to the fire. Part of Whitley’s interview was taped and later introduced into evidence at Gettings’ trial. The introduction of the Whitley tape is a primary issue in this appeal.
Whitley’s taped statement implicated Gettings in the arson. Whitley said on the tape that on the night of the fire he and Gettings were out driving around and drinking beer when Get-tings pulled up at an apartment building. Whitley said he saw Gettings break out a window and enter an apartment; that when Gettings returned to the truck, he was carrying a black purse; and that flames were coming from the same window Gettings had entered.
As a result of Whitley’s statement, burglary (K.S.A. 21-3715) and aggravated arson (K.S.A. 21-3719) charges were filed against defendant on September 26, 1986.
In January 1987, Kevin Whitley was found dead in a remote area of Carroll County, Arkansas. He had been shot in the head. The body was found near a cabin belonging to David Alway, a Wichita resident and friend of the defendant. There were perishable foods in the cabin, indicating someone had recently stayed there. When asked if he knew Gettings, Alway refused to answer on the grounds it might incriminate him. Gettings’ son, James, testified that Gettings and Alway knew each other.
Following the discovery of Whitley’s body, the State moved to admit Kevin Whitley’s statement into evidence on the grounds that Gettings procured the death of Whitley. A full hearing on that motion and others were held before Judge Kennedy on May 7-12, 1987. Judge Kennedy found that the State had proved by a preponderance of the evidence that Gettings was involved in procuring the absence of Whitley. He also found that Whitley’s statement was reliable because it was a declaration against penal interest. The motion was granted. The case came on for trial before Judge Cranmer, who indicated he would hear defendant’s evidence in support of the defense motion in limine to suppress Whitley’s statement but that he would probably follow the ruling of Judge Kennedy.
James Gettings testified at the pretrial hearing and during the jury trial that he could not remember statements and actions of his father which implicated his father in both the arson and Whitley’s death. This testimony contradicted a taped interview James had previously given police. During the pretrial hearing, the State had been ordered to produce statements and reports made in the case. After the trial had begun and James had already testified, the defense was provided with a taped interview of James that had been taken by Captain Mower during the course of Mower’s investigation.
At this stage of the trial, the defense moved for a mistrial on the grounds that exculpatory evidence was not disclosed to the defense until after the witness had testified. The motion for mistrial was denied; however, the defense was permitted to recall James for cross-examination in support of its renewed motion in limine to suppress Whitley’s statement.
The testimony and evidence presented at the hearing on the motion in limine and at trial will be discussed further as we analyze the issues in the case.
1. STATEMENT OF THE DECEASED EYEWITNESS
The statement of Kevin Whitley was the key evidence linking Gettings to the burglary and arson. Defense counsel, throughout the trial, strenuously objected to the admission of the taped statement. Gettings raises the admission of the Whitley statement as the main issue on appeal.
Gettings first argues the admission was improper because it violated his right to confrontation.
The Sixth Amendment to the United States Constitution and § 10 of the Bill of Rights of the Kansas Constitution provide criminal defendants with the right to confront witnesses against them. State v. Lomax & Williams, 227 Kan. 651, 657, 608 P.2d 959 (1980). A defendant, however, can waive the right to confrontation. “[W]hen confrontation becomes impossible due to the actions of the very person who would assert the right, logic dictates that the right has been waived. The law simply cannot countenance a defendant deriving benefits from murdering the chief witness against him.” United States v. Thevis, 665 F.2d 616, 630 (5th Cir. 1982), cert, denied 459 U.S. 825 (1982).
We made a specific finding in Lomax i? Williams that the witness’ refusal to testily wás not procured by the defendants; consequently, the procured absence issue has never been directly addressed by our court.
In State v. Corrigan, 10 Kan. App. 2d 55, 691 P.2d 1311 (1984), rev. denied 237 Kan. 888 (1985), the Court of Appeals considered the question of whether the testimony of the defendant’s wife at a preliminary hearing and two statements to an insurance investigator were admissible where there was evidence that the defendant procured his wife’s absence at trial. The Court of Appeals held where there is sufficient evidence to support a finding that the defendant procured the absence of a witness, the defendant waives his right to confrontation and his hearsay objections to the previous statements by the witness. 10 Kan. App. 2d at 59.
Gettings also objects to the admission of Whitley’s statement because it was hearsay. The State contends that the statement was a declaration against interest pursuant to K.S.A. 1987 Supp. 60-460(j). We need not address the hearsay issue because we adopt the reasoning of Thevis, 665 F.2d 616; United States v. Balano, 618 F.2d 624 (10th Cir. 1979), cert, denied 449 U.S. 840 (1980); and Corrigan, 10 Kan. App. 2d 55. These cases hold that a waiver of the right to confrontation based on the procurement of the absence of the witness also constitutes a waiver of any hearsay objections to prior statements of the absent witness.
The Burden of Proof
“The Sixth Amendment does not stand as a shield to protect the accused from his own misconduct or chicanery.” United States v. Carlson, 547 F.2d 1346, 1359 (8th Cir. 1976). In order to invoke the defendant’s waiver of his right to confrontation, the State must prove that the defendant did procure the absence of the witness.
“The federal circuits are divided as to whether the prosecution must make such a showing by clear and convincing evidence (Thevis, 5th Cir.), or merely by a preponderance of the evidence (Balano, 10th Cir.). We need not resolve that question in this case because we believe the evidence supports the trial court’s finding under either standard.” Corrigan, 10 Kan. App. 2d at 59-60.
The standard of proof for the procurement of a witness’ absence was discussed in United States v. Mastrangelo, 693 F.2d 269 (2nd Cir. 1982). The Second Circuit found that Mastrangelo’s possible involvement in the witness’ death raised the issue of whether Mastrangelo waived his Sixth Amendment rights, and a fortiori, his hearsay objection. 693 F.2d at 272. An evidentiary hearing in the absence of the jury is necessary before waiver can be found. 693 F.2d at 273. The evidentiary hearing is not an issue in Gettings’ case because there was a full hearing on the motion to admit Whitley’s statement.
The Mastrangelo court moved on to consider which standard of proof should apply in such evidentiary hearings. Both Thevis and Balano were discussed.
“Moreover, the Supreme Court precedents are mixed. While the Court has held the preponderance of evidence test applicable to suppression hearings involving possible misconduct by the government [citations omitted], it has applied the clear and convincing standard to questions of admissibility involving constitutional requirements going to the reliability of evidence.” 693 F.2d at 273.
Mastrangelo held that the burden of proof should be by a preponderance of the evidence:
“However, waiver by misconduct is an issue distinct from the underlying right of confrontation and not necessarily governed by the same rules concerning burden of proof. We see no reason to impose upon the government more than the usual burden of proof by a preponderance of the evidence where waiver by misconduct is concerned.” 693 F.2d at 273.
Mastrangelo concurs with Balano, 618 F.2d 624, on the burden of proof in waiver by misconduct cases and on the proposition that waiver of the confrontation right also waives the right to hearsay objections. Balano arose from a conviction in United States District Court for the District of Kansas. We hold that where waiver by misconduct is an issue the State’s burden of proof is a preponderance of the evidence.
Judge Kennedy found the evidence of Kevin Whitley’s murder to be overwhelming. He also found the State had proved by a preponderance of the evidence that Gettings was involved in procuring the absence of Whitley. The trial court did not err in admitting the statement of Whitley, the deceased eyewitness.
Reliability
Gettings argues the trial court must also find that the witness’ statement was reliable. He claims that because Whitley’s statement was unreliable, it should not have been admitted. Judge Kennedy made a specific finding that the statement was reliable. It was a statement against penal interest on the part of Whitley and there were statements by Gettings which corroborated Whitley’s story. At the time Whitley was interviewed, he was a suspect in the arson. He was given Miranda warnings.
The State points out that Whitley could still have been charged with aiding a felon despite his claim that Gettings set the fire.
The defense points to the general untrustworthiness of ac complice testimony. See State v. Moore, 229 Kan. 73, 622 P.2d 631 (1981). In Mastrangelo, Thevis, Balano, and Corrigan, the prior statement of the unavailable witness was sworn. Mastrangelo, Thevis, and Balano, dealt with grand jury testimony. In Corrigan, one of the statements was the wife’s testimony at the preliminary hearing and the other two statements were made to an insurance investigator, one with a court reporter and the wife’s attorney present. 10 Kan. App. 2d at 58.
The jury in Gettings’ case was given the following instruction:
“A person who is in the company of a defendant when such defendant is alleged to have committed a crime may identify such defendant as the person who committed the crime. However, you should consider with caution, an unsworn statement made by such person if such unsworn statement is not supported by other evidence and such person is arrested and interrogated concerning such crime.”
In Thevis, the court indicated that stringent reliability standards need not be met where the defendant has waived the right to confrontation. 665 F.2d at 629-30. Other testimony corroborated parts of Whitley’s statement. Gettings was able to cross-examine Captain Mower, who took the statement. The jury was given a cautionary instruction. It was not error to admit Whitley’s statement.
2. THE PRIOR TAPED STATEMENT OF A PROSECUTION WITNESS
James Gettings, the defendant’s son, was a key prosecution witness at both the hearing to admit Whitley’s statement and at trial. In March of 1987, two months before trial in this case, James had been arrested on auto theft charges. During the course of the interrogation, officers asked James if he had any knowledge of his father’s involvement in a murder that occurred in Arkansas. James had been read his Miranda rights and had waived them. James then told the officers about incriminating statements his father had made concerning the arson and Whitley’s murder.
Detective Michael Keller of the Wichita Police Department testified during the hearing to admit Whitley’s statement and at trial as to the March 1987 statement he took from James Gettings. James told Keller that the defendant admitted setting the fire and said that he (the defendant) should have shot Ross because Ross was a transvestite. James also expressed concern about what would happen if his father or his father s wife found out James was talking to the police. James also told Keller that he had heard his father tell his wife (the defendant’s) that they would never find the gun and that they did not have any evidence on him now that Whitley was dead.
At both the hearing to admit Whitley’s statment and at trial, James testified that he could not remember the above statements. In April of 1987, Tom Achemire, an investigator with the State Fire Marshal’s Office, contacted James about an unrelated arson in Harper County. James told Achemire that his father had made threats against him. Achemire contacted Captain Mower. The next day, Mower and Achemire taped an interview with James concerning the threats by his father. Both Achemire and Mower testified that no deal was made with James Gettings. James then testified that he had lied when he told Achemire and Mower that he had been threatened. He also testified that his father said that he, (defendant) was innocent. There was evidence that the defendant was making menacing gestures to James while James was testifying.
The taped statement at issue was made less than two weeks prior to the trial. Captain Mower testified that he had not yet had time to prepare a full transcript of the tape and to check the transcript against the recording for errors. No reference to a defense request for discovery is noted in the record. Gettings argues that the judge ordered all discovery be made available to the defense. The State argues that defense counsel had requested notes or reports of Whitley’s interview. Mower testified that he did not wish to give an incomplete report to the defense and that the prosecutor did not have knowledge that the statement had been taped. From a review of the record, it does not appear that the State acted in bad faith.
“Generally the trial court has broad discretion in dealing with a party who has failed to comply with a discovery and inspection request, and the trial court’s decision will only be set aside upon a showing of abuse. [Citations omitted.] Moreover, evidence not disclosed to the defendant before trial is not suppressed or withheld by the State if the defendant has personal knowledge thereof, or if the facts become available during trial and he is not prejudiced in defending against these-new facts.” State v. Cook, 225 Kan. 259, 261, 589 P.2d 616 (1979).
In both State v. Ruebke, 240 Kan. 493, 731 P.2d 842 (1987) and State v. Jackson, 226 Kan. 302, 597 P.2d 255 (1979), we held that the trial court did not abuse its discretion in refusing to declare a mistrial where certain police reports did not surface until the trial was underway. In both cases, there was a discovery order in effect.
“When the withholding of evidence by the prosecution is not deliberate and in bad faith and when the prosecution has not refused to honor a request for the evidence made at a proper stage of the proceedings, the defendant should be granted a new trial only if the record establishes: (1) that evidence was withheld or suppressed by the prosecution, (2) that the evidence withheld was clearly exculpatory, and (3) that the exculpatory evidence withheld was so material that the withholding of the same from the jury was clearly prejudicial to the defendant.” State v. Kelly, 216 Kan. 31, 36, 531 P.2d 60 (1975).
The taped statement of James Gettings does not meet the clearly exculpatory test stated in Kelly.
The trial court did not abuse its discretion in refusing to order a mistrial.
3. THE ARKANSAS BALLISTICS REPORT
Judge Kennedy found Whitley had been shot with a large caliber gun and that Gettings owned either a .45 caliber or a 9 millimeter handgun. James Gettings had stated his father owned a lot of guns. After a pretrial ruling to admit Whitley’s statement, Gettings moved for a rehearing. One of the stated reasons for the motion was that the ballistics report from the Arkansas State Police indicated Whitley was killed with a .38 caliber bullet and that the gun owned by Gettings could not have been the murder weapon. The judge pointed out there had been a witness at the hearing who could have testified as to the caliber of the murder weapon. Defense counsel had not questioned any of the witnesses from Arkansas about the murder weapon. Judge Kennedy denied the motion for rehearing.
Fahmi Malak, Chief Medical Examiner in the Arkansas State Police crime lab, and two officers from the Carroll County Sheriff s Office testified at the pretrial hearing. At trial, defense counsel proffered a copy of the Arkansas ballistics report. The State objected, arguing the report was hearsay. Defense counsel stated Gettings did not have the funds to bring in a witness from Arkansas. There was no showing Gettings was indigent. The judge refused to admit the ballistics report and refused to authorize funds to finance a second trip to Wichita for an Arkansas witness.
A state does not have the duty to provide a defendant with technical pretrial assistance. See Smith v. Baldi, 344 U.S. 561, 568, 97 L. Ed. 549, 73 S. Ct. 391 (1953).
The defense did not attempt to argue that the report should have been admitted in under one of the exceptions to the hearsay rule. The defense had a chance to question Dr. Malak concerning the type of bullet that killed Whitley. The fact the gun found at Gettings’ residence could not have been the murder weapon does not preclude a finding that Gettings procured the death of Whitley. The court’s decision to deny funds to bring a witness from Arkansas was not an abuse of discretion.
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The opinion of the court was delivered by
Holmes, J.:
The State of Kansas appeals upon a question reserved in two separate criminal cases in which the district courts of Shawnee County and Osage County held the act providing for taxation of marijuana and controlled substances, K.S.A. 1988 Supp. 79-5201 et seq., unconstitutional as violating the Fifth Amendment privilege against self-incrimination. The cases have been consolidated on appeal.
Case No. 62,446
State v. Durrant is an appeal by the State from Shawnee County District Court pursuant to K.S.A. 22-3601(b)(2) and K.S.A. 22-3602(b).
On four occasions in February and early March 1988, John Durrant allegedly sold cocaine to undercover police officers at a club in Topeka. He was subsequently charged with five counts of possession of a narcotic drug, two counts of failing to pay the tax imposed by K.S.A. 1988 Supp. 79-5201 et seq., one count of unlawful use of weapons, and one count of possessing drug paraphernalia.
The defense filed a motion attacking the constitutionality of K.S.A. 1988 Supp. 79-5201 et seq. (the Kansas drug tax act), contending, among other things, that the act violates the Fifth Amendment privilege against compelled self-incrimination. Following the State’s response, the district court held that the act violates the Fifth Amendment privilege against self-incrimination and is therefore unconstitutional. The two counts alleging violations of the act were therefore dismissed. The remaining charges against Durrant were dismissed and the State filed this appeal on June 7, 1988. See State v. Freeman, 234 Kan. 278, Syl. ¶ 2, 670 P.2d 1365 (1983).
Case No, 62.560
State v. Dressel is an appeal by the State from Osage County District Court upon a question reserved. K.S.A. 22-3602(b)(3).
Lon D. and Cindy M. Dressel, a young married couple, were arrested after a search of their leased property yielded 174 marijuana plants, 27 packages of marijuana, $6,000 in cash, and a bottle of pills. They were charged with one count of possession of marijuana with intent to sell, one count of failing to comply with the statute imposing a tax on marijuana and controlled substances, one count of possession of a narcotic drug, and one count of possession of drug paraphernalia. Defense counsel filed a motion seeking a determination of the constitutionality of the drug tax act, contending in part that it violates the Fifth Amendment privilege against self-incrimination. Following the State’s response, the district court on March 29, 1988, filed its order finding the act unconstitutional as a violation of the Fifth Amendment privilege against self-incrimination. Count II of the complaint was therefore dismissed.
The case went to trial April 25,1988, on the remaining charges. The defendants were convicted of possession of marijuana with intent to sell and possession of drug paraphernalia. Following return of the jury verdict, the prosecution asked the court to note for the record that the State reserved for appeal the question of whether the tax statute was unconstitutional. The journal entry documenting the conviction and the dismissal of Count II was filed on June 28, 1988, and thereafter the State appealed. While the defendants in case No. 62,560 question the jurisdiction of the court to hear the State’s appeal, we conclude that the constitutional issue raised in both appeals is properly before this court for determination.
In both cases the trial courts found K.S.A. 1988 Supp. 79-5201 et seq. unconstitutional as a violation of the Fifth Amendment privilege against self-incrimination. The Shawnee County court concluded that the provisions of the act exposed an individual to the risk that information gained by the State might subsequently be used against that individual in criminal prosecutions in the federal court. The Osage County court held that “[t]he immunity clauses of the law fail to give absolute immunity and could lead to investigatory searches, a use which is barred by the [Fifth Amendment] privilege.”
At the outset we pause to point out the basic principles applicable when we are called upon to determine the constitutionality of a statute. They were recently stated in Federal Land Bank of Wichita v. Bott, 240 Kan. 624, Syl. ¶ 1, 732 P.2d 710 (1987), wherein the court held:
“The constitutionality of a statute is presumed, all doubts must be resolved in favor if its validity, and before the statute may be stricken down, it must clearly appear the statute violates the constitution. Moreover, it is the court’s duty to uphold the statute under attack, if possible, rather than defeat it, and if there is any reasonable way to construe the statute as constitutionally valid, that should be done.”
See State v. Barclay, 238 Kan. 148, 153, 708 P.2d 972 (1985); State v. Huffman, 228 Kan. 186, 189, 612 P.2d 630 (1980); State v. Meinert, 225 Kan. 816, 817, 594 P.2d 232 (1979), and cases cited therein. The burden of proof is on the party challenging the constitutionality of the statute. Clark v. Walker, 225 Kan. 359, 366, 590 P.2d 1043 (1979); State ex rel. Schneider v. Liggett, 223 Kan. 610, 616, 576 P.2d 221 (1978).
In both cases in the district courts and on appeal, the defendants were represented by the same counsel, and essentially the same arguments have been presented in both cases. Although the district courts reached the same conclusion, they did so based upon somewhat different reasoning.
K.S.A. 1988 Supp. 79-5201 et seq. was passed by the legislature in 1987 and became effective July 1 the same year. The act consists of ten sections designated K.S.A. 1988 Supp. 79-5201 through 79-5210. We will summarize the provisions of the act and only set forth verbatim those sections which we deem controlling in these cases. K.S.A. 1988 Supp. 79-5201 defines “marijuana” and “controlled substance” by reference to the appropriate subsections of K.S.A. 65-4101. A “dealer” is defined by reference to minimum amounts of the drugs involved and applies to the manufacture, production, shipping, transportation, importing, acquiring, or possession when done in violation of Kansas law. The statute obviously does not apply to doctors, hospitals, pharmacists, and others legally possessing the specified substances. K.S.A. 1988 Supp. 79-5202 provides for the imposition of the tax. K.S.A. 1988 Supp. 79-5203 provides for administration of the tax by the director of taxation and requires certain forms to be completed and filed at the time of payment of the tax. K.S.A. 1988 Supp. 79-5204 provides for the issuance of tax stamps, labels, or other official indicia evidencing payment of the tax and directs the usage of the tax stamps, labels, or indicia. Subsection (b) of this statute also states, “Any person may purchase any such stamp, label or other indicia without disclosing such person’s identity.” Hereafter, for simplicity, we will refer to the statutory terms “stamp, label, or other indicia” merely by use of the word “stamps” to cover all such evidence of payment. K.S.A. 1988 Supp. 79-5205 sets forth the procedure for assessing the tax by jeopardy assessments and authorizes collection of the tax in any manner provided in article 32 of chapter 79 of Kansas Statutes Annotated.
K.S.A. 1988 Supp. 79-5206 provides in its entirety as follows:
“Neither the director of taxation nor a public employee may reveal facts contained in a report or return required by this act, nor can any information contained in such a report or return be used against the dealer in any criminal proceeding, unless independently obtained, except in connection with a proceeding involving taxes due under this act from the taxpayer making the return.”
K.S.A. 1988 Supp. 79-5207 gives the director of taxation the power to examine the books and records of any dealer to determine whether the appropriate tax has been paid and provides the director with subpoena powers. K.S.A. 1988 Supp. 79-5208 provides for a 100% penalty in addition to the tax imposed and further provides criminal penalties of not more than 5 years’ imprisonment and/or a fine of not more than $10,000 for violating the act.
K.S.A. 1988 Supp. 79-5209 provides:
“Nothing in this act shall in any manner provide immunity for a dealer from criminal prosecution pursuant to Kansas law.”
K.S.A. 1988 Supp. 79-5210 specifically exempts pharmacists and any other person “lawfully in possession of marijuana or a controlled substance” from payment of the tax required by the act.
One other statute is relevant to our consideration of the issues now before the court. K.S.A. 1988 Supp. 75-5133 provides in pertinent part:
“(a) Except as otherwise more specifically provided by law, all information received by the director of taxation from applications for licensure or registration made or returns or reports filed under the provisions of any law imposing any excise tax administered by the director, or from any investigation conducted under such provisions, shall be confidential, and it shall be unlawful for any officer or employee of the department of revenue to divulge any such information except in accordance with other provisions of law respecting the enforcement and collection of such tax, in accordance with proper judicial order and as provided in K.S.A. 74-2424, and amendments thereto.
“(e) Any violation of this section shall be a class B misdemeanor, and if the offender is an officer or employee of this state, such officer or employee shall be dismissed from office.”
While most of the reported cases pertaining to the privilege against self-incrimination involve actual oral statements or testimony, it is clear that the Fifth Amendment protection applies to compelled written statements and forms as well as compelled oral testimony. Albertson v. SACB, 382 U.S. 70, 79, 15 L. Ed. 2d 165, 86 S. Ct. 194 (1965).
While some have questioned the propriety of a governmental entity imposing a tax upon an illegal act, the United States Supreme Court has held that a tax may be imposed on an activity that is wholly or partially unlawful under state or federal statutes. See, e.g., Marchetti v. United States, 390 U.S. 39, 58, 19 L. Ed. 2d 889, 88 S. Ct. 697 (1968). In doing so, however, the government may not violate constitutional restrictions, including the privilege against self-incrimination. On the other hand, the Fifth Amendment privilege against self-incrimination may not properly be asserted if other protection is granted that is broad enough to provide the same scope and effect as the privilege itself. Marchetti, 390 U.S. at 58.
Our determination must be whether the drug tax act as written, or as we may construe it within the intent of the legislature, grants sufficient immunity from self-incrimination to provide the Fifth Amendment protections of the Constitution. In analyzing whether a statute violates the Fifth Amendment, the central standard is whether the statute poses substantial and real, and not merely trifling or imaginary, hazards of incrimination. Marchetti v. United States, 390 U.S. at 53. The testimony, written or oral, must not only be compelled by the government to justify invocation of the Fifth Amendment privilege, but also must be “incriminating.” Doe v. United States, 487 U.S. 201, 101 L. Ed. 2d 184, 108 S. Ct. 2341 (1988). Even if direct use of the compelled testimony itself would not be incriminating, the Fifth Amendment may be invoked if the compelled testimony would lead to the discovery of incriminating evidence. Doe, 487 U.S. at 208 n. 6, and cases cited therein. Thus, the Fifth Amendment protection applies not only to the potential direct use of the compelled statements, but also applies if such statements might reasonably lead to other incriminating evidence.
In Hoffman v. United States, 341 U.S. 479, 486-87, 95 L. Ed. 1118, 71 S. Ct. 814 (1951), the Supreme Court explained the extent of the privilege as to incriminating statements.
“The privilege afforded not only extends to answers that would in themselves support a conviction under a federal criminal statute but likewise embraces those which furnish a link in the chain of evidence needed to prosecute the claimant for a federal crime. [Citation omitted.] But this protection must be confined to instances where the witness has reasonable cause to apprehend danger from a direct answer. [Citation omitted.] The witness is not exonerated from answering merely because he declares that in so doing he would incriminate himself—his say-so does not of itself establish the hazard of incrimination. ... To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result.”
It appears that the legislature, in including 79-5206 in the drug tax act, intended to protect the Fifth Amendment privilege against self-incrimination. In construing the act, we must determine whether the act meets the challenge asserted by these defendants and does protect the privilege against self-incrimination.
Defendants conceded below that the challenged Kansas statutes prohibit public employees from disclosing any information required under the act and prohibit the use of such information in a criminal proceeding, except to enforce the tax act itself. However, they argued that this provision would not bar the federal government from obtaining the records for purposes of pursuing prosecution under federal law. The district court in case No. 62,446 agreed with this argument, concluding that the act thus exposes individuals to a risk of self-incrimination notwithstanding 79-5206.
In Murphy v. Waterfront Comm’n of New York, 378 U.S. 52, 79, 12 L. Ed. 2d 678, 84 S. Ct. 1594 (1964), the Supreme Court addressed this very argument, stating:
“[W]e hold the constitutional rule to be that a state witness may not be compelled to give testimony which may be incriminating under federal law unless the compelled testimony and its fruits cannot be used in any manner by federal officials in connection with a criminal prosecution against him. We conclude, moreover, that in order to implement this constitutional rule and accommodate the interests of the State and Federal Governments in investigating and prosecuting crime, the Federal Government must be prohibited from making any such use of compelled testimony and its fruits. This exclusionary rule, while permitting the States to secure information necessary for effective law enforcement, leaves the witness and the Federal Government in substantially the same position as if the witness had claimed his privilege in the absence of a state grant of immunity.”
In an accompanying footnote, the Court stated:
“Once a defendant demonstrates that he has testified, under a state grant of immunity, to matters related to the federal prosecution, the federal authorities have the burden of showing that their evidence is not tainted by establishing that they had an independent, legitimate source for the disputed evidence.” 378 U.S. at 79 n.18.
In In re Birdsong, 216 Kan. 297, 301, 532 P.2d 1301 (1975), this court adopted an interpretation of Murphy to the effect that witnesses granted immunity pursuant to state law may be compelled to testify because the federal government would be barred from using any of the testimony, or its fruits, in a subsequent federal prosecution.
There is clearly no merit to the argument that the information allegedly compelled by the statutes could be used against a dealer in a federal prosecution notwithstanding the protections granted in 79-5206.
The State argues in both cases that the statute does not compel disclosure of incriminating evidence because 79-5204(b) specifically provides that no person shall be required to disclose his/her identity when purchasing stamps. While the forms to be filed in purchasing the tax stamps provide spaces for the name, address, and signature of the purchaser, the directions and information which accompany the order forms make it clear that the information is not required and that any information which is supplied is confidential.
The provisions of the drug tax act do not require dealers or other persons purchasing the stamps to disclose their identity. Even if their identity is ascertained through visual observation or otherwise, the statutes provide the information must remain confidential. While the arguments of the State that the act does not compel incriminating testimony may have merit, we will, for purposes of construing the constitutionality of the act, assume that it does require the disclosure of incriminating information.
Defendants have argued that even though 79-5206 makes all information submitted by the purchaser of tax stamps confidential and inadmissible in other criminal proceedings, the act provides no sanctions against public employees who violate the statutory prohibition by revealing such facts. However, K.S.A. 1988 Supp. 75-5133(e) imposes a criminal penalty on those who divulge information provided in returns filed under the provisions of any tax statute which imposes an excise tax administered by the director of taxation. It also provides that a state officer or employee who violates the confidentiality provisions shall be dismissed from office. It appears that these provisions would apply to any information released or utilized in violation of 79-5206. In United States v. Sahadi, 555 F.2d 23, 26-27 (2d Cir. 1977), the defendants argued that the absence of specific penalty provisions punishing Treasury Department officials for illegally disclosing information obtained under 26 U.S.C. § 4401 et seq. (1982) creates a real and appreciable danger of self-incrimination. The court rejected the argument, pointing out that 18 U.S.C. § 1905 (1982) mandates criminal penalties and loss of employment for persons who make unauthorized disclosure of confidential government information. This argument of the defendants lacks merit.
Defendants rely heavily upon the Kansas case of State v. Greenberg, 4 Kan. App. 2d 403, 607 P.2d 530 rev. denied 228 Kan. 807 (1980), and a series of United States Supreme Court cases. Greenberg was convicted of operating an uninsured motor vehicle, and he appealed. Among other things, he challenged as unconstitutional the statute requiring drivers involved in auto accidents to disclose certain information to police. The Court of Appeals upheld the statute, reasoning that, since the primary objective of the statute was regulatory and not the enforcement of criminal laws, the proper approach was to balance the government’s need for the information against the risk of self-incrimination. In dictum, the court noted that where the reporting requirement is part of a scheme aimed primarily at enforcing the criminal law, the statutes are “invariably stricken down on Fifth Amendment grounds.” 4 Kan. App. 2d at 407.
In Case No. 62,446, the State concedes in its brief that the primary purpose of K.S.A. 1988 Supp. 79-5201 et seq. is to discourage or eliminate drug dealing. The district court in that case opined that the challenged statutes therefore fall within the same category as those referenced in Greenberg as invariably flawed on Fifth Amendment grounds. It appears clear that the drug tax act does target a selective group inherently suspect of criminal activity—drug dealers, or those who illegally possess large quantities of marijuana and/or other controlled substances. However, contrary to the Greenberg dictum, that does not necessarily mean that the act is constitutionally flawed under the Fifth Amendment. The validity of the statutes depends upon the scope of the immunity granted under the act and not upon the fact that the statutes are aimed at enforcement of the criminal laws and may target a selective group inherently suspect of criminal activity. The ultimate test which must be applied is whether the immunity granted is “so broad as to have the same extent in scope and effect” as the Fifth Amendment privilege against self-incrimination. Marchetti v. United States, 390 U.S. at 58; Counselman v. Hitchcock, 142 U.S. 547, 585, 35 L. Ed. 1110, 12 S. Ct. 195 (1892).
The United States Supreme Court cases relied upon by the defendants, while addressing the issue of the privilege against self-incrimination arising from a number of somewhat analogous statutes, are clearly distinguishable and not controlling here.
Albertson v. SACB, 382 U.S. 70, involved statutes requiring members of the Communist Party to register, under certain circumstances, with the Attorney General. The registration forms required an admission of membership in the Communist Party, which constituted a violation of certain criminal statutes. Although the Subversive Activities Control Act contained provisions against use of incriminating information disclosed in the registration process, the Supreme Court found that Albertson properly invoked his Fifth Amendment privilege because the Act did “not preclude the use of the admission as an investigatory lead, a use which is barred by the privilege.” 382 U.S. at 80.
Marchetti v. United States, 390 U.S. 39, and Grosso v. United States, 390 U.S. 62, 19 L. Ed. 2d 906, 88 S. Ct. 709 (1968), are companion cases involving the failure to register and pay excise and occupational taxes on wagering. Marchetti and Grosso were convicted of violations of the federal wagering tax statutes. In finding that compliance with the statutes violated the Fifth Amendment privilege against self-incrimination, the Supreme Court stated in Marchetti:
“Information obtained as a consequence of the federal wagering tax laws is readily available to assist the efforts of state and federal authorites to enforce these penalties. Section 6107 of Title 26 requires the principal internal revenue offices to provide to prosecuting officers a listing of those who have paid the occupational tax. Section 6806(c) obliges taxpayers either to post the revenue stamp ‘conspicuously’ in their principal places of business, or to keep it on their persons, and to produce it on the demand of Treasury officers. Evidence of the possession of a federal wagering tax stamp, or of payment of the wagering taxes, has often been admitted at trial in state and federal prosecutions for gambling offenses; such evidence has doubtless proved useful even more frequently to lead prosecuting authorities to other evidence upon which convictions have subsequently been obtained. Finally, we are obliged to notice that a former Commissioner of Internal Revenue has acknowledged that the Service ‘makes available’ to law enforcement agencies the names and addresses of those who have paid the wagering taxes, and that it is in ‘full cooperation’ with the efforts of the Attorney General of the United States to suppress organized gambling.” 390 U.S. at 47-48.
Not only was there no confidentiality imposed upon the information obtained under the Act, the information was intentionally made available to other federal agencies and states to assist in their prosecution of other crimes.
Haynes v. United States, 390 U.S. 85, 19 L. Ed. 2d 923, 88 S. Ct. 722 (1968), involved statutes which required the registration of certain types of prohibited firearms with the Secretary of the Treasury. Registration as required by the National Firearms Act could lead directly to the prosecution of a separate criminal offense. In a prosecution under one section of the Act, Haynes invoked his privilege against self-incrimination based upon a failure to register the firearm under another section of the Act. The Court held that Haynes could properly invoke his privilege because the furnishing of the information required of registrants was “likely to facilitate their arrest and eventual conviction.” 390 U.S. at 97.
In Leary v. United States, 395 U.S. 6, 23 L. Ed. 2d 57, 89 S. Ct. 1532 (1969), the Supreme Court was faced with a Fifth Amendment challenge to the federal Marijuana Tax Act (26 U.S.C. § 4741 et seq. [1982]). In an exhaustive opinion, the Supreme Court found that one significant purpose of the act was the furnishing of information to prosecutors for use in other criminal prosecutions aimed at illegal drug traffic. The Supreme Court specifically referred to its earlier holdings in Marchetti, Grosso, and Haynes, and found that Leary’s claim of privilege was properly invoked. In all of these cases, there was insufficient protection against use in other criminal prosecutions of information obtained by compliance with the various statutes. The Supreme Court refused to construe the various statutes in question to provide the necessary immunity from other prosecutions, stating that it was apparent that one of the objectives of Congress was to facilitate criminal prosecution based upon information obtained from compliance with the statutes.
The Kansas drug tax act presents an entirely different situation. The act specifically grants protection against use of any information gained through compliance with the act in all criminal prosecutions, except those involving violations of the act itself. Thus, it appears to us that the legislature contemplated the act should provide for protection against any violation of the Fifth Amendment privilege against self-incrimination. The confidentiality provisions of the act itself are strengthened by K.S.A. 1988 Supp. 75-5133. K.S.A. 1988 Supp. 79-5209, which states that nothing in the act shall provide immunity from other criminal prosecution, does not dilute or affect the confidentiality provided by 79-5206.
The only remaining question is whether the immunity extended by the statute ‘“is so broad as to have the same extent in scope and effect’ as the privilege itself.” Marchetti, 390 U.S. at 58.
The district court, in case No. 62,560 held that the statute fails to provide absolute immunity and does not prohibit use of the information for investigatory leads, a use the court held was barred by the privilege. Defendants also raise this argument on appeal. For a statutory grant of immunity to be coextensive with the privilege against self-incrimination, it must grant not only use immunity, or protection from the direct use of compelled incriminatory information, but also derivative-use immunity, which prohibits use of any such information for investigatory purposes leading to other evidence of criminal activity. This court not only has the authority, but also the duty, to construe a statute in such a manner that it is constitutional if the same can be done within the apparent intent of the legislature in passing the statute. To accomplish this purpose the court may read the necessary judicial requirements into the statute. In re Adoption of Baby Boy L., 231 Kan. 199, Syl. ¶ 13, 643 P.2d 168 (1982); State v. Motion Picture Entitled “The Bet,” 219 Kan. 64, 547 P.2d 760 (1976); State v. Gunzelman, 210 Kan. 481, 502 P.2d 705 (1972); State v. Hart, 200 Kan. 153, 434 P.2d 999 (1967). We think it is obvious, and we so hold, that the legislature, by its enactment of 79-5206 as a part of the act, intended to extend not only use immunity but also derivative-use immunity to any person complying with the act. As construed, the immunity granted by the act is at least coextensive with the privilege against self-incrimination provided by the Fifth Amendment of the United States Constitution, and the act as so construed is constitutional.
We hold that, under the terms of K.S.A. 1988 Supp. 79-5201 et seq., all information obtained through compliance with the act is confidential and may not be used as evidence in the prosecution for any crimes, other than the enforcement of the act itself. We further hold that any evidence obtained through the use of any confidential information gained through compliance with the act is likewise confidential and inadmissible in the prosecution of any criminal offense, other than for the enforcement of the Kansas drug tax act itself.
Finally, the State, in its reply brief in case No. 62,560, relies heavily on a recent Minnesota case upholding the constitutionality of virtually identical statutes over many of the same arguments made by the defendants in this case. See Sisson v. Triplett, 428 N.W.2d 565 (Minn. 1988). The opinion in that case is highly persuasive authority that our statutes do not violate the privilege against compelled self-incrimination. While much that is said in Sisson is applicable and would be worthy of repetition here, we see no reason to further extend an already too lengthy opinion.
We have considered all of the various arguments presented by the defendants in both of these cases and we conclude that the Kansas drug tax act, K.S.A. 1988 Supp. 79-5201 et seq., as construed herein does not violate the Fifth Amendment prohibition against self-incrimination and is not unconstitutional on such grounds.
The judgment is reversed in State v. Durrant, case No. 62,446, and the case is remanded for further proceedings. The appeal in State v. Dressel, case No. 62,560, is sustained. | [
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The opinion of the court was delivered by
Holmes, J.:
Lorie A. Walker appeals her convictions of two counts of aggravated criminal sodomy (K.S.A. 1987 Supp. 21-35Q6[a]); two counts of endangering a child (K.S.A. 21-3608); and one count of making a terroristic threat (K.S.A. 1987 Supp. 21-3419[l][a]). She raises four issues in this appeal, none of which has merit. We affirm.
The victims in this sordid case were the two young stepsons of the appellant. Lorie A. Walker, the appellant, married Douglas Walker, Sr., in April 1986. He had been left a widower with two sons when his former wife died of Huntington’s chorea, a genetic disorder. At the time of trial, B.W. was age 12 and D.W. was age 9. B.W., like his natural mother, suffers from Huntington’s chorea. D.W. is hyperactive and requires regular medication to control his behavior. While the youngster’s father worked during the daytime hours, their stepmother, Lorie, cared for them.
The family moved from Cedar Rapids, Iowa, to Kansas City, Kansas, in June 1986. In July 1986, Kansas City authorities were alerted by an Iowa social services agency that there was a possibility the children were being abused or neglected. Throughout the fall months, the boys’ teachers, school social worker, and Department of Social and Rehabilitation Services (SRS) personnel became concerned that B.W. was being physically abused and that D.W. was not receiving regular medication to control his hyperactive behavior. In early December 1986, the police removed both boys from the family home after B.W., having suffered particularly severe blows to his face, told an SRS social worker and the police that his mother had struck him, apparently with a board.
On January 6, 1987, appellant was charged with one count of child abuse, K.S.A. 1987 Supp. 21-3609, for beating B.W. She was also charged in the same information with two counts of endangering a child, one count for each of her two stepsons.
While the two boys were in foster care, their behavior instigated an investigation into possible sexual abuse. The younger boy ultimately told an SRS child protection social worker that appellant had forced him and his brother B.W. to perform oral sex upon her while their father watched and encouraged them. Appellant later voluntarily admitted to a Wyandot Mental Health Center therapist that she had repeatedly forced the two boys to perform oral sex on her. On March 6, 1987, an information was filed charging both appellant and Douglas Walker, Sr., with two counts of aggravated criminal sodomy.
B.W. was admitted to the child psychiatric unit at the University of Kansas Medical Center (KUMC) on January 6, 1987. The primary reason for his admission was that he had exhibited behavior problems while in foster care. His father and stepmother visited B.W. frequently, but on several occasions they were asked to leave because of their disruptive behavior. On March 3, 1987, the Walkers attended a meeting at KUMC regarding restrictions to be imposed on their visitations with B.W. The Walkers were informed that only Mr. Walker would be permitted to visit B.W. Appellant, angered because she was to be prohibited from visiting B.W. at KUMC, directed the following epithet to Florice Bales, the hospital social worker: “You are a fucking dead bitch; I’m-I’m going to find your house and blow it up.” Appellant then walked out of the meeting. Mr. Walker thereafter made threatening statements to Dr. Kristopher Wendler, who was also in the room during the meeting. On March 19, 1987, both appellant and Douglas Walker, Sr., were charged with two counts of making a terroristic threat, naming Ms. Bales and Dr. Wendler as the victims.
Douglas Walker, Sr., testified for the State at appellant’s trial, having apparently decided to enter a plea. Appellant was found guilty by a jury of two counts of aggravated criminal sodomy, two counts of endangering a child, and one count of terroristic threat. The jury was unable to reach a unanimous verdict on the charge of abusing B.W. A mistrial was declared as to that charge, and the charge was dismissed. The appellant was acquitted of the charge of making a terroristic threat to Dr. Wendler. Additional facts will be set forth as they become pertinent to the various issues asserted in this appeal.
Appellant, for her first issue, asserts it was error to consolidate the trial of the two counts of making a terroristic threat with the trial of the charges in the other two informations. K.S.A. 22-3203 provides:
“Consolidation for trial of separate indictments or informations. The court may order two or more complaints, informations, or indictments against a single defendant to be tried together if the crimes could have been joined in a single complaint, information or indictment.”
The rule on joinder of charges is stated in K.S.A. 22-3202(1), which reads:
“Two or more crimes may be charged against a defendant in the same complaint, information or indictment in a separate count for each crime if the crimes charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.” (Emphasis added.)
Whether a defendant may be tried on two or more complaints, informations, or indictments in a single trial rests in the sound discretion of the trial court, within the guidelines established in statute and case law, and its holding will not be disturbed on appeal absent a clear showing of abuse of discretion. State v. Breazeale, 238 Kan. 714, 729, 714 P.2d 1356, cert, denied 479 U.S. 846 (1986); State v. Boan, 235 Kan. 800, 806, 686 P.2d 160 (1984); State v. Bagby, 231 Kan. 176, 178, 642 P.2d 993 (1982); State v. Adams, 218 Kan. 495, 506, 545 P.2d 1134 (1976), and cases cited therein. Even if the trial court’s consolidation order is determined to be an abuse of discretion, the defendant has the burden of showing prejudice requiring reversal. State v. Thomas, 206 Kan. 603, 609, 481 P.2d 964 (1971).
While it is true that the charges of terroristic threat are not of the same or similar character or based upon the same acts or transactions as the other charges against appellant, the State does not rely upon those criteria of the statute. Instead, the State asserts that the terroristic threat charges are “acts or transactions connected together” with the charges of aggravated criminal sodomy, child abuse, and endangering a child. If the acts are connected together, the dissimilarity of the crimes, standing alone, does not bar consolidation. State v. Thomas, 206 Kan. at 608-09.
For support of its argument, the State relies primarily on State v. Pondexter, 234 Kan. 208, 671 P.2d 539 (1983), and State v. Moore, 226 Kan. 747, 602 P.2d 1359 (1979).
In Moore, the defendant was initially charged with aggravated robbery and kidnapping. In the original trial, the jury was unable to reach a verdict and the case ended in a mistrial. Shortly thereafter, the defendant was charged with corruptly influencing a witness and unlawful deprivation of property. The second charge essentially alleged that Moore had solicited a third party to testify falsely in a way that would have presumably assisted in his defense on the original charge of aggravated robbery and kidnapping, and that Moore unlawfully deprived the third party of his property when he changed his mind and refused to testify on Moore’s behalf. Moore was subsequently tried on both complaints and convicted in a consolidated trial. This court reasoned:
“K.S.A. 22-3202 and K.S.A. 22-3203 correspond to Rules 8(a) and 13 of the Federal Rules of Criminal Procedure. The federal cases consistently hold that when criminal conduct resulting in a second charge is precipitated by a previous charge, the two are considered sufficiently ‘connected together’ to allow consolidation for trial. For example, ‘a charge of bail jumping or escape may be deemed sufficiently “connected” with a substantive offense to permit a single trial, at least where the charges are related in time, the motive for flight was avoidance of prosecution, and appellant’s custody stemmed directly from the substantive charges.’ United States v. Ritch, 583 F.2d 1179, 1181 (1st Cir.), cert, denied 439 U.S. 970 (1978). Similar results were reached in United States v. Bourassa, 411 F.2d 69, 74 (10th Cir. [Kan.] 1969); United States v. Quinones, 516 F.2d 1309 (1st Cir.), cert, denied 423 U.S. 852 (1975). In Williams v. United States, 265 F.2d 214 (9th Cir. 1959), it was held that a charge of obstruction of justice was properly joined for trial with a charge of statutory rape when the obstruction charge was the result of the defendant’s persuasion of the victim in the statutory rape charge to repudiate her earlier statement of intercourse with defendant. Applying the reasoning of the federal cases to the factual circumstances in this case, we hold that the two criminal cases against the defendant Moore were properly consolidated for trial under the Kansas statutes. The crimes of aggravated robbery and kidnapping were ‘connected together’ with the charge of corruptly influencing a witness because the crime charged in 78 CR 629 precipitated the conduct charged in 78 CR 1659.” State v. Moore, 226 Kan. at 749-50.
In Pondexter, the court quoted at length from Moore and then reasoned:
“The case at bar is factually similar to the situation in Moore. Here the evidence presented by the State indicates the appellant wanted to kill Mullikin to prevent him from testifying at his trial for unlawful possession of a firearm and aggravated assault on a law enforcement officer. Clearly the crimes charged in the earlier action precipitated the conduct resulting in the attempted murder and burglary charges. The charges arising out of the two incidents were properly consolidated for trial.” 234 Kan. at 217.
While the charges in Moore and Pondexter were, perhaps, more directly connected together, the charges of terroristic threat in the present case resulted from the original charges of child abuse and endangering a child. The earlier charges precipitated the factual setting which led appellant to make the threat against Ms. Bales. Even if the separate charges were not sufficiently connected together to warrant consolidation, as appellant con tends, she must also demonstrate prejudice which would justify reversal. In the present case the evidence was overwhelming on the most serious charges. The fact that the jury found the appellant not guilty on one of the terroristic threat counts and could not agree on one count of child abuse indicates that the jury carefully considered the evidence and each separate charge. No showing of prejudice in consolidating the three informations has been shown, and we find no abuse of discretion by the trial court.
The second issue is whether two remarks made by the prosecuting attorney during closing argument were so prejudicial as to require reversal of appellant’s convictions. The appellant concedes that no objection was made at trial to the prosecutor’s closing argument. Nor did appellant’s counsel request that the trial court admonish the jury to disregard the challenged statements. Furthermore, the issue was not raised in the defendant’s motion seeking a new trial. This court has repeatedly held that reversible error cannot be predicated upon a complaint of misconduct of counsel in closing argument where no objection was lodged. State v. McDaniel & Owens, 228 Kan. 172, 179, 612 P.2d 1231 (1980); State v. Cunningham, 222 Kan. 704, 707, 567 P.2d 879 (1977); State v. Ralls, 213 Kan. 249, 250, 515 P.2d 1205 (1973). No reversible error has been shown.
For the third issue on appeal the appellant contends there was insufficient evidence to support her convictions of two counts of endangering a child. K.S.A. 21-3608(l)(b) provides:
“(1) Endangering a child is willfully:
“(b) Unreasonably causing or permitting a child under the age of eighteen (18) years to be placed in a situation in which its life, body or health may be injured or endangered.”
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 considers only the evidence in favor of the verdict to determine whether the essential elements of a charge are sustained. State v. Dunn, 243 Kan. 414, 429, 758 P.2d 718 (1988).
Appellant first argues that there was no evidence of wilfullness or unreasonableness, asserting that, as a stepparent, she had no legal duty to care for the children. This argument has no merit. The statute does not require the State to prove that the offender had any independent legal duty to the victim, but only that the conduct was wilful and unreasonable. The appellant was the stepmother of the two boys and their daytime caretaker. It was the jury’s duty to determine whether the appellant’s conduct toward her stepsons violated the statute, given her relationship to them.
Appellant also argues that there was insufficient evidence to show that she placed the children in a potentially dangerous situation or to show that the life, body, or health of either child may have been endangered. The State, in its brief, summarizes the evidence as follows:
“[B.W.], age twelve, suffered beatings from his stepmother, Lorie Walker, since June of 1986. He received black eyes, bruising on his forehead, swelling on the bridge of his nose and a cut lip from Lorie Walker, which was noticed and reported by his school social worker on December 9,1986. Lorie Walker struck [B.W.] in the face several times with her fist because he wasn’t paying attention on December 7, 1986, at their residence on Tremont.
“According to the Social [and] Rehabilitation Services workers and school personnel, both [stepchildren] were denied necessary medical treatment and medication for their respective medical problems from September 1986 until December 1986. [B.W.] suffers from a terminal disease called Huntington’s Chorea. Lorie Walker was aware of the severity of [his] illness and was with him in Cedar Rapids, Iowa, when he was diagnosed. Lorie Walker also knew [D.W.], age nine, suffers from hyperactivity and has a fifty-fifty chance of later contracting Huntington’s Chorea. Both children require daily dosages of medication and treatment from a doctor on a regular basis. Without such attention and treatment the condition of both children significantly deteriorates. Dr. K. Wendler testified that [B.W.’s] failure to receive medication or receiving it inconsistently directly affected the quality of [his] life. Mary Kate Beckham, [D.W.’s] school teacher, testified that [he] was completely uncontrollable without his medication. She readily noted the change in his behavior when he received it; and, that she finally tried to go through Children’s Mercy Hospital directly on her own to get the necessary drugs for [him]. Lorie Walker refused to seek treatment for the children or administer medication, even after efforts from Social [and] Rehabilitation Services and school personnel to get her to do so.
“Both [children] went to school in cold weather without coats, jackets, or even a sweater. Their clothes were often described as filthy. Both children were always unusually hungry.
“The condition of the Walker home located on North Tremont was deplorable. The school social worker testified that on every occasion she went to the Walker home, she noted a terrible odor. There was always dirty clothing everywhere and on one day there was an injured dog laying in the living room. . . .
“Upon making the child abuse and endangerment reports to the police, both children were taken to Bethany Medical Center and placed in foster care. While in Social and Rehabilitation Services custody, [D.W.] revealed to Clark Marquez of Social and Rehabilitation Services and Detective W. K. Smith that Lorie Walker, his stepmother, abused him and his brother, [B.W.], sexually. Lorie Walker forced the boys to perform oral sex on her as their ‘treats’ for good behavior or as ‘punishment’ for bad behavior.”
While the evidence on the charges of endangering a child may not have been overwhelming, we cannot say under our standard of review that it was insufficient to support the charges.
The fourth and final issue is whether K.S.A. 21-3608(l)(b) is unconstitutionally vague and indefinite for failing to adequately convey the class of persons subject to criminal liability for endangering a child. The record does not reflect that this issue was ever raised before the trial court. Where constitutional grounds for reversal are asserted for the first time on appeal, they are not properly before the appellate court for review. State v. Johnson, 240 Kan. 326, 332, 729 P.2d 1169 (1986).
The judgment is affirmed. | [
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On the 8th day of March, 1979, Leo N. Johnson was indefinitely suspended from the practice of law in Kansas. In re Johnson, 225 Kan. 466, 592 P.2d 102 (1979). He was reinstated on December 18, 1979, and again indefinitely suspended on March 24, 1980. In re Johnson, 227 Kan. 478, 608 P.2d 1012 (1980).
On the 8th day of March, 1988, Mr. Johnson filed a petition with this court for reinstatement to the practice of law in Kansas. The petition was referred to the disciplinary administrator for consideration by the Kansas Board for Discipline of Attorneys pursuant to Supreme Court Rule 219 (1988 Kan. Ct. R. Annot. 135). On November 3, 1988, a hearing was held before a panel of the disciplinary board in the Kansas Judicial Center, Topeka, Kansas.
On January 3, 1989, the panel filed its report setting out the circumstances leading to Mr. Johnson’s suspension, a summary of the evidence presented, and the panel’s findings and recommendations. The petitioner’s excessive use of alcoholic beverages resulting in the neglect of his law practice was the primary factor for the indefinite suspension orders. The reinstatement order issued on December 18, 1979, was conditioned upon Mr. Johnson’s total abstention from the use of any and all intoxicating liquor, including 3.2 percent beer. His inability to honor that condition resulted in the indefinite suspension order on March 24, 1980. The panel is convinced that Mr. Johnson has rehabilitated himself from his alcoholism and has maintained sobriety for the past four and one-half years. The panel unanimously recommended that Mr. Johnson be reinstated to the practice of law in Kansas. The panel further recommended that Mr. Johnson’s reinstatement be conditioned upon his attending and completing the Kansas Bar Review course and completing 15 hours of CLE within one year of his reinstatement, and that his law practice be supervised by a licensed practicing attorney for one year after reinstatement.
The court, after carefully considering the record, finds that Mr. Johnson should be reinstated to the practice of law. The court further finds that Mr. Johnson should be required to complete 15 hours of approved CLE, in addition to that required by Supreme Court Rule 802 (1988 Kan. Ct. R. Annot. 326), within one year from the date of reinstatement. The court further finds that Mr. Johnson attended the Bar Review course at the University of Kansas School of Law, commencing January 17 and ending February 11, 1989.
Effective this 20th day of March, 1989.
It is Therefore Ordered that Leo N. Johnson be and he is hereby reinstated to the practice of law in the State of Kansas, conditioned upon his completion of 15 hours of approved CLE, in addition to that required by Supreme Court Rule 802, within one year of reinstatement, and the Clerk of the Appellate Courts is directed to enter his name upon the roster of attorneys authorized to practice law in Kansas. Petitioner shall file with the court an affidavit showing completion of the required CLE hours and the Continuing Legal Education Commission shall certify to the court the number of CLE credit hours earned by petitioner in the one year following his reinstatement.
It is Further Ordered that petitioner shall totally abstain from the use of any and all intoxicating liquor and beverages, including 3.2 percent beer.
It is Further Ordered that, in the event petitioner fails to abstain from the use of intoxicating beverages, including 3.2 percent beer, a Show Cause order may issue to the petitioner and the court may take whatever disciplinary action, including disbarment, as it deems just and proper without further formal proceedings.
It is Further Ordered that this order shall be published in the official Kansas Reports. | [
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The opinion of the court was delivered by
Herd, J.:
Daniel Reser appeals his jury convictions of five counts of rape, K.S.A. 1987 Supp. 21-3502, and three counts of aggravated criminal sodomy, K.S.A. 1987 Supp. 21-3506. Reser was sentenced to concurrent terms of imprisonment of five to twenty years on each count.
The victim was 14 years old on the morning of June 15, 1987. Her stepfather, Daniel Reser, came into her bedroom after her mother had gone to work. Reser awakened his stepdaughter by tearing aside her blankets and her nightclothes. He then raped her.
On the afternoon of June 20, the victim was on the phone with a classmate when the classmate heard her repeatedly asking Reser “to stop.” The victim then hung up, ashamed because Reser was undressing her as she talked. Reser then threw the victim on the floor and raped and sodomized her.
On the morning of July 4, the victim was in bed asleep. There were guests staying in the house over the holiday, so the victim shared her bed with a 4-year-old boy. At about 7:00 a.m. Reser entered the victim’s bedroom. He played with her breasts, put his hand inside her clothes, and put his finger in her anus. Although the victim could hear people talking downstairs, she testified she did not cry out because she did not want her mother and the little boy’s mother to have to find out what Reser was doing to her. The little boy remained asleep throughout this incident.
On July 6, Reser raped the victim while she was alone at home. On another morning a few days before the victim went to cheerleading camp on July 20, Reser raped and sodomized her while her mother was at work. Reser again raped his stepdaughter on the morning of July 24, just after she returned from camp.
After the first incident, the victim began staying away from home with friends and relatives as often as she could to avoid Reser. On August 1, the victim’s mother found a note from her daughter stating she was going to live with her sister. The mother went to where the victim worked and told her she must remain at home. She asked what the problem was and the victim started crying and said, “Mom, you don’t want to know.” The mother asked the victim if Reser had “gotten fresh” with her. She asked this because Reser had once told her he was sexually aroused by the victim. The victim finally told her mother of Reser’s actions.
When confronted by his wife, Reser denied anything had happened. He then left the house and went to the police station to talk to his good friend, Ronald Dean, the town’s chief of police. After a casual conversation, Reser began talking about how the victim had “become wild.” He said he could see her while she bathed when he stood outside and looked through the window curtains. Reser ultimately told Dean he had had sexual intercourse with the victim. At trial, Reser acknowledged talking to his friend on August 1 but denied stating he had had sexual intercourse with the victim.
Helen Swan, a licensed social worker, testified for the State. Swan evaluated the victim on two different dates for a total of about four hours. She told the court she diagnosed the victim as suffering from post-traumatic stress disorder.
The defense objected, claiming Swan did not qualify as an expert qualified to diagnose or testify concerning post-traumatic stress syndrome. The trial court found Swan qualified as an expert after hearing her qualifications and the proposed testimony outside the presence of the jury.
Swan is not a psychologist or psychiatrist. She is an international expert on the subject of child abuse. She is licensed as a clinical specialist in Kansas and has a master’s degree in social work from the University of Kansas. She has had twelve years of experience in the area of mental health: the first seven with the Johnson County Mental Health Center, and the last five in private practice specializing in child abuse cases. She has worked with over 200 cases of abuse. She has qualified as an expert witness in sexual abuse cases in Nebraska, Missouri, and Oklahoma as well as Kansas. She has been recognized on two separate occasions by the governor’s conference in Kansas for her work and has received an award from the National Committee for the Prevention of Child Abuse, which is given to one person in the nation each year. She has published books and articles on the subject and has recently presented papers at international conferences on child abuse in Montreal, Amsterdam, and Paris. Swan is listed as an expert in child sexual abuse cases in the prosecutor’s manual for child sexual abuse cases published in 1985 by the Kansas Bar Association.
Swan did not use the term post-traumatic stress syndrome before the jury, but testified that children who are sexually abused tend to report fairly consistent symptoms or common patterns of behavior resulting from the trauma. She noted children seldom report sexual abuse immediately, “particularly within family situations.” The great majority “tend to keep it inside because they think it will go away or they don’t want to embarrass people or they don’t want to embarrass themselves.”
Swan testified she had sufficient data to form an opinion as to whether the victim showed symptoms consistent with sexual abuse. She was of the opinion the victim exhibited behavior consistent with a child who had been sexually abused.
While the briefs of both parties leave the impression Swan testified the victim suffered from post-traumatic stress syndrome or rape trauma syndrome, that did not occur. The record is clear that Swan testified only as to traits and patterns common to victims of sexual child abuse and that the victim exhibited some of these traits. She did not go into an explanation of the post-traumatic stress syndrome, nor did she try to narrow it to rape trauma syndrome.
The first issue on appeal is whether Swan’s testimony was inadmissible because Reser did not claim consent as a defense. Kansas cases so far have allowed expert testimony on characteristics shown by rape victims only where the defense is consent. Reser’s sole defense was that he was not present when the offenses were alleged to have taken place. He made no attempt to show his stepdaughter was not the victim of sexual abuse. Reser’s defense did, however, necessarily imply the victim lied when she identified him as her assailant.
It is fundamental that in order for expert testimony to be admitted into evidence at trial it must be helpful to the jury. State v. Hodges, 239 Kan. 63, Syl. ¶ 1, 716 P.2d 563 (1986). Reser argues that evidence of the characteristics exhibited by sexually abused children did not aid the jury in the case at bar because he never denied his stepdaughter had been sexually abused. However, his argument ignores the requirement the State must prove every element of the crime charged, which included rape and sodomy. The victim’s behavior subsequent to reported assaults is relevant corroborating evidence of the assaults. We find no error.
The second issue is whether there was adequate foundation to qualify Swan as an expert. The defense argues there was no showing Swan was qualified to diagnose symptoms consistent with child abuse or that the basis for her conclusions were accepted within her field of social work or within the fields of psychology or psychiatry.
Before an expert opinion may be received in evidence at trial, the basis of that opinion must be shown to be generally accepted as reliable within the expert’s particular field. State v. Marks, 231 Kan. 645, Syl. ¶ 7,647 P.2d 1292 (1982). In Marks, we found rape trauma syndrome to be generally accepted as a common reaction to sexual assault so that such diagnosis by a psychiatrist was admissible. Here, the question is whether a social worker with great experience in sexual abuse cases is qualified to testify a victim exhibits some of the characteristics commonly found in sexually abused children.
The basis for admission of expert testimony is necessity, aris ing out of particular circumstances of a case where the normal experience of jurors needs augmentation to help them draw proper conclusions from the facts. State v. Hodges, 239 Kan. 63, Syl. ¶ 1. K.S.A. 60-456 limits expert testimony in the form of opinions or inferences to those based either on data perceived by or personally made known to the witness at the hearing or “within the scope of the special knowledge, skill, experience, or training possessed by the witness.” K.S.A. 60-419 provides there must be evidence that a witness has personal knowledge of a material matter or “experience, training or education if such be required.”
Whether a particular witness possesses the knowledge and experience to aid the jury and to testify as an expert concerning a material matter rests within the sound discretion of the trial court. State v. Marks, 231 Kan. at 655. When expert testimony is received in evidence the trial court is deemed to have made the findings required to support the qualification of the witness as an expert and its decision may not be reversed by this court unless we find an abuse of discretion. State v. McClain, 216 Kan. 602, 606, 533 P.2d 1277 (1975).
In State v. Marks, 231 Kan. 645, we unanimously held the trial court did not abuse its discretion in allowing expert testimony of a psychiatrist that the victim was suffering from rape trauma syndrome. We held the presence of rape trauma syndrome is relevant when a defendant argues the victim consented. 231 Kan. at 654.
Marks was reaffirmed by a divided court in State v. McQuillen, 236 Kan. 161, 689 P.2d 822 (1984). We held the trial court erred in refusing to allow expert testimony by a psychiatrist that the victim was suffering from rape trauma syndrome. The psychiatrist did not state that in his opinion the victim was raped or that the defendant raped her.
In McQuillen, we discussed three opinions which refused to allow expert testimony on rape trauma syndrome. In People v. Bledsoe, 36 Cal. 3d 236, 203 Cal. Rptr. 450, 681 P.2d 291 (1984), the witness was a counselor with a master’s degree in a combined psychology and sociology program with experience with rape victims. She testified it was her opinion a 14-year-old girl suffered from rape trauma syndrome. She did not testify the victim was raped or that the defendant was the rapist. The court held the syndrome inadmissible for the purpose of proving a rape occurred, although it might be relevant where the defendant attempts to play upon commonly held myths concerning how individuals react to rape by arguing the victim’s actions were inconsistent with rape.
In State v. Taylor, 663 S.W.2d 235 (Mo. 1984), the court, although agreeing that rape trauma syndrome is generally accepted as a common reaction to sexual assault, found the trial court erred in allowing a psychiatrist to testify the victim suffered from rape trauma syndrome as a result of the defendant’s actions. The court held that, although a qualified expert may testify the victim exhibits characteristics consistent with those resulting from a traumatic stress reaction, such as rape, the expert’s testimony went too far into the issue of the victim’s credibility.
Finally, in State v. Saldana, 324 N.W.2d 227 (Minn. 1982), a counselor for sexual assault victims with a bachelor of arts degree in social work and psychology testified as an expert witness that in her opinion the victim had been raped. The Minnesota court found the witness was not qualified to render an opinion as to whether the victim was telling the truth that she had been raped. It further found no expert could be allowed to testify as to the credibility of an adult victim of normal intelligence, and that no evidence of rape trauma syndrome could be allowed as it had not yet been proven to be of such reliability as to outweigh the prejudice caused the defendant by its creation of an aura of special reliability.
The Supreme Court of Minnesota distinguishes between admission of expert testimony on characteristics of sexual abuse for competent adults and for children. In State v. Myers, 359 N.W.2d 604 (Minn. 1984), the court found admissible a psychologist’s testimony that he observed in the victim characteristics typically found in sexually abused children. Consent was not a defense to the crime and was not claimed by the defendant. The court found the nature of sexual abuse of children places lay jurors at a disadvantage, especially in incest cases. As incest is prohibited in almost all cultures, it was found to be beyond the common experience of the jury. Disclosure is often delayed because of the child’s confusion, shame, and fear. Not only does this make prosecution of these crimes more difficult, but the jury may, without an adequate foundation in common responses to such crimes, draw the wrong conclusion from the facts.
In State v. Bressman, 236 Kan. 296, 689 P.2d 901 (1984), we held the trial court committed prejudicial error in allowing an emergency medical physician without special training in psychiatry to testify as an expert witness. The doctor had seen over 30 individuals who had reported they had been raped. She testified not only as to common characteristics and emotional problems in these individuals and that the victim in the case had such symptoms, but also gave her opinion that the victim had indeed been raped. We held there was no showing that the basis for the doctor’s conclusions was generally accepted in the field of psychiatry or that the doctor was qualified to make such a conclusion. We emphasized that Marks did not allow an expert witness to state an opinion that the victim had in fact been raped. We also distinguished Marks in that the appellant in Bressman denied that any sexual intercourse took place at all, rather than relying on the defense of consent.
In State v. Lash, 237 Kan. 384, 699 P.2d 49 (1985), we reaffirmed the distinction between expert testimony that the victim exhibited characteristics consistent with sexual abuse and an opinion that the victim was abused or that the defendant was the abuser. We denied the State’s appeal from the trial court’s ruling that a psychologist could not testify as to his opinion that a fifteen-year-old boy had been sexually molested by his father.
In State v. Jackson, 239 Kan. 463, 721 P.2d 232 (1986), we similarly reversed and remanded, holding the trial court erred in allowing two social workers to testify as to their opinions that a child victim was telling the truth and had been sexually abused by the defendant. The appellant in that case did not challenge the qualifications of the two social workers, who had extensive training and experience in child abuse investigation. We nevertheless partially distinguished the case from Bressman by finding there was sufficient foundation for the social workers to qualify as expert witnesses, as opposed to a medical doctor without specialized training. 239 Kan. at 469-70.
We again heard the McQuillen case after retrial in State v. McQuillen, 239 Kan. 590, 721 P.2d 740 (1986), where we held the court did not err in allowing a psychiatrist to testify as an expert witness. The psychiatrist “merely testified as to the symptoms and behaviors that are outlined in the literature as being consistent with rape trauma syndrome, and that he observed those symptoms in this victim.” 239 Kan. at 593. We affirmed the appellant’s conviction, as the expert did not testify that in his opinion the victim was telling the truth, or that she had been raped, or that she had been raped by the appellant. The original McQuillen opinion implies the defendant argued consent. 236 Kan. at 172.
In the case at bar, the defense relies on State v. Black, 537 A.2d 1154 (Me. 1988), in which the court found only part of an expert’s testimony was admissible. A psychiatric nurse with a master’s degree in child psychology qualified, without objection, as an expert in a case in which a young boy was abused. The court held the expert’s testimony proper to explain to the jury that a person who suffers a traumatic experience may have difficulty relating that experience in a chronological manner when the defendant attempted to use the victim’s inconsistencies as proof the alleged acts did not take place. The court found inadmissible the expert’s testimony that the child exhibited characteristics common to children who had been sexually abused. The expert testified that in her opinion a male adult in a trust relationship with the victim had sexually abused the victim by anal intercourse. The court found the validity of the expert’s summary of symptoms encountered in sexually abused children was seriously impaired by selection bias because no comparison testing was done with children who were not victims of sexual abuse.
The instant case differs from Black in that here, the witness merely testified as to characteristics common to children who had been sexually abused and gave her opinion that the victim in this case exhibited some of these characteristics. In Black, the witness exceeded the diagnostic abilities accepted in her field by specifying that the victim had been sexually abused by anal intercourse with a male adult the victim trusted.
There are numerous cases from other jurisdictions where expert testimony regarding characteristics of sexually abused children has been held properly admitted as providing helpful background information to the jury.
In Rodriquez v. State, 741 P.2d 1200 (Alaska App. 1987), an expert’s testimony concerning common characteristics of sex ually exploited children and a conclusion that the victim’s behavior was consistent with this pattern was held admissible. The court found a significant difference between an expert witness testifying that a victim was telling the truth and a witness stating that the behavior of a victim falls within a common pattern. The expert witness was a social worker with a master’s degree who had experience with sexually abused children.
In Poyner v. State, 288 Ark. 402, 705 S.W.2d 882 (1986), a school counselor with a master’s degree in psychology who had been involved in over 25 child abuse cases testified as to common characteristics of sexually abused children. The court found the witness qualified as an expert because her education and experience with respect to child abuse were greater than those of ordinary persons and would be helpful to the jury in explaining the victims’ reluctance to report their father’s abuse.
In Kruse v. State, 483 So. 2d 1383 (Fla. Dist. App. 1986), the court upheld expert testimony by a psychiatrist that a child victim was suffering from post-traumatic stress syndrome. The concurring and dissenting opinion argued the expert went too far by also stating her opinion that the child had been sexually assaulted. The defendant had denied the victim’s allegations without claiming consent.
In State v. Le Brun, 37 Or. App. 411, 587 P.2d 1044 (1978), rev. denied 286 Or. 149 (1979), the Oregon court held the trial court did not abuse its discretion in allowing a witness to testify as an expert. The appellant in that case had been convicted of rape and sodomy. The witness had a master’s degree in social work and had worked in a children’s services care unit for sexually and physically abused children. She then undertook employment as a rape victim advocate for a year, where she observed over 100 reported rape victims. The court found the witness was qualified by reason of knowledge and experience to aid the jury as an expert. It found proper the witness’ testimony that the victim’s emotional state comported with that of most sexual abuse victims.
In State v. Radjenovich, 138 Ariz. 270, 674 P.2d 333 (Ariz. App. 1983), the court approved testimony of a counselor who did not have a degree in psychology or psychiatry as an expert for the purpose of “showing that the victim’s post-rape emotional reactions were consistent with other rape victims.” In this case the defense was consent.
Finally, in People v. Hampton, 746 P.2d 947 (Colo. 1987), the court allowed expert testimony of common reactions to rape for the purpose of explaining the victim’s delay in reporting. The expert witness had a master’s degree in psychology and had extensive experience in working with victims of sexual abuse. The defense was alibi.
In State v. Bishop, 240 Kan. 647, 732 P.2d 765 (1987), the examining physician testified that in his opinion the victim had been sexually assaulted. We held the conclusion was error but refused to reverse the case, in part because there was no objection at trial. We also refused to reverse, however, on the grounds that there was abundant evidence in Bishop, aside from the testimony of the examining physician, to support the jury’s verdict that the victim was raped by the defendant. We noted the expert did not testify, as in Lash, 237 Kan. 384, or as in Jackson, 239 Kan. 463, that the victim had been sexually abused by the defendant.
After a careful review of the foregoing cases, we conclude that Helen Swan, who is licensed as a clinical specialist, with a master’s degree in social work, years of experience in the field of child sexual abuse and with world-wide recognition in the field of child sexual abuse, is eminently qualified as an expert to testify as to common patterns of behavior resulting from child sexual abuse and that this victim had symptoms consistent with those patterns.
Tfle final issue is whether the trial court erred in failing to give PIK Crim. 2d 51.07 at the request of the defendant. The instruction provides: “You must consider this case without favoritism or sympathy for or against either party. Neither sympathy nor prejudice should influence you.” The committee on pattern jury instructions recommends this instruction not be given unless there are very unusual circumstances, and suggests that PIK Crim. 2d 52.09 is ordinarily a sufficient guide for the jury. PIK Crim. 2d 52.09 was given. It provides: “It is for you to determine the weight and credit to be given the testimony of each witness. You have a right to use common knowledge and experience in regard to the matter about which a witness has testified.” The committee explains that PIK Crim. 2d 51.07 is normally objectionable in that, rather than telling the jury what to do, it tells it what not to do. We concurred with the committee’s recommendation in State v. Sully, 219 Kan. 222, 226, 547 P.2d 344 (1976).
The defense claims we may not base our decision on the fact the instruction tells the jury what not to consider because the court gave the jury PIK Crim. 2d 51.04, 51.05, and 51.06, all of which include statements explaining to the jury what it must not do. The committee suggests that PIK Crim. 2d 51.05 be given in ordinary cases. This instruction merely states that the jury must not concern itself with the reasons for evidentiary rulings. PIK Crim. 2d 51.04 requires the jury to disregard testimony not admitted into evidence, and PIK Crim. 2d 51.06 requires the jury to disregard statements which are not supported by evidence. These are standard instructions and are firmly rooted in the law.
The defense argues PIK Crim. 2d 51.07 is necessary because the jury was necessarily prejudiced by the disparity between the victim and the defendant. The victim was a 14-year-old high school girl, a cheerleader, and president of her class. The defendant was her 250 pound, 39-year-old stepfather. The incidents occurred in a small community in which it was likely the jurors were acquainted with both the victim and the defendant. The State notes the defendant was steadily employed, married, and had a large number of friends who testified in his behalf. No evidence of prior criminal acts was presented to the jury. There was no media coverage of the charges. The victim was not physically injured.
The defense attempts to analogize the instant case to State v. Rhone, 219 Kan. 542, 548 P.2d 752 (1976), stating that both cases involve sex offenses and young female victims. The analogy is not well taken. Although Rhone raped an 18-year-old woman, it was the testimony of the 50-year-old cancer victim whose home he burglarized which was in issue. The woman was in such an advanced stage of cancer that her doctor recommended her testimony be taken at her home. The appellant agreed to her trial testimony being taken at her home rather than by transcript but requested a jury instruction that “the fact that Mrs. B’s physical health and that we had to go to her home to take testimony should not be considered in any way in giving any additional credibility to her testimony than would be given under the general credibility instruction.” 219 Kan. at 545. We upheld the trial court’s refusal to give the instruction, noting the court had given an instruction in substantial accord with PIK Crim. 2d 51.07.
We have never held a trial court in error for refusing to give PIK Crim. 2d 51.07. The circumstances in which the trial court in Rhone did give the instruction were unusual. The circumstances of the instant case are not unusual in the criminal courts. The issue is without merit.
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The opinion of the court was delivered by
McFarland, J.:
Plaintiff, Mark A. Bridges, suffered personal injuries when he was struck by a truck while he was giving assistance to victims of another vehicular accident. The jury found plaintiff s damages to be $1,018,635.00 and assessed 72% of the fault to Icy Bentley as Special Administrator for George W. Bentley, deceased. The Special Administrator appeals from the judgment, and plaintiff cross-appeals therefrom.
During the evening of June 8, 1984, on Highway 50 east of Garden City, plaintiff was driving a liquid fertilizer truck in a westerly direction. George W. Bentley was driving a pickup truck which was towing an automobile. Bentley attempted to pass plaintiff, was unable to do so, and struck an eastbound station wagon head-on which was being driven by Terry Sawyers.
Plaintiff stopped on the shoulder of the road to give assistance. He advised another giver of assistance to stop oncoming traffic and went to the station wagon which was partially in the roadway. The vehicle contained the driver and his four-year-old nephew, Michael Burgess. Almost immediately a Great Plains Chemical Company pickup truck, driven by Randy McElreath, collided with some of the vehicles at the scene of the first accident and struck plaintiff. Plaintiff suffered a fractured arm, severe head injuries, and other less severe injuries.
The jury assessed fault as follows:
Great Plains Chemical Company 17%
Terry G. Sawyers 9%
George W. Bentley 72%
Plaintiff Mark A. Bridges 2%
Other facts will be stated as necessary to the discussion of particular issues on appeal.
We shall first consider the issues raised in the Bentley appeal.
RESCUE DOCTRINE
For his first issue, Bentley contends the trial court erred in instructing the jury on the “rescue doctrine.”
The final paragraph of Instruction No. 3 states:
“Plaintiff denies that he acted in a rash or wanton manner as a pedestrian in attempting to rescue Michael Burgess and contends he is free from fault under the ‘rescue doctrine’ as recognized under Kansas law.”
Instruction No. 23 states:
“A person who is injured while attempting to rescue another from peril in an emergency situation is not negligent merely on the ground that the rescue entails danger to himself. The law has a high regard for human life and efforts to save it. Danger invites rescue. The impulse to respond to an urgent call for aid, without complete regard for one’s own safety, is recognized as normal. The law will not impute negligence to an effort to preserve life unless made under such circumstances as to be rash or wanton. Conduct is rash or wanton when it is undertaken in utter disregard of the consequences.
“If you find the plaintiff, Mark Bridges, acted in an emergency situation to rescue Michael Burgess from peril and that plaintiff s conduct was not rash or wanton, your finding will be that plaintiff was not negligent. If you find that there was no peril to Michael Burgess or that even though there was such peril plaintiff s conduct was rash or wanton, your finding will be that plaintiff was negligent.”
Bentley concedes that the instructions quoted adequately state the “rescue doctrine” recognized in Kansas in such cases as Brock, Administrator v. Peabody Cooperative Equity Exchange, 136 Kan. 657, Syl. ¶ 1, 352 P.2d 37 (1960), where we held:
“It is not contributory negligence for a person to risk his life or place himself in a position of great danger in an effort to save the life of another or to rescue another from a sudden peril or great bodily harm; the law has so high a regard for human life that it will not impute negligence to an effort to preserve it unless made under such circumstances as to constitute rashness in the judgment of prudent persons.”
He argues, however, that the enactment of the comparative negligence statute, K.S.A. 60-258a, eliminated the rescue doctrine from Kansas law. Bentley contends the rescue doctrine was a public policy exception to the harsh effects of the law of contributory negligence for the benefit of those who were injured while attempting the rescue of others. In support of his position, Bentley cites Ryder Truck Rental, Inc. v. Korte, 357 So.2d 228, 230 (Fla. Dist. App. 1978), which states:
“Now that Florida has abolished contributory negligence, the rescue doctrine is no longer needed to allow a rescuer to recover in spite of his contributory negligence, but there is no logical reason why the principles of comparative negligence should not apply in a rescue case. We therefore hold that when the plaintiff in performing a rescue is himself negligent, he should recover only that portion of the entire damages sustained by him as the defendant’s negligence bears to the combined negligence of both the plaintiff and the defendant.”
Plaintiff concedes that this is a question of first impression in Kansas, but contends that the advent of comparative negligence in Kansas did not alter or affect the rescue doctrine. Such a result, he argues, would be consistent with other decisions we have reached on analogous issues.
In Britt v. Allen County Community Jr. College, 230 Kan. 502, 638 P.2d 914 (1982), we held the enactment of K.S.A. 60-258a did not change the basic duty of a landowner or possessor of premises owed to those persons entering the premises. In Britt, a person was asked to help move a piano at a lecture hall. During moving it, the piano overturned and plaintiff was injured. After a summary judgment ruling favoring defendants, plaintiff appealed, contending K.S.A. 60-258a had modified the traditional rules on the duties of landowners to entrants on land. 230 Kan. at 503. We disagreed, stating:
“This [comparative negligence] statute treats and is limited to the extent of liability for damages arising from an occurrence. Its purpose is to distribute liability on the basis of causal fault. It does not concern the nature and extent of the duty owed. It concerns itself with the ‘all or nothing’ philosophy which previously attended tort negligence actions when the contributory negligence of the plaintiff, however slight, foreclosed all defendant’s responsibility for plaintiff s injuries. The enactment of the comparative negligence statute, K.S.A. 60-258a, did not affect or change the basic duty of a landowner or possessor of premises owed to those persons entering the premises.” 230 Kan. at 505. (Emphasis supplied.)
In Akins v. Hamblin, 237 Kan. 742, 703 P.2d 771 (1985), plaintiff contended enactment of the comparative negligence law meant the negligence of passengers must be compared in an automobile negligence lawsuit. We rejected this challenge, stating:
“This court has never recognized that a passenger owes a duty to other passengers or third parties. It has been held in several cases that the legislature’s enactment of the comparative negligence law did not create any new duties.” 237 Kan. at 749.
In other contexts this court has unequivocally stated “no change” in common-law duties occurred as a result of the enactment of our comparative negligence statute. See M. Bruenger & Co. v. Dodge City Truck Stop, Inc., 234 Kan. 682, 675 P.2d 864 (1984) (bailor-bailee duties); Schmeck v. City of Shawnee, 232 Kan. 11, 651 P.2d 585 (1982) (duty of city to keep streets safe); Taplin v. Clark, 6 Kan. App. 2d 66, 626 P.2d 1198 (1981) (duties of drivers and passengers).
Plaintiff cites cases from other jurisdictions in support of his position. In Allison v. Sverdrup & Parcel & Assoc., 738 S.W.2d 440 (Mo. App. 1987), the Missouri Court of Appeals held it was reversible error to refuse to instruct on the rescue doctrine even though Missouri had adopted comparative negligence. After reviewing numerous cases on the issue, including those holding that adoption of comparative negligence had abrogated the rash or reckless standard, the court said:
“We are persuaded by the forceful reasoning in the foregoing cases. Under the rule of comparative fault ih Missouri, a person who sees another in imminent peril created by the negligence of defendant will not be charged with negligence in risking his or her own life or serious injury in an attempt to rescue, provided he or she does not act recklessly or rashly. In other words, it is not negligence for a plaintiff to expose himself to danger in an attempt to save a third person from harm created by another, unless the effort to save is a rash or reckless one, or the plaintiff acts rashly or recklessly in the course of it. If the defendant establishes that the rescuer’s actions were reckless or rash, the rescuer is negligent.
“If it is found that the rescuer was negligent, the trier of fact should compare his or her negligence with that of the one whose negligence created the situation to which the rescue was a response. In awarding damages, the rescuer is only entitled to recover the portion of the entire amount of damages sustained that are attributable to the defendant’s negligence in creating the perilous situation.” 738 S.W.2d at 454.
Plaintiff also refers us to Furka v. Great Lakes Dredge & Dock Co., Inc., 755 F.2d 1085 (4th Cir. 1985), cert, denied 474 U.S. 846 (1985), appeal after remand 824 F.2d 330 (4th Cir. 1987), cert, denied 108 S.Ct. 775 (1988). Furka was a Jones Act case in which principles of comparative negligence applied. Defendant contended that comparative negligence abrogated the rescue doctrine. The trial court adopted defendant’s position and refused to instruct on the rescue doctrine. The Court of Appeals found the refusal to instruct on the rescue doctrine was reversible error and held the rescuer’s conduct must be wanton or reckless:
“The submission to the jury of a question of Furka’s contributory negligence without reference to the special context of rescue ignored the very premise upon which appellant’s case was based. . . .
“. . . If the jury finds plaintiff engaged in a rescue, there must be evidence of wanton or reckless behavior on plaintiff’s part before any fault may be assigned. . . .
“We reject appellee’s contention that these policies lose their force under the Jones Act, where the doctrine of comparative negligence applies damages proportionately. It is true that the ‘wanton and reckless’ standard developed under the common law, where contributory negligence was a complete bar to recovery. In some comparative negligence jurisdictions, not in admiralty, the wanton and reckless standard has thus been diluted. . . . The wanton and reckless standard reflects the value society places upon rescue as much as any desire to avoid a total defeat of recovery under the common law. Law must encourage an environment where human instinct is not insular but responds to the plight of another in peril.” 755 F.2d at 1088-89. (Emphasis supplied.)
We have no reason to believe the legislature intended to abrogate the rescue doctrine in enacting the comparative negligence statute. Indeed, the legislature has continued to recognize the gross negligence standard in K.S.A. 1988 Supp. 65-2891, the “Good Samaritan Statute,” covering emergency health care provided at the scene of the emergency by health care providers. This statute has been amended many times since the introduction of comparative negligence and so does not continue its existence only through oversight.
We conclude the advent of comparative negligence has not abrogated the rescue doctrine in Kansas. It remains sound policy to encourage rescue efforts. An individual who is injured running into a busy street to say hello to his girl friend should not be under the same standard of care as one who is injured attempting to assist a toddler who has been struck by a car. An abrogation of the rescue doctrine would tend to operate as a deterrent to potential rescuers and penalize acts which would constitute ordinary negligence, but would not rise to the level of rash conduct. Such a holding would be one more weapon in the arsenal of the “don’t-get-involved” creed of citizenship which is already too prevalent. The trial court did not err in instructing the jury on the rescue doctrine.
BLOOD ALCOHOL INSTRUCTION
For his second issue, Bentley contends the trial court erred in giving the following instruction:
Instruction No. 14 states:
“The laws of Kansas provide that it is unlawful for any person to operate or attempt to operate any vehicle while the alcohol concentration in that person’s blood, at the time or within two hours after the person has operated or attempted to operate the vehicle, is .10 or more.
“The laws of Kansas provide that it is unlawful for any person who is under the influence of alcohol to operate or attempt to operate any vehicle within this state. A person is under the influence of intoxicating liquor when the control of his mental or physical function is impaired.
“A driver who is voluntarily under an influence of alcohol must exercise the same degree of care under circumstances then existing as a person who is not under the influence of alcohol.”
This is PIK Civ. 2d 8.84.
Defendant contends this instruction was erroneous as the blood alcohol content of George W. Bentley was reported to be .17% from blood samples taken more than two hours after the accident. The pretrial order, in pertinent part, stated:
“As to foundation for Bentley’s blood alcohol level taken on the date of the collision, Mr. Osborn [attorney for defendant Bentley] indicates a showing of foundation by affidavit would be acceptable, being an affidavit concerning the circumstances as to how the blood was drawn, when, by whom, when it was transported, and an affidavit describing the analyzation of the blood sample.”
The referred-to affidavits were provided and the blood alcohol report was admitted without objection. In overruling defendant’s objection to the instruction, the trial court noted George Bentley died at the accident scene, was dead when the samples were drawn, and that metabolism ceases upon death.
Bentley also complains that there was no evidence establishing a causal connection between the ingestion of alcohol and the cause of the accident. There was evidence Bentley pulled his pickup truck and towed automobile into a passing position under circumstances in which successful completion was highly unlikely. The jury could have concluded Bentley’s mental function was impaired by his alcohol consumption.
We conclude there was no error or abuse of discretion in the giving of Instruction No. 14.
CONCURRENT CAUSES
For his third issue, Bentley contends the trial court erred in giving Instruction No. 21.
Instruction No. 21 states:
“There may be more than one cause of an injury; that is, there may be concurrent causes, occurring independently or together, which combine to produce the injury. A cause is concurrent if it was operative at the moment of the injury and acted with another cause to produce the injury.
“Concurrent causes do not always occur simultaneously. One cause may be continuous in operation and join with another cause occurring at a later time. When the concurring negligence of two or more persons causes an injury, each person is liable. If the negligence of only one person is the cause of the injury, then he alone is liable.”
This instruction was PIK Civ. 2d 5.02 verbatim. The trial court also instructed on intervening cause, PIK Civ. 2d 5.03.
The first collision occurred some two minutes before the second which injured the plaintiff.
In Rowell v. City of Wichita, 162 Kan. 294, 301-02, 176 P.2d 590 (1947), we said the proximate cause of any injury is:
“[T]hat cause which in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the injury would not have occurred.”
We find no error in the giving of Instruction No. 21.
DIMINISHED EARNING CAPACITY
For his fourth issue, Bentley contends the trial court erred in submitting diminished earning capacity as an element of damage. The jury awarded $180,000 on this clement of damage.
In Morris v. Francisco, 238 Kan. 71, Syl. ¶¶ 2-3, 708 P.2d 498 (1985), we held as follows:
“In an action for personal injuries, the trial court should instruct the jury only on those items of damage upon which there is some evidence to base an award. It is not proper to give a general instruction on damages for ‘any of the following shown by the evidence’ when there is no evidence to support an award for a particular item.”
“In a negligence action, recovery may be had only where there is evidence showing with reasonable certainty the damage was sustained as a result of the complained-of negligence. Recovery may not be had where the alleged damages are too conjectural or speculative to form a basis for measurement. To warrant recovery of damages, therefore, there must be some reasonable basis for computation which will enable the trier of fact to arrive at an approximate estimate of the amount of loss.”
Within this issue are several points. Bentley contends certain testimony of Douglas C. Windholz, a vocational rehabilitation supervisor for the Department of Social and Rehabilitation Services of the State of Kansas, was improper. We agree. Mr. Windholz prepared a chart, Exhibit No. 38, which was introduced as evidence and testified to by the witness. The chart showed seven types of jobs and the hourly wage for each in Garden City, Kansas, and the United States, and multiplied the hourly wages times 2080 (for one year’s wages) times a work expectancy of 39 years. The first entry on the chart is illustrative of the format:
Carpenter
Wage/Hr. Total Work Hrs/Year Garden City 7.31/hr. X 2080 X 39 =
Kansas 8.05/hr. X 2080 X 39 = ■
U.S. 8.12/hr. X 2080 X 39 =
Work Life from Current Age (26) to Age 65 (39 work yrs.) $592,987.20 653,016.00 658,694.40
The witness obtained the hourly rates from the Kansas Department of Revenue, Division of Employment and Training, and the U.S. Department of Labor. The witness testified he believed plaintiff could have done any of the seven types of work prior to the accident and could not now perform them. The plaintiff had no training or experience in any of the job categories except diesel mechanics. In 1981, plaintiff had been enrolled in a vocational training program in that area, but had been expelled for alcohol related problems; In making the chart and in testifying, the witness assumed plaintiff was experienced and qualified in each area although he knew such was not the case. The exhibit and the line of testimony relative thereto were improper and should not have been admitted.
There was testimony plaintiff performed adequately as a farm laborer prior to the accident and had he continued that employment, unimpaired, he would be earning $1,500 to $1,600 dollars per month plus fringe benefits of $130 per month. At the time of trial, plaintiff was earning $1,200 per month as a farm laborer. As a result of the head injuries plaintiff was substantially impaired in his ability to perform this type of work. Before the accident he was able to follow instructions, work unsupervised, and get along with fellow employees. Now and in the future, he will require close supervision. He tends to forget even simple instructions. He can run a tractor spraying a field, but he might forget to refill the sprayer when it becomes empty or take appropriate action when the tractor needs oil or other maintenance. Plaintiff will need a structured existence the rest of his life for even minimal functions. His situation will not improve and may deteriorate further. There was substantial evidence plaintiff will continue to be a difficult person for which to find and maintain employment. There was evidence the accident had aggravated his problems with alcohol and created serious emotional problems. Any activity involving logic, judgment, and planning will be ongoing problems as a result of his head injuries.
Assuming a working life to age 65 (39 years), the jury’s award of $180,000 represents an average monthly diminished earning capacity of $384.67. With plaintiff s accident related handicaps, it is unlikely he would be continuously employed. We conclude that there was substantial evidence upon which to submit the damage element of diminished earning capacity to the jury and that the award is supported by the evidence, excluding the improperly admitted testimony and exhibit. We are further satisfied that the trial court’s abuse of discretion admitting such evidence is not reversible error as it did not affect the verdict herein. The cross-examination of the witness Windholz clearly pointed out to the jury the fallacy of such figures being appropriate to any determination of diminished earning capacity, and the award entered also shows the jury’s disregard of the improperly admitted evidence.
FUTURE MEDICAL EXPENSE
For his fifth issue, Bentley contends the trial court erred in submitting future medical expense as an element of damage. The jury awarded $250,000 for this element of damage.
It would appear from Bentley’s brief that most of the evidence relative to future medical expense was in the form of the videotaped deposition of Dr. Gregg M. Snyder, the treating neurosurgeon. There is indicated in the briefs that this was “separately transcribed.” Neither the videotaped deposition nor the separate transcription thereof is a part of the record before us on appeal.
As we said in Farmers State Bank v. Production Cred. Ass’n of St. Cloud, 243 Kan. 87, Syl. ¶ 1, 755 P.2d 518 (1988):
“The appellant carries the hurden of designating a record sufficient to present its points to this court.”
We, therefore, conclude there is not sufficient record before this court from which we can determine this issue, and, accordingly, we can find no error in the submission of, and award for, future medical expense.
MOTIONS FOR MISTRIAL
For his sixth issue, Bentley contends the trial court abused its discretion in overruling his two motions for mistrial.
In his first motion for mistrial, Bentley argued that plaintiff s counsel engaged in improper voir dire by asking the prospective jurors if any of them had been employed as insurance adjustors and telling the jurors “not to worry about how any verdict might be collected.” Bentley contends that this was an improper interjection of insurance into the proceedings.
Unfortunately, the voir dire was not transcribed and all that is before us is Bentley’s paraphrased statement of what was said. We do not know the actual statements nor the context in which the statements were made. As we said in the preceding issue, the appellant has the burden of bringing a sufficient record before us from which we can determine his or her claims of error. There being no such record before Us, we can find no error.
We turn to the second motion for mistrial.
During plaintiff s examination of Daniel Etzel, a witness to the accident, the following transpired:
“Q: [By attorney for plaintiff.] Mr. Etzel, do you recall someone representing Mr. Bentley called you and—about July?
“A: Pardon me? I can’t—I didn’t hear.
“Q: I’m sorry. Mr. Etzel, do you recall someone representing Mr. Bentley called you in about July, 1984, and you gave him a—you gave a statement to him?
“A: I gave a statement to a claims adjustor. I have no idea—.”
While there was no contemporaneous objection immediately following Etzel’s testimony, defendant’s counsel told the court, out of the jury’s presence, he would be making a motion for mistrial for “plaintiff s counsel eliciting from Mr. Etzel that he had his statement taken by a claims adjustor.” Plaintiff s counsel asserted Etzel was not his witness and he had told all of his witnesses never to mention insurance. Defendant subsequently moved for a mistrial. The trial court overruled the motion, terming it an inadvertent reference. We find no abuse of discretion in this determination.
MOTION FOR A NEW TRIAL
For his seventh issue, Bentley contends the trial court abused its discretion in denying his motion for a new trial.
From among the grounds for a new trial set forth in K.S.A. 60-259, Bentley argues the following are applicable:
“First. Because of abuse of discretion of the court, misconduct of the jury or party, or accident or surprise which ordinary prudence could not have guarded against, or for any other cause whereby the party was not afforded a reasonable opportunity to present his evidence and be heard on the merits of the case.
“Second. Erroneous rulings or instructions of the court.
“Third. That the verdict, report or decision was given under the influence of passion or prejudice.”
The statutory grounds for a new trial were discussed in Sulkis v. Zane, 208 Kan. 800, Syl. ¶ 1, 494 P.2d 1233 (1972), where we held:
“Where one of the grounds specified in K.S.A. 60-259 ... is shown to exist, the granting of a new trial rests in the sound discretion of the trial court and an order granting or refusing a new trial will not be reversed on appeal unless a clear abuse of discretion is shown.”
We have already disposed of the first and second grounds by our determinations of the preceding issues. We turn then to whether the verdict of $1,018,653 was given under the influence of passion or prejudice and shocks the conscience of the court. It should be noted that the propriety of the $250,000 component part thereof for future medical expense is not before us by virtue of the inadequacy of the record on appeal.
The verdict is large, but the plaintiff, a young man, suffered extremely serious injuries resulting in permanent disabilities. We find no clear abuse of discretion in the trial court’s denial of the motion for a new trial.
COSTS
Bentley’s eighth issue is that the trial court made an improper determination of the costs awarded herein to plaintiff.
Following the verdict, plaintiff filed a posttrial motion seeking to have various deposition costs and expenses assessed against the defendants as costs of the action. On December 8, 1987, the court issued its memorandum decision apportioning the costs and expenses to the defendants in proportion to the fault assessed by the jury. A journal entry was later filed.
K.S.A. 60-2002 provides that costs shall be allowed to the party in whose favor judgment is rendered. K.S.A. 60-2003 provides, in part:
“Items which may be included in the taxation of costs are:
“(4) Statutory fees and mileage of witnesses attending court or the taking of depositions used as evidence.
“(5) Reporter’s or stenographic charges for the taking of depositions used as evidence.”
Except where otherwise provided by statute, a trial judge is vested with discretionary authority in taxation of costs in a civil action. Brown v. Lang, 234 Kan. 610, 617, 675 P.2d 842 (1984); Wood v. Gautier, 201 Kan. 74, Syl. ¶ 2, 439 P.2d 73 (1968). The appellate standard of review of the taxing of costs is whether there has been an abuse of discretion. R. B. Enterprises, Inc. v. State, 242 Kan. 241, 250-51, 747 P.2d 152 (1987); Negley v. Massey Ferguson, Inc., 229 Kan. 465, 472-73, 625 P.2d 472 (1981).
Specifically, Bentley objects to the taxing of certain discovery depositions as costs. These depositions were used in questioning witnesses but were never admitted into evidence.
In Wood v. Gautier, 201 Kan. at 79, we said:
“Costs of preparation for trial are not ordinarily recoverable as costs. Discovery depositions by their very nature fall within the realm of trial preparation. We think the distinction implicit in 60-2003 evinces policy which is reasonable and fair. We therefore hold that charges for discovery depositions, not used as evidence, are ordinarily not taxable as costs. Generally speaking, a trial court is vested with a large measure of discretion in the administration of our discovery procedures, and we do not mean to say extraordinary circumstances might not exist wherein a trial court would be justified, in the exercise of sound discretion, in allowing or apportioning the charges of discovery depositions. The burden of proving any such rare exception would, of course, rest upon the party claiming the costs.
“No such situation exists in the case at bar. Defendants suggest the fact two of the depositions were offered in evidence should make the charges for them allowable as costs. To make amere offer controlling on the question would open the door to possible abuse, that is, permit discovery depositions to be offered in evidence under the guise of impeachment so as to furnish a basis for assessment of costs.”
No extraordinary circumstances have been alleged herein for any departure from the general rules relative to assessment of costs. We conclude that the trial court abused its discretion in allowing the charges for discovery depositions not admitted into evidence to be assessed as costs. The trial judge’s assessment of costs must be reversed and that aspect of the case remanded for a redetermination thereof consistent with this opinion.
A few other points were tucked into some of the preceding issues. Although these have not been separately discussed herein, each has been examined and is held to be without merit.
CROSS-APPEAL
MOTION FOR A DIRECTED VERDICT
For the first issue in his cross-appeal, plaintiff contends the trial court erred in denying his motion for a directed verdict. Specifically, plaintiff sought to remove his own alleged fault from any comparison of fault. Plaintiff contends that his conduct constituted that of a rescuer under the rescue doctrine and that, further, as a matter of law, there was no evidence he had acted in a rash or wanton manner.
In Sampson v. Hunt, 233 Kan. 572, 665 P.2d 743 (1983), we discussed the rules governing a directed verdict as follows:
“In ruling on a motion for directed verdict pursuant to K.S.A. 60-250 the court is required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought, and where the evidence is such that reasonable minds could reach different conclusions thereon, the motion must be denied and the matter submitted to the jury. The same basic rule governs appellate review of a motion for directed verdict. Frevele v. McAloon, 222 Kan. 295, Syl. ¶ 5, 564 P.2d 508 (1977); Lemley v. Penner, 230 Kan. 25, 27, 630 P.2d 1086 (1981). The question is not whether there is literally no evidence supporting the party against whom the motion is directed, but whether there is evidence upon which the jury could properly find a verdict for that party. Even where facts are undisputed it is possible that conflicting inferences may be drawn from those facts, and where that is true, the issue must be submitted to the jury. Sexsmith v. Union Pacific Railroad Co., 209 Kan. 99, Syl. ¶ 3, 495 P.2d 930 (1972). Where no evidence is presented on a particular issue, or the evidence presented is undisputed and it is such that the minds of reasonable persons may not draw differing inferences and arrive at opposing conclusions with reason and justice, the matter becomes a question of law for the court’s determination. Thurman v. Cundiff 2 Kan. App. 2d 406, 411, 580 P.2d 893 (1978); Southards v. Central Plains Ins. Co., 201 Kan. 499, 505, 441 P.2d 808 (1968); Kemp v. Railway Co., 91 Kan. 477, 483, 138 Pac. 621 (1914).” 233 Kan. at 578.
There was conflicting evidence as to precisely what plaintiff was doing immediately prior to being injured. Plaintiff knew the Sawyers vehicle was protruding into the highway. He had concern for oncoming traffic and had directed an individual to stop such vehicles. There was evidence he was standing by the Sawyers vehicle talking to the driver as the Great Plains Chemical Company truck approached—not leaning through the window to assist the child as other evidence would indicate. There was evidence that upon seeing the truck approach, plaintiff “freaked out” and began running. The jury found plaintiff to be 2% at fault. Under the totality of the circumstances herein, and the rules set forth in Sampson v. Hunt, we find no abuse of discretion in the trial court’s denial of the motion for a directed verdict.
DISFIGUREMENT
For his second issue, plaintiff contends the trial court erred in refusing to instruct on disfigurement as an element of damages. There was evidence plaintiff suffered a large laceration on his left thigh and an open fracture of the left humerus. Surgery was required for the treatment of both injuries. No disfigurement from such injuries was described or shown to the jury. Plaintiff contends that disfigurement can be assumed from evidence of such injuries having been sustained and treated surgically. The trial court held that no instruction on disfigurement as an element of damage is proper when there is no evidence that disfigurement resulted. We agree.
That portion of the judgment resulting from the verdict herein is affirmed; that portion of the judgment of the assessing of costs is reversed and remanded for a redetermination thereof which is consistent with this opinion. | [
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The opinion of the court was delivered by
McFarland, J.:
In our original opinion, defendant’s conviction of the child abuse of Shannon Woodside was affirmed, and his convictions of felony murder and child abuse of Shaina Wood-side were reversed and the case was remanded for further proceedings. Subsequently, the State filed a motion for rehearing. The motion was granted on August 26, 1988.
The case was reargued on December 8, 1988. After due consideration, we affirm our original opinion.
Miller, C.J., and Six, J., dissenting.
Herd, J., I reassert my dissent to the original opinion. | [
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Per Curiam-.
This is an original proceeding in discipline against the Honorable Janice P. Long, District Judge of Reno County. The Commission on Judicial Qualifications unanimously found that respondent, Judge Long, while acting as a judge violated Canon 2A, Canon 3A (5), and Canon 3B (1) of the Code of Judicial Conduct, Supreme Court Rule 601 (1988 Kan. Ct. R. Annot. 277), by failing to: (1) respect and comply with the law; (2) carry out her adjudicative responsibility of promptly disposing of the business of the court; and (3) diligently discharge her administrative responsibilities and maintain professional competence in judicial administration. In addition, the Commission found that she failed to comply with Supreme Court Rule 166 (1988 Kan. Ct. R. Annot. 103), which provides in part:
“All civil matters taken under advisement by a district j'udge shall be decided with dispatch. If, however, the matter is not decided within ninety (90) days after final submission, within five (5) days thereafter the j'udge shall file with the Judicial Administrator a written report setting forth the title and the number of the case, the nature of the matter taken under advisement, and the reasons why a judgment, ruling or decision has not been entered.”
The Commission recommended that she be publicly censured. Judge Long filed exceptions to the findings and recommendations of the Commission.
Justice Six recused himself from serving in this case. The Hon. William M. Cook, district judge of the 29th Judicial District, was assigned to serve with the remaining members of the Supreme Court pursuant to Article 3, § 6(f) of the Kansas Constitution.
Public confidence in the judiciary is eroded by irresponsible and improper conduct by judges. To define the standard of conduct to be observed by all judges of this state, the Code of Judicial Conduct and the supporting rules and commentary, as adopted by the House of Delegates of the American Bar Association, together with the notes of the State Bench-Bar Committee, were adopted as Rule 601 by this court. In a judicial disciplinary proceeding, the quantum of proof necessary to sustain the Commission’s findings and conclusions is proof by clear and convincing evidence. In re Rome, 218 Kan. 198, 206, 542 P.2d 676 (1975).
Prior to her defeat in the general election in November of 1988, Judge Long’s responsibilities included all juvenile cases, probate cases, and one-half of the limited action civil cases under Chapter 61 filed in Reno County. The Commission first recognized that Judge Long had a high caseload and that there were mitigating factors which contributed to her problems. The Commission noted that Judge Long was not sufficiently staffed in that she had no court reporter, administrative assistant, or secretary. The Commission determined that no district court judge should have to operate without adequate personnel. In addition, Judge Long’s clerical help was not solely subject to her control and, at various times, the clerks not only failed to support Judge Long, but actually worked against her.
After weighing the mitigating factors, the Commission concluded that, in a substantial number of juvenile cases during 1985, 1986, and 1987, Judge Long had failed to set hearings within 30 days after the filing of petitions as required by K.S.A. 38-1625 and K.S.A. 38-1532. K.S.A. 38-1532 of the Code for Care of Children provides in part:
“Upon the filing of a petition under this code the court shall proceed by one of the following methods:
“(a) Issue summons stating the place and time at which the parties are required to appear and answer the allegations of the petition, which shall be within 30 days of the date the petition is filed, and deliver the summons with copies of the petition attached to the sheriff or a person specially appointed to serve it.”
K.S.A. 38-1625 provides in part as follows:
“Upon the filing of a complaint under this code, the court shall proceed by one of the following methods:
“(a) The court may issue summons stating the place and time at which the respondent is required to appear and answer the offenses charged in the complaint, which shall be within 30 days of the date the complaint is filed, and deliver it with copies of the complaint attached to the sheriff or a person specially appointed to serve it.”
Both statutes are mandatory and direct the “court” to proceed with the issuance of summons so that those required to appear have the opportunity to do so within 30 days after a complaint is filed. Jack Ford, an investigator appointed to assist the Commission, testified that he had examined juvenile dockets from January to December 1987 to determine if the time mandates of K.S.A. 38-1625(a) and K.S.A. 38-1532 had been observed by the respondent. Ford found that in 13.9% of the child in need of care cases and in 38.39% of the juvenile offender cases the mandatory statutory requirements for issuance of summons were not met.
Judge Long contends (1) neither she nor the county attorney understood that the statutes required that the hearing be held within 30 days after the petition was filed, (2) there is no evidence that the delay in issuing the summons delayed the proceedings, (3) only the administrative judge has the authority to direct the functions of court personnel, and (4) it was not her statutory responsibility to issue the summons.
Prior to the complaint being filed against Judge Long, she was under the impression that the statute required that the summons be issued within 30 days after the petition was filed. In order to set the hearings during times she had not scheduled other matters, the judge adjusted the issuing of the summons. This procedure circumscribed the statutory requirements of K.S.A. 38-1625 and K.S.A. 38-1532.
Respondent attempts to shift blame to the administrative judge, claiming that she was never given sufficient or loyal staff to carry out her responsibilities. The Commission acknowledged the judge’s problems with the staff, but found that she conformed to the statutory requirements after the problem was raised in the disciplinary inquiry.
K.S.A. 20-343 provides that court personnel have the powers, duties, and functions as are prescribed by law, rules of the court, or by the administrative judge. We acknowledge that it is not the duty of the respondent to actually prepare and mail the summons, but it was the responsibility of Judge Long to see that the mandatory provisions of the statute for setting the hearings were followed. The Commission’s finding that respondent violated Canons 2A (compliance with the law), 3A (prompt disposal of court business), and 3B (diligent discharge of administrative responsibilities) of the Code of Judicial Conduct is supported by clear and convincing evidence.
The Commission also found clear and convincing evidence that eight limited civil cases involved “inordinate delay” and two probate cases involved “inexcusable delay.” The Commission determined that Judge Long’s failure to render a decision in these cases violated Canons 2A, 3A(5), and 3B(1). The delays in these cases were:
Date Date Case Caption/ Delay # of Submitted Decided Case Number Days
8/85 4/24/87 In re Estate of Chen 81 P 201 20 months 601
8/7/85 7/21/87 Nicholson v. Kanast 85 L 436 24 months 685
10/9/85 1/19/88 D & D Service v. Lone Star Oil & Brooks 84 L 934 26 months 832
11/5/85 11/19/87 Baggett v. Bridgewater 84 L 1304 24 months 744
1/26/86 9/8/88 Heikes v. Ashcraft 85 L 1360 31 months 956
3/10/86 11/19/87 Gas Service v. Richardson 85 L 420 20 months 619
4/28/86 5/18/87 In re Estate of McCarroll 84 P 216 13 months 386
6/16/86 1/8/88 Charlie’s Service & Repair v. Finney, et al. 84 L 1228 19 months 771
9/17/86 1/20/88 Kan-Ark Industries v. Sommers, 86 L 395 16 months 490
5/1/87 1/21/88 Ely’s, Inc. v. Bill Palmer, 86 L 1396 8 months 266
The Commission found that, although respondent was hampered in discharging her duties by the inadequacies and disloyalty of clerical help, the district administrative judge had, on three occasions during fiscal years 1986-87 and at respondent’s request, made changes in her staff. The administrative judge had arranged to have magistrate judges take respondent’s dockets in order that she have more time to write her decisions. This arrangement, however, proved unsuccessful when the respondent refused to allow the magistrates to hear juvenile cases, which comprised the greater portion of her docket. For more than a year, Judge Long was authorized to contract for secretarial help for use at her discretion, but this also failed to improve the decision-making process.
The Commission noted that respondent was so disorganized that she did not have a system to track the cases she had taken under advisement. The respondent indicated that, with a slow typist, it could take several weeks to complete a journal entry. Some of her cases, however, languished for years before she rendered a decision. Even after the respondent hired a better typist, the decision-making process did not significantly improve. The Commission determined that it was the respondent’s actions and her failure to properly allocate time and resources that negated the efforts made to assist her, stating:
“This gross delay in handing down a decision is wholly unacceptable and is inexcusable, as are the reasons advanced by Judge Long for the delays. Mindful as we are of Judge Long’s caseload and her personnel problems, over which she had little control, still such delays as these simply cannot be tolerated.”
In her defense respondent cites McCartney v. Commission on Judicial Qualifications, 12 Cal. 3d 512, 116 Cal. Rptr. 260, 526 P.2d 268 (1974). McCartney involved a recommendation by the California Commission on Judicial Qualifications that the respondent be removed from office for willful misconduct on the bench which included displays of uncontrolled temper and intemperate language. The Commission found that the judge’s inefficiency resulted in a serious backlog of cases, but that this inefficiency occurred not from a dereliction of duty but rather from “an effort to attain a degree of diligence and studiousness in the application of the law.” 12 Cal. 3d at 536. The California Supreme Court denied the Commission’s recommendation for removal, and in its published censure of the judge, commented that a judge’s inefficiency alone is not grounds for discipline.
Respondent claims that inefficiency is not grounds for discipline. Clearly, this is not what the Supreme Court of California intended in the McCartney case. Rather, the court found that any inefficiency existing in the procedures followed by the judge in that case resulted from “undue caution and excessive attention to detail in all matters.”
Courts in other jurisdictions have censured or otherwise disciplined judges whose decision-making delays were either less extensive or as extensive as respondent’s. See e.g., In re Weeks, 134 Ariz. 521, 658 P.2d 174 (1983) (observing that delay in decision-making is a 3A[5] violation); In re Jensen, 24 Cal. 3d 72, 154 Cal. Rptr. 503, 593 P.2d 200 (1978) (violation of the 90-day decision-making rule); In re Jones, 728 P.2d 311, 313 (Colo. 1986); Matter of Steinle, 653 S.W.2d 201, 202 (Mo. 1983); and Matter of Kohn, 568 S.W.2d 255, 260 (Mo. 1978). For violating reporting requirements of a court rule, the same results are found. Matter of Carstensen, 316 N.W.2d 889, 891 (Iowa 1982); Matter of Anderson, 252 N.W.2d 592, 593 (Minn. 1977) (violation of the 90-day decision-making rule).
Here, there is no evidence that the cause for Judge Long’s delays in handing down opinions was “undue caution and excessive attention to detail in all matters.” In addition, we do not adopt the respondent’s argument that inefficiency alone cannot be grounds for discipling a judge, nor do we believe the extent of the delays in this case, ranging from a minimum of 266 days to a maximum of 956 days, suggests mere inefficiency. It is clear that there were significant, extensive, and unjustified delays by Judge Long. Respondent clearly violated Canons 2A, 3A(5), and 3B(1).
The respondent concedes that she did not specifically comply with Supreme Court Rule 166, which requires that a judge file a written report with the Judicial Administrator setting forth the reasons for delay in all cases taken under advisement for more than 90 days. Respondent rationalizes that her two telephone conversations with a member of the Judicial Administrator’s staff and conversations with her departmental justice constitute sufficient compliance with the written report requirement of Rule 166. We disagree.
Canon 3A(5) of the Canons of Judicial Conduct specifically provides: “A judge should dispose promptly of the business of the court.” Canon 3B(1) provides: “A judge should diligently discharge his administrative responsibilities.” The Rules of this Court recognize that prompt disposition of a court’s business is essential to the administration of justice and is due the citizens of this state. Rule 166 states that the time for disposition of cases is 90 days. The rule clearly requires a judge to file a report with the Judicial Administrator within five days if a civil matter is taken under advisement for more than 90 days. Judge Long admits she was aware of the requirements of Rule 166. Her failure to comply with those requirements was, therefore, clear and deliberate.
Judges must at all times respect and comply with the laws and rules governing their conduct and the operation of the court in a manner which promotes public confidence in the integrity, impartiality, and administration of justice. Public confidence in the judiciary is eroded by a judge’s improper or irresponsible conduct. We recognize that the trial judges of this state are dependent upon a number of different individuals to perform many of the services essential to the orderly operation of the courts. However, whatever the proficiency of the various members of the court staff, the judge is solely responsible for the proper operation of the court.
It is ordered that Janice Long be publicly censured by this court, and that she pay the cost of this proceeding.
Six, J., not participating. | [
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Per Curiam:
This is an original proceeding in discipline filed by the Disciplinary Administrator against Michael W. Farmer, an attorney who maintains his practice in Topeka, Kansas. Respondent Farmer has previously been before this court in a disciplinary matter. In re Farmer, 242 Kan. 296, 747 P.2d 97 (1987). That proceeding resulted in Farmer’s suspension from the practice of law for one year.
The facts which gave rise to the present proceeding were stipulated to by the parties and are included within the report of a panel of the Board for Discipline of Attorneys. No exceptions to the report were filed. Briefly, the facts are that respondent prepared a will for Bettie Joan Glenn and after her death commenced proceedings for the admission of the will to probate and for the issuance of letters testamentary to himself as executor. Letters were issued and real estate was sold as directed in the will. The estate was not timely closed and one of the heirs ultimately filed a petition for the removal of Farmer as executor. About a month later, Farmer filed a petition for final settlement of the estate. Both petitions were heard at the same time. The court found that, although the petition for final settlement alleged that all taxes had been paid, no return had been filed and taxes had not been paid; therefore, the estate was not ripe for final settlement. The court removed Farmer as executor and appointed one of the heirs as Administrator C. T. A. The court later held hearings on Farmer’s claim for attorney fees and out-of-pocket expenses. The expenses were allowed, but respondent’s request for $6,500 as attorney fees in a $45,000 estate was disallowed. Additionally, the court found that respondent treated the residuary beneficiaries “in an extremely shabby manner” and “in a demeaning fashion.” Respondent admitted and the panel found that he had violated Canons 1, 2, 6, and 7 of the Code of Professional Responsibility. Supreme Court Rule 225 (1988 Kan. Ct. R. Annot. 142).
The panel also found mitigating factors. As a result of a fall from a roof, respondent suffered extensive injuries. He is permanently disabled, has a 97.5% loss of vision, and is legally blind. The loss of vision has had a devastating impact on his life and has made it difficult for him to communicate with clients. He admits that he handled the probate matter in an unprofessional manner and that he was insensitive and intolerant. However, he has undergone and is continuing counseling on a weekly basis at a mental health clinic, and the panel noted that the events which gave rise to the complaint in this case arose before respondent was undergoing counseling. The panel was impressed by respondent’s humility and recommended a discipline less severe than might otherwise be expected.
We find clear and convincing evidence that respondent violated Canon 1 and DR 1-102(A)(6) (1988 Kan. Ct. R. Annot. 143), Canon 2 and DR 2-106(A) (1988 Kan. Ct. R. Annot. 153-54), Canon 6 and DR 6-101(A)(2) (1988 Kan. Ct. R. Annot. 164-65), and Canon 7 and DR 7-102 (A)(4) (1988 Kan. Ct. R. Annot. 169). We agree with the panel that there are extenuating circumstances here which dictate less severe penalties than we would usually impose in such a case. The closing of the estate was not delayed long beyond the normal time when it should have been closed. Respondent’s representation to the court that all taxes had been paid was not a deliberate misrepresentation but was the direct result of respondent’s lack of knowledge of the tax and probate laws. Finally, his mistreatment of the beneficiaries of the estate occurred at a time when he was undergoing overwhelming personal difficulties. The court concludes that discipline should be modest in conformity with the extenuating circumstances.
It is the Order of the Court that the imposition of discipline against Michael W. Farmer be and it is hereby delayed for one year on condition that he (1) continue with his regular weekly mental health counseling, (2) cooperate fully with his counselor, (3) submit a report from his counselor to the Disciplinary Administrator at least once every three months, and (4) not violate any of the Canons of Professional Ethics or the Disciplinary Rules during that period of time. Upon receiving a report from the Disciplinary Administrator, this court shall upon notice make such other or further order or impose such discipline as justice may require.
It is Further Ordered that this order be published in the Kansas Reports, and that respondent pay the costs of this proceeding. | [
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