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Per Curiam:
On March 18, 1981, the petitioner, John W. Sowers, voluntarily surrendered his certificate to practice law. The surrender was accepted by this court and the petitioner was disbarred on the 20th day of March, 1981. In re Sowers, 229 Kan. 411, 625 P.2d 1 (1981).
On February 22, 1988, Mr. Sowers filed a petition with this court, seeking reinstatement to practice law in Kansas pursuant to Supreme Court Rule 219 (1988 Kan. Ct. R. Annot. 135). The petition was referred to the disciplinary administrator for consideration by a panel of the Board for Discipline of Attorneys. On November 4, 1988, a hearing was held before the panel in the Kansas Judicial Center, Topeka, Kansas.
On March 9, 1989, the panel filed its report summarizing the evidence presented, together with the panel’s findings and recommendations. The panel unanimously recommended that the petitioner be reinstated to the practice of law in Kansas, conditioned upon petitioner’s completing a Kansas Bar Review course and 15 hours of approved CLE within one year from the date of reinstatement, and practicing under the supervision of a licensed attorney for a period of one year. Since the report was favorable, nothing further was required of petitioner and, pursuant to Supreme Court Rule 219(d), the matter is deemed submitted for consideration by this court.
As we noted in State v. Russo, 230 Kan. 5, 630 P.2d 711 (1981), the reports and recommendations of the Board for Discipline of Attorneys and its hearing panel are advisory and not binding upon this court. Notwithstanding the panel’s recommendations, a majority of this court is of the opinion that reinstatement should be denied.
The reason for Mr. Sowers’ surrender of his certificate to practice law in Kansas may be summarized as follows: On Feb ruary 11, 1980, Mr. Sowers was indicted by an Oklahoma grand jury for violating 18 U.S.C. §§ 2, 371, 1341, 1343, and 2314 (1976) (conspiracy to commit various felony offenses against the United States, i.e., fraud by use of mails or wire communications in interstate commerce, securities violations, travel in interstate commerce to execute a scheme to defraud, etc.). On September 8, 1980, after a three-and-one-half-week juiy trial, Mr. Sowers was found guilty of six of ten counts, and sentenced to two and one-half years. He served 11 months at El Reno Prison Camp in El Reno, Oklahoma. He completed his parole in 1985.
In Russo, this court set forth eight factors to be considered in a reinstatement proceeding. State v. Russo, 230 Kan. 5, Syl. ¶ 4. Those factors are not all-inclusive and were considered by the hearing panel in reaching its recommendations in the present case. We note that much of the evidence presented to the panel by Mr. Sowers was in support of his contention that his convictions were either contrary to the evidence or a result of incompetent counsel, or both. Notwithstanding his contention, the convictions are conclusive on the issue of his guilt of the crimes charged.
In denying Mr. Russo’s petition for reinstatement the second time, we noted that other jurisdictions had found certain moral, ethical, or criminal violations to be so serious as to require permanent disbarment. We said: “While we agree that the foregoing violations are extremely serious, in our opinion, none approaches the seriousness of the conduct of petitioner.” In re Russo, 244 Kan. 3, 5, 765 P.2d 166 (1988). As in Russo, a majority of the members of this court is of the opinion that, due to the seriousness of Mr. Sowers’ misconduct, it would not be in the best interests of justice and the people of the State of Kansas to reinstate Mr. Sowers to the practice of law.
The petition for reinstatement to the practice of law in Kansas must be and is hereby denied. | [
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The opinion of the court was delivered by
Six, J.:
This first impression statutory construction case involves the interpretation of K.S.A. 1987 Supp. 17-1268(b) of the Kansas Securities Act. Must a director have materially aided in the sale of unregistered securities to be liable for their illegal sale?
The plaintiffs, W. W. Taylor, Mrs. W. W. Taylor or A. Genevieve Taylor, Michael C. Taylor, John S. Taylor, David J. Taylor, and Mark B. Taylor, a partnership known as Taylor Family Real Estate Trust, (Taylors) appeal from a summary judgment in favor of the director defendants Charles Harris, Leo L. Meeker, Marvin Echols, and Jack Griggs.
The trial court found that, under K.S.A. 1987 Supp. 17-1268(b), a director of a corporation is not liable for the illegal sale of the corporation’s securities unless the plaintiff can show that the director materially aided in the sale. The trial court ruled that the four director defendants did not materially aid in the securities sale to the Taylors.
We disagree with the trial court’s analysis.
The parties by agreement have characterized Harris as a representative director defendant. Rulings as to Harris apply equally to the other director defendants, Meeker, Echols, and Griggs.
The questions to be decided are:
(1) Does K.S.A. 1987 Supp. 17-1268(b) require that directors must materially aid in the sale of a corporation’s securities to be held liable for the sale?
(2) Did the director defendants materially aid in the securities sale to the plaintiffs?
(3) Did the director defendants show that they did not know, and in the exercise of reasonable care could not have known, of the existence of the facts by reason of which the liability is alleged to exist?
We hold that K.S.A. 1987 Supp. 17-1268(b) is substantially similar to § 410(b) of the Uniform Securities Act, 7B U.L.A. 643 (1958). Strict liability is imposed on partners, officers, and directors to purchasers of unregistered securities sold in violation of the statute regardless of whether the partner, officer, or director materially aided in the sale unless he or she proves that he or she could not reasonably have had knowledge of the facts by reason of which liability is alleged to exist.
1. The Facts of the Investment
In early November of 1981, W. W. Taylor discussed an oil and gas exploration investment, Perdition Minerals Group, Ltd., (Perdition) with his neighbor, Donald Schrag. Taylor became interested and the two men placed a call to Bob Fondren, a securities broker, who had previously supplied Schrag with information on the corporation. Taylor spoke with Fondren who told him: (1) The stock was worth $1.34 a share and would be worth more soon; (2) the company had a lot of oil and gas in Montana; (3) the company was going to do an audit, and (4) the company was preparing to go public. Schrag indicated to Taylor that he was going to buy $200,000 worth of stock at $.50 a share.
Soon after Taylor’s discussions with Schrag and Fondren, Schrag arranged a meeting between Taylor and Henry Mulvihill, who was Perdition’s chief executive officer. Taylor was supplied with a financial statement and Mulvihill’s personal resume. Mulvihill also described the production and value of the acreage held by Perdition in Montana. Taylor did not ask to see any drilling reports or geographical information. Mulvihill told Taylor that several hundred thousand dollars was needed to meet current drilling and lease expenses. Mulvihill gave Taylor a list of references, several of whom Taylor knew, including defendant Charles Harris. Taylor did not contact any of the references. Taylor told Mulvihill that he would purchase 400,000 shares of Perdition for $200,000; $100,000 on behalf of himself and his wife, and $100,000 on behalf of his children.
Taylor attended a Perdition shareholders’ meeting on November 20, 1981. He met privately with Mulvihill prior to the meeting. At this private meeting, Mulvihill reassured Taylor that the stock was worth more than $1.34 a share and that he was going to do an audit. There is no evidence in the record indicating that any directors or shareholders of Perdition, other than Mulvihill, Schrag, and Fondren, made any representations to Taylor or were in any way involved with the sale of stock to him.
At the November 20, 1981, shareholders’ meeting, Mulvihill introduced Taylor as a potential Perdition investor. No one inquired as to the circumstances surrounding the issuance of the stock. Defendant Harris was present at the meeting and moved to hire Elmer Fox to audit the company. Harris said that he made the motion based on a recommendation by Mulvihill. Taylor testified at his deposition that, prior to the shareholders’ meeting, Mulvihill had never given any indication that Harris was Perdition’s attorney.
Mulvihill, for tax purposes, had incorporated Perdition in Nevada. Mulvihill and Harris were close friends. In November of 1981, Harris agreed to purchase 2,500 shares of Perdition. Harris is a Wichita attorney. He testified at his deposition that the only legal work he had done on behalf of Perdition was to draw up an employment agreement between Perdition and Milan Ayers. Ayers managed the Montana properties. Mulvihill retained a Denver law firm which specializes in securities and oil and gas law to handle the corporation’s other legal matters.
At the time Harris bought his shares, Mulvihill was the sole director and the parent of Perdition. In January 1981, a shareholders’ meeting was held at which defendants Marvin Echols, Jack Griggs, Charles Harris, Leo Meeker, and Henry Mulvihill were elected directors. With the exception of Jack Griggs, all the director defendants invested money in Perdition and lost their investment when Perdition became insolvent. The shareholders voted to increase the authorized common stock from 500,000 shares to 4,000,000 shares and to split the outstanding 500,000 shares four for one, into 2,000,000 shares.
Early in 1982, when no audit was forthcoming, Taylor became concerned about his investment. Mulvihill assured Taylor that the audit was being done. Taylor then spoke to a friend who did business with the Elmer Fox accounting firm and asked him to check into Perdition. His friend told him: (1) Fox had no business relationship with Perdition, (2) the SEC had been investigating the Montana properties, and (3) Perdition’s current financial statements did not reflect Taylor’s $200,000 investment. The 400,000 shares of stock of Perdition purchased by the Taylors were never registered in accordance with K.S.A. 17-1256, -1257, or -1258. The sale of these 400,000 shares of stock of Perdition was not the sale of an exempt security under K.S.A. 1987 Supp. 17-1261, nor was it an exempt transaction under K.S.A. 1987 Supp. 17-1262.
The Taylors filed the instant lawsuit against Perdition, Mulvihill, Fondren, and the director defendants to rescind the purchase and recover the purchase price based upon violations of registration and misrepresentations under the Kansas Securities Act. The petition alleged that the Perdition stock was not registered pursuant to Kansas law and that Mulvihill and Fondren made misleading and false statements upon which Taylor relied in purchasing the stock.
The trial court entered summary judgment in favor of the director defendants Harris, Echols, Meeker, and Griggs, finding that, under K.S.A. 1987 Supp. 17-1268(b), an innocent director must be shown to have materially aided in the sale of securities to be liable. The trial court further found that the facts of the case did not establish that the four directors materially aided in the sale to Taylor.
2. The Statute, K.S.A. 1987 Supp. 17-1268
K.S.A. 1987 Supp. 17-1268(a) establishes the liability of any person who sells a security which is required to be registered under K.S.A. 17-1255 but is not registered, or any person who sells a security by means of untrue statements of material facts. Such a person may be liable to the person buying the security for the consideration paid for the security plus interest, costs, and attorney fees.
The alleged liability of the director defendants is based on K.S.A. 1987 Supp. 17-1268(b), which provides:
“Every person who directly or indirectly controls a seller liable under subsection (a), every partner, officer, or director (or person occupying a similar status or performing similar functions) or employee of such a seller who materially aids in the sale, and every broker-dealer or agent who materially aids in the sale is also liable jointly and severally with and to the same extent as the seller, unless the nonseller who is so liable sustains the burden of proof that such nonseller did not know, and in the exercise of reasonable care could not have known, of the existence of the facts by reason of which the liability is alleged to exist. There is contribution as in cases of contract among the several persons so liable.” (Emphasis added.)
The Taylors contend that the Kansas statute is a “substantially verbatim” enactment of § 410(b) of the 1956 Uniform Securities Act as amended in 1958. A comparison of the two reveals minor differences in punctuation and phrasing. These differences, the director defendants assert, give the statute a different meaning from the corresponding section of the Uniform Securities Act. Section 410(b) of the Uniform Act provides:
“Every person who directly or indirectly controls a seller liable under subsection (a), every partner, officer, or director of such a seller, every person occupying a similar status or performing similar functions, every employee of such a seller who materially aids in the sale, and every broker-dealer or agent who materially aids in the sale are also liable jointly and severally with and to the same extent as the seller, unless the non-seller who is so liable sustains the burden of proof that he did not know, and in exercise of reasonable care could not have known, of the existence of the facts by reason of which the liability is alleged to exist. There is contribution as in cases of contract among the several persons so liable.” (Emphasis added.)
K.S.A. 1987 Supp. 77-201 establishes rules for statutory construction and requires that words and phrases be construed according to the context and approved usage of the language..
The director defendants, in comparing K.S.A. 1987 Supp. 17-1268(b) and § 410(b) of the Uniform Act, reason as follows: The legislature by (1) removing the modifying phrase “of such a seller” after the word director; (2) placing the phrase “or person occupying a similar status or performing similar functions” in parenthesis, (3) and adding an “or” before the word employee intended the phrase “of such a seller who materially aids in the sale” to modify the entire clause “every partner, officer, or director (or person occupying a similar status or performing similar functions) or employee.” We do not agree.
The National Conference of Commissioners on Uniform State Laws approved the Uniform Securities Act in 1956. In 1957, Kansas, using the Uniform Act as a model, enacted the Kansas Securities Act. Lovitch, Securities Registration Under the Kansas Securities Act, 22 Kan. L. Rev. 565, 566 (1974).
The changes in punctuation and phrasing effected by the legislature in transforming § 410(b) of the Uniform Act into K.S.A. 1987 Supp. 17-1268(b) do not insulate directors from strict liability when unregistered securities are sold.
The states that have passed § 410(b) of the Uniform Securities Act have consistently interpreted the statute to impose strict liability on partners, officers, and directors unless the statutory defense of lack of knowledge is proven. See, e.g., Moerman v. Zipco, Inc., 302 F. Supp. 439, 450 (E.D.N.Y. 1969), affd 422 F.2d 871 (2d Cir. 1969); Mitchell v. Beard, 256 Ark. 926, 928, 513 S.W.2d 905 (1974); Arnold v. Dirrim, 398 N.E.2d 426, 433-34 (Ind. App. 1979); Rzepka v. Farm Estates Inc., 83 Mich. App. 702, 709, 269 N.W.2d 270 (1978).
We question the trial court’s reliance on Lanza v. Drexel & Co., 479 F.2d 1277 (2d Cir. 1973). Lanza arose under federal, not state, securities laws. The plaintiffs in Lanza sought compensa tory and punitive damages against former officers and directors of a corporation based on violations of federal securities acts and common-law fraud. The Second Circuit Court of Appeals was construing Rule 10b-5 of the Securities and Exchange Commission, 17 C.F.R. § 240.10b-5 (1988); and § 10(b) of the Securities Exchange Act of 1934, 15 U.S.C. § 78j(b) (1982). The court in Lanza discussed state “blue sky laws” in a footnote.
“State blue sky laws universally exempt directors from liability for fraud perpetrated by corporate officers unless the directors are in some meaningful sense culpable participants in the fraud.” 479 F.2d at 1308 n.105.
The Lanza court identified two types of state laws. The first are those modeled after § 410(b) of the Uniform Act and the second are those in which a director is exempt from liability unless he or she participates in the sale. The Lanza court in footnote 105 refers to fraud; nevertheless, the court correctly characterized the Kansas statute as belonging to the first category.
K.S.A. 1987 Supp. 17-1268(b) does not require that a director materially aid in the illegal sale of securities in order to be held jointly and severally liable for the sale.
Our analysis of legislative intent commences with the observation that “Blue Sky” provisions are to be liberally interpreted in favor of purchasers to prevent fraud. Daniels v. Craiglow, 131 Kan. 500, 292 Pac. 771 (1930).
Kansas has required registration of securities since 1911. L. 1911, ch. 133.
The first securities statute with teeth was passed in Kansas. Loss, Fundamentals of Securities Regulation 8 (2d ed. 1988). According to Professor Louis Loss, Kansas had been a “stronghold” of populist philosophy. The resulting carryover today is to be found in the relative strictness of Midwestern securities statutes. “Indeed, it was in Kansas, apparently, that the term ‘blue sky law’ first came into general use to describe legislation aimed at promoters who ‘would sell building lots in the blue sky in fee simple.’ ” Loss, Fundamentals of Securities Regulation 8.
The drafters’ comment to § 410(b) of the Uniform Securities Act observes, “This section is now in the Kansas act substantially verbatim, and Virginia has adopted it with modifications.” Loss and Cowett, Blue Sky Law 393 (1958).
We have in past cases identified rules to assist in statutory construction:
(1) “The fundamental rule of statutory construction is that the purpose and intent of the legislature governs when the intent can be ascertained from the statute. In construing statutes, the legislative intention is to be determined from a general consideration of the entire act. Effect must be given, if possible, to the entire act and every part thereof. To this end, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible.” State v. Adee, 241 Kan. 825, 829, 740 P.2d 611 (1987).
(2) “Interpretation of a statute is a question of law, and it is the function of the court to interpret a statute to give it the effect intended by the legislature. State, ex rel., v. Unified School District, 218 Kan. 47, 49, 542 P.2d 664 (1975). It is a fundamental rule of statutory construction to which all other rules are subordinate that the intent of the legislature governs when that intent can be ascertained. State v. Sexton, 232 Kan. 539, 657 P.2d 43 (1983).” Director of Taxation v. Kansas Krude Oil Reclaiming Co., 236 Kan. 450, 455, 691 P.2d 1303 (1984).
What did the legislature intend the phrase, “of such a seller who materially aids in the sale” following the word “employee” to modify? Was the phrase intended to modify only an “employee” of such seller, or was- it intended to reach back further into the language of the statute and also modify “every partner, officer, or director”? We are persuaded the critical phrase modifies only “employee” of such seller.
If the legislature had intended to make directors liable only in the event they had materially aided in the sale, the Kansas language could easily have read, “every partner, officer, or director of such a seller who materially aids in the sale.” (Emphasis added.)
In our K.S.A. 1987 Supp. 17-1268(b) search for legislative intent we note 2A Sutherland Statutory Construction § 47.33 (4th ed. rev. 1984):
“Referential and qualifying words and phrases, where no contrary intention appears, refer solely to the last antecedent. The last antecedent is ‘the last word, phrase, or clause that can be made an antecendent without impairing the meaning of the sentence.’ Thus a proviso usually is construed to apply to the provision of clause immediately preceding it. The rule is another aid to discovery of intent or meaning and is not inflexible and uniformly binding. Where the sense of the entire act requires that a qualifying word or phrase apply to several preceding or even succeeding sections, the word or phrase will not be restricted to its immediate antecedent.
“Evidence that a qualifying phrase is supposed to apply to all antecedents instead of only to the immediately preceding one may be found in the fact that it is separated from the antecedents by a comma.”
No comma was inserted in K.S.A. 1987 Supp. 17-1268(b) separating the critical qualifying phrase, “who materially aids in the sale” from the antecedents partner, officer, or director or employee.
The Kansas version of the Uniform Act was adopted in 1957. L. 1957, ch. 145. The K.S.A. 1987 Supp. 17-1268(b) equivalent section of the prior law, G.S. 1949, 17-1240, was found in the securities section of the corporation code. G.S. 1949, 17-1240 provided, in part:
“Every sale or contract for sale made in violation of any of the provisions of this act shall be voidable at the election of the purchasers; and the person making such sale or contract for sale and every director, officer or agent of or for such seller who shall have participated or aided in any way in making such sale shall be jointly and severally liable to such purchaser in an action at law in any court of competent jurisdiction . . . .” (Emphasis added.)
Prior to the adoption of K.S.A. 1987 Supp. 17-1268(b), a director of a seller was liable only if he or she “participated or aided in any way in making such sale.”
Section 410(b) of the Uniform Act altered a director’s liability status. Strict director liability was imposed by § 410(b) unless the statutory defense of lack of knowledge was proven. If the Kansas Legislature in 1957 had intended to continue to provide the “materially aids in the sale” shield to Kansas directors it could easily have used the G.S. 1949, 17-1240 concept that had been in place since 1929. L. 1929, ch. 140.
2. DID THE DIRECTOR DEFENDANTS MATERIALLY AID IN THE SALE TO THE PLAINTIFFS?
Our resolution of the K.S.A. 1987 Supp. 17-1268(b) statutory construction question disposes of the Taylors’ second issue.
The trial court found that facts constituting material aid by the director defendants were not present in the sale to the plaintiffs and granted the defendants summary judgment on this issue.
Our construction of K.S.A. 1987 Supp. 17-1268(b) reverses the trial court’s ruling on summary judgment and removes the necessity for an analysis of this issue.
We need not determine what constitutes “material aid” under K.S.A. 1987 Supp. 17-1268(b).
3. The K.S.A. 1987 Supp. 17-1268(b) Statutory Defense
We have held that K.S.A. 1987 Supp. 17-1268(b) imposes strict liability on directors as nonselling parties unless the statutory defense of lack of knowledge is proven. The statute provides a defense to liability where the nonseller can show that he or she “did not know, and in the exercise of reasonable care could not have known, of the existence of the facts by reason of which the liability is alleged to exist”—the lack of knowledge defense.
As their third issue, the Taylors contend that this defense is not available to the director defendants because they have not met the burden of proof required under this provision. We need not address this issue.
In its journal entry granting the director defendants summary judgment, the trial court specifically found that there are contested issues relating to the statutory defense, but that these issues were immaterial since the Taylors had not established a prima facie case. The K.S.A. 1987 Supp. 17-1268(b) statutory defense issue was not determined by the trial court’s summary judgment ruling which is the basis of this appeal.
We remand the case for trial. The Taylors have established a prima facie case. The statutory defense issue will be determined by the trier of fact.
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The opinion of the court was delivered by:
Holmes, J.:
Rodney E. Jackson appeals from his conviction by a jury of one count of aggravated battery, K.S.A. 21-3414. The Court of Appeals affirmed the conviction in an unpublished opinion filed October 7, 1988. We granted the appellant’s petition for review. We reverse.
Robert Thurman, the victim in this case, testified that in October 1983 he attended a party at a sorority house. Shortly after midnight, Thurman went out to his car in the parking lot. He was approached by a stranger who asked where he could obtain cocaine or drugs. Thurman told the man he was not into that sort of thing. The man reacted with anger, pushed him, and took a swing at him. Thurman went back to the house and called the police. When he went back outside, the windshield of his car had been broken, and a young lady told him that the man he had been arguing with earlier had broken the windshield.
Thurman did not see the man again until January 2, 1984. Late on January 1,1984, Thurman arrived at the Chicago P.M. Club in Wichita, which had formerly been the Club International. Sometime after midnight, he recognized the man who had approached him at the sorority party three months earlier. At this point Thurman still did not know the man’s name, but he had learned from friends that he was known by the name of “Slim.” Thurman walked over to Slim and asked if he recognized Thurman, and Slim replied that he did.
Thurman returned to his group of friends and began telling them about the windshield incident, pointing out Slim as the one who was responsible. Thurman testified that as he turned around to continue the conversation, Slim lunged at him, stabbed him in the side with a knife, and ran. The victim sustained severe injuries.
After Thurman was released from the hospital in late February, a detective showed him some mug shots. Thurman immediately picked out a photograph of the appellant, Rodney E. Jackson, also known as Slim. Thurman also identified Jackson at trial.
The appellant was originally tried and convicted in a bench trial on July 30, 1984. On March 31, 1986, he was granted a new trial based upon newly discovered evidence. At the second trial, which took place before a jury, Rodney Jackson relied upon an alibi defense, and sought to show that someone else committed the offense. The defense, at a hearing outside the presence of the jury, proffered the testimony of Gus Hankins and Darlene Finley. The proffered testimony was to the effect that a third party, Tommie Mays, had made statements indicating that he was the individual who committed the offense with which Rodney Jackson was charged.
After hearing the proffered testimony of Hankins, the trial judge ruled it was irrelevant and lacked reliability, and excluded the proposed testimony. The judge then heard the testimony of Darlene Finley and ruled it was inadmissible without giving any explanation of his ruling.
At the close of the evidence, the jury returned a verdict of guilty. The defense filed a motion for new trial, which included the issues raised in this appeal. The trial court denied the motion. Jackson timely appealed.
The Court of Appeals found that the statements made by Mays to Darlene Finley were clearly against his penal interest, but that there was no evidence presented at trial to show that the statements were made within the two-year period of the statute of limitations. The court went on to summarily hold, apparently on the basis of the statute of limitations, that the trial court did not err in excluding the testimony. The court never mentioned the proffered testimony of Hankins.
Appellant raises several evidentiary issues on appeal, only one of which we need to address as it is dispositive of this appeal.
Appellant’s first issue relates to the exclusion of the testimony proffered by the defense implicating Tommie Mays as the perpetrator of the offense. The trial court ruled inadmissible the proffered testimony of Gus Hankins and Darlene Finley pertaining to out-of-court statements made by Tommie Mays. Appellant argues, inter alia, that the incriminating out-of-court statements by Tommie Mays were admissible under the hearsay exception for declarations against interest and that it was reversible error to exclude the evidence.
K.S.A. 1988 Supp. 60-460 provides, in part:
“Evidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated, is hearsay evidence and inadmissible except:
“(j) Declarations against interest. Subject to the limitations of exception (f) [prior confessions of the accused], a statement which the judge finds was at the time of the assertion so far contrary to the declarant’s pecuniary or proprietary interest or so far subjected the declarant to civil or criminal liability or so far rendered invalid a claim by the declarant against another or created such risk of making the declarant an object of hatred, ridicule or social disapproval in the community that a reasonable person in the declarant’s position would not have made the statement unless the person believed it to be true.”
The State contends that the appellant failed to establish the necessary foundation for the admission of the Hankins and Finley testimony as exceptions to the hearsay rule. It argues that not only did the appellant fail to establish the trustworthiness of the statements, but also he failed to show that Mays was unavailable to testify as a witness. The admissiblity of testimony under 60-460(j) was discussed in Thompson v. Norman, 198 Kan. 436, 424 P.2d 593 (1967). In Thompson, the court stated:
“This [subsection (j)] broadens our former case law in the realm of declarations against interest by those not parties to the action nor in privity with a party to the action, as exceptions to the hearsay rule. Formerly there was a requirement of unavailability of the declarant as a prerequisite for reception of this character of testimony, and declarations were limited to those against the pecuniary or proprietary interest of the declarant (Hurley v. Painter, 182 Kan. 731, 324 P.2d 142). Now, the statute dispenses with the requirement of unavailability and expands the interests to include penal or social.
“The statute does, however, require, as a preliminary measure of trustworthiness, that the trial judge, prior to admission of such a declaration, make a finding that the character of the declaration was of such nature a reasonable man would not make it unless he believed it to be true. Probability of veracity is the safeguard sought; the reasonable man test is the criterion to be used. The judge may in a particular case be faced with a difficult decision where caution should be exercised; in making it he necessarily must be vested with a wide discretion. And it should be kept in mind he is concerned with admissibility, not weight, of evidence.” 198 Kan. at 442-43.
The test of admissibility stated in Thompson was specifically recognized and approved in State v. Prince, 227 Kan. 137, 147, 605 P.2d 563 (1980).
The State relies upon Prince and State v. Quick, 226 Kan. 308, 597 P.2d 1108 (1979), in asserting that the declarant (in this case Mays) must be present at the trial or it must be shown the declarant is unavailable as defined in K.S.A. 60-459(g). Reliance on Prince is totally misplaced. In Prince, the trial court did exclude 60-460(j) evidence for the reason that the declarant asserted his Fifth Amendment right not to testify and was unavailable for cross-examination. However, this court affirmed the defendant’s conviction based upon a lack of foundation for the proffered testimony and specifically found that the trial court had excluded the testimony for the wrong reason. 227 Kan. at 147.
In Quick, the trial court excluded certain testimony which fell within the declarations against interest exception of 60-460(j). Although this court, in reversing the defendant’s conviction, did discuss the unavailability requirement, the court’s decision was actually based upon a finding that “[t]he indicia of reliability of the declaration against penal interest was sufficient to justify the admission of the declaration as an exception to the hearsay rule.” 226 Kan. at 318. The statements in Quick that the declarant must be present at trial or, if not, the proponent must show that a diligent effort was made to locate the declarant and that he is unavailable, are specifically disapproved.
The State also relies heavily on two rules established by our case law, neither of which is applicable here.
(1) When the State relies on direct rather than circumstantial evidence for conviction, evidence offered by the defendant to indicate a possible motive of someone other than the defendant to commit the crime is irrelevant absent other evidence to connect such third party with the crime. State v. Potts, 205 Kan. 42, Syl. ¶ 1, 468 P.2d 74 (1970); State v. Neff, 169 Kan. 116, Syl. ¶ 7, 218 P.2d 248, cert, denied 340 U.S. 866 (1950).
(2) Where the State’s case is built on direct'evidence, circumstantial evidence that someone other than the defendant committed the crime is irrelevant in the absence of other evidence to connect such third person with the crime. State v. Brown, 230 Kan. 499, 499-500, 638 P.2d 912 (1982); State v. Calvert, 211 Kan. 174, 179, 505 P.2d 1110 (1973); State v. Henderson, 205 Kan. 231, 239-40, 468 P.2d 136 (1970); cf. State v. Scott, 117 Kan. 303, 313-15, 235 Pac. 380 (1924); State v. Smith, 35 Kan. 618, 621, 11 Pac. 908 (1886).
The trial court apparently relied upon State v. Brown and State v. Neff in holding that the proffered evidence was irrelevant.
The evidence presented by the State against the appellant consisted of direct evidence in the form of testimony by two eyewitnesses, the victim and Inman Standifer, who identified the appellant as the perpetrator. However, the evidence proffered by appellant was not circumstantial evidence; nor was it evidence indicating that someone other than the appellant had a possible motive to commit the stabbing. The proffered evidence was direct evidence in the form of out-of-court admissions by a third party, Tommie Mays, that he committed the crime for which the defendant was charged. The State’s reliance on the foregoing cases is therefore misplaced.
We now turn to the proffered testimony to determine whether it met the necessary test of relevance, reliability, and trustworthiness to be admissible under the declarations against interest exception to the hearsay rule.
After having established the identity of Gus Hankins and his acquaintance and association with Tommie Mays, the defense presented the following testimony:
“Q. Mr. Hankins, would you please relate the conversation you had with Mr. Mays there in the penitentiary in 1985 with regards to this stabbing?
“A. We was coming back from the yard, me and him and another inmate by the name of Alvin Brown. And he was telling me and Alvin Brown about the stabbing. Said it was better the other guy than him, you know.
“THE COURT: I still didn’t understand what you said.
“MR. GEARY: It was the other—better the other guy than him, is what he said, Your Honor.
BY MR. GEARY:
“Q. Did he tell you the name of the person he stabbed?
“A. No, he didn’t.
“Q. Did he tell you when this occurred?
“A. Just said in the club. He didn’t say when.
“Q. Did he mention the name of the club?
“A. International.
“Q. Okay. Was there any further conversation at that time?
“A. Naw.
“Q. Did he indicate a date when this stabbing occurred?
“A. No, he didn’t.
“Q. Okay.
“MR. GEARY: Your Honor, that would be the contents of the testimony of Mr. Hankins.”
The proffered testimony of Hankins indicated that Mays made his statements to two fellow inmates while walking from the prison yard at the Kansas State Penitentiary. The statements did not indicate who the victim of the stabbing was or when it allegedly occurred. Mays had merely indicated he had stabbed someone at the International Club and that “it was better the other guy than him.” Such vague and indefinite admissions fall short of the necessary showing of credibility and trustworthiness required to establish a proper foundation for admissibility of Hankins’ testimony. We find no error in the trial court’s determination that the Hankins testimony was not only irrelevant but also lacked reliability.
The proffered testimony of Darlene Finley is another matter. After qualifying Finley by showing her acquaintance and contacts with Tommie Mays, the defense presented the following testimony, from Finley:
“Q. At anytime, did you have the occasion to discuss a stabbing with Mr. Mays ?
“A. Yes.
“Q. Tell the Court what happened.
“A. It was in their home, and we had came over earlier that evening. We were going to go out. We had started playing cards or whatever, I don’t know, but we were sitting on their floor. They didn’t have very much furniture, and Rena Mays went on to say how scared she was when Tommie done something. And he looked at her like to shut up. Okay. Rena had gotten kind of tipsy, so she would talk a lot when she got that way. He did—he looked at her to shut her up, and then he just changed his mind and he went ahead and told the story.
“Q. What did he tell you?
“A. He, first of all, asked us did we hear about the guy that got stabbed at the International at New Year’s. And my husband, at the time worked at Wesley Hospital, he seen him when he was brought in, and he said yeah. And then he said—he went on to describe—to tell why he done it. It was over a bad dope deal. The guy had sold him some bad coke, which was Robert Thurman. And he went—he said that he went back, broke out Robert’s windows on his car, and that—that was during the summer. Okay. The cocaine that he bought and went and broke Robert’s windows, that was during the summer, I believe. This is what Tommie said, that that happened during the summer. And he did not run into Robert Thurman again until that night at the club. Him and Rena went out and Tommie and—I mean that Robert Thurman seen him, and I guess recognized him as the guy that broke out his window, and went over to their table, and Tommie told us how he bent over and told Tommie that they were going to have a meeting outside. Either said—it’s been so long, I don’t remember if he said they were going to have a meeting outside, or they were going to have a get-together or gathering, or something, outside. But Tommie took that to mean—he said that Robert Thurman walked away from him, went back over to—up against a wall where there was some guys and like pointed Tommie out. Okay. And like they were talking. He said he knew they were setting him up for something outside. And he described—the way Tommie talked—you would have to know Tommie to know how he talked. He would kind of go off into a military-type thing. He had lots of weapons laying around and stuff. And he said that that was where Robert Thurman made his fatal mistake was putting that fear in him, when he come over and told him that. He said because he did not see Robert, Robert saw him and came over, and said that—he said that’s when he told Rena to hand him the knife. And she handed it to him from up under the table. And he had a long black coat. He had it, put it over. He said he waited until Robert—some kind of—he had his back turned, he walked over, he said he told Rena to get up and come over and not say anything. He said Robert did not see him coming, he did not see him at all. He said—he really bragged about how smoothly he stabbed him. He said that he could have—he got up and he motioned how he came from around Robert Thurman with the knife, like this (indicating), to the front of him, you know. Came from behind him and around, and how he turned it and whatever. He said that he knew exactly where he was stabbing him, the whole bit. And that he could have killed him if he wanted to. I guess this is how well he supposed to know the body from being military trained. He was a red beret or something. He was really far gone military like. And whenever he would go out, he would dress up in this outfit, this red beret thing. And he said—and then he said that when he done it, he said it was so smoothly done when he stabbed Robert, he said that him and Rena kept walking. He told her to come on, not look back, and that they just walked right on out of the place. He said no one seen him. And so I don’t know if Robert gasped or staggered on or what, but he said no one seen anything, and they left, you know, the Club International. And at that point, Rena was talking about how nervous and scared she was, but that no one saw them. And Tommie, he bragged about how smoothly he done it, you know. He stood up and showed, you know, on my husband how and where he stabbed him and why, you know. And, well, he said why because Robert had come over and he knew—he said that was Robert’s mistake. He said he would have been better off—because he did not see Robert in that club, he said if Robert had of waited for him to leave and then got him outside it would have been different. He said but that was Robert’s mistake when he walked over to him and told him what he was going to do out—you know, when they left the club.
“Q. Miss Finley, do you know Rodney Jackson here?
“A. I have never seen him before this morning.
“Q. Okay. You never met him before?
“A. Never met him. Never seen him or nothing, no.”
Following this proffered testimony, the State again objected to its admission, asserting, “[W]e are still going to have to determine the availability of Mr. Tommie Mays.” The court then ruled the testimony was inadmissible.
We think the court erred in its determination that the testimony of Darlene Finley was inadmissible. The defense went to great lengths to establish the social relationship between Darlene Finley and her husband and Tommie Mays and Rena Mays. The two couples visited together in each other’s homes and evidently were quite friendly during the spring and summer of 1984. The testimony of Mrs. Finley related numerous details of the Thurman stabbing, established who the victim was, and established when and where the stabbing took place. The evidence would appear to meet the threshold test of Thompson v. Norman, 198 Kan. 436, and the trial court has failed to articulate any basis for its ruling that the testimony was inadmissible. The Court of Appeals found that the Finley testimony constituted a clear statement against Mays’ interest, and we agree. However, there is no support in the record for the Court of Appeals’ sua sponte finding that there was no evidence that the statements attributed to Mays were made within the two-year statute of limitations period. It is clear to us from a review of the record that the statements allegedly made by Mays to Finley were within two years of the Thurman stabbing.
Based upon the record before us, we hold that the trial court erred in refusing to admit the proffered testimony of Darlene Finley as an exception to the hearsay rule under K.S.A. 1988 Supp. 60-4600)- In view of this determination, it is not necessary for us to reach the other issues asserted on appeal.
The judgments of the Court of Appeals and the district court are reversed and the case is remanded with directions to grant the defendant a new trial. | [
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The opinion of the court was delivered by
Horton, C. J.:
Several objections to the validity of the condemnation proceedings for the railway route through the real estate of the defendant in error are urged. In our view, only one need be considered, as that one is fatal. It appears from the record, that notice was properly given that the commissioners would commence to lay off the railway route in Labette county on May 1, 1878, at nine o’clock a. m., and that upon said day the commissioners proceeded in the discharge of their duties, continuing their labors from day to day, and on the 4th of May adjourned, subject to the call of the president of the board; all of which doings the commissioners embodied in a written report, and filed the same in the office of the county clerk of Labette county, on May 6, 1878. On the 14th of May, 1878, without notice to anyone, the commissioners met again, and thereupon proceeded to locate a further route, &c., for the railway, over the land now in controversy. A written report of this proceeding was filed in the office of the county clerk, on May 15, 1878. The trial court found as a matter of law, that the adjournment of the commissioners on May 4, 1878, not to a day certain, but merely upon the call of the president of the board, rendered the subsequent proceedings at the meeting of May 14, void, excepting as to parties having actual notice thereof. We concur in this conclusion of law, and think that there was such an abandonment of the proceedings commenced under the notice published prior to May 1st, that they could not be continued nor revived after May 4th, without new notice. The adjournment without specifying a day for meeting, caused the commissioners to lose jurisdiction. Counsel for plaintiffs claim that the jurisdictional fact was the publication in the newspaper; that thereby jurisdiction attached, and was complete at the first meeting of the commissioners. They then refer us to Commissioners of Leavenworth County v. Espen, 12 Kas. 531; Venard v. Cross, 8 Kas. 258, and Beabe v. Scheidt, 13 Ohio St. 406, as authorities that notice of the meeting of commissioners is not jurisdictional. A part of the argument of counsel is correct, and a part faulty. The jurisdictional fact, is the publication in a newspaper as prescribed by the statute, but if the proceedings be abandoned for any reason, the subsequent doings have no validity on account of the prior publication. The authorities referred to are not applicable, because in the laying-out and location of highways, the jurisdictional notice is given before the order appointing viewers, and therefore it was held that the notice to the land-owners afterward is not a jurisdictional one. Here, the notice was jurisdictional, and we deem all proceedings ended thereunder by the adjournment of the commissioners on May 4th without day. In anticipation of this view, the counsel of plaintiff contend that actual notice of the subsequent meeting of the commissioners on May 14th was had by the defendant, because Angelí Matthewson, who was the agent of the defendant to sell property at a price prescribed by it, and receive the money paid on such sales, and to attend to the payment of taxes on its property, was present at the adjournment of the commissioners on May 4th, and was also present at the reconvening of the commissioners on May 14th. The special authority conferred by the Parsons town company upon Matthewson did not authorize him to appear in the condemnation proceedings and attend thereto for the benefit of the company. Notice to him, therefore, was not notice to the company. It also appears from the record, that Matthewson was the president of the railway company, and therefore he could not act both as the agent of the railway company and the agent of the town company. “No man can serve two masters.”
The judgment of the district court must be affirmed.
All the Justices concurring. | [
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'The opinion of the court was delivered by
Valentine, J.:
This was an action- commenced originally in the probate court on a promissory note, by John H. McCartney, the alleged payee of the note, against James M. Spencer, executor of the last will and testament of Sarah E. Watterson' deceased, who was the alleged maker of the note. The claim of the plaintiff was allowed in the probate court, and the defendant took an appeal to the district court. In the district court the case was tried before the court and a jury. The plaintiff introduced his evidence, which tended to prove the issues on his part, and rested. Whereupon the defendant offered to introduce evidence tending to prove the issues on his part, (the main defense of the defendant being that the said Sarah E. Watterson, deceased, never executed said note, but that the said note is a forgery;) but the court below excluded it. The defendant offered to introduce the following witnesses in sucession, to wit: Mrs. Amacetta Goheen, the sole' devisee and legatee of the said testatrix’s estate; J. E. Goheen, the husband of said Amacetta Goheen; and James M. Spen cer, the defendant in the action. The plaintiff objected to all these witnesses, on the ground of'incompetency, claiming that the first was incompetent on account of interest; that the second wras incompetent because he was the husband of a person who was interested in the event of the suit; and that the third was incompetent because he was a party to the suit, and also interested in the event of the suit. The court sustained the objections, and no one of these witnesses was allowed to testify. The jury found a verdict in favor of the plaintiff, and against the defendant, on the promissory note. Afterward the defendant moved for a new trial, and the court below sustained the motion, and granted the new trial, solely “because of error in ruling out said witnesses and each of them for incompetency, and not otherwise.” The plaintiff then brought the case to this court for review.
The only question to be determined by this court is, whether the court below erred in granting the new trial; and involved in this question is this other question: was any one of said witnesses a competent witness? For if any one of said witnesses was a competent witness, for any purpose in the case, then the court below did not err in granting the new trial, but w7ould have erred if it refused to grant it. Section 319 of the civil code provides: “No person shall be disqualified as a witness in any civil action or proceeding by reason of his interest in the event of the same, as a party or otherwise, or by reason of his conviction of a crime; but such interest or conviction may be shown for the purpose of affecting his credibility.” Section 320 of the civil code provides: “Nothing in the preceding section contained shall in any manner affect the laws now existing relating to the settlement of estates of deceased persons,” etc. Section 321 of the civil code provides for compelling the adverse party to testify. Sections 322 and 323 prescribe exceptions to and limitations upon the broad and general provisions of §319 — they prescribing particularly who shall be incompetent to testify. It seems to be admitted by the plaintiff that, except for said § 320, said witnesses would be competent to testify in the case, and with regard to various things: for instance, with regard to the handwriting of the deceased; with regard to McCartney’s acts and admissions; with regard to their own personal knowledge of the alleged forgery; and with regard to Mrs. Watterson’s.disability to execute the note. But it is claimed by the plaintiff that said § 320 renders said witnesses wholly incompetent to testify in this case. And it is necessary for the plaintiff to make this broad and sweeping claim in order to reverse the judgment of the court below; for if any one of said witnesses was competent to testify to any material fact in the case, then the ruling of the court below granting the new trial was correct.
We think that this court has tacitly declared in several cases that said § 320 does not have the effect that the plaintiff claims for it. (Anthony v. Stinson, 4 Kas. 211; McKean v. Massey, 9 Kas. 600; Clary v. Smith, 20 Kas. 83; Jaquith v. Davidson, 21 Kas. 341.) It is said, however, by the plaintiff that the supreme court has never construed said § 320. This is true, in one sense, for the supreme court has never referred to said section in terms or by its number; but the supreme court, however, has decided several cases in which the decisions would be erroneous if we should give to said § 320 the construction given to it by the plaintiff. Indeed, the supreme court has heretofore decided all questions with regard to the competency or incompetency of witnesses in cases where an executor or an administrator was a party without referring to said § 320, and as though said §320 did not affect the question in the least; and it must not be supposed that the supreme court overlooked said § 320, but it must be presumed that the supreme court did not consider that said § 320 had anything to do with the question. And this we shall now state expressly and affirmatively. (Raab’s Estate, 16 Ohio St. 273, 279, 280, 281.) See. 319 of the civil code prescribes the rule as to the competency of witnesses, and §§322 and 323 furnish the exceptions; and all that was intended to be accomplished by §320 was to prevent §319 from repealing or modifying by construction or implication any of the laws then existing relating to the settlement of estates of deceased persons, or infants, idiots, or lunatics, or the attestation of the execution of certain instruments; and it was not intended that § 320 should prescribe the rule or the exceptions as to the competency or incompetency of witnesses. Section 728 of the civil code is very similar in some of its provisions to said § 320. It provides that “ until the legislature shall otherwise provide, this code shall not affect proceedings to assess damages for private property taken for public uses, nor proceedings under the statutes for the settlement of estates of deceased persons, nor proceedings under statutes relating to apprentices, bastardy, insolvent debtors, or any special statutory remedy, not heretofore obtained by action; but such proceedings maybe prosecuted under the code whenever it is applicable.” When- the code of civil procedure was enacted the laws relating to the settlement of estates of deceased persons were almost, if not entirely, statutory. The common law with reference to the matter had but little, if any, application to the subject. Indeed, we never had a common-law procedure for the settlement of estates in Kansas, and it was not intended by the enactment of § 320 to adopt the common-law procedure or any other procedure or law, and make it applicable where it was not applicable before. It was not intended by the enactment of said section to create rules for the settlement of the estates of deceased persons, or even to adopt rules from other cases and make them applicable to the settlement of such estates. But it was simply intended by the enactment of said section to preserve the rules already in force governing in the settlement of such estates, and governing in the other things mentioned in the section. It must be remembered that at common law the estates of deceased persons were settled by ecclesiastical courts, and not by the probate courts, as they have always been in Kansas; and the procedure in the ecclesiastical courts was very' different from that of any of the courts of Kansas. When the code of civil procedure was enacted in this state, we had statutes regulating the jurisdiction and procedure of probate courts, and also regulating the powers and duties of executors and administrators; and said § 320, so far as it relates to the settlement of the estates of deceased persons, was simply enacted for the purpose of prescribing that § 319 should not, by construction or implication, repeal or overturn any of the special provisions of the statutes governing the settlement of estates of deceased persons. The object of the section was not to furnish a rule or exceptions with regard to the competency or incompetency of witnesses, but was simply to enact that all of the provisions of the statutes relating to the settlement of estates of deceased persons, etc., should remain in force, although constructively or impliedly § 319 might possibly have the effect to repeal some of them. This construction of § 320 accounts for the fact that the supreme court has never before construed, or been asked to construe, the provisions of the section. It was thought that the section had no application to the question of the competency or incompetency of witnesses in the ordinary trial of cases.
We think the court below, in granting the new trial, construed the section correctly; and therefore the order of the court below granting the new trial will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
On May 21, 1880, H. L. Sterrett obtained a judgment before a justice of the peace against F. C. White and A. E. White, for $75 and costs. Both of the defendants appealed to the district court, and O. F. Lutt became their surety on the appeal bond, binding himself “that said defendants shall prosecute their appeal to effect and without unnecessary delay, and satisfy such judgment and costs as may be rendered against them therein.” In the district court judgment was rendered in favor of the plaintiff, Sterrett, and against the defendant F. C. White, for the sum of $75, and interest and costs; and judgment was rendered in favor of the defendant A. E. White, and against the plaintiff, Sterrett, for costs. Afterward an execution was issued on the judgment in favor of Sterrett and against F. C. White, and was returned unsatisfied, and with the indorsement thereon that no goods could be found belonging to White upon which to levy. Sterrett then brought the present action against Lutt, on the appeal bond, to recover the amount of said judgment and costs. Lutt demurred to the plaintiff’s petition, on the ground that the same did not state facts sufficient to constitute a cause of action, which demurrer was overruled by the court; and Lutt" now brings the case to this court.
The only question presented to this court for its determination is as follows: Where a judgment is rendered by a justice of the peace against two defendants, and both of them appeal to the district court, and only one appeal bond is executed, and judgment is rendered in the district court in favor of the plaintiff and against one of such defendants and against the plaintiff and in favor of the other defendant, and the defendant against whom judgment is rendered is insolvent, and the judgment cannot for that reason be collected as against him, is the surety on the appeal bond liable?
The court below decided that he is, while the plaintiff in error claims that he is not, and his counsel cites the case of Lang v. Pike, 27 Ohio St. 498, as sustaining his view of the case. The case cited seems to be in point, and seems to sustain counsel’s views; and while we have great respect for the decisions of the supreme court of Ohio, yet we cannot yield our assent to this decision. We think it is erroneous; and we think the opinion delivered by the dissenting judge presents the law more correctly than does the opinion delivered by the court. In this state, all contracts and promises which would be by the common law joint only, and all joint obligations and joint assumptions of copartners and others, are several as well as joint; and actions may be brought on such contracts, promises, obligations or assumptions against any one or more of those who are liable. (Secs. 1 and 4 of the act relating to contracts and promises; Comp. Laws of 1879, p. 209.) In all actions against two or more defendants, the defendants may each answer separately, and each set up as many separate defenses as he may have. Each defendant may have a separate trial, and a separate judgment may be rendered against him, or in his favor. But even where the same judgment is rendered against all the defendants, and that judgment is in form a joint judgment, still the judgment is in fact and in law a several judgment as to each defendant, and the property of any one or more of the defendants may be taken in execution to satisfy the judgment. If the judgment is rendered by a justice of the peace, and one or more of the defendants against whom the judgment is rendered may appeal to the district court, and they may do so separately or jointly, and, although the appeal of any two or more of them may seem to be joint, yet in fact and in law it is really a several appeal; for separate trials may be had in the appellate court, and in any case the judgment to be rendered in the appellate court may be rendered against any one or more of the defendants and in favor of any one or more of them. As we have before stated, an appeal taken jointly by two or more defendants, by giving one and the same undertaking or appeal bond, must, under the laws of this state, be considered as a several appeal as well as a joint one, and the surety on the appeal bond must, under the laws of this state, be considered as undertaking severally for each of the defendants, as well as jointly for all of them. To hold otherwise, would be giving a very narrow construction to the statute authorizing appeals, and a construction not required by either the words or the obvious intention of the legislature, and a construction tending to defeat, rather than to promote the administration of justice.
The plaintiff in error claims that he is not bound to satisfy a judgment rendered against only one of the defendants, but that he is bound only “to satisfy such judgment and costs as may be rendered against them” — that is, against both of the defendants jointly.
Now suppose that the defendants had had a separate trial, and that a separate judgment had been rendered against each of them for the same amount, and in precisely the same form: would the plaintiff in error, the surety ou the bond, be bound to satisfy these judgments, or either of them? In such a case, there would be no judgment, no single judgment, “rendered against them” — that is, against both of the defendants — but only a separate judgment rendered against each of them. But suppose the two judgments against the defendants should vary slightly in amount and in form: then would the plaintiff in error be bound to satisfy either of them ? If the plaintiff in error is correct, then he would not be bound to satisfy any judgment rendered against the appellants except a joint judgment rendered against all the defendants at the same time, for the same amount, and in the same form, and of which only one entry is made. If an entry of the judgment should be made for each defendant, or if there should be any variation in the judgment, as to the amount of the same as against the several defendants, or as to the form of the same as against the several defendants, such separate entry of the judgment, or such variation, would release the surety on the appeal bond. For in such a case no single judgment, nor the same judgment, would be “rendered against them,” the defendants and appellants. We cannot think that these views of the plaintiff in error are correct.
As sustaining the view that the plaintiff in error is liable on the appeal bond, we would refer to the following authorities: Hood v. Mathis, 21 Mo. 308; Bentley v. Dorcas, 11 Ohio St. 398; Seacord v. Morgan 3 Keyes (N. Y.), 636; Burrall v. Vanderbilt, 1 Bosw. N. Y. 637; Gardner v. Barney, 24 How. Pr. 467.
The judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This action was brought by R. A. Edwards against the St. Louis & San Francisco railway company, for damage done to his crops by reason of cattle passing into his field through or over improper cattle-guards on the defendant’s road where the road enters the plaintiff’s field. The action was commenced under chapter 81 of the Laws of 1869, relating to cattle-guards. (Comp. Laws 1879, p.785.) A trial was had in the district court, and judgment was rendered in favor of the plaintiff and against the defendant, who now, as plaintiff in error, seeks a reversal of that judgment.
The whole gist of the controversy in the court below was, whether the cattle-guards constructed by the defendant, and through which or over which the cattle entered the plaintiff’s field, were proper cattle-guards or not. All other questions were admitted, or sufficiently proved. If the said cattle-guards were proper cattle-guards, then the plaintiff had no cause of action; but if they were not proper cattle-guards, then his cause of action was unquestionably established. We think the evidence clearly showed that they were not proper cattle-guards, and therefore that the plaintiff clearly established his cause of action.
The supposed errors committed by the court below are as follows: After the plaintiff had closed his evidence the defendant introduced W. C. Eldred as a witness, who testified that he had been in the employment of the defendant for about eight years, and that he had put in a great many cattle- guards for the defendant during that time. The defendant then asked the witness the following question:
“ I will ask you if it is not a fact that cattle get breachy with reference to these cattle-guards, the same as they do as to fences, and then is it not almost impossible for a cattle-guard to stop them?”
This question was objected to by the plaintiff, and the objection was sustained by the court, and the intended evidence was excluded. We think the ruling of the court below with regard to this question was correct. No evidence was introduced tending to show that the witness knew anything about cattle or their nature or habits; and hence, he was not a competent witness to testify with regard to cattle becoming breachy. The question was also leading; but as the plaintiff did not object to it for that reason, its leading character cannot now be considered as objectionable.
At the close of the evidence, the defendant asked the court to instruct the jury as follows:
“The court instructs the jury that the foundation of the plaintiff’s claim to recover, is the alleged failure of the railroad company, defendant, to put in proper cattle-guards where the railroad passes through the inclosure of the plaintiff; and unless the jury believe from the evidence that the said railroad company did so fail to put in proper cattle-guards at such places, then they will find for the defendant; and the jury are further instructed that the mere fact alone that cattle got into plaintiff’s field over such cattle-guards, is not conclusive evidence that said cattle-guards were not proper ones; that the defendant railroad company was only bound to use ordinary skill and precaution in putting in cattle-guards, and if the jury believe from the evidence that the defendant railroad company did put in such cattle-guards as were reasonably sufficient and proper, and such as are ordinarily in use in this country, they will find for the defendant, notwithstanding they may believe plaintiff’s crops were damaged by cattle getting into plaintiff’s field over or across such cattle-guards.”
The court refused to give this instruction, and then charged the jury as follows:
“Gentlemen oe the Jury: The plaintiff asks judgment1 against the defendant railroad company for the sum of ninety dollars as damages, which he alleges he has sustained to his corn crop by cattle passing over improper cattle-guards constructed by defendant at the place where its road passes through the premises of plaintiff. The law makes it the duty of all railroad companies, whenever their road runs through improved or fenced land, to construct proper cattle-guards where they enter and where they leave such improved or fenced land. The intention of the law is to protect those owning or possessing improved or fenced land over which a railroad is constructed against the depredations of domestic animals; and the term ‘proper cattle-guards’ means such cattle-guards as shall be reasonably sufficient to prevent the ingress or egress of cattle into or out of the premises. The plaintiff claims for damages to his corn only. Therefore you will not consider any damage he may have sustained to his pasture, or for his services in protecting his crop. The burden of proof is on the plaintiff, and in order that he may recover he must show by a preponderance of evidence that the cattle-guards complained of were not proper ones, and that he sustained damage to his corn crop by reason thereof. If you thus find, your verdict will be for the plaintiff for the damage the evidence shows that he has sustained; otherwise you will find for the defendant.”
The defendant does not claim that the instruction given was erroneous, but claims that the court below erred in refusing to give the instruction which it refused to give. Probably we should not consider this question, as the' record does not sufficiently show that all the instructions given by the court below have been brought to this court; and hence, from anything the record shows, the court may have given substantially all that is embodied in the instruction refused. But as we do not think the court erred in refusing the instruction which it refused, although nothing like it may have been given, we shall proceed to consider the question. We think the instruction was properly refused, for the following reasons:
1. It embodied the proposition that “unless the jury believe from the evidence that the said railroad company did so fail to put in proper cattle-guards at such places, then they will find for the defendant.” The evidence showed that the defendant did in fact put in cattle-guards, which may possibly have been sufficient, (although from the evidence we do not think they were,) and that afterward they were broken and rendered almost useless; hence if the instruction had been given, it would have been misleading and erroneous. It did not have reference to the condition of the cattle-guards at the time the cattle passed over them or through them, but at the time when the company placed them in its road.
2. The instruction also contains the proposition that “if the jury believe from the evidence that the defendant railroad company did put in such cattle-guards as were reasonably sufficient and proper, and such as are ordinarily in use in this country, then they will find for the defendant.”
Now, besides the above-mentioned evidence tending to show that the cattle-guards actually put in by the defendant were afterward broken and rendered almost useless, there was in fact no evidence introduced tending to show what kind of cattle-guards “are ordinarily in use in this country;” and hence the instruction should not have been given, for this additional reason.
We do not think that the court below committed any material error; and we think the judgment of the court below was right upon the evidence, and therefore it will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This is an action of ejectment for the recovery of real estate, brought by Sarah A. Walker, as heir-at-law of Michael Kizer, her deceased father, and of George Kizer and California Kizer, her two deceased brothers. On the final hearing, the case was tried by the court without a jury, and the court made the following special findings of fact and a conclusion of law, to wit: .
“1st. That James'E. Young was the administrator of the estate of Michael Kizer, deceased, appointed by the probate court of Allen county, Kansas, on the 11th day of August, 1865. .
“2d. That on the 10th day of January, 1866, the said administrator presented to said court a petition verified by the said administrator, representing that the personal estate of the deceased was not sufficient to pay his just debts, and asking the court to grant him license to sell as much of the real estate of the deceased as would enable him to pay the same, with the costs attending the same.
“3d. That the said petition did not describe the lands sought to be sold, either by naming the section, township and range, or any portion of either, and did not state the county or state in which such lands are located.
“4th. That the said petition was not accompanied with an account of the administration, did not contain a list of the debts due to and by the deceased, and was not accompanied with an inventory of the real estate or personal property, or the appraisement of each.
“5th. That, upon the presentation of said petition, the probate court set the same down for hearing on the first Monday in February, and ordered that notice be given as required by law; and that was the only kind of notice ordered by the probate court to be given as to the pendency of such petition.
“6th. That the said administrator thereupon gave notice of the pendency of such petition, and the time of the hearing thereof, by publication in the Humboldt Union, or Humboldt Herald, and that was the only notice given thereof.
“7th. That, on the 5th day of February, 1866, the probate court issued an order1 directed to said administrator, requiring him to sell the whole qf the real estate qf the said deceased at public aucticn or private sale, agreeably to law.
“ 8th. That the said order of sale did not describe the lands ordered to be sold, either by naming the section, township or range, or any portion of either, and did not state the county or state in which such lands are located.
“ 9th. That the said administrator, on the 6th day of April, 1866, reported to the probate court that he had, on the 24th day of February, 1866, sold to J. C. Clark, in obedience to the order of sale, the whole of the real estate of said deceased described in said report, as follows, to wit: West .J of S. W. J of sec. 28, and E. J of S. E. of sec. 29, in township 28, S., of range 18, east, for the sum of $1,250; and that the sum was the full amount of the appraisement of said land.
“ 10th. That the said report was indorsed upon the order of sale issued and directed as aforesaid, and contained no further description or location of the land sold than as stated in the next preceding finding.
“11th. That said report was accompanied with an affidavit made by James E. Young, the said administrator, in which he swore, among other things, that he had not directly or indirectly purchased the real estate above described, or any part thereof, or any interest therein, and that he is not interested in the property sold, except as stated in the report.
“12th. That the lands described in finding No. 9 were sold to J. C. Clark for the sum of $1,250; that the said administrator did not directly or indirectly purchase the same; and that he was not interested in the property or its sale, except as administrator and creditor of the estate.
“13th. That the said administrator was a creditor of said decedent to an amount larger than any of the other creditors, and that there were other creditors of said decedent.
“14th. That the only inventory and appraisement of the real estate of the decedent caused to be made by the administrator, was one made on the 9th day of September, 1865, the report of which was filed in the office of the probate court on the 11th day of September, 1865.
“15th. That the inventory and appraisement mentioned above described the real estate in the same manner as is stated in finding No. 9, and contains no further description or location thereof than is therein mentioned.
“16th. That the said administrator disposed of the money .received from such sale by first paying the debts of the estate and costs of administration, and' then paying the residue to the heirs according to their respective shares.
“17th. That the plaintiff received her proportion thereof, but did not know that the money received by her was a part of the proceeds of such sale, and did not know that the land had been sold.
“18th. That the said James R. Young was the duly appointed guardian of the minor children of Michael Kizer, including the plaintiff herein, and that he was appointed as such guardian on the-day of-, 1864.
“ 19th. That the sale of said lands made by the said administrator as aforesaid was confirmed by the probate court on the-day of-, 1866.
“20th. That the said administrator executed a deed to the said purchaser, the recitals of which as to the proceedings authorizing its execution, and the description of lands therein, are as follows:
“ ‘To all persons to whom these presents shall come: I, James R. Young, administrator of the goods and chattels and estate which were of Michael Kizer, late of Allen county, state of Kansas, deceased, intestate, send greeting: Whereas, the Hon. probate court for the county of Allen, at a session thereof holden at Iola, in said county, on the 5th day of February, A.D. 1866, on application for that purpose, did license and authorize me to sell, at public auction or private sale, all the real estate of the said deceased, for the payment of the said debts of the said deceased, with incidental charges; and in obedience to said license, I sold the real estate hereinafter described, at private sale, to J. C. Clark, of Allen county, Kansas, for the sum of twelve hundred and fifty dollars.
‘“Now know ye, that pursuant to the license and authority aforesaid, and not otherwise, and in consideration of the sum of twelve hundred and fifty dollars aforesaid, the receipt whereof I do hereby acknowledge, I do by these presents grant, bargain, sell and convey unto the said J. C. Clark, his heirs and assigns, a parcel of land, situate in the county of Allen and state of Kansas, and bounded and described as follows, to wit: the west half of the southwest quarter of section twenty-eight, and the east half of the southeast quarter of section twenty-nine, all in township twenty-four, south, of range eighteen, east, containing one hundred and sixty acres, more or less, being all the real estate in Allen county whereof the said Michael Kizer died seized.’
“The said deed was filed for record and recorded in the office of the register of deeds of Allen county, Kansas, on the --day of---, 1866.
“21st. That the said J. C. Clark executed a deed of conveyance of the said lands to the defendant Squire Young, and that the defendant Julius Young now occupies and holds the same as a tenant of the said J. R. Young.
“22d. That at the death of Michael Kizer, he left surviving him the following children as his sole surviving heirs-at-law: Sarah A. Kizer, George Kizer, and California Kizer; that George Kizer and California Kizer have both died, and left their said sister Sarah A. Kizer their sole surviving heir-at-law; that the said Sarah A. Kizer has intermarried with ■one W. T.Walker, and that her name is now Sarah A.Walker; and that Michael Kizer died seized of the west half of the southwest quarter of section 28, and the east half of the southeast quarter of section 29, all in township 24, range 18, in Allen county, and state of Kánsas.
“ 23d. That at the time the lands were sold as aforesaid, the oldest was-and the youngest-years of age. That the premises of which Michael Kizer died seized, and referred to in the last preceding finding, were at the time of said sale occupied by-.
“ 24th. That Michael Kizer left the place in controversy in the charge of his children, in the fall of 1863 or 1864, because he feared some personal injury from several enemies; that he intended to return to the same as soon as the difficulty which induced him to leave was settled or compromised; that he died in the year —-; that he had not yet returned to the place; that his children were removed from the place by a neighbor within a few days after Kizer left, and never thereafter returned to it for occupancy; that the neighbor who removed the children did so under the direction of their father, Michael Kizer, just before he left.
“25th. That the heirs of Michael Kizer, hereinbefore mentioned, each received his or her distributive share of the proceeds of said sale after they attained the years of majority; that neither of them has ever paid back or offered to refund the same; and the said George and California Kizer died after they received such distributive share of said proceeds.
“26th. That the rental value of the land in controversy was $65 per year.”
And as a conclusion of law, the court finds:
“That the plaintiff is entitled to judgment against the defendants.”
Upon these findings, the court below rendered judgment in favor of the plaintiff and against the defendants, for the recovery of the real estate in controversy; and also for $271.82, damages, and $91.98, costs. The defendants claim that this judgment is erroneous, and as plaintiffs in error now ask for a reversal of the same by this court.
We think the findings of the court below are sustained by sufficient evidence. It is true that with reference to some of the facts, the court might have found differently, and per haps ought to have found differently; but still .there was some evidence, and we think sufficient evidence, to sustain all the findings as made by the court below. The only question, then, is, whether the findings actually made by the court below will sustain the judgment rendered upon them. It will be noticed that the title of the defendants below to the property in controversy is founded solely upon an administrator’s deed; and therefore the real question to be determined is, whether under all the circumstances, the administrator’s deed is valid or not. The plaintiff below claims that it’is invalid for various reasons — first, because it does not, as she claims, recite “the certificate of appraisement and advertisement, the time and place of sale, or report the proceedings ” of the probate court or of the administrator, as required by § 141, ch. 91 of the Compiled Laws of 1862, pp. 532, 533, and she also refers to §§ 136, 138, 139 of said chapter; second, because, as she claims, the repords of the probate court, with the other evidence introduced on the trial, show that the notices of the hearing of the application for the sale of the real estate in controversy, and also the notices of the sale itself, were not given for a sufficient length of time; that neither the application for the order to sell the real estate, nor the order itself, describes the property to be sold; but that the application simply asked “to sell so much of the real estate of the said deceased as will enable the administrator to pay the just debts of the deceased;” and the order simply authorized the administrator “ to sell the whole of the real estate of the deceased; ” that the probate court did not exercise its discretion in ordering or designating which of the two ways, authorized by § 131 of said chapter 91, the notice of the hearing of the application for the sale, of the real estate of the deceased should be given, but simply ordered “that due notice should be given as required by law.”
On the other hand, the defendants below claim that the administrator’s deed is valid ; that it is valid upon .its face; and that the proceedings of the probate court and of the administrator weré sufficiently, regular to make it valid, even if it had been attacked when first executed and by a direct proceeding. And they further claim that at this time, and in this collateral proceeding, it must be held valid beyond all question. They claim that after the sale has been made, and after the plaintiff and the persons under whom she claims have received full payment for the property, she cannot now repudiate such sale and payment; and that without refunding, or offering to refund, any of the money which she and the persons under whom she claims received for the property, she cannot now recover the property. It must be remembered that the sale was made about February 24, 1866; that the property was sold for $1,250; that that was a fair price for the property, and was all that the property was appraised at; that a portion of the proceeds of the sale was paid directly to the plaintiff, and that she has not refunded or offered to refund any portion of the same to the purchasers, or to any one else. The defendants also claim that the five-years statute of.limitations (Civil Code, §16, subdiv. 2) has run in favor of the administrator’s deed, making such deed valid, if it was not valid before, and thereby barring all action in favor of the plaintiff for the recovery of the property.
We shall first consider the question whether the statute of limitations has run in favor of the administrator’s deed, and barred any action which the plaintiff might otherwise have had for the recovery of the property; for if we decide that question in favor of the defendants, it will not be necessary to consider any of the other questions separately. That question, however, involves a discussion of some of the other questions.
We shall assume for the purposes of the ease, that, except for the statute of limitations, the administrator’s deed would be void. We shall assume for the purposes of the case, that the irregularities in the proceedings of the probate court, and of the administrator, are sufficient to render the administrator’s deed void in any action or 'proceeding that might have been commenced before the statute of limitations had completely run, and this whether the deed was attacked directly or collaterally; and with such assumptions, we shall proceed to a discussion of the question, whether the statute of limitations has in fact so run as to make the deed valid. Of course the statute of limitations must have some use. It was not enacted for the purpose of curing administrators’ deeds which were already good. It was really enacted for the purpose of curing administrators’ deeds which would otherwise be void; and whether it will so apply as ‘to cure the present deed, and make it valid, we shall now proceed to consider. If it will, it will certainly do justice in the present case; it will prevent the plaintiff from perpetrating a villainous wrong; it will prevent her, after she and the persons under whom she claims have received full payment for the property, from then repudiating such payment, and recovering the property; and it will give the property to the defendants, who purchased it in good faith, and paid a fair price for it, and have held possession of it for several years.
We think the statute of limitations has cured the deed, and made it valid. An application was in fact made by the administrator to the probate court to sell the real estate of the deceased to pay the debts chargeable against his estate. A hearing of such application was ordered by the probate court, and the time was fixed for such hearing. Notice of the hearing was in fact given, although the notice was perhaps not given for a sufficient length of time; the hearing was had; the sale was ordered; notice of the sale was probably given, though the time was probably one day too short; the sale was in fact made; the property was appraised, and was sold at a fair price, and for the amount of the appraisement; the sale was confirmed by the probate court, and the deed was ordered to be made to the purchaser; the proceeds of the sale were properly applied; a deed was duly made and executed, in pursuance' of the order of the probate court, the administrator covenanting therein, among other things, that he had “in all things obeyed the rules and directions of the law in the said sale;” the deed was duly recorded July 31,1867; the plaintiff became of age May 15, 1873, and then actually received a portion of the proceeds of the sale; and this suit was commenced April 25, 1879. It therefore seems that the statute of limitations had so run as to bar the plaintiff’s right of recovery. It is true that there were irregularities in the proceedings of the probate court and of the administrator; but the statute of limitations was unquestionably enacted for the purpose of curing irregularities. If everything was regular, there would be no need of any statute of limitations. If the administrator’s deed was valid without such statute, then there would be no need of the statute. Therefore it is evident that the statute was enacted for the purpose of curing administrators’ deeds which would otherwise be void. It is true that the administrator’s deed in the present case, if considered with reference to § 141 of chapter 91 of the Compiled Laws of 1862, is to some extent irregular and informal; but still there is nothing on the face of the deed which renders it void, or shows it to be void. There is nothing on its face that shows that any of the proceedings of the probate court or of the administrator were irregular, and void. So far as the face of the deed is concerned, everything prior to the execution of the deed may have been regular, and valid; and the administrator covenanted in the deed, among other things, that he had “in all things obeyed the rules and directions of the law in said sale.”
But the regularity or validity of the administrator’s deed is not now to be governed wholly by the Compiled Laws of 1862. It is now governed and has been since June 20,1872, by the General Statutes of 1868, and by chapter 127 of the Laws of 1872, (Comp. Laws of 1879, pp. 425, 426, §§ 132, 133, and 133a; Sanders v. Greenstreet, 23 Kas. 425;) as well as by the Compiled Laws of 1862; and under the General Statutes of 1868 and the Laws of 1872, the administrator’s deed is perfectly valid upon its face.
The judgment of'the court below will be reversed, and the cause remanded with the order that judgment be rendered in favor of the defendants below.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
The city has filed a motion for rehearing in this case. The point made in the motion is this: At the close of the opinion filed, we stated that we considered the statute broad enough to cover the condemnation of water, and that if the city and Soden could not agree upon terms, condemnation proceedings could be had. Now counsel say that the record discloses that condemnation proceedings were in fact had, and ask, What more could the city do? The trouble with those proceedings is, that there was no condemnation of the water. The effect of such proceedings is, to pass no more title, no greater interest than an ordinary deed would pass. In this case the city both condemned the tract of land upon the banks of the Cottonwood, and received from the owner a voluntary deed. The condemnation proceedings gave it no more right or interest in the land than did the deed which it received. It is true that the land taken and bought extended to the middle of the channel, and to that extent constituted the city a riparian owner, but no riparian owner has a right to divert the flow of a stream. Bragunier, the former owner, may have owned the land bordering upon the mill-pond for years, but such ownership of that land gave him no right to drain the pond or divert the flow of the stream to the destruction or injury of Soden’s water power. The city succeeded to Bragunier’s rights, and nothing more; it could not take a drop of water from that pond above what Bragunier had a right to take; it could not reduce Soden’s water power a particle more than Bragunier could. If the city wishes to take water from that pond to the damage of Soden’s water power, and desires to take it by condemnation proceedings, the commissioners appointed must value the power so to be taken, and the damage done to Soden by so taking; then if he is dissatisfied with their award he can appeal to the district court, and. the case will there be tried before a jury. The city in taking water from a stream is subject to the same obligation to compensate the lower riparian owners that an individual would be. If it destroys the natural flow of the water to the injury of such owners, it must compensate them therefor. The trouble with the condemnation proceedings had, was, that they did not purport to condemn the right of diverting the water from the Cottonwood river, and nothing passes by such proceedings except what is specified therein. By condemning one piece of property no right is acquired to another, and the right to divert the flow of a stream is not a right incident to riparian ownership. It is separate and independent property, and if the city seeks to condemn that, it must have a special condemnation of it.
The motion for a rehearing will be overruled.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The defendant in error (plaintiff below) commenced her action against the plaintiffs in error (defendants below), and alleged in her petition substantially as follows: That on September 12, 1876, she loaned through her agent, one A. B. Noble, to one Enoch Fry, $165, with interest at twelve per cent., payable annually; that on October 1,. 1876, one M. A. Myers became indebted to the said Fry in a large amount, and by an arrangement between her, Fry and Myers, the latter assumed and agreed to pay her the said $165 and interest, on account of Fry, when the same became due, which agreement she accepted, and thereupon discharged Fry from all liability. Afterward, O. J. M. Borden, one of the plaintiffs in error, commenced an action against A. B. Noble before a justice of the peace of Harvey county, and caused said Myers to be summoned as a garnishee, alleging that Myers was indebted to A. B. Noble. The justice before whom the garnishee proceeding was pending, ordered Myers to pay the money into court on the 15th day of September, 1877, as the property of said A. B. Noble. On October 27, 1877, Sarah A. Noble, A. B. Noble and M. A. Myers entered into an agreement with C. S. Bowman, whereby $165 was placed in the hands of C. S. Bowman by M. A. Myers, to be retained by him until the rights of the various parties thereto should be determined by subsequent litigation, and by him to be paid to the person to whom the court should direct. Plaintiff further alleged that she was deprived of tho use of her money by the wrongful acts of Borden, and demanded judgment against him for her costs, and a decree declaring the money the property of herself, with an order that the defendant C. S. Bowman deliver the money to her with interest at twelve per cent, thereon. Each of the defendants filed his separate demurrer to the petition, separately stating as grounds thereof, first, that there was a defect of parties defendant; second, that the petition did not state facts sufficient to constitute a cause of action against either of said defendants. The court overruled the demurrers, and each of the defendants filed his separate answer. Upon the trial, defendants objected to the introduction of any evidence, because the petition did not state facts sufficient to constitute a cause of action. The objection was overruled, and a verdict rendered in favor of plaintiff for $150. Judgment was entered thereon.
We think the demurrers were properly overruled. As-Sarah A. Noble and O. J. M. Borden consented that the 1165-due from Myers, and claimed by both, might be deposited with C. S. Bowman, and that they would accept him and his bond for the indebtedness, such contract released and discharged Myers from all liability to either, upon his compliance therewith. After such contract, and the deposit of the money with Bowman by Myers, in accordance with its terms, the latter was no longer interested in said money, or the contention of Mrs. Noble and Borden over it. It was immaterial to him whether Mrs. Noble recovered, or whether Borden was successful in his claim. The contract and the deposit of the money relieved Myers of all responsibility, and he was not a necessary party in the action to determine whether it should go to the one or the other. As all the parties to the contract treated the money deposited with Bowman in lieu of the sum loaned to Fry, and as the court below treated it in-lieu of the money which Myers had assumed to pay for Fry,, we may treat it in the same light. Indeed we ought to do so,, in justice to all the parties. The petition distinctly alleges the money as being the property of the defendant in error.. The whole controversy was, whether the money, considered by the contract as the identical money originally loaned to-Fry, belonged to Mrs. Noble, or to some one else. In this view the petition was sufficient in its statement of facts. Of course, had the contract between the parties for the deposit of the money not been entered into, we do not intimate that. Sarah A. Noble would have any cause of action against either Borden or Bowman. The order against Myers by the justice of the peace in the garnishment proceedings would not have protected him from the independent action of Sarah A. Noble. The judgment of the district court will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
The action in the court below was an appeal from an order of the plaintiff in error, the board of commissioners of Lyon county, allowing to the defendant in error damages upon the laying-out of a new road. Upon the trial of this appeal, defendant recovered a judgment in the sum of $748. This judgment the county commissioners challenge, and allege three grounds of error. The first is, that upon the trial there was no evidence offered to the jury that a road had been established according to law over defendant’s land. Counsel for the county contend that the case is triable in the district court, precisely as though Kiser had brought an original and independent action against the county to recover for the value of land it had taken; that to sustain such an action, there must be evidence that the county had taken the land, and how much it had taken. The objection is not good. The transcript of the record of the proceedings of the county commissioners was filed in the district court at the time of taking the appeal, and became a part of ■the record in the case. It showed all the proceedings in respect to the location, and laying out of the road, together with an award to Kiser of $168.50, as his damages. Now the appeal takes up simply the award of damages. It is based upon the assumption that the commissioners have established a road, and have awarded to appellant a certain sum as damages for his land taken. This is all that the statute contemplates shall go up for inquiry on the appeal. (Comp. Laws of 1879, ch. 89, § 7; Gulf Railroad Co. v. Owen, 8 Kas. 410; Railroad Co. v. Orr, 8 Kas. 419; Railroad Co. v. Boswell, 34 N. J. L. 474; Ney v. Swinney, 36 Ind. 460.) The award of damages is based upon the fact that a road has been established. The appeal implies that a road has been established. If this is a mistake, and there is no award to be appealed from, the remedy of the county commissioners was by a motion to dismiss the appeal; while on the other hand, if they go to trial upon the merits of the appeal, they waive any inquiry as to whether, in fact, there was a road established, for which damages had been awarded. It is generally true, that where a party appeals from an award of damages, he cannot, pending the trial of the appeal, question the validity of the road proceedings, (Reisner v. Strong, 24 Kas. 410;) and upon the same principle, when the county commissioners go to trial upon an appeal from an award made by themselves, they will not be heard to say that they have established no road, and therefore no damages ought to be awarded.
Again, upon the trial there was plenty of testimony which, if it did not tend directly to prove the establishing of the road, at least recognized the fact that a road had been established, and was based upon that assumption. Several witnesses said that they knew where the road ran, and the county surveyor testified that he surveyed the road in question and named the amount of land it took, and the rods of fence that the appellant would have to build. Counsel on both sides offered testimony as to the amount of damages done by the road to the farm. One of the county commissioners testified that he considered the road a benefit rather than an injury, and that he was one of the board that allowed appellant the damages appealed from. This testimony was received without objection, and if it was not testimony which legally proved the establishing of the road, it was testimony sufficient to sustain the verdict, when the question is raised for the first time in this court. (Railroad Co. v. Wilder, 17 Kas. 244.)
A second error complained of is in the instructions. It is said that the court took from the jury the question whether the benefits exceeded the damages, and instructed them that they must find for the appellant some amount, leaving to them the inquiry only as to the amount. We do not so understand the scope of the instructions. It was proper to charge that the simple question was as to the amount the appellant was entitled to recover. The matter of damages was the only question before the jury. The court instructed as to the nature of the damages for which he was entitled to compensation, as well as to the nature of the benefits which were to be deducted therefrom, and then that the amount of damages less the amount of benefits should be the verdict. It is true that it was not stated in express terms, that if the benefits exceeded or equaled the damages the verdict should be nothing in favor of the appellant, but no instruction to that effect was asked; and upon the testimony it would not have been fair and right for the jury to return no damages. A number of witnesses was placed upon the stand and examined, and with one exception they all testified that the plaintiff’s farm received damages, some placing the amount very largely in excess of that awarded by the jury; that single witness — a county commissioner, who testified that he considered the road of more benefit than injury to appellant — admitted on cross-examination that he was one of the board’ that allowed the damages appealed from. The jury, in view of the testimony, could not fairly have done otherwise than award some damages. With such testimony in the case, with no application for a special instruction, it would seem that it was straining a point to hold that the jury were misled by the language used by the court, or that the latter so invaded the province of the former as to commit material error. The very amount of the verdict proves that there was no error in the charge of the court in this respect.
A third, and last objection is, that the counsel for the appellant in his argument to the jury stated an incorrect proposition of law, and that the court in its subsequent charge failed to correct this error. This allegation of error must also fail. Counsel, in arguing a case to the jury before the court has instructed them, has a right to express his views as to the law applicable to the case, the bearing he supposes it has upon the testimony, and the inferences deducible therefrom; and we have never understood that, because a counsel in his argum'ent was mistaken as to the rules of law applicable, a verdict of the jury in his favor ought to be set aside. The jury take the law from the court, and so far as any special instructions upon any particular questions are desired, it is the duty of counsel to apply for them. If one counsel misstates and the other deems the misstatement material, and likely to mislead, it is his duty to ask the court in the instructions to correct the error. If the general law applicable to the case is correctly stated by the court in its charge, and it gives all proper special instructions that are asked, it is seldom error justifying a reversal that the court did not also correct before the jury every misstatement of the rules of law made by counsel in their arguments. In this case the court stated all the general rules that needed to be stated, and so stated them that the jury could not have been misled, and, whether the proposition of law advanced by counsel in his argument was correct or not, there was nothing in it to work any substantial injury to the rights of the present plaintiff in error.
These being all the questions in the case and in them appearing no error, the judgment will be affirmed.
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The opinion of the court was delivered by
"Valentine, J.:
This was an action brought by Paul Fisher against Frederick Ostmeir and R. Orth, on the following promissory note:
“$263. Humboldt, Kas., Jan. 8, 1876.
“ One year after date, we promise' to pay to the order of G. A. Fisher two hundred and sixty-three dollars, value received, with interest at 12 per cent, per annum from date until paid. Appraisement waived. Frederick Ostmeir.
E. Orth.”
• The plaintiff alleged in his petition that this note was given for $250, money loaned by the plaintiff to Frederick Ostmeir, Ostmeir being the principal on the note, and Orth, surety ; that at the time of loaning the same the plaintiff believed he was loaning the money of his brother, G. A. Fisher, and for that reason took the note in the name of G. A. Fisher, instead of in his own name; that the $13 added to the $250, making the note $263 instead of $250, was added for the purpose of paying the plaintiff a commission for procuring the loan; that afterward he ascertained that he had in fact loaned his own money, and that he had no money in his hands at that time belonging to his brother, and therefore that he, the plaintiff, was the owner of the note.
The defendants pleaded separately. A trial was had as against Frederick Ostmeir, and judgment was rendered against him for $294.80 and costs, taxed at $27.75. The defendant Orth died before the action was tried as against him, and then the action was revived against the present defendant William Stoekebrand, as administrator of the estate óf E. Orth, deceased. Stoekebrand then filed an amended ánd supplemental answer to the plaintiff’s petition, which answer reads as follows:
“And now comes Wm. Stoekebrand, administrator of the defendant E. Orth, and for amended and supplemental answer to plaintiff’s petition, says: That the defendant E. Orth signed the note sued on as surety only for the other defendant, and that he received no part of the consideration therefor. Defendant further says that heretofore the plaintiff was in possession of said note and had full authority to collect the same for his own use and benefit, and that thereupon he placed the same in the hands of one G. P. Smith, an attorney at law, for collection, and caused said Smith to institute a suit thereon in the name of the payee thereof against defendants herein, in which action said Smith was attorney of record; said plaintiff had full and exclusive control and management of said suit, and the same was instituted and prosecuted without the knowledge, and not for the benefit of said payee. Pending said suit, the defendant Ostmeir offered to pay plaintiff herein the full amount due, and said plaintiff designated said G. P. Smith as his attorney, having said note in his possession for collection, and referred said defendant to said Smith as his agent for that purpose. Thereupon, on or about the 7th day of January, 1879, said defendant tendered to said G. P. Smith, who then was the duly-authorized agent and attorney of said plaintiff, with full power and authority to receive payment of all sums due by reason of said note, or of the pending litigation, the sum of two hundred and eighty-five dollars in lawful money of the United. States, which tender was refused by said attorney and agent.
“ Defendant further says that heretofore, at the October term, 1879, of this court, this cause came on to be tried upon the issues joined in this action between plaintiff and said defendant Ostmeir, in which action said plaintiff recovered a judgment for less than two hundred and ninety-five dollars; and it was specially found by the verdict of the jury in said cause, that the sole and only payments upon said note were made at a date prior to the date of said tender. Wherefore plaintiff [defendant] avers it has been so adjudged and determined, and that such is the fact, that said sum so tendered was more than the actual amount due at the date of said tender. Defendant further says, that since the date of said tender, defendant Ostmeir has become and is now wholly insolvent.
“Wherefore, defendant asks that he may be dismissed without day, and that he have and recover of plaintiff his costs herein.”
The plaintiff demurred to this answer, upon the ground that it did not state facts sufficient to constitute a defense, which demurrer the court overruled. The plaintiff then replied to this answer, setting up, first, a general denial; second, in substance, that the defendant Ostmeir had also pleaded said tender; and that the court had ordered Ostmeir to bring the money into court, which Ostmeir failed and refused to do, and then abandoned his plea of tender; third, that judgment was rendered in favor of the plaintiff and against the defendant Ostmeir, for the sum of $294.80 and costs, taxed at $27.75. A trial was had upon these pleadings, and upon the evidence the court made the following findings:
“1. That Fred. Ostmeir was principal and R. Orth was surety on the note sued on in this action.
“ 2. That the attorney of defendant Ostmeir did, on the 7th day of January, 1879, on behalf of said Ostmeir, tender to the attorney of the said plaintiff in this action, who at that time had the note sued on in his possession for collection, the sum of $285.
“ 3. That said tender was made in satisfaction of the note sued on.
“4. That the sum tendered was the full amount of principal and interest due upon said note at the time said tender was made.
“5. That the tender so made by defendant’s attorney was refused by the attorney of plaintiff.
“ 6. That at the trial of this cause upon the separate answer of defendant Ostmeir, plaintiff Fisher demanded of said Ostmeir that he bring into court the money claimed by him to have been tendered to plaintiff Fisher, and the court then and there ordered defendant Ostmeir to bring into court the money claimed by him to have been so tendered; but said money was not so brought into court, nor was any evidence offered in said trial tending to show that any tender, as alleged by Ostmeir in his said answer, was ever made to the plaintiff or his attorney.
“ 7. That at the time the tender was made, there was an action pending in this court upon the note herein sued on, in which one G. A. Fisher was plaintiff and Ostmeir and Orth were defendants; but said action was dismissed by said G. A. Fisher at his own costs, prior to the commencement of this action.
“8. There was no evidence offered by the defendant that the tender so made was sufficient to cover the costs in said action of G. A.. Fisher, over and above the amount due on said note.
“9. That there was no evidence offered by the plaintiff that there were any costs due on said action of G. A. Fisher at the time of the tender, or that the defendant was in any manner liable for any costs in said action.
“That from the foregoing findings of fact, the court makes the following conclusion of law: That the defendant, Vm. Stockebrand, administrator of the estate of R. Orth, deceased, is not liable on said note.”
Upon these findings the court below rendered judgment in favor of the defendant Stockebrand and against the plaintiff for costs. This judgment was rendered on July 9,1880. Afterward, at the succeeding term of the district court, and on October 12, 1880, the plaintiff filed a motion to supply a motion for a new trial. He claimed then and claims now that he had filed a motion for a new trial within proper time, which motion was overruled by the district court. This motion to supply the motion for a new trial was heard by the court below on affidavits and other evidence, and was overruled by the court. The plaintiff then made a case for the supreme court, and filed such case in the district court on March 7, 1881; and afterward brought the same to this court. He asks that the judgment of the court below be reversed, for the following reasons, which we shall consider in their order:
First. He claims that the court below erred in overruling the plaintiff’s motion to supply the motion for a new trial. Upon this question we think the court below decided correctly; for, as we think, the preponderance of the evidence showed that no motion for a new trial was ever filed by the plaintiff in this case. The minutes of the court do not show that any such motion was ever made, or filed, or acted upon; and neither do the journal entries of the court show any such thing; and the clerk himself in his affidavit testifies “that no motion for a new trial in the case of Paul Fisher v. Fred. Ostmeir and Wm. Stockebrand, administrator of R. Orth, deceased, was ever filed by or on behalf of plaintiff in said cause, nor was any such motion ever handed to the clerk or left with him; ” and the deputy clerk in his affidavit- says “ that he has no knowledge of any such motion for a new trial on behalf of plaintiff.”
None of the evidence introduced on the trial of this action has been brought to this court.
Seeond. The plaintiff also claims that the court below erred in overruling the plaintiff’s general demurrer to the amended and supplemental answer of the defendant Stockebrand.
The plaintiff also claims that the court below erred in refusing to require the defendant Stockebrand to bring into court the money alleged by him to have been tendered to the plaintiff.
The plaintiff also claims that the court below erred in its conclusion of law from the facts found by the court.
As all these claims of error raise substantially the same question, we shall consider them all together; and that question is this: Did the tender made by Ostmeir, the principal on the note, discharge the defendant’s intestate, R. Orth, who was only a surety on the note?
It -is admitted by the pleadings that Ostmeir was the principal, and Orth was only a surety on the note; and it is also admitted that the plaintiff had knowledge of this fact at the time the note was executed; hence no question has at any time been raised with respect to any want of knowledge on the part of the plaintiff of this fact.
It is also admitted that there was a sufficient amount tendered to pay the amount of the debt, with interest; but it is claimed by the plaintiff that it was not shown that there was also a sufficient amount in addition tendered to pay the costs that had accrued in the case of G. A. Fisher against the defendants Ostmeir and Orth.
It is also claimed that the tender was not made to Paul Fisher or to his attorney, but was in fact made to G. A. Fisher,- or rather to the attorney of G. A. Fisher; that is, it is claimed that G. P. Smith, to whom the.tender was made, was at that time acting as the attorney of G. A. Fisher, and not as the attorney of Paul Fisher.
It is also claimed that the defendant Ostmeir did not keep his tender good; and therefore that not only Ostmeir, but also Orth and. the present defendant, Stockebrand, have lost all benefit that might otherwise have been derived from the tender.
We do-not think that any of the claims of the plaintiff setting forth matters supposed to invalidate the tender are sufficient. The note sued on was at all times, according to the pleadings and findings, the property of the plaintiff, Paul Fisher, and was never the property of G. A. Fisher; and the attorney, G. P. Smith, was, according to the answer and findings, the attorney of Paul Fisher, and not the attorney of G. A. Fisher, and according to the answer, the suit that was commenced in the name of G. A. Fisher was not his suit, but was in fact the suit of Paul Fisher, commenced merely in the name of G. A. Fisher. The answer says that the “said plaintiff had full and exclusive control and management of said suit, and the same was instituted and prosecuted without the knowledge and not for the benefit of said payee,” G. A. Fisher. “Pending said suit the defendant Ostmeir offered to plaintiff herein the full amount due, and said plaintiff designated said G. P. Smith as his attorney, having said note in his possession for collection, and referred said defendant to said Smith, as his agent for that purpose.” And the answer also alleges that “on or about the 7th day of January, 1879-, said defendant tendered to said G. P. Smith, who then was the duly-authorized agent and attorney of said plaintiff, with full power and authority to receive payment of all sums due by reason of said note, or of the pending litigation, the sum of $285 in lawful money of the United States, which tender was refused by said attorney and agent.” The tender was therefore, according to the answer, and also according to the findings, evidently made to the right person; and we think the amount was sufficient.
There is no allegation, nor proof, nor any finding, showing that any costs were made in the case of G. A. Fisher against the defendants Ostmeir and Orth, for which either of the defendants was liable, and presumably — and we might say confessedly — no such costs were made; for the said action of G. A. Fisher against the defendants Ostmeir and Orth was dismissed at the costs of G. A. Fisher. Presumably and confessedly, the action was brought in the name of the wrong person — in the name of a person who never had any interest in the.note, and in whose name the action should not have been brought; and if so, the defendants could not be liable for any of the costs in such action.
As the action is now presented to us (the question not being raised in this court), we do not think it is necessary for us to determine whether the action could or could not have been prosecuted in the district court to judgment by the present plaintiff, Paul Fisher, in the name of G. A. Fisher, under § 28 of the civil code. The action was not so prosecuted, and the plaintiff himself (the plaintiff in this action), by dismissing the action as he originally brought it (provided he did bring the original action and then dismiss it), and afterward commencing this action in his own name, in effect confessed that he had brought the original action in the wrong name. If, however, the original action was really brought by G. A. Fisher, and not by the present plaintiff, Paul Fisher, it would be still worse for the plaintiff. He certainly would not be entitled to costs made by another person, and in a suit in which he, the plaintiff herein, was nota party and had no interest. We think we may decide this case upon the theory that neither of the defendants was liable for any costs in the case of G. A. Fisher v. Ostmeir and Orth. But the tender probably covered all costs, as well as the principal and interest due on the note. The amount loaned was $250. This drew interest at the rate of twelve per cent, per annum. The plaintiff admits that the first year’s interest was paid. The jury on the trial between the plaintiff and Ostmeir went further, and found that the first two years’ interest was paid, to wit, $60. Only one year’s interest could therefore have been due on the note when the tender was made, which was on January 7, 1879. Therefore the amount of principal and interest due on the note at the time the tender was made could not have been more than $280. But Ostmeir tendered $285. We take no account of the $13 added to the note as commission to the plaintiff for loaning, as he supposed, his brother’s money, for he was not entitled to the $13, nor to any commission. Now $5 would cover more than all the costs proved. But if the plaintiff was entitled to recover on the note only $294.80, at the time when his judgment was rendered against Ostmeir, which was on October 18, 1879, then he was not entitled to recover even $280 when the tender was made, which was more than nine months previous to the rendering of the judgment.
Taking all the circumstances of this case together, we think the tender was sufficient. It was made to the right person; it was for an amount sufficient to cover the entire debt, with interest; and probably it was also sufficient to cover all the costs in the case of G. A. Fisher v. Ostmeir and Orth; and it was more than sufficient to cover the entire debt, with interest and costs, as shown by the evidence in this case.
The next question is, whether the tender made by Ostmeir, the principal on the note, to the owner of the note, discharged Orth, the surety on the note? This question is easy to answer, and it' must be answered in the affirmative. Mr. Brandt, in his work on Suretyship and Guaranty, § 295, uses the following language:
“If the principal, after the debt is due, offers' to pay it, and tenders the amount due to the creditor and the creditor refuses to receive it, the surety is discharged. One of the reasons upon which this rule is founded is, that the transaction amounts to a payment of the debt and a new loan to the principal. Moreover, the contract of suretyship imports entire good faith and confidence between the parties in regard to the whole transaction, and any bad faith on the part of the creditor will discharge the surety. The surety cannot compel the creditor to receive the money, but his refusal to do so is a fraud on the surety, which exposes him to greater risk and operates his discharge. If it were otherwise, the creditor would have it in his power to keep the surety under the cloud of the debt any length of time he might see proper.”
And Mr. Baylies, in his work on Sureties and Guarantors, in §19, page 373, uses the following language:
“ The surety may obtain his discharge from liability on his contract by a tender of the amount for which he is security. If the surety tenders to the creditor the amount due from the principal debtor, and the creditor refuses to receive it, the surety will be discharged. A tender by the principal debtor will have the same effect.”
Each of these authors cites authority to sustain his proposition, and we think what they say is good law.
On the other side, the plaintiff in error cites four cases: Rose v. Brown, 1 Am. Decisions, 22; Leibrandt v. Myron Lodge, 61 Ill. 81; Crain v. McGoon, 86 Ill. 431; Clark v. Sickler, 64 N. Y. 231.
The first of these cases we have not seen, as the book referred to is not in the state library. The other three cases are not applicable to the present case. The third would be applicable if Orth had been the principal on the note instead of merely a surety. In the fourth case it is held that “an offer upon the part of a principal debtor to pay, and an omission so to do because of a request of the creditor that he retain the money and a subsequent insolvency of the principal, do not discharge a surety.” But the court in the opinion says that “ he [the principal debtor] did not prevent the payment of the note. He did not refuse to receive the money. He only expressed á desire that it should'not be paid. There was no tender or attempt to tender the money. The contract was not changed.”
We think that the surety on the note, Orth, was discharged by the tender made by Ostmeir, and therefore that the judgment of the court below is correct, and therefore the judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
On April 8, 1880, plaintiffs commenced their action in the district court of Brown county against Quintus S. Seip, and Elizabeth and Anna M. Seip, children and heirs-at-law of Francis Seip, deceased, to recover upon certain promissory notes executed by Quintus S. Seip and Francis Seip, and to foreclose a mortgage given by Francis Seip to secure the payment of the promissory notes. The defendants being non-residents of the state of Kansas, service was made by publication. At the September term of the court for 1880, judgment was entered as prayed for in the petition. On November 25,1880, the sheriff of Brown county gave notice that on the 31st day of December, 1880, he would sell, under the judgment and order of sale issued in such case, the property described in the petition, to satisfy the judgment. On the 24th day of December, 1880, Elizabeth Seip and Anna M. Seip, the children of the said Francis Seip, deceased, served notice upon the attorney of plaintiffs that they would apply to the district judge, at 'the city of Atchison, on Friday, the 24th day of December, 1880, at ten o’clock A. M., to have the judgment entered at the September term, 1880, in the action, opened, and the said parties let in to defend. Upon the hearing, the defendants appeared by their attorney, W. W. Guthrie, who objected to the hearing or to any action had, for want of power in the judge at chambers to hear or determine the application. The judge thereupon held he could not hear the motion, but it appearing that an answer had been filed by the parties, and that such motion would stand for hearing at the February term for 1881 of the Brown county district court, he ordered the sale advertised, to be suspended and stayed; that no sale of the premises set forth in the decree be had until the hearing of the application or motion at the following February term. The defendants were required to pay the costs of the publication of the notice of sale, and to give bond, with security in the sum of $300, before February 1st, 1881, conditioned to pay all costs which might accrue in the case if the judgment as originally rendered was sustained or not materially modified. No exceptions were taken to this order, and we perceive no material error in the record. Sec. 77 of the code permits parties constructively served to be let in to defend; and § 568 of the code provides:
“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; . . . Second, by a new trial granted in proceedings against defendants constructively summoned as provided in section seventy-two.”
Sec. 573 of the code further provides:
“The party seeking to vacate or modify a judgment or order, may obtain an order suspending proceedings on the whole, or part thereof; which order may be granted by the court, or any judge thereof, upon its being rendered probable by affidavit, or by exhibition of the record, that the party is entitled to have such judgment or order vacated or modified. On the granting of any such order, the court or judge may require the party obtaining any such order to enter into an undertaking to the adverse party to pay all damages that may be caused by granting of the same.”
The judge ought perhaps to have required a bond for the payment of all damages, instead of one for the payment of costs, but as both parties were present, and as no exceptions were taken, nor was the attention of the judge directed to the words of § 573, we think the error was waived. At least, the error or irregularity in the order did not affect the substantial rights of the party complaining. ' The order was to be continued for less than two months; was merely to suspend the proceedings under the judgment, until a hearing could be had upon an application to open the same, and the conditions attached to the order were sufficient, although somewhat irregular, to secure the rights of all parties. Having the parties before him, sufficient appears by the record and affidavits, on the application to open the jndgment, to authorize the order granting the stay of proceedings until the next term of the court was held, and the parties had an opportunity to present their application at court. (Downing v. Reeves, 24 Kas. 167.)
The order of the district judge will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action brought by plaintiff in error, plaintiff below, who had been county treasurer of the county of Howard from July 7th, 1874, until the taking effect of the law dividing said county of Howard, (Laws 1875, ch. 106,) from which time he was county treasurer of the county of Chautauqua until October, 1878. The defendant school district was in Howard county until the division, and thereafter was .in Elk county. The plaintiff brings his action to recover moneys which he had paid to said school district in excess of the amount received by him and due said district. To his petition a demurrer was filed, which was sustained. This ruling of the district court was correct, and must be affirmed. We may remark in passing, that while there was some irregularity in the pleadings on the part of the defendant, it having filed first an answer and then a demurrer, yet inasmuch as the plaintiff’s petition does not state a cause of action, this irregularity on the part of the defendant’s pleading works no prejudice to plaintiff’s substantial rights. On the face of the petition it appears that the moneys paid over by plaintiff to defendant were paid while he was county treasurer of Howard county, which payment was made more than three years before the commencement of this action. Now whatever right of action plaintiff has under such circumstances springs not from any express promise in writing, but arises from the implied duty of the defendant to pay to anyone moneys which through mistake it has received from such person. The obligation is not one founded upon a written contract, but springs from an implied obligation to return moneys it has improperly received. But such a cause of action is barred by the statute of limitations at the end of three years, and this action was not brought till more than three years had passed since the payment to the district. Whether that money could ever be recovered or not, it is now unnecessary to decide. All we hold is, that the cause of action, if any existed, was barred at the end of three years from the time of the payment to the district. The demurrer raises this question, and we have to pass upon it as a legal proposition presented upon the record. To avoid the effect of this statute of limitations, plaintiff alleges that he was unable to accomplish any settlement with the county commissioners until 1878. We do not think the absence or presence of any settlement with the county commissioners cuts any figure in the case. Plaintiff’s cause of action does not depend upon any settlement, and is not affected by the result thereof. He sues for money overpaid the district, and whether he has or has not overpaid is a question of fact, depending not upon any action of the county commissioners, but upon the facts of his receipts and payments. If he has paid the district more than it was entitled to, there may be an implied obligation on its part to return such payment, and such obligation raises and furnishes a cause of action from and after the very moment of such overpayment. A settlement with the commissioners may be of value in ascertaining the amount of the overpayment, but it does not make the fact of the overpayment, and does not add anything to plaintiff’s right to recover. If he could recover at all, he could have brought his action the very day after he had made this overpayment, and his right of action was not added to or established in any way by any settlement with any board of county commissioners. That cause of action existed for more than three years prior to the commencement of this suit. After the lapse of three years, the statute of limitations comes in and bars his action. The demurrer presented that statute, the district court sustained' the demurrer, and that ruling must be affirmed — and simply on the ground that any cause of action that the plaintiff may have had was barred by the statute of limitations.
All the Justices concurring. | [
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The opinion of the court was delivered by
Vadentine, J.:
This was an action on an appeal bond. Judgment was rendered in the court below in favor of the plaintiff and against the defendants, who bring the case to this court. The plaintiffs in error have not filed any brief in the case, but one of their counsel argued the case orally before us.
We perceive no errors in the rulings or judgment of the court below, and therefore the judgment of the court below will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This is an action of mandamus, brought, originally in this court by the Alliance Mutual Life Assurance Society of the United States, against Orrin T. Welch,, superintendent of insurance of the state of Kansas. The action is brought for the purpose of compelling the defendant to deliver up, in accordance with § 20 of the insurance law,. (Laws of Kansas, 1881, p. 217,) to the insurance company or society, all securities belonging to such company and deposited-with the treasurer of state, except an amount of such securities equal to what is known as the reserve liability on the-outstanding policies of such company, which reserve liability the plaintiff claims is equivalent to the net present value of such outstanding policies.
It appears from the evidence in the case, that the company- ■or society has on deposit with the state treasurer, securities amounting to $101,682.50, as securities for policyholders in general, and $12,000 as securities for registered policyholders, and that the net present value of all the outstanding policies of such society amounts to $10,000.
The defendant resists the plaintiff’s claim upon the ground that §20, as it originally stood, and as amended in 1881, requires that there should remain on deposit with the state treasurer an amount of. securities equal to double the amount of all the contract liabilities of the company due or to become due, including the face value of all the outstanding policies issued by the company. The sections of the statutes referred ■to by counsel, and supposed to have some application in this oase, are sections 20, 49, 50, 51, 52 and 53 of the insurance •law, as enacted in 1871, which read as follows:
“Sec. 20. When any company transacting the business of insurance under this act, within the state of Kansas, shall ■desire to discontinue its business, the superintendent shall, upon application of such company or association, give notice of such intention in a paper published and having general circulation in the county in which said company or its gen-oral agency is located, at least once a week for six weeks, the ■expenses of publication to be paid by the state superintendent, at the expense of such company. After such publication said superintendent shall deliver up to such company or association the securities held by him belonging to them, on being satisfied by the exhibition of the books and papers of such company or association, and on examination to be made by himself, or some competent disinterested person or persons, to be appointed by him, and upon the oath of the president or principal officer, and the secretary or actuary of the ■same, that all debts, judgments, and liabilities of every kind are paid and extinguished that are due or that may become ■due upon any contract or agreement made with any citizen or resident of the United States, And the said superintend■ent may also, from time to time,.deliver up to such company or association, or its assigns, any portion of said securities, on being satisfied that any equal proportion of the debts and liabilities of every kind that are due or may become due upon any contract or agreement made with any citizen or resident of the United States, by said company or association, has been satisfied: Provided, The amount of securities retained by him shall be not less than twice the amount of remaining liabilities. ”...
“Sec. 49. No company, formed under the laws of this state for the purpose of insurance on the lives of individuals, shall commence, or hereafter continue to do business, until such company has deposited with the treasurer of state, as provided by section sixteen of this act, for the security of its policyholders, the sum of one hundred thousand dollars in stock, or in notes or bonds secured by mortgages, or deeds of trust, of the description mentioned in the forty-eighth section of this act; and in all cases to be, or to be made to be, equal to stock producing six per cent, per annum, and not to be received at a rate above their par value, nor above their current market value. Such securities shall be held by said treasurer as security for the policyholders of said company, and for no other purpose; but so long as any company so depositing shall continue solvent, he may permit such company to collect the interest or dividends on its securities so deposited, and from time to time to withdraw any of such securities, or change the same, on replacing other securities of like value of those withdrawn, and of the character in which, by the provisions of this act, said company is allowed to invest its funds.
“Sec. 50. Whenever any such company shall deposit with the said treasurer the amount of the net present value of any policy or annuity bond, valued by the American table of mortality, interest at four and one-half per cent., in securities of' the character in which, by the provisions of this act, insurance companies may invest their funds, it shall be the duty of said superintendent to issue to said company registered policies of insurance, or annuity bonds, of such denomination or amounts as the said company may require. Such policies and annuity bonds shall bear upon their face the words: ‘ This policy, among a limited number, is secured by pledge of public stocks, or bonds and mortgages/ with the seal of said department, and shall be countersigned by the superintendent or his authorized deputy.
“ Sec. 51. The said superintendent of the insurance department shall, on delivering said policies or annuity bonds to any life insurance company, charge to said company the amount of the net present value of such policies or annuity bonds, valued as aforesaid, according to the amount and number of premiums paid annually, semi-annually and quarterly thereon, and the terms thereof. On the first day of January of each and every year, or within sixty days thereafter, the said companies shall make a return to the superintendent of the insurance department, under oath of the president and secretary and actuary, of the ,exact condition of the registered policies received from the said department, and of the premium account’of the said policies, and shall deposit with the said treasurer additional and similar securities to an amount equal to any increase of the value of the policies theretofore issued, and which shall remain in force, valued by the same rule as upon the issue thereof; and the securities thus deposited shall be held by the said treasurer in trust until the obligations of the said depositing life insurance companies respectively, under the said registered policies and annuity bonds, shall, to the satisfaction of the said superintendent, be fully liquidated, canceled, or annulled; and when any registered policy ceases, by lapse or otherwise, to become an obligation in whole or in part, the amount held on deposit to the credit of such policy shall be returned to said company, in proportion as said policy has ceased to be an obligation as aforesaid.
“Sec. 52. The said depositing companies may at any time withdraw any excess of securities above the net present value hereinbefore specified, upon satisfying the said superintendent by written proof, to be filed in the said department, that such excess exists, and shall be allowed to receive the interest on all securities deposited, and to exchange such securities by substituting other securities, such as by the provisions of this act said company is authorized to invest its funds in.
“Sec. 53. The said companies shall deliver to the superintendent of the insurance department the policies and annuity bonds, engraved and printed, or printed and written, in such manner as the said company and applicant for insurance may agree. On the receipt by the superintendent he shall cause them to be duly registered in proper books kept for that purpose in consecutive numbers, corresponding to the numbers on said policies and annuity bonds, shall cause his name or the name of his deputy to be inscribed on the policies and bonds, and affix the seal of the department to the same, and shall return the original policies to the said depositary companies respectively. It shall be the duty of the said superintendent to receive and destroy mutilated policies and annuity bonds issued to the said companies, and deliver .in lieu thereof other policies and bonds of like tenor and date.”
In 1879, §49 of the insurance law was repealed, and the following sections were enacted in its place, to wit:
“Sec. 1. That every life insurance company heretofore or-hereafter organized under the laws of this state shall, for each and'every policy it shall issue on the life or lives of individuals, deliver to the superintendent of insurance, to be deposited with the state treasurer, as provided in section sixteen of the act ‘to establish an insurance department in the state of Kansas, and to regulate the companies doing business therein/ the net present value of the policy so issued, valued in accordance with the rule prescribed in section fifty of said act for registered policies, in securities of the kind and character in which by law such company is or shall be allowed to invest its funds, which shall be received at a rate not above their par value, and to be equal to stocks producing six per cent, per annum. Such securities shall be held by the state treasurer as security for the policy or policies for which the same shall be so deposited, so long as said policy or policies shall remain in force; but the superintendent of insurance, so long as said company shall remain solvent, shall permit such company to collect the interest or dividends on all securities so deposited, and from time to time to withdraw or change such securities, on replacing other securities of like value and character or [of] those withdrawn.
“Sec. 2. The aggregate of deposits required of any life insurance company organized under the laws of this state shall not be less than fifty thousand dollars, unless the total liabilities of such company to its policyholders do not exceed twenty-five thousand dollars. In case the liabilities of any such company to its policyholders shall at any time be less than twenty-five thousand dollars, the deposits shall be and remain at not less than two dollars in amount for every dollar of such liability.
“Sec. 3. When the liability of any policy shall cease, the security deposited therefor, as hereinbefore provided, shall be returned by direction of the superintendent of insurance to the company depositing the same; and whenever the aggregate of such securities shall exceed the liability of said company on such secured policies, the surplus of securities shall be returned to said company.
“Sec. 4. Section 49 of chapter 93 of the Laws of 1871, relating to the insurance department and insurance companies, and all provisions of said act or of other acts inconsistent with the provisions of this act, are hereby repealed.”
In 1881, § 20 of the insurance law was amended, and the original § 20 was repealed. Section 20, as amended, reads precisely the same as the original section did, except a proviso is added to the section-, which reads as follows:
“Provided, further, That if the outstanding policies of such company or association have or shall be reinsured in any other solvent insurance company or association, an amount of securities for such policy liabilities equal to what is known as the reserve liability on such outstanding policies shall be retained for such policy liabilities, and no more; and upon such reinsurance and the payment of all debts of the company other than reinsured outstanding policies, no further report or other proceedings shall be required of the company so ceasing to do business.”
The first question presented in this case involves the construction or interpretation of §20 of the insurance act as it was passed in 1871. The defendant claims that where a life insurance company desires to discontinue its business under said § 20 as it then read, the company must allow an amount of securities to remain on deposit with the treasurer of state not less than twice the amount of all debts, judgments and liabilities of every kind that are then due or that may become due against the company upon any contract or agreement made with any citizen or resident of the United States, including the face value of all outstanding policies, except that under § 49 of said act the insurance company is not required at any time to have on deposit with the state treasurer more than $100,000; and except that under § 52 of said act the insurance company is not required to have on deposit with the state treasurer as security for registered policyholders more than an amount equal to the net present value of such registered policies. And the defendant further claims that said § 52 applies only to registered policies.
On the other hand, the plaintiff in this case claims that the construction given to § 20 and § 52 by the defendant is erroneous, claiming that said § 20 does not include the face value of outstanding policies, and that § 52 includes all policies issued by the company, whether registered or not.
We think the construction given to said § 20 by the defendant is correct, and its terms seem so plain to us that we could not make it plainer by any argument. We also think that the construction given to § 52 by the defendant is also-correct; and this opinion we found not.only upon the words of the section itself, which words we think are inconsistent, with any other construction, but we also found our opinion upon the location of the section in the act. The sections immediately preceding § 52 and the first section immediately succeeding it, evidently refer to registered policies, and not to general policies. But the law as passed in 1871 was modified in 1879. Section 49 of the Law of 1871 was wholly and absolutely repealed in 1879, and another act was passed to-take its place. (Ch. 115 of the Session Laws of 1879; Comp. Laws 1879, p. 496.) This act provided that an amount should be deposited with the treasurer of state by the insurance company equal to the net present value of every policy issued by the company, but that not less than $50,000 should be so deposited, unless the-total liabilities of such company to its policyholders did not exceed $25,000; and in case such liabilities were less than $25,000, then the deposit should not be less than two dollars in amount for every dollar of such liability. This virtually placed every policy issued by the company on an equal footing with the registered policies provided for by §§ 50 to 53 of the insurance act. But as will be seen, this act of 1879 further modified §20 of the insurance act; for §20 could not apply with all its force so as to require securities in double the amount of the liabilities to be deposited or retained by the state treasurer where the amount of liabilities was over $25,000, and the amount of deposits not to exceed $50,000. Nor could there be securities retained by the state treasurer in double the amount of the face value of the policies, for the law of 1879 did not under any circumstances require that more than an amount of securities double the amount of the net present value of the outstanding policies should be so 'retained. In 1881, §20 of the insurance act was still further modified, by adding to it the following proviso:
“That if the outstanding policies of such company or association have or shall be reinsured in any other solvent insurance'company or association, an amount of securities for such policy liabilities equal to what is known as the reserve liability on such outstanding policies shall be retained for ■such policy liabilities, and no more; and upon such reinsurance and the payment of all debts of the company other than reinsured outstanding policies, no further report or other proceedings shall be required of the company so ceasing to do business.”
The terms of this proviso also seem too plain for interpretation. They interpret themselves. We might say, however, “that the words, “ What is known as the reserve liability on ■such outstanding policies, ” mean the net present value of all such outstanding policies, and not their face value; and the words evidently are used in connection with § 52 of the in■surance act and chapter 115 of the act of 1879.
Now if we interpret this proviso to §20 correctly, then the plaintiff has a right to withdraw all securities deposited by it with the state treasurer, except an amount equal to the net present value or ail its outstanding policies — provided, however, that it has fully complied with all the requirements of said §20 and its proviso.
It is admitted by the parties that there are no other debts or liabilities outstanding against the plaintiff, and that it has no outstanding liabilities except such as may result from its •outstanding policies. Defendant also, through the attorney general, claims that none of the securities can be surrendered in the present case, for the reason that all the steps taken or proceedings had for the purpose of accomplishing the discontinuance of the plaintiff’s business were taken and had under §20 as it originally existed, and before it was amended in 1881; and that as § 20 as it originally existed was repealed in 1881, all said steps and proceedings were swept from exist ence and wholly obliterated. This we think cannot be true, for § 20 before it was amended was precisely the same as it dow is since it was ameaded, except that the proviso above quoted has been added thereto; and in this state repeals of statutes do not have such sweeping effects as is claimed by the defendant’s counsel. In this state “the repeal of a statute does not . . affect . . any proceeding commenced under or by virtue of the statute repealed. The provisions of any statute, so far as they are the same as those of any prior statute, shall be construed as a continuation of such provisions, and not as a new enactment.” (Comp. Laws of 1879, p. 919, § 1, subdiv. 1.)
The defendant’s counsel also claims that the reinsurance made between the plaintiff in this case and the Pacific Mutual Life Insurance Company of California, was not an insurance of the policyholders, or of the outstanding policies held by them but was in fact and in reality only an insurance of the plaintiff itself. And he further claims that the policyholders of the plaintiff could not under any circumstances have any right of action against the Pacific Mutual Life Insurance Company under and by virtue of the contract. In this we think that counsel is also in error. The contract between the two insurance companies not only insures the plaintiff, but it expressly and in the clearest and most explicit terms also insures all the policyholders of the plaintiff, and in direct and express terms authorizes the policyholders to sue the Pacific Mutual Life Insurance Company for any defaults made by such company to their injury. But we suppose that the point relied on by counsel, is not that the two companies did not attempt to insure the policyholders of the plaintiff, but that they could not either in fact or in law do so, even if they so desired and so attempted; and that, as the policyholders were not privy to the contract or to the consideration thereof, they would not have any rights under it.
Now whatever may be the rule in other states, it is well settled in this state that third parties not privy to a contract, nor privy to the consideration thereof, may sue upon the con tract to enforce any stipulations made for their especial benefit and interest. (Anthony v. Herman, 14 Kas. 494; Floyd v. Ort, 20 Kas. 162, 164, and eases there cited.)
It is further claimed by counsel for defendant, that as all the policies were issued prior to the year 1879, the laws then in force entered into and became a part of the contract between the plaintiff and the policyholders; and that the policyholders,, by virtue of such contract, obtained a vested interest in all the securities deposited with the state treasurer; and that such interest could not afterward be disturbed or abridged by any subque'nt legislation. This, we think, raises the most difficult, question in the case. It is not claimed that the policies on their faces mention or refer to any of the securities deposited with the state treasurer; but it is claimed that the law in force when the policies were issued became a part of the contract, evidenced by the policies. This, we think, is true to a certain extent, but not to the extent claimed by counsel. The law in force at the time these policies were issued, including § 20 and § 49 of the act of 1871, did not purport to vest any interest in the policyholders in the securities deposited with the state treasurer, and it certainly did not purport to give the policyholders any lien upon such securities. Under the law as then in force, the insurance company had a right to change its securities deposited with the state treasurer whenever it chose to do so. It¡had a right to withdraw any of its securities, simply depositing others in their place; so that evidently it was not the intention of the legislature to give the policyholders any interest in any particular securities, or to give them any interest in any particular amount of the securities deposited. We are now speaking of the general policyholders, and not of the registered policyholders,“for the registered policyholders have no-interest in this question; their security will remain the same even if all the securities are withdrawn from the state treasury which the plaintiff now asks to withdraw. It is, then, only the general policyholders who have any interest in this question. Of course the insurance company, whenever it should see proper to withdraw its securities from the state treasury-under the law of 1871, would have the right to use such securities as it saw fit — it could sell them, or collect them and use the proceeds for any purpose which it might choose. The policyholders would have no interest whatever in either the securities withdrawn or in their proceeds. The first policyholder who obtained a policy in this insurance company was, in one sense, secured by the amount of $100,000 in securities deposited with the state treasurer on whatever amount of insurance he took, whether great or small; but as the policies issued by the company increased in number and amount, his relative or proportionate security would become less. Whenever the company should issue policies to the amount of $1,000,000 in the aggregate, then his proportionate security would be only ten cents on the dollar; but suppose the company should issue policies to the amount in the aggregate of $100,000,000, (and there are a few insurance companies in this country that now have outstanding policies exceeding that amount,) then his proportionate security on his policy would be only one-tenth of a cent on the dollar. The Mutual Life Insurance Company of New York now has outstanding policies to the amount of over $300,000,000. It will therefore be seen that the policyholders have no vested interest in any particular security, or in any particular amount or proportion of the securities deposited with the state treasurer; and we suppose it will not be claimed that the policyholders have a vested interest in the place where the securities are to be deposited — that is, we suppose that the law might be so changed as to require the securities to be deposited with some other officer, as the secretary of state, or auditor, of governor, or superintendent of insurance, or even that a proportionate amount of the securities be deposited in each county where the company should do business. Foreign insurance companies are allowed to deposit their securities in the states where the companies are created. (Comp. Laws of 1879, p. 501, § 63.) But it may be said that the policyholders have, by virtue of their policies and the law of 1871, a vested interest in some kind and some amount of securities. This may be true; but the present law provides for securities, and provides that the securities shall be equal to the net present value of the outstanding policies; and such security is vastly better than $100,000 of securities for $100,000,000 of outstanding policies, or for even $1,000,000 of outstanding policies. But this is not the only security provided for by the present law. The present law provides that the policyholders shall also be insured in some solvent insurance company, and the policyholders or beneficiaries have this additional company to look to for payment of the benefits provided for by their policies. The company which originally issued the policies is not dissolved by ceasing to do business in accordance with § 20 of the insurance act; but it still continues in existence and liable for all its debts and liabilities, and the company in which the policyholders are reinsured is simply an additional security for the final payment of the policies. Under the present law, therefore, the policyholders have the following security for the final payment of their policies: The original company which issued the policies; the securities deposited with the state treasurer by such company, amounting to the net present value of all outstanding policies; and the insurance company in which the policyholders are reinsured, with all the securities which they have deposited in this state or elsewhere. We might also consider the payment of the annual premiums by the policyholders as an additional security for the final payment of their policies; for if they continue to pay up to the maturity of" their policies, they will in all probability have paid in the aggregate (including the interest on their payments) an amount largely more than will be d ue in the aggregate on all their policies, when the benefits on their policies are finally paid.
Now admitting, for the purposes of this case, that the policyholders are entitled by law to some kind of security, and Ü>ey have a vested interest therein, still we cannot say, as a matter of law, that the legislature by its acts of 1879 and 1881 has not furnished the policyholders with ample security; and thererefore we cannot say, as a matter of law, that said acts are invalid as to the present policyholders ; and therefore we must hold that said acts are valid.
This, we think, disposes of this case. The prayer of the plaintiff will be allowed, and judgment rendered accordingly.
All the Justices concurring. | [
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|
Royse, j.:
Jerry L. Loffer pled guilty to one count of nonsupport of a child. The district court sentenced Loffer to an indeterminate term of 1 to 2 years in prison, but granted Loffer’s motion for probation. The district court ordered as a condition of probation that Loffer pay restitution in the amount of $11,652. Loffer appeals.
Loffer s first argument on appeal is that the district court abused its discretion in determining the amount of restitution, because the district court included in the restitution figure child support that became due during time periods not covered by the complaint. The complaint alleged that Loffer failed to provide support for his two children between July 15,1992, and February 28,1994. Loffer does not dispute that he owed a total of $11,652 in unpaid child support, but he claims restitution should be limited to $2,238, the amount of unpaid child support which accrued during that specified period. The district court rejected Loffer’s argument and included in the restitution figure unpaid child support which became due prior to July 15, 1992, and after February 28, 1994.
Resolution of this issue requires the court to interpret and apply the statutory provisions regarding restitution. Interpretation of a statute is a question of law, subject to unlimited review on appeal. State v. Turner, 22 Kan. App. 2d 564, 566, 919 P.2d 370 (1996).
K.S.A. 21-4603(b)(3) authorizes the sentencing court to release a convicted defendant on probation “subject to such conditions as the court may deem appropriate, including orders requiring full or partial restitution.” K.S.A. 21-4610(d) provides in part:
“In addition to other conditions of probation, . . . the court shall order the defendant to . . .
(1) Make reparation or restitution to the aggrieved party for the damage or loss caused by the defendant’s crime; in an amount and manner determined by the court and to the person specified by the court, unless the court finds compelling circumstances which would render a plan of restitution unworkable.” ■
These statutoiy provisions for restitution were examined by the Supreme Court in State v. Ball, 255 Kan. 694, 877 P.2d 955 (1994). In Ball, the defendant had been charged with three counts of burglary and three counts of felony theft. Pursuant to a plea agreement, the defendant pled guilty to two counts of burglary and the State dismissed the other charges. The plea agreement further provided that there would be full restitution on all counts included in the original complaint. In accord with the plea agreement, the district court ordered restitution in the amount of $18,490.40.
Ball argued on appeal that the restitution order was contrary to the statutes. Based on its examination of the statutoiy language, the Supreme Court disagreed. The court contrasted the restitution statutes with K.S.A. 1992 Supp. 21-4603(2)(b), which provided that a court may impose a fine “applicable to the offense.” The court observed drat the legislature has not included such a limiting phrase in the restitution statutes: “Neither 21-4610 nor 21-4603 . . . limits a court’s authority to ordering restitution only for the offense of conviction. Both sections vest considerable discretion in the trial court to order restitution as it deems appropriate, except that it must, pursuant to 21-4610(4), order restitution for the offense of conviction.” Ball, 255 Kan. at 701.
Loffer argues that Ball applies only where the defendant has agreed to pay restitution for the dismissed charges. This argument was rejected in Turner. In that case, the defendant was initially charged with four counts of forgery. He pled guilty to two counts of forgery in exchange for the State’s dismissal of the remaining two counts. The district court entered a restitution order based on all four counts of forgery, and Turner appealed. This court affirmed the district court decision, concluding that K.S.A. 21-4610(d)(l) does not preclude the sentencing court from ordering restitution on crimes to which a defendant did not plead. Turner, 22 Kan. App. 2d at 567.
Loffer argues that the district court’s order in this case improperly required him to pay restitution in connection with crimes for which he was never charged. He contends that he was charged with the crime of nonsupport between July 15,1992, and February 28, 1994, but was not ever charged with criminal nonsupport for other periods of time. This argument is not persuasive.
While Ball left open the question whether a court’s restitution order can include restitution for crimes never charged, there appears to be no reason for the limitation urged by Loffer. As the Supreme Court noted in Ball, both 21-4603 and 21-4610 vest considerable discretion in the trial court to order restitution as it deems appropriate. Ball, 255 Kan. at 701. Practically speaking, as far as restitution is concerned there is little difference between crimes charged and later dismissed, and crimes which are never charged at all. In neither case has the State met its burden of proving guilt beyond a reasonable doubt.
In addition, the restitution order entered in this case is consistent with K.S.A. 21-4610(c)(8) and K.S.A. 21-4611. K.S.A. 21-4610(c)(8) authorizes a sentencing court to order, as a condition of probation, that a defendant support his dependents. It is notewor thy that 21-4610(c)(8) applies in any criminal case, whether or not the defendant was charged with nonsupport. K.S.A. 21-4611 authorizes a sentencing court to require that a defendant convicted-of nonsupport of a child remain on probation for as long as the responsibility for support continues. Thus, the sentencing court may require the payment of child support which becomes due long after the dates contained in the complaint. These statutes cannot be squared with Loffer’s contention that a sentencing court may order restitution only for child support that accrued during the period alleged in the complaint.
For all these reasons, we conclude that the district court did not err in ordering restitution of $11,652. In a case where the defendant is convicted of criminal nonsupport, 21-4603 and 21-4610(d) do not prohibit a sentencing court from requiring, as a condition of probation, that the defendant pay child support which became due outside the time period alleged in the complaint.
Loffer’s second argument on appeal is that the district court erred by failing to sentence him under the Kansas Sentencing Guidelines Act. Loffer did not raise this, argument in the district court. Nevertheless, Loffer’s argument amounts to a claim that his sentence was illegal, and an illegal sentence may be corrected at any time. K.S.A. 22-3504(1). Whether the sentencing guidelines apply to a particular offense raises a question of law over which this court has unlimited review. See State v. Roderick, 259 Kan. 107, 110, 911 P.2d 159 (1996).
Loffer argues that the KSGA should apply to his case because his alleged criminal conduct continued after July 1, 1993. This argument is without merit. K.S.A. 21-4723 provides:
“Except as provided in K.S.A. 21-4724, the provisions of this act creating a presumptive sentencing guidelines system have no application to crimes committed prior to July 1, 1993. A crime is committed prior to July 1, 1993, if any of the essential elements of the crime as then defined occurred before July 1, 1993. Except as provided in K.S.A. 21-4724, prosecutions for prior crimes shall be governed, prosecuted and punished under the laws existing at the time such crimes were committed.”
Loffer acknowledges that some elements of his crime occurred prior to July 1, 1993. Thus, in accord with 21-4723, the district court did not err in imposing a pre-guidelines, indeterminate sentence.
Affirmed. | [
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|
Pierron, J.:
In this workers compensation appeal, U.S.D. No. 260 (district) appeals from an order of the Workers Compensation Board (Board). Bohanan filed a cross-appeal from the Board’s order. The Board awarded Leva Bohanan permanent partial disability benefits based on a finding of work disability and also reversed an award from the administrative law judge (ALJ) that imposed liability on the Kansas Workers Compensation Fund (Fund) for 50% of benefits granted to Bohanan. Bohanan filed a cross-appeal on the Board’s refusal to include certain fringe benefits in computing the average weekly wage. We affirm.
Bohanan was employed by the district for 25 years as a bus driver. During the last 14 years she also worked as a supply clerk. She has no other vocational training. During the school year, Bohanan drove the bus for 2 hours a day and worked 6 hours as a supply clerk. During the summer, she worked approximately 8 hours per day as a supply clerk.
During her employment, Bohanan had several injuries for which medical treatment was provided. She did not miss significant time from work due to these injuries, and she never received a workers compensation award or settlement. She had been treated by her family physician for intermittent problems with her knees, back, neck, and shoulders and began seeing a chiropractor in 1980 for muscle strains in her lower back, neck, and legs. None of the doctors that treated her prior to 1993 rated her injuries or placed her under permanent restrictions for these injuries.
In July 1993, Bohanan’s duties as a supply clerk were changed to include heavy lifting. Previously, her duties were limited to buying supplies, processing the mail, and running errands. On October 13, 1993, Bohanan was injured while moving a 75-pound file cabinet. She immediately reported the injury to her supervisor.
Bohanan went to see Dr. Gage, the chiropractor who had previously treated her. He testified she had the same complaints as on her prior visits and he prescribed the same treatments. The district immediately accommodated Bohanan’s job. The district transferred her from a stick shift bus to a van or station wagon with power steering. The district was unable to accommodate her in the supply clerk position.
After December 1993, Bohanan was treated by Dr. Jane Drazek, M.D., who diagnosed cervical and lumbar hypomotility and myofascial or soft tissue pain involving primarily her back. She rated Bohanan at 8% permanent partial impairment of function to the body as a whole pursuant to the guidelines of the American Medical Association. Dr. Drazek opined that 3% or 4% of Bohanan’s impairment was attributable to her prior reoccurring back problems but the majority of her impairment was attributable to the 1993 injury. Dr. Drazek restricted Bohanan from prolonged sitting, standing, bending, or lifting, limited her overhead reaching, and allowed no lifting greater than 25 pounds.
Dr. Robert Eyster, an orthopedic surgeon who had treated Bohanan before the accident, was retained by the district for his opinion of her condition. Dr. Eyster reviewed Bohanan’s medical reports but did not perform a physical examination. He said he had seen Bohanan for similar complaints in 1992 and her symptoms were the same as prior to her accident; she had only sustained a temporary aggravation. He felt Bohanan could perform the duties of bus driver, study hall monitor, parking lot attendant, and many of the duties she had in her supply clerk position. He did not disagree with Dr. Drazek’s rating or restrictions, but felt Bohanan would have had the same rating in 1992.
Jerry Hardin, a human resource/personnel consultant, examined Bohanan to conduct a 15-year task analysis. He found her capable of performing 5 out of the 9 tasks she had performed during her previous 15 years of employment as a bus driver and supply clerk. This equated to a 44% task loss. Dr. Drazek agreed.
Bohanan continued employment with the district as a van and station wagon driver, but the district was unable to accommodate her restrictions as a supply clerk. Instead, she was placed in a temporary position as a parking lot attendant at the same rate of pay for the 6 and V2 hours she had spent in her supply clerk position. She worked as the parking lot attendant until June 30, 1994. In May 1994, Bohanan was informed that the parking lot attendant position would most likely be eliminated by the district at the end of the school year.
Bohanan, who at age 59 was ineligible for social security retirement benefits, was concerned she could not live on the $119 per week she earned as a school bus driver. She was advised she might be eligible for early retirement. She gave notice on or about June 6, 1994, of her intention to take early retirement. The district sent Bohanan a letter on June 15, 1994, stating that the parking lot attendant position had been reduced to a 2-hour position for the following school year. She received periodic job bulletins from the district during the summer of 1994, listing job openings for the upcoming school year.
On September 30,1994, the district issued a formal written offer to Bohanan for a position as a study hall monitor at the middle school. The district offered her full 8-hour days of employment; bus driver for 2 hours, parking lot attendant for 1 hour, and study hall monitor for 5 hours. It gave her to October 10, 1994, to respond to the job offer.
While Bohanan felt she could physically perform the position of study hall monitor, she was concerned she did not have the educational qualifications to assist the students with math and reading. Michael Redbum, assistant superintendent for Human Resources at U.S.D. No. 260, testified there were no academic standards for the study hall monitor position and that Bohanan was assured she would not be required to work with the students at a level she was not comfortable with. Bohanan was concerned because the assistant principal at the middle school said she would be required to help the students with their homework.
Bohanan was also concerned that the study hall monitor position was a 9-month position, leaving her without income for the 3 summer months. Thomas Hightower and Redbum testified there would have been summertime positions available within Bohanan's restrictions, but the offers for those positions would not be made until the end of the spring semester.
Bohanan did not accept the study hall monitor position, and the district filled it on October 12, 1994. The district offered her a position as a paraprofessional working with children with physical and mental disabilities; however, Redbum deemed the job inappropriate for Bohanan given her medical restrictions. Bohanan continued her bus driver position and continued receiving early retirement benefits.
Prior to submission of this case to the ALJ, the parties stipulated that Bohanan had a work-related personal injury accident on October 13, 1993, and as a result of the injury, she had a functional impairment rating of 8% to the body as a whole. The issues for resolution by the ALJ were average weekly wage, nature and extent of disability, and liability of the Fund.
The ALJ awarded permanent partial disability benefits based on a finding of a 52% work disability. Using the information from Hardin and Dr. Drazek, the ALJ found Bohanan had a 44% task loss. The ALJ also found she had a 67% wage loss by finding the percentage difference between her average weekly wage as a supply clerk ($367.06) and her wage now as a bus driver ($119.50). Averaging the task loss and the wage loss, the ALJ found Bohanan had a 56% work disability. The ALJ then subtracted the 4% preexisting impairment, as testified to by Dr. Drazek, to arrive at the 52% work disability figure.
The ALJ concluded that once the contribution amounts were established, pursuant to K.S.A. 44-501(h), the district would be entitled to an offset for any portion of early retirement benefits it contributed on behalf of Bohanan. The ALJ also held that the Fund was fiable for 50% of the award.
Both the district and the Fund applied for review with the Board. The Board recalculated Bohanaris average weekly wage in the supply clerk position and found it to be $328.29. This new figure gave Bohanan a 64% wage loss. Averaging the newwage loss with the 44% task loss, the Board arrived at a 54% permanent partial general body work disability. The Board similarly reduced the disability to account for the preexisting functional impairment and found a 50% permanent partial general body work disability.
The Board ruled the district was not entitled to an offset for the amount of Kansas Public Employees Retirement System (KPERS) benefits received by Bohanan. It found that pursuant to K.S.A. 44-501(h), any offset was based upon the amount of benefits provided by the employer. Since the district did not indicate what percentage of Bohanan’s KPERS benefits were provided by the district, no offset was allowed. However, the Board did find the district was entitled to an offset for the benefits Bohanan began receiving from an early retirement insurance policy paid for by the district.
The Board reversed the ALJ’s finding as to Fund liability because the district failed in its burden to prove that Bohanan was a “handicapped employee.” The Board found that in all incidents prior to her October 13, 1993, accident, Bohanan always returned to work without any physical restrictions.
The district first argues Bohanan is not entitled to permanent partial disability benefits because she refused to perform work within her medical restrictions.
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). Whether the Board’s findings of fact are supported by substantial competent evidence (K.S.A. 77-621[c][7]) is a question of law. See Tovar v. IBP, Inc., 15 Kan. App. 2d 782, 784, 817 P.2d 212, rev. denied 249 Kan. 778 (1991).
The relevant scope of review is set forth in K.S.A. 77-621(c)(7):
“(c) The court shall grant relief only if it determines any one or more of the following:
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.”
“ ’Substantial evidence’ is evidence which possesses both relevance and substance, and which furnishes a substantial basis of fact from which the issues can be reasonably resolved.” Kansas Racing Management, Inc. v. Kansas Racing Comm’n, 244 Kan. 343, 365, 770 P.2d 423 (1989). This court may not reweigh the evidence presented at the agency hearing or determine the weight or credibility of the witnesses’ testimony. City of Wichita v. Employment Security Bd., 13 Kan. App. 2d 729, 733, 779 P.2d 41 (1989).
The district argues Bohanan is precluded from receiving permanent partial general disability compensation based on the presumption of no work disability found in K.S.A. 44-510e(a): .
“An employee shall not be entitled to receive permanent partial general disability compensation in excess of the percentage of functional impairment as long as the employee is engaging in any work for wages equal to 90% or more of the average gross weekly wage that the employee was earning at the time of the injury.”
The district relies on Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, 887 P.2d 140 (1994) rev. denied 257 Kan. 1091 (1995). In Foulk, the claimant was placed on work restrictions after suffering a back injury. In response, the employer offered her a different job within her restrictions at the same rate of pay, but she rejected the offer. On appeal, the claimant argued the presumption of no disability under K.S.A. 1988 Supp. 44-510e(a) did not apply to cases where the worker has the ability to engage in work for comparable wages but does not do so. This court rejected Foulk’s argument, noting: “To construe K.S.A. 1988 Supp. 44-510e(a) as claimant suggests would be to reward workers for their refusal to accept a position within their capabilities at a comparable wage.” 20 Kan. App. 2d at 284.
The Board found Foulk inapplicable to this case since Bohanan had not been offered a comparable job. The Board found that with the exception of the parking lot attendant job, which she was advised would be eliminated at the end of the school year, Bohanan was offered no job which would pay her a comparable wage or 90% of a comparable wage for a 12-month period. The study hall monitor position was a 9-month position. The Board found the only jobs evidenced in the record which would allow Bohanan to work a full 12 months were janitorial jobs which were beyond her physical ability to perform. This finding, which is supported by the evidence, is crucial.
The district argues the study hall monitor position provided Bohanan with a job for the same wage and the same hours as her supply clerk position. It concedes there was no guarantee of summer employment, but argues the decisions concerning summer jobs, many of which were within Bohanan’s work restrictions, were not made until the end of the spring semester.
The district also argues the entire chronology of the events in this case established that Bohanan never had any intention of returning to work after June 30, 1994, no matter what employment she was offered. It cites her failure to check with her doctor to see if any of the jobs were within her restrictions; her complaints about the educational qualifications of the study hall position, and the refusal of employment because it would suspend her early retirement benefits.
The district also argues that even if Bohanan is entitled to work disability, the Board erred in calculating the amount of work disability. It takes issue with the Board’s finding that “[t]he only wage claimant has the ability to earn is that of the bus driver.” The district contends this finding does not take into account that it restricts Bohanan to a job with a comparable wage for at least 9 months of the year, even if summer employment was uncertain.
We agree with the ALJ and the Board that the facts of this case do not present a situation similar to Foulk. As a result, the presumption of no permanent partial work disability is not applicable. Furthermore, we conclude that the Board properly consideredBohanan’s loss of work tasks and the difference between the average weekly wage before and after the accident. See K.S.A. 44-510e(a); Hughes v. Inland Container Corp., 247 Kan. 407, 422, 799 P.2d 1011 (1990).
The Board averaged the two figures to reach a disability percentage and then properly subtracted. Bohanan’s preexisting functional impairment. See Schad v. Hearthstone Nursing Center, 16 Kan. App. 2d 50, 53, 816 P.2d 409, rev. denied 250 Kan. 806 (1991). As long as the two statutory factors were considered, we cannot say the Board erred in the method it used in awarding a 50% work disability to Bohanan. See Hughes, 247 Kan. at 422; Schad, 16 Kan. App. 2d at 53.
The district also argues the methodology utilized by the Board in apportioning functional impairment and work disability resulted in an overpayment of benefits.
The issues revolve around the Board’s award for permanent partial disability. K.S.A. 44-510e(a) provides that a claimant is entitled to permanent partial general disability beginning with a maximum of 415 weeks of compensation. Bohanan was awarded 16.14 weeks of temporary total disability. The number of temporary weeks is subtracted from 415 to arrive at the number of permanent weeks. However, the statute provides that the first 15 weeks of temporary are not to be counted. Therefore, there are 413.86 weeks of permanent partial general disability.
It appears that, per K.S.A. 44-510e(a)(2), the Board multiplied 413.86 by 50% (the amount of Bohanan’s work disability) to arrive at a total of 206.93 weeks of permanent partial disability compensation. However, it also appears the Board multiplied 413.86 by 4% (the amount of Bohanan’s functional impairment) to arrive at 16.55 weeks permanent partial disability compensation, which is the number used in the award. The 16.55 weeks would represent compensation during the time when Bohanan was working as a parking lot attendant. It appears the Board then subtracted 16.55 weeks from the total of 206.93 to arrive at its ending number of 190.38 weeks of compensation for the 50% permanent partial disability.
The district argues the Board should not begin compensation to Bohanan at the 50% work disability rate until the date her parking lot attendant position was eliminated some 36.14 weeks after her injury (October 1993 through June 1994). The 36.14 would be multiplied by the 4% functional impairment to arrive at 1.4456 weeks of permanent partial disability during this time period. The district suggests we take the 36.14 weeks (while Bohanan was either receiving temporary benefits or employed at wage of the same rate) and subtract that from 413.86, which would give us 377.72 weeks to multiply by the 50% work disability after the attendant’s job was eliminated. This would give 188.86 weeks of compensation during the time when Bohanan was not working full days.
The Board’s calculation of Bohanan’s award is reasonable. The Board noted that calculations similar to the one suggested by the district produce “erratic and sometimes inequitable results.” Had the Board not subtracted the 16.55 weeks of compensation (4% functional impairment time period) from the total of 206.93 (50% work disability), the award might be somewhat unreasonable, but that is not the case.
Next, the district argues the Board erred in holding Bohanan was not a handicapped employee for purposes of assessing Fund liability.
K.S.A. 44-567(a) provides that an employer who knowingly employs or retains a handicapped employee shall be relieved of liability for compensation awarded or be entitled to an apportionment of the costs thereof as follows:
“(1) Whenever a handicapped employee is injured or is disabled or dies as a result of an injury which occurs prior to July 1, 1994, and the administrative law judge awards compensation therefor and finds the injury, disability or the death resulting therefrom probably or most likely would not have occurred but for the preexisting physical or mental impairment of the handicapped employee, all compensation and benefits payable because of the injury, disability or death shall be paid from the workers compensation fimd; and
“(2) subject to the other provisions of the workers compensation act, whenever a handicapped employee is injured or is disabled or dies as a result of an injury and the administrative law judge finds the injury probably or most likely would have been sustained or suffered without regard to the employee’s preexisting physical or mental impairment but the resulting disability or death was contributed to by the preexisting impairment, the administrative law judge shall determine in a manner which is equitable and reasonable the amount of disability and proportion of the cost of award which is attributable to the employee’s preexisting physical or mental impairment, and the amount so found shall be paid from the workers compensation fimd.”
In order for an employer’s liability to be lifted, the employer must prove either that the employer had knowledge of the preexisting impairment at the time the employer employed the handicapped employee or that the employer retained the handicapped employee in employment after acquiring such knowledge. K.S.A. 44-567(b); Guerrero v. Dold Foods, Inc., 22 Kan. App. 2d 53, 57-58, 913 P.2d 612 (1995).
An employer’s knowledge of a preexisting impairment may be established by any evidence sufficient to maintain the employer’s burden of proof. K.S.A. 44-567(b) provides:
“In order to be relieved of liability under this section, the employer must prove either the employer had knowledge of the preexisting impairment at the time the employer employed the handicapped employee or the employer retained the handicapped employee in employment after acquiring such knowledge.”
Additionally, K.S.A. 44-567(b) provides that the employer who has knowledge of a handicap has a right to file a written notice (form 88) with the director of workers compensation for the pur pose of creating a statutoiy presumption of notice. No such notice was filed by the district.
In affirming the ALJ’s decision on this issue, the Board found:
“In this instance, while claimant had experienced back problems in the past and had on several occasions obtained chiropractic treatment for her ongoing symptomatology, claimant returned to work after each occasion with no functional impairment and no physical restrictions until claimant’s injury on October 13, 1993. The Appeals Board finds that the respondent has. failed in its burden of proving that it retained a handicapped employee within the definition contained in K.S.A. 44-566(b). Absent a finding that claimant was handicapped prior to her injury on October 13,1993, liability cannot be assessed against the Kansas'Workers Compensation Fund in this matter. The Appeals Board finds the respondent has failed in its burden of proving its entitlement to an assessment of any portion of this Award against the Kansas Workers Compensation Fund.”
“Our scope of review on appeal of a negative finding is to the effect that such a finding will not be disturbed absent proof of an arbitrary disregard of undisputed evidence, or some extrinsic circumstance such as bias, passion, or prejudice.” Duncan v. City of Osage City, 13 Kan. App. 2d 364, 369, 770 P.2d 843, rev. denied 245 Kan. 783 (1989); see Carter v. Kansas Gas & Electric Co., 5 Kan. App. 2d 602, 606, 621 P.2d 448 (1980), overruled on other grounds Denton v. Sunflower Electric Co-op, 242 Kan. 430, 748 P.2d 420 (1988). The district does not present any undisputed evidence of a handicap that the Board arbitrarily disregarded.
The district also argues that although the Board correctly offset the amount of Bohanan’s early retirement benefits, it erred in not offsetting the amount of KPERS benefits she was receiving. In her cross-appeal, Bohanan argues the offset provisions of K.S.A. 1996 Supp. 44-501(h) are unconstitutional. Even if this court upholds its constitutionality, Bohanan argues that the Board erred in offsetting her early retirement benefits due to insufficient evidence of their amount.
K.S.A. 1996 Supp. 44-501(h) states:
“If the employee is receiving retirement benefits under the federal social security act or retirement benefits from any other retirement system, program or plan which is provided by the employer against which the claim is being made, any compensation benefit payments which the employee is eligible to receive under the workers compensation act for such claim shall be reduced by the weekly equivalent amount of the total amount of all such retirement benefits, less any portion of any such retirement benefit, other than retirement benefits under the federal social security act, that is attributable to payments or contributions made by the employee, but in no event shall the workers compensation benefit be less than the workers compensation benefit payable for the employee’s percentage of functional impairment.”
Pursuant to K.S.A. 1996 Supp. 44-501(h), the Board’s offset of the benefits Bohanan was receiving from the early retirement insurance policy paid for by the district was not in error. Bohanan does not dispute that she is receiving this benefit. Rather, she insists the record is devoid of any evidence of the precise amount. The district’s payroll clerk produced a document entitled “USD #260 EARLY RETIREMENT COMPUTATIONS.” This document coupled with the clerk’s testimony .that Bohanan was drawing her early retirement benefit is sufficient evidence to support the Board’s holding and the figures used to compute the offset amount.
The Board’s decision to not allow an offset for Bohanan’s KPERS benefits is equally correct. In its order, the Board stated the district would be entitled to an offset if it could produce evidence of what percentage of Bohanan’s KPERS benefits were provided by the district. The Board’s holding should not be disturbed since there is no evidence in the record to indicate that amount.
Bohanan takes issue with the constitutionality of K.S.A. 44-501(h). She argues the offset provisions in K.S.A. 44-501(h) should be struck down under both an equal protection and due process analysis.
Longstanding and well-established rules govern this court’s review of the constitutionality of a statute. In Tri-State Hotel Co. v. Londerholm, 195 Kan. 748, 760, 408 P.2d 877 (1965), the court stated:
“This court is by the Constitution not made the critic of the legislature, but rather, the guardian of the Constitution; and every legislative act comes before this court surrounded with the presumption of constitutionality. That presumption continues until the Act under review clearly appears to contravene some provision of the Constitution. All doubts of invalidity must be resolved in favor of the law. It is not in our province to weigh the desirability of social or economic policy underlying the statute or to question its wisdom; those are purely legislative matters.”
In Brown v. Wichita State University, 219 Kan. 2, Syl. ¶ 3, 547 P.2d 1015 (1976), the court stated: “[I]t 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.”
The primaiy purpose of the Kansas Workers Compensation Act is to compensate for actual or potential wage loss. Brown v. Goodyear Tire & Rubber Co., 3 Kan. App. 2d 648, 654, 599 P.2d 1031 (1979), aff’d 227 Kan. 645, 608 P.2d 1356 (1980). K.S.A. 44-501(h) is consistent with this purpose. Although as a policy matter one might approach the question as suggested by Bohanan, that issue has been decided by die legislature. The provision is constitutional.
On cross-appeal, Bohanan also argues the Board erred in not including the value of her vacation and sick leave in computing her average weekly wage. She suggests the ALJ correcdy included her vacation and sick leave in her average weekly wage since she lost those benefits at the time the district could no longer accommodate her restrictions.
The Board’s finding with regard to the fringe benefits was as follows:
“Insurance benefits provided to claimant through the school district are still being provided to claimant through her school bus driver position. As such, additional fringe benefits would not be computed in claimant’s average weekly wage unless or until they are discontinued. See K.S.A. 44-511. Vacation and sick leave are not listed in K.S.A. 44-511 as additional compensation and will not be included in the claimant’s average weekly wage.”
K.S.A. 44-511(a)(3) defines “wage” as “the total of the money and any additional compensation which the employee receives for services rendered for the employer in whose employment the employee sustains an injury by accident out of and in the course of such employment.” Bohanan argues the vacation and sick leave constitute additional compensation within the definition of that term in K.S.A. 44-511(a)(2):
“The term ‘additional compensation’ shall include and mean only the following: .... (D) the average weekly cash value of remuneration for services in any medium other than cash where such remuneration is in lieu of money, which shall be valued in terms of the average weekly cost to the employer of such remuneration for the employee.”
First, Bohanan relies on Ridgway v. Board of Ford County Comm’rs, 12 Kan. App. 2d 441, 748 P.2d 891 (1987), rev. denied 242 Kan. 903 (1988), to support the argument that her sick pay and vacation pay falls within the general concept of wages. The court stated: “As used in computing an employee’s average gross weekly wage under K.S.A. 44-511 (a)(3) in workers compensation cases, the term ’wage’ includes any allowance which constitutes a payment for work performed to the extent it results in an economic gain to the employee.” 12 Kan. App. 2d 441, Syl. ¶ 1. The Ridgway court quoted from Fogle v. Sedgwick County, 9 Kan. App. 2d 129, 673 P.2d 465 (1983), aff’d 235 Kan. 386, 680 P.2d 287 (1984), for that court’s statement: “[T]he primary purpose of workers’ compensation benefits is partial replacement of actual or potential wage loss.” 12 Kan. App. 2d at 442.
The district responds that vacation and sick leave have never been held to fall within the definition of wages. The district maintains these benefits are provided as a matter of course to an employee and have no economic value other than that they entitle the employee to take off certain days when necessary.
Bohanan also argues her vacation pay and sick pay constituted additional compensation. Bohanan’s reliance on Maxwell v. City of Topeka, 5 Kan. App. 2d 5, 611 P.2d 161, rev. denied 228 Kan. 807 (1980), is misplaced. Maxwell stands for the principle that additional compensation does not include the value of remuneration until and unless the remuneration is discontinued. The Maxwell court expressly stated it did not consider whether the claimant’s vacation and sick time constituted additional compensation since it resolved the case on grounds that the remuneration had only been temporarily discontinued and then started again. 5 Kan. App. 2d at 10-11. Bohanan’s argument is an extrapolation of dicta.
Under the statutory definition of wages, Bohanan’s vacation and sick leave do not constitute “money.” The only way they can be included in an employee’s average weekly wage is if they constitute “additional compensation.” K.S.A. 44-511(a)(2) states that addi tional compensation “shall include and mean only” the items listed in the statute. (Emphasis added.) Vacation and sick leave are not listed in K.S.A. 44-511(a)(2) and do not constitute “remuneration for services in any medium other than cash.” K.S.A. 44-511(a)(2)(D). The Board correctly held Bohanan’s vacation and sick leave should not be used in determining Bohanan’s average weekly wage.
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Lewis, J.:
This rate case is on its second appeal to this court. On the first appeal, we reversed the decision of the Kansas Corporation Commission (KCC) and remanded it for additional findings. This appeal is from the decision reached by the KCC on remand.
The petitioner/appellant is Kansas Pipeline Partnership (KPP), which strongly disagrees with the decision of the KCC on remand. At the time of the original rate hearings in 1994, KPP was associated in interest with Kansas Natural Partnership (KNP). At that time and in our first opinion, we referred to KPP and KNP as the “Joint Applicants.” KPP and KNP have now merged under the name of KPP. Technically spealdng, they are no longer Joint Ap plicants. However, for the purposes of continuity, we shall continue to refer to KPP and KNP as tire Joint Applicants.
The respondent/appellee is the KCC, from whose order this appeal is being pursued.
There are several intervenors, all of whom appear to be united in interest in urging us to affirm the most recent decision of the KCC. They are Williams Natural Gas Company, which was the petitioner on the first appeal; Western Resources, Inc., which was not a party to the first appeal; and the Citizens Utility Ratepayer Board, which was also not a party to the first appeal. The intervenors have all filed briefs on this appeal and were granted the opportunity to deliver oral argument to this court.
As pointed out above, all parties except the Joint Applicants argue in favor of the KCC decision on remand. The Joint Applicants strongly argue that the KCC’s order is in error and should be reversed.
Our original decision in this case is reported in Williams Natural Gas Co. v. Kansas Corporation Comm’n, 22 Kan. App. 2d 326, 916 P.2d 52, rev. denied 260 Kan. 1002 (1996). Those interested are referred to that opinion for a detailed statement of the facts involved on the first appeal and, to an extent, on this appeal.
In its original rate orders, the KCC permitted the Joint Applicants to add to their rate base and to recover through the rates approved certain “market entry costs” incurred by Phenix Transmission Company (Phenix) and by Kansas Pipeline Company, L.P. (KPCLP). A total of $12.95 million in market entry costs was permitted to be added to the rate base of the Joint Applicants. Of this, some $10 million came from or was incurred by Phenix, and $2.95 million came from or was incurred by KPCLP. In addition to those market entry costs, another $1 million in carrying costs was permitted to be added to the rate base in connection with the market entry costs incurred by KPCLP. These market entry costs are in the nature of net operating losses incurred by Phenix and KPCLP.
In the original rate proceedings, one of the commissioners dissented from the order and said, among other things: “Simply stated, the joint applicants did not experience the $10.5 and $2.95 million shortfall nor did they assume any part of a debt that rep resents these sums. It stretches the bounds of intellectual integrity, albeit a most creative effort, that one could characterize the shortfalls and projected earnings on revenues as an asset.”
We agreed with those comments. Our examination of the record did not reveal any evidence to show that the Joint Applicants had either acquired or incurred the operating losses of KPCLP or Phenix. Since these losses were all incurred prior to the duration and existence of the Joint Applicants, it seemed quite obvious that the Joint Applicants could not possibly have incurred the costs in question.
We reversed the KCC’s rate order and remanded it for additional findings. In doing so, we held in Syl. ¶ 3 as follows: “The Kansas Corporation Commission has no power to permit an entity to add to its rate base or otherwise recover costs which were not incurred by that entity but were incurred by a previous unrelated entity and were not later acquired by the entity seeking recovery of such costs.” 22 Kan. App. 2d 326. Since we were not then and are not now finders of fact, we reversed the orders of the KCC relating to the allowance of market entry costs and remanded the case for additional findings. Specifically, we held:
“The orders authorizing the Joint Applicants to recover market entry costs and carrying costs are reversed. The matter is remanded to the KCC with the following directions:
“(1) The KCC must determine if, when, and how the Joint Applicants acquired market entry costs incurred by two unrelated entities prior to the formation of the Joint Applicants. If necessary, the KCC may hold additional hearings and may receive additional evidence on the issues in question.
“(2) If the market entry costs were neither incurred nor acquired by the Joint Applicants, the KCC shall not permit such costs to be added to the Joint Applicants’ rate base or recovered by Joint Applicants in any fashion.
“(3) In the event the KCC finds that the market entry costs and carrying costs were acquired by the Joint Applicants, the KCC should restore its earlier orders authorizing recovery of those costs.” 22 Kan. App. 2d at 339.
REMAND
In our order of remand, we did not require the KCC to follow any specific procedures in determining the issues remanded. We required a determination of certain facts, but we left the method of that determination to the KCC. Specifically, we left it to the discretion of the KCC whether to hold additional hearings or to receive additional evidence. 22 Kan. App. 2d at 339.
The KCC resolved the issues remanded without holding additional evidentiary hearings and without hearing additional evidence. The Joint Applicants requested a hearing and a prehearing conference on remand. This request was denied. The parties were given the opportunity to file original and responsive briefs on the questions to be decided.
The Joint Applicants requested the right to offer additional evidence on the subject at hand and eventually made a specific proffer of additional evidence. The KCC denied this request and determined the issues on remand without receiving additional evidence.
After the briefing process had been completed, the KCC issued its order on remand in which it found that the Joint Applicants did not incur or acquire the market entry costs of Phenix or KPCLP. The net effect of this finding was that the original rates authorized by the KCC and collected by the Joint Applicants were illegal. Accordingly, the KCC ordered the Joint Applicants to refund to their customers that portion of any rates collected which represented the inclusion of the disallowed market entry costs in the rate base. Commissioner Susan Seltsam dissented from these decisions.
The Joint Applicants filed a timely motion for reconsideration, which was denied. The KCC then issued two nunc pro tunc orders which corrected errors or admissions in the earlier orders. The Joint Applicants filed a second motion for reconsideration. Although the KCC has never formally ruled on this second motion, it is deemed denied because a petition for reconsideration which is not ruled on within 20 days of its filing is deemed denied by operation of law. K.S.A. 1996 Supp. 77-529(b).
Having exhausted its administrative remedies, the Joint Applicants filed a timely petition for judicial review with this court.
JURISDICTION
There has been no challenge by either party or any of the intervenors to the jurisdiction of this court.
We have, nevertheless, considered the issue and hold that we have jurisdiction to decide the issues raised on appeal.
On the question of jurisdiction, we conclude as follows: (1) The Joint Applicants have exhausted their administrative remedies. (2) The application for judicial review was timely filed. (3) Pursuant to K.S.A. 1996 Supp. 66-118a(b), this court has exclusive jurisdiction to review any agency action of the KCC arising from a rate hearing requested by a public utility. (4) The Joint Applicants are natural gas distributing companies and are, therefore, public utilities pursuant to K.S.A. 66-104. (5) All the necessary statutory requirements have been complied with in order to vest this court with exclusive jurisdiction to decide the issues raised on. appeal.
STANDARD OF REVIEW
Pursuant to K.S.A. 66-118c, our review of an. order of the KCC is in accordance with the Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA). The Joint Applicants argue that the KCC erroneously interpreted or applied the law, that the KCC’s order is not supported by substantial evidence, and that the KCC’s decision is otherwise unreasonable, arbitrary, or capricious.
K.S.A. 77-621 states, in relevant part:
“(a) Except to the extent that this act or another statute provides otherwise:
(1) The burden of proving the invalidity of agency action is on the party asserting invalidity; and
(2) the validity of agency action shall be determined in accordance with the standards of judicial review provided in this section, as applied to the agency action at the time it was taken.
"(c) The court shall grant relief only if it determines any one or more of the following:
(4) the agency has erroneously interpreted or applied the law;
(7) the agency action is based on a determination of fact, made or implied by the agency, that is not supported by evidence that is substantial when viewed in light of the record as a whole, 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.”
Operation of the KJRA is discussed in Crawford v. Kansas Dept. of Human Resources, 17 Kan. App. 2d 707, 708, 845 P.2d 703 (1989), rev. denied 246 Kan. 766 (1990):
“Judicial review of orders of an administrative body is governed by the [KJRA]. The scope of review is stated in K.S.A. 77-621. The agency’s findings are presumed valid on review and the agency’s order may only be set aside by the district court if it is not supported by substantial competent evidence, is without foundation in fact, or is otherwise unreasonable, arbitrary, or capricious. [Citation omitted.]
“Judicial review is limited to these questions of law. K.S.A. 77-621 does not Emit a court’s review of an agency’s interpretation or appEcation of a matter of law. In reviewing a question of law, a court may substitute its judgment for that of the agency. [Citation omitted.]”
Therefore, this court must determine if the issues presented on appeal are questions of fact or questions of law. On questions of fact, the court should merely determine if there is substantial evidence to support the KCC’s orders.
“ ‘Substantial evidence’ is defined as evidence which possesses both relevance and substance, and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. [Citation omitted.] Stated another way, substantial evidence is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion. [Citation omitted.] It is not the function of an appellate court to reweigh the evidence; we are concerned only with the evidence which supports the findings below, and not the evidence which might have supported contrary conclusions. [Citation omitted.]” In re Petition of City of Shawnee for Annexation of Land, 236 Kan. 1, 21, 687 P.2d 603 (1984).
Further guidance on scope of review is provided in Kansas Gas & Electric Co. v. Kansas Corporation Comm’n, 239 Kan. 483, 496-97, 720 P.2d 1063 (1986):
“We should next consider the scope of judicial review where an appeal is taken to the courts from an order of the KCC in a rate-making case. The scope of review is discussed in the decision of the Court of Appeals in Midwest Gas Users Ass’n v. Kansas Corporation Commission, 3 Kan. App. 2d 376, 380-81, 595 P.2d 735, rev. denied 226 Kan. 792 (1979), where the court stated:
‘K.S.A. 1978 Supp. 66-118d Emits judicial review of an order by the commission to determining whether the order is “lawful” or "reasonable.” [Citation omitted.] A court has no power to set aside such an order unless it finds that the commission acted unlawfully or unreasonably. [Citation omitted.] An order is “lawful” if it is within the statutory authority of the commission, and if the prescribed statutory and procedural rules are fol lowed in making the order. [Citation omitted.] An order is generally considered “reasonable” if it is based on substantial competent evidence. [Citation omitted.]
‘The legislature has vested the commission with wide discretion and its findings have a presumption of validity on review. [Citation omitted.] Since discretionary authority has been delegated to the commission, not to the courts, the power of review does not give the courts authority to substitute their judgment for that of the commission. [Citation omitted.] The commission’s decisions involve the difficult problems of policy, accounting, economics and other special knowledge that go into fixing utility rates. It is aided by a staff of assistants with experience as statisticians, accountants and engineers, while courts have no comparable facilities for making the necessary determinations. [Citation omitted.] Hence a court may not set aside an order of the commission merely on the ground that it would have arrived at a different conclusion had it been the trier of fact. It is only when the commission’s determination is so wide of the mark as to be outside the realm of fair debate that the court may nullify it. [Citations omitted.]’ ”
“The Commission is vested with wide discretion and its findings have a presumption of validity on review. [Citation omitted.] The Commission is presumed to act fairly, reasonably, and impartially.” Southwest Kan. Royalty Owners Ass’n v. Kansas Corporation Comm’n, 244 Kan. 157, 165, 769 P.2d 1 (1989).
As stated above, this court should assume the KCC’s actions are valid unless they are unlawful or unreasonable.
MARKET ENTRY COSTS
The Joint Applicants attack the KCC’s decision that they did not incur or acquire the market entry costs in question. This attack is bifurcated. On the one hand, they argue that the KCC erred in not reopening the record for additional evidence on the issues presented. On the other hand, and somewhat inconsistently, the Joint Applicants argue that the record, as originally constituted, contains substantial competent evidence to show that they acquired the market entry costs in question and that the KCC findings to the contrary are not supported by substantial competent evidence. It is apparent that these two arguments are mutually irreconcilable.
A. Refusal to reopen record
Even though the Joint Applicants insist there was sufficient ev idence in the original record to show that they acquired the market entry costs in question, they also argue that it was error not to reopen the record and allow them to admit even more evidence on the question. We suspect they find themselves in this conundrum because of their desire to “touch all the bases” in an effort to reverse the KCC’s orders.
On the question of the reopening of the record, the Joint Applicants appear to suggest that our order of remand required the KCC to admit additional evidence on remand. This is simply untrue and represents a gross misreading of our opinion. We said: “If necessary, the KCC may hold additional hearings and may receive additional evidence on the issues in question.” (Emphasis added.) 22 Kan. App. 2d at 339. As the emphasized portion of our opinion shows, we did not require that the KCC hold additional hearings or receive additional evidence. Those questions were left to the discretion of the KCC.
We have examined the record, and we see no abuse of discretion by the KCC in its decision not to reopen the record and not to hear additional evidence.
As the KCC noted:
“The record made in this proceeding is extensive (the official record contained 17.364 pages reflecting the testimony of 29 witnesses during 17 days of hearings and containing 64 motions, 39 separate orders, 12 post hearing motions, and 11 separate post hearing orders), and the initial briefs and reply briefs have provided substantial assistance in reviewing the record and understanding the arguments for and against the acquisition or incurrence of market entry cost."
If a party finds itself unable to squeeze all of its evidence on the issue into a record of this size, then it is beyond our help.
The Joint Applicants suggest that whether they incurred or acquired the market entry costs in question was not really an issue explored in the initial 17,364 pages of testimony. We disagree. There was abundant time and space devoted to this issue in those 17.364 pages. In fact, the issue was so significant that Commissioner Timothy McKee made it the sole object of his dissent. The Joint Applicants’ argument that market entry costs were not an issue in the original rate hearing is without merit.
During oral argument, the Joint Applicants produced evidence which they proffered to the KCC and suggested to us that this evidence required that the record be reopened. We do not agree. At some point, enough is enough and the record must be closed. We think 17,364 pages of record is enough.
In addition, the regulations specifically addressed when the KCC may reopen the record. The KCC’s regulations provide: “After the record of testimony has been closed by the person presiding at the hearing, any party may apply to reopen the record for good cause shown. However, no record shall be reopened for further hearing except upon order of the commission.” K.A.R. 82-1-230(1). For purposes of reconsideration, the additional evidence must have either been not available or not known to exist at the time of the hearing. K.A.R. 82-l-235(c)(4). In addition to all of that, the nature and purposes of the evidence must be briefly stated and cannot merely be cumulative. K.A.R. 82-l-235(d). On remand, we cannot find in the record where the Joint Applicants alleged that the additional evidence it sought to proffer on remand was either unavailable or not known to exist at the time of the hearing. Given all the circumstances, KCC’s decision not to reopen the record is supported by its regulations.
We note that the Joint Applicants made at least three proffers to the KCC. The first proffer was admittedly generic in nature. The second was only slightly less generic. It was not until the third proffer that the Joint Applicants began to produce substantive documentary evidence. By then, it was apparently too little, too late. We cannot imagine why this evidence was not offered at the original hearing, and the Joint Applicants have not provided a believable answer to that question. To argue that market entry costs really were not an issue and so they did not prove how or when they were acquired is not a reasonable or believable explanation. Market entry costs were an issue, and the Joint Applicants’ obligation was to offer all of their best evidence at the original hearing, and they apparently failed to do so.
In summary, we hold that the KCC did not abuse its discretion in refusing to reopen the record and hear additional evidence on the question of the acquisition of the market entry costs.
B. The original record
The next issue was whether the original record supports the findings of the KCC that the Joint Applicants neither incurred nor acquired the market entry costs in question. As pointed out above, the Joint Applicants, having argued that the record should have been reopened, now make that argument irrelevant, insisting that the original record requires a finding that they did acquire or incur the market entry costs of Phenix and KPCLP.
We remanded for findings on the question of whether the Joint Applicants somehow acquired the market entry costs in question.
The Joint Applicants had the burden of proving they were entitled to the rate increase. That included the burden of proving that they somehow acquired the market entry costs of unrelated entities. The KCC on remand made the following findings in its order denying reconsideration:
“In conclusion, KPP is the applicant in this matter. As such, KPP bears the burden of proving that it is entitled to recover an award of market entry costs. KPP has failed to meet this burden. The Commission finds that the record does not contain evidence demonstrating that KPP either incurred or acquired the so-called market entry costs.”
This is a negative finding and has significant impact on our standard of review: “[A] negative finding that a party did not carry its requisite burden of proof will not be disturbed on appeal absent proof of an arbitrary disregard of undisputed evidence or some extrinsic consideration such as bias, passion, or prejudice.” Beech Aircraft Corp. v. Kansas Human Rights Comm’n, 254 Kan. 270, 275, 864 P.2d 1148 (1993).
In addition, in Chris Hunt Water Hauling Contractor, Inc. v. Kansas Corporation Comm’n, 10 Kan. App. 2d 612, 617, 706 P.2d 825 (1985), we said:
“While a finding of fact will not be upset on appeal if there is any substantial competent evidence to support it, a negative finding will only be overturned if there is proof of an arbitrary disregard of undisputed evidence or some extrinsic consideration such as bias, passion or prejudice. Lostutter v. Estate of Larkin, 235 Kan. 154, 162-63, 679 P.2d 181 (1984). This is true because a negative finding signifies the failure of the party on whom the burden of proof was cast to sustain it. Since it appears that the commission properly placed the burden of proof on the protestants to show an inconsistency with public convenience and necessity, and that it found that they failed to carry this burden of proof, the negative finding should stand unless there was a disregard of undisputed testimony.”
We see nothing in the record to indicate the KCC was guilty of bias, passion, or prejudice or that it disregarded any undisputed evidence. In short, we see no reason to reverse the finding of the KCC that the Joint Applicants failed to cany their burden of proof.
The KCC made specific and extensive factual findings on the question of whether the Joint Applicants acquired the market entry costs in question. We have reviewed those findings and conclude that they are supported by substantial competent evidence.
The Joint Applicants argue that the KCC ignored its own accounting' orders, which they suggest preserve the market entry costs as further regulatory assets. We disagree with that proposition. The KCC dealt with this contention as follows with regard to the Phenix accounting order:
“The October 30, 1991 accounting order does not reflect that the short fall of revenue was experienced by an entity other than KNP nor does the accounting order establish that KNP assumed any of the liabilities associated with the short fall of revenue which were experienced by Phenix. The October 30, 1991 accounting order does not establish that KNP incurred any market entry costs during the period in question. It is also clear that KNP’s acquisition of the Phenix assets was just that, an asset purchase, not a stock or equity purchase, which would have brought with the stock all of the interest, both positive and negative, of Phenix.”
Virtually the same findings were made concerning KPCLP.
The Joint Applicants’ argument regarding the accounting orders is without merit.
The Joint Applicants next argue that the transfer of the KPCLP and Phenix certificates of convenience and necessity to the Joint Applicants transferred the market entry costs and that no further action was necessary. This argument formed the basis of the dissent of Commissioner Seltsam to the order on remand.
We reject the proposition that the transfer of a certificate of convenience and necessity from one holder to the next can carry with it, without specific comment, the unrecovered market entry costs of the prior holder. We do not believe this document carries with it anything more than the authority to operate as a public utility. '
The purpose of a certificate of convenience and necessity is clearly defined by K.S.A. 66-131 as follows:
“No common carrier or public utility, including that portion of any municipally owned utility defined as a public utility by K.S.A. 66-104, governed by the provisions of this act shall transact business in the state of Kansas until it shall have obtained a certificate from the corporation commission that public convenience will be promoted btj the transaction of said business and permitting said applicants to transact the business of a common carrier or public utility in this state.” (Emphasis added.)
K.S.A. 1996 Supp. 66-136 makes it clear that no transfer, sale, or assignment of a certificate of convenience and necessity can be valid unless and until it is approved by the KCC.
A certificate of convenience and necessity is, in essence, a license or authority issued by the KCC to an entity which desires to operate as a public utility in this state. It carries with it only the right to operate as a public utility, and no entity may operate as a public utility without it. However, it does not carry with it any of the other assets of the holder. Those other assets must be transferred by contract, bill of sale, certificate of title, etc.
The certificates of convenience and necessity transferred to the Joint Applicants in this case do not purport to transfer any loss carried forward, unrecovered market entry costs, or, for that matter, any other assets of Phenix or KPCLP. We have examined them as they appear in the record, and we conclude that they transfer only the authority to operate as a public utility. They did not, in this case and would not in most cases, transfer from the holder to the new holder any of the assets of the original holder other than the right to operate as a public utility.
The overwhelming evidence in this case is that the transactions between the Joint Applicants, Phenix, and KPCLP involve only the physical pipeline facilities. There is no evidence that the Joint Applicants assumed all of the debts and liabilities of Phenix and/or KPCLP. There is no evidence that the market entry costs were purchased or acquired. As we pointed out in our first opinion, the Joint Applicants acquired $44 million worth of hard assets and added them to their rate base after the purchase. They now seek to argue that they somehow also acquired somewhere in the neighborhood of $53 million more in losses or market entry costs. The problem is that they did not pay for the alleged “assets” and have no proof that they acquired them.
In the final analysis, it does not matter whether Phenix and KPCLP were corporations or partnerships. The purchases were asset purchases only. The KCC has determined that the Joint Applicants did not acquire the market entry costs of those entities, and we affirm that finding.
THE REFUND
After determining that the rate initially allowed was unlawful because it included the market entry costs as a part of the rate base, the KCC ordered the Joint Applicants to refund to their customers that part of the rate which they had collected which was attributable to the market entry costs. The Joint Applicants are most aggrieved by this order of refund and attack it as unlawful, unauthorized, not permitted, and retroactive rate making. We disagree and affirm, finding that the order of refund was a valid and lawful order of the KCC.
We begin the analysis with an application of logic. The rate permitted by the original KCC order was reversed by this court because it was based, in part, on costs the Joint Applicants neither incurred nor acquired. Although the Joint Applicants argued at oral arguments that we did not reverse the rate order, we said in our opinion: “[W]e reverse the orders of the KCC relating to the allowance of market entry costs and remand for additional hearings and findings.” 22 Kan. App. 2d at 337. It seems to us logical that the Joint Applicants should be required to refund the improper portion of the rate to its customers. In the world of the judiciary, when an appellate court takes away something bestowed on a litigant by a trial court, the litigant is required to surrender or return any ill-gotten gains. Otherwise, a successful appeal has little meaning. To suggest that a litigant may somehow retain benefits which an appellate court has determined it was not entitled to simply stands the system on its head and defies logic. In our first opinion, we said: “If tibe market entry costs were neither incurred nor acquired by the Joint Applicants, the KCC shall not permit such costs to be .added to the Joint Applicants’ rate base or recovered by Joint Applicants in any fashion.” (Emphasis added.) 22 Kan. App. 2d at 339.
Those were strong words, and we meant what we said. If the Joint Applicants are permitted to keep the money they collected under rates which were determined to be illegal, then our order' issued on May 14, 1996, has no meaning retroactively. We do not intend to permit the Joint Applicants to void the retroactive application of an order of this court. We affirm the refund as ordered by the KCC. We agree with the KCC when it said:
“The Kansas Court of Appeals set a clear course when finding that market entry costs which are neither incurred nor acquired may not be recovered in a utility’s rate base. As the dáy follows night, the Commission must order a refund of the prior award of market entry costs and accompanying carrying charges. The rates filed November 9, 1995, do not reflect a just and reasonable rate. Furthermore, the appeal placed the award of market entry costs at risk and prevented the Joint Applicants from obtaining a vested right in any market entry costs. Under such facts and circumstances, the Commission has the authority to restore the parties to their position prior to the error and if necessary, order refunds. See Mid Louisiana Gas Co. v. FERC, 780 F.2d 1238, 1247 (5th Cir. 1986) (quoting Tennessee Valley Municipal Gas Ass’n v. FPC, 470 F.2d 446, 452 [D.C. Cir. 1972] ["Petitioner must be put in the same position that it would have occupied had the (FERC Commission) error not been made.”]).
The Joint Applicants argue that to allow the refund order is impermissible as retroactive rate making. They argue they charged valid rates authorized by the KCC and that our order of reversal can operate only prospectively.
We are cited to the cases of Kansas Gas & Electric Co. v. Kansas Corp. Comm’n, 14 Kan. App. 2d 527, 794 P.2d 1165, rev. denied 247 Kan. 704 (1990), and Sunflower Pipeline Co. v. Kansas Corporation Commission, 5 Kan. App. 2d 715, 624 P.2d 466, rev. denied 229 Kan. 671 (1981). In those cases, refunds were approved where the actions of the utilities were found to be wrongful. The Joint Applicants, seize this fact to conclude that a refund is only authorized where a utility does something wrong. In this case, they say they only charged a rate they were required to charge by the KCC and that they did not act wrongfully. We do not agree.
The Joint Applicants'-simply have not focused on the real issue. The real issue is whether the rate authorized by the KCC was final or whether finality should only be obtained after appellate review was completed. We adopt the latter premise and hold that appellate review is part and parcel of the rate-making process. A rate authorized does not become final until the appellate process has run its course: Until that time, a utility charges the rate with an inherent risk of refund if it is reversed.
“A decision of the lower court is not a final decision until the period for appeal has run and the case has not been appealed or the case has been appealed and finally adjudicated.” Osborn v. Electric Corp. of Kansas City, 23 Kan. App. 2d 868, Syl. ¶ 5, 936 P.2d 297 (1997). We adopt the same rule for orders of the KCC. We hold that a decision of the KCC establishing a rate or otherwise is not a final decision until the period for appeal has run and the case has not been appealed or, if the case has been appealed, until the case is finally adjudicated.
Our decision means that appellate review is part of the rate-making procedure. Until that procedure has run its course, no rate can be final. It cannot be retroactive rate making to order the refund of a rate which, although not final, has nonetheless been collected. We offer by way of further explanation the decision of State ex rel. Utilities Comm. v. Conservation Council, 312 N.C. 59, 67, 320 S.E.2d 679 (1984), in which the North Carolina court said:
“ ‘[R]etroactive rate making occurs when . . . the utility is required to refund revenues collected, pursuant to the then lawfully established rates, for such past use.’ [Citation omitted.] The key phrase here is ‘lawfully established rates.’ A rate has not been lawfully established simply because the Commission has ordered it. If the Commission makes an error of law in its order from which there is a timely appeal the rates put into effect by that order have not been ‘lawfully established’ until the appellate courts have made a final ruling on the matter.”
That same court elaborated further in State ex rel. Utilities Comm. v. Nantahala Power & Light Co., 313 N.C. 614, 741-42, 332 S.E.2d 397 (1985):
“[I]t is elementary that the Commission’s approval of any rate is always subject to judicial review. It is equally well-settled that rates or charges fixed by an order of the Commission are to be considered just and reasonable unless and until they are changed or modified on appeal or by the further action of the Commission itself. [Citations omitted.] . . . [When rates were determined excessive on remand], rate payers became entitled to recover all overcharges collected pursuant thereto. . . .
‘The premise underlying such a refund obligation is that rates which are found to be excessive are then considered to have been illegal from the outset, and are not considered to have become illegal only as of the date on which the appellate court has found them to be so. [Citation omitted.] ... [It is] well within the Commission’s inherent authority to order a public utility to refund monies which were overcollected from its customers under excessive and unlawful rates. [Citations omitted.]”
At oral argument, the Joint Applicants argued that since the KCC’s decision was not stayed, they were free to collect the rates authorized without fear of a refund in the event of a reversal. We do not agree.
In general, it should require no citation of authority to observe that a stay order only postpones the effectiveness of any order or decree. It does not make that order or decree invulnerable from reversal on appeal. A successful party might very well collect the benefits of a successful judgment whose effect was not stayed, but if that judgment is reversed, the party will be required to return the benefits so obtained. Any argument that a party is entitled to retain the benefits because the other side did not stay the effect of the judgment will not be successful.
There is nothing in the statutes cited by the Joint Applicants, K.S.A. 66-118g and K.S.A. 1996 Supp. 66-118h, that requires a KCC order be stayed as part of the appeals process. The position of the Joint Applicants would place the KCC in the position of being required to stay its own orders in order to protect the appellate process. While we agree that it is possible to stay an order of the KCC, such action is not required. The failure to obtain such a stay does not mean that a party may retain benefits as a result of a KCC order which is reversed on appeal.
K.S.A. 66-118g and K.S.A. 1996 Supp. 66-118h provide a procedure whereby an order may be stayed. They do not mandate that no refund can be ordered if a rate is reversed on appeal and no stay was issued. The Joint Applicants’ argument is that reversal of a rate order máy only operate prospectively unless the order was stayed. Such a proposition would, in this case, allow the Joint Applicants to retain the benefits of an unlawful rate to the detriment of the public. That is not a tolerable option.
The relevant statutes make it clear that a utility bears the risk of loss when it charges a rate which is not final. For instance, K.S.A. 66-118g(b) provides:
“If the court of appeals does not issue a final order within 120 days after the filing with the clerk of the court of appeals of an application for judicial review of an order or decision of the commission in a public utility rate case, the court of appeals shall automatically stay the order or decision of the commission, to the extent provided in this subsection, when such stay is requested by motion of a public utility that is a party to the action. The commission’s order or decision shall be stayed only to the extent that the commission did not grant the amount that is being contested by the public utility on appeal. The public utility may collect, pursuant to K.S.A. 66-118h and amendments thereto, rates up to but not exceeding the amount that is being contested by the public utility on appeal. The provisions of K.S.A. 66-118h through 66-118k and amendments thereto, shall be applicable to orders or decisions stayed pursuant to this section.” (Emphasis added.)
As we read this particular statute, an order of the KCC is not final until the expiration of 120 days from the date an application for judicial review is filed. If our decision has not been made within that time frame, we are required to issue an automatic stay. This appears to us to place the risk of reversal squarely on the public utility, which was charging a rate which is not final, for the first 120 days.
K.S.A. 66-118/ provides:
“All orders or decisions of the commission shall become operative and effective 30 days after the service of the order or decision as provided by law, except that if a petition for reconsideration is filed, the order or decision shall become operative and effective 30 days after the order or decision of the commission denying the petition or if the petition be granted the order or decision as originally entered or as modified shall become operative and effective 30 days after the service of the order or decision of the commission on reconsideration. After the lapse of the time period in which judicial review of such order may be taken, such determinations and orders shall be held to be conclusive as to the matters involved in any suit to enforce such order or in any collateral suit or proceedings.” (Emphasis added.)
This statute provides that a KCC order may not be held to be conclusive until after the lapse of time in which judicial review may be taken. This is a clear statement that an order which is appealed is neither final nor conclusive until the appellate process is completed. We note that a stay is not required to trigger the application of 66-118Í.
K.S.A. 66-1,206(b) provides:
“All orders and decisions of the commission whereby any rates, joint rates, tolls, charges, rules, regulations, classifications, schedules, practice or acts relating to any service performed or to be performed by any natural gas public utility for the public are altered, changed, modified, fixed or established shall be reduced to writing, and a copy thereof, duly certified, shall be served on the natural gas public utility affected thereby. Such order and decision shall become operative and effective within 30 days after such service. Such natural gas public utility, unless an action is commenced in a court of proper jurisdiction to set aside the findings, orders and decisions of the commission, or to review and correct the same, shall carry the provisions of such order into effect.” (Emphasis added.)
As we read this statute, an order of the KCC whereby any rates are “fixed or established” shall take effect within 30 days after service. The public utility is authorized to carry the order into effect unless, among other things, a petition for review is filed. See K.S.A. 66-118k.
The appellate process is part of .the rate-making process. A rate is not final until that process has been completed. The risk of loss in placing such a rate into effect is squarely on the public utility. Further, a refund may be ordered regardless of whether a stay order is sought or issued.
We affirm the decision of the KCC ordering a remand of that portion of the rate attributable to the market entry costs which should never have become part of the rate base.
CONSTITUTIONAL RIGHTS
The Joint Applicants argue they were denied due process of law because the KCC refused to allow them to present evidence on remand. We do not agree.
We simply point out that the Joint Applicants have had due process to the extent of assisting to build a record of 17,364 pages. It appears to us from that alone that they certainly were afforded their constitutional right to appear and be heard.
The Joint Applicants suggest that the KCC order requiring a refund is confiscatory and that the KCC is taking the Joint Applicants’ property without just compensation. The flaw in this argument is perfectly apparent. The rate in this case was not final when the KCC originally entered it because an appeal was taken from that order. In addition, the Joint Applicants failed to cite authority to support their argument in this regard.
The final argument insofar as constitutional rights are concerned is that the Joint Applicants believed the KCC’s order was unconstitutional because it did not take their financial integrity into account. We agree that pursuant to Sunflower Pipeline Company v. Kansas Corporation Commission, 5 Kan. App. 2d 715, the KCC should consider the effect of the refund on the financial integrity of the public utility.
However, the fact is, the KCC did consider the financial integrity of the Joint Applicants when it said:
“The Commission has determined that the market entry costs at issue were neither incurred nor acquired .... Under such facts and circumstances, the customer interest in not having to pay the alleged market entry costs outweighs the interest of the Joint Applicants’ investors. When balancing the investor and customers’ interest, the record does not demonstrate that the Joint Applicants are entitled to recover costs that were neither incurred nor acquired. The financial integrity of the Joint Applicants should be based upon costs either incurred or acquired. Otherwise, the customers would be burdened beyond rates based upon a reasonable cost of service including a reasonable return on the rate base.”
We hold that the constitutional arguments advanced by the Joint Applicants are without merit.
VACATION OF ORDER
Finally, the Joint Applicants argue that the KCC was required to grant their motion to vacate certain orders and to issue an order finding that the schedule attached to the application filed March 25,1994, was deemed approved by operation of law. This argument is based on our decision in Kansas Pipeline Partnership v. Kansas Corporation Comm'n, 22 Kan. App. 2d 410, 916 P.2d 76, rev. denied 260 Kan. 994 (1996), cert. denied 519 U.S. 1092 and 519 U.S. 1115. (1997).
In essence, the Joint Applicants are arguing that all the 1994 and 1995 orders entered in the original rate hearing should be vacated because they were not entered within the 240-day time period beginning March 25, 1994. K.S.A. 1996 Supp. 66-117(b) requires the KCC’s action to be completed in 240 days unless the 240-day period was extended pursuant to the statute’s provisions. The Joint Applicants argue that this statute was violated.
We conclude the argument is without merit. The 240-day period in question was extended following extensive “rebuttal testimony” filed by the Joint Applicants, which materially altered the factual and legal bases underlying the March 25,1994, application. Several parties filed motions to have the “rebuttal testimony” deemed a new application which would restart the 240-day period. The KCC agreed that the new testimony was, in effect, an amendment to the Joint Applicants’ application and that it restarted the 240-day period. We conclude this action by the KCC was proper under the provisions of K.S.A. 1996 Supp. 66-117(b)(l).
Moreover, in the final analysis, we conclude the Joint Applicants are in no position to raise this particular issue on appeal. In order to appeal an issue cited in a KCC order, a litigant must have filed and pursued a timely request for reconsideration of the order in question. The Joint Applicants did neither. As pointed out, the KCC decided to restart the 240-day time period. No request for a reconsideration of that decision was filed, and no objection to that decision may be pursued on appeal. See K.S.A. 1996 Supp. 77-529. In addition, this is an issue which originated prior to and was in existence at the time the original appeal was heard in this case. The Joint Applicants did not raise this issue on the first appeal and cannot do so now.
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Pierron, J.:
Xuan Hiep Le appeals the summary dismissal of his K.S.A. 1996 Supp. 60-1501 petition.
Le is incarcerated in Hutchinson Correctional Facility. While in administrative segregation, Le received a disciplinary report after a pair of tweezers was found under his mattress. The report stated that metal objects such as tweezers were classified as dangerous contraband in the segregation unit. At the disciplinary hearing, Le testified the tweezers had been in his property when he was transferred to the segregation unit, and he had never been told they were classified as contraband. The hearing officer found Le guilty of possessing dangerous contraband and sentenced him to 45 days’ disciplinary segregation, 60 days’ restriction from privileges, 6 months’ loss of good time credit, and a $20 fine. The warden approved the finding of the violation, but reduced the sentence to 14 days’ disciplinary segregation, 60 days’ restriction from privileges, 3 months’ loss of good time credit, and a $20 fine. On appeal, the Secretary of Corrections approved the decision, stating that there was sufficient evidence to uphold the finding.
Le filed a 60-1501 petition in district court. The petition alleged Le had been wrongfully punished for the negligence of prison officials who had permitted him to retain the tweezers when placing him in administrative segregation. He argued his equal protection rights had been violated because others were not punished under similar circumstances, his due process rights had been violated at the hearing, and prison officials had permitted the wrongful conduct of their subordinates. The district court dismissed the petition without a hearing.
A 60-1501 petition filed by an inmate is subject to summary dismissal unless it asserts the deprivation of a constitutional right. The inmate has the burden of proving a violation of his or her constitutional rights in a habeas proceeding. Anderson v. McKune, 23 Kan. App. 2d 803, 806-07, 937 P.2d 16 (1997).
Le is mainly concerned about the loss of his good time credits. He has a liberty interest protected by the Due Process Clause of the 14th Amendment in good time credits already earned. See Frazee v. Maschner, 12 Kan. App. 2d 525, 528, 750 P.2d 418, rev. denied 243 Kan. 778 (1988). Le has alleged a violation of a constitutional magnitude.
Le contends the problem is notice. He does not mean adequate notice of the disciplinary hearing, which he received, but notice that the tweezers were considered to be dangerous contraband in segregation. He claims the dangerous contraband regulation he was found to have violated did not apply. He maintains he had no fair warning that possession of the tweezers in administrative segregation was prohibited and that he did not violate any known rule or order.
Le was found to have violated K.A.R. 44-12-901. The applicable sections provide:
“(a) Dangerous contraband is defined as: (1) Any item or any ingredient or part of or instructions on creation of such item, which is inherently capable of causing serious damage to persons or property, or is capable or likely to produce or precipitate dangerous situations or conflict, and which is not issued by the department of corrections or the facilities, sold through the canteen, or specifically authorized or permitted by order of the principal administrator for use or possession in designated areas of the facility ....
“(c) No inmate shall possess, hold, sell, transfer, receive, control, distribute, or solicit any dangerous contraband.”
Le argues this section does not apply to his situation because tweezers are sold in the canteen and inmates are permitted to possess them. The most relevant portion of K.A.R. 44-12-901(a)(l) would appear to be the last clause, which prohibits items that are not specifically authorized or permitted in designated areas of the facility by order of the principal administrator. However, the compound, complex language of 44-12-901(a)(l) does not make for easy interpretation.
The appellees indicate that metal objects such as tweezers are prohibited in administrative segregation areas. They have not identified any specific order that so provides. Without an order prohibiting the tweezers in the segregation unit, the dangerous contraband definition has not been met if tweezers are sold through the canteen or issued by the Department of Corrections or the prison facilities.
The appellees state that Le was given verbal notification that such objects would not be allowed. Verbal notification alone would not meet the required standard of formality. Under K.S.A. 1996 Supp. 75-5256, orders of the warden, other than those relating to emergency and security procedures, must be published and made available to all inmates. Gilmore v. McKune, 23 Kan. App. 2d 1029, 1035, 940 P.2d 78 (1997). The record does not indicate an order concerning the possession of metal objects such as tweezers in administrative segregation was published or made available to all inmates. The documents included as exhibits in the appellees’ brief also do not identify or contain such an order.
While arguably all rules in a prison setting have some relationship to security concerns, the specific issue here is a disciplinary one involving a liberty interest in good time credits already earned. To be effective, such rules need to be detailed in a published, written order. Without such an order, there is no legal basis to support the finding that Le violated the dangerous contraband provision of K.A.R. 44-12-901.
Le states facts which appear to support a petition for relief under 60-1501. Appellees may be able to present facts and arguments to satisfy this challenge. We reverse and remand for a full hearing on the issues raised by Le’s petition.
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Lewis, J.:
Claimant suffered a repetitive use type injury to his shoulder while working for Cessna. The parties agree that the date of the alleged accident was October 27, 1992, and each and every working day thereafter. Claimant instituted this workers compensation action, and the administrative law judge (ALJ) awarded him a 30% impairment of the body as a whole. The Workers Compensation Board (Board) modified the award of the ALJ to a 29.67% impairment to the left upper extremity only. It also found the date of the accident to have been the last day claimant worked prior to surgery, which was July 22, 1993. Claimant appeals from those decisions. We affirm.
Claimant bases part of his argument on what the AMA Guidelines say about the finding of an impairment for pain. He attaches a copy of the applicable Guidelines to his brief. The problem is that these Guidelines were never introduced into evidence and are not part of the record on appeal. Claimant cannot cure this deficiency by attaching the Guidelines to his brief as an appendix. “ ‘An appellant has the burden to designate a record sufficient to establish the claimed error. Without an adequate record, an appellant’s claim of alleged error fails.’ ” McCubbin v. Walker, 256 Kan. 276, 295, 886 P.2d 790 (1994). Further: ‘Assertions in an appellate brief are not sufficient to satisfy inadequacies in the record on appeal.’ ” Smith v. Printup, 254 Kan. 315, 353, 866 P.2d 985 (1993). The record contains no support for claimant’s argument concerning the AMA standards.
Claimant next argues that the Board erred in restricting his award to his left upper extremity. We disagree. There is substantial competent evidence in the record to support the findings in this regard.
Three physicians testified as to the extent of claimant’s injuries. Two of these physicians limited claimant’s disability and impairment to the left extremity. One physician testified in a manner which supports claimant’s argument. The Board was required to resolve this conflict in the evidence, and it did so by placing more credibility on the testimony which limited the disability to the left upper extremity. This was the prerogative of the finder of fact, and we will not interfere with that finding.
The final issue deals with the date of injury. If the injury is dated prior to July 1,1993, claimant’s injury will be classified as a general bodily disability. Under the current law, however, which took effect July 1, 1993, the injury is a scheduled injury to the left upper extremity.
The injury suffered by claimant is one caused by repetitive trauma from his job as a sheet metal worker. The record indicates he began to suffer symptoms in October 1992 and that those symptoms became progressively more disabling as time went on.
Despite suffering from pain and other symptoms, claimant lost no work from the injury until July 22,1993. It was on this date that he was forced to quit work, temporarily, in order to have surgery on his shoulder.
The Board likened his injury to carpal tunnel syndrome and applied the decisions of Condon v. Boeing Co., 21 Kan. App. 2d 580, 903 P.2d 775 (1995), and Berry v. Boeing Military Airplanes, 20 Kan. App. 2d 220, 885 P.2d 1261 (1994), in finding that the date of accident was the last date worked by claimant prior to his sur gery. Claimant, on the other hand, argues that the date of accident should be October 22, 1992, when he first saw a doctor; June 21, 1993, the date he first saw the surgeon; or June 30, 1993, the date his surgery was scheduled.
We hold that the rule announced in Berry controls, and we affirm the Board’s decision holding the date of accident to be July 22,1993. In Berry, we established a bright line rule to govern cases of this nature:
“[I]n a carpal tunnel syndrome action, the date from which compensation flows is the last day worked by the claimant. This date will not only simplify the process, it offers the least potential prejudice to future claimants. In establishing this date, we decline to label the condition. It is a condition that lies somewhere in between a personal injury caused by accident and an occupational disease. It has features of both, but best lends itself to a ‘last day of work’ analysis as the date of injury or occurrence.” 20 Kan. App. 2d at 229-30.
Condon expanded the Berry rule to apply to microtraumas, other than carpal tunnel, caused by repetitive activity.
We believe that the Berry rule is applicable here. The claimant continued to work right up until the day before his surgery was scheduled. Indeed, he is still working at Cessna at an accommodated position. He was not required to stop working due to his pain and disability until July 22, 1993, and that is the date of his injury under the Berry decision.
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The opinion of the court was delivered by
Brewer, J.:
This was an action brought by defendant in error in the district court of Bourbon county to recover for labor and material done and furnished in the improvement and repair of two certain store-rooms in the city of Fort Scott. Defendant in error is a carpenter; plaintiff in error is a dry goods merchant. The case was tried at the May term, 1881, of the district court, before a jury, which returned a verdict in favor of the defendant in error for $300. After $50 of this amount had been remitted, the district court overruled a motion for a new trial, and entered judgment on a verdict for $250; to review which judgment this petition in error has been brought.
The first point made by counsel for plaintiff in error is, that the court erred in permitting the defendant in error to construe the memorandum agreement. The facts in respect to this objection are as follows: There was a certain memorandum or written contract entered into between the parties. That contract provided, among other things, for a stringer; but whether the size of that stringer was to be 8x10,10x10, or 12x12, was a matter of dispute. In reference to this question the court ruled as follows: “ That the contract being inspected by the court, it was found and so ruled by the court that the figures as to the size of the stringer are blotted, unreadable and indeterminate, and therefore oral testimony might be offered to show what they were in fact, and what the parties meant them to be.”
In other words, the question comes before us in this shape: A written contract is introduced, but upon the face of it certain figures or words are so obscured or erased that an inspection of the paper will not disclose what those words or figures are. Under such circumstances there is but one recourse, and that is to resort to parol testimony as to what words or figures were intended and used by the parties. If the writing cannot be read, the defendant is not entitled to the benefit of its obscurity any more than the plaintiff. The written contract being unintelligible, recourse must be had to the parol negotiations of the parties, or any other testimony which will tend to show what the parties meant by these unintelligible figures. To this extent the district court permitted parol testimony. Such testimony was necessary, and therefore competent.
Another proposition of counsel is, that the court refused to permit evidence offered on behalf of the plaintiff in error. In order to understand the force of this objection, it must' be remarked that the memorandum of agreement between the parties provided that the repairs should be completed by the 15th of February. As a matter of fact they were not completed till about the 15th of March, and defendant was, in consequence, to that extent delayed in removing into his new store. He filed a counter-claim for damages in consequence of this delay, and two questions were asked, answers to which were ruled out by the district court, which rulings present the present question for consideration. These questions are as follows:
“ State what amount of damage you have sustained, if any, to your business, in consequence of the shelving having been removed by plaintiff before the store was ready to receive them, and the stock having been, in consequence, heaped up or piled around the store promiscuously?”
“State what expense you have incurred, if any, in advertising your removal from one building to another, and in notifying your customers of the change of place of your business, and when you advertised you would change, if at all ? ”
We think the ruling of the district court is correct. The damages sought to be covered by the answers to those questions are too uncertain and remote to be proper subjects for counter-claim. (City of Parsons v. Lindsay, ante, p. 426; Minneapolis Harvester Works Co. v. Cummings, ante, p. 367.)
The general rule is that no damages are recoverable for any breach of contract except such as are the direct and proximate result of the breach complained of, a result which must have been foreseen and must therefore be deemed to have been taken into account by the parties at the time they entered into the contract. We do not think these questions open a door to the consideration of such damages. The matter suggested by those questions would involve merely speculative, uncertain and remote damages. They would not be the direct and proximate result of the wrong, and would fluctuate with the disposition of the plaintiff in error to advertise and display. We think the district court properly ruled out this testimony as opening the door to an inquiry involving mere probabilities and speculations, or matters not the direct result of the wrong done.
Again, the plaintiff in error complains that the verdict is against the evidence; that the amount awarded by the jury is in fact excessive. ¥e are inclined .to think that the plaintiff below got all and probably more than he was entitled to; yet as $50 was remitted from the verdict, we cannot say that there was no sufficient testimony upon which the ultimate conclusion could rest. We think the jury had enough before them to justify their verdict, and therefore that verdict is conclusive upon us.
There being no other question in the case, the judgment of the district court must be affirmed.
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The opinion of the court was delivered by
Valentine, J.:
This was a prosecution for the violation of a city ordinance of the city of Olathe, Kansas. On April 7, 1881, a complaint was filed with the police judge of said city, which reads as follows:
“ J. F. Border, of lawful age, being first duly sworn, doth depose and say, that the said S. R. Thomas, on or about the 6th day of February, 1881, within the limits of the city of Olathe, then and there being, did then and there forcibly commit an assault and battery upon this affiant, by then and there striking, beating, kicking and otherwise maltreating this affiant, contrary to an ordinance of said city of Olathe, entitled ‘An ordinance in regard to assault and battery and assault,’ passed and affirmed February 26, 1872.”
So much of the above-mentioned ordinance as is applicable to this case, reads as follows:
“Section 1. Any person who shall forcibly commit an assault, or assault and battery, in any street, house, or place in the city of Olathe, shall upon conviction thereof be fined in a sum of not more than $100, and shall also be liable for costs of suit, and shall stand committed to the city prison until such fine and costs are paid.”
The defendant, Stephen R. Thomas, pleaded guilty to the foregoing charge, and was fined $10, and was adjudged to pay the costs of the prosecution. Afterward, he took an appeal to the district court. In the district court he filed a motion to dismiss the action (not the appeal), on the ground that the court had no jurisdiction of the case, which motion was by the court overruled. The defendant then filed a special plea in bar, setting forth that he had been formerly convicted for the same offense, on another complaint made against him before the police judge by one John Border, and that such conviction had been fully satisfied. By the consent of both parties, the case was then heard upon this special plea, by the court, without a jury. What became of the defendant’s general plea of “guilty,” is not shown, and no question has been raised with reference thereto. On the hearing upon the special plea, it was shown as follows: On March 6, 1881, a complaint was filed with the police judge, which reads as follows:
“John Border, being first duly sworn, says that Stephen Thomas, within the limits of the said city of Olathe, in Johnson county, Kansas, on the 6th day of March, 1881, then and there being, did then and there unlawfully disturb the peace and quiet of this affiant, and of divers other persons then and there assembled, and the peace and quiet of the city of Olathe, by then and there drawing a deadly weapon, to wit, a revolver, and pointing the same at this affiant, and threatening to blow out the brains of this affiant; and by then and there being guilty of violent, offensive and tumultuous conduct; and by then and there making loud and unusual noises; and by then and there using profane and obscene language, contrary to an ordinance of said city, entitled ‘An ordinance to prevent the disturbance of the peace, and to preserve order in the city of Olathe,’ passed and approved June 15, 1870.”
So much of the above-mentioned ordinance as applies to this case, reads as follows:
“Section 1. Any person who shall willfully disturb the peace and quiet of the city of Olathe, by violent, tumultuous or offensive conduct, or by making loud and unusual noises, or by profane and obscene language, or whoever shall knowingly permit any such conduct in any house, or on any premises under his or her control, shall be deemed guilty of a misdemeanor, and shall upon conviction be fined in a sum not less than $1, nor more than $20.”
On this complaint of John Border, the defendant pleaded guilty, and was fined $7.50, and was adjudged to pay the costs of the prosecution, amounting to $6.30, which fine and costs he immediately paid, and was discharged. '
It seems from the briefs of counsel that John Border was the father'of J. F. Border, though the record scarcely shows this. The defendant, Stephen R. Thomas, testified on this hearing as follows:
“I am the defendant in this cause. I had a difficulty with the Borders on the 6th day of March, 1881, in the city of Olathe. I never had but the one difficulty with them. The disturbance of the peace grew out of the assault and battery upon Frank. It all occurred at the same time. The assault and battery charged in the complaint was a part of the same difficulty in which I was fined for disturbing the peace. There was but one difficulty. And further the witness saith not.”
This was all the evidence that was introduced, either to prove or disprove said special plea; and upon this evidence the court below found the facts in favor of the defendant, and discharged him. The plaintiff then made a motion for a new trial, which motion was overruled; and the plaintiff now appeals to this court.
The only question presented to us by counsel for our consideration is, whether the court below erred in finding in favor of the defendant upon the hearing of said special plea; or, in other words, the only question is, whether the evidence showed that the defendant had been previously prosecuted and convicted for the same offense with which he was then charged, and for which he was then being prosecuted.
The extracts from the ordinances of the city of Olathe which we have quoted, are taken from the brief of counsel for .the city of Olathe. They are not found in the record. But under the decision of this court, in the case of the City of Solomon v. Hughes, 24 Kas. 211, we suppose that both the district court and this court should take judicial notice of such ordinances.
We hardly think that the evidence shows that the two offenses charged were, in fact, one and the same offense. The complaint filed by J. F. Border simply charged an assault and battery upon him, and did not allege any other breach of the peace. The complaint filed by John Border simply charged another and a different breach of the peace, and did not charge any assault or battery upon J. F. Border. It did not, in fact, charge any battery upon any person, and only inferentially charged an assault. It simply charged that the defendant disturbed the peace and quiet of John Border and others, and the city of Olathe, by drawing a revolver and pointing the same at John Border, and threatening to blow his brains out, and by being guilty of improper conduct, and using improper language. Tt would seem, however, that all the matters charged in both complaints grew out of the same difficulty, and occurred at the same time. The defendant testifies that “the disturbance of the peace grew out of the assault and battery upon Frank,” (meaning, we suppose, J. F. Border;) that “it all occurred at the same time;” and that “there was but the one difficulty.” Now although the matters charged in both complaints occurred at the same time and grew out of the same difficulty, still we think that they constituted two different offenses against the city ordinances of the city of Olathe — one for the assault and battery upon J. F. Border, and the other for disturbing the peace, by drawing the revolver upon John Border, and by the defendant’s other violent conduct, and his improper language. The assault and battery upon J. F. Border certainly did not include all these other matters charged in the complaint made by John Border. And the punishment for the assault and battery upon J. F. Border was certainly no punishment for the breach of the peace in pointing a revolver at John Border.
The judgment of the court below will be reversed, and the cause remanded for further proceedings.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by James Thompson against Helen T. Pierce and Sarah A. Pennoek. The petition of the plaintiff, omitting title, reads as follows:
“The plaintiff alleges that he is in the possession of the following-described real estate, situate in Franklin county, Kansas, to wit, [here the property is described]; that the defendants, Helen T. Pierce and Sarah A. Pennoek, claim an estate or interest therein adverse to this plaintiff, and are tenants-in-common of said premises, and derive their title from the same source; that this action is brought for the purpose of determining such adverse estate or interest. Wherefore [plaintiff prays] that said adverse estate or interest, if any, may be determined by the court here, and if none, that this court may so adjudge, and for his costs of suit.”
The defendant Helen T. Pierce was a minor, and the court below, on motion of the plaintiff, appointed John W. Deford as her guardian ad litem. Deford was also attorney for the defendant Sarah A. Pennock. The defendants answered separately, though the answers were in substance the same. Each answer contained a general denial. Such an answer, indeed, is required to be filed, under §101 of the civil code, by any guardian ad litem for an infant defendant. Each answer also denied specifically that the plaintiff had any title to, interest in, or possession of the property in controversy, and alleged that the property was wild, vacant and unoccupied land. There were some other allegations in each of the answers; but none of them admitted that the plaintiff had any possession of the property, and -none of them admitted that the plaintiff had any title to the property except such as he claimed under certain tax deeds, which the answers alleged are void. The plaintiff demurred to each of these answers, on the ground that they did “not state facts sufficient to constitute a defense to his [the plaintiff’s] cause of action.” The court below sustained both of these demurrers, and rendered judgment in favor of the plaintiff and against both of the defendants; and the defendants bring the case to this court for review.
We think the court below erred. (Eaton v. Giles, 5 Kas. 24; Douglass v. Nuzum, 16 Kas. 515; Douglass v. Bishop, 24 Kas. 749.) It will be noticed that the plaintiff in his petition did not allege that he had any title to the property in controversy. It will also be noticed that he did not allege that he had the actual possession thereof; and it will also be noticed that he did not even allege that he was in the peaceable possession thereof. All that he did allege respecting title or possession was, that he was “in possession of the property;” and this allegation the defendants denied generally and specifically.
In the case of Douglass v. Nuzum it is held that, “In an action to quiet title under 594 of the code, the plaintiff must allege and prove an actual possession by himself or tenant.” (Syl. No. 1.) And it is also held in the same case that in equity, “Equity will not, upon the mere allegation of the existence of an adverse claim, examine its nature' and extent, and determine as to its sufficiency.” (Syl. No. 4.) But we suppose this action was not intended to be brought as a suit in equity, for the petition was obviously and manifestly insufficient for such a case; but evidently the action was intended to be brought under § 594 of the code. In the case of Douglass v. Bishop it was held that —
“A tax deed executed to a plaintiff and offered by him in evidence in an action brought by him under §594 of the code, to quiet title to land embraced in the deed, does not prove or tend to prove actual possession of the premises in the plaintiff, and a decree quieting title in favor of the plaintiff in such an action, where the possession is con tro-' verted by the defendant, will be reversed on proceedings in error in the supreme court, where there is a total failure of proof showing actual possession.” (Syllabus; see, also, the opinion in the case.)
This last case cited we think substantially decides the present case. It is certainly doubtful whether the petition of the plaintiff in the present case stated any cause of action; but if it did, then the defendants’ answers were certainly sufficient answers to the plaintiff’s petition. He simply alleged possession of the property in controversy, and the defendants’ answers denied it generally and specifically. This was certainly sufficient.
The judgment of the court below will be reversed, and the cause remanded for further proceedings.
All the Justices concurring. | [
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" The opinion of the court was delivered by
Horton, C. J.:
This was an action of replevin, brought by Hodges against Paul. To obtain an order for the delivery ■of the personal property, the plaintiff filed his affidavit containing the requisite averments, excepting that he omitted therefrom the words that “he is entitled to the immediate possession of the property.” Afterward, defendant presented his motion to quash and set aside the affidavit and order of delivery, because of the insufficiency of the affidavit filed in the case. The court overruled the motion, and herein committed error. Sec. 177 of the code, among other things, requires that the affidavit shall state that the plaintiff is entitled to the immediate possession of the property. This is omitted, and no other equivalent words are used as a substitute. For .all that appears in the affidavit, the plaintiff had no right to the immediate possession to the property, and therefore was in no condition to maintain the action of replevin. The de fendant may have wrongfully detained the property from some one, but the statement in the affidavit that the plaintiff was the owner thereof, does not show the property was wrongfully detained from him. It may have been leased, or in other ways in the rightful possession of a third person. Hence, the necessity of the statement that the plaintiff is entitled to the immediate possession of the property before any order of delivery shall issue.
The order of the court below, overruling the motion to quash and set aside the order of delivery, is reversed, and the cause remanded.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
Upon the trial of this cause, the defendants in erro? objected to any evidence under the petition, on the ground that it does not state facts sufficient to constitute a cause of action. The court sustained the objection, and judgment was rendered against plaintiff for costs. The only question in this case is, whether such ruling and judgment are correct. The substance of the petition is that the Eagle Lodge No. 32, of the Independent Order of Odd Fellows, and the Grand Lodge of the Independent Order of Odd Fellows of Kansas, are private corporations, duly organized under the laws of the state; that the plaintiff was of good character, and had been admitted a member of the Eagle Lodge; that he had at all times conducted himself as a faithful Odd Fellow, and an honest, truthful and upright citizen, and had never been guilty, or suspected to have been guilty, of any infamous lie, falsehood or perjury; that plaintiff had filed at one time his petition in the Grand Lodge, complaining of the doings and proceedings of Eagle Lodge, and asking that the Grand Lodge take such action thereon as the justice of the case might require, which petition plaintiff had verified by his own affidavit annexed thereto; that afterward the Eagle Lodge summarily and wrongfully expelled the plaintiff from its membership on a false and malicious charge of perjury preferred against plaintiff in the Eagle Lodge, in his having verified his petition to the Grand Lodge, making complaints against the Eagle Lodge; that the defendants, well knowing the premises, and maliciously intending and contriving to injure him in his character and reputation ae a citizen and Odd Eellow, and maliciously intending and contriving to bring him into public scandal, infamy and disgrace among his neighbors,. the citizens of the state, and all good Odd Fellows, did, on the 16th day of October, 1873, in Jefferson county, and at other-times and places, falsely, wickedly and maliciously print and publish, and cause to be printed and published in a certain paper, book or pamphlet, having the title, “Grand Lodge Journal, 1873,” indorsed on the back thereof, a certain false, malicious and libelous matter, to wit:
“G. W. Martin, from the special committee on the memorial of William Kirkpatrick (meaning plaintiff), submitted the following report, which was unanimously adopted:
“ To the B. W. Grand, Lodge, Kansas, I. O. O. K :
. . . “‘Your committee, to which was referred the petition of William Kirkpatrick, . . . t'o have set aside certain action of Eagle Lodge No. 32, have had the same under consideration, and having visited Eagle Lodge No. 32, by your orders, to examine into the grievances of said Kirkpatrick, I am prepared to say that his . . . expulsion on the charge of perjury, from which he appealed, was well merited. On the occasion of that visit I carefully examined the brethren present, including the noble grand of the lodge at the time of Kirkpatrick’s first trial, the chairman of the committee charged with the register of evidence, the sitting past grand who appeared on behalf of the lodge, and the brother.who defended the accused.
. . . They were unanimous in the expression that the statements concerning said trial, sworn .to by Kirkpatrick, and presented at your last session, are all infamously untrue, . . . hence the expulsion for perjury. The testimony on charges in the first case being scattered and lost, I would recommend that the petition be not entered, and that in justice to said Eagle Lodge, it be not spread upon the minutes.
“.Respectfully submitted. Geo. W. Martin.”
That by the means thereof, the plaintiff has been greatly injured in his good name and reputation, to the damage of $20,000.
We think that the publication complained of imported a libel, for which an action would lie, unless the publication was privileged under the law. The publication was clearly of a character to injure the plaintiff among his neighbors and citizens of the state, and bring “ his private character, and the plaintiff himself, into contempt and disgrace with all honest men.” (Russell v. Anthony, 21 Kas. 450; Lansing v. Carpenter, 9 Wis. 541; 1 Hill on Torts, p.237, §13.) Counsel for defendants refer to cases, that to say of a man, he has sworn falsely, is not actionable. These do not apply. Many charges, which if merely spoken of another would not sustain an action for slander, will, if printed and published, sustain an action for libel. The principal question in the case is, “whether the publication is absolutely privileged, or only conditionally privileged.” In brief, can it be said that upon the allegations of the petition no action will lie? Cooley on Torts, p. 211, classifies privileged cases as follows:
“1. Cases absolutely privileged, so that no action will lie, even though it be averred that the injurious publication was both false and malicious.
2. Cases privileged, but only to this extent: That the circumstances are held to preclude any presumption of malice, but still leave the party responsible if both falsehood and malice are affirmatively shown.”
Under the head of cases absolutely privileged are cited: The testimony of %vitnesses injudicial proceedings; the language of jurors spoken to their fellows in consultations of the jury room, concerning the proper subject-matter of their deliberations; the case of a party presenting his cause to the court or jury, or of counsel standing in his place doing the same; words spoken in the course of judicial proceedings, though they are such as impute crime to another, when applicable and pertinent to the subject of the inquiry; the speech or debate of a legislator; the official utterances of the executive of the nation and the governors of the several states; the orders of judges of courts, and judicial officers while acting within the limits of their jurisdiction; the pleadings and other papers filed by parties in the course of judicial proceedings, so long as they do not wander from what is material to libel parties; so, affidavits made for commencing proceedings before magistrates, and the preliminary proceedings, and information taken or given for bringing supposed guilty parties to justice.
Under the classification of cases only conditionally privileged, “are those in which the utterance or publication is on a lawful occasion, which fully protects it, unless the occasion has been abused to gratify malice or ill-will; a petition to the executive, or other appointing power, in favor of an applicant for an office, or a remonstrance against such an applicant, is a publication thus privileged. No action will lie for false statements contained in it, unless it be shown that it was both false and malicious; and this rule will apply to petitions, applications and remonstrances of all sorts, addressed by the citizen to any officer or official body, asking what such officer or body may lawfully grant, or remonstrating against anything which it might lawfully withhold. It is a necessary part of the right of petition that such paper, presented in good faith, should be protected, and it is privileged while being circulated,.as well as after it is presented. All official communications made by an officer in the discharge of a public duty are under the like protection; so are communications by members of corporate bodies, churches and other voluntary societies, addressed to the body, or any official thereof, and stating facts, which if true, it is proper should be thus communicated.”
Under this classification, which is fully sustained by the authorities, the publication complained of is only conditionally privileged, and as the averments in the petition are, that the injurious publication is false and malicious, and that the defendants, well knowing its falsity, maliciously published it for the purpose of bringing the plaintiff into public scandal, infamy and disgrace, the petition states a cause of action; but no recovery can be had thereon without proof of express malice on the part of the defendants, though the charge imputed in the publication be without foundation. The authorities upon cases conditionally privileged are fully collated in Shurtleff v. Stevens, 51 Vt. 501. In the publication of an unauthorized communication, where the words charged are sufficient in themselves to sustain an action for libel, the plaintiff need only prove the publication. It devolves then upon the defendant to show by evidence that the words are true, or were published under such circumstances as not to be of an injurious nature. If words in themselves are actionable, and the publication not privileged, malicious intent in publishing them is an inference of law, and therefore needs no proof. But where the circumstances of the speaking and publishing are conditionally privileged — that is, where the circumstances of such publication are such as to repel the inference of malice, and exclude any liability of the defendant, unless upon proof of actual malice, the plaintiff must furnish such proof; and this is the rule that must govei'n here. (How v. Bodman, 1 H. 528; Dial v. Holter, 6 Ohio St. 228.)
The judgment of the district court must be reversed, and the case remanded.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by W. H. Lindsay against the city of Parsons, for injuries resulting from a fall caused by an alleged defective street-crossing. The answer was a general denial. A trial was had before the court and a jury, which resulted in a verdict in favor of the plaintiff and against the defendant for $4,000. A motion was made by the defendant for a new trial upon several grounds, and was conditionally sustained upon the ground that excessive damages appeared to have-been given under the influence of passion and prejudice, but was to be overruled and the new trial refused upon the condition that the plaintiff below should consent to remit the sum of $1,000 given to him by the verdict. The plaintiff then consented to remit that amount, and the motion for a new trial was overruled, and judgment was rendered in favor of the plaintiff and against the defendant for the sum of $3,000 and costs. The defendant then.brought the case to this court for review.
The facts of the case appear to be substantially as follows: The plaintiff below, while crossing a street in the city of Parsons about midnight, stepped from a street-crossing into a gutter, which was from three to nine inches deep and three feet wide, and stumbling, fell violently forward upon the curbstone at the edge of the sidewalk beyond, and striking upon ■his knees, received the injury complained of, which was a fracture of the left knee-pan. The crossing had formerly extended over the gutter, making the surface of the sidewalk and the crossing continuous; but several weeks before the accident occurred, an abutting lot-owner had cut off the planks composing the crossing, for the purpose of putting in stone curbing and guttering, and after putting them in, left the gutter uncovered and in the condition as above stated. The condition of the crossing and of the sidewalk and gutter was known to the street commissioner and the other city officers for several weeks prior to the accident. The plaintiff below was a carpenter, and was so lamed by the injury as to be unable, down to the time of the trial, to work at his trade, but at that time was conducting a grocery business, and was able to walk about with a cane or crutch, and at times used both, and occasionally neither.
The first point made in this court by the plaintiff in error, defendant below, is that the court below permitted the defendant in error, plaintiff below, over the objections of the defendant, to introduce in evidence the opinions of several witnesses that the street-crossing where the accident occurred was unsafe and dangerous. No attempt was at any time made to show thát these witnesses were experts, or that they possessed any peculiar skill or knowledge with reference to street-crossings. They, however, had seen the street-crossing where the accident in this present case had occurred. The plaintiff in error, defendant below, claims that this testimony was incompetent, and that the court below erred in permitting it to be introduced. We think the plaintiff in error is correct. (Barnes v. The Incorporated Town of Newton, 46 Iowa, 567; The City of Chicago v. McGiven, 78 Ill. 347; Lincoln v. The Inhabitants of Barre, 59 Mass. [5 Cush.] 590; Bliss v. The Inhabitants of Wilbraham, 90 Mass. [8 Allen] 564; Ryerson v. Abington, 102 Mass. 526; Oleson v. Tolford, 37 Wis. 327; Griffin v. The Town of Willow, 43 Wis. 509; Benedict v. City of Fond du Lac, 44 Wis. 595; Hamilton v. The Des Moines Valley Railroad Company, 36 Iowa, 31; Muldowney v. Ill. Cent. Rld. Co., 36 Iowa, 463; Taylor v. The Town of Monroe, 43 Conn. 36; Monroe v. Lattin, 25 Kas. 351; 2 Thompson on Negligence, 799, et seq.)
As a general rule the opinions of witnesses are not competent evidence, although such opinions may be derived from the witnesses’ personal observation, and are sought to be given in evidence in connection with the facts on which they are based. To this rale there are some exceptions. In matters relating to skill or science, such persons as have had sufficient experience, or who are possessed of sufficient knowledge, and who are usually denominated experts, may give their opinions, whether they are personally cognizant of the facts, or not. There are also some exceptions, seemingly founded upon convenience or necessity, and relating to such matters as involve magnitudes or quantities, or portions of time, space, motion, gravitation, or value, and such as involve the condition or appearance of objects, as observed by the witness; and matters which, from their limitless details, and the infirmity of language and memory, can not well be stated by the witness, except in the form of an opinion. The present case, however, does not come within any of the exceptions, but comes within the general rule; and therefore it was error for the court to admit the evidence. Whether the crossing was safe or unsafe, depended upon very many circumstances. The crossing was evidently safe enough for an ordinary person to pass over it on a bright, cloudless, sunshiny day, while it was probably unsafe for a weak, infirm, decrepit person to pass over it on a dark, rainy, moonless, starless night, without artificial lights, and on wet, muddy, and slippery ground. Also the width and depth of the gutter, and the character of its sides as to hardness, softness, etc., must be taken into consideration. All these circumstances, however, should have been given to the jury, and then the question, whether the crossing was safe or unsafe, should have been left to the jury to determine.
The court below, in instructing the jury with reference to this evidence, said:
“These opinions are not conclusive upon you, but may be considered in connection with all the proof, and given such weight and influence as you may think they deserve in aiding you to determine whether the crossing was in fact in an unsafe or dangerous condition.”
This instruction is also erroneous.
The plaintiff in error, defendant below, also claims that the court below erred in permitting evidence to go to the jury tending to show that the plaintiff was in straightened financial circumstances; the amount of capital which he had invested in a grocery business which he was then carrying on; that he was in debt, and had borrowed money, mortgaging his homestead as security; that he was troubled in his mind concerning the future support of himself and family, and was also troubled in his mind concerning his ultimate recovery from the injuries. The plaintiff in error also claims that the court below erred in its instructions with reference to these matters. The court instructed the jury, among other things, as follows:
“Physical and mental suffering and pain, . . . and any and all circumstances developed upon this trial calculating to aid you in determining the real extent and character of the plaintiff’s injuries, are subjects for your thought and consideration in estimating and computing his damages, and for which the defendant should make him compensation, in the event your verdict is for him and against the city.”
We suppose that in all cases where the plaintiff is entitled to recover exemplary damages for injuries inflicted upon him, he may recover for physical and mental suffering, although in many cases the physical and mental suffering may be the indirect and remote consequence of the injuries he has received. We also suppose that whenever he is entitled to recover dam ages for personal injuries, he may recover for all physical and mental pain, which is the direct, immediate, necessary and proximate result of the injuries received.-
Now, does the present case fall within any of these cases? We think we must answer this question in the negative. We do not think that the present case is one in which the plaintiff is entitled to recover exemplary damages. Mr. Field, in his work on the Law of Damages, says, speaking of municipal corporations, that “they cannot as such be supposed capable of doing a criminal act or willful and malicious wrong, and therefore cannot be liable for exemplary damages.” (Field on Damages, p. 86, §80.) But for the purposes of this case, supposing that municipal corporations may sometimes be liable for exemplary damages, yet they certainly cannot be thus liable in the present case. Where exemplary damages are founded upon negligence, the negligence must be so gross as to amount to wantonness. (L. L. & G. Rld. Co. v. Rice, 10 Kas. 426; K. P. Rly. Co. v. Kessler, 18 Kas. 523; Hefley v. Baker, 19 Kas. 12; K. P. Rly. Co. v. Little, 19 Kas. 269; Wallace v. The Mayor of New York, 18 How. Pr. 169.)
Now it cannot be contended that the negligence in the present case was so gross as to amount to wantonness. Neither can it be contended that the mental pain suffered by the plaintiff was the direct, immediate, necessary and proximate result of the injuries which he received. Indeed, it can seldom happen that mental pain can result directly and proximately from an injury resulting from mere negligence; and hence it has often been said that in cases of mere negligence, without any element of fraud, malice or wantonness, damages for mental pain cannot be recovered. (2 Gr. Ev., § 267, and notes; Field on Damages, p. 498, § 630.) Neither is it competent for the defendant to show his financial or social condition. (K. P. Rly. Co. v. Pointer, 9 Kas. 620, 629; The City of Chicago v. O’Brennan, 65 Ill. 160; P. F. W. & C. Rly. Co. v. Powers, 74 Ill. 341; Stockton v. Frey, 4 Gill [Md.] 406; City of Atchison v. King, 9 Kas. 551.)
To permit the plaintiff to introduce evidence showing that he was financially embarrassed, that he was in debt, and that he had mortgaged his homestead to secure his debts, and that he was troubled in mind concerning the future support of himself and family, is virtually to impose upon the city the burden of paying his debts and mortgages, and of supporting the plaintiff and his family. This the law does not require. The law treats all persons alike, whether rich or poor, and a plaintiff cannot show that he is either rich or poor for the purpose of enhancing his damages.
The judgment of the court below will be reversed, and the cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This is an action of mandamus, brought in this court to compel E. W. Metzger, director of School District No. 24, Jefferson county, Kansas, to unite with the clerk of said district in signing and executing certain school-district bonds alleged to have been authorized by a vote of the electors of said district, at an election held for that purpose. An alternative writ has been issued from this court, and has been returned. It appears from the alternative writ, and the answer thereto, that the election was held, and that the electors of said school district voted almost unanimously for the issue of said bonds; but there was one irregularity in the vote, which the defendant claims invalidates the election. It seems that the order authorizing the election provided that those electors who should desire to vote in favor of the bonds should have written or printed on their tickets the words, “For the bonds,” and those who should desire to vote against the bonds should have written or printed on their ballots the words, “Against the bonds;” while those who in fact did vote for the bonds simply had written or printed on their ballots the words, “For bonds,” omitting the word “the,” and those who voted against the bonds, with one or two exceptions, simply had written or printed on their ballots the words, “Against bonds.”
We do not think that any such slight irregularity can invalidate the election. Generally, whenever it can be ascertained what the real will and intention of the voters are, the election is valid, however many irregularities may intervene. In this case we think the election was valid, and that the issue of the bonds was properly authorized, and that it is the duty of the defendant to unite with the other officers of the district in issuing the bonds. Upon the question of irregularities, we refer to the following authorities: The State v. Elwood, 12 Wis. 552; The State v. Cavers, 22 Iowa, 343; Cattell v. Lowry, 45 Iowa, 478; Clark v. Robinson, 88 Ill. 498; Kirk. v. Rhoads, 46 Cal. 398.
Judgment will be rendered in favor of the • plaintiff and against the defendant, and a peremptory writ of mandamus will be allowed.
All the Justices concurring. | [
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The opinion of the court was delivered by
"Valentine, J.:
This was an action brought by Matilda Dyer against Alvah Elder and P. P. Elder, on a promissory note, which reads as follows:
“Ottawa, Kansas, Sept. 5th, 1871.
“For value received, I promise to pay to Matilda Dyer, or order, of New Portland, Maine, five hundred dollars, with interest at ten per cent, per annum until paid, payable on or before one year from date. Alvah Elder,
[Revenue stamp — 10c., canceled.] P. P. Elder.” ■
The plaintiff alleged in her petition, among other things, as follows:
“The following indorsements appear on said note: ‘Received fifty dollars for interest up to Sept. 5th, 1872;’ ‘Sept. 5th, 1873, received on the within note fifty dollars;’ ‘August 11, 1874, received on the within note fifty dollars;’ ‘Sept. 5, 1875, received on the within note fifty dollars;’ ‘November 25th, 1876, received on the within note fifty dollars.’”
This was the only allegation with respect to any indorsement made in the petition. The defendant Alvah Elder confessed judgment for the amount claimed in the plaintiff’s petition. The other defendant, P. P. Elder, pleaded the statute of limitations. The plaintiff replied by filing a general denial. A trial was had before the court, without a j ury, upon these pleadings; and the court made the following finding;
“That on the 10th day of March, 1878, the defendant P. P. Elder, in writing of that date, directed to and received by the plaintiff, used the following language in reference to the note sued upon in this action, and set forth in the plaintiff’s petition, to wit: ‘Alvah [meaning the co-defendant in this case] is a queer man about his business and debts; cares but little what you say to him.’ ‘You should write him a sharp letter, and demand of him an indorser there.’ ‘ I do not want to be held longer on that note;’ from which I find that the defendant then and there acknowledged an existing liability upon said note, and is therefore now chargeable with the amount now due thereon, which I find to be $735.83, which is the only evidence of acknowledgment of an existing liability upon which is predicated the finding for the plaintiff upon that issue. And the court doth further find that the said Alvah Elder is principal on said note, and the said P. P. Elder is security for its payment.”
Upon the pleadings and this finding, the court rendered judgment in favor of the plaintiff and against the defendant P. P. Elder, for the said sum of $735.83, and costs. This judgment was rendered on May 27, 1881. The defendant P. P. Elder now brings the case to this court, claiming that the court below erred in finding that the cause of action of the plaintiff below was not barred by the statute of limitations.
The statute of limitations relied upon by the plaintiff in error, defendant below, is the first clause of §18 of the code of civil procedure, which provides for barring causes of action on written contracts, like the one sued on in this action, in five years after the cause of action has accrued. The defendant in error, plaintiff below, relies upon § 24 of the code of civil procedure as taking this case out of the said statute. Said § 24 reads as follows:
“Sec. 24. In any case founded on contract, when any part of the principal or interest shall have been paid, or an acknowledgment of an existing liability, debt or claim, or any promise to pay the same shall have been made, an action may be brought in such case within the period prescribed for the same, after such payment, acknowledgment, or promise; but such acknowledgment or promise must be in writing, signed by the party to be charged thereby.”
It does not appear from the record brought to this court, that the payments indorsed on the note jyere either alleged or proven to have been made at the time they purport to have been made, or that they were made by the defendant P.'P. Elder, or that they were in fact made at all. There is no allegation in the petition that such indorsements were placed on the note at the times of their respective dates, or at any time when it was against the interest of the plaintiff that they should be placed on the note; and there is no allegation in, the petition that they were placed on the note by the direction or with the consent of the defendant P. P. Elder. If these allegations had been made, the case would have been brought within the decision in the case of Pears v. Wilson, 23 Kas. 343; but 'instead of these allegations, the plaintiff merely alleged in effect that the indorsements appeared on the note at the time when her petition was filed in the district court. If, however, the allegations had been such as to bring this case within the case of Pears v. Wilson, then the proof would probably have brought the case within the decision in the case of Steele v. Souder, 20 Kas. 39. The plaintiff, by her allegations of indorsements of payments on the note, simply gave the benefit of the alleged payments to the defendant and reduced the amount of her judgment against the defendant; but did not take her cause of action for the balance due on the note out of the operation of the statute of limitations.
It does not appear from the record that any question was raised in the court below, and none has been raised in this court, as to the competency of evidence under the pleadings, (including the letter written by the defendant P. P. Elder to the plaintiff,) introduced to prove and claimed by the plaintiff to prove an acknowledgment of an existing liability on the note; therefore the only question presented to us for our consideration is, whether this letter will have the power and effect to take the plaintiff’s cause of action out of the operation of the statute of limitations.
The action was commenced on March 26, 1881; the defendant’s letter was dated March 10, 1878; and the material portion of his letter is as follows: “Alvah [meaning the co-defendant in this case] is a queer man about his business and debts; cares but little what you say to him.” “You should write him a sharp letter, and demand of him an indorser there,” (meaning in Maine, where the plaintiff, Mrs. Dyer, lived.) “I do not want to be held longer on that note.”
The court below found that the defendant by this letter acknowledged an existing liability upon the note sued on, and that he thereby took the case out of the statute of limitations. Said §24 of the civil code provides three ways by which an action on contract, after it has become barred as well as before, may be taken out of the operation of the statute: 1. By the payment of part of the principal or interest; 2. By an acknowledgment in writing of an existing liability, debt or claim, signed by the party to be charged; 3. By a promise of payment in writing, signed by the party to be charged. The statute does not require that all of these things shall exist before a cause of action is taken out of the operation of the •statute, but only requires that some one of them shall exist; hence, if any one of these things transpires, then the cause of .action.is taken out of the operation of the statute. The supreme court of Ohio, in the case of Bissell v. Jaudon, 16 Ohio St. 508, under a statute almost identical with ours, uses the following language:
“Much of the learning, however, displayed in the books upon this subject is of no application here; for, in the language of the learned judge who delivered the opinion in the case of Hill v. Henry, (17 Ohio, 9,) in this state, ‘ the law-making power itself has'undertaken to prescribe what acts shall have the effect to suspend the operation of the statute, or, in other words, what acts shall operate to take the case out of the statute. One of these is an acknowledgment of the debt; another is a promise to pay.”
The case of Hill v. Henry was decided in 1848, and the case of Bissell v. Jaudon was decided in 1866. The supreme court of Iowa, in the case of Penley v. Waterhouse, 3 Iowa, 420, decided, with reference to a cause of action that had 'been barred by a statute of limitations of Iowa, that “the cause of action may be revived not only by a promise to pay, but also by an acknowledgment of the debt.” In the present case, and as the case is now presented, it is not claimed that the cause of action is taken out of the operation of the statute by any payment of any part of the principal or interest; nor is it claimed that the cause of action is taken out •of the operation of the statute by any promise in writing, made and signed by the defendant; but it is claimed that the ■cause of action is taken out of the operation of the statute by virtue of an acknowledgment in writing of an existing liability on the note, signed by the defendant, the present plaintiff in •error.' And this is the only question which is now presented to us for our consideration.
Various and conflicting decisions may be foundjin the reported cases upon questions similar to this, but scarcely one of such decisions is applicable to this case. They are all founded upon statutes different from ours, or they are based ■upon theories which have no application in this state. Some ■of them are based upon the erroneous theory that statutes of limitation as to debts operate as presumptions of payment of the debts, and do not operate as statutes of repose; while in ■this state all statutes of limitation are considered as operating only as statutes of repose, and not as presumptions of payment. 'Other decisions are founded upon statutes which provide’ for taking causes of action on contract out of the operation of the •statute only by partial payment, or by a new promise. These ■decisions hold that no acknowledgment can take a case out ■of the operation of the statute, unless the acknowledgment -■amounts in law to a new promise. Of course such is not the ■law in Kansas. Many of these decisions also go to the extent •of holding that the action must be brought on the new promise, and not upon the original debt or claim. Neither is this the law in Kansas. In Kansas, all that is necessary to take a______ ■cause of action founded upon contract out of the operation of ■the statute is, that there should be an acknowledgment of “an •existing liability” on the original debt or claim; and then ■when the .action is brought, it is brought not upon the acknowledgment, nor upon any new promise, but it is brought ■upon the original debt or claim. Numerous decisions may be found holding thatthe slightest acknowledgment of liability is sufficient to take the debt or claim out of the operation of the statute; but as the most of these decisions are founded upon Ihe erroneous theory that the statute of limitations is a statute of presumption of payment, and not a statute of repose, they .are not applicable in this state. Probably more decisions of this kind can be found than decisions holding that the acknowledgment must amount to a promise of payment of the ■debt or claim. But, as we have said before, neither of these classes of decisions is applicable in this state. We must •simply look to our own statute, although we may possibly receive some light from decisions under statutes of other states, where the statutes are substantially the same as ours. The case of Hanson v. Towle, 19 Kas. 273, decided in our own state, and referred to by counsel, does not control the decision in this case; and we know of no case that does. Our statute,, to revive a debt or claim, requires only “acknowledgment of an existing liability” on the particular claim in controversy, and this acknowledgment may be in any language which the party making it desires to use. No set phrase or particular form of language is required;! anything that will indicate that the party making the acknowledgment admits that he is still liable on the claim, that he is still bound for its satisfaction, that he is still held for its liquidation and payment, is sufficient to revive the debt or claim; and there is no necessity that there should also be a promise to pay the same, either express or implied. ) Of course we know that an acknowledgment of an existing liability on an honest debt or claim-generally raises an implied promise or contract to pay the-same; but whether it does or not, is not a question to be considered in this state. The statute says nothing about an implied contract or promise, and the action, if revived at all, is-not to be brought on the implied contract or promise, but only on the original liability. In the present case the defendant P. P. Elder admitted the execution and existence of. the promissory note sued on;, he admitted that it was honest and just in its inception and creation;, he admitted that it was not paid at the time he wrote the letter to the plaintiff, and he wrote the letter to get an indorser on the note;. or, in other words, to obtain another surety for the debt, and have himself released, as he in fact was only a surety; and then he says, “ I do not want to be held longer on that note.” Now, taking the entire language of the letter and construing it all together, is it not equivalent to saying, “I am now held on the note, but I do not wish to be held any longer than it will be necessary for you to obtain a new surety on the debt?” He did not say that he was not liable on the note. He did not refrain from saying anything about his liability — that is, he was not merely silent with reference to his liability;. and then did he not in fact say, although not in the most direct form, that hi» liability still continued? And if he did say this, it would seem to be all that was necessary to revive the debt.
We think the decision of the court below is correct, and therefore its judgment will be affirmed.
Horton, C. J., concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
Originally the plaintiffs brought suit before a justice of the peace of Harvey county, against the defendants, on a promissory note, in which suit the plaintiffs recovered judgment. Execution was thereupon issued, and, being returned unsatisfied, the plaintiffs filed an affidavit under § 155 of the justices’ code, for garnishee process against the Atchison, Topeka & Santa Eé railroad company, which company, being duly notified, appeared before the justice of the peace and answered that it was indebted to the defendant Leroy Cooper in the sum of $60.75 for personal services rendered by him in December, 1880, and that the same was then due. Thereupon the defendant Leroy Cooper moved the court, under § 157 of the justices’ code, to discharge the garnishee and release the money garnished, which motion was sustained by the court and the garnishee was discharged. The plaintiffs then brought the present action before another justice of the peace upon the judgment above mentioned, and at the same time filed an affidavit, under § 1, ch. 163 of the Laws of 1872, (Comp. Laws 1879, p. 711,) for a garnishee summons against the Atchison, Topeka & Santa Fé rail road company, which summons was duly issued and served, and the railroad company answered that it was indebted to the defendant Leroy Cooper in the sum of $87.75, as fol-lows: $63 for personal services rendered in December, 1880, and $24.75 for personal services rendered in January, 1881. The defendant Leroy Cooper then moved the court, under §157 of the justices’ code, to dismiss the garnishee proceedings and to discharge the moneys garnished, which motion was supported by several affidavits to the effect that the defendant Leroy Cooper was the head of a family, consisting of an aged mother and a sister, and that the moneys garnished were his personal earnings for labor performed, and were necessary for the maintenance and support of his family. This motion came on for hearing at the trial of the cause. The plaintiffs insisted that the motion to discharge the garnishee should be heard and disposed of before proceeding with the trial of the action. To this the defendant objected, and the court sustained the objection and proceeded with the trial of the cause; and after giving judgment for the plaintiffs on the plaintiffs’ former judgment, the motion was heard and sustained by the court as to so much of the money as had been previously garnished in the former action, to wit, $60.75, and was overruled as to the remainder, to wit, $27, which sum was ordered to be paid into court — to all of which rulings adverse to the plaintiffs, the plaintiffs duly excepted, and to reverse the same, filed their petition in error in the district court of Harvey county, in which court, after a hearing of the case, the judgment and rulings of the justice of the peace were affirmed, and the plaintiffs, to reverse the decision and judgment of the district court, now bring the case to this court for review.
Of course, the only rulings of the district court and of the justice of the peace which the plaintiffs wish to have reviewed and reversed are those relating to the said sum of $60.75, which was garnished in the first action before the first-mentioned justice of the peace.. As to all the other rulings, the plaintiffs have no cause for complaint, and do not complain.
The plaintiffs raise two questions in this court: First, they claim that the mother and sister of the defendant Leroy Cooper do not constitute a family within the meaning of said § 157; second, they claim that although the defendant’s wages might be exempt from an execution, yet that they are not exempt from attachment or garnishment.
The defendant Leroy Cooper also raises a question in this court; he claims that the decision of the justice first mentioned, in. the action first brought by the plaintiffs, is res adjudicates, and therefore that the question whether said sum of $60.75 was exempt or not from attachment or garnishment, could not be again heard or determined by any other court.
We shall consider.these questions in their order:
I. The plaintiffs claim that the defendant’s mother and sister do not constitute a family within the meaning of § 157 of the justices’ code. We think they do. His mother was a widow, aged sixty-two years; his sister was unmarried, and they all lived together as one family, the defendant being the head thereof, and principally by his own personal earnings and services supported the family, and such earnings and services were necessary for their support. It is provided by statute in this state that, “ The phrase * head of a family’ shall include any person who has charge of children, relatives or others living with such person.” (Comp. Laws of 1879, p. 920. See also Thompson on Homesteads, §§ 55-60.)
II. The next question is, whether the defendant’s personal services or earnings are exempt from attachment or garnishment under the circumstances of this case. This is a very difficult question; one upon which the district courts of the state have differed, and one upon which the bar of the state have also differed. It seems that the statutes do not anywhere in express terms create such an exemption; and yet, upon examination of the various sections of the statutes having reference to this subject, it will be seen that the law-making power evidently intended that such an exemption should exist. The law-making power seems to favor laborers, or persons who earn their livelihood by their own personal exertions. Under § 6 of the exemption law, no personal property is exempt from laborers’ wages. (Comp. Laws 1879, p.438.) Under § 490 of the civil code, which relates to proceedings in aid of execution, three months’ personal services of a laborer, if necessary for his family, are wholly exempt, and the supreme court of Ohio have construed a similar provision in the civil code of that state to exempt such personal services from proceedings in attachment, as well as from proceedings in aid of execution. (Snook v. Snetzer, 25 Ohio St. 516.) And § 157 of the justices’ code exempts such personal services from execution. If such personal services are not exempt from attachment and garnishment, it is a clear case of oversight and unintentional omission on the part of the legislature. Unquestionably the legislature intended that such personal services should be exempt. And whether they are exempt or not, we shall now proceed to more minutely consider.
The garnishment proceedings in this case were brought under chapter 163 of the Laws of 1872. (Comp. Laws 1879, p. 711.) The first section of that chapter provides for issuing a summons in garnishment, and this section corresponds with § 37 of the justices’ code. It also provides that the garnishment lien shall attach at the time of the service of the summons, and in this respect it corresponds with § 51 of the justices’ code. Section 2 of said chapter provides for the service of the summons, etc. Section 3 of said chapter reads as follows:
• “Sec. 3. The garnishee shall appear before the justice in accordance with the commands of said summons, and the same proceedings shall thereafter be had in case of the appearance or default of said garnishee, as nearly as may be, and with like effect as in proceedings against a garnishee in attachment before justices of the peace.”
There sere no other provisions in said chapter prescribing the procedure in garnishment proceedings; but we are referred by § 3, above quoted, to garnishment proceedings under the justices’ code. These proceedings are provided for and prescribed by §§ 39 to 54 of the justices’ code.
Section 47 is the only one which we need refer to in this connection. It reads as follows:
“Sec. 47. If judgment be rendered for the plaintiff, it shall be satisfied as follows: So much of the property remaining in the hands of the officers, after applying the moneys arising from the sale of perishable property, and so much of the personal property, if any, as may be necessary to satisfy the judgment, shall be sold by order of the justice under the same restrictions and regulations as if the same had been levied on by execution; and the money arising therefrom, with the amount which may be recovered from the garnishee, shall be applied to satisfy the judgment and costs. If there be not enough to satisfy the same, the judgment shall stand, and execution may issue thereon for the residue, in all respects as in other cases. Any surplus of the attached property, or its proceeds, shall be returned to the defendant.”
It appears from this section that all personal property which has come into the officer’s hands, by virtue of attachment or garnishment proceedings, is to be sold under the same restrictions and regulations as if the same had been levied on by execution; and evidently all moneys obtained by virtue of attachment or garnishment should be applied in the same manner, as far as possible, as though they had been obtained by virtue of an execution. The section, however, does not expressly state this, but we think it means this by fair implication. Neither an attachment process nor a garnishment process issued before judgment is a final process. They are only processes issued at the beginning or during the pendency of the case, to aid in satisfying the final process, which is ordinarily the execution. It is always the execution, or an order of the court, which answers the purpose, and is in substance the execution. These original or mesne processes are resorted to only for the purpose of obtaining something which can be made available by means of the final process, which is the execution. They are simply forerunners of the execution, and something to aid and assist the execution, and inferentially can go no further in seizing property than the execution can go; hence we are referred by §47 to the execution, expressly with reference to tangible property and impliedly with reference to intangible property held by virtue of attachment or garnishment proceedings; and §157 of the justices’ code provides what of the personal earnings of the defendant shall be exempt when an execution is issued against him. This section reads as follows:
“Sec. 157. The earnings of the debtor for his personal services, at any time within three months next preceding the issuing of an execution, cannot be applied to the payment of his debts, when it is made to appear, by the debtor’s affidavit, or otherwise, that such earnings are necessary for the maintainance of a family supported wholly or partly by his labor.”
This section says nothing of exemptions, except an exemption from execution; but of course it is well known that the personal earnings of a debtor cannot be taken directly by execution. No execution can be levied directly upon the personal earnings due from some other person to the debtor. These must of course be obtained by attachment or garnishment. It would seem from the situation in which this section is placed that it refers only to garnishment proceedings after judgment; but as all garnishment proceedings must look either forward or backward to an execution, it would seem fair to say that the section applies to all property held by garnishment proceedings, whether the garnishment proceedings were instituted before or after judgment. This section really corresponds with § 490 of the civil code, and is intended more directly to relate to garnishment proceedings after judgment and in aid of execution; but as we have said before, we think it may be extended so as to relate to all garnishment proceedings. This is the view entertained by the supreme court of Ohio in construing the code of Ohio. Section 467 of the civil code of Ohio is almost identical with § 490 of the civil code of Kansas, and under that section the supreme court of Ohio holds that the clause which reads: “ But the earnings of the debtor for his personal services, at any time within three months next preceding the order, cannot be so applied, when it is made to appear by the debtor’s affidavit, or otherwise, that such earnings are necessary for the use of a family supported wholly or partly by his labor,” is an' exemption of the per sonal earnings of the debtor for three months next preceding process, and that they cannot be taken in attachment proceedings any more than they can be taken in proceedings in aid of execution. In effect, the supreme court of Ohio holds that this provision is not merely a limitation upon proceedings in aid of execution, but that it is really an exemption of personal property to the debtor, and if the decision in Ohio is correct, then it follows that the personal services or earnings of the present defendant Leroy Cooper for the three months next preceding the issuing of the process, so far as they are necessary for the support of his family, (and they are all necessary in the present case,) are exempt from attachment and garnishment, as well as from execution, and that the decision of both of the justices of the peace with regard to said |60.75, is correct; and also, that the decision of the district court with reference thereto is also correct.
Any other construction of §157 of the justices’code and § 490 of the civil code, would virtually nullify them. The present case is a fair illustration of the truth of this proposition. Construing the statute as the plaintiffs in this case construe it, it would lead to this: If a creditor cannot obtain the personal wages of his debtor on an execution, or by virtue of garnishment proceedings after judgment, he may commence a new action on the judgment and obtain such wages by means of garnishment proceedings, before the second judgment; and if all the wages of the debtor do not in the first instance satisfy the creditor’s claim, he may continue to commence new actions upon each succeeding judgment, (all the judgments being in fact rendered for the collection of the same original claim,) until his claim is finally satisfied, and taking all the wages of the debtor continuously as fast as the debtor earns them — and perhaps for months or years. This is certainly not what was intended by the legislature. It is not necessary under chapter 163 of the Laws of 1872, that the debtor should have committed any fraud or should have been guilty of any wroñg, or that he should be a non-resident of the county or state, in order to enable the creditor to obtain a garnishment summons. All that is necessary is, that the debtor should be poor and unable to pay his debts; or, in the language of the statute, “that the plaintiff [the creditor] has good reason to and does believe that he will lose the same [his claim] unless a garnishee summons issue.” As we have stated before, we think that said chapter 163 was unquestionably intended only to reach property which is not exempt from execution.
We think there can be no question as to the validity of said §157 of the justices’ code and §490 of the civil code, with the construction we have placed upon them; and with the construction that we have placed upon these sections and upon chapter 163 of the Laws of 1872, we think it is not necessary to discuss the further question suggested by the defendant.
The judgment of the court below will be affirmed.
Horton, C. J., concurring.
Brewer, J., dissenting. | [
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Per Qwriam:
There is in this case but a single disputed question of fact, and upon that the findings of the jury are conclusive.
The judgment is affirmed, on the authority of Abeles v. Cohen, 8 Kas. 180; Williams v. Townsend, 15 Kas. 564; and K. P. Rly. Co. v. Kunkel, 17 Kas. 145. | [
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The opinion of the court was delivered by
Brewer, J.:
This was an action on a druggists’ bond, given under chapter 128, Laws of 1881. The petition sets out the giving of the bond, attaches a copy thereof, and alleges a breach of the bond in a violation by the principal of the requirements of said chapter 128. To this petition a demurrer was sustained, and from this ruling the state brings error.
But a single question is presented, and that is, whether a conviction of the principal is an essential prerequisite to an action on such bond. The district court held that it is, and therefore sustained the demurrer. Section 2 of said chapter 128, after providing for the filing of a petition for and issue to a druggist of a permit: reads: “He shall also file with such petition a good and sufficient bond to the state of Kansas, in the sum of twenty-five hundred dollars, conditioned that such applicant will neither use, sell, barter, nor give away any of the liquors mentioned in section 1 of this act, in violation of any of the provisions of this act; and on such violation, said bond shall thereby become forfeited.” This language controls this question, and compels a reversal of the decision of the district court.
The bond is forfeited by a violation of the statute, and not upon a conviction for such violation; so reads the letter of the section. Sections 9 and 13 provide for the effect of a conviction. The former provides that a druggist shall forfeit his permit as well as be fined or imprisoned, in case of conviction; so that the legislature, in separate sections, has provided for the effect of a conviction, as well as that of an unconvicted violation of the law. Of course this is simply a question of statutory construction, for that the legislature can prescribe the conditions upon which any official or quasi official bond may be forfeited, is undoubted. Here it is provided that upon a violation of the law, a breach of the trust reposed in him, the druggists' bond shall be forfeited. Nowhere is it in terms or by implication prescribed that the principal must be found guilty in a criminal prosecution before any civil liability attaches to the obligors on the bond. This bond is a civil contract, like other official bonds or quasi official bonds of those holding public offices or discharging public duties. No question is now before us as to the mat ter of damages, or the proper amount of recovery, or as to the quantity of evidence necessary to sustain this action, or whether the petition would be sufficient as against a motion to make more specific and definite. The district court held that no action could be maintained until a conviction of the principal. We hold the reverse, and that an action can be maintained on such a bond without any conviction of the principal. As is well said by counsel for plaintiff in error, this bond is a contract between the defendants and the state, and is to be construed by the ordinary principles governing such civil contracts. The death of the principal, his escape from the state, the running of the criminal without that of the civil statute of limitations, do not prevent a civil action on this bond. If a county treasurer embezzles county funds in his care, he may be punished criminally; but whether he be or not so punished, he and the sureties on his official bond are liable to a civil action brought at any time within five years of his embezzlement; and the same is true of any other official or quasi official bond, no matter whether criminal liability be ever enforced, or not. Upon a breach of his bond, a civil liability attached to him and his sureties.
The district court erred in its ruling, and its judgment must therefore be reversed, and the case remanded with instructions to overrule the demurrer.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This action was originally commenced in the probate court of Cowley county, by William Case against J. L. Huey, administrator of the estate of Albert Chamberlain, deceased, on a judgment rendered by a justice of the peace in Wisconsin in favor of the plaintiff, William Case, and against the said Albert Chamberlain, in his lifetime. While the action was pending in the probate court, the plaintiff gave notice to the administrator, under §§346, 347 and 352 of the civil code, that he would take depositions of sundry witnesses in the state of Wisconsin, and depositions were taken in accordance with the notice, but without the consent and in the absence of the administrator. On the hearing of the case in the probate court, the probate court decided against the plaintiff and in favor of the defendant, and the plaintiff appealed to the district court. In the district court the defendant moved to suppress the depositions upon various grounds, among which was that the administrator never gave his consent in writing that such depositions should be taken. The district court sustained the motion, and suppressed the depositions. Afterward the case was tried by the court without a jury, and on the trial the plaintiff offered to introduce, among other evidence, a certified transcript of the iudgment rendered by the justice of the peace in Wisconsin, but the defendant objected upon the ground that the same was incompetent, and the court sustained the objection, and the evidence was excluded. Afterward judgment was rendered in the district court in favor of the defendant, and against the plaintiff; and the plaintiff now brings the case to this court.
The principal grounds alleged for errror are, the suppressing of said depositions, and the exclusion of said transcript as evidence. We will consider these alleged errors in their order:
I. We think the court below ruled correctly in suppressing said depositions; for they were taken while the case was pending in the probate court, and not only without the consent of the administrator in writing, but against his consent and in his absence. They were therefore taken without authority of law, and were really no better than ex parte affidavits. The hearing of a case in the probate court is informal and summary, and nothing is allowed to intervene to swell the costs that can conveniently be avoided. Sections 94 and 95 of the executors’ and administrators’ act read as follows:
“Sec. 94. The probate court shall hear and determine all demands in a summary way, without the form of pleading, and shall take the evidence of competent witnesses, or other legal evidence.
“Sec. 95. Any person may take depositions in support of his demand, at his own expense, if he first procure the written consent of the executor or administrator; and such depositions may be taken in the ordinary manner, at such time and place' as may be agreed upon, and read in evidence in support of such demand.”
If the plaintiff can prove his claim in the probate court without the aid of depositions, or if his claim is admitted, he does not need tp take depositions; but if he cannot prove his claim without the aid of depositions, and the administrator will not admit -the claim, nor consent in writing that depositions may be taken, then the plaintiff, after his claim has been disallowed in the probate court, must take an appeal to the district court, where he can take depositions under §§ 346-362 of the civil code. In the present case the depositions were not taken in accordance with law, and therefore it was right that they were suppressed. These depositions were in law merely ex parte affidavits.
II. The plaihtiff claims that the court below erred in excluding the transcript of the judgment rendered by the justice of the peace in Wisconsin, and refusing to permit it to be introduced in evidence. This judgment was rendered by Charles N. Holden, a justice of the peace of Juneau co'unty, Wisconsin, and the transcript thereof was duly certified by the justice; and the justice further certified:
“And I further certify that said judgment was rendered in accordance with the laws of the state of Wisconsin, and that no part of said judgment has been paid, and that I am the sole custodian of the records of' my office as such justice of the peace. And that I have no official seal and have no clerk, and that this certificate is in due form of law.”
Also attached to said transcript was a certificate of the clerk of the circuit court of Juneau county, Wisconsin, certifying to the official character of the justice, to the genuineness of his signature, and substantially to the same matters set forth in the certificate of the justice, as above quoted, except that he says nothing with respeet-to the payment of the judgment. This certificate of the clerk is attested by the seal of the court. Also attached to said transcript is a certificate of the judge of the circuit court of said Juneau county, certifying to the official character of the clerk, the genuineness of his signature and of the seal, and that the certificate and attestation are in due form and entitled to full faith and credit. Also attached to said transcript is the following certificate of the secretary of state of Wisconsin, attested by the great seal of the state, which certificate reads as follows:
“State op Wisconsin, ss. — I, Hans B. Warner,secretary of state in and for the state of Wisconsin, do hereby certify that Honorable Alva Stewart and E. D.Wightman, whose names are subscribed to the foregoing certificate, were at the date thereof, and are now, respectively the judge and clerk of the circuit court in and for Juneau county, Wisconsin, and that their signatures to said certificate are genuine, and that the seal of said court affixed to the certificate of said clerk is the genuine seal of said court. I further certify that Charles N. Holden, Esq., whose name is subscribed to the first one of the foregoing certificates, and before whom the foregoing judgment was rendered, was at the date of the issuance of the summons in said suit and the rendition of said judgment a justice of the peace in and for said county of Juneau, state of Wisconsin, duly elected and qualified, and was such justice of the peace at the date of the said certificate, and his official acts as such justice of the peace were and are entitled to full faith and credit. At the date of the issuance of said summons and the rendition of said judgment, said justices’ court in and for said county of Juneau, state of Wisconsin, presided over by said justice of the peace, Charles N. Holden, Esq., was duly constituted, and the general nature of its jurisdiction was and is as follows: To hear, try and determine actions arising or growing out of contracts express or implied, wherein the debt or balance due or damages claimed shall not exceed two hundred dollars, including actions founded on an account, when the amount of the account proven to the satisfaction of the justice shall not exceed five hundred dollars, and when the same shall be reduced by credits or payments indorsed to an amount not exceeding two hundred dollars; and that I am the officer who has the custody of the principal seal of the said state of Wisconsin.
“In testimony whereof, I have hereunto set my hand and affixed the great seal of the state, at the eapitol, in the city of Madison, this twelfth day of August, A. D. 1880.
[l. s.] Hans B. Warner,
Secretary of State.”
Should this transcript have been admitted in evidence in the district court? That a judgment of a justice of the peace of a sister state is a sufficient foundation upon which to base an action, is so well settled by adjudications and by general consent, that we do not think that the proposition requires any discussion or any citation of authority to uphold it, but the defendant claims that the judgment rendered in Wisconsin has never been revived as against the administrator, and therefore that it is wholly inoperative and void as a cause of action. This cannot be true. It is not necessary to revive a judgment in such cases in order to found an action upon it. It would not be necessary, even if the judgment were rendered by a justice of the peace in Kansas. (Scroggs v. Tutt, 23 Kas. 181, 189, 190.) It follows, therefore, that the claim of the plaintiff is a valid one, provided it is true, and that it presents a sufficient foundation upon which to base all the proceedings had in both the probate court and in the district court. The only question then to be considered by this court is, whether said transcript, certified as it was, was competent evidence in the district court, tending to prove the plaintiff’s claim. We think it was. That judgments of justices of the peace are included in the provisions of § 1, article 4, of the constitution of the United States, we think is universally conceded; but whether they are contained in the provisions of the act of congress (§905 of the judiciary act, U. S. R. S., p. 170) prescribing the mode of authentication and proof of judicial records and proceedings, is disputed. The courts in some of the states hold that they are not, while the courts in Connecticut, Vermont and Kentucky hold that they are: Bissell v. Edwards, 5 Day (Conn.), 363, 366; Brown v. Edson, 23 Vt. 435, 447, 448; Scott v. Cleveland, 3 T. B. Mon. (Ky.) 62. Also in this connection, see the following authorities: Belton v. Fisher, 44 Ill. 33; Martin v. Wells, 43 Vt. 428; Lawrence v. Gaultney, Cheves (S. C.), 7; Draggoo v. Graham, 9 Ind. 212.
If judgments of justices of the peace are included within said act of congress, then the judgment of the justice of the peace of Wisconsin, offered in evidence in this case, was undoubtedly sufficiently authenticated, and was entitled to be introduced in evidence. We shall not express any opinion upon this question, however, as we think the transcript should have been admitted in evidence under our own statutes. Section 377 of the civil code provides that “copies of proceedings before justices of the peace, certified by the justice before whom the. proceedings are had, shall be evidence of such proceedings,” but we think this section has application only to domestic judgments — only to judgments rendered in the state of Kansas. There is another section, however, of the civil code which we think applies to this case, and which reads as follows:
“ Sec. 371. Copies of records and proceedings in the courts of a foreign country may be admitted in evidence, upon being authenticated as follows: First, by the official attestation of the clerk or officers in whose custody such records are legally kept; and, second, by the certificate of one of the judges or magistrates of such court that the person so attesting is the clerk or officer legally intrusted with the custody of such records, and that the signature to his attestation is genuine; and, third, by the official certificate of the officer who has the custody of the principal seal of the government under whose authority the court is held, attested by said seal, stating that such court is duly constituted, specifying the general nature of its jurisdiction, and verifying the seal of the court.” (Comp. Laws of 1879, p. 650.)
Now if neither the act of congress providing for the authentication of judicial records and proceedings, nor §377 of the civil code, applies to the authentication of records made by justices of the peace in sister states, then § 371 of our civil code must apply; for otherwise we would have no mode of proving records of justices of the peace of sister states, except the old common-law mode; and just what that mode is, is not very well settled or defined. 'We think that said § 371 of the civil code is applicable; that the same person may be the judge and the clerk of the same court, and may certify its proceedings in each capacity, we think has been settled beyond controversy. (Bissell v. Edwards, 5 Day [Conn.], 363-366; The State of Ohio v. Hinchman, 27 Pa. 479; Sally v. Gunter, 13 Rich. [S. C.] 72; Low v. Burrows, 12 Cal. 181, 188; Catlin v. Underhill, 4 McLean, 199.) If the justice of the peace could certify both as j udge and clerk — and we think he could — then his certificate in the present case complies with § 371 of the civil code in every respect; and the certificate of the secretary of state undoubtedly fulfills every requirement of the section.
We think the transcript of said judgment was erroneously excluded; and therefore, for this error, the judgment of the court below will be reversed, and cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
This was an action by the plaintiff in error against the defendant in error, to enjoin the latter, as trustee of Superior township, of Osage county, from entering upon the premises of the former to open a supposed highway for the public. Upon the trial, it was admitted and agreed by the parties that the defendant, at the time of filing the petition, was the trustee of Superior township, and as such trustee had ordered one D. M. Clemmer, as the .agent of plaintiff for the premises in controversy, to open a highway, which defendant claimed ran through and across the premises of plaintiff, and which plaintiff had wholly inclosed; that plaintiff was, at the commencement of the action, the owner of the real estate over which the road was alleged to exist; that the disputed highway had been authorized by ch. 103 of the Laws of Kansas of 1866, being an act entitled “An act to establish certain state roads,” approved February 27,1866, and was the seventeenth of the highways provided for in said act; that it had been located by the commissioners named in the act to lay out the state roads, and was a legally-established state road, provided the act was a valid one, and not in conflict with the constitution of the state of Kansas, and provided further, that a legal and valid state road and public highway could be laid out aud established under and by virtue of the provisions of said act alone. In addition, the witness, I). M. Clemmer, testified that the real estate over which the state road was claimed to be laid out and established was, at the time the defendant, as trustee, ordered him to open the highway, inclosed, fenced, and under cultivation, and was so inclosed and under cultivation at the time of the trial; that he was then the plaintiff’s agent; that, to open the highway, the fence of plaintiff would have to be taken down, and the crops thereon would be left exposed without protection, unless they were re-inclosed with other fences on each side of the alleged state road; that, before the commencement of this action, the defendant, as trustee, had ordered him, as agent of the plaintiff, to open the road as a state road, and said to him that, “If he (Clemmer) did not open the alleged state road, that he (defendant) would have it done; ” that the witness had not opened, or allowed the road to be opened, and had commenced this action to ascertain whether any such road was a legally-established highway, and if not a highway, to prevent the opening of the same as a highway. No other evidence was submitted. The district court thereupon decided that the alleged state road was a legally-established highway, and that the temporary injunction heretofore granted should be dissolved. Judgment was entered in favor of the defendant. All of this was erroneous. Under the facts alleged in the petition, and sustained upon the trial, the plaintiff was entitled to an injunction to restrain the defendant from further interference with his rights. Chapter 103, p. 224, Laws of 1866, made no provision for compensation to the persons through whose premises the roads therein mentioned were to be located and established, and therefore the road therein provided for over the premises of plaintiff could not be established and opened without the consent of the plaintiff, in the absence of compensation paid or tendered, and in the absence of any provision for the land-owner to obtain compensation. The plaintiff has never been divested either of the title or right of posses sion of his land by any valid proceeding under that act or any other. It has never consented to the opening of any road upon the premises, and has never been paid or tendered any compensation for the land sought to be taken, nor has any proceeding been had toward determining the compensation to which it would be entitled. (Oliphant v. Comm’rs of Atchison Co., 18 Kas. 386, 396; Eidemiller v. Wyandotte City, 2 Dill. 376.) If provision had been made in ch. 103, Laws 1866, by which land-owners could obtain compensation, even though such compensation was not to be paid until after the actual appropriation of the right of way, the authorities seem to hold such a law valid; but where there is no remedy in the law to which the land-owners can resort of their own motion for compensation, such a law is void. (Cooley Const. Lim., 3d ed., §§ 560, 561, and notes thereto.)
Counsel for defendant refer us to § 7, ch. 110, Laws of 1864, and suggest that this act provides for compensation for the right of way of state roads, and that the act of 1866 is simply supplemental thereto, and is to be construed therewith. Unfortunately for this suggestion, §7 of the act of ch. 110 of the Laws of 1864 only provides for compensation for the roads specifically mentioned in that act. Compensation is limited to the rights of way for those roads only, and therefore has no application to the subsequent act of 1866. The other statutes to which we are referred by counsel for defendant in no way strengthen, qualify or extend the provisions of the act of 1866.
The judgment of the district court must be reversed, and the case remanded.
All the. Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This is an action of ejectment, brought by J. G. Farlin against H. S. Sook, to recover the northeast quarter and the northeast quarter of the southeast quarter of section thirty (30) in township eighteen (18) of range eight (8), in Chase county, Kansas. Charles Ahrendt was the original owner of the property, and both parties claim under him. The plaintiff claims by virtue of a sheriff’s deed, executed May 24, 1878, in an action in which J. G. Farlin was the plaintiff and Charles Ahrendt was the defendant. The plaintiff, however, claims that his title related back to June 21, 1877, when the property was attached in said action. The defendant claims under a warranty deed from Caroline Schutt and her husband to himself, executed January 15, 1879, and a warranty deed from said Charles Ahrendt to Caroline Schutt, executed May 3,1877, and recorded May 11,1877. The case was tried before the court and a jury, and judgment was rendered. in favor of the defendant and against the plaintiff, and the plaintiff now brings the case to this court for review upon a case-made for the supreme court. The defendant moves to dismiss the case from this court, upon the ground that the case was not made for this court within the time prescribed by the court below. The court below rendered judgment in this case on January 11,1881, and gave the plaintiff sixty days within which to make a case for the supreme court, and to serve it upon the opposite party, and also at the same time ordered that the defendant should have twenty days after service within which to suggest amendments, and also ordered that the case should be settled within thirty days after the amendments were suggested. The plaintiff, by his attorney, E. W. Cunningham, made a case for the supreme court, and served the same upon the defendant, H. S. Sook, on March 11,1881, and took from the defendant the following written acknowledgment of service, to wit:
“Cottonwood Earls, Kansas, March 11, 1881.
“This is to certify that E. W. Cunningham, of the firm of Cunningham & McCarty, this day served on me the case-made in the case of J. G. Earlin v. H. S.. Book, tried in the Chase county district court, in January, 1881, and kept the same to deliver to J. G. Waters, of Topeka, within ten days.
“H. S. Sook.”
This acknowledgment of service was not written on or attached to the case-made, but was written on a separate piece of paper, and retained by Cunningham. The defendant claims that the plaintiff’s attorney also agreed to inform the defendant’s attorney, J. G. Waters, of the said service made •on the said defendant; but the plaintiff’s attorney claims that nothing was agreed to further than is shown in the written acknowledgment of service. On March 15, the plaintiff’s attorney, E. W. Cunningham, served the case on J. G. Waters, and asked Waters to accept such service, which Waters agreed to do. Cunningham then wrote the following words on the case-made, and signed the same, to wit: “ This case-made is this 15th day of March, 1881, served upon the defendant’s attorney, J. G. Waters. — Cunningham & McCarty.”
And Waters then wrote thereunder the following acknowledgment of service, and signed the same, to wit: “Eeceived the above pretended case-made this 15th day of March, 1881.— J. G. Waters, Attorney for Defendant. No amendments to suggest. — J. G. Waters, Attorney for Defendant.”
The time for making and serving the case had expired on March 12,1881, and as this service of the case on Waters was made on March 15,1881, Waters believed that the case-made was a nullity, and told Cunningham so, and told him that for that reason he had no amendments to suggest. Cunningham did not tell Waters that he had served the case on the defendant, Sook, and Waters had no knowledge of the same. The case was then settled and signed by the court, on March 19, 1881.
As the case was not served on the defendant until March 11, 1881, the defendant had a right under the order of the court, if he had claimed it, to suggest amendments at any time within twenty days thereafter, or up to March 31, 1881; but the defendant’s attorney, believing that the case-made by the plaintiff was not served in time, and was therefore a nullity, did not think it necessary to suggest any amendments, and did not make any objections to having the case settled, signed and authenticated on March 19, 1881. This want of knowledge on the part of the defendant’s attorney enabled the plantiff to have his case settled, signed and authenticated without any amendments being made thereto, and to have it so settled, signed and authenticated many days sooner than it could have been settled, signed and authenticated if the defendant’s attorney had taken his full twenty days within which to suggest amendments.
The case as it was brought to this court appears on its face to be a nullity. There is nothing appearing in the case showing that it had been served upon the defendant within the time prescribed by the court below; but on the hearing of the motion to dismiss the case, the plaintiff introduced the written acknowledgment of service signed by the defendant, H. S. Sook. From this written acknowledgment, it appears that service was made upon the defendant within the time prescribed by the court below; but the defendant, by his attorney, J. G. Waters, claims that the case ought, nevertheless, to be dismissed on the ground that the plaintiff’s attorney wrongfully misled the defendant’s attorney, causing him, the defendant’s attorney, by his, the plaintiff’s attorney’s acts, to believe that the case had not been served in time, and misleading him, the defendant’s attorney, to the extent that the defendant’s attorney made no suggestions of amendments to the case, and made no objections to the settling and signing of the case, but allowed the case to be settled and signed many days before it could otherwise have been settled and signed. He claims that the plaintiff, through his attorney, committed a fraud upon the defendant, to the defendant’s prejudice. He claims that the plaintiff’s attorney violated his agreement with the defendant by not informing the defendant’s attorney that the case had been served upon the defendant. The plaintiff’s attorney, however, claims that if he was guilty of any bad faith in not informing the defendant’s attorney of the service of said ease upon the defendant, that the plaintiff cannot be held responsible therefor;; that if he agreed with the defendant to hand the case-made to the defendant’s attorney, and to inform him that service-of the same had been made upon the defendant, that he-agreed to do the same merely as the agent of the defendant, and' not as the agent of the plaintiff; and therefore that if he acted in bad faith, it was the bad faith of the agent of the defendant, and not the bad faith of the agent of the plaintiff. This may relieve the plaintiff himself from any imputation of misconduct, but we hardly think it places his attorney in an enviable situation. Indeed, in whatever aspect we may view the conduct of the plaintiff’s attorney, we hardly think it can be considered as commendable. Such conduct is rare, and very rare among legal gentlemen who take pride in their profession.
We have examined the case made and brought to this court, and treating it as valid, we do not think it will require any final judgment to be rendered in favor of the plaintiff, but at most will require only a reversal of the judgment below, and a new trial. We have, therefore, under all the circumstances, concluded to overrule the defendant’s motion, and to treat the case brought to this court by the plaintiff as valid.
We shall now proceed to consider the case as brought to this court. The first question raised by the plaintiff in error is with regard to the supposed homestead rights of Charles Ahrendt. It seems from the case now before us that the defendant claimed that a portion of the property in controversy was occupied as a homestead by Charles Ahrendt from a time anterior to the time when the deed was made from Charles Ahrendt to Caroline Schutt, from a time anterior to the time of the levying of the plaintiff’s attachment, continuously down'to a time subsequent to the time when the property was conveyed to the defendant Sook, and therefore that the plaintiff could not have obtained any interest in the property by virtue of his attachment, or judgment; or sheriff’s sale, or sheriff’s deed; nor could the said Charles Ahrendt have been guilty of any fraud or wrong-doing as toward his creditors by conveying the property to Caroline Schutt. The question whether Ahrendt did occupy the property as a homestead, as is claimed' by the defendant, is a very important question for if he did, the judgment of the court below is undoubtedly correct, and the decision of the whole case in the court below may have turned upon the decision of this one question
It appears from the ex parte case now before us, that Ahrendt resided upon the land with Caroline Schutt and her husband during the time above mentioned, but it does not appear that they lived together as one family, or that the Schutts constituted the family, or any part of the family of Ahrendt; and there is no claim made by the defendant that such was the case; on the contrary, it appears that Ahrendt had a family, a wife and children, residing in Illinois, and that none of his family had ever been upon the land, or even in Kansas; and it further appears that there was no intention on the part of Ahrendt that any of them ever should live upon the land, or in Kansas. Under such circumstances, we do not think that Ahrendt had any homestead rights to the property in controversy, within the meaning of our homestead exemption laws. Under our homestead exemption laws, no person can hold property exempt from execution or forced sale unless the property is “ occupied as a residence by the family of the owner.” (Const., art. 15, §9; Comp. Laws of 1879, p. 437, §1.) Ahrendt’s family never resided upon the land; they never occupied the same as a residence, as is required by the homestead-exemption laws; and therefore we think Ahrendt never had any homestead interest in the land. We think that it is true that an occupancy of land may be constructive, as well as actual. We think it is also true that it is not necessary that a family shall consist of a husband and wife and children; but it may sometimes consist of persons who do not sustain any such relation to each other. We think it has also been decided that one person may hold property as a homestead where the homestead right has first been obtained within the meaning of the homestead-exemption laws, and then where all the persons constituting the family, except one, have died or abandoned the homestead; but the present case does not come within any of these cases. Ahrendt alone did not constitute a family, and he did not have any family of his own occupying his supposed homestead, either actually or constructively. His family were in Illinois, and he never intended that any of them should ever occupy the property.
It would seem from the ex parte case brought to this court, that the court below held a different opinion from the one just expressed by us — that the court below held that Ahrendt might hold the property as a homestead, exempt from forced sale under the homestead-exemption laws, under just such circumstances as those above mentioned. In this we think the court below erred.
The homestead laws apply only to families, and not to single individuals, and apply only where the family occupies the homestead as a residence, and not where the family resides somewhere else. These laws are founded upon the theory that human society is usually and naturally divided into families, and that the general welfare of society is best promoted by providing that each family may have a home, an abiding place, an asylum, secure from financial disaster, and secure from the pursuit of the most vigilant and unrelenting creditor, as well as from the pursuit of every other kind of creditor; and they do not extend their protecting aegis to single individuals, or to aggregations of individuals where these aggregations do not constitute families.
The judgment of the court below will be reversed, and cause remanded for a new trial.
All the Justices concurring. | [
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The opinion of the court was deliyered by
Horton, C. J.:
On September 4, 1877, Haxtun and Ogden commenced their action in Dickinson county district court, against E. W. Sizer, M. Dively and William Dively, to recover 4,500 bushels of red winter wheat. On the same day, the Divelys gave a redelivery bond with-Fisher and Henry, plaintiffs in error, as sureties, and retained the possession of the wheat. On September 6, 1877, Haxtun and Ogden commenced also another action in the Dickinson county district court against E. W. Sizer for $2,724.34, money had and received by the defendant to and for the use of the plaintiffs, and caused an order of attachment to issue therein. The order was levied by the sheriff upon the wheat, which was appraised at $2,675.40. An undertaking w^s entered into with the sheriff, signed by M. Dively & Co., T. C. Henry and J. M. Fisher, under § 199 of the code. Upon the execution of this undertaking, the attached property was returned to M. Dively & Co. On September 25, 1877, Haxtun and Ogden dismissed their replevin action, and on March 25, 1878, the court proceeded to inquire into the right of the property, and right of possession of the defendants to the property taken, and a judgment was entered that the defendants M. Dively & Co. recover from the plaintiffs the sum of $75, together with their costs. On March 30, 1878, in the action of Haxtun and Ogden against Sizer, plaintiffs recovered $2,827.64, and their costs taxed at $104.25. On July 7,1880, Haxtun and Ogden commenced this action in the Dickinson county district court to recover upon the forthcoming bond executed September 6, 1877, by M. Dively & Co., T. C. Henry and J. M. Fisher, in the action then pending of Haxtun and Ogden v. E. W. Sizer, and in their petition demanded judgment for the sum of $2,675.40, with interest from March 30,1878, at seven per cent, per annum. On October 2, 1880, the defendants filed their answer setting up at length the facts of the replevin suit as a defense. Haxtun and Ogden demurred thereto. After argument of the demurrer, and before its decision, Haxtun and Ogden dismissed their action as to M. Dively and William Dively, without prejudice to a new action. The court thereupon sustained the demurrer, and J. M. Fisher and T. C. Henry electing to stand by such answer, the court entered judgment against them for $3,147.73, and also all costs. Fisher and Henry excepted, and bring the case here.
The objection made to the petition is fatal to the judgment in this: That while it is fully alleged that Haxtun and Ogden recovered a judgment against Sizer, and that the defendants failed to return the wheat described in the forthcoming bond, it nowhere states that the court made any order to sell the attached property. Until such order was made, the parties executing the bond were not required to deliver the attached property to the sheriff, nor to any other party. Sec. 222 of the code reads:
“If judgment (in proceedings upon attachment) be rendered for the plaintiff) it shall be satisfied as follows: So much of the property remaining in the hands of the officer, after applying the moneys arising from the sale of perishable property, and so much of the personal property and lands and tenements, if any, whether held by legal or equitable title, as may be necessary to satisfy the judgment, shall be sold by order of the court, under the same restrictions and regulations as if the same had been levied on by execution; and the money arising therefrom, with the amount which may be recovered from the garnishee, shall be applied to satisfy the judgment and costs. If there be not enough to satisfy the same, the judgment shall stand, and execution may issue thereon for the residue, in all respects as in other cases. Any surplus of the attached property, or its proceeds, shall be returned to the defendant.”
Sec. 223 provides:
“The court may compel the delivery to the sheriff for sale, of any of the attached property for which an undertaking may have been given, and may proceed summarily on such undertaking to enforce the delivery of the property, or the payment of such sum as may be due upon the undertaking, by rules and attachments, as in cases of contempt.”
In Tyler v. Safford, 24 Kas. 580, we held that the execution of a forthcoming bond does not operate as a release of the attachment lien; that the object of the bond is to insure the safe-keeping and faithful return of the property to the officer, if its return shall be required. Now such a return is not required, unless the oourt shall order the property, or a part thereof, to be sold to satisfy the judgment.
In the absence of any allegation in a petition upon a forthcoming bond of any order for the sale or return of the attached property, no recovery can be.had. The demurrer to the answer, therefore, on the ground that the latter did not state facts sufficient to constitute a defense to the plaintiffs cause of action, ought to have been carried back and sustained as against the petition, owing to the fatal omissions therein. Counsel of defendants suggest that the objection to the sufficiency of the petition is raised for the first time in this court. The record does not disclose this fact; but conceding it to be true, plaintiffs in error are not prevented thereby from call ing our attention to the fatal omissions in the petition. We have often held that any error apparent in the final judgment of a district court may be corrected by a suit in error in this court, even though no exception was taken thereto by the party complaining. In this case, the allegations in the petition are not sufficient to support the judgment; the judgment was rendered against the objections of the defendants, (plaintiffs in error,) and they excepted thereto.
The judgment of the district court must be reversed, and the cause remanded for further proceedings in accordance with the views herein expressed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This is an action of mandamus, brought by Leslie Tinnon, a colored boy of school age, by his next friend, Elijah Tinnon, to compel the board of education of the city of Ottawa, and William Wheeler, the principal of the public schools of said city, to admit the plaintiff to attend one of such public schools. A trial was had in the court be low by the court without a jury, and judgment was rendered in favor of the plaintiff and against the defendants, and a peremptory writ of mandamus was ordered; to all of which the defendants below excepted, and now bring the case to this court for review.
In the court below, the pleadings were so framed and admissions were so made thatthe only question presented to the court below for decision was, whether the board of education of a city of the second class has the power to establish separate schools for white and colored children, and to. exclude colored children from the schools established for white children for no other reason than that they are colored children. As before stated, the court below decided that the board of education has no such power. The statutes of this state having application to this question, read as follows:
“Sec. 2. In each city governed by this act there shall be established and maintained a system of free common schools, which shall be kept open not less than three nor more than ten months in any one year, and shall be free to all children residing in such city between the ages of five and twenty-one years. But the board of education may, where school-room accommodations are insufficient, exclude for the time being children between the ages of five and seven years.”
“Sec. 9. The board of education shall have power to elect their own officers, except the treasurer; to make their own rules and regulations, subject to the provisions of this article; to organize and maintain a system of graded schools; to establish a high school whenever in their opinion the educational interests of the city demand the same; and to exercise the sole control over the schools and school property of the city.”
These statutes were passed in 1876. (Laws of 1876, ch. 122, art. 11, §§ 2, 9; Comp. Laws of 1879, pp. 846, 847.)
For the purposes of this case we shall assume that the legislature has the power to authorize the board of education of any city or the officers of any school district to establish separate schools for the education of white and colored children, and to exclude the colored children from the white schools, notwithstanding the fourteenth amendment to the constitution of the United States; and there are- decisions in some of the states which sustain such authority. (The State v. McCann, 21 Ohio St. 198; Cory v. Carter, 48 Ind., 327; Ward v. Flood, 48 Cal. 36; Bertonneau v. The Directors of the City Schools, 3 Woods, 177.) But still this power of the legislature may be doubted. (Strauder v. West Virginia, 100 U. S., 303. See also Ex parte Virginia, 100 U. S. 339; Slaughter-House Cases, 16 Wall. 36; Neal v. State of Delaware, [U. S. Sup. Court, May 1881,] 23 Alb. L. J. 466; 12 Cent. L. J. 514.) The fourteenth amendment provides among other things, as follows:
“Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. 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.”
In the case of Strauder v. West Virginia, 100 U. S., p.307, the court uses the following language:
“ It [the fourteenth amendment to the constitution of the United States] ordains that no state shall make or enforce any laws which shall abridge the privileges or immunities of citizens of the United States, (evidently referring to the newly-made citizens, who, being citizens of the United States, are declared to be also citizens of the state in which they reside.) It ordains that no state shall deprive any person of life, liberty, or property, without due process of law, or deny to any person within its jurisdiction the equal protection of the laws. What is this but declaring that the law in the states shall be the same for the black as for the white; that all persons, whether colored or white, shall stand equal before the laws of the states; and in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color? The words of the amendment, it is true, are prohibitory, but they contain a necessary implication of a positive immunity, or right, most valuable to the colored race — the right to exemption from unfriendly legislation against them distinctively as colored — exemption from legal discriminations, implying inferiority in civil society, lessen ing the security of their enjoyment of the rights which others enjoy, and discriminations which are steps toward reducing them to the condition of a subject race.”
The question whether the legislatures of states have the-power to pass laws making distinctions between white and colored citizens, and the extent of such power, if it exists, is a question which can finally be determined only by the supreme court of the United States; and hence we pass this question, and "proceed to the next, over which we have more complete jurisdiction.
Has the legislature of the state of Kansas given, or attempted to give, to the boards of education of cities of the second class, the power to establish separate schools for the education of white and colored children, and to exclude from the schools-established for white children all colored children, for no other reason than that they are colored children? Prima fade, this question should be answered in the negative. The tendency of the times is, and has been for several years, to abolish all distinctions on account of race, or color, or previous condition of servitude, and to make all persons absolutely equal before the law. Therefore, unless it appears clear beyond all question that the legislature intended to authorize such distinctions to be made, we should not hold that any such authority has-been given. And we certainly should not expect to find that the legislature had given any such authority during the centennial year of 1876, when the minds of all men were inclined to adopt the most cosmopolitan views of human rights, and not to adopt any narrow or contracted views founded merely upon race, or color, or clan, or kinship. It is true that in cities of the first class, which included up to within a year past only the city of Leavenworth, the power to make such distinctions existed. But this power has always existed in the city of Leavenworth, from its earliest territorial days down to the present time, and was given to that city at first as a mere matter of local concern, and at a time when the prevailing opinions of men were very different from the prevailing opinions of men at the present day. The first act passed by the state legislature giving such power to the city of Leavenworth, will be found in the Compiled Laws of 1862, pp. 395, 396, §§18, 19; and the power was then expressly given to such city, and was not left for mere inference or conjecture. See also Compiled Laws of 1879, p. 843, § 142. This last-mentioned act will now apply to two other cities, as well as to the city of Leavenworth, and the power is expressly given.
The tendency of the present age is not to make any distinctions with regard to school children, except to classify them with reference to their studies and place them in the classes in which they properly belong. All kinds of children are usually allowed to go to the same schools, and all kinds of children are usually placed in the same classes. Boys and girls are allowed to go not only to the same schools, but are also placed in the same classes, and even colleges are now opening their doors for the education of both sexes; and is it not better that this should be so? Is it not better for the grand aggregate of human society, as well as for individuals, that all children should mingle together and learn to know each other? At the common schools, where both sexes and all kinds of children mingle together, we have the great world in miniature; there they may learn human nature in all its phases, with all its emotions, passions and feelings, its loves and hates, its hopes and fears, its impulses and sensibilities; there they may learn the secret springs of human actions, and the attractions and repulsions, which lead with irresistible force to particular lines of conduct. But on the other hand, persons by isolation may become strangers even in their own country; and by being strangers, will be of but little benefit either to themselves or to society. As a rule, people cannot afford to be ignorant of the society which surrounds them; and as all kinds of people must live together in the same society, it would seem to be better that all should be taught in the same schools.
The supreme court of Iowa seems to have taken the same view of this subject that we have taken — that is, that unless the legislature has dearly conferred power upon the school boards to establish séparate schools for the education of white and colored children, no such power has been conferred. Under a statute which reads, “ in each sub-district there shall be taught one or more schools for the education of youth between the ages of five and twenty-one years,” the supreme court of Iowa held that the school board could not establish separate schools for the education of white and colored children, and could not exclude colored children from attending schools established for the white children alone. (Sec. 12, ch. 172, Laws of Iowa of 1862, as amended by § 3, ch. 143, Laws of Iowa of 1866; Clark v. The Board, &c., 24 Iowa, 266; Smith v. The Directors, &c., 40 Iowa, 518; Dove v. Independent School District, 41 Iowa, 639.)
Now we do not think that the legislature of Kansas has dearly conferred power upon the school boards of cities of the second class to establish separate schools for the education of white and colored children. We do not think that the legislature has even been silent upon the subject. But, by the clearest implication, if not in express terms, it has prohibited the boards from establishing any such schools. Said §§ 2 and 9 of the Laws of Kansas of 1876 provide for a system of free schools in cities of the second class, giving the board of education plenary power over them. The board can organize a system of graded schools, establish a high school, and exercise sole control over the schools and school property: provided always (under §2), that it “maintains a system of free common schools,” “free to all children residing in such city,” of proper ages. Now, if only one school out of all the schools of a city of the second class is free for colored children to attend, is that maintaining common schools, free to all the children of the city? In the case of Railroad Co. v. Brown, 17 Wall. 446, in which the supreme court of the United States construed an act of congress granting certain privileges to a railroad company, and also enacting that “ no person shall be excluded from the cars on account of color,” the court “held, that this meant that persons of color should travel in the same cars that white ones, did, and along with them in such cars; and that the enactment was not satisfied by the company’s providing cars assigned exclusively to people of color, though they were as good as those which they assigned exclusively for white persons, and in fact the very cars which were, at certain times, assigned exclusively to white persons.” That is, under this decision, railroad cars are not free to a person who is excluded from all but one of them; and, on the same principle, schools are not free to a person who is excluded from all but one of them.
We suppose that the board of education of a city of the second class may grade the schools in such city, and then require that all children be placed in their proper grades. This is for the interest of education; and the statute expressly authorizes it. We also suppose that the board of education may divide the city territorially into districts, building school houses in each district, and may then require that children shall attend school only in their own district. This would also be in the interest of education. Generally such a thing would be founded upon convenience, and sometimes upon necessity. But the power to divide a city territorially into districts does not include or prove the power to divide the city according to race, color, nationality or descent. In the case of School District v. Aldrich, 13 N. H. 139, it is held that “a division of a town into school districts must be a territorial division, and not one merely by a designation of the inhabitants or householders.” And what good reason can exist for separating two children, living in the same house, equally intelligent, and equally advanced in their studies, and sending one, because he or she is black, to a school house in a remote part of the city, past several school houses nearer his or her home, while the other child is permitted, because he or she is white, to go to a school within the distance of a block ? No good reason can be given for such a thing, and the legislature has not authorized or attempted to authorize it to be done. It has been suggested that the board of educa tion may establish separate schools for males and females; and, therefore, that it may establish separate schools for white and colored children. Now the premise is not admitted, and the conclusion is a non sequitur. It is not admitted that the legislature has the power to authorize the board to establish separate schools for males and females, (Const., art. 2, § 23;) (nor is it admitted that the legislature has even attempted to po so; and besides, even if the legislature had the power to authorize schools for males and females, and had attempted to exercise it, still it would not even then follow that the board of education could establish separate schools for white and colored children. There are greater differences existing between males and females of the same race, and occupying the same condition in life, except as to sex, than there are between any two males, or any two females of different races, who reside in Kansas, and whose conditions are substantially equal, except as to race. This is recognized by the fact that male citizens of all races are allowed to vote, while no female citizen'of any race is allowed to vote. There are physiological differences, and differences in wants and needs, and modes of life, existing between males and females of the same race, which do not exist between males of different races, or females Ínf different races. Hence, the power to establish separate chools for males and females, even if it were admitted, would tot either include or prove the power to establish separatechools for children of different races; and especially it would not include or prove the power to establish separate schools for children of African descent. If the board has the power, because of race, to establish separate schools for children of [African descent, then the board has the power to establish separate schools for persons of Irish descent or German descent; and if it has the power, because of color, to establish separate schools for black children, then it has the power to establish separate schools for red-headed children and blondes. We do not think that the board has any such power. We have conceded, for the purposes of this case, that the legislature has the authority to confer such power upon school boards; but in our opinion the legislature has not exercised or attempted to exercise any such authority.
This decision is not in conflict with any decision that we •are aware of; but it is supported by the decisions in Iowa. The decisions referred to by the counsel for plaintiffs in error, defendants below, are either all very old, and rendered before the war, or are founded upon statutes expressly authorizing separate schools for white and colored children; while in this state, our statutes have been recently enacted, and as we construe them they do not authorize the establishment of any such separate schools; and hence, the decisions referred to by counsel have no application to this case. It must be remembered that unless some statute can be found authorizing the establishment of separate schools for colored children, that no such authority exists; and we have been unable .to find any such statute, and none has been pointed out to us.
The judgment of the court below, we think is correct, and therefore it will be affirmed.
Horton, C. J., concurring. | [
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Marquardt, J.:
Leigh Ann Johnson appeals from the district court’s journal entry modifying Thaddeus Eugene Johnson’s post-divorce child support payments.
The parties were divorced on July 2, 1990. Thaddeus was ordered to pay health insurance and $155 per month in support for the parties’ minor child. On June 3, 1992, the district court increased Thaddeus’ monthly child support payment to $231.
Thaddeus was employed by Exide Battery Corporation (Exide) from April 1989 until August 24, 1995. Thaddeus was terminated from Exide because he tested positive for marijuana, which was a violation of Exide’s drug policy. On August 26, 1995, Thaddeus began working for a construction company, earning $6 an hour. Approximately 1 month later, Thaddeus obtained a better paying job at Tony’s Pizza Service. At Exide, Thaddeus’ income was between $30,000 and $33,000 annually — almost twice as much as his income at Tony’s.
On October 18, 1995, Thaddeus filed a motion to modify his child support payment. At the hearing on the motion, Leigh’s counsel argued that Thaddeus’ voluntary conduct caused his reduction in income and, therefore, his previous income should be imputed to him in calculating the amount of child support to be paid. The district court rejected this argument, holding: “There has been a significant change in the petitioner’s financial circumstances due to an involuntary job loss and reduced income.” The district court granted Thaddeus’ motion to modify and lowered his monthly child support payment to $148.
Leigh argues that Thaddeus’ loss of income was a result of his voluntary conduct of smoking marijuana and that it should, therefore, be considered a voluntary reduction in income. There is no published Kansas case holding that income should be imputed where voluntary conduct results in an involuntary reduction of income.
The standard of review of a district court’s determination of child support is abuse of discretion. In re Marriage of Case, 19 Kan. App. 2d 883, 889, 879 P.2d 632, rev. denied 255 Kan. 1002 (1994). If reasonable persons could disagree with the propriety of the action taken by the district court, it did not abuse its discretion. In re Marriage of Cray, 254 Kan. 376, 387, 867 P.2d 291 (1994).
In Case, 19 Kan. App. 2d at 889, this court noted the general rules for modification of child support:
“A court may change or modify a prior order of child support when there is a material change in circumstances. . . . Material changes in circumstances include any change in financial circumstances of the parents which would result in a 10% or more decrease or increase and any other changes in circumstances traditionally considered by the courts. [Citation omitted.] In setting child support, the court shall consider‘all relevant factors . . . including the financial resources and needs of both parents.’ [Citation omitted.] “What constitutes a material change [in circumstances] depends on the case. . . . Most courts agree that the change should be material, involuntary, and permanent in nature.’ 1 Elrod, Kansas Family Law Handbook § 14.042B, p. 14-23 (rev. 1990).”
Under the Kansas Child Support Guidelines, Supreme Court Administrative Order No. 107 (1997 Kan. Ct. R. Annot. 89), income may be imputed to the noncustodial parent if that parent is deliberately unemployed or underemployed. In re Marriage of Cray, 18 Kan. App. 2d 15, 27, 846 P.2d 944 (1993), rev’d in part and modified in part on other grounds 254 Kan. 376, 867 P.2d 291 (1994). Specifically, II.E.l.d. of the guidelines provides: “When there is evidence that a parent is deliberately underemployed for the purpose of avoiding child support, the Court may evaluate the circumstances to determine whether actual or potential earnings should be used.” (1997 Kan. Ct. R. Annot. 91.) See 1 Elrod, Kansas Family Law Handbook § 14.024D, p. 14-13 (rev. 1990).
Conversely, if a reasonable person could conclude that a parent is not deliberately unemployed or underemployed, it is not an abuse of discretion for the district court to refuse to impute his or her former income in calculating the child support obligation. Cray, 18 Kan. App. 2d at 27.
There is no evidence that Thaddeus was deliberately attempting to lower his income to avoid paying child support. Thaddeus’ uncontroverted testimony was that he attempted to retain his job at Exide when he was notified of his termination. After that attempt proved to be unsuccessful and he was terminated, Thaddeus secured new employment within 2 days of his termination. Approximately 1 month later, Thaddeus obtained a better paying job. Voluntary conduct that results in an involuntary loss of income does not necessarily determine that a parent is deliberately unemployed or underemployed. In short, the record contains evidence sufficient to enable a reasonable person to conclude that Thaddeus is not deliberately unemployed or underemployed. Thus, it was not an abuse of discretion for the district court to refuse to impute Thaddeus’ former income in calculating his child support obligation.
Leigh argues that the district court should have applied the equitable doctrine of clean hands to deny relief to Thaddeus. Leigh cites In re Marriage of Phillips, 493 N.W.2d 872, 877 (Iowa App. 1992), and Koch v. Williams, 456 N.W.2d 299, 301 (N.D. 1990), where the courts invoked the clean hands doctrine to deny relief to incarcerated individuals who sought modification of their child support obligation. The factual situation in Koch distinguishes it from the instant case because Thaddeus was neither charged with a crime nor incarcerated. Additionally, other courts have specifically rejected the argument that an incarcerated individual is necessarily guilty of inequitable conduct that bars the individual from seeking a modification of child support. See, e.g., People ex rel. Meyer v. Nein, 209 Ill. App. 3d 1087, 1088-89, 568 N.E.2d 436 (1991).
The clean hands doctrine provides that no person can obtain affirmative relief in equity with respect to a transaction in which that person has been guilty of inequitable conduct. In re Marriage of Jones, 22 Kan. App. 2d 753, 759, 921 P.2d 839, rev. denied 260 Kan. 993 (1996) (applying doctrine in child support case). The objectionable conduct must bear an immediate relation to the subject matter of the litigation and affect the relations existing between the parties. 22 Kan. App. 2d at 759. Collateral misconduct which arises outside the specific transaction that is the subject matter of the litigation does not bar equitable relief. Green v. Higgins, 217 Kan. 217, 221, 535 P.2d 446 (1975); Nein, 209 Ill. App. 3d 1087, Syl. ¶ 2 (applying rule to similar facts). The application of the clean hands doctrine is not a hard and fast rule, but is left to the discretion of the district court. Fuqua v. Hanson, 222 Kan. 653, 657, 567 P.2d 862 (1977).
Here, there is no evidence to support the conclusion that Thaddeus’ actions were taken in an effort to reduce his child support payments, even though it indirectly had that result. The district court did not abuse its discretion in declining to exercise the clean hands doctrine to deny Thaddeus relief.
Leigh argues that the district court erred in calculating the amount of Thaddeus’ health insurance credit when computing his child support obligation. Leigh contends that because Thaddeus does not incur any increased cost by insuring the parties’ child, he should not have been given credit for the amount he pays for family health insurance coverage.
Thaddeus testified that he pays “about a hundred and fifty” a month for family health insurance coverage. On his child support worksheet, Thaddeus had entered the amount as $152. Thaddeus’ child support worksheet also states that the $152 excludes his personal coverage. The $152 per month pays for coverage on Thaddeus’ current wife, Thaddeus and Leigh’s child, and the two children from Thaddeus’ current marriage.
Leigh’s counsel stated that in preparing Leigh’s child support worksheet, they “took the cost of family coverage over [Thaddeus’] single policy . . . and divided it by the number of people on it, and that’s how [they arrived] at twenty-five dollars.” Apparently $51 was subtracted from the $152 as the amount of Thaddeus’ single coverage. However, Leigh states in her brief that “[t]he $152 includes that portion which is the single policy insurance cost. The actual cost of just the family plan is $101 per month.” Leigh’s citation to the record, however, is merely to her proposed child support worksheet.
The district court held that “the whole premium is the family insurance, not just that portion over and above the individual.” The district court stated:
“[F]amily coverage is family coverage. Whether it’s one additional person or four or five additional persons. So, I’m not going to proportion it. I mean the cost— he’s not required by any court order to provide heath insurance for anybody else other than this child. So, the cost of whatever it cost[s], for family, the family portion of the insurance is the minimum that’s going to be factored into the child support, not to divide that by how many people are covered.”
As we have previously noted, the standard of review for this court’s review of a district court’s determination of child support is abuse of discretion. Case, 19 Kan. App. 2d at 889. Interpretation of the Kansas Child Support Guidelines, however, is a question of law subject to unlimited review by this court. Scruggs v. Chandlee, 20 Kan. App. 2d 956, 957, 894 P.2d 239 (1995).
Section V.D. of the guidelines provides:
“4. Health and Dental Insurance Premium (Line D.4.)
The increased cost to the parent for health, dental, or optometric insurance for the child is to be added to the Basic Child Support Obligation. If coverage is provided without cost to the parents, then zero should be entered as the amount. The cost of insurance coverage is entered in the column of the parent(s) providing it, and the total is entered on Line D.4.
Worksheet Example: Parent A has a single-coverage policy. To add the children would cost an additional $125 a month. Therefore, $125 would be entered in Parent A’s column and as the total on Line D.4. of the Worksheet.” (1997 Kan. Ct. R. Annot. 99-100.)
The touchstone of the guidelines on this point is that the increased cost is entered on line D.4. and that the parent making the payment is given credit for this amount. See Appendix I of the Kansas Child Support Guidelines (1997 Kan. Ct. R. Annot. 112-13).
District courts and hearing officers must follow the guidelines. In re Marriage of Schletzbaum, 15 Kan. App. 2d 504, 506, 809 P.2d 1251 (1991). The amount determined by following the guidelines creates a rebuttable presumption of the proper amount of child support. 15 Kan. App. 2d at 506. Courts that wish to use the child support adjustments to deviate from the guidelines must make the appropriate written findings. See 15 Kan. App. 2d at 506-07. A child support order entered without complying with the guidelines is an abuse of discretion. Shaddox v. Schoenberger, 19 Kan. App. 2d 361, 363, 869 P.2d 249 (1994).
Leigh argues that Thaddeus does not incur any additional cost for providing health insürance for the parties’ child because he already carries and pays for family coverage, which would also provide coverage for the parties’ child. This argument makes an assumption that has no support in the record.
The appellant has the burden to designate a record sufficient to sustain the claimed error. McCubbin v. Walker, 256 Kan. 276, 295, 886 P.2d 790 (1994). Assertions in an appellate brief are not sufficient to remedy inadequacies in the record on appeal. Smith v. Printup, 254 Kan. 315, 353, 866 P.2d 985 (1993).
Thaddeus is under court order to carry health insurance for the parties’ child. The guidelines provide that the payor should be given credit for the increased cost of providing health insurance above single coverage; however, the example given does not take into consideration the factual situation that is presented here — that Thaddeus has remarried and has two other children. Even though Leigh’s argument that there is no increase in cost to cover the parties’ child appears to follow the guidelines, Thaddeus’ argument that the entire amount of the cost for family coverage should be included because that is the increase over single coverage also appears to follow the guidelines. Using either rationale would result in an inequitable result for one of the parties.
We hold that the guidelines require using the Multiple Family Adjustment in determining the level of child support when an increase in support is sought by the custodial parent and the noncustodial parent has children by another relationship who reside with him or her. We also hold that for child support computations, where a parent is paying for family health insurance that covers individuals from more than one family, the cost of the family coverage should be divided among the number of individuals who are covered by the insurance and that the number should be multiplied by the number of children subject to the child support order.
The undisputed evidence is that it cost Thaddeus $152 above his single health insurance coverage for family coverage. In this case, $152 should be divided by four, the number of individuals covered by the policy other than Thaddeus, which would equate to $38 per covered person. Since the parties have one child, the applicable cost for health insurance coverage is $38. Because there are two families involved, the Multiple Family Adjustment applies; therefore, the basic child support for the parties’ child is $299. This computation results in a monthly child support obligation of $159 for Thaddeus.
The district court erred in its computation of child support for the parties’ minor child and is hereby directed to enter an order conforming to the findings in this opinion.
Affirmed in part, reversed in part, and remanded with instructions. | [
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Rulon, J.:
Petitioner Harlan K. Comer filed a K.S.A. 60-1507 petition claiming the 1996 amendments to the Kansas Sentencing Guidelines Act (KSGA) should be applied retroactively, making him eligible for conversion. The district court denied the relief sought by petitioner. We affirm.
On July 26, 1989, petitioner entered a plea of guilty to the sale of amphetamines in violation of K.S.A. 1989 Supp. 65-4127b(b)(2) and was sentenced to 2 to 10 years’ imprisonment. On September 19,1995, petitioner filed a 60-1507 petition asking the district court to convert his sentence to a sentence under the KSGA. Based on his criminal history and crime severity level, petitioner fell into grid box 3-1. The district court found that under K.S.A. 1994 Supp. 21- 4724(b)(1) and K.S.A. 1994 Supp. 21-4705(c), inmates whose sentences fell in grid block 3-1 were eligible for conversion only if the substance involved in the crime was marijuana or tetrahydrocannabinol, and because petitioner s crime involved amphetamines, petitioner was not eligible.
Petitioner claims that although the district court’s decision to not convert may have been correct when petitioner was originally sentenced, K.S.A. 1994 Supp. 21-4705(c) has since been amended and the amended statute should apply to petitioner’s sentence.
K.S.A. 1996 Supp. 21-4705, effective July 1, 1996, states in pertinent part:
“(a) For the purpose of sentencing, the following sentencing guidelines grid for drug crimes shall be applied in felony cases under the uniform controlled substances act for crimes committed on or after July 1, 1993:
“(c)(1) The sentencing court has discretion to sentence at any place within the sentencing range. The sentencing judge shall select the center of the range in the usual case and reserve the upper and lower limits for aggravating and mitigating factors insufficient to warrant a departure.
(2) In presumptive imprisonment cases, the sentencing court shall pronounce the complete sentence which shall include the prison sentence, the maximum potential reduction to such sentence as a result of good time and the period of postrelease supervision at the sentencing hearing. Failure to pronounce the period of postrelease supervision shall not negate the existence of such periods of post-release supervision.
(3) In presumptive nonprison cases, the sentencing court shall pronounce the prison sentence as well as the duration of the nonprison sanction at the sentencing hearing.”
The district court here applied K.S.A. 1994 Supp. 21-4705(c). That statute reads as follows:
“(c) Upon conviction of any person pursuant to K.S.A. 65-4127b or K.S.A. 1994 Supp. 65-4161 or 65-4163 and amendments thereto, or a conviction of an attempt, a conspiracy or a solicitation as provided in K.S.A. 21-3301, 21-3302, or 21-3303 and amendments thereto, to commit a violation of K.S.A. 65-4127b or K.S.A. 1994 Supp. 65-4161 or 65-4163 and amendments thereto, in which the substance involved was marijuana or tetrahydrocannabinol as designated in subsection (d) of K.S.A. 65-4105 and amendments thereto; such substance was possessed with intent to sell, sold or offered for sale in an amount which does not exceed 500 grams or 25 plants; such substance was not possessed with intent to sell, sold or offered for sale as provided in subsection (d) of K.S.A. 65-4127b or subsection (b) of K.S.A. 1994 Supp. 65-4163 and amendments thereto; and such offense is classified in grid blocks 3-H or 3-1 of the presumptive sentencing guidelines grid for drug crimes, the court may impose an optional nonprison sentence upon making the following findings on the record . . . .”
K.S.A. 1993 Supp. 21-4705(c) reads:
“Upon conviction of any person pursuant to K.S.A. 65-4127b and amendments thereto, in which the substance involved was marijuana or tetrahydrocannabinol as designated in subsection (d) of K.S.A. 65-4105 and amendments thereto; such substance was possessed with intent to sell, sold or offered for sale in an amount which does not exceed 500 grams or 25 plants; such substance was not possessed with intent to sell, sold or offered for sale as provided in subsection (d) of K.S.A. 65-4127b and amendments thereto; and such offense is classified in grid blocks 3-H or 3-1 of the presumptive sentencing guidelines grid for drug crimes, the court may impose an optional nonprison sentence upon making the following findings on the record . . . .”
Clearly under K.S.A. 1993 Supp. 21~4705(c) (as well as K.S.A. 1994 Supp. 21-4705[c]), petitioner was not eligible for conversion.
A 1996 amendment to 21-4705(c) removed the language involving marijuana and tetrahydrocannabinol and no longer limits the sentencing court’s discretion to impose an optional nonprison sentence as did the 1993 version of the statute. Consequently, the question before this court is if the amended statute should be applied to petitioner’s motion to convert, thereby allowing petitioner’s sentence to be converted.
“The legislature clearly intended that the defendant’s sentence be modified by comparison with the sentencing guidelines as if the ‘crime’ had been committed on or after July 1, 1993. 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.” State v. Fierro, 257 Kan. 639, 650, 895 P.2d 186 (1995).
Following Fierro, petitioner’s crime of conviction would be converted to an analogous crime existing on or after July 1,1993. Based on the statutes in effect at that time, petitioner’s crime of conviction had a severity level of 3. Petitioner’s criminal history would have been I. As such, petitioner would have been placed in grid block 3-1. Petitioner does not dispute that fact.
“The fundamental rule [of sentencing] is that a person convicted of a crime is given the sentence in effect when the crime was committed.” State v. Riley, 259 Kan. 774, Syl. ¶ 3, 915 P.2d 774 (1996); see K.S.A. 21-4724(f). Because petitioners crime of conviction is based on the statutes as they existed on July 1, 1993, his proper sentence would be the sentence in effect on that date.
“When a statute is plain and unambiguous, the appellate courts will not speculate as to the legislative intent behind it and will not read such a statute so as to add something not readily found in the statute.” State v. Alires, 21 Kan. App. 2d 139, Syl. ¶ 2, 895 P.2d 1267 (1995). Based upon clear statutory language, eligibility for sentence conversion under the KSGA is governed by the statutes in effect as of July 1, 1993, the effective date of partial retroactive application of the KSGA. Generally, subsequent amendments to the KSGA are not applied retroactively unless so designated by the legislature. See State v. Ford, 262 Kan. 206, 208-09, 936 P.2d 255 (1997).
In the present case, the district court relied on K.S.A. 1994 Supp. 21-4705(c) in denying petitioner s requested relief. Although the court relied on the wrong statute, it would have reached the same result using K.S.A. 1993 Supp. 21-4705(c). “When the trial court reaches the correct result based upon the wrong reason, this court will affirm the trial court.” Cabral v. State, 19 Kan. App. 2d 456, Syl. ¶ 9, 871 P.2d 1285 (1994).
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Meeks, J.:
Charles and Dawn Harmon appeal the trial court’s finding that Dale and Reba Koch were not negligent in the containment of their livestock and that the doctrine of res ipsa loquitur is not applicable to cases involving escaped livestock.
In the early morning hours of December 6, 1994, Charles Harmon was driving home from his job in Beloit when he came upon six calves lined up across the road.
Charles claimed that he was driving 40 miles per hour and had very little time to react in order to avoid hitting the animals. Charles struck the calves, three of them came up onto the hood of his car and then went up and over the roof. Charles testified that, during the impact, a hoof came through the windshield and hit him in the face. After the impact, the car traveled another 50 to 100 yards and ended up off of the road in a wheat field. Charles was off work for a week after the accident and suffered a whiplash neck injury and permanent scarring on his face.
The calves were owned by Dale and Reba Koch and had broken out of a corral which was located about 7 and Vz miles from the scene of the accident.
Dale testified that on the night of the accident the corral was holding 87 calves, weighing from 500 to 700 pounds each, that had recently arrived from Kentucky. Both Dale and Reba testified that the calves appeared calm when they arrived and up to the night of the accident.
At trial, the Harmons presented the expert testimony of Ed Brokesh, an engineer who designed fencing for cattle corrals and who inspected the corral. Brokesh testified that the corral was made of continuous fencing, using fence panels made up of six, one and a quarter inch round, horizontal bars, connected to posts that were spaced from 9 to 10 feet apart. Brokesh testified that he recommended to his customers that spacing between posts be from 8 to 10 feet and that the farther the spacing, the weaker the fence.
Brokesh testified that, in addition to the opening on the west side of the fence where the calves had gotten out, he found two places where the fence had been damaged and one place where the fence panels were just held in place by clips at the top, leaving the bottom free to move. In his opinion, the cumulative effect of these problems contributed to the calves’ ability to break down the fence and escape. Brokesh believed the main problem with the fence was its installation, although there were also some apparent maintenance problems.
There was evidence at trial that the Kochs had cattle get out of other corrals in the past and wander into the road. Dale Koch admitted that cattle had escaped in the past from other pens he owned. Dale claimed that the only explanation he had as to why the calves had broken out of the corral was that something had frightened or spooked them, causing them to hit the west side of the fence and break down a post.
Brokesh testified that a corral which was going to be holding animals which were likely to be spooked ought to be made a little bit stronger than the pen which was holding the calves that escaped. However, Brokesh also stated that he did not believe that a corral could be built that would totally prevent spooked animals from escaping.
The Kochs produced the expert testimony of George Eakin, an engineer who manufactured livestock equipment. Eakin testified that the Kochs’ corral had been sufficiently strong for its purpose. In addition, Eakin testified that from what he knew of the situation, it was his opinion that the calves had been spooked by something. Eakin testified that this was evidenced, in part, by the distance the calves had gone after breaking out of the corral.
Eakin testified that he found concrete around the base of the fence posts of the corral when he dug 8 inches down on the outside of the fence posts. Apparently, the concrete had been placed to the outside of the corral. However, Eakin testified that even one calf, weighing approximately 570 pounds, could have broken the fence post in question if it had been moving fast enough and had hit the post at the right place.
The trial court determined that the Kochs had exercised due care in containment of the calves and were, therefore, not negligent. In addition, the trial court found that even if the Kochs had been negligent, such negligence was not the proximate cause of the accident. Rather, it was the spooking of the cattle which proximately caused the Harmons’ damages. Finally, the trial court determined that the doctrine of res ipsa loquitur was not applicable to a livestock escape case.
In Tucker v. Hugoton Energy Corp., 253 Kan. 373, 377, 855 P.2d 929 (1993), the court stated:
“Where the trial court has made findings of fact and conclusions of law, the function of an appellate court is to determine whether the findings are supported by substantial competent evidence and whether the findings are sufficient to support the trial court’s conclusions of law. Substantial evidence is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. Stated in another way, ‘substantial evidence’ is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion. [Citations omitted.]”
An appellate court’s standard of review with respect to whether substantial competent evidence exists to support a trial court’s finding is narrow. In Cerretti v. Flint Hills Rural Electric Co-op Ass’n, 251 Kan. 347, 361-62, 837 P.2d 330 (1992), the court stated:
“When a verdict is challenged for insufficiency of evidence or as being contrary to the evidence, it is not the function of this court to weigh the evidence or pass on the credibility of the witnesses. If the evidence, with all reasonable inferences to be drawn therefrom, when considered in the light most favorable to the prevailing party, supports the verdict, it will not be disturbed on appeal. [Citation omitted.]”
The Harmons argue that the trial court erred in finding that the Kochs were not negligent in the installation and maintenance of the fence which held the calves. The Harmons do not otherwise argue that the trial court erred in finding that the calves became spooked, or otherwise dispute that the spooking of the cattle was the proximate cause of the Harmons’ damages.
Evidence was produced at trial which supported the trial court’s conclusion. In fact, even Brokesh, the expert for the Harmons, testified that although the fence had some problems, it was comparable to the kind of fencing used by other livestock producers and that even though using shorter spacing between the fence posts would have reduced the likelihood of escape, it would not have prevented it completely. In addition, the evidence showed that although cattle had gotten out of other corrals owned by the Kochs, the only other time a calf had escaped from the corral in question was once when someone had left a gate open.
For these reasons, it appears that the trial court’s conclusion that the Kochs had exercised due care in the containment of the calves was supported by substantial competent evidence and should be upheld.
Next the Harmons ask this court to extend the application of the doctrine of res ipsa loquitur to include livestock cases. The trial court found that the doctrine was not applicable to such cases, citing Walborn v. Stockman, 10 Kan. App. 2d 597, 706 P.2d 465 (1985). This court’s review of conclusions of law is unlimited. See Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991).
In Walbom, this court stated:
“Kansas courts have consistently refused even to consider the application of res ipsa loquitur to the livestock trespass case. An example is Wilson v. Rule, 169 Kan. 296 [, 219 P.2d 690 (1950)], an analogous case in which the only evidence presented was that defendant’s two mules were loose and unattended on the highway when plaintiff’s car collided with them. The Wilson court remarked:
'To [apply res ipsa loquitur] would be to hold that the fact an animal escapes from a pasture or corral or from custody while being led, ridden or driven or while hitched or tied to a hitching rack is so unusual that no other conclusion can be drawn from the occurrence itself than that the owner was negligent. Our knowledge of the ways of domestic animals forbid us doing that. We cannot assume merely because two mules were loose on the highway that the owner was negligent in the manner in which he confined them.’ 169 Kan. at 304.” 10 Kan. App. 2d at 601.
Accordingly, the trial court was correct in refusing to apply the doctrine of res ipsa loquitur to livestock escape cases.
Finally, even if this court were to accept the Harmons’ invitation to reconsider such application, the doctrine would not, in any event, apply in the present case. In order to apply the doctrine, it is necessary for the plaintiff to show: (1) that the defendant had exclusive control of the thing or instrumentality causing the injury or damage; (2) that the nature of the injury or damage was such that it ordinarily does not occur in the absence of someone’s negligence; and (3) that the plaintiff was not contributorily negligent. Martin v. Board of Johnson County Comm’rs, 18 Kan. App. 2d 149, 160, 848 P.2d 1000 (1993). The requirement that the plaintiff not be contributorily negligent must be modified today to incorporate the relevant comparative negligence principles. Arnold Associates, Inc. v. City of Wichita, 5 Kan. App. 2d 301, 309, 615 P.2d 814 (1980), rev. denied 229 Kan. 669 (1981).
The particular facts of this case demonstrate that both the calves and the corral were under exclusive control of the Kochs and that Charles Harmon was not in any way at fault in causing the accident which occurred. However, with respect to the second element above, evidence was produced at trial which tended to show that the accident may have been caused, not necessarily by the Kochs’ alleged negligent installation and maintenance of the corral holding the calves, but by an unforseen occurrence which resulted in the cattle becoming spooked. Consequently, sufficient evidence was produced at trial to suggest that the nature of the injury or damage which occurred was not the kind which ordinarily occurs as the result of someone’s negligence. Thus, the doctrine of res ipsa loquitur was not applicable under the particular facts of this case.
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WORDEN, J.:
The State appeals from the district court’s order suppressing the statements made by Christine Reutebuch to a court services officer prior to sentencing, arguing the statements should be admissible as evidence.
When considering a district court’s decision to suppress evidence, the appellate court reviews the facts by a substantial competent evidence standard of review and reviews the ultimate legal decision drawn from those facts de novo with independent judgment. State v. Webber, 260 Kan. 263, Syl. ¶ 3, 918 P.2d 609 (1996), cert. denied 519 U.S. 1090 (1997).
In the present case, the relevant facts are not in dispute. Reutebuch-pled guilty to one count of sale of methamphetamine and one count of possession of marijuana in exchange for the State’s agreement to dismiss several other drug charges and promise not to request a departure at sentencing. The district court ordered a presentence investigation (PSI) report prior to sentencing.
Reutebuch met with the court services officer and completed a “defendant’s version” of the crime on the PSI report. It stated: “I was the one who thought, ‘everyone else does it-I can to [sic].’ I was the one who made the sales. I also did not want this to be something I would do on a regular basis.”
At the sentencing hearing, the district court withdrew Reutebuch’s plea based on its finding that the plea was not knowingly made. The original charges were reinstated, a plea of not guilty was entered for defendant, and the matter was set for trial.
Reutebuch moved to suppress the incriminating statements she made in her PSI report. In granting Reutebuch’s motion to suppress, the district court found that “the probation officer was functioning as an arm of the court when it was performing its duty to prepare a presentence investigation, and that the prosecution should not be permitted to use statements made during that interview as evidence in its case-in-chief.”
Reutebuch made the statements in the PSI report because she had already pled guilty to the offenses and her Fifth Amendment rights were gone as to the original offense. Without such plea in place, it is unlikely she would have made any such statements. It follows that because the statements were made in connection with the plea, such statements should be suppressed when the plea was withdrawn.
Furthermore, K.S.A. 1996 Supp. 21-4714(c) states:
“The presentence report will become part of the court record and shall be accessible to the public, except that the . . . defendant’s version . . . shall be accessible only to the parties, the sentencing judge, the department of corrections, and if requested, the Kansas sentencing commission. If the offender is committed to the custody of the secretary of corrections, the report shall be sent to the secretary and, in accordance with K.S.A. 75-5220 and amendments thereto to the warden of the state correctional institution to which the defendant is conveyed.”
The statute specifically limits access of the PSI report to the parties, the sentencing judge, the DOC, and the Kansas Sentencing Commission. Thus, it is obvious that the PSI report is compiled for sentencing purposes. See K.S.A. 1996 Supp. 21-4714(b)(l), (c).
The State cites to Minnesota v. Murphy, 465 U.S. 420, 79 L. Ed. 2d 409, 104 S. Ct. 1136 (1984), as authority that the confession should be admissible. In Murphy, defendant pled guilty to a false imprisonment charge. He was sentenced to a prison term of 16 months, which was suspended, and he received 3 years’ probation. The terms of his probation required him to participate in a treatment program for sexual offenders, report to his probation officer as directed, and be truthful with the probation officer. Defendant was informed that failure to comply with the conditions could result in his probation being revoked.
In Murphy, defendant’s counselor informed his probation officer that during the course of treatment, defendant admitted to a rape and murder. The probation officer contacted defendant and told defendant about the information she had received from his counselor. During the course of the meeting, defendant admitted to having committed the rape and murder. At the end of the meeting, the probation officer told defendant that she had a duty to relay the information to the authorities.
Defendant sought to suppress the testimony, claiming violations of his Fifth and Fourteenth Amendment rights. The United States Supreme Court granted certiorari to resolve the question whether a statement made by a probationer to his probation officer without prior warnings is admissible in a subsequent criminal proceeding.
The court held:
“[S]ince [defendant] revealed incriminating information instead of timely asserting his Fifth Amendment privilege, his disclosures were not compelled incriminations. Because he had not been compelled to incriminate himself, Murphy could not successfully invoke the privilege to prevent the information he volunteered to his probation officer from being used against him in a criminal prosecution.” 465 U.S. at 440.
The present case can be distinguished from Murphy, in several respects. In Murphy, the defendant was on probation when he gave his statements, whereas in the present case, Reutebuch had not yet been sentenced. Also, Murphy involved a confession about a different crime than the one for which defendant was serving a sentence. In the present case, Reutebuch’s confession went to the same offense for which she had just entered an invalid plea.
We find that Murphy is not controlling in this matter, and the judgment of the district court is hereby affirmed.
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|
Royse, J.:
Kansas Department of Social and Rehabilitation Services (SRS) brought this action against Joseph W. Anthony to obtain reimbursement for assistance and medical benefits provided for his daughter, Allison K. Morgan. The district court determined SRS had paid a total of $5,666.53 in assistance and medical benefits for Allison and found Anthony liable for one-half of the amounts paid, $2,833.26. SRS appeals.
SRS argues on appeal that the district court misinterpreted K.S.A. 39-718b. Interpretation of a statute is a question of law, subject to unlimited review on appeal. See In re Tax Appeal of Boeing Co., 261 Kan. 508, Syl. ¶ 1, 930 P.2d 1366 (1997).
K.S.A. 39-718b(a) provides:
"[A] child’s parent, parents or guardian shall be liable to repay to the secretary of social and rehabilitation services any assistance expended on the child’s behalf, regardless of the specific program under which the assistance is or has been provided. When more than one person is legally obligated to support the child, liability to the secretary shall be joint and several.”
K.S.A. 39-718b(b) sets forth some exceptions to 39-718b(a) which are not applicable here. Thus, the State is allowed to provide assistance to needy children and to recoup those expended funds from parents who have an obligation to support the children but who have failed to do so. In re Marriage of Walje, 19 Kan. App. 2d 809, 811, 877 P.2d 7, rev. denied 255 Kan. 1002 (1994).
SRS contends that 39-718b requires a parent to repay all assistance provided on the child’s behalf, not just some portion of that assistance determined by the district court. We agree. The statutoiy language clearly and unambiguously establishes parental liability for any assistance paid. The statute does not limit liability to those amounts determined by the district court or make liability discretionary with the district court.
It is a rule of statutory construction that the legislature is presumed to use words in their ordinary and common meaning. Davey v. Hedden, 260 Kan. 413, 425, 920 P.2d 420 (1996). By using the term “any,” the legislature demonstrated an intent that SRS be able to recoup the assistance paid on the child’s behalf, whatever the amount. Had the legislature intended that liability under 39-718b apply only to a part of the assistance provided, the legislature could have said so.
The district court reasoned that Anthony should only be liable for half of the assistance expended, because SRS could recover the balance from the child’s mother. That rationale assumes that no exception set forth in 39-718b(b) applies to the mother. But more troublesome is the fact that the district court’s reasoning ignores the language in 39-718b(a), which provides for joint and several liability to SRS when more than one person is responsible for the child. Joint and several liability may be enforced against either or all of the parties at the creditor’s option. Each obligor has the duty of fully performing the obligation. 30 Am. Jur. 2d, Executions and Enforcement of Judgments § 9, p. 44; Black’s Law Dictionary 837 (6th' ed. 1990) (defining joint and several liability); see Allen v. Elwell, 129 Kan. 296, 298, 282 Pac. 706 (1929); Pickens v. Allstate Ins. Co., 17 Kan. App.2d 670, 673, 843 P.2d 273 (1992), rev. denied 252 Kan. 1093 (1993).
Our conclusion that 39-718b requires a parent to repay all assistance provided on a child’s behalf is consistent with the holding in State ex rel. Hermesmann v. Seyer, 252 Kan. 646, 847 P.2d 1273 (1993). In Seyer, SRS filed a petition on behalf of Colleen Hermesmann alleging that Seyer was the father of Colleen’s minor daughter. The petition also alleged that SRS had provided benefits on behalf of the child and that Colleen had assigned support rights due herself and her child to SRS. After finding that Seyer was the child’s father, the hearing officer determined that Seyer did not have to pay the birth expenses or any of the child support expenses up to the date of the hearing, but the father did have a duty to support the child from the date of the hearing forward. Upon review, the district court concluded that K.S.A. 39-701 et seq. does not confer to a court any discretion in determining liability. The court ruled that the hearing officer erred by not assessing all of the expenditures jointly and severally against both parents. The Supreme Court affirmed the district court’s ruling and stated: “The controlling statute, . . . K.S.A. 1992 Supp. 39-718b, . . . explicitly requires a court to order joint and several liability, with some exceptions not applicable here, when more than one person is legally obligated to support the child.” 252 Kan. at 655. Although the issues in Seyer differed from the issue presented in this case, we believe the opinion supports SRS’s contention that a court has no discretion under 39-718b when ordering reimbursement.
For these reasons, the district court erred by holding Anthony liable to SRS for only half of the assistance provided for his daughter. The decision of the district court is reversed, and the case remanded for entry of a judgment in accordance with this opinion.
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Burgess, J.:
Victoria Shields appeals from an order of the Workers Compensation Board (Board) finding her claim barred by the statute of limitations. We. affirm.
Shields sustained a work-related injury on April 17, 1990, when she fell down a flight of stairs. She reported the incident to her employer, and an accident report was prepared. Her employer directed her to medical care. She was first examined on April 18, 1990, and was referred for physical therapy. Shields received approximately 2 weeks of physical therapy, during which time the physical therapist prescribed a TENS unit for Shields’ use. A TENS unit is an electrical apparatus that applies an electrical stimulus to the body to help reduce pain. Shields began using the unit in late April 1990. According to Shields’ testimony, she was given no instruction from either the physical therapist or the doctor on how long to use the device or when it should be returned to the medical supplier. She further testified that she was given a year’s worth of supplies to operate the unit.
On May 15, 1990, the medical supplier sent Shields a letter informing her that the unit belonged to Builders’ Association Self-Insurance Fund (Builders’ Association) and that Shields should call and arrange for the return of the unit when she had discontinued its use. The letter also included a toll free number to order additional supplies. A carbon copy of the letter was also sent to Builders’ Association. Shields testified that as far as she knew, she was to use the unit until the pain went away.
After receiving 1 week of physical therapy, Shields returned to the doctor on May 9, 1990, and was released to full duty work, without restrictions, beginning May 14, 1990. A return appointment was scheduled on May 29, 1990. Shields never returned for her follow-up appointment. Shields testified that she was given a “return to work” slip that the doctor had written on, but she stuck the slip in her purse and did not read it. From Shields’ testimony, it appears her return appointment may have been written on the bottom of the slip.
Between May 9, 1990, and January 29, 1991, Shields did not seek any medical treatment from any health care provider, even though she continued to experience pain and assumed she could return for medical treatment. On January 29, 1991, Shields saw a second doctor, who later referred her to a third doctor. Shields filed her written claim for compensation on February 6, 1991. At some point, Shields contacted an attorney, and Builders’ Association authorized her to seek treatment from the third doctor in conjunction with her separate claim for compensation in Missouri. Shields was treated between February 20, 1991, and May 8,1991. In June 1991, Shields ran out of supplies for the TENS unit and called to order additional supplies. Her request for additional supplies was denied.
The length of time between Shields’ last examination in May 1990 and the date of her claim for compensation is 273 days. However, Shields maintains that her continued use of the TENS unit until June 1991 constitutes “payment of compensation” within the meaning of the Workers Compensation Act, and, therefore, the time for filing her claim did not begin to run until that time. If Shields’ continued use of the TENS unit is sufficient to toll the statute of limitations, her claim is timely filed.
By award dated December 27, 1995, the administrative law judge made a finding that based on her use of the TENS unit until June 1991, Shields had met her burden of proving that she was still receiving authorized medical treatment at the expense of the employer when she filed her claim for compensation. On de novo review, the Board reversed, finding that Shields’ unsupervised use of the TENS unit did not constitute ongoing medical treatment for purposes of tolling the 200-day limitation period of K.S.A. 44-520a(a).
Shields filed a motion for rehearing, which the Board denied for lack of jurisdiction. Shields appeals.
K.S.A. 44-556 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)(4) and (7) are relevant for purposes of this appeal and state as follows:
“The court shall grant relief only if it determines any one or more of the following:
(4) the agency has erroneously interpreted or applied the law;
(7) the agency action is based on a determination of fact, made or implied by the agency, that is not supported by evidence that is substantial when viewed in light of the record as a whole, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this act.”
The 1993 amendments to the workers compensation laws limit 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).
An appellate court will uphold findings supported by substantial evidence even though there is evidence of record which would have supported contrary findings. In workers compensation cases, substantial evidence is evidence possessing something of substance and relevant consequence and carrying with it fitness to induce conviction that the award is proper, or furnishing substantial basis of fact from which the issue tendered can be reasonably resolved. Angleton v. Starkan, Inc., 250 Kan. 711, 716, 828 P.2d 933 (1992); Foulk v. Colonial Terrace, 20 Kan. App. 2d 277, 285, 887 P.2d 140 (1994), rev. denied 257 Kan. 1091 (1995).
K.S.A. 44-520a(a) requires a workers compensation claimant to serve a written claim for compensation upon the employer within 200 days after the accident, or in cases where compensation payments have been suspended, within 200 days after the date of the last payment of compensation. Lawrence v. Cobler, 22 Kan. App. 2d 291, 294, 915 P.2d 157, rev. denied 260 Kan. 994 (1996). The furnishing of medical care to an injured employee is considered the payment of compensation under the Workers Compensation Act when authorized, either expressly or by reasonable implication, by the employer. Sparks v. Wichita White Truck Trailer Center, Inc., 7 Kan. App. 2d 383, Syl. ¶¶ 1, 2, 642 P.2d 574 (1982). If an employer is on notice that an employee is seeking treatment on the assumption that treatment is authorized by the employer, the employer is under a duty to disabuse the employee of that assumption if the employer expects the 200-day limitation to take effect. Blake v. Hutchinson Manufacturing Co., 213 Kan. 511, 515, 516 P.2d 1008 (1973).
This case involves a conflict between the employer’s duty to notify its injured employee that the employer will no longer pay for continued medical treatment and the duty of the injured employee to return for scheduled appointments with his or her treating physician.
Shields has experienced no reduction in the level of pain she associates with her injuries. It is reasonable to conclude that a worker in Shields’ condition would seek out her treating physician for continued treatment, rather than suffer for 8 months before seeking additional medical care from an alternative source. Additionally, Shields’ failure to return for the May 29, 1990, follow-up appointment could be viewed as a unilateral decision by Shields to abandon her medical treatment. Had she returned as scheduled, her injuries might well have been addressed through an authorized course of treatment. Although her continued use of the TENS unit is uncontroverted, the unsupervised use of the unit, in conjunction with her testimony that she continued to experience debilitating pain from her injuries and her conflicting testimony regarding her ability to return for treatment, leads us to the conclusion that Shields was not operating under a reasonable assumption that her medical treatment was ongoing. She was released back to work with no restrictions. As far as her employer or its insured knew, this was the last time Shields received any medical treatment. It would be difficult to say that her employer was “on notice” of Shields’ ongoing medical treatment, notwithstanding the reference made to the TENS unit in her medical reports.
Although Kansas does not require that the employer have actual knowledge that a claimant is receiving medical treatment, it would be unreasonable to find that an employer was on notice of ongoing medical treatment where the injured employee fails to return to his or her treating physician as scheduled. The record supports the Board’s finding that Shields abandoned her medical treatment after May 9,1990. Accordingly, Shields failed to file her claim within 200. days of the last day she received medical treatment from her employer.
Shields argues that she was unaware of the follow-up appointment and that her testimony on the issue is uncontroverted and, therefore, conclusive. The medical reports indicate that Shields was to return for a follow-up appointment on May 29,1990. Shields testified that she was given a “return to work” slip after her May 9, 1990, appointment that she stuck in her purse. Her testimony indicates that the date of the appointment was written on the bottom of the slip. From this evidence, the Board could reasonably conclude that Shields knew or should have known that she was scheduled for an appointment on May 29, 1990. An injured employee has some duty to keep abreast of his or her course of treatment.
After Shields filed her claim for compensation, her employer authorized additional treatment. Shields maintains that the subsequent authorization of medical treatment revived her claim under the Act.
Shields raised this issue for the first time in her motion for rehearing. Because the Board has no authority to rule on such a motion, this issue has not been properly preserved for appeal. See Bolyard v. Kansas Dept. of SRS, 259 Kan. 447, 455, 912 P.2d 729 (1996); Waln v. Clarkson Construction Co., 18 Kan. App. 2d 729, 731, 861 P.2d 1355 (1993).
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Green, J.:
Charles F. Barnett, Jr., appeals from a protection from abuse order entered against him. Nicki Barnett, Charles’ ex-wife, moved for an order protecting Nicholas Barnett, the parties’ 13 year-old-son, from abuse by Charles. In addition, Nicki asked the trial court to change residential custody of Nicholas from Charles to Nicki and to award her attorney fees in this matter. The trial court granted Nicki’s requested relief, although the court reduced the amount of her claimed attorney fees.
On appeal, Charles challenges whether the evidence was sufficient to sustain the protection from abuse order. Given the fact that Nicholas did not suffer substantial physical pain or physical impairment as required by Paida v. Leach, 260 Kan. 292, Syl. ¶ 1, 917 P.2d 1342 (1996), we reverse. Nicki cross-appeals, arguing that the trial court erred in denying her request for child support. Nicld further contends that the trial court erred in denying a portion of her claimed attorney fees. We disagree.
Nicki testified that she and Charles were divorced in 1990. Initially, Nicki had residential custody of Nicholas. In 1995, due to Nickfis emotional problems and Nicholas’ desire to live with his father, Nicld and Charles agreed that Nicholas should live with Charles.
Charles testified that on the morning of June 3, he reminded Nicholas that he (Nicholas) had a psychologist’s appointment at 3 o’clock that afternoon. Nicholas wanted to skateboard instead. Charles testified that he . explained to Nicholas that it was particularly important that he keep the appointment because he was failing three subjects in school and disrupting classes. Nicholas had already missed one appointment. Charles testified that Nicholas stated that he would go either to summer school or to see the psychologist. Charles gave Nicholas permission to go out but told him that he had to be back by 2 p.m. Nicholas left home between 10:30 and 11 a.m. Between 6 and 6:30 p.m., Nicholas called home and asked to stay all night with a friend. Charles said, “[N]o, Nick, you were supposed to be back here at 2:00; you didn’t show; you are in trouble. I want to come and get you.”
In describing the discipline that he administered to Nicholas, Charles testified:
“A. I went and picked him up and brought him home and came home and sat down in the chair. There is an ottoman opposite that chair, and I sat at the ottoman, and I said, Nick, I told you to be back here at 2:00; you weren’t here. I didn’t hear from you or anything.
“Q. Did you yell at him?
“A. No.
“Q. Was your voice raised?
“A. No. No, I was very calm, cool and [collected].
“Q. Were you cursing at him?
“A. No.
“Q. Did you have a stick?
“A. Yes, I did have a switch. I beg to differ with that. It was a switch cut off of a tree.
“Q. Describe it, please.
“A. Oh, it was long, because he is five foot six, very fast, and the stick was long, because I thought he was running from me, and I wanted to inflict some punishment other than grounding him. And my plans — because it hadn’t worked before, my plans were to switch his legs.
“Q. Did you switch his legs?
“A. I switched his legs.
“Q. What happened then?
“A. He had long corduroy pants on. He didn’t feel a thing; looked at me and smiled and laughed. I was wanting some punishment, so I did. I struck him on the back about two or three times probably was all.
“Q. Did he say anything to you while you were switching him?
“A. Yeah.
“Q. What did he say?
“A. He said, You fucker. This is fucking child abuse. This is fucking child abuse. He kept saying, This is fucking child abuse. And then he stood up and came for me and the switch, and I wasn’t about to let him have the switch. And he was about to knock me off balance, so I didn’t slap my — I don’t recall slapping him. I did shove him back into the chair with my hand, my open hand on his cheek. Impossible to have left a mark.
“Q. What happened? Did you yell at him then?
“A. Yes, I did. He said this is fucking child abuse. I said this is not child abuse. This is parent abuse, and I repeated to him that he is failing in three subjects, he is causing disruptions in class every day. The counselor said he was out of control.
“Q. What did he do then?
“A. Well, he went to his room and said he was going to call his mother, started slamming doors and throwing things around and [I] heard a bunch of noise.
“Q. Did you go upstairs?
“A. The phone — no, I didn’t. I just thought I would let him get rid of his frustrations or whatever it was.
“Q. Was he crying at that time?
“A. I don’t think so. I don’t think so. He was upset, of course.
“Q. Had you previously disciplined him like that?
“A. No, never.
“Q. How had you disciplined him before?
“A. Grounding and just talking to him is how we tried to discipline him before, but he lied to us about turning in his homework, about doing his homework.”
In explaining that previous methods of disciplining Nicholas had been ineffective, Charles testified:
“Grounding hadn’t worked before. Talking to him hadn’t worked. This has been going on for about a year with his mother as well as me. I felt that because he was giving me orders that he would either go to the summer school or [to] the psychologist was an attempt to control, take parental control away from me.”
Although Charles testified on cross-examination that he intended to inflict some pain on Nicholas by switching him, he stated that he did not intend to injure him:
“Q. What was your purpose in using a branch to discipline him?
“A. Well, he is pretty good-sized, and I didn’t think I could spank him, and I used a switch because I didn’t think it would injure him much at all if I switched his legs. I just wanted him to feel a little pain for not showing up, for disobeying me and not showing up at 2:00 when I told him to.”
Nicholas testified that although he told his father he would be visiting a friend and skateboarding, Charles reminded him that he (Nicholas) had a psychologist’s appointment that afternoon and told him to return home by 3 p.m. Nicholas described the incident as follows:
“Q. And did your dad say anything to you when you told him you were going out?
“A. Yeah, he said be back by three.
“Q. Why were you supposed to be back by three?
“A. To go to an appointment.
“Q. Had you and your dad talked about that previously that morning?
“A. Yeah.
“A. That morning when I woke up he — right when I was going out, he told me I had an appointment.
“Q. What did you say to him?
“A. I said, no, I am not. I said either that or summer school.
"Q. And what did he say?
“A. He said — I can’t remember. I think he said both.
“Q. Did he tell you what time the psychologist appointment was?
“A. Yeah.
“Q. What time was that?
“A. I think it was around 3 or 3:30.
“Q. Did you call him up before that appointment to tell him where you were?
“A. No.
“Q. How does your father generally discipline you?
“A. Yells at me and then—
“Q. Has he ever physically spanked you before?
“A. When I was younger.
“Q. Could you describe the stick to the judge?
“A. I remember it being like a little shorter than a pool cue and, like, this thick around."
After his father picked him up, Nicholas described the discipline that he received when he arrived home as follows:
“Q. What happened when you got home?
“A. I sat in the chair in the kitchen, and I saw he was still in the garage, and I saw a stick in the front of the chair and then he came in.
“Q. So your dad came in from the garage; what happened when he came in from the garage?
“A. What I can remember, he came in and then he picked up the stick and he started, like, yelling.
“Q. Do you remember what he said to you if anything?
“A. Not really. Just he knew I was — he said I know you are going to get in trouble and then I was grounded.
“Q. Did he call you any names?
“A. Yes.
“Q. Tell the Court what those names were.
“A. It was asshole and, like, worthless son of a bitch.
“Q. You say he beat you. What did he — I’m sorry. What did he do with the stick?
“A. He picked it up, and we started arguing and then he started to hit me.
“Q. Where did he hit you, Nick?
“A. In the front.
“Q. Nick, I know this is real difficult, but I am going to need you to tell the judge where he hit you.
“A. In the front, and I kind of blocked it. And then once he hit me in the back and that is when I tried to grab the stick from him, when I got up, and then [his] open hand hit me on the side of the face. And then he got the stick back and hit me in the back real hard.
“Q. When you say ‘real hard,’ did it hurt? How bad did it hurt, Nick?
“A. I was screaming.
“Q. . . . When you say your father hit you with the stick in the front, can you tell the Court where he hit you?
“A. He [swung] it and that kind of hit my arm while I was trying to defend myself.
“Q. How many times did he hit you with a stick?
“A. Around six or seven.
“Q. Were you afraid, Nick?
“A. Yeah.
“Q. What were you afraid was going to happen?
“A. He was going to hit me more.
“Q. And when he hit you, that hurt? When he hit you that hint?
“A. [Yes.]
“Q. Are you afraid of your dad, Nick?
“A. Not really, just that day.
“Q. Do you want to go back and Uve with him?
“A. No.”
Although Nicki did not witness the incident, she testified that Nicholas called and told her that Charles had beaten him with a stick. Nicki went to pick Nicholas up and then called the police. Testifying that Nicholas had welts on his back and a reddened area on his face, Nicki described these injuries as follows:
“Q. Did you notice any visible injuries on him?
“A. Yes, I did. The welts on his back and a mark on his face, red mark.
“Q. Describe the welt on his back.
“A. It was about, I don’t know, six inches. It was raised and red. It was a welt.
There were several smaller ones, one primary welt.
“Q. Describe the other welts that you described.
“A. They were smaller and red.
“Q. Smaller?
“A. Similar.
“Q. Describe them.
“A. I don’t know. They are welts maybe an inch, two inch.
“Q. How many?
“A. I think there were two other ones.
“Q. Okay. And you indicated that you observed something on his face?
“A. It appeared to be a red bruise and kind of not a bruise but a red area on his face, dark.
“Q. Did you take him to the hospital?
“A. No, I did not.
“Q. Did you take him to a physician?
"A. No, I did not.
“Q. Did you take him to any medical provider at all?
“A. No, I did not.
“Q. Did you give him any medication at that time?
“A. He had a headache. I gave him I think some Tylenol.”
A police officer described Nicholas’ injuries as a 10- to 12-inch welt which was red in color and went from midway in his back to his side and a “red area around his eye that looked like it was beginning to bruise, but it had not started yet.” The officer testified that Nicki and Nicholas refused his offer to call an ambulance because they “did not believe it was necessary.”
Charles argues that the trial court erred in finding that a protection from abuse order was warranted. To address this question, we must review the trial court’s findings of fact and conclusions of law, and our standard of review is as follows:
“Where the trial court has made findings of fact and conclusions of law, the function of an appellate court is to determine whether the findings are supported by substantial competent evidence and whether the findings are sufficient to support the trial court’s conclusions of law. Substantial evidence is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. Stated in another way, ‘substantial evidence’ is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion.” Tucker v. Hugoton Energy Corp., 253 Kan. 373, 377, 855 P.2d 929 (1993).
Moreover, when this court considers conclusions of law, our standard of review is unlimited. See Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991).
K.S.A. 60-3104 of the Protection from Abuse Act, K.S.A. 60-3101 et seq., provides in part:
“(a) A person may seek relief under this act or any parent of or adult residing with a minor child may seek relief under this act on behalf of the minor child by filing a verified petition with any district judge of the judicial district or with the clerk of the court, alleging abuse by another with whom the person or child resides.”
The applicable portions of K.S.A. 60-3102 provide:
“As used in this act ‘abuse’ means the occurrence of one or more of the following acts between persons who reside together, or who formerly resided together:
(a) Willfully attempting to cause bodily injury, or willfully or wantonly causing bodily injury.
(b) Willfully placing, by physical threat, another in fear of imminent bodily injury.”
“The Act requires the district court to conduct a hearing ‘at which the plaintiff must prove the allegation of abuse by a preponderance of the evidence and the defendant shall have an opportunity to present evidence on the defendant’s behalf.’ K.S.A. 60-3106(a).” Paida v. Leach, 260 Kan. 292, 296, 917 P.2d 1342 (1996).
Our Supreme Court recently interpreted the Protection from Abuse Act in Paida. Like the present case, the mother in Paida moved for protection from abuse on behalf of her two teenáge children. The parents were divorced and the father had custody of the children. After an altercation with the son in which the father pulled the son’s arm behind his back, the daughter interceded on her brother’s behalf. By the daughter’s own testimony, she yelled profanities at her father, who later washed her mouth out with a bar of soap. The son sustained a sore shoulder and the daughter had small cuts on her lips from her braces. After hearing the evidence, the trial court found that the plaintiffs had failed to sustain their burden of proof and dismissed the case. The mother appealed, arguing that the trial court had disregarded undisputed evidence that the children had been abused. In disagreeing with the mother’s contention, our Supreme Court explained what the legislature intended when it used the phrase “bodily injury” in the Act. In seeking a proper definition for the words “bodily injury,” the court quoted:
‘Webster’s New Twentieth Century Dictionary of the English Language 944 (2d ed. 1973) defines injury as ‘physical harm or damage to a person [or] property.’ Black’s Law Dictionary 786 (6th ed. 1990) defines bodily injury as ‘[p]hysicalpain, illness or any impairment of physical condition.’ “Serious bodily injury” means bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.” 260 Kan. at 300.
Synthesizing several definitions, the court stated: "We conclude that bodily injury under the Act requires a finding of substantial physical pain or an impairment of physical condition.” (Emphasis added.) 260 Kan. at 301. The court then applied this standard to the Paida facts and reasoned:
“It was alleged that [the father’s] putting the bar of soap in [the daughter’s] mouth caused bodily injury to her. There is no evidence of pain, certainly not substantial pain, nor is there any evidence of impairment of [the daughter’s] physical condition. Thus, no bodily injury within the meaning of the Act, as we interpret it, was shown.” 260 Kan. at 301.
The Paida court also emphasized that the legislature did not intend that the Act dictate parental discipline. Distinguishing between discipline and abuse, the Paida court reasoned:
“It is Paida’s position that the legislature has defined abuse so that ‘if discipline in any form causes bodily injury, it is a form of discipline which merits an order of protection in favor of the victim.” . . . There undoubtedly are instances when discipline of children escalates into domestic violence which would warrant relief under the Act, but discipline of children is not the chief-evil at which the Act was aimed. . . . [T]he Act is not intended to dictate acceptable parental discipline or unnecessarily interfere in the parent/child relationship absent a clear need to protect the child. The State's intrusion should be limited to injunctive relief where parental conduct causes more than minor or inconsequential injury to the child.” (Emphasis added.) 260 Kan. at 300-01.
Applying Paida to the facts of the instant case, Charles argues that the evidence did not demonstrate that Nicholas suffered substantial physical pain or impairment of his physical condition. Charles argues that any pain Nicholas suffered was insubstantial and temporary and that the welts and reddening were temporary manifestations of reasonable disciplinary measures.
Nevertheless, Nicki argues that Paida is distinguishable from this case in that Paida dealt solely with K.S.A. 60-3102(a). Unlike Paida, Nicki argues that the present case was brought under both K.S.A. 60-3102(a) and (b). Although the trial court neglected to specify under which subsection it had determined that the abuse occurred, the trial court’s decision dealt solely with the bodily injury aspect of K.S.A. 60-3102(a). Nevertheless, we will address briefly K.S.A. 60-3102(b) and the first prong of K.S.A. 60-3102(a).
Under K.S.A. 60-3102(b), there is no requirement of actual injury. The respondent’s conduct must constitute a physical threat which causes the child to fear imminent bodily injury. Although Nicholas stated that he was afraid while Charles was switching him, he never stated that he was in fear of imminent bodily injury, as required by K.S.A. 60-3102(b). Because Nicki failed to produce evidence that Nicholas was in fear of imminent bodily injury, the evidence was insufficient to find abuse under this subsection.
Next, we must determine whether the evidence was sufficient to find that Charles willfully attempted to cause substantial physical pain or physical impairment to Nicholas under K.S.A. 60-3102(a). Although the testimony was conflicting as to the size of the switch Charles used, the evidence was lacking as to whether Charles willfully attempted to cause substantial physical pain or physical impairment to Nicholas. To the contrary, Charles testified that he only wanted to inflict “a little pain” on Nicholas for failing to keep his scheduled appointment with the psychologist. Charles further testified that he did not intend to injure Nicholas, and Nicki has failed to produce sufficient evidence to the contrary.
Moreover, as to K.S.A. 60-3102(b) and to the first prong of 60-3102(a), Nicki does not argue on appeal that the evidence was sufficient for the trial court to find abuse under either of these theories. Even though an issue may be incidentally raised in a brief, if not argued, it will preclude our review of the issue. See Brubaker v. Branine, 237 Kan. 488, 490, 701 P.2d 929 (1985).
Finally, for Charles’ conduct to constitute abuse, we must determine if Nicki proved that Charles either willfully or wantonly caused Nicholas to sustain a substantial injury. First, we will address whether Charles intended to cause a substantial injury to Nicholas. Nicki argues in her brief that “the evidence of [Charles’] wrongful intent is abundant.” We disagree. As stated earliér, the evidence was insufficient to show that Charles intended to cause injury to Nicholas. Although Nicholas testified that Charles hit him six or seven times with the switch, Nicholas testified to feeling only one hard hit. This hit was to his back. From previous testimony, we know that this hit did not break Nicholas’ skin. Consequently, we determine that Nicki failed to meet her burden on this issue.
Next, in discussing wanton conduct, the Paida court stated that “[wjanton conduct without [causing substantial physical pain or physical impairment] is not a basis for injunctive relief under the Act. K.S.A. 60-3102(a).” 260 Kan. at 297. Consequently, if the evidence fails to show that Nicholas suffered substantial pain or in jury, we need not address whether Charles’ conduct was wanton. Paida, 260 Kan. at 301.
In finding that Charles injured Nicholas, the trial court stated:
“I would like to comment on what I have heard with regard to the allegations of abuse. I heard the father’s testimony that the son disobeyed, refused to comply with lawful orders. Any minor child in the custody of a parent has the obligation to comply with the parent’s lawful orders and direction. Whether the child agrees or not is not the point. Parent is responsible for die child likewise in orders to the child, but in this case father went too far.
“Under the statute, discipline cannot involve the infliction of pain or any injury. And in this case we do have an indication of injury, and that is where he crossed the step beyond the line here. I don’t mean to minimize the problems parents have with teenage children. But there are ways to do it besides taking a stick and hitting a child causing welt and redness. That is not going to help the situation, and, as we found here, only makes the situation worse.” (Emphasis added.)
These statements indicate that the trial court erroneously interpreted the statute to prohibit any discipline involving the “infliction of pain or any injuiy.” In seeking to limit trial court discretion and intervention in the way parents discipline their children, the Paida court stated:
“Paida certainly has a point in arguing that it would be undesirable to have each judge freely imposing his or her own morality, own concept of what is acceptable, own notions of child rearing, ... on the circumstances of the litigants. Contrary to her contention, however, defining bodily injury to exclude trivial or minor consequences and require either substantial pain or impairment of physical condition would lessen the potential for the exercise of unbridled trial court discretion.” (Emphasis added.) 260 Kan. at 301.
Here, the trial court did not determine the extent of Nicholas’ injury, and Nicki did not show that the discipline of Nicholas caused him substantial physical pain or physical impairment. Nicholas’ welts and the reddening on his cheek were no more substantial than the daughter’s cut lip and the son’s sore arm in Paida. Moreover, Nicholas neither sought nor received medical attention, nor did he testify as to any enduring effects from the incident. Based upon the standards set out in Paida, the trial court’s legal conclusion that “the infliction of pain or any injury” on a child would constitute abuse within the meaning of the Kansas Protection from Abuse Act was improper.
Next, Nicki appeals the trial court’s ruling denying a portion of her requested attorney fees. Nicki argues that the attorney fee award was inadequate and, therefore, penalizes her for bringing the instant action. Nicki argues that the trial court’s order granting $750 of the requested $5,005 was an abuse of the court’s discretion. We disagree.
“The standard for awarding attorney fees, as well as an appellate court’s review of such an award, is well established. In Buchanan v. Employers Mutual Liability Ins. Co., 201 Kan. 666, Syl. ¶ ¶ 9-11, 443 P.2d 681 (1968), we stated:
‘The trial court itself is an expert in the area of attorneys’ fees and can draw on and apply its own knowledge and expertise in evaluating their worth.’
‘The reasonable value of attorneys’ fees rests within the sound judicial discretion of the trial court and its determination will not be disturbed in the absence of an abuse of discretion.’
‘Appellate courts, as well as trial courts, are experts concerning the reasonableness of attorneys’ fees and in the interests of justice may fix such fees when in disagreement with the views of the trial court.’ ” City of Wichita v. B G Products, Inc., 252 Kan. 367, 372-73, 845 P.2d 649 (1993).
At the conclusion of the hearing, Nicki requested that the court rule on the issue of attorney fees. The trial court directed that Nicki’s counsel submit an itemization of his time and charges incurred on the case. In response, Charles filed a detailed objection to the requested fees. Next, Nicki responded to Charles’ response.
Contrary to Nicki’s argument, the fact that the trial court did not award the full amount of the requested fees does not mean that the court failed to consider the time Nicki’s counsel invested in the case or the difficulty and complexity of the issues involved. Although Nicki’s counsel may have spent many hours in preparing this case, the petition was a simple form which merely required check marks in the appropriate boxes. In addition, the trial court limited the scope of the hearing. Finally, Nicki does not contend that the trial court’s decision was guided by passion or prejudice. Therefore, despite the fact that a different judge may have awarded a different amount, either more or less, the record does not support a finding that the trial court abused its discretion.
Charles argues that the trial court erred in awarding any attorney fees because the underlying order was erroneous. We disagree. K.S.A. 60-3107(a)(7), which allows the trial court to award attorney fees and costs to either party, has not been interpreted by our appellate courts.
The legislature stated its intent that the Act “be liberally construed . . . to facilitate access to judicial protection for the victims of domestic violence.” K.S.A. 60-3101(b). If we were to construe the Act as suggested by Charles, this would place a chilling effect upon the bringing of borderline cases to the attention of the court system. We decline to adopt that reasoning. Furthermore, because K.S.A. 60-3107(a)(7) does not require a party’s success as a condition to receiving an attorney fee award, the trial court did not abuse its discretion in awarding Nicki $750 for attorney fees.
Next, Nicki argues that the trial court erred in denying her request for child support. Although the trial court entered a protection from abuse order, the court did not order child support. Instead, the trial court instructed the parties to return to the hearing officer to resolve that issue. In allowing the trial court to award child support, the Act provides in K.S.A. 60-3107:
“(a) The court shall be empowered to approve any consent agreement to bring about a cessation of abuse of the plaintiff or minor children or grant any of the following orders:
(6) Ordering support payments by a party for the support of a party’s minor child or a party’s spouse. Such support orders shall remain in effect until modified or dismissed by the court or until expiration and shall be for a fixed period of time not to exceed one year. On the motion of the plaintiff, the court may extend the effect of such order for 12 months.”
Nicki argues that the trial court’s order that she return to the hearing officer for a modification is inherently prejudicial to her because she would be unable to recoup support payments for at least 2 months. Nicki reasons that K.S.A. 60-1610(a)(l), which provides for changes or modifications of child support, only allows modifications “retroactive to a date at least one month after the date that the motion to modify was filed with the court.” Nicki was awarded custody under a temporary order dated June 4,1996. The final protection from abuse order, which again granted Nicki custody but denied her request for support, was filed July 18, 1996. Therefore, she argues, she cannot recover child support for the period from June 4, 1996, through July 18, 1996, and for at least 1 month after the date the petition for modification of support is filed.
Charles argues that the trial court did not have the necessary financial information of the parties to rule upon the issue of child support. We agree. If the trial court was provided with the parties’ financial information, Nicki has failed to include such information in the record on appeal. “ ‘An appellant has the burden to designate a record sufficient to establish the claimed error. Without an adequate record, an appellant’s claim of alleged error fails.’ [Citation omitted.]” McCubbin v. Walker, 256 Kan. 276, 295, 886 P.2d 790 (1994). Consequently, Nicki’s argument fails.
Affirmed in part and reversed in part.
Bell, J., concurring in part and dissenting in part: The majority has been led to the conclusion that the standard of review is a question of statutory interpretation and, therefore, a question of law over which this court has unlimited review rather than whether there is any evidence to support the trial judge’s decision.
My search of the record on appeal has turned up nothing to indicate that the trial judge was not fully aware of our Supreme Court’s definition of abuse as set forth by Justice Allegrucci in Paida v. Leach, 260 Kan. 292, 296, 917 P.2d 1342 (1996).
In fact, the record reveals the following exchange prior to the reception of evidence:
“THE COURT: Ail right. Counsel, as I understand the Paida decision the court has indicated we must have a finding here of impairment of a physical condition. Do you have any evidence that there is any physical impairment?
“MR. HOWARD: If I may, I would like to address that in some detail.
“First of all, with regard to the Paida decision, what counsel has not told you but what was apparent from that case is that the Paida claimants were proceeding only and solely under 60-3102(a), wantonly causing bodily injury.
“Now, again, I would like to emphasize for the Court that in addition to that clause, the Protection from Abuse Act also embraces Willfully attempting to cause bodily injury’ or under subparagraph (b), Willfully placing, by physical threat, another in fear of imminent bodily injury.’
“THE COURT: Bodily injury is a term of art that is now defined by the Paida case.
“MR. HOWARD: In terms of when to proceed under bodily injury, the Paida case makes it clear that they are looking for impairment of physical condition or physical pain.
“THE COURT: Let me see if I understand what the evidence is intended to show here. You are not going to show that there was an impairment of a physical condition but rather pain? That is your—
“MR. HOWARD: No. I believe the testimony will establish both that there was physical pain suffered by Nicholas as well as impairment of a physical condition, at least on a temporary basis, because of his reaction to what happened on June 3.
“THE COURT: Let’s go ahead and proceed with the evidence then directly on those issues.”
Later the trial judge ruled that “in this case father went too far.” The record can only be read to indicate noncompliance with the Paida standard by the negative inference of adding emphasis to the part of the trial judge’s ruling in which he said, “Under the statute, discipline cannot involve the infliction of pain or any injury. And in this case we do have an indication of injury, and that is where he crossed the step beyond the line here.”
I believe the proper standard of review was set forth by Justice, now Chief Justice, McFarland in Wisker v. Hart, 244 Kan. 36, 37, 766 P.2d 168 (1988). Although in that case the trier of fact was a jury, it should be noted that the following language was used by Justice Lockett in the nonjury case of Lentz Plumbing Co. v. Fee, 235 Kan. 266, 269, 679 P.2d 736 (1984):
“Where the trial court has made findings of fact and conclusions of law, the function of this court on appeal is to determine whether the findings are supported by substantial, competent evidence and whether the findings are sufficient to support the trial court’s conclusions of law. In determining whether a trial court’s findings of fact are supported by the evidence, it is not the function of an appellate court to weigh conflicting evidence, pass on the credibility of witnesses or redetermine questions of fact. Carpenter v. Riley, 234 Kan. 758, 675 P.2d 900 (1984).”
I respectfully suggest that the brevity of the trial judge’s factual findings with respect to the underpinnings of the abuse should not be a platform for this court to conclude that the trial judge did not understand the evidentiary requirements under the Protection from Abuse Act.
It appears to me that the finding of abuse in this case is more one of fact than of law and that the findings of the trial court should be affirmed.
I concur with the balance of the opinion. | [
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|
PlERRON, J.:
Cecil E. Walker appeals from the district court’s order revoking his probation and the determination of the severity level of his pre-guidelines conviction of possession of cocaine. Walker also challenges the limited retroactivity provision of the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq. For the reasons set forth below, we affirm in part, reverse in part, and remand to the district court.
On April 2, 1993, Walker pled guilty to one count of possession of cocaine contrary to K.S.A. 65-4127a, a class C felony. At the time, Walker was on probation for an earlier conviction of possession of cocaine. Although the State could have charged Walker with a class B felony in light of his prior conviction for possession, K.S.A. 65-4127a, the State only charged him with a class C felony. Walker was given a suspended sentence for a period of 2 years, subject to numerous conditions.
In July 1994, a hearing was held on the State’s motion that Walker’s probation be revoked in both cases. The court found Walker had violated his probation, but reinstated the probation. A year later, a second probation violation hearing was held where Walker was found to have violated his probation but, again, probation was reinstated and extended. In December 1995, Walker stipulated to violating probation, and his probation was revoked. The district court imposed a sentence of 3 to 10 years — within the statutory range for class C felonies (K.S.A. 21-4501[c]) — and he was committed to prison.
At the time of the probation revocation and imposition of sentence, the court also calculated Walker’s KSGA sentence as required by K.S.A. 21-4724(f). It held that Walker’s KSGA sentence would have been 46 months, based upon a finding that Walker’s most recent conviction was a severity level 2 drug felony and that his criminal history score was “I.” At the time of this hearing, Walker objected to the severity level assessed to his most recent conviction.
Walker has moved for summary disposition of this appeal without briefing pursuant to K.S.A. 21-4721(g) and (h). In his motion, Walker raises two issues which can be summarily rejected. First, he challenges the limited retroactivity provision of the KSGA, K.S.A. 21-4724(b). This argument, of course, has been rejected by the Kansas Supreme Court in Chiles v. State, 254 Kan. 888, 869 P.2d 707, cert. denied 513 U.S. 850 (1994), and we are bound by the Chiles decision.
In addition, Walker claims the district court abused its discretion in revoking his probation. Once a violation of the conditions of probation has been established, the decision whether to revoke or reinstate probation is left to the discretion of the trial court. The decision will not be reversed absent abuse of discretion. See State v. Reed, 254 Kan. 52, 59-60, 865 P.2d 191 (1993). Based upon Walker’s stipulations that he had violated his probation and the numerous chances the district court gave him, we find no abuse of discretion by the trial court in revoking Walker’s probation.
The final issue raised by Walker attacks the severity level assessed to his 1993 conviction of possession of cocaine. Under the Supreme Court’s decisions in Farris v. McKune, 259 Kan. 181, Syl. ¶ 5, 911 P.2d 177 (1996), and State v. Fierro, 257 Kan. 639, Syl. ¶ 4, 895 P.2d 186 (1995), the court is required to look at all the facts in a pre-KSGA case to determine the proper severity level and criminal history score for that conviction.
In Farris and Fierro, however, the court was dealing with the indecent liberties statutes, which were significantly changed when the KSGA was enacted. In this case, the 1993 legislature repealed K.S.A. 65-4127a and replaced it with a substantially similar statute, K.S.A. 1996 Supp. 65-4160. Both the statutes before and after the enactment of the KSGA provided for charging a defendant with a different level of felony based upon whether the defendant had a prior conviction for a similar offense. Under K.S.A. 65-4127a, a defendant such as Walker could be charged with a class B felony because of his prior possession conviction. Under K.S.A. 1996 Supp. 65-4160(b), such a defendant could be charged with a severity level 2 felony. First-time possession convictions were class C felonies under K.S.A. 65-4127a and are severity level 4 felonies under K.S.A. 1996 Supp. 65-4160(a).
We note that under these statutes, proof of the prior conviction for possession is not an “element” of the enhanced felony. The Supreme Court has held that under K.S.A. 65-4127a, the State is not obligated to prove the prior conviction as an element of the class B felony offense because the prior possession only enhances the penalty. State v. Loudermilk, 221 Kan. 157, 161, 557 P.2d 1229 (1976). In that case, however, the court noted it was proper for the complaint to allege the prior conviction in order to “ ‘inform [the] accused of what offense he is charged, so as to enable him to prepare his defense.’ [Citation omitted.]” 221 Kan. at 158. See also State v. Hanks, 10 Kan. App. 2d 666, 667-68, 708 P.2d 991 (1985), rev. denied 238 Kan. 878 (1986) (discussing inclusion of prior theft convictions in a complaint charging defendant with a class E felony under K.S.A. 1984 Supp. 21-3701; allegations were to put defendant on notice of seriousness of charge).
A plea of guilty for the purpose of applying the sentencing guidelines to a charge of simple possession of cocaine, which is not enhanced by a previous conviction for possession of cocaine, fixes the severity level of the crime pled to. For the purpose of applying the sentencing guidelines, a plea of guilty to simple possession of cocaine cannot be counted as a conviction for possession after a previous conviction, even if it could have been charged at that level due to a previous conviction for possession of cocaine.
In this case, the State only charged Walker with a class C felony, he pled guilty to a class C felony, and he was given an indeterminate sentence for a class C felony. Therefore, the State knowingly chose to charge Walker with a lesser offense under the law as it then existed. Because both the pre- and post-July 1, 1993, statutes contained the same differentiation between convictions for first and second offenses, the rationale of Fierro and Farris is inapplicable. Under these circumstances, Walker’s pre-KSGA conviction had to be converted to the equivalent severity level in the postKSGA statutes. Accordingly, the district court erred in finding that Walker’s conviction translated to a severity level 2 offense. Based upon the undisputed record before the court, Walker’s conviction translated to a severity level 4 crime on the nondrug grid. K.S.A. 1996 Supp. 65-4160(a). Therefore, this portion of the district court’s order is reversed.
It is not clear if the district court was presented with a full record regarding Walker’s criminal history for purposes of determining a criminal history score. Accordingly, we remand this case for such a determination. We note that pursuant to K.S.A. 21-4710(d)(ll), the district court can consider Walker’s prior conviction for possession of cocaine in determining his criminal history score.
Affirmed in part, reversed in part, and remanded. | [
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|
Marquardt, J.:
Miguel A. Diaz Rodriguez (Diaz) appeals from the district court’s decision that a liquidated damages clause in his contract with Learjet, Inc., (Learjet) was reasonable and enforceable.
On August 21, 1992, Diaz executed a contract with Learjet to purchase a model 60 jet aircraft. The contract called for a $250,000 deposit to be made upon execution of the contract; a $750,000 payment to be made on September 18,1992; a $1,000,000 payment to be made 180 days before the delivery date of July 30, 1993; and the balance of the purchase price to be paid upon delivery.
Diaz paid Learjet $250,000 on the day that he executed the contract, but made no other payment.
At the time of the purchase, Diaz worked for Televisa. Diaz was purchasing the aircraft at the request of Alejandro Burillo, his supervisor at Televisa. Near the end of September 1992, Burillo told Diaz that he no longer wanted the aircraft. Diaz testified that he called Alberto Castaneda at Learjet and told him that he was not going to buy the aircraft and that he wanted Leaijet to return his $250,000 deposit.
On September 30, 1992, Castaneda sent Diaz a fax, requesting payment. On October 6, 1992, Castaneda wrote Diaz a letter, which stated, in part: “Unless we receive payment from you or your company by October 9, 1992, [Learjet, Inc.,] will consider this agreement terminated and will retain all payments as liquidation damages in accordance with Paragraph C ... of Section VII ... of said agreement.” By letter dated October 20, 1992, Learjet informed Diaz that it considered their contract terminated and that the $250,000 deposit was being retained as liquidated damages.
The contract provides, in part:
“Learjet may terminate this Agreement as a result of the Buyer’s . . . failure to make any progress payment when due .... If this Agreement is terminated by Learjet for any reason stipulated in the previous sentence Learjet shall retain all payments theretofore made by the Buyer as liquidated damages and not as a penalty and the parties shall thenceforth be released from all further obligations hereunder. Such damages include, but are not limited to, loss of profit on this sale, direct and indirect costs incurred as a result of disruption in production, training expense advance and selling expenses in effecting resale of the Airplane.”
After Diaz had breached the parties’ contract, Circus Circus Enterprises, Inc., (Circus) contracted with Learjet to buy the aircraft. Circus requested that changes be made to the aircraft, which cost $1,326. Learjet realized a $1,887,464 profit on the sale of the aircraft to Circus, which was a larger profit than Learjet had originally budgeted.
Diaz filed suit against Learjet, seeking to recover the $250,000 deposit. Diaz’ petition alleged, in part, that the actual amount of Learjet’s liquidated damages was not $250,000 and that Learjet’s retention of the $250,000 deposit was unreasonable and an unenforceable penalty.
The district court initially granted Learjet’s motion for summary judgment, holding that the liquidated damages provision of the contract was reasonable. Diaz appealed that decision. On appeal, this court held that the district court had erred in using the wrong standard to evaluate the liquidated damages clause and in not examining all of the necessary factors and remanded the case to the district court for further consideration of the reasonableness of the liquidated damages clause. Rodriguez v. Learjet, Inc., No. 71,352, unpublished opinion filed March 10, 1995.
On remand, a bench trial was held. Following the presentation of evidence, the district court found that Leaijet was a lost volume seller and that its actual damages included lost profits. The district court held that $250,000 in liquidated damages was reasonable and upheld the liquidated damages clause.
Diaz argues that the district court erred in holding that the liquidated damages clause was reasonable and enforceable. Diaz reasons that the liquidated damages clause was unreasonably large and, therefore, void as a penalty.
A determination concerning the reasonableness and enforceability of a liquidated damages clause is a question of law subject to unlimited review by this court. Kvassay v. Murray, 15 Kan. App. 2d 426, 429, 808 P.2d 896, rev. denied 248 Kan. 996 (1991).
K.S.A. 84-2-718 governs liquidated damages in contracts for the sale of goods and provides, in part:
“(1) Damages for breach by either party may be liquidated in the agreement but only at an amount which is reasonable in the light of the anticipated or actual harm caused by the breach, the difficulties of proof of loss, and the inconvenience or nonfeasibility of otherwise obtaining an adequate remedy. A term fixing unreasonably large liquidated damages is void as a penalty.”
In Kvassay, 15 Kan. App. 2d at 430, this court noted that “reasonableness is the only test” for liquidated damages under the Uniform Commercial Code. This court paraphrased the three criteria for measuring the reasonableness of a liquidated damages clause provided in K.S.A. 84-2-718: “(1) anticipated or actual harm caused by breach; (2) difficulty of proving loss; and (3) difficulty of obtaining an adequate remedy.” 15 Kan. App. 2d at 430.
A liquidated damages clause that “ ‘fixes damages in an amount grossly disproportionate to the harm actually sustained or likely to be sustained’ ” is considered a penalty and will not be enforced by the courts. Luminous Neon, Inc. v. Parscale, 17 Kan. App. 2d 241, 243, 836 P.2d 1201 (1992) (quoting 22 Am. Jur. 2d, Damages § 701, p. 758). If a liquidated damages clause is invalidated, as a penalty, then the nonbreaching party may recover actual damages instead. White Lakes Shopping Center, Inc., v. Jefferson Standard Life Ins. Co., 208 Kan. 121, 125, 490 P.2d 609 (1971). The burden of proving that a liquidated damages clause is unenforceable rests with the party challenging its enforcement. TMG Life Ins. Co. v. Ashner, 21 Kan. App. 2d 234, 250, 898 P.2d 1145 (1995).
Diaz’ challenge to the reasonableness of the liquidated damages clause focuses on the first factor of K.S.A. 84-2-718 — the anticipated or actual harm caused by the breach. The question of whether a seller qualifies as a lost volume seller is relevant when evaluating whether a liquidated damages clause is reasonable in light of the anticipated or actual harm caused by the breach.
Diaz argues that the district court erred in concluding that Learjet qualifies as a lost volume seller. As a lost volume seller, Learjet’s actual damages would include lost profits, notwithstanding that Circus purchased the aircraft which Diaz had contracted to buy and that Learjet made a profit on the Circus sale. The two contracts contained identical base prices, and both contracts had escalation clauses. The evidence indicates that the lost profit from the Diaz contract would have been approximately $1.8 million.
Whether a seller is a lost volume seller is a question of fact. Bill's Coal Co. v. Board of Public Utilities, 887 F.2d 242, 245 (10th Cir. 1989); Restatement (Second) of Contracts § 347, Comment f (1979); see Jetz Serv. Co. v. Salina Properties, 19 Kan. App. 2d 144, 150-52, 865 P.2d 1051 (1993). An appellate court reviews factual findings to determine if they are supported by substantial competent evidence. Tucker v. Hugoton Energy Corp., 253 Kan. 373, 377, 855 P.2d 929 (1993). Findings of fact shall not-be set aside unless clearly erroneous. K.S.A. 60-252(a); Tucker, 253 Kan. at 378. “In reviewing the decision of a trial court, [an appellate] court must accept as true the evidence and all inferences to be drawn therefrom to support the findings of the trial court, and must disregard any conflicting evidence or other inferences that might be drawn therefrom.” Tucker, 253 Kan. at 377-78.
Courts have “unanimously” held that a lost volume seller can recover lost profits under § 2-708(2) of the Uniform Commercial Code. R.E. Davis Chemical Corp. v. Diasonics, Inc., 826 F.2d 678, 681 & n.2 (7th Cir. 1987); see 1 White & Summers, Uniform Commercial Code § 7-9, p. 385 n.4 (4th ed. 1995) (listing cases that have applied § 2-708[2] to lost volume sellers). The Kansas Legislature has enacted this statute as K.S.A. 84-2-708(2).
In Jetz, 19 Kan. App. 2d at 148, this court explained:
“The ‘lost volume seller’ measure of damages ‘refers to the lost volume of business the non-breaching seller incurs on buyer’s breach. When the seller resells the entity he expected to sell to the original buyer, he usually deprives himself of something of value — the sale to a new buyer of another similar entity.’ [Snyder v. Herb Greenbaum & Assoc., 38 Md. App. 114, 154 n.3, 380 A.2d 618 (1977)].”
Similarly, Restatement (Second) of Contracts § 350, Comment d (1979) notes that if a seller would have entered into both transactions but for the breach, then the seller has lost volume as a result of the breach. Thus, lost profits are awarded to a lost volume seller, notwithstanding that the seller resells the item that a buyer contracted to buy, based on the principle that the seller was deprived of an additional sale and the corresponding profit by the buyer’s breach. See Jetz, 19 Kan. App. 2d at 148-50; Diasonics, 826 F.2d at 682-83 n.7 (noting that resale does not reduce a lost volume seller’s damages).
Awarding lost profits to a lost volume seller serves the general principle that the purpose of awarding damages is to make a party whole by restoring the nonbreaching party to the position that that party occupied prior to the breach — to place a seller in as good a position as if a buyer had performed. K.S.A. 84-1-106; Cerretti v. Flint Hills Rural Electric Co-op Ass'n, 251 Kan. 347, 360, 837 P.2d 330 (1992); see Jetz, 19 Kan. App. 2d at 146-48.
The issue in Jetz was whether the plaintiff qualified as a lost volume lessor, and this court did not expressly state the specific requirements for qualifying as a lost volume seller. The Jetz court held that lost volume status is available to businesses providing services and identified the following evidence as sufficient to affirm the trial court’s finding that the plaintiff was a lost volume lessor:
“[J]etz Service is in the business of supplying coin-operated laundry equipment; it has several warehouses in which it has available for lease about 1,500 used washers and dryers; it continually looks for new locations in which to install laundry equipment; it would have been able to fulfill the Kansas City lease without using the machines from Salina Properties; and it is uncontroverted Jetz Service would have been able to enter into both transactions irrespective of the breach by Salina Properties.” 19 Kan. App. 2d at 152.
In Diasonics, 826 F.2d at 685, the court held that in order to qualify as a lost volume seller and recover for lost profits, a seller must establish three factors: (1) that it possessed the capacity to make an additional sale, (2) that it would have been profitable for' it to make an additional sale, and (3) that it probably would have made an additional sale absent the buyer’s breach. See also R.E. Davis Chemical Corp. v. Diasonics, 924 F.2d 709, 711 (7th Cir. 1991) (restating rule formulated in prior appeal of case); Kansas Comment 2 to 84-2-708 (citing first Diasonics case).
Here, in finding that Learjet qualified as a lost volume seller, the district court referred to Jetz, 19 Kan. App. 2d 144, Syl. ¶ 2.
Applying the more specific criteria established in Diasonics, 826 F.2d at 684-85, there is adequate evidence to support the district court’s finding. The master scheduler for Learjet testified that Learjet was operating at 60 percent capacity during the relevant time period and that Learjet was able to accelerate its production schedule to produce more of the model 60 planes in any given year. Leaijet also presented testimony about its accounting system which indicated that an additional sale would have been profitable to Learjet. Learjet’s profit from the Circus transaction and the similarity between the Diaz contract price and the Circus contract price also indicate that the additional sale would have been profitable.
We agree with the district court that Learjet qualifies as a lost volume seller and that the $250,000 in liquidated damages was reasonable in light of the anticipated or actual harm caused by the breach. See K.S.A. 84-2-718(2).
Even if we were to conclude that Learjet was not a lost volume seller, there is authority to support the holding that the liquidated damages clause was reasonable. In Aero Consulting Corp. v. Cessna Aircraft Co., 867 F. Supp. 1480, 1493-94 (D. Kan. 1994), the court held that a liquidated damages clause in an aircraft purchase agreement was reasonable under Kansas law. The Aero court did not consider the lost volume theory. The base price of the aircraft was $3,995,000. The liquidated damages, which were in the form of a deposit that was retained by Cessna after Aero breached, equaled $425,000. The court found that the liquidated damages clause “was reasonable in light of the damages that Cessna could reasonably anticipate would flow from such a cancellation of the contract.” 867 F. Supp. at 1494. The court also noted that “in light of the nature of the production of aircraft and the costs associated with maintaining production, it would not be feasible for Cessna to otherwise obtain an adequate remedy for breach.” 867 F. Supp. at 1494. Under both analyses, the liquidated damages claimed by Learjet were reasonable.
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Wahl, J.:
The appellants, Joe and Connie McBride, appeal their convictions for one count each of cultivation of marijuana, K.S.A. 1996 Supp. 65-4163(a)(3), and failure to affix a drug tax stamp, K.S.A. 79-5201 et seq.
On July 17,1995, Topeka police officers went to the Pine Ridge public housing development to check the status of an apartment at 2925 S.E. 10th Street that was the east dwelling in a duplex. The west residence, 2921 S.E. 10th Street, belonged to the appellants. The police were investigating the east dwelling because conflicting reports indicated it was either used as a tenant center, was occupied partially by the McBrides, or was vacant. The executive director of the Topeka Housing Authority, Lana Balka, testified at the prelim inary hearing that Joe McBride had been issued a key to the east dwelling to operate a tenant center. Upon arriving at the McBrides’ residence, Officer Francheska Hunt met Connie McBride at the front of the apartment while Officer James Gilchrist went to the back of the duplex in order to keep anyone from leaving. While at the back door, Officer Gilchrist observed numerous marijuana plants growing in a vegetable garden and in other areas behind the duplex. Subsequently, the McBrides were each arrested and charged in amended complaints with cultivation of marijuana, failure to affix a tax stamp, and possession of drug paraphernalia. The cases were consolidated in the district court.
The McBrides filed motions to dismiss on First Amendment free exercise of religion grounds, claiming they were members of the Rastafarian faith and the use of marijuana was essential to the practice of their religion. At a hearing on the motions, Paul Mirecki, University of Kansas Associate Professor of Religious Studies, testified the Rastafarian faith is a viable religion practiced in North America, the Caribbean, and West Africa, with “tens of thousands” of adherents. He stated Rastafarian beliefs are based in the JudeoChristian tradition and on the prophecies of Haile Selassie of Ethiopia, whom Rastafarians believe to be God incarnate. Mirecki also testified the use of marijuana was central to religious practices for Rastafarians. Marijuana, or “ganja” in Rastafarian parlance, is considered a sacrament, and inhaling the smoke of the burning plant contributes to the spiritual growth of the soul and knowledge of God, so much so that without ganja, spiritual self-consciousness cannot be recognized. Mirecki testified he believes Rastafarians cannot practice their religion without the use of marijuana.
Both appellants testified at the hearing on the motions to dismiss. Connie McBride testified she had been a Rastafarian for 15 to 20 years and she could not practice her religion without using marijuana. Joe McBride stated he had been a Rastafarian for 15 years and the God he worshipped was the same God worshipped by Christians, Jews, Muslims, and Buddhists. He also stated marijuana was essential to his connection with God or “Jah,” as he called the Rastafarian deity, and that the plants in his garden were grown for religious use only. He emphasized that recreational use of marijuana was improper. He also testified there was no limit on the quantity of marijuana consumed in his religion, nor is there a limit on when it is to be used.
The motion to dismiss was denied by the district court judge, who questioned whether the McBrides were “legitimate practitioners” of the Rastafarian faith because the quantity of marijuana found at their residence was so large. The judge also noted that religious practice could be restricted in the public interest and concluded that unless the McBrides could show that 86 plants were required to practice their religion, the issue of whether they were bona fide Rastafarians was moot. The State then filed a motion in limine to prohibit the McBrides from asserting a free exercise of religion argument at trial. The judge reserved judgment on the motion until trial.
On the day of trial, the court granted the State’s motion in limine. The judge ruled this was a “cultivation with the intent to distribute or sell case,” and “nothing before this Court suggests that this religion requires distribution, cultivation of this particular product or this particular illegal substance.” Counsel for the McBrides objected to the judge’s distribution statement, and the State acknowledged the case charged only cultivation and tax stamp violations. The judge, however, did not change his ruling. The parties then entered a stipulation of facts stating the McBrides possessed 86 marijuana plants weighing 6.5 pounds, which they used for religious purposes. The State stipulated the McBrides were members of the Rastafarian faith. Based on the stipulation, the trial court found the McBrides guilty of cultivation and of tax stamp violations, but acquitted them of the paraphernalia charges. The McBrides were sentenced to probation. They filed a timely notice of appeal.
The McBrides argue the district court abused its discretion when it precluded their free exercise of religion defense by granting the State’s motion in limine. See generally State v. Stallings, 262 Kan. 721, 726, 942 P.2d 11 (1997). As a threshold matter, they argue that the federal Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb et seq. (1994), requires the State to prove that laws of general applicability which burden the practice of one’s religion, such as the drug statutes in this case, serve a compelling governmental interest and are the least restrictive means of accomplishing that end. This is an issue of first impression in Kansas. The interpretation and application of a statute is a question of law over which this court has de novo review. See State v. Donlay, 253 Kan. 132, 133-34, 853 P.2d 680 (1993).
The United States Congress enacted the RFRA in 1994 to overturn Employment Div., Ore. Dept. of Human Res. v. Smith, 494 U.S. 872, 108 L. Ed. 2d 876, 110 S. Ct. 1595 (1990). In Smith, the United States Supreme Court ruled that laws of general applicability which incidentally burden the free exercise of religion need not pass strict scrutiny. 494 U.S. at 886 n.3. The Supreme Court let stand a State of Oregon agency decision denying unemployment compensation benefits to two Native American employees who had been dismissed from a drug rehabilitation center for using peyote in a Native American Church (NAC) ceremony. The Court ruled that because the use of peyote was generally prohibited under Oregon law, and unemployment benefits in Oregon are not awarded to employees dismissed for such misconduct, the State of Oregon did not infringe upon the workers’ constitutional right to freely practice their religion. 494 U.S. at 890.
The RFRA reinstated the strict scrutiny tést for all state and federal laws of general applicability that incidentally burden one’s ability to practice religion and, in so doing, set aside Smith by legislative fiat. 42 U.S.C. § 2000bb(b)(l), (2) (1994); 42 U.S.C. § 2000bb-3 (1994). Because the State stipulated the McBrides were Rastafarians, the appellants contend the RFRA requires the State to show that K.S.A. 1996 Supp. 64:4163(a)(3), marijuana cultivation, and K.S.A. 79-5201 et seq., tax stamp, enforce a compelling governmental interest in the absence of less restrictive alternatives. They claim the district court erred because it never required the State to make this showing despite the fact they were arrested for cultivation of marijuana rather than mere possession. The appellants make their argument without consideration of the decision in City of Boerne v. Flores, 521 U.S. 507, 138 L. Ed. 2d 624, 117 S. Ct. 2157 (1997).
In Flores, the United States Supreme Court overturned the RFRA on separation of powers and federalism grounds. Noting that the United States Constitution envisions a government of enumerated powers in which judicial authority to interpret the law is well established, the Supreme Court struck down the RFRA as exceeding the scope of Congressional authority. 521 U.S. at 516, 536. It also ruled that while section 5 of the Fourteenth Amendment does allow Congress to enforce the Free Exercise Clause of the First Amendment, Cantwell v. Connecticut, 310 U.S. 296, 303, 84 L. Ed. 1213, 60 S. Ct. 900 (1940), it does not allow Congress the power to alter the meaning of a constitutional provision. Flores, 521 U.S. at 519. Accordingly, the Supreme Court ruled the RFRA to be unconstitutional.
The McBrides’ argument that K.S.A. 1996 Supp. 65-4163(a)(3) and K.S.A. 79-5201 et seq. must pass strict scrutiny has been rendered moot by Flores. While it is true that a motion in limine may not be used to choke off a legitimate defense, State v. Irons, 250 Kan. 302, 309, 827 P.2d 722 (1992), a defendant has no legal right to present a defense that is without merit. The district court granted the motion in limine because it did not believe the Rastafarian faith required an adherent to cultivate nearly 100 marijuana plants to practice the religion, and, therefore, the RFRA did not apply. Whether the district court was correct in this interpretation of the RFRA is now irrelevant, and any potential error from this ruling is harmless beyond a reasonable doubt in light of Flores. See State v. McClanahan, 259 Kan. 86, 102, 910 P.2d 193 (1996). A state may pass a law of general applicability that incidentally burdens the practice of religion without violating the First Amendment. Smith, 494 U.S. at 886 n.3. Both K.S.A. 1996 Supp. 65-4163(a)(3) and K.S.A. 79-5201 et seq. apply to everyone in the state of Kansas and regulate private conduct as it relates to drags and public safety. Such laws are clearly valid despite incidental burdens they place on the practice of some religions. Appellants’ argument that tire district court abused its discretion is without merit.
Appellants also argue the State cannot prosecute them for using marijuana in the practice of their religion because the State allows members of the NAC to use peyote in their religious ceremonies. See K.S.A. 65-4116(c)(8). Appellants reason that because both marijuana and peyote are controlled substances under K.S.A. 1996 Supp. 65-4105(d)(16) and (19), the State violates both the Establishment and Equal Protection Clauses of the United States Constitution by granting a religious exemption to members of the NAC and not to Rastafarians. Appellants’ argument presents a question of law over which this court’s review is unlimited. See Donlay, 253 Kan. at 133-34. This is also an issue of first impression in Kansas.
An analysis of K.S.A. 65-4116(c)(8) in the context of an Equal Protection-Establishment Clause challenge requires an examination of the history of the statute and the state and federal policy which underlies it. The Kansas Legislature passed K.S.A. 65-4116(c)(8) in order to conform Kansas law to those aspects of the United States Code that enacted the federal policy of preserving Native American culture and supporting tribal self-government. See Minutes of the Senate Committee on Public Health and Welfare, February 27,1981, p. 1 (statement of Senator John Chandler). The interaction between federal and state policy regarding Native American affairs warrants some discussion.
Native American tribes have been described as domestic dependent nations. Cherokee Nation v. Georgia, 30 U.S. (5 Peters) 1, 17, 8 L. Ed. 25 (1831). This is the first principle of modem federal-tribal relations. The doctrine of trust responsibility, under which the federal government is required to promote tribal self-government and cultural integrity in the context of the domestic dependent nation classification, provides the legal framework for this relationship. See Morton v. Mancari, 417 U.S. 535, 541-42, 41 L. Ed. 2d 290, 94 S. Ct. 2474 (1974).
In Mancari, the Supreme Court mled that in. order to meet this trust responsibility, special rights and status can be afforded Native Americans that would otherwise be unconstitutional so long as the law is rationally connected to fulfilling the tmst responsibility. 417 U.S. at 555. The Supreme Court held in Mancari that the Bureau of Indian Affairs’ practice of hiring Native Americans before other applicants was not violative of Fifth Amendment due process guarantees or federal civil rights laws. The Court reached this ruling in significant part based upon the federal obligation to promote tribal self-government in the context of the tribes’ dependent nation status. 417 U.S. at 551-53. Federal law promoting tribal self-government and Native American welfare is not, therefore, premised on racial distinctiveness; rather, such laws are based upon the political relationship existing between tribal and federal governments which predates the United States Constitution. 417 U.S. at 554. It is pursuant to the trust responsibility that the many federal enactments relating to Native Americans and the religious use of peyote have been issued. See generally H.R. Rep. No. 103-675, 103d Cong., 2d Sess. 2-5 (1994), reprinted in 1994 U.S. Code Cong. & Ad. News 2404-2407 (discussing history of peyote exemption).
The federal peyote exemption has been in effect for some time. In 1971, the Drug Enforcement Administration (DEA) adopted a regulation which expressly allows the NAC to use peyote in its ceremonies notwithstanding the criminalization of peyote at 21 U.S.C. § 812(c)(12) (1970). See 21 C.F.R. 1307.31 (1997). At a congressional hearing at which this regulation was discussed, the Bureau of Narcotics and Dangerous Drugs (now the DEA) stated it regarded NAC as sui generis and that NAC members’ right to consume peyote derived from that status. See U.S. v. Boyll, 774 F. Supp. 1333, 1339 (D. N.M. 1991).
Likewise, Congress adopted the American Indian Religious Freedom Act (AIRFA), 42 U.S.C. § 1996, in August 1978, as a joint resolution stating the federal policy of protecting and preserving Native American religious traditions. See H.R. Rep. No. 85-1308, 95th Cong., 2d Sess. 1-5 (1978), reprinted in 1978 U.S. Code Cong. & Ad. News 1262-1266 (statute is remedial law to correct prior abuses of Native American culture). Furthermore, in 1994, Congress amended AIRFA to include an exemption to all federal and state drug laws to allow the use of peyote pursuant to any traditional Native American religion. 42 U.S.C. § 1996a(a), (b) (1994). While the fate of the 1994 amendments might be unclear in light of Flores, AIRFA and its amendments fall squarely within the ambit of the trust responsibility.
Senator Chandler stated K.S.A. 65-4116(c)(8) was meant to bring Kansas law in line with federal law legalizing peyote use on federal lands. In this way, the Kansas Legislature brought the federal trust responsibility into the realm of state law by passing a statute promoting tribal welfare. The importation of the federal trust responsibility into the realm of state-tribal relations by the State of Kansas is by no means improper and has been sanctioned by other courts. See, e.g., Livingston v. Ewing, 601 F.2d 1110, 1115-16 (10th Cir.), cert. denied 444 U.S. 870 (1979) (city ordinance promoting Native American crafts enacted under state trust responsibility); St. Paul Intertribal Housing Bd. v. Reynolds, 564 F. Supp. 1408, 1412 (D. Minn. 1983) (state Indian housing program under trust responsibility); Peyote Way Church of God, Inc. v. Thornburgh, 922 F.2d 1210, 1219 (5th Cir. 1991) (acknowledging state action under trust responsibility but questioning the scope of Reynolds).
While Kansas courts have not addressed whether a peyote exemption for NAC members is constitutional, federal and other state courts have. The analysis set forth in those cases is persuasive. Generally, courts have analyzed those cases in light of the Equal Protection and Establishment Clauses simultaneously. Applied to the arguments of the McBrides, the threshold question in these cases is whether the Rastafarian appellants are similarly situated to those persons covered by the applicable peyote exemption statute. See Olsen v. Drug Enforcement Admin., 878 F.2d 1458 (D.C. Cir. 1989), cert. denied 495 U.S. 906 (1990) (not similarly situated); United States v. Rush, 738 F.2d 497, 513 (1st Cir. 1984), cert. denied 470 U.S. 1004 (1985) (same); United States v. Warner, 595 F. Supp. 595, 600-01 (D.N.D. 1984) (same); see also State v. Peck, 143 Wis. 2d 624, 637, 422 N.W.2d 160 (Ct. App. 1988) (state peyote exemption upheld because of unique historic and cultural attributes of Native Americans).
Because the McBrides are not similarly situated to the members of the NAC for purposes of K.S.A. 65-4116(c)(8), they are not entitled to relief under an Equal Protection-Establishment Clause theory. The McBrides are not similarly situated for three reasons: (1) Peyote is consumed by the NAC members only at specific and infrequent religious ceremonies, whereas Rastafarians may consume marijuana in any quantity at any time; (2) peyote generally is not abused at the same rate as marijuana; and (3) the Kansas and federal NAC exemptions were passed under the ambit of the federal trust responsibility, which seeks to preserve the cultural and political integrity of Native American tribes. We examine each of these three reasons.
First, Rastafarians are not similarly situated to NAC members because of the uncontrolled use to which they put marijuana in their religious practice. See Olsen, 878 F.2d at 1463-64. Joe McBride testified that his religion places no limitation on how much marijuana he smokes or at what time of the day he smokes it. Such practices have been noted by other courts addressing the disparate treatment accorded Rastafarians and NAC members under federal law. See Olsen, 878 F.2d at 1464. These practices make the administration of a regulatory scheme for the religious use of marijuana nearly impossible because of widespread and uncontrolled usage.
Rastafarian use of marijuana stands in stark contrast to the practices of NAC regarding peyote. Peyote is used by NAC members in ceremonies called “road meetings,” usually between midnight and dawn. The ceremonies themselves are elaborate and lengthy and include the services of a tribal elder called a “roadman” and other assistants who prepare the site and procure the tepee or lodge for the meeting. The inherent complexity and planning required for such a gathering does not appear to promote the uncontrolled use of an otherwise controlled substance under Kansas law. See Boyll, 774 F. Supp. at 1335-36. NAC chapters issue membership cards to their congregants so peyote use can be easily monitored. In this same manner, the federal DEA has established and administers a licensing system for peyote dealers in the State of Texas. See Minutes of the House Committee on Judiciary, March 19, 1981, pp. 2, 4 (statement of Emerson Jackson, International President of the NAC of North America). NAC members and Rastafarians are not similarly situated.
Second, Rastafarians and NAC members are not similarly situated because peyote is not abused at the same rate as marijuana; thus, the attendant social ills regarding marijuana are exponentially higher than that of peyote. In the Olsen case, which was authored by then Judge Ruth Bader Ginsburg, the D. C. Circuit Court of Appeals noted statistics provided by the DEA quantifying the differences between marijuana and peyote abuse:
“ ‘[T]he actual abuse and availability of marijuana in the United States is many times more pervasive . . . than that of peyote. . . . The amount of peyote seized and analyzed by the DEA between 1980 and 1987 was 19.4 pounds. The amount of marijuana seized and analyzed by the DEA between 1980 and 1987 was 15,302,468.7 pounds. This overwhelming difference explains why an accommodation can be made for a religious organization which uses peyote in circumscribed ceremonies, and not for a religion which espouses continual use of marijuana.’ [Citation omitted.]” 878 F.2d at 1463.
While these statistics are somewhat dated, they do support the fact that marijuana abuse is a far greater social and economic problem than peyote. Indeed, even if marijuana use were permitted under a tightly controlled religious use exception, the DEA statistics provide ample evidence that such a system would prove prohibitively difficult to administer, especially if the religious exception attempted to accommodate the Rastafarians’ unlimited use beliefs. Again, NAC members are not similarly situated to Rastafarians for purpose of an Equal Protection-Establishment Clause analysis.
Third, and perhaps most importantly, the two groups are not similarly situated because K.S.A. 65-4116(c)(8) grants a peyote exemption to NAC members in order to bring Kansas law in harmony with those statutes in the United States Code enacted under the trust responsibility. Federal Native American law is different. Since the early 19th century, the United States Supreme Court precedent has treated Native Americans as occupying a unique, yet dependent, sphere in our federal system. Modem courts have interpreted the unique obligations owed to Native Americans as exempting laws passed pursuant to the trust responsibility from the strictures of traditional equal protection analysis. See Mancari, 417 U.S. at 555; Warner, 595 F. Supp. at 600-01. This same power can be and has been exercised by states when they act to accord their law with federal Native American law. See Livingston, 601 F.2d at 1115-16; Reynolds, 564 F. Supp. at 1412; Peck, 143 Wis. 2d at 637. No court in United States history has acknowledged a similar political status on behalf of the Rastafarians. As such, the two groups are not similarly situated, and the McBrides’ Equal Protection-Establishment Clause argument must fail.
The convictions of Joe and Connie McBride for violating K.S.A. 1996 Supp. 65-4163(a)(3) and K.S.A. 79-5201 et seq. are affirmed. | [
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Pierron, J.:
David Lee Jones appeals his conviction for possession of cocaine. A detailed statement of the facts is necessary in order to evaluate issues he raises on appeal.
On March 25, 1995, shortly after noon, Officer Doug Orbin of the Shawnee police department was dispatched to an apartment complex on a “check the welfare of a subject” call. There he met with Anthony and Donna Flamez, who were concerned about their son Tony. They had made plans to have dinner with Tony on March 22, 1995, but he had not shown up, and they had not seen him since. They had called Tony’s apartment several times and left messages on his answering machine, but he had never answered the phone or returned their calls. The Flamezes said this was unusual behavior for Tony. They also said Tony had recently become acquainted with someone of whom he seemed to be afraid.
Officer Orbin, two other police officers, the Flamezes, and an apartment employee went up to Tony’s apartment. The apartment employee had the manager’s permission to open Tony’s door if the need arose. After knocking on the door, calling for Tony, and receiving no response, Orbin asked the employee to open the door with the manager’s key.
Inside, a man and woman were lying on the couch under a blanket. Orbin entered the apartment and asked the man if he was Tony. The man indicated he was not, and the Flamezes, standing outside the door, confirmed the man was not their son. Orbin asked the couple if they knew where Tony was and if he was all right, but neither had any idea where Tony was or when he would return. (Tony was later found in Jones’ apartment, where he had gone voluntarily.)
While conversing with the couple, Orbin noticed a glass tube with burnt residue on the end lying on the coffee table in front of the couch. Orbin recognized the item as a crack pipe and asked the man what it was. The man responded that it was used to smoke crack.
Orbin attempted to identify the couple during this time, but the man gave several false names which came back with no record after a records check. Another officer noticed the man’s picture lying on top of the woman’s purse. On the back of the picture was the man’s real name, David Lee Jones. A records check revealed an outstanding warrant for Jones. Orbin placed Jones under arrest and asked where his clothes were so he could get dressed. Jones pointed to his clothes, including a pair of pants, which were lying on the floor about 10 feet away.
Orbin checked the pants pockets for safety purposes before handing them to Jones. Inside the pockets were pieces of plastic and a vial containing a white powder residue, which Orbin believed to be a controlled substance. Subsequent testing revealed cocaine present on both the crack pipe from the table and in the vial recovered from the pocket.
Orbin estimated he had spotted the crack pipe within 2 minutes of entering the apartment. Within the next 5 to 10 minutes Jones’ name was determined from the photograph, and within 30 seconds thereafter, it was determined that Jones had a warrant out for his arrest.
Jones testified he had been acquainted with Tony for about a year and had stayed overnight at Tony’s apartment on many occasions. He said Tony sometimes gave him the key so he could stay there, and he liked to do so because it was peaceful. Jones said he kept clothes at Tony’s place along with a few personal items.
At a suppression hearing, Jones argued the Flamezes’ concern did not justify the warrantless entry of Tony’s apartment. The State countered by asserting that the emergency exception to the warrant requirement recognized in Mincey v. Arizona, 437 U.S. 385, 57 L. Ed. 2d 290, 98 S. Ct. 2408 (1978), and in People v. Mitchell, 39 N.Y.2d 173, 383 N.Y.S.2d 246, 347 N.E.2d 607 (1976), was applicable. The trial court determined that Jones had standing to contest the search, and after applying the test provided in Mitchell, the court agreed with the State that the emergency doctrine exception was satisfied. The court denied the motion to suppress and the case proceeded to trial.
A jury convicted Jones on the possession of cocaine charge but acquitted him of the possession of drug paraphernalia charge. He was sentenced to a nondeparture sentence of 34 months. Jones filed a timely notice of appeal on the issue of the legality of the entiy.
Jones’ first argument regards the admissibility of certain evidence at the suppression hearing and the State’s burden of proof. The State bears the burden of proving the lawfulness of its warrantless entry and subsequent seizure of evidence within the premises. See State v. Anderson, 259 Kan. 16, Syl. ¶ 1, 910 P.2d 180 (1996). Jones argues the trial court relieved the State of its burden by allowing Officer Orbin to testify at the suppression hearing as to what the Flamezes had said to prompt Orbin to malee the warrantless entry. He argues such testimony was inadmissible hearsay and the Flamezes should have had to testify personally in order for the court to determine whether they actually feared for their son’s welfare and whether there was an actual emergency. Jones argues that unless Tony really was in danger, there was no legal justification for the warrantless entry.
Whether the Flamezes honestly feared for their son (and it appears they did) was not the issue. Whether Tony was truly in danger was also not the issue. The issue was whether there were sufficient facts to support a reasonable belief by Officer Orbin that an emergency existed which justified entry into the premises. While the Flamezes’ testimony might have been helpful in this regard, it was not required. Officer Orbin was qualified to testify as to the information he acted upon, and it was for the trial court to judge his credibility.
As for Officer Orbin’s testimony regarding statements made to him by the Flamezes, this evidence was admissible. Out-of-court statements made by third parties to police officers which are offered to the court merely to explain the officers’ conduct in the course of their investigative duties are generally admissible because they are not offered for the truth of the matter stated. It is only when such statements also directly incriminate the defendant that they are inadmissible, absent application of some hearsay exception. State v. Johnson, 253 Kan. 75, Syl. ¶ 7, 853 P.2d 34 (1993).
The trial court admitted the testimony merely as evidence of what led the officers to act, and not for the truth, of the matters stated. This was not hearsay. None of the statements incriminated Jones. The testimony was properly admitted.
Jones also argues the evidence acquired by the police after entering the apartment should have been suppressed as fruit of the poisonous tree. Specifically, he argues the warrantless entry was not justified by any exception to the warrant requirement and was therefore illegal.
Appellate courts used a substantial competent evidence standard to review the factual underpinnings of a trial courts decision regarding the suppression of evidence, but the ultimate legal conclusion drawn from those facts is reviewed de novo with independent judgment. See State v. Webber, 260 Kan. 263, Syl. ¶ 3, 918 P.2d 609 (1996), cert. denied 519 U.S. 1090 (1997). The facts and circumstances leading up to and including the initial entiy are not in dispute. The issue raised by Jones may be resolved based on those undisputed facts.
The trial court ruled that Jones had standing to attack the warrantless entry because he was an overnight guest with permission to be on the premises. Substantial competent evidence supports the trial court’s factual determinations in this regard, and tire ultimate legal conclusion is supported by case law. See Minnesota v. Olson, 495 U.S. 91, 98-100, 109 L. Ed. 2d 85, 110 S. Ct 1684 (1990) (overnight guests have legitimate expectation of privacy in host’s home and, thus, standing to attack legality of entry and search).
The State argues the warrantless entry was justified by the emergency exception to the warrant requirement. Jones argues the facts do not fall within that exception.
The emergency doctrine reflects a recognition that the police perform a community caretaking function which goes beyond fighting crime. See 3 La Fave, Search and Seizure § 6.6, pp. 389-90 (3d ed. 1996). Under this function, the community looks to the police to render aid and assistance to protect lives and property on an emergency basis regardless of whether a crime is involved. Warrantless entries into and searches of private property pursuant to this exception are not prohibited by the Fourth Amendment to the United States Constitution or by Section 15 of the Kansas Constitution Bill of Rights.
The emergency exception to the warrant requirement has been recognized by the United States Supreme Court and by numerous state and federal courts. See Mincey, 437 U.S. at 392-93, and nn. 6, 7 (recognizing exception and noting numerous state and federal cases discussing the exception); see generally 3 La Fave, Search and Seizure § 6.6; 79 C.J.S., Searches and Seizures § 61. In Mincey, the Supreme Court stated:
“We do not question the right of the police to respond to emergency situations. Numerous state and federal cases have recognized that the Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid. . . . ‘The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency.’ Wayne v. United States, 115 U.S. App. D.C. 234, 241, 318 F.2d 205, 212 (opinion of Burger, J.). And the police may seize any evidence that is in plain view during the course of their legitimate emergency activities. [Citations omitted.]” 437 U.S. at 392-93.
Kansas has recognized the emergency exception, although our case law on the topic is not extensively developed. Primarily, two Kansas cases discuss or allude to the doctrine to justify a warrant-less entry of a premises; State v. Boyle, 207 Kan. 833, 486 P.2d 849 (1971), and State v. Jones, 2 Kan. App. 2d 38, 573 P.2d 1134 (1978). Of these, only Jones relies solely on the emergency exception.
In Boyle, the police went to a house in response to a request by family members that the police remove dynamite being stored there by one of their.siblings who, according to his younger sister, was “talking crazy.” 207 Kan. at 837. The police observed the dynamite in the garage and arrested the defendant when he entered the garage. They then walked the defendant back through the ga rage door into the home to meet with other officers who were attempting to gain entry through the front door.
While proceeding to the front of the house through the living room, the arresting officer spotted some marijuana. The police secured a search warrant to look for more dynamite and evidence of drugs. Other drug-related items were discovered in executing the warrant. The defendant was charged with various offenses, including possession of marijuana and possession of an explosive with intent to commit a crime. The trial court granted the defendant’s motion to suppress certain physical evidence, and the State appealed.
The Kansas Supreme Court held that the police had consent to enter the home to search for and remove the dynamite and that the marijuana observed in plain view was subject to seizure and was admissible evidence. Additionally, the court held that there was probable cause to believe a crime involving dynamite was being committed and the police had a reasonable perception of exigent circumstances. The exigency arose from the reports of the defendant’s “talking crazy” coupled with his possession of dynamite in a residential area one block from an elementary school. 207 Kan. at 837-39.
The Boyle court stated that where such exigent circumstances exist,
“the business of policemen is to act, not to speculate or meditate on whether the report is correct. People could well die in emergencies if police tried to act with the calm deliberation associated with judicial process. . . .
“The police officers were lawfully on the premises here in question in response to a citizen’s call for help, and while lawfully on the premises observed contraband or evidence of crime in the form of both dynamite and marijuana in open view.
“It has long been settled that objects falling in plain view of an officer who has a right to be in the position to have that view, are subject to seizure and may be introduced into evidence.” 207 Kan. at 839-40.
Although some language in Boyle supports an emergency exception, Boyle is not a pure emergency doctrine case because there were two independent grounds on which to justify the warrantless entry — consent and probable cause related to a crime coupled with exigent circumstances.
State v. Jones, 2 Kan. App. 2d 38, cited by the State, is the only pure emergency doctrine case involving a warrantless police entry into a premises. In Jones, police responded to a call from a resident of an apartment complex regarding a fire in another apartment. Through a window, the police observed a cloud of smoke inside. They entered the apartment and discovered the source of the smoke — a rubber-backed rug smoldering on top of a floor furnace. The officers began to look for occupants of the apartment and to clear the smoke. One officer saw a small open box on a coffee table. The box contained what appeared to be partially smoked marijuana cigarettes, a pipe, and plastic bottles containing marijuana seeds. Near the coffee table was another open box containing drug-related items. These items were photographed and then seized and taken into evidence.
The appellate court held that the entry was lawful under the emergency doctrine exception and the seizure of the evidence was justified under the plain view exception. The court distinguished the case from those where plain view has been used to justify a warrantless entry absent exigent circumstances, because the plain view observance only occurred after the legitimate emergency entry. 2 Kan. App. 2d at 42. In discussing the emergency exception, the court stated:
“Among the well-established ‘legitimate reasons’ for a police officer to be present on privately occupied premises is in response to an emergency. See Vale v. Louisiana, 399 U.S. 30, 35, 26 L.Ed.2d 409, 90 S.Ct. 1969; Wayne v. United States, 318 F.2d 205 (D.C. Cir. 1963); State v. Boyle, 207 Kan. 833, 486 P.2d 849. In Wayne, the ‘emergency doctrine’ was well described by then Circuit Judge Warren Burger:
“ ‘. . . [A] warrant is not required to break down a door to enter a burning home to rescue occupants or extinguish a fire, to prevent a shooting or to bring emergency aid to an injured person. The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency . . . .’ (318 F.2d at 212.)” 2 Kan. App. 2d at 41.
The State also cites State v. Smith, 243 Kan. 715, 763 P.2d 632 (1988), and State v. Miesbauer, 232 Kan. 291, 654 P.2d 934 (1982). These cases are not emergency doctrine cases and do not directly support the State’s position. In both cases, the Kansas Supreme Court held the evidence seized as a result of the warrantless entries did not require suppression. The holdings turned on the fact that the entries and searches were not conducted by State, city, or county authorities acting within the scope of their duties, or by private individuals acting under the direction of such authorities. Smith, 243 Kan. at 718, 722, 724; Miesbauer, 232 Kan. 291, 293-94. Searches by private persons acting independently do not implicate the proscriptions of the Fourth Amendment. Smith, 243 Kan. 715, Syl. ¶¶ 2, 7. In the present case, the warrantless entry was effected by the police acting within the scope of their duties.
While Jones recognized the emergency doctrine as an exception to the warrant requirement, it did not delineate the boundaries of the exception, or provide guidance on how to analyze fact situations under it. In People v. Mitchell, 39 N.Y.2d 173, the New York Court of Appeals provided a three-prong test for analyzing the applicability of the emergency doctrine exception. The test was set forth with the express purpose of providing the police and the courts guidance in evaluating circumstances to determine whether the exception applies in a given case. The test includes the following three parts:
“(1) The police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for their assistance for the protection of life or property.
“(2) The search must not be primarily motivated by intent to arrest and seize evidence.
“(3) There must be some reasonable basis, approximating probable cause, to associate the emergency with the area or place to be searched.” 39 N.Y.2d at 177-78.
Several states, including Alaska, Arizona, Illinois, Nebraska, and North Dakota, follow this test, and it is often cited with approval by legal commentators. See 3 La Fave § 6.6(a), pp. 392-93 and n. 17 (quoting the test and noting states that follow it); Gallmeyer v. State, 640 P.2d 837 (Alaska App. 1982); People v. Krueger, 208 Ill. App. 3d 897, 567 N.E.2d 717 (1991).
The hardest question in this case is whether, under the first prong, the police had reasonable grounds to believe there was an immediate need for their assistance to address an emergency.
It is important to keep in mind that reasonable grounds under the emergency doctrine differs from the probable cause required under the more familiar crime-related exigent circumstances exception. The State readily admitted to the trial court that it did not have probable cause sufficient to support a warrant to search for evidence of a crime within Tony’s apartment. The State asserts that the emergency exception nevertheless applies.
Jones asserts the police should have been required to obtain a warrant to enter the premises. He misconceives the essence of the emergency exception.
As explained in State v. Fisher, 141 Ariz. 227, 240-41, 686 P.2d 750, cert. denied 469 U.S. 1066 (1984), the exigent circumstances exception is distinct from the emergency exception, and the two are often confused:
“The exigent circumstances exception is triggered when the police, with probable cause but no warrant, enter a dwelling in the reasonable belief that the delay necessary to obtain a warrant threatens the destruction of evidence, [citations omitted], or when they have a reasonable belief that a crime is in progress or has just been committed in a dwelling and the delay attendant to obtaining a warrant endangers the safety or Ufe of a person therein. [Citations omitted.] ....
“Conversely, the emergency aid doctrine is triggered when the police enter a dwelling in the reasonable, good-faith belief that there is someone within in need of immediate aid or assistance. In cases in which this doctrine applies diere is no probable cause which would justify issuance of a search warrant, . . . , and the police are not entering to arrest, search, or gather evidence.”
Although the possibility of criminal activity might account for the feared danger in a given case, the primary motive of the police will not be to search for evidence of a crime, but rather to render assistance. See, e.g., People v. Mitchell, 39 N.Y.2d at 178 (hotel maid disappeared in the course of her duties, and her street clothes and partially eaten lunch were discovered on the floor on which she had last been seen; the police arriving on the scene the same day could not know immediately whether she had “been stricken with some illness, suffered an accident or possibly fallen victim to a crime”).
Like the prosecution in the present case, the investigating officer in Fisher conceded he lacked probable cause to obtain a warrant to enter and search the Fishers’ apartment. The owner of the con dominium had been found murdered in an alley and had last been seen alive en route to collect rent from the Fishers. The Fishers had not been seen since that time and had faded to respond to messages. Their neighbors were concerned because the Fishers were usually around. Although the officer’s belief that the Fishers might have similarly come to harm did not rise to the level of probable cause sufficient to secure a warrant, it justified entry into the Fishers’ apartment based on the emergency doctrine.
In short, when a police entry is a genuine check on the welfare of a person, many concerns which justify the use of the exclusionary rule in search and seizure cases are not applicable.
The circumstances in the instant case are not as extreme as in Fisher and many other cases involving the emergency doctrine, but they certainly pass muster. The Flamezes had not seen or heard from their son in 3 days, he had inexplicably missed a dinner appointment with them, and he had faded to answer his phone or return their messages.
Jones argues the police made their entry essentially on the basis that “a grown man . . . had not called his parents in three days” and had missed a dinner engagement with them. He argues this was not enough to give rise to a reasonable belief that harm had befaden the young man. However, there was more to it than that. According to the Flamezes’ representations to the officer, the missed dinner appointment and the failure to return their calls was uncharacteristic of Tony. When added to their awareness that he had made a recent acquaintance of whom he was afraid, the Flamezes’ worry was justifiable and the police reaction was well justified.
Although the facts in each emergency doctrine case are unique, cases in other states involving warrantless entries to search for missing persons based on facts roughly comparable to those present in this case have qualified for the emergency exception. See, e.g., People v. Wharton, 53 Cal.3d 522, 280 Cal.Rptr 631, 809 P.2d 290 (1991) (police entry lawful where occupant of premises had not been seen by neighbors for 2 weeks, mail had accumulated in mailbox, and occupant’s aunt had called expressing concern for her niece); Geimer v. State, 591 N.E.2d 1016 (Ind. 1992) (emergency entry permitted where son of missing person indicated that it was uncharacteristic for his father to leave town for long without notifying anyone and missing person’s other son, who lived with father, gave to various individuals inconsistent explanations of his father’s whereabouts); People v. Mitchell, 39 N.Y.2d 173, 383 N.Y.S. 2d 246, 347 N.E. 2d 607 (1976) (hotel maid disappeared in course of duties at hotel, and her street clothes were foúnd on floor where she had last been seen); and Com. v. Silo, 509 Pa. 406, 502 A.2d 173 (1985) (victim who was last heard arguing with defendant had failed to report for work, could not be reached by phone, and had not been seen in the 24 hours subsequent to the argument).
If there had been additional facts to strengthen the picture of concern, the question would be easier. But police are often forced to make judgment calls under circumstances where it is better to err on the side of safety. The fact that Tony was not discovered in need-of help in his apartment is of no relevance. See 3 La Fave, Search and Seizure § 6.6(a), p. 392. The officers’ actions are judged on the basis of the facts facing them at the moment of their decision and are evaluated objectively with due consideration for the stress of the moment and the pressure to make important decisions based on often ambiguous facts. It would indeed be tragic if Tony had lain injured or dying, or had been under restraint in the apartment, and the police had refused to take seriously the concerns of a mother and father who knew their son’s habits and disposition.
The second prong, regarding the motivation behind the warrantless entry, was easily satisfied here. The police arrived at the scene and entered the apartment with the sole motivation of determining what had happened to Tony and to see if he was in need of aid. There is no evidence in the record that they expected to find either Jones or evidence of illegal drugs inside the apartment. The entry was not primarily motivated by the intent to arrest and/or seize evidence.
The third prong asks whether there was some reasonable basis to associate the place searched with the emergency. Tony’s residence was a reasonable place to associate with that emergency and a legitimate place to begin the search for him.
While this three-prong analysis will be of assistance in some cases, in most instances, common sense will be the touchstone. Police entry to check on the welfare of a person may not be used as a stratagem for circumventing the Fourth Amendment to the United States Constitution. But if police appear truly to have acted for the purpose of checking on a person’s welfare, and their actions appear to be reasonable under the circumstances, further analysis is unnecessary.
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Nyswonger, J.:
M.D. Thompson died on September 8, 1994. His son, Joe Thompson, filed a petition to admit decedent’s will to probate on February 17,1995. The petition was not set for hearing until November 15, 1995. The trial court refused to admit the will to probate, finding that the matter was not timely commenced within the statute of limitations period set out in K.S.A. 59-617. The sole issue on appeal is whether In re Estate of Reed, 157 Kan. 602, 142 P.2d 824 (1943), remains the law of Kansas regarding the timely commencement of a probate proceeding under K.S.A. 59-2204 and K.S.A. 59-617. We conclude that the answer is yes.
In Estate of Reed, the Supreme Court held that a petition to admit a will to probate must be filed and set for hearing within the limitations period; simply filing a petition without causing it to be set for hearing is insufficient to stop the running of the statute of hmitations. 157 Kan. at 613.
Appellant contends that the 1943 legislative amendment to G.S. 1935,59-2237 (now K.S.A. 59-2237), which expressly provides that a creditor s demand against a decedent’s estate is effective upon the filing of a petition within the statutory period, had the effect of overruling the decision in In re Estate of Dotson, 154 Kan. 562, 119 P.2d 518 (1941), upon which the Estate of Reed court relied. Appellant argues that because Estate of Dotson is no longer viable, Estate of Reed must be overruled in favor of an interpretation that a probate proceeding is commenced and the statute of limitations stops running immediately upon filing a petition to admit a will to probate.
The Estate of Dotson court held that to “exhibit” a demand under 59-2237, the creditor had to file a petition and cause the petition to be set for hearing within the statutory period. 154 Kan. at 568-69. In Estate of Reed, 157 Kan. at 613, the court cited the opinion in Estate of Dotson, finding that “[t]here is no room for differentiation in the application of the legal principle announced.” The simple filing of the petition is not sufficient to commence a probate proceeding or to stop the statute of limitations from running. 157 Kan. at 613.
Appellant misconstrues the significance of the legislature’s 1943 amendment to 59-2237; it only governs the “exhibition” of demands by the decedent’s creditors against the estate. The exhibition of a demand against an estate is a separate and distinct proceeding from one for admitting a will for probate or seeking administration of the estate. See In re Estate of Jones, 3 Kan. App. 2d 63, 65, 588 P.2d 960 (1979). To adopt the position asserted by the appellant would render K.S.A. 59-2204 meaningless. K.S.A. 59-2204 provides that a probate proceeding may be commenced by “filing a petition and causing it to be set for hearing.”
The legal principle announced in Estate of Dotson, though no longer applicable in the creditor demand context, makes perfect procedural sense when commencing a probate proceeding. Justice Harvey, speaking for the court in Estate of Dotson, compared probate proceedings with civil actions under chapter 60. He said:
“There is a similar provision in our code of civil procedure (G. S. 1935, 60-301), which in effect recites that a civil action may be commenced by the filing of a petition and causing a summons to be issued thereon. No one would contend that the simple filing of a petition in the district court, without causing a summons to be issued thereon, would be the commencement of an action or would stop the statute of limitations from running.” 154 Kan. at 568.
Although the legislature has seen fit to make a creditor’s demand against a decedent’s estate effective from the date of the filing of a petition, the legislature has not eliminated the language in K.S.A. 59-2204 that requires the petition to be set for hearing to commence the probate proceeding. The filing of a petition to admit a will to probate, or the filing of a petition for administration and causing that petition to be set for hearing, are the mechanisms which trigger the judicial process within the context of the probate code, just as the filing of a petition and causing summons to issue trigger the commencement of a civil action under our code of civil procedure.
Under our current law, to timely commence a probate proceeding to admit a will to probate, the petitioner must, within 6 months of the decedent’s death, file a petition and cause it to be set for hearing. See K.S.A. 59-617; 59-2204; Estate of Reed, 157 Kan. at 612-13.
The appellant failed to set the petition for admission of decedent’s will for hearing within the 6 months provided by K.S.A. 59-617, and as such, it is time barred.
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Knudson, J.:
John J. Price has brought this direct appeal from his jury trial convictions for aggravated criminal sodomy, K.S.A. 21-3506(a) (Ensley 1988); indecent liberties with a child, K.S.A. 21-3503(a)(l) (Ensley 1988); and three counts of aggravated incest, K.S.A. 21-3603 (Ensley 1988). Included in the allegations against Price were that he molested A.O., his stepdaughter, when she was 15-16 years old, and later engaged in a drug-induced menage a trots with A.O. and her friend S.G., also 15 years of age.
Price contends on appeal: (1) There was prosecutorial misconduct during closing argument that prejudiced his right to a fair trial; (2) the trial court erred in certain evidentiary rulings; and (3) the erroneous introduction of an unredacted police report into the jury room during deliberations prejudiced his right to a fair trial. We disagree.
Prosecutorial Misconduct
On appeal, Price argues that comments made by the prosecutor during closing argument denied him a fair trial.
The Dickinson County Attorney argued, “[S.G.] and [A.O.] verify one another’s stories. So does Heather Kabler, and if time permitted, who knows how many other instances that we could find.” (Emphasis added.) Defense counsel interposed a timely objection, and the trial court responded, “I agree.” Defense counsel apparently was satisfied with the ruling and did not request a mistrial or ask that the jury be admonished to disregard the remark.
As a general rule, reversible error cannot be based upon improper argument by counsel unless there is a timely objection and a request that the jury be admonished to disregard the improper statements. State v. Fleury, 203 Kan. 888, 896, 457 P.2d 44 (1969).
The following argument was then made:
“[PROSECUTOR]: Judge William Rlackstone, who wrote the common-law primer for every student of law and legal practitioner, Blackstone, who is considered the preeminent and most recognized authority on English common-law, stated, in the year 1650, incest and willful adultery were made capital crimes, but also the repeated act of committing fornication was upon a second conviction made felony without benefit of clergy.
“The crimes that the defendant committed were not simply crimes against two girls, one 16 and one 15, they were crimes against society as a whole, and they have been crimes against society as a whole for hundreds of years.
“[DEFENSE COUNSEL]: Your Honor, I’m going to object. This is totally inappropriate. It’s obviously calculated to incite prejudice of the jury. What the history of these charges have been throughout time is just simply not appropriate argument.
“THE COURT: Your objection is noted.”
We find the prosecutor’s reference to. Blackstone and to the nature of certain crimes at English common law to be improper argument, but hardly of a tenor that raises a concern that Price’s right to a fair trial was impaired. We are also not persuaded the prosecutor’s comments should be construed as appealing to the self-interests of the jurors. While the trial court should have sustained the defendant’s objection, prejudicial error did not occur.
Price’s final suggestion of objectionable argument concerned the county attorney’s exhortation to the jury that it should follow the law and to do otherwise would be “to lower this standard in our community of Dickinson County, Kansas, to lower that standard in our state . . . and to lift a veil of protection that we have on our children.”
At trial, defense counsel did not interpose an objection to the above argument. As previously noted, the absence of a contemporaneous objection will generally foreclose appellate review because Kansas does not follow the plain error rule. State v. Marshall & Brown-Sidorowicz, 2 Kan. App. 2d 182, 197, 577 P.2d 803, rev. denied 225 Kan. 846 (1978).
However, regardless of whether there is a contemporaneous objection lodged, the prosecutor and the trial judge have independent duties to protect a defendant’s right to a fair trial. In State v. Wilson, 188 Kan. 67, 73, 360 P.2d 1092 (1961), the court stated:
“It is the duty of the county attorney in a criminal prosecution to see that the state’s case is properly presented with earnestness and vigor, and to use every legitimate means to bring about a just conviction, but he should always bear in mind that he is an officer of the court and, as such, occupies a quasi-judicial position whose sanctions and traditions he should preserve.”
Then, addressing the duty of a trial judge, the Wilson court stated:
“ Where counsel refers to pertinent facts not before the jury, or appeals to prejudices foreign to the case, it is the duty of the court to stop him then and there. The court need not and ought not to wait to hear objection from opposing counsel. The dignity of the court, the decorum of the trial, die interest of truth and justice forbid license of speech in arguments to jurors outside of the proper scope of professional discussion.’ ” 188 Kan. at 73.
We also note the following statements from Justice Abbott’s concurring opinion (with Justices Six and Davis joining) in State v. Spresser, 257 Kan. 664, 674-75, 896 P.2d 1005 (1995):
“[T]he rule we enforce is that if the defendant does not object to an improper closing argument the error is waived and if the defendant objects and the trial judge instructs the jury to disregard the improper argument the error is cured.
“I am very concerned that prosecutors who have an ethical obligation to insure that defendants receive a fair trial are aware of this court’s tendency as set forth above. We are seeing far too many unethical, improper closing arguments. If this trend continues, I see no alternative but to grant a new trial even though the trial judge instructs the jury to disregard the improper remarks.”
Based upon the reasoning in Wilson and Justice Abbott’s concurring opinion in Spresser, we doubt that strict application of the contemporaneous objection rule is justified when highly inflammatory and intemperate closing arguments constitute incurable prejudice.
We are deeply concerned with the content and tenor of the statements made by the Dickinson County Attorney during the closing argument. The statements that we have noted in this opinion were improper and beyond the limit of zealous and robust advocacy. However, we have carefully considered the record and conclude beyond a reasonable doubt that the remarks did not substantially prejudice Price’s right to a fair trial. The cumulative evidence against him was substantial and compelling. The direct evidence given by A.O. and S.G. was corroborated by A.O.’s mother and by Heather Kabler. There was also physical evidence that supported the State’s allegations against Price. Finally, there was evidence that he attempted to suborn perjury. Under the totality of circumstances shown by the evidence, the prosecutorial misconduct in closing argument does not constitute incurable prejudice that would warrant a new trial.
The Unredacted Police Report
During the trial, a police officer’s report was admitted by the trial court with the understanding by court and counsel that it would be appropriately redacted before being sent into the jury room during deliberations. Unfortunately, it was not. We do not know how long the jury had been in deliberations when the mistake was called to the trial court’s attention. When the court and counsel realized the mistake, the juiy was returned to the courtroom. The trial court explained to the jury that it had been given the exhibit by mistake and was instructed to disregard whatever it had read and was to consider only the properly redacted exhibit. Price did not object to the actions taken by the trial court, nor did he suggest any other alternative.
Price does not claim the trial court abused its discretion in its efforts to rectify the mistake. Rather, Price contends the mere introduction of the tainted evidence into the jury room, regardless of the trial court’s subsequent efforts, deprived him of a fair trial. Price argues our standard of review is to determine whether the error is harmless beyond a reasonable doubt. See State v. Thompson, 221 Kan. 176, 182, 558 P.2d 93 (1976). We do not believe that is the standard of review under the circumstances shown of record.
Obviously, it was a mistake that the unredacted exhibit went to the jury room when deliberations began. However, the trial court took prompt action to rectify the mistake, and Price did not object to the trial court’s actions nor suggest that jurors should be individually questioned to determine if any of them had read the unredacted exhibit. Price should not be allowed to acquiesce by silence in the action taken by the trial court and then argue for the first time in a post-trial motion or on appeal that the efforts were ineffectual. See State v. Smith, 232 Kan. 128, 132, 652 P.2d 703 (1982) (a litigant may not encourage a court to proceed in a certain manner and then attack such procedure on appeal).
Even if we consider the issue under the appellate standard urged by Price, we conclude there has been no showing of prejudicial error. Price did not, at trial or by any post-trial motion, bring forth any evidence to demonstrate jurors read the unredacted exhibit or were influenced by it in deliberations. The jury found Price not guilty of one count of indecent liberties with S.G. The jury’s guilty verdicts are supported by substantial direct evidence. We conclude that the transient introduction of the unredacted exhibit during jury deliberations did not affect the verdicts and Price’s substantive rights were not violated.
Introduction of Photograph
During the State’s case in chief, a photograph of S.G. in a provocative pose was introduced into evidence. The photograph was ostensibly taken by Price and would certainly suggest Price knew S.G. more than just casually. Price’s sole objection at trial was that of surprise. Later during the trial, Price’s attorney acknowledged there was no basis for the claim of surprise.
On appeal, Price contends that the picture of a naked S.G. was not relevant and that it was prejudicial. His complaint is that the picture was purportedly taken about 2 years after the alleged criminal acts lodged against him and thus had nothing to do with what happened in 1992.
Price made no contemporaneous objection as required by K.S. A. 60-404 that would support the legal argument he now raises on appeal. At trial, his only objection was one of surprise. Failure to state the specific grounds to support an objection that is overruled precludes appellate review. See State v. Cooper, 252 Kan. 340, 349, 845 P.2d 631 (1993).
Moreover, K.S.A. 60-401(b) defines relevant evidence as “evidence having any tendency in reason to prove any material fact.” Reasonable individuals could agree with the trial court that a provocative photograph of a naked 16-year-old girl taken in a hotel room by Price is relevant in determining whether he had a prior sexual relationship with S.G. Even if we reached the merits of this issue, we would not conclude the trial court abused its discretion.
Rebuttal Evidence
As noted above, the State presented two rebuttal witnesses. The first was a friend of A.O. and S.G.’s, Heather Kabler, who testified that A.O. had told her in 1992 of the sexual contact with Price, and that in 1992 or. 1993, Price had supplied Heather with drugs and forced her to show him her breasts. The second rebuttal witness was Jim Lynn. Lynn testified that he was in jail with Price a month before trial and that Price offered to pay him $5,000 to get S.G. to change her testimony.
On appeal, Price argues that neither of the witnesses rebutted his testimony and, therefore, the testimony should not have been admitted. In State v. Prouse, 244 Kan. 292, 296, 767 P.2d 1308 (1989), the Supreme Court quoted State v. Lovelace, 227 Kan. 348, Syl. ¶ 7, 607 P.2d 49 (1980), stating:
“ ‘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.’ ” (Emphasis added.)
“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.” ’ State v. Richard, 235 Kan. 355, 360, 681 P.2d 612 (1984) (quoting State v. Weigel, 228 Kan. 194, Syl. ¶ 9, 612 P.2d 636 [1980].” State v. Allison, 259 Kan. 25, 36, 910 P.2d 817 (1996).
While it is trué that “[rjebuttal evidence is limited to issues placed in conflict by the adverse party,” State v. Allison, 259 Kan. at 36 (citing Enlow v. Sears, Roebuck & Co., 249 Kan. 732, 742, 822 P.2d 617 [1991]), this does not mean that the rebuttal evidence must specifically refute the exact testimony of the defendant. When the defense has placed an issue in conflict, rebuttal testimony is then proper to corroborate testimony by the State which tends to refute the issue in contention. See State v. Rice, 261 Kan. 567, 580, 932 P.2d 981 (1997); Allison, 259 Kan. at 36.
Price testified that he did not have sexual relations with A.O. or supply her with drugs. Kabler’s testimony directly corroborated A.O.’s testimony and was proper rebuttal to impeach the testimony given by Price.
Lynn’s testimony was also proper impeachment of Price’s testimony. Price unequivocally denied having an illicit sexual relationship with S.G. and A.O. His assertions do not square with offering Lynn $5,000 to suborn S.G.’s testimony.
Price’s issue regarding the rebuttal evidence is utterly without merit.
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Pierron, j.:
John Weroha appeals the district court’s grant of summary judgment in favor of Rege Craft, d/b/a Planet Pinball, and Jim Deny.
Weroha filed a petition against Planet Pinball and other unknown owners, shareholders, or partners; Jim Derry; and four unknown individuals who were in the Planet Pinball on or about December 29, 1992. The petition alleged Weroha entered Planet Pinball, walked direcdy to the restroom, and was attacked by unknown assailants. He suffered injuries directly resulting from the attack. In his petition, Weroha alleged that Planet Pinball negligently or recklessly breached its duty of care owed to him by failing to provide reasonable security measures or a safe place to engage in the activities offered at Planet Pinball.
Planet Pinball filed a motion for summary judgment, claiming that Weroha failed to establish that Planet Pinball owed Weroha a duty to protect him against third-party attackers.
The district court’s initial memorandum decision made the following findings of fact and conclusions of law:
“Findings of Fact
“During the evening hours of December 29,1992, Plaintiff entered the business known as Planet Pinball and went directly to the bathroom. Either at the time the plaintiff entered the bathroom or shortly thereafter the plaintiff was attacked by a group of individuals who were not known to plaintiff prior to the attack. His jaw was broken, he was knocked unconscious, and suffered other injuries to his face and head. Plaintiff’s wallet was missing after the attack and he assumes it was taken by his assailants. Other than robbery, Plaintiff knows of no reason for the attack.
“Defendant Craft owns Planet Pinball and defendant Deny was the sole employee on duty at the time of Plaintiff’s battery. At the time that the battery occurred, Mr. Derry was in a storeroom talking on the phone and was out of view of the portion of the business which was accessible to the public. There was no sign of forcible entry into the bathroom.
“There was only one employee on duty in Planet Pinball on the evening of the attack on Plaintiff. There was no securiiy guard on duly and neither convex mirrors allowing visual access to blind parts of the public areas nor remote cameras, either real or fake, had been installed. There had been no prior incidents of violence either in Planet Pinball or in the surrounding shopping center. On the night of the attack, none of the customers were drinking alcohol or behaving rowdily. Defendants have hired off-duty police officers on occasion; although, none were present on the night of Plaintiff’s attack.
“Plaintiff had patronized Planet Pinball on one hundred fifty to one hundred seventy-five prior occasions. He had not previously observed any fights or violence there.
“Plaintiff attached to his response to the motion for summary judgment the affidavit of Leon Tuschoff, a security expert. Among other things, Mr. Tuschoff states that it is his opinion that the security at Planet Pinball ‘falls below normal standards of care and below the acceptable standards of security for the type of game arcade business that Planet Pinball is, and was at the time of the incident. . . .’ His affidavit goes on to offer examples of the security procedures which Mr. Tuschoff believes should have been implemented by defendants.
“Conclusions of Law
“[T]he first issue to be discussed is whether the defendants had a duty to take measures to protect plaintiff from criminal conduct. Under the rule set forth by the court in [Seibert v. Vic Regnier Builders, Inc., 253 Kan. 540, 856 P.2d 1332 (1993),] the court must look at the totality of the circumstances facing the defendants when they made their decision concerning the security measures which were necessary. There is no evidence that the business had experienced any problems with violence or crime. There is no evidence that neighboring businesses had experienced problems with violence or crime. Although the plaintiff’s expert alludes to the fact that businesses of the type run by defendants experience a high crime rate, there is no evidence that this is in fact the case and, more importantly, there is no evidence the defendants had knowledge that this is the case. Thus, the fact that defendants failed to provide mirrors, cameras and security officers on the premises cannot be grounds for negligence in this case. As to these issues defendants’ motion is sustained.
“There is one allegation made by plaintiff which can withstand the motion for summary judgment. That allegation is that the defendants owed a duty to plaintiff to properly supervise the area in which patrons are present. Even without evidence of high crime, it seems apparent to the court that a reasonable person operating a business patronized by a large group of adolescents would take some steps to assure that the adolescents were supervised at all times. It is common knowledge that the presence of unsupervised adolescents in a group can lead to crime or violence. Whether or not the defendants breached this duty is a question for the trier of fact. As to this issue, the defendants’ motion is denied.” (Emphasis added.)
In the district court’s second memorandum decision, in which it granted Planet Pinball’s motion to reconsider, it implicitly recognized that it was improper to take judicial notice of die fact that unsupervised adolescents in a group can lead to crime or violence. By eliminating judicial notice of this fact, the court found Weroha had failed to present any evidence, under the totality of the circumstances, which would have caused Planet Pinball to reasonably foresee the third-party attack. Therefore, the court found that viewing the facts in a light most favorable to Weroha, he had failed to establish that Planet Pinball owed a duty to provide security to him.
Weroha filed a motion to reconsider the district court’s second memorandum decision. The court denied the motion and restated its previous findings in its third and final memorandum decision.
On appeal, neither party contests the district court’s findings of facts. However, Weroha contests the inferences drawn by the court, the decision to withdraw judicial notice, and the application of the law in this case.
Weroha does not argue he is entitled to any relief solely because the district court reversed itself in applying judicial notice to the fact that the presence of unsupervised adolescents in a group can lead to crime or violence. Rather, Weroha argues he did not have notice the court had reversed itself until the hearing on his motion to reconsider, when the court expressly said it had taken this action. In the court’s second memorandum decision ruling on Planet Pinball’s motion to partially reconsider, the court reversed its ruling and impliedly withdrew the judicially noticed fact; however, it was not expressly withdrawn until the later hearing.
Weroha argues that because he did not have notice that this judicially noticed fact had been withdrawn, he did not make an effort to file Marvin Jefferson’s affidavit with the court. According to Weroha, Jefferson’s affidavit is evidence of the previously judicially noticed fact. Therefore, he asserts Jefferson’s affidavit should have been considered in reviewing whether his cause of action alleged sufficient facts to submit the case to the juiy.
The district court’s final memorandum decision on Weroha’s motion to reconsider stated:
“In addition to the legal arguments made by counsel, counsel for plaintiff has submitted an affidavit by Marvin Jefferson, a witness to the incident .... The court does not make a determination as to whether it is appropriate for the court to consider these items, submitted after the expiration of the time set out in Rule 141, as the court finds that even if the court considers them, they do not affect the decision of the court.”
Jefferson’s affidavit alleged the names of two men he claimed were Weroha’s assailants. The affidavit stated that given the character of the assailants and their friends, Derry’s activities would have apprised the assailants of the lack of security at Planet Pinball and, in fact, would have encouraged the assault. However, Jefferson’s affidavit did not allege that any crime or violent activity had occurred in or around Planet Pinball prior to that event; nor did he state an opinion or draw a conclusion that the presence of unsupervised adolescents in a group can lead to crime or violence. Jefferson merely asserted that these two men, ages 17 and 19, have a tendency to engage in crime or violence when left unsupervised.
Weroha’s argument that he was substantially prejudiced by the district court’s withdrawal of the judicially noticed fact because it prevented him from timely filing supporting evidence via Jefferson’s affidavit is without merit. The record clearly shows the court did consider the affidavit, even though it was not timely filed, and it did not provide alternative evidence of the previously judicially noticed fact which makes a direct correlation between groups of adolescents and criminal or violent activity.
Finally, Weroha’s argument of prejudice must fail because the district court took judicial notice of the fact in question on its own motion. If the court had not taken judicial notice of this fact at the time the initial memorandum decision was ordered, it would have granted Planet Pinball summary judgment on all issues. Weroha needed to file Jefferson’s affidavit with the court prior to its initial ruling on summary judgment.
The next issue to be considered is whether the district court erred in finding that Weroha failed to establish that Planet Pinball had a duty to protect Weroha from third-party attacks.
“A party is entitled to summary judgment if ‘there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law.’ K.S.A. 60-256(c)
“On appeal, we are required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom summary judgment was entered. McGee v. Chalfant, 248 Kan. 434, 437, 806 P.2d 980 (1991). Where reasonable minds could differ as to the conclusions to be drawn from the evidence, summary judgment should be denied. However, in McGee, we also noted: ‘The existence of a legal duty is a question of law to be determined by the court.’ 248 Kan. at 437. We have unlimited review of questions of law. T.S.I. Holdings, Inc. v. Jenkins, 260 Kan. 703, 716, 924 P.2d 1239 (1996).” Gragg v. Wichita State Univ., 261 Kan. 1037, 1044, 934 P.2d 121 (1997).
The memorandum decision denying Weroha’s motion for reconsideration stated:
“As the court noted in its memorandum decision on the defendants’ motion for reconsideration, the Supreme Court in Seibert v. Vic Regnier Builders, Inc., 253 Kan. 540 [, 550, 856 P.2d 1332] (1993), set forth the following rule to be applied to cases in which invitees are victims of crimes on business premises:
‘If, under the totality of the circumstances, the defendants could reasonably foresee that their customers have a risk of peril above and beyond the ordinary, they must take those security measures which would be taken by a reasonable person under the totality of the circumstances.’
In deciding a motion for summary judgment the court must determine whether there is a legal duty owing by the defendants to the plaintiff. The court must determine whether ‘under the totality of the circumstances, the defendants could reasonably foresee that their customers have a risk of peril above and beyond the ordinary.’ This issue was analyzed in detail in the court’s original decision. The actions of the defendants on the night in question are irrelevant to this issue.
“The only real evidence which bears on this issue is the affidavit of the plaintiff s expert. After again reviewing the affidavit the court believes that the affidavit is insufficient to show that the defendants could reasonably have foreseen that their customers have a risk of criminal activity above and beyond the ordinary. The affidavit is conclusory and does not state that it is weE known to owners of arcades that customers have an extraordinary risk of criminal activity. The affidavit also does not contain information sufficient to aEow the court to determine that the affiant is an expert who is capable of making such a statement.”
Both Weroha and Planet Pinball agree that Seibert sets forth the test for the district court to apply in determining whether a duty existed to provide security.
In Seibert v. Vic Regnier Builders, Inc., 253 Kan. 540, 856 P. 2d 1332 (1993), plaintiff drove to shopping center and parked in an ' underground parking garage. Upon exiting the car, plaintiff was assaulted and shot by the assailants. Plaintiff brought an action against the owner of the shopping center, alleging:
“[The shopping center] was negEgent in not providing security for its patrons when the assault upon her was foreseeable. Specifically, she alleged that by virtue of past criminal activity in the shopping center’s parking areas plus the nature of the underground parking area, including dim fighting by virtue of numerous bumed-out fluorescent tubes, [the shopping center] owed a duty to her as a business invitee to provide security. The shopping center had no security for its patrons — no warning signs, video surveillance, or security guards. The plaintiff offered expert testimony that the security, including the fighting, was inadequate and had appropriate security measures been in place, the attack upon her would probably not have occurred.” 253 Kan. at 542.
In determining whether the shopping center had a duty to provide security, the Kansas Supreme Court noted this was not a case of either failure to intervene or summon police:
“Rather, the liability sought to be imposed . . . is predicated upon the frequency and severity of prior attacks against different patrons by presumably different attackers at different times and in different areas of the parking lot, plus the totality of the circumstances making the attack upon the plaintiff or some other business invitee foreseeable to the defendant, who then had a duty to take appropriate security action to prevent or make less likely the same from occurring.” 253 Kan. at 547.
The Seibert court looked to two general rules to determine whether a duty was owed:
“The owner of a business is not the insurer of the safety of its patrons or customers. The owner ordinarily has no liability for injuries inflicted upon patrons or customers by the criminal acts of third parties in the business’ parking lot, as the owner has no duty to provide security. Such a duty may arise, however, where circumstances exist from which the owner could reasonably foresee that its customers have a risk of peril above and beyond the ordinary and that appropriate security measures should be taken.” 253 Kan. at 548.
Circumstances which the Seibert court found to create a duty are prior incidents in the area and whether it is located in a high crime area. 253 Kan. at 549.
Finally, the Seibert court found plaintiff’s general allegations that security was inadequate were not sufficient to allege a duty existed; rather, plaintiff must show that under the totality of the circumstances the owner had a duty to provide security. 253 Kan. at 550. The plaintiff presented evidence that in the past 3 years, two armed robberies had occurred and one car was broken into.
The Seibert court reversed and remanded to the district court with instructions to review the case under a totality of circumstances test. The Supreme Court further directed the district court to make specific findings as to whether the premises were in a high crime area and to consider the physical characteristics of the parking garage to determine whether under the totality of the circumstances the shopping center owed a duty to provide security. 253 Kan. at 550.
Weroha argues the district court here made the same error as did the district court in Seibert, which was to simply rely on the “prior similar incidents” rule. 253 Kan. at 543. Weroha contends the court failed to apply the totality of circumstances rule articulated in Seibert and failed to draw all reasonable inferences in favor of the nonmoving party on summary judgment.
In reviewing the totality of the circumstances, the district court looked at the following facts: The only employee on duty was not in the public area of the establishment for an extended period of time; two nights a week Planet Pinball hired off-duty police officers to work; Planet Pinball did not hire a security expert to inquire about security measures which could have been taken; some inexpensive, unobtrusive security measures could have been taken which would have greatly increased the security on the premises; Planet Pinball did not have a policy of ejecting customers who were loitering and not playing games; there has never been a prior incident of violence at Planet Pinball; there was no evidence of a high rate of criminal activity in the area where Planet Pinball was located; and there was no evidence that arcade businesses in general have a high degree of criminal activity associated with them.
Weroha asserts the district court erred in finding there was no evidence that any incidents of violence had occurred at Planet Pinball and there was no evidence that arcade businesses in general have a high degree of criminal activity.
Weroha asks this court to draw the inference that there were previous incidents of violence at Planet Pinball from Planet Pinball’s decision to hire off-duty police officers on Friday and Saturday nights. In support of his request, Weroha points to a statement by his expert, Leon Tuschoff:
“The Affiant further states that in his opinion it is incongruent for the owner of the store to claim that there was no reason to hire off-duty police officers (which is the most expensive type of security and in most incidences twice as expensive as the private security that was available in Lawrence at the time) other than . . . incidents or other indications that such security was needed.”
Weroha further asks us to draw the inference that the arcade business in general has a high degree of criminal activity. In support, Weroha relies upon Tuschoff’s conclusion:
“The Affiant further states that the apparent lack of attention to security, outlined above, in this type of business is inconsistent with the minimum level of safety/ security such business should provide for its patrons’ safety, given the ages of the patrons and the general nature of the business.”
The inference which Weroha asks this court to draw from the fact that Planet Pinball hired off-duty police officers two nights a week is not a reasonable inference. See McGee v. Chalfant, 248 Kan. 434, 437, 806 P.2d 980 (1991). Weroha’s inference is based solely on the costs associated with hiring off-duty police officers. Without more, it is not reasonable to conclude that previous inci dents of violence had occurred at Planet Pinball from its decision to hire off-duty police officers on Friday and Saturday nights.
Weroha’s reliance upon Tuschoff’s bald statement about the “minimum level of safety/security such business should provide for its patrons’ safety, given the ages of the patrons and the general nature of the business,” to support the inference that arcade businesses in general have a high degree of criminal activity is unwarranted.
The district court viewed the evidence in the light most favorable to Weroha, but refused to make unreasonable inferences. See McGee, 248 Kan. at 437. The district court did not err in finding that based upon the totality of the circumstances, which included no evidence of previous violent activity at Planet Pinball, in the area, in the arcade business, or with the alleged assailants at Planet Pinball, Planet Pinball did not have a general duty to provide additional security to its patrons. An opinion to the contrary must have some factual basis to be credible.
We finally address whether the court erred in finding that Planet Pinball did not have a duty to intervene.
In granting summary judgment in favor of Planet Pinball, the district court stated:
“Supreme Court Rule 141 provides that a party opposing a motion for summary judgment must state which factual contentions submitted by the moving party are controverted and must furnish a summary of the conflicting evidence with specific references to the pages, lines and/or paragraphs of the supporting documents. The plaintiffs have made no contraventions of the facts stated by the defendants or references to supporting documents which set forth any evidence which would impose on the defendants a duty to intervene. The defendants’ motion for a summary judgment is granted as to any allegations that defendants breached a duty to intervene on behalf of plaintiffs.”
On appeal, Weroha fails to argue that the district court erred in finding he had not made any factual contraventions to Planet Pinball’s factual contentions on this issue. Further, Weroha confuses two separate legal duties in his argument that the district court erred in failing to find that Planet Pinball had a duty to intervene on his behalf.
Kimple v. Foster, 205 Kan. 415, 469 P.2d 281 (1970), sets forth the law in Kansas on a proprietor’s duty to intervene. See Seibert, 253 Kan. at 547. In Kimple, the business owner was held liable when a physical attack commenced and several patrons, including plaintiffs, repeatedly asked employees to call the police, but to no avail. The business owner was found to have breached his duty to the plaintiffs because there was ample evidence that the employees had notice of the potentiality of danger to their guests. 205 Kan. at 419. The duty to intervene arises when a proprietor has actual notice, or should have notice, of the potentiality of danger.
There are no facts in this case which suggest that Derry had notice that Weroha was in either actual or potential danger; therefore, no duty to intervene occurred. In fact, Weroha states in his brief: “Upon hearing the [attack] through the wall, Defendant Deny left the store-room, where he had been on the phone again. He accosted the four individuals and asked them to leave. They did so.” The evidence supports the fact that once Derry had notice of danger, he intervened.
Weroha is actually just arguing again that Planet Pinball had a duty to take additional security measures to prevent or make less likely the commission of the crime. As set out above, the necessary facts to establish that duty are not present in this case.
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Lewis, J.:
In 1995, defendant Lenora Williams pled guilty to one count of forgery, a felony, and one count of attempted possession of marijuana, a misdemeanor. She was sentenced to 10 months in prison on the forgery charge and 90 days in the county jail on the marijuana charge. She was then granted probation from the sentences.
In 1996, a motion was filed to revoke her probation. The trial court conducted a hearing on the motion and found that defendant had violated her probation by failing to report 27 times, failing to comply with the recommendations of an evaluation, and failing to maintain full-time employment. Based on these violations, the court revoked defendant’s probation, and she was ordered to serve the original sentences.
Defendant first argues that her probation revocation was not in conformity with due process because the judge did not set out the reasons for the revocation in writing. We disagree.
Gagnon v. Scarpelli, 411 U.S. 778, 786, 36 L. Ed. 2d 656, 93 S. Ct. 1756 (1972), holds that due process on a probation revocation requires a written statement by the factfinder as to the evidence relied upon and the reasons for the revocation.
In this case, defendant was present at all times during the probation revocation hearing. She was represented by counsel and had the opportunity to be heard, present evidence, call witnesses, and cross-examine adverse witnesses. There is no possibility that the trial court’s failure to state the reasons for its decision in the journal entry could have prejudiced the defendant’s substantial rights.
In the journal entry, the trial judge stated that defendant’s probation revocation was based on the “evidence presented.” However, in announcing his decision on the record at the hearing to revoke probation, the trial judge stated all of the specific reasons for his actions. These reasons are clearly discernible from a reading of the record.
While the better practice might be to list the specific reasons for revocation and the evidence thereon in the journal entry, the failure to do so in this case did not deprive defendant of due process. She had all the due process available to her, and the fact that she is incarcerated is her fault alone.
In addition to the above, if there was error in failing to list the reasons for revocation in the journal entry, it was technical error at best. As we have pointed out above, defendant’s substantial rights were not prejudiced in any way and, even assuming error, we consider it harmless and not reversible. See State v. Denney, 258 Kan. 437, 444-45, 905 P.2d 657 (1995).
Finally, the defendant argues that the trial court erred in failing to consider placing her in the Labette Correctional Conservation Camp (LCCC) pursuant to K.S.A. 1996 Supp. 21-4603d(a), which provides in part:
“[P]rior to revocation of a nonprison sanction of a defendant whose offense is classified in the presumptive nonprison grid block of either sentencing guidelines grid . . . , the court shall consider placement of the defendant in the Labette correctional conservation camp. Pursuant to this paragraph the defendant shall not be sentenced to imprisonment if space is available in the conservation camp and the defendant meets all of the conservation camp’s placement criteria unless the court states on the record the reasons for not placing the defendant in the conservation camp.” (Emphasis added.)
Defendant’s criminal history and crime severity level placed her in a presumptive nonprison block on the sentencing grid. In such a case, the statute says that the district court shall consider placement in LCCC.
It is apparent that in this case the trial court was required by law to at least consider placing defendant in LCCC prior to the revocation of defendant’s nonprison sanction of probation. The trial court failed to do so.
We hold that under the mandatory provisions of K.S.A.-1996 Supp. 21-4603d(a), a trial court is required, prior to the revocation of a nonprison sanction of a defendant whose offense is classified in the presumptive nonprison grid block of either sentencing guidelines grid, to consider placement of the defendant in LCCC on the terms set forth in the statute. A failure to do so will require this court to reverse the revocation and remand the matter for a new hearing.
The revocation of defendant’s probation is set aside, and the matter is remanded for a new hearing in accordance with this opinion.
Reversed and remanded. | [
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The opinion of the court was delivered by
Hopkins, J.:
W. M. Sidles owned thirteen acres-of land immediately south of the city of Wichita where he operated a dairy farm. The city, in connection with a project to widen a drainage canal, took a fifty-foot strip of land from the west side of Sidles’ farm, for which the city appraisers allowed him |T,600. On appeal to the district court he recovered $3,011.94, and the city appeals.
There was evidence that Sidles, in order to carry on his dairy business, was required to build a new dairy barn, reestablish his dairy corrals, make a place for a hog shed, feed rack and pump, and in order to do so was obliged to destroy a portion of his fruit orchard, cutting off cherry, apple and plum trees located upon the land not actually taken. Evidence was introduced to show the value of the fruit trees which he was obliged to destroy, in order that the jury might consider to what extent the land not taken was depreciated in. value, and ultimately to determine what would be full compensation to him by reason of the taking of a portion of his land. The city complains chiefly of the manner by which the jury arrived at the amount of damages.
Special questions were submitted to the jury and answered as follows:
“1. What was the most advantageous use for which the land condemned by the city and taken from the appellant, Sidles, was adapted in April, 1926? A. Dairy.
“2. • How much do you award appellant as full compensation for the land exclusively, which was taken? A. $950.
“3. How much do you award appellant for the dairy barn, shed and dairy equipment therein contained which was taken? A. $725.
“4. What damages, if any, do you award appellant for the removal of his hog houses and feed racks from the land taken? A. $50.
“5. What damages do you award appellant for the fences and well which were located on the land taken? A. $75.
“6. What damages do you award appellant as full compensation for the cherry trees upon the land taken? A. $240.
“7. What damages do you award appellant as full compensation for—
(a) Cherry trees not upon the land taken but which he lost in rebuilding his barn and stock lots? A. $450.
(b) The apple and plum trees which appellant lost in rebuilding his barn and stock lots? A. $225.
“8. What damage do you award appellant as full compensation for moving his house and expenses incident thereto? A. $150.”
It is argued by the city that a jury could be misled by attempting to itemize every conceivable item upon a tract of land taken. Perhaps so, but it did not do so here. The items enumerated do not make up the claimant’s entire damages found by the jury — $3,011.94. So far as we are ablé to ascertain, the items only assisted the jury in arriving at the total amount of damages allowed. The damage allowed for the value of the trees was not a distinct and independent injury to the land. None of the items was considered separately and apart from the value of the land, but they were considered as a part thereof in ascertaining the ultimate damage. Therefore, the theory of the trial court was not in conflict with principles enunciated in 20 C. J. 798; Long Distance Telephone Co. v. Schmidt, 157 Ala. 391; P. B. & C. Traction Co. v. Vance, 234 Ill. 36; Manda, Inc., v. D. L. & W. R. R. Co., 89 N. J. L. 327; Savings & Trust Co. v. Penna. R. R. Co., 229 Pa. St. 484, as contended by the city.
In Smith v. Wyandotte County, 113 Kan. 244, 214 Pac. 104, it was said:
“Where a strip of land is taken from an entire tract for the widening and improving of a highway, the owner is entitled to compensation to the extent of the value of the land taken and for injury to and depreciation of the remainder of the tract, resulting from the appropriation; and in determining the damages to which he is entitled, consideration may be given to the character of the improvement and its effect upon the part of the tract not taken, including interference with access to the tract and the use to which it is devoted or reasonably adapted.” (Syl.)
The record presents no error that would warrant a reversal.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
This is an action on three promissory notes, of the aggregate face value of $2,200, by the payee’s executor against the makers. The jury returned a verdict for defendants. Plaintiff has appealed.
The only controverted question submitted to the jury related to the statute of limitations. The issue was whether any payment had been made on the notes since October 23, 1920. The notes were dated October 23, 1919, and were due in one year. Each note contained an indorsement that interest was paid to October 23, 1920. Defendants admitted making that payment. The- notes bore a second indorsement which is not in the same wording on each of the notes, but is to the same effect. On one of them it reads:
“Interest again paid to October 23, 1921. These interests are paid in pasture to Fred Cosens, and Fred is to pay me these interests, $132.”
Plaintiff had no evidence of payment on that date other than this indorsement, which was in the handwriting of the payee. This memorandum would indicate that payment was not actually made, but that there had been some three-party agreement by which Fred Cosens, a son of defendants, was to pay it. The defendants deny making any payment at that time, or at any time since October 23, 1920, and they and Fred deny that there was any agreement by which Fred was to pay it. It seems quite clear from the evidence that no payment of this item was in fact made by anyone. The jury, therefore, had evidence on which to base their verdict, which, in effect, was that no payment had been made on the notes since October 23,1920. Since the action was not brought until October 16, 1926, the five-year statute of limitations had run.
The pleadings presented other issues than the statute of limitations. Counsel for defendants, in his opening statement to the jury, spoke of the other defenses and the evidence that would be offered in support of them. Appellant contends this was error. The contention is not sound. The issues were then in the pleadings, and the fact that the court did not regard the evidence sufficient to go to the jury on the other issues did not preclude counsel from stating what he expected to prove concerning them. Especially was that true when counsel stated to the jury that what he was saying was not evidence, and that it would be the duty of the jury to reach their decision from the evidence which the court permitted to be received in the trial of the case.
Appellant contends that the court erred in permitting one of the defendants to testify to the contents of a letter she said she received from the payee of the notes. This point is not well taken for several reasons. It related to an issue that never went to the jury. Then there was no proper objection to this testimony. The witness, previous to the trial, had written from memory what she said was a copy of the letter. When that was offered in evidence the court sustained plaintiff’s objection to it. The witness was then asked as to the contents of the letter received and testified concerning it without objection. Indeed, the most pertinent question on that point was asked by plaintiff on the cross-examination. In the third place, perhaps her testimony was competent under the authority of Moore v. Miller, 119 Kan. 666, 240 Pac. 853.
Plaintiff offered evidence that the payee of the note had deposited to his credit in the bank a check of the defendant Nina Cosens for $50. In the reply in this case plaintiff alleged that this $50 had been paid on the notes. It had not been credited by the payee on the notes, and plaintiff had no evidence for what the check was given. Defendants testified they had borrowed from the payee of the notes money to pay taxes, and that $50 was in part payment of the sum borrowed for that purpose. Appellant contends that the witnesses were incompetent to testify to that transaction. Even if that be true, plaintiff’s evidence was totally inadequate to show that this payment was made to apply on the notes. The fact that defendants had executed notes to the payee did not prevent them having other business transactions with him, and before plaintiff could sustain the allegations of his reply the burden was on him to show that this payment was made for the purpose of being applied as a credit on the notes. Hence, the error, if any, in receiving the evidence of defendants on this point is of no consequence.
Appellant contends that the court erred in not permitting plaintiff to introduce in evidence a copy of the will of the payee of the notes and an inventory of his estate. This was offered to show the limited interest of certain witnesses for plaintiff as affecting their credibility. The matter was one which rested largely within the discretion of the court. A full inquiry into that matter might have been very extensive, as the estate was not yet fully administered. There is nothing in the record to indicate that the court abused its discretion in this respect.
Finding no error in the record, the judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Hopkins, J.:
The question presented here is whether a complaint charging child desertion was properly verified. The state was defeated, and appeals.
The defendant was arrested on a charge of deserting his child, waived a preliminary hearing and was bound over to the district court. An information was filed in the language of the statute, verified by the county attorney on information and belief. A motion to quash was sustained on the ground that the complaint on which the warrant had been issued was not properly verified.
Without setting out the complaint in full, it is sufficient to say that it contained the venue, then the statement, “Margaret Jones, being sworn, says”; then the body of the complaint, followed by the affiant’s signature, which was followed by the words, “Subscribed and sworn to before me this 15th day of March, 1927,” and signed “Morgan J. Wallace, justice of the peace.” The trial court was of opinion that it was necessary for the verification to be written out in full, beginning “I do solemnly swear” and ending “So help me God,” and having then been signed by the prosecuting witness, should have the statement of the justice, “Subscribed and sworn to before me,” etc.
The statute provides that a justice of the peace may administer an oath (R. S. 54-101); how it is to be administered (R. S. 54-102); and prescribes the beginning and conclusion, which are, “You do solemnly swear.....So help you God.” (R. S. 54-104.) As was said in City of Kingman v. Berry, 40 Kan. 625, 628, 20 Pac. 527, “the important consideration is whether the complaint was actually sworn to before a proper officer.” There is no question here but that it was.
“The generally accepted doctrine seems to be that the jurat is not such a part of the affidavit proper that its omission will render the affidavit a nullity. . . . And that it may be shown by extrinsic evidence that the affidavit was in fact sworn to at the proper time and before the proper officer.” (2 C. J. 359, 360.)
In Buckland v. Goit, 23 Kan. 327, it was held that the entire omission of a jurat did not render an affidavit void.
“These rulings necessarily imply that the certificate of the officer under his signature and seal is merely evidence that the affidavit was duly sworn to, and in Foreman v. Carter, 9 Kan. 674, 682, it was said that a challenge of a jurat is not an attack upon what was done but an objection that the proof of what was done is defective. If, therefore, the jurat be missing from an affidavit, if there be no proof on the face of the paper that an oath was duly administered, the fact may be established by evidence aliunde.” (James v. Logan, 82 Kan. 285, 288, 108 Pac. 81.)
There is considerable diversity among the courts as to the effect of the omission of the jurat. The cases are assembled in a note in 1 A. L. R. 1568, and in 2 C. J. 361. The better rule in our opinion is to hold that the complaint was not void because of the claimed irregularity. It could have been amended or evidence could have been introduced aliunde to show that the oath was actually administered. Then, also, the defendant had been arrested on a proper warrant, had waived his preliminary hearing and was before the court charged in a sufficient information. The irregularity in the complaint was waived.
The judgment is reversed, and the cause remanded for further proceedings. | [
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The opinion of the court was delivered by
Hutchison, J.:
This case was commenced in the district court of Saline county on September 1, 1926, to contest the will of Ellen A. Price, deceased. The demurrer of the defendants to the petition was overruled. Issues were joined by filing answer and reply. Trial was had, findings of fact and conclusions of law were made by the trial court, and judgment was rendered in favor of plaintiffs, setting aside the will on account of incapacity of testatrix and undue influence. Defendants appeal.
Appellants present only one question and that, in the language of the appellants, is “whether or not the appellees had the right to maintain this action at the time it was brought.” This involves the construction of R. S. 22-222 and chapter 160 of the Laws of 1925. These laws are as follows:
“If no person interested, or claiming to be interested, shall appear within two years from the time of the making of any order by a probate court, probating or refusing to probate the will and contest the same, such order shall be forever binding, saving, however, to persons under legal disability, the period of two years after such disability is removed. The provisions of this act shall apply to any order of the court probating or refusing to probate the will, made at any time unthin two years prior to the taking effect of this act: Provided, however, That no proceedings to contest or set aside such order of the probate court shall affect the rights of innocent parties who have acquired title to property under the laws as they existed prior to the passage of this act.” CR. S. 22-222.)
“Section 1. That section 22-222 of the Revised Statutes of Kansas of 1923 be and the same is amended to read as follows: Sec. 22-222. If no person interested or claiming to be interested shall appear within one year from the time of the making of any order by a probate court, probating or refusing to probate the will and contest the same, such order shall be forever binding, saving, however, to persons under legal disability, the period of one year after such disability is removed: Provided, That no proceedings to contest or set aside such order of the probate court shall affect the rights of innocent parties who have acquired title to property from the heirs, legatees or devisees, directly or indirectly, after the one year above provided shall have elapsed without the filing of any such contest.
“Sec. 2. . . . Provided, That this act shall not apply to any action or proceeding now pending.” (Laws of 1925, ch. 160.)
By the act of 1925 the former law was repealed by specific reference thereto. It will be readily observed by a comparison that the important change effected by the amendment is the reduction of the period of time within which a contest can be commenced from two years to one year. The change in the language at the close of these two sections will not concern us in this action; however, we will need to observe and consider the effect of the omission of the short sentence in italics in the middle of the old section from the section as amended.
The will in this case was made and executed June 23, 1917. The testatrix died August 23,1924. The will was probated September 12, 1924. The act of 1925 amending and repealing the old law was approved February 20, 1925. It took effect by being published in the statute book as chapter 160 of the Laws of 1925, May 28, 1925. This action'was commenced September 1, 1926.
Among the reasons assigned and argued by the appellants why this action has not been commenced within the time prescribed by statute are, first, that the act of 1925, like the former ones along the same-line, is a statute of limitations; second, that it is a continuing statute instead of a new enactment; third, that it is prospective only and not retrospective; fourth, that it repeals the old law and therefore leaves no further rights or privileges thereunder; fifth, that the only sustaining power left for prior matters is in section 2 of the new act to the effect that the act shall not apply to any action or proceeding now pending, and it is argued that the probating of the will is not an action or proceeding as contemplated by the law. From these principles appellants argue that this action might have been properly commenced, first, within the period between the date of the approval of the new law, February 20, 1925, and the date it took effect, May 28,1925 or, second, within one year from the date the will was probated, which would be September 12, 1925; or, third, within one year from the date the law took effect, which would be May 28, 1926. If any of these rules control, then this action, being commenced September 1, 1926, was brought too late. The first subdivision of R. S. 77-201, declaring the Kansas rules for construing laws, is as follows:
“The repeal of a statute does not revive a statute previously repealed, nor does such repeal affect any right which accrued, any duty imposed, any penalty incurred, nor any proceeding commenced, under or by virtue of the statute repealed. The provisions of any statute, so far as they are the same as those of any prior statute, shall be construed as a continuation of such provisions, and not as a new enactment.”
The last- clause may be considered first in this connection and we may very properly conclude that the act of 1925 under consideration is a continuation of a prior statute, except where expressly changed, rather than a new enactment. This conclusion is in harmony with the history of the legislation in Kansas on this subject. Ever since 1868 there has been a law in Kansas authorizing the contest of a will within a limited time after the will was probated. At first it was within two years. This law continued in force until 1907, when the time was changed to three years. In 19-17 it was again changed to two years, and this is the law set out above as R. S. 22-222. This law continued until 1925, when the time was reduced to one year. So we have had a continuing law of this character since 1868 without any substantial change in it except the length of time allowed to commence the action. While it has been frequently held that a statute of limitations can be changed by the legislature extending or cutting-off time for bringing an action (Milbourne v. Kelley, 93 Kan. 753, 145 Pac. 816), the act here in question is more than a statute of limitations. It was held in Medill v. Snyder, 71 Kan. 590, 599, 81 Pac. 216, that this statute was not a mere statute of limitations but one that concerns itself with a number of creative and regulatory matters of jurisdiction and procedure in relation to wills and rights and privileges thereunder; that it was not subject to the same rules that governed the changing of time limitations in statutes that are mere limitations. It carries a right. to invoke jurisdiction, and the right thus granted and the conditions imposed go together.
There is no question about this law being naturally and properly prospective rather than retrospective in its application.
“Generally, a statute will be construed as applying to conditions that may arise in the future. An act will not be given a retrospective operation unless the intention of the legislature that it shall so operate is unequivocally expressed.” (Douglas County v. Woodward, 73 Kan. 238, syl. ¶ 1, 84 Pac. 1028.)
“The general rule is that statutes are to be interpreted as operating on cases or rights which arise after the statutes are enacted, and are not to be construed as operating retrospectively or as authorizing an interference with existing rights or cases unless the intention to so operate is expressly declared.” (Bailey v. Baldwin City, 119 Kan. 605, 607, 240 Pac. 852.)
This brings us to the consideration of the omission from the new law of the sentence in italics in the old law. That was distinctively retrospective, and because it is omitted from the new law and because the new law repealed the old law the appellants argue that there is no provision in force applying to wills probated prior to the enactment of the new law, unless it is found within the prospective provisions of the new law or .the exception in the second section concerning actions and proceedings “now pending.” We have said this privilege of contesting wills is and has been under and by virtue of continuing acts. It has not been intermittent or subject to interruptions by amendments and repeals. Until the last enactment there was no change except that of time in which to commence the action —each naming a retrospective limitation in addition to the prospective — but rights that have been acquired under existing laws are not lost by amendment or repeal of such laws, even without retrospective legislation. This is specifically stated in the Kansas rules of construction above quoted as follows: “Nor does such repeal affect any right which accrued . . . under or by virtue of the statute repealed.” When the will in this case was probated on September 12, 1924, all interested parties had two years within which to contest the will under the then existing law. That was an accrued right the day the will was probated and no subsequent amendment or repeal of the law could deprive them of that right.
“When the judgment had been rendered and the insolvency of the corporation had been demonstrated by the issuance and return of an execution nulla bona a right at once accrued to its owner, under the existing statute, not only to have a receiver appointed for the corporation, but by this means to enforce the stockholder's liability to him. This right by the terms of the statute quoted survived the repeal, although no proceeding had been begun to assert it.” (Henley v. Myers, 76 Kan. 723, 732, 93 Pac. 168, 173. See, also, Wire Co. v. Stevenson, 71 Kan. 64, 79 Pac. 1085; In re Moseley’s Estate, 100 Kan. 495, 164 Pac. 1073.)
We quote at length from the opinion of a case in this court involving the change in this law made in 1917 reducing the period from three years to two years, which covers the same points raised in this case, and it is interesting to observe that the retrospective clause then in that law did not control the rights of litigants by attempting to limit the contest privilege to wills that were probated within two years prior to the taking effect of the new law, but the court held that contestants were entitled to three years after the date the will was probated, regardless of the retrospective provision, because the privilege of three years was an accrued right existing at the time the will was probated.
“The right to challenge, the validity of the will by an independent action in the district court . . . existed solely by reason of the statute. The requirement that such an action, if maintained at all, must be begun within three years of the order of probate was not a mere statute of limitation applicable to a case of that kind; it was a condition upon which the right to bring such a proceeding was granted. . . . What the old statute gave was and what the new statute gives is, the right within a certain period after probate to bring an action to set a will aside; no right was or is given to bring such an action otherwise than within the period fixed. The right to attack the will by an action brought at a later time does not exist, and never did exist. It may be suggested that a right to contest the will involved in the present action accrued when it was probated on January 7, 1915, and survived the repeal (on May 26, 1917) of the statute granting it, because ‘the repeal of a statute does not . . . affect any right which accrued’ under it. . . . If such a right, which at the time of the repeal had not been acted upon, is within the protection of that rule, which is doubtful, . . . this would not save the petition, for the only right in that connection which the statute gave was to contest a will by an action brought within three years of its probate, ‘and not afterwards,’ and this right would avail the plaintiffs nothing, because of the expiration of that period.
“An interpretation carrying out the manifest purpose of the legislature may be arrived at by applying the rule that the provisions of a statute, so far as they are the same as those of a prior statute, shall be construed as a continuation of such provisions, and not as a new enactment, ... a rule often recognized independently of any statute. . . . Construed according to this rule the effect of the successive enactments may be thus stated: The provision that a will may be contested by bringing an action in the district court within a fixed period has been continuously in existence since 1868. The extent of that period has varied from time to time. It was two years until March 13, 1907, when with respect to wills probated after March 13, 1904, it was changed to three years. It remained at three years until May 26, 1917, when with respect to wills probated after May 26, 1915, it was changed back to two years. The will here involved, having been admitted to probate January 7, 1915, was therefore subject to contest for only three years from that date, and the present action, begun. March 8, 1920, cannot be maintained.” (Ferrier v. Ferrier, 108 Kan. 130, 132, 193 Pac. 1071.)
Under the authority of this precedent, which covers substantially all the points in the instant case, as well as the other decisions above noted, we have no hesitation in concluding that the case at bar was commenced within the time allowed and that the demurrer to the petition was properly overruled.
The judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
The appeal in this case is by the plaintiff from a decision of the trial court finding the property attached to belong to an interpleader and discharging the attachment. The appellant questions the correctness of such finding and decision because the interpleader is estopped to claim the property after having signed a forthcoming bond and failing to appear at the final hearing on the issues as to ownership and dissolution of attachment; also, because of failure of physical delivery of the personal property described in the bill of sale, want of consideration for the purchase, and want of good faith, especially because of the fiduciary relation existing between the purchaser and vendor.
On January 19, 1926, plaintiff sued defendant on a note dated April 16, 1923, and attached an oil- and gas-drilling rig and equipment as the property of the defendant. On or about January 28, 1926, the defendant answered, and at the same time his mother, having obtained leave, filed an interplea claiming to be the owner of the rig and. equipment attached. Evidence was introduced on the interplea and the matter was taken under advisement by the court. It developed in the evidence that the defendant had purchased the rig and equipment on April 16, 1924, for $3,000 and had obtained the money to do so from a bank by procuring his mother’s signature as security on a note for one year. During the year he had reduced the indebtedness by $500. The bank refused to renew or extend the note, but finally agreed to accept the obligation of his mother provided he would sell the rig and equipment to her and she would become the owner of it. This arrangement was completed and the bank prepared a bill of sale to the mother, which defendant executed and delivered to her. At that time she paid him one dollar in cash and assumed the obligation at the bank. Defendant says he told her the rig and equipment were hers. He, however, continued to operate it, making contracts, collecting for work done, paying expenses, including seven dollars a day to himself, and turning the balance over to the account of his mother, as executrix, in the bank. The rig continued to be listed for taxation as his. His mother was out a few- times to the place where the rig was being used. The interplea contained a motion to discharge the attachment. Another interplea was filed by another party, and the defendant later filed a motion to discharge the attachment because the property attached was exempt. Evidence was introduced on these matters, and a decision was not rendered on any proposition in the case, except a personal judgment for plaintiff on the note, until March 8, 1927, when the interplea of the mother was sustained and the attachment on that account discharged. In the meantime, on July 10, 1926, the defendant gave a forthcoming bond for the rig and equipment and his mother signed the bond as one of the sureties thereon.
Appellant urges that the interpleader is estopped by having signed the forthcoming bond with her son, and relies strongly upon the case of Peterson v. Woollen, 48 Kan. 770, 30 Pac. 128. This decision and three earlier ones in this state were carefully reviewed in the case of Commission Co. v. Hicks, 92 Kan. 922, 142 Pac. 276, and the principle announced in the case of Dent v. Smith, 76 Kan. 381, 92 Pac. 307, was there applied to all such cases. This principle, which does not seem to have been considered in these earlier cases, is as follows:
“Before the acts of one person can be successfully invoked as an estoppel by another, such other must have relied upon and been prejudiced by the acts of which he complains.” (Dent v. Smith, supra, syl. ¶ 1.)
After such careful review and the application of the above principle the court concluded “that as the plaintiff company was fully advised of the interpleader’s claim before the levy was made, and was in no way deceived or induced to change its position to its own injury by any statement or conduct of the claimant, the latter was not estopped to assert his title.” (Commission Co. v. Hicks, supra, syl.) In a later case it was said:
“The giving of a bond by the intervener for its own benefit, conditioned that the attached property or its appraised value in money shall be forthcoming to answer the judgment of the court, did not estop it from demanding an adjudication of the ownership of the attached property.” (Smith v. Eby Construction Co., 104 Kan. 178, syl. ¶ 2, 178 Pac. 405.)
The theory of the rule is that the bond is not given on behalf of the attachment debtor but for the benefit of the interpleader, so as not to lose the use of the property while the question of ownership is being determined; and where the’giving of the bond does not mislead the creditor there is no estoppel.
“The old law was that a contract reduced to writing and sealed was the best evidence of the truth of its recitals. Estoppel was essentially a matter of evidence, and solemnity of form was the controlling consideration. This is no longer true. Estoppel is now a matter of substantive law, and a recital in a contract is not conclusive unless it operated as a representation or warranty inducing the formation of the contract, or was itself of the essence of the contract, or, having been accepted and acted on in good faith, resulted in consequences which it would be inequitable and unjust to disturb.” (Moon v. Moon, 102 Kan. 737, 740, 173 Pac. 9.)
“Its signers [of a forthcoming bond] were liable only in case the attachment was sustained, and any questions presented as to the validity of the writ, or as to the property involved being liable to seizure under it', should have been determined upon their merits.” (Larimore v. Parker, 101 Kan. 729, 732, 168 Pac. 859.)
“A person cannot be estopped from claiming property by acts which have neither injured nor prejudiced the one asserting the estoppel.” (Jacquart v. Jennings, 118 Kan. 224, syl. ¶ 2, 235 Pac. 101.)
In this same connection it is claimed this interpleader lost whatever rights she may have acquired by her interplea and the evidence in support of it by her failure to appear or be represented at the last hearing and when the case was decided. It was said by Justice Brewer in an attachment action where goods were ordered sold pending the hearing because they were perishable and one of the parties did not appear or object that “the original seizure was wrong. Defendant did not assent to it. Her silence during the continuance of the attachment, and her failure to object to any of the proceedings of the plaintiffs, give them no greater rights than they had in the first instance, and she waived none of her rights.” (McKinney v. Purcell, 28 Kan. 446, 452.)
Appellant invokes the requirement of R. S. 33-103 to the effect that the sale or conveyance of personal property, unaccompanied by actual and continued change of possession, is void as to certain persons until it is shown that the sale was made in good faith and upon sufficient consideration. The appellant in this case was not a subsequent creditor, and has every right to require that the burden of proof as to consideration and good faith be placed upon the inter-pleader. The fact that the interpleader is the mother of the defendant is an additional element to be properly considered in connection with the question of good faith in the transaction. How much of a physical delivery is necessary with such bulky personal property, which is not usually housed at one’s own premises, but intended to be kept where it will be useful and can be used?
“A change of location or removal of property is not in all cases necessary to constitute a valid delivery of chattels as against creditors of the vendor. Where the chattels sold are ponderous or bulky so that a removal or change of location is impossible or impracticable, an actual change of possession from hand to hand is unnecessary to pass title as against creditors of the vendor; a symbolical or constructive delivery without change of possession will be sufficient.” (27 C. J. 586.)
The evidence in this case supports the general finding of the court in this particular, provided the elements of sufficient consideration and good faith can be established. It was most reasonable that the mother permit the son to continue with the use of this outfit. She was not expected to run it herself. Who more appropriately would she want to use it for her benefit than her own son, to whom it originally belonged? It is not unusual or strange that the owner of such an outfit would intrust it and its use to the operator rather than to endeavor to make the contracts and handle the business in connection with its operation. We see nothing wrong or suspicious in the matter of the son, after telling his mother when he handed her the bill of sale that the rig was hers, being permitted by the mother to continue in the use and operation of it without her going to the spot where it was located and there complete a formal ceremony of acceptance. The formal physical delivery and acceptance is generally omitted with such personal property, and can safely be omitted except where a showing of good faith and sufficient consideration is wanting; and such failure of delivery does not even raise a presumption of fraud. (Phillips v. Reitz, 16 Kan. 396; K. P. Rly. Co. v. Couse, 17 Kan. 571.) As to the questions of consideration for the bill of sale and the good faith of the transaction, it has been said:
■ “Failure of consideration and fraudulent purpose in the giving of a note and chattel mortgage will not be presumed because of the relationship of the parties.” (Grisier v. Bank, 102 Kan. 7, syl., 169 Pac. 215.)
Even if there should be fraud or suspicion of fraud on the part of the defendant, the purchase of the property may be upheld unless it is shown the purchaser had knowledge of the fraud.
“An insolvent debtor who intends to defraud his creditors may convey property to a relative who has knowledge of the grantor’s indebtedness, adequate consideration having been paid, and such transfer will be upheld unless it appears that the vendee was a participant in the fraud.” (Parmenter v. Lomax, 68 Kan. 61, syl. ¶ 2, 74 Pac. 634. See, also, Bank v. Greene, 102 Kan. 202, 170 Pac. 391.)
A debtor may legally prefer creditors if he has two or more, and, if honestly preferred and not overpkid, the preference is not disturbed. (Chapman v. Farrell, 96 Kan. 659, 663, 153 Pac. 511; Brecheisen v. Clark, 103 Kan. 662, 176 Pac. 137.)
Was the mother overpaid by getting the rig and equipment after it had been used for one year and assuming the obligation of five-sixths of the purchase price? That would, in most business circles, be considered a fairly' good sale of a used rig. She paid one dollar and assumed the payment of the balance of the purchase price. This looks like a good and sufficient consideration. She was already liable as surety on the note of her son to pay this balance, but that does not detract from its being a good consideration.
“The liability of a surety on the obligations of his principal, and the promise ■of the surety to pay such obligations in the- future, is a sufficient considera tion to support a bona fide sale and transfer of property from the principal to the surety.” (Smith v. Rankin, 45 Kan. 176, syl., 25 Pac. 586.)
This is what can properly be called a fact case, and all that an appellate court can do with respect to the questions last above discussed is to determine if there was sufficient evidence to support the elements of good faith and sufficient consideration necessarily involved and included in the general finding of the trial court in favor of the interpleader. We think both these elements were well supported by the evidence, even in connection with the fact of the relation between the vendor and vendee.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hutchison, J.:
This is an original action in mandamus brought by the state of Kansas, on the relation of the county attorney of Wyandotte county, praying for an alternative writ of mandamus against the mayor of Kansas City, Kan., requiring him to sign a contract for the purchase of coal for the city, which contract was agreed to by the governing body of the city by a vote of three to two at a regular meeting of the board of commissioners.
To the alternative writ issued in response to the application of the plaintiff the defendant made answer and return, setting up various reasons for his failure and refusal to sign the contract, among others that the act of the legislature under which the city of Kansas City is now being governed, namely, chapter 114 of the Laws of 1907, gives him as mayor a general supervision and control over all the officers, departments and affairs of the city, and that the act provides that such municipal government shall be the successor of the mayor and council, and that the board of commissioners shall have and exercise all such rights, powers and duties as are conferred upon it by this act, and such other rights, powers and duties as are now or shall be hereafter conferred by the laws of the state of Kansas upon the mayor and councils of such cities not in conflict with the provisions of this act; further, because of the provisions of chapter 121, Laws of 1907, authorizing the appointment of a purchasing agent and directing that all supplies and equipment for the city shall be purchased by such purchasing agent in conjunction with the mayor, and that the city council shall not allow any bill until after it has been approved by both the mayor and purchasing agent, alleging in this connection that neither the mayor nor the purchasing agent have approved the letting of the contract which it is desired by the board of .commissioners that the mayor sign.
It is further alleged by way of answer and return that the bid approved by the board of commissioners is not the lowest and best bid received by the board or recommended by the purchasing agent, and that the price to be paid for coal under such contract is far in excess of the price for which it can be purchased from other dealers on the same terms and conditions and meeting the same requirements as to quality and guarantees, asserting that the act of the three commissioners aproving the contract in question was not for the best interests of the city, and that if opportunity is afforded the truth of such allegations will be furnished, and it is therefore prayed that the writ be quashed, set aside and held for naught, numerous exhibits in the way of resolutions, bids, etc., being attached to the answer. The matter now comes before this court on a motion for a peremptory writ for the reason that the answer of the defendant fails to show cause for not executing the contract in question.
Particular attention is directed by the defendant to the enactment of chapter 121 of the Laws of 1907 after the approval of chapter 114 of the same session, which chapter is the one which outlines and provides the plan for the commission form of government in cities of the first class. Chapter 114 was approved on March 2, 1907, and took effect after its publication in the statute book on May 27,1907. Chapter 121, the purchasing-agent act, was approved on 'March 9, 1907, and took effect when published in the official state paper on March 21, 1907; so that, while chapter 121 was approved by the legislature seven days later than chapter 114, it took effect more than two months earlier than chapter 114. We do not think that under these circumstances chapter 121 can be considered, as is suggested, as being an afterthought of the legislature with the intention to amend the original commission form of government act, chapter 114, by something which may have been overlooked or forgotten, or as expressing the intention of the legislature to repeal by this pur chasing-agent act any of the provisions of the general act adopted seven days earlier in the same session.
“Laws enacted by the same legislature about the same time and concerning the same subject matter, being in pari materia, are to be taken and considered together in order to determine the legislative purpose and arrive at the true result.” (In re Hall, Petitioner, 38 Kan. 670, syl. ¶ 1, 17 Pac. 649. See, also, Hibbard v. Barker, 84 Kan. 848, 115 Pac. 561; State, ex rel., v. City of Lawrence, 98 Kan. 808, 160 Pac. 217; Shortall v. Huppe, 99 Kan. 639, 162 Pac. 319.)
One thing is very apparent about chapter 121, and that is that it is made specifically to apply to cities containing more than 50,000 inhabitants which are under the mayor-and-council form of government. It would not be difficult or particularly placing any strained construction upon this act to conclude that it applies only to cities of that class and under that form of government and not to those under the commission form of government, because all references to the city government which are contained in the act are specific references to the council form of government; but it is always desirable to afford the advantages of any beneficial statute to all classes of cities unless they are definitely and specifically by the language of the act excluded, and therefore the court hesitates to say, simply because this act was apparently framed and furnished for the benefit of cities under the council form of government, that it shall not apply to cities under the commission form, but would rather follow the more approved policy of recognizing this act as including cities under the commission form of government as far as it can be applied to such cities without being in conflict with the provisions of chapter 114, under which the commission form of government exists. R. S. 13-1807, being section 23 of chapter 114, makes special provision with reference to all laws now in existence or hereafter enacted. R. S. 13-2904, being section 118 of chapter 114, as a concluding or summary provision of that chapter, is as follows:
“Nothing in this act shall be construed as repealing the following sections . . . and each of said sections, and all other acts or parts of acts now in force, or which may hereafter be enacted, relating to cities of the first class, not in conflict with this act, shall continue in full force and effect until amended or repealed, and all the powers and duties therein conferred upon the mayor or the mayor and council shall be exercised by the mayor or the board of commissioners, respectively, in so far as such powers or duties do not conflict with the provisions of this act.”
We conclude in this connection that if any of the provisions of chapter 121 do in fact conflict with the provisions of chapter 114, to that extent such -provisions will not be in force so as to interfere in any way or manner with the due, proper and legal exercise of all the functions and duties defined and prescribed in chapter 114. By chapter 114 the veto power is taken away from the mayor and he is given a vote as a member of the board of commissioners, and if the full use of the provisions of chapter 121 amount to a veto in effect-as between the mayor and the other members of the board of commissioners, then the provisions of chapter 121 are directly in “conflict with the provisions of this act (chapter 114) ” and to that extent they cannot stand. Disregarding the statement of later and earlier acts, the following is an appropriate rule of construing statutes:
“Where a conflict exists between, a later and an earlier act of the legislature, and where the later act does not attempt to cover all the provisions of the earlier act, both acts ordinarily remain in force except on the point where the acts are in conflict, in. which respect the later act supersedes, repeals or modifies the inconsistent terms of the earlier enactment.” (Bank v. Reilly, 97 Kan. 817 [Opinion on Rehearing, p. 827, syl. ¶ 3], 157 Pac. 391.)
Again, the appointive power of all officers of the city under the commission form of government is by R. S'. 13-2101 given to the board, which, after enumerating some of the principal officers the board shall appoint, says, “and such assistants and other officers and servants as they may deem necessary for the best interests of the city.” If it is contended that such provision is nugatory by virtue of a different provision in chapter 121 with reference to appointment of a purchasing agent, such provision is to that extent in conflict with the provisions of chapter 114 and cannot stand as applied to the commission form of government. Wherever there is any apparent conflict between these two acts the one under which the commission form of government of this city came into being and retains its existence must prevail as against any provisions of chapter 121, which are at most directory as applied to cities operating under chapter 114.
“Different statutes relating to the same subject matter are to be construed together.” (State v. Young, 17 Kan. 414, syl. ¶ 2. See, also, State, ex rel., v. Mitchell, 50 Kan. 289, 33 Pac. 104; McCreedy v. City of Fort Scott, 113 Kan. 753, 216 Pac. 287; Barrett v. Duff, 114 Kan. 220, 217 Pac. 918.)
There is no good reason why the city cannot avail itself of all the beneficial features of chapter 121 and protect itself by the spe cial features therein provided for economical purchase of supplies ,and equipment for the city by the help of the purchasing agent and .mayor without attempting to give such privilege the effect of veto power, to which extent we hold it should not go. See State v. Prather, 84 Kan. 169, 112 Pac. 829, and references therein given.
“The general design and purpose of the law is to be kept in view and the statute given a fair and reasonable construction with a view to effecting its purpose and object, even if it be necessary, in so doing, t'o restrict somewhat the force of subsidiary provisions that otherwise would conflict with the paramount intent. An interpretation which defeats any of the manifest purposes of the statute cannot be accepted. Every statute, it has been said, should be construed with a reference to its object, and the will of the lawmakers is best promoted by such a construction as secures that object and excludes every other.” (25 R. C. L. 1013.)
Defendant claims that by virtue of R. S. .13-2001 the mayor is given general supervision and- control over all city officers, departments and affairs of the city, and that under and by virtue of such control it is his duty to supervise and control the actions of the board of commissioners. Attention is called to parts of three sections of chapter 114:
“The board of commissioners shall constitute the municipal government' of such city and shall be the successors of the mayor and council, and, upon the qualification of the members of said board of commissioners, all powers, rights, duties and emoluments of the mayor and councilmen of the city adopting this act shall cease and terminate. The said board of commissioners shall have and exercise all such rights, powers and duties as are conferred upon it by this act, and such other powers, rights and duties as are now, or shall be hereafter, conferred by the laws of the state of Kansas upon the mayors and councils of the cities of the first class, not' in conflict with the provisions of this act.” (R. S. 13-1807.)
“. . . Said board of commissioners so constituted shall have control and supervision over all the departments of such city and to that end shall have power to make and enforce such rules and regulations, as they may see fit and proper for and concerning the organization, management and operation of all the departments of such city, and whatever agencies may be created for the administration of its affairs. . . .” (R. S. 13-1808.)
“The commissioner named as the head of each department shall approve all accounts and claims against it, unless he be absent or fail or refuse so to do, in which event the mayor shall appoint another commissioner to act in his stead during his absence, or to audit such claims and accounts as the said commissioner shall fail or refuse to act upon. Before payment, all accounts shall be acted upon by at least two members of said board of commissioners . . . .” (R. S. 13-1809.)
From these it will readily be.seen that it was the undoubted intention of the legislature, as well as the people who by their votes placed themselves under the provisions of this act, that the board of commissioners should be the governing body and have the general control of the affairs and business of the city, and that the general supervision given to the mayor does not imply a superior right on his part to negative or undo the things that have been done or enacted by the board of commissioners of which he is a member. Kansas is not without a precedent in this connection, a construction placed upon similar provisions under the old act of city government by mayor and council. The old act provided that the mayor should have the superintending control of all the officers and affairs of the city “and shall be active and vigilant in enforcing all laws and ordinances for the government of the city.” A construction was placed upon these provisions by this court in the case of Metsker v. Neally, 41 Kan. 122, 21 Pac. 206, in which the closing paragraph of the opinion is as follows:
“We are of the opinion that the power to amove is lodged in the corporation itself, and must be exercised by it at large, unless such power has been delegated to some officer or officers thereof by statute or ordinance. The governing and controlling power of a city is lodged in the mayor and council ordinarily, and therefore the power to amove rests with them jointly, there being no such authority given to the mayor in express terms, or inferentially even, as we understand and interpret the statute. (Dill. Mun. Corp. §§ 241-3, and authorities there cited.) In the absence of such provision, the mayor alone, being only a part of the governing power of the city, could neither remove nor suspend the city engineer; therefore his order suspending the plaintiff on the 3d of July from the office of city engineer was illegal and void.” (p. 126.)
By all the rules of construction the conflict, if any, must yield to the unquestioned intention and design to place the ultimate control of the affairs of cities after their adoption of the provisions of this act in the board of commissioners, in which a majority vote expresses its will and determination. It will be observed that the section of the statute requiring contracts to be signed by the mayor (R. S. 13-2003) also requires the city clerk to do the same, further indicating that his signature thereto was by the legislature classed as a clerical or ministerial duty rather than one involving discretion. We conclude that under this form of city government it is the duty of the mayor to sign all contracts regularly passed by the board of commissioners, that such duty on his part is ministerial, and that mandamus will lie to compel the performance of such duty.
Having reached the conclusion just stated, the only remaining question involved is the duty of the court in the exercise of its discretion as' to the issuance of a peremptory writ. A serious difference as to the best interests of the city and taxpayers seems to exist and the expenditure of a large amount of money is involved. In the exercise of sound discretion it would be best not to close this controversy purely as a law question when it concerns so many people, inhabitants of the largest city in the state, and involves such extensive economic problems.
“The court, being vested with some discretion, will not issue a writ of mandamus except where it seems to be necessary and proper to accomplish the ends of justice.” (Arends v. City of Kansas City, 57 Kan. 350, 352, 46 Pac. 702.)
“The granting of a writ of mandamus rests largely in the sound discretion of the court, and where it is asked to enforce the performance of a duty to the public, the interests of all the people concerned will be regarded.” (City of Potwin Place v. Topeka Rly. Co., 51 Kan. 609, syl. ¶ 3, 33 Pac. 309.)
“The award of a writ of mandamus is not always an absolute right, but is to be given or withheld in the exercise of a sound judicial discretion as the facts and circumstances may warrant.” (Drainage District v. Wyandotte County et al., 117 Kan. 369, syl. ¶ 1, 232 Pac. 266.)
Following these and other precedents, and in the exercise of judicial discretion, we think the motion for a peremptory writ of mandamus should be denied. It is so ordered.
Harvey, J., not sitting. | [
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The opinion of the court was delivered by
Dawson, J.:
This lawsuit was based on the obligation of a purchaser of real estate by his acceptance of a deed reciting that the property was conveyed subject to mortgages which the grantee assumed and agreed to pay.
It appears that prior to August, 1923, three persons named Wise-man owned 640 acres of land in Phillips county. The land was subject to a first mortgage for $21,500 held by a trust company, and a second mortgage for $16,200 held by the Citizens State Bank, of Kensington, plaintiff herein.
On August 29,1923, the Wisemans traded this land subject to its incumbrances to defendant J. Bair for a quarter section of Sherman county land.
On May 26, 1925, the Citizens State Bank brought suit against the Wisemans on their $16,200 indebtedness and to foreclose its second mortgage. The defendant J. Bair was made a party defendant because of his assumption of the mortgage as stated in the deed of August 29, 1923, conveying the Wiseman lands to him.
Bair had long been a resident of Phillips county and had done considerable trading in lands, but for some time prior to his acqifisition of the Wiseman lands he had been living in California. His wife still resided on one of several tracts of farming land standing in his name in Phillips county. When the bank commenced its action to foreclose its mortgage on the Wiseman lands, it caused an attachment to 'issue against 400 acres of Bair’s Phillips county lands. This brought Bair’s wife, Jane L. Bair, into this lawsuit as interpleader. She alleged that part of this land was the family homestead; that all of it had always been her property notwithstanding the nominal title had been taken in her husband’s name; and that prior to the attachment, on January 17, 1924, her husband had executed and delivered to her a deed conveying to her all the Phillips county land attached at the instance of the plaintiff.
On his own behalf Bair answered alleging that he never assumed the mortgage indebtedness on the Wiseman lands; that the president of the Citizens State Bank, J. H. Ball, was a trusted friend and business confidante, with whose assistance he had often handled real estate transactions; that defendant had grown old and his eyesight was poor, and that he had removed to California and had retired from business; that while on a visit to Kansas, Ball-had induced him to take and hold title to the Wiseman lands for the convenience of the bank, and Ball had assured him he would be at no expense except for interest on the first mortgage and the taxes, and that the rents and profits of the lands would be sufficient to cover that expenditure, and that the bank would charge no interest on its second mortgage for two years; and that Ball without authority had.caused the assumption clause concerning the mortgages to be incorporated in the Wiseman deed.
The pleadings of the various parties developed their respective positions and contentions. The evidence adduced by the litigants was voluminous. That of the intervener Jane L. Bair tended to show that a considerable share of Bair’s accumulations of property during his forty years’ sojourn in Kansas had their inception in various sums of money which his wife had gotten from her parents. Bair’s evidence was that he had never agreed to assume and pay the mortgages on the Wiseman lands, and that he did not knowingly sign a preliminary contract to that effect. On behalf of the plaintiff bank it was shown that its president, Ball, had learned of the negotiations under consideration between the Wisemans and Bair and had helped those negotiations along because of the Wisemans’ heavy indebtedness to the bank; that Ball drew the contract and deed; that both contract and deed were read to Bair and his adult son; that the deed from the Wisemans was delivered to Bair, and Bair’s deed conveying the Sherman county land was given to Ball for delivery to the Wisemans. Ball also testified:
“I made no representations to the Bairs as to the value of the Wiseman land; I made no representations as to the taxes or interest due or not due on the mortgages. I made no agreement to take over the Wiseman land or to return $4,000, the value of the Cheyenne [Sherman] county land; I never had any conversation with J. Bair or Aaron about guaranteeing to take over the land at the end of two years. J. Bair never told me repeatedly or at all that he did not want to buy any more Kansas land.”
There was some written evidence tending to support Ball’s version of his part in the Wiseman-Bair land trade. Ball agreed that if Bair would make the deal with the Wisemans the Citizens State Bank would not charge any interest on its second mortgage for two years. At first this was an oral agreement, but later, on January 16, 1924, at the request of Bair it was reduced to writing and signed by Ball and Bair. That written contract recited Bair’s obligation to the Wisemans to pay their indebtedness to the bank.
We have mentioned the favorable nature of the evidence tending to establish the intervener’s claim to the lands included in the attachment proceedings. It mischanced, however, that certain incidents and a certain line of cross-examination of the intervener and one of her sons tended strongly to discredit her testimony and reacted in favor of the bank. After receiving the deed of January 17, 1924, from her husband, in which the named consideration was “one dollar and love and affection,” Jane L. Bair executed two mortgages purporting to encumber 240 acres of the land for $9,000 and the remainder for $11,000. The designated mortgagee was “E. A. Smith,” who came from California in company with intervener’s son and who carried the entire sum of $20,000 in cash on his person. Later the intervener’s son paid off Smith and took an assignment of the mortgages. This son, too, used no checks, drafts or money orders, but had carried the money on his person for months. The intervener herself was sorely beset to explain what she had done with all this money. She testified she received $9,00.0 and used it for whatever she happened to want, and that she had $100 left. Her son endeavored to straighten out this remarkable story. He testified:
“I have no property in California; I don’t do business with any bank; I have no money there now. I took over these two mortgages mother gave to Smith, one for $9,000 and one for $11,000.
“I did not deliver to mother the $9,000 in cash. Smith gave mother $1,500 in cash and I got the $11,000 and the balance of the $9,000. . . .
“Q. Where did you keep this money all of that time — don’t laugh about it — where did you keep it? A. Kept it in my pocket.
“Q. During all of this time — this $20,000? A. Yes, sir.
“I asked this man Smith to come to Kansas and make this loan. . . .
“Q. What was his place of business? A. Wherever he happened to be. . . .
“Q. You claim he was lugging that $15,000 or $20,000 around on his person for a loan out here in Kansas? A. Yes, sir.”
The trial court made extended findings of fact and conclusion of law, to the general effect that the assumption clause in the Wise-man deed to J. Bair was fully understood, read and considered by J. Bair, and by his son and also by the intervener, Jane L. Bair, and that it was valid and binding; that the deed of Bair’s lands to Jane (and another tract of Sherman county land to a son) was executed without consideration and with the intent to defraud his creditors, and to place those lands beyond their reach, and particularly beyond the reach of the plaintiff.
The trial court set aside the attachment on two eighty-acre tracts divided by a section line on the ground that they constituted Jane’s homestead and sustained the attachment on the remaining 240 acres. Judgment was entered accordingly. A motion for a new trial was pending when the presiding judge, Hon. Willard Simmons, retired from office, and was heard and considered at length by his successor, Hon. Edward E. Kite. In overruling the motion, the court said;
“The interpleader, Jane L. Bair, makes a very strong showing as to her ownership of the land involved in this controversy, that is, the four hundred acres of the Bair land in controversy, showing recognition of her ownership by members of the family and testimony of other witnesses outside of the family who heard statements made by her and her husband, J. Bair. If the deed from J. Bair to Jane L. Bair had been supported by this testimony, and had stood upon that alone, and the present incumbent of the office had tried the case, he might have been inclined to follow this testimony and hold the conveyance good. But the subsequent actions of Jane L. Bair in giving the two mortgages to Smith, and then the assignment of Smith to Skinner, and all of the actions and circumstances surrounding the same, makes a very bad feature and one that cannot readily be believed. Evidently the court which tried the case considered all of these subsequent conveyances as an attempt to encumber the property in bad faith, and that consequently the deed from J. Bair to Jane L. Bair was also in bad faith. This testimony throws a cloud over the whole defense, or ease of J. Bair and Jane L. Bair.”
The defendant and the intervener assign a dozen errors, none of which are specifically pressed on our attention in their brief. The argument is directed to matters of prime concern in the trial court, but of little consequence on appeal. It is useless to argue to this court the evidence which tended to show that the attached lands were acquired by J. Bair at various times in the last forty years with varying sums of a few hundred dollars which the intervener had derived from her parents and otherwise. And it is similarly useless to urge on this court that the attached lands had always belonged to intervener, that her husband was only the nominal titleholder, and that the transfer of title in January, 1924, only gave, effect to an agreement of the parties for many years’ standing. If the trial court had believed that evidence this court would have been bound thereby. But this court cannot meddle with a judgment because of some plausible evidence which the trial court disbelieved. (Agricultural Ins. Co. v. Ætna Ins. Co., 119 Kan. 452, 457-459, 239 Pac. 974; Bortnick v. Cudahy Packing Co., 119 Kan. 864, 866, 867, 241 Pac. 442.) In Fenn v. Kansas Gas & Electric Co., 118 Kan. 131, 136, 234 Pac. 77, where appellant sought to impress this court with & version of the evidence which had received no credence in the court below, it was said:
“One trouble with this and othei’ features of defendant’s argument is the assumption that what its witnesses testified to must be accepted by this court as true, which, of course, is altogether incorrect.” (p. 136.)
And the same principle of appellate review governs that phase of this case so far as concerns J. Bair. It is useless to reproduce the evidence pro and con on which the trial court found in favor of the bank. Indeed, it is not contended that there was no evidence to show that Bair unwittingly accepted a deed from the Wisemans containing the mortgage assumption clause. There was substantial evidence that he did know of that clause, that the Wisemans would not have parted with their Phillips county lands in exchange for a quarter section of western land but for defendant’s assumption of the bank’s mortgage, and the circumstances lend color to that view of the transaction. That a mortgage assumption clause in a deed is binding on the grantee who accepts the deed is not contested. On that subject, see Bank v. Bales, 101 Kan. 100, 165 Pac. 843, and citations; 41 C. J. 743 et seq.; 19 R. C. L. 374. Such liability of a grantee may even be established by parol evidence, Woodburn v. Harvey, 107 Kan. 57, 190 Pac. 620, and citations.
A painstaking perusal of the record and briefs discloses nothing to justify a reversal of the judgment, and it is therefore affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This was an action by George Gartner to recover damages from the Williams Oil and Gas Company for allowing oil, salt and mineral waters and other deleterious liquids to escape from operated oil wells into the pasture of plaintiff, which adjoined the oil lease and which it was alleged polluted the springs and pools of water in the pasture, with the result that it impaired the digestion of plaintiff’s live stock in the pasture, causing them to become ill and some of them to die, making it necessary for plaintiff to cease the use of his pasture. Plaintiff further asked that the defendant be enjoined from continuing the alleged nuisance. The defendant in its answer denied that it had polluted the water in plaintiff’s pasture, and alleged that the removal of the stock from the pasture was not on account of the pollution of the waters therein, but was for the reason that the pasture did not afford sufficient water and grass for the stock at a certain season. A jury was impaneled to try the case, and upon application of defendant it was permitted to visit and inspect the premises. Special findings were returned by the jury with the general verdict in favor of defendant. The findings returned are as follows:
“1. Between March 31, 1926 [1925], and April 24, 1926, was plaintiff’s farm of about 530 acres suitable for use by him as stock farm, including raising sheep, in all respects except the matter of stock water? A. Yes.
“2. During the same time stated in question 1 was the stock water in the ravines, streams and watercourses on said farm portion north of the public highway fit and suitable for stock water in hfc business of stock raising? A. Yes.
“3. During the said time named in question 1, did oil and salt water escape from defendant’s wells and slush ponds into streams and watercourses, and ravines on the portion of his farm north of said highway? A. No.
“4. Was defendant negligent in permitting oil and salt water to escape from its said wells and slush ponds into said streams, ravines and watercourses during the time named in question 1? A. No.
“5. Did defendant know during the time named in question 1 that oil and salt water were escaping from its said wells and slush ponds into streams, ravines and watercourses on plaintiff’s said land north of said highway, and making plaintiff’s stock water unsuitable for stock purposes? A. No.
“6. Could plaintiff by fencing against said escaping oil and salt water have protected his said stock water in suitable condition for stock purposes on the portion of his farm north of said highway? A. Yes; if it had been necessary.
“7. Did defendant at any time take proper steps to prevent the escape of oil and salt water from its said wells and slush ponds into the streams, ravines and watercourses on the portion of plaintiff’s land north of said highway? A. Yes.
“8. Did defendant at any time named in question 1 object to plaintiff’s stock being on the lands used by defendant in its oil and gas operation north of said highway? A. No.
“Refused. 9. How much diminution in the usable rental value of plaintiff’s lands north of said highway per acre do you find for the period from March 31, 1925, to April 24, 1926? A. -.
“Refused. 10. How much diminution in the usuable rental value of plaintiff’s lands south of said highway per acre do you find for the period from March 31, 1925, to April 24, 1926? A.-
In plaintiff’s appeal the principal contention is that the special findings are not supported by the evidence and should have been set aside by the trial court. On the question whether the defendant allowed oil and salt waters to escape from the oil plant and upon the adjoining land of plaintiff which polluted the springs, ponds and watercourses thereon, much testimony was offered. It is clear from a reading of the testimony that it is conflicting on the proposition, and the plaintiff is really asking this court to reconsider the evidence, determine the credibility of the witnesses and the force and weight of their evidence. That was the function of the jury. Plaintiff arrays the witnesses who testified on the question and shows that eleven of them testified in behalf of the plaintiff and only six testified in favor of the defendant. The result was not determinable by the preponderance of witnesses, but was to be determined by the evidence deemed by the jury to be most credible of all that was produced. It was not a question of mathematics but was rather one of the intelligence and credibility of the witnesses, depending mainly upon their veracity, accuracy of memory, opportunity to observe, reasonableness of their statements, lack of bias and sincerity of purpose. 'The evidence of a single witness may be sufficient to overcome that of a dozen others and warrant the finding or verdict of a jury. If his evidence is substantial and fairly covers and supports the issue, and the finding and verdict based thereon is approved by the trial court, it is conclusive in this court. The result depended upon whether the jury in the trial court gave credit to the witnesses of plaintiff or to those of defendant. Authorities are hardly necessary to sustain the rule as it has been said that:
“The rule consistently followed in this court for more than a half century is that this court on appeal cannot weigh conflicting evidence nor pass upon the credibility of witnesses. That is the function of the jury who are in a better attitude than this court to determine these questions. We cannot set aside the finding of a jury based on conflicting testimony because of the greater number of witnesses who gave adverse testimony nor because the evidence in record form may seem to us to preponderate against the finding.” (Dunn v. Madden, 109 Kan. 94, 95, 197 Pac. 1116.)
Complaint is made that the jury were ordered and allowed to view and inspect the premises in question, and that it was done over the objection of plaintiff. The code provides that the court may, whenever it deems a view to be proper, order an inspection of the property which is the subject of litigation. (R. S. 60-2910.) The consent of the parties that such an order may be made is not necessary to the view. It has been held the view provided by statute is a matter within the discretion of the trial court. (K. C. Rly. Co. v. Allen, 22 Kan. 285; Coughlen v. C. I. & K. Rly. Co., 36 Kan. 422, 13 Pac. 813; State v. Henson, 105 Kan. 581, 185 Pac. 1059.) There is no ground' for contending that the court abused its discretion in ordering a view in this case.
Another complaint is that certain requested instructions were not given. Under the record in the case this objection is not available to the plaintiff. He has not preserved the instructions that were given by the court nor has he even stated the purport of them. Whether those requested or the substance of them were not given cannot be ascertained from the record. In this situation it is unnecessary to consider the correctness of those requested. (Winston v. Burnell, 44 Kan. 367, 24 Pac. 477.)
Some other objections are mentioned, but they are not deemed to be material.
The judgment is affirmed. | [
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|
Green, J.:
This appeal involves a dispute over the amount of insurance coverage available to Olathe Ford Sales, Inc., (Olathe Ford) under an insurance policy issued to it by Universal Underwriters Insurance Company (Universal Underwriters). American Standard Insurance Company of Wisconsin, Inc., (American Stan dard) appeals from a judgment of the trial court declaring that Olathe Ford had only $25,000 in coverage for a car accident. On appeal, American Standard contends that the trial court erred in determining that the policy language in question was unambiguous. In addition, American Standard contends that certain provisions of Universal Underwriters’ insurance policy violated the Kansas Automobile Injury Reparations Act. We disagree and affirm.
During the summer of 1993, David C. Hill purchased a new car from Olathe Ford. While awaiting delivery of his new car, Hill received a loaner car from Olathe Ford. The loaner car was owned by Olathe Ford. While driving the loaner car, Hill was involved in a car accident. Shelley Adams was injured in the accident.
In the summer of 1995, Adams filed suit against Hill and Olathe Ford. When the accident occurred, Adams was insured by American Standard and Olathe Ford was insured under an umbrella policy issued by Universal Underwriters. Adams had underinsured limits of $100,000. In the fall of 1995, American Standard intervened in the underlying suit between Adams and Hill.
Hill admitted liability for the injuries and damages sustained by Adams as a result of the collision. The parties stipulated that Adams suffered $300,000 in damages, including $172,972 in noneconomic loss and $89,368 in future economic loss.
F ollowing an entry of judgment in the underlying case, Universal Underwriters moved for declaratory judgment in a separate action. Universal Underwriters asked that the trial court declare Hill’s coverage forfeited because Hill breached its policy provisions by confessing to judgment. In the alternative, Universal Underwriters requested that Hill’s coverage under its policy be limited to $25,000 should the trial court deny its request for forfeiture.
After dismissing Universal Underwriters’ forfeiture claim, the trial court granted summary judgment in favor of Universal Underwriters. The trial court determined that Universal Underwriters’ policy was unambiguous and that it only provided coverage limits of $25,000 per person to permissive users such as Hill. The trial court also found that Universal Underwriters’ policy provisions did not violate the Kansas Automobile Injury Reparations Act.
The primary issue before the trial court was whether Universal Underwriters’ policy contained a limit of $25,000 for permissive users such as Hill or whether the general limits of $300,000 were available. American Standard contends that Universal Underwriters’ policy is ambiguous as to the proper limits, and, therefore, the full $300,000 in policy limits is available for the claims against Hill.
Summary judgment is appropriate when there is no genuine issue as to any material fact and tire moving party is entitled to judgment as a matter of law. Mitzner v. State Dept. of SRS, 257 Kan. 258, 260-61, 891 P.2d 435 (1995). Here, the facts are essentially undisputed. Whether the trial court erred in granting Universal Underwriters’ summary judgment depends upon the construction given the language of the policy.
Moreover, our Supreme Court has frequently observed that “ ‘[a]s a general rule, the construction and effect of a contract of insurance is a matter of law to be determined by the court. If the facts are admitted, then it is for the court to decide whether they come within the terms of the policy.’ Farm Bureau Mut. Ins. Co. v. Horinek, 233 Kan. 175, Syl. ¶ 1, 660 P.2d 1374 (1983).” Harris v. Richards, 254 Kan. 549, 552, 867 P.2d 325 (1994). Moreover, this court recently reviewed the rules of construction for insurance contracts in Oetinger v. Polson, 20 Kan. App. 2d 255, 257-58, 885 P.2d 1274 (1994), rev. denied 256 Kan. 996 (1995) (quoting U.S.D. No. 259 v. Sloan, 19 Kan. App. 2d 445, 452-53, 871 P.2d 861 [1994]):
“ ‘ “The construction of a written instrument is a question of law, and the instrument may be construed and its legal effect determined by an appellate court.” [Citation omitted.] “Whether an instrument is ambiguous is a matter of law to be decided by the court.” [Citation omitted.] This court’s review of questions of law is unlimited. [Citation omitted.]’ ”
The parties agree that determination of the policy limits for claims against Hill must be made based upon the language in several different sections of the umbrella policy. In the policy declarations, part 500 covers garage operations and auto hazards and has a $300,000 limit. The policy’s definitions establish that Adams’ claims against Hill fall within the policy’s definitions of “auto hazard.” That definition reads: “ ‘AUTO HAZARD’ means the own ership, maintenance, or use of any AUTO YOU own or which is in YOUR care, custody or control and: ... (3) furnished for the use of any person or organization.”
No dispute exists that Hill is an “insured” under the policy for purposes of Adams’ claims. The policy states:
“WHO IS AN INSURED— . . .
“With respect to the AUTO HAZARD:
1. YOU;
2. Any of YOUR partners, paid employees, directors, stockholders, executive officers . . . ;
3. Any other person or organization required by law to be an INSURED while using an AUTO covered by this Coverage Part within the scope of YOUR permission.”
Thus, as required by Kansas law, Olathe Ford’s policy covers permissive users such as Hill. See K.S.A. 40-3107(b).
While the general declarations indicate that policy limits for “auto hazard” under part 500 is $300,000, the policy has what the parties refer to as a “step-down” provision. The step-down provision reduces the policy limits for certain persons covered under the contract — in this case, the policy limits are reduced for permissive users. The policy states:
“THE MOST WE WILL PAY — Regardless of the number of INSUREDS or AUTOS insured by this Coverage Part, persons or organizations who sustain INJURY, claims made or suits brought, the most WE will pay is:
1. With respect to GARAGE OPERATIONS and AUTO HAZARD, the limit shown on the declarations for any one OCCURRENCE.
With respect to persons or organizations required by law to be an INSURED, the most WE will pay is that portion of such limit needed to comply with the minimum limits provision of such law in the jurisdiction where the OCCURRENCE took place. When there is other insurance applicable, WE will pay only the amount needed to comply with such minimum limits after such other insurance has been exhausted.”
American Standard concedes that these provisions are unambiguous and would limit Universal Underwriters’ policy limits for permissive users such as Hill to the minimum allowed by Kansas law — $25,000. A number of other courts reviewing nearly identical language have also held that the terms of this step-down provision are clear. See Univ. Underwriters Ins. Group v. Griffin, 287 Ill. App. 3d 61, 76-77, 677 N.E.2d 1321 (1997) (step-down language in policy unambiguous); Rader v. Johnson, 910 S.W.2d 280, 283 (Mo. App. 1995) (noting step-down provisions applicable to customer driving dealership vehicle on test drive); Rao v. Universal Underwriters, Ins., 228 N.J. Super. 396, 402-03, 549 A.2d 1259 (1988) (step-down provision valid under financial responsibility laws); Bowers v. Estate of Feathers, 448 Pa. Super. 263, 268-69, 271, 671 A.2d 695 (1995) (step-down provision not an invalid escape clause); Univ. Underwriters v. Metro. Prop. & Life, 298 S.C. 404, 407, 380 S.E.2d 858 (1989) (while the language is “stylistically inelegant,” its meaning is unmistakable).
Although American Standard concedes that the step-down provision is clear and unambiguous on its own, it argues that the Kansas amendatory addendum to the policy renders the coverage limits ambiguous. That provision states, as to part 500 of the policy:
“The MOST WE WILL PAY Condition in each Coverage Part affording AUTO liability is changed to include:
“OUR limit shown in the declarations applies, except WE will first provide the separate limits required by Kansas law as follows:
“$25,000 for INJURY to any one person caused by any one OCCURRENCE,
“$50,000 for INJURY to two or more persons caused by any one OCCURRENCE, and
“$10,000 for INJURY to tangible property caused by any one OCCURRENCE.
“This provision will not change OUR limit of liability.” (Emphasis added.)
American Standard’s arguments regarding the effect of the Kansas amendatory provision are confusing. First, American Standard argues that the Kansas amendatory provision would lead a reasonable person in Hill’s place to believe that he was covered under the full $300,000 policy limits. American Standard argues that the provision’s reference to “ 'our limit shown in the declarations’ ” means that the full policy limits applies to even permissive users. Because of this reference, American Standard argues that the Kansas amendatory provision would be meaningless if the step-down provision was still valid. Finally, American Standard attempts to bolster its claim that the provision is ambiguous by arguing that Universal Underwriters made inconsistent arguments before the trial court. According to American Standard, these inconsistent arguments were made because the policy was so unclear.
Universal Underwriters argues that American Standard’s reading of the amendatory provision distorts the clear language of the “Most We Will Pay” provision. This provision explains that permissive users will be covered for the minimum insurance coverage required under Kansas law and establishes that the minimum coverage would be paid out of the $300,000 limits first. The provision also explains that any remaining liability of named insureds would then be paid out of the remaining limits of the policy. Universal Underwriters argues that the amendatory provision was added to the policy in order to conform its general policy to Kansas law, which requires policies to “contain stated limits of liability.” K.S.A. 40-3107(e). Cf. Universal Underwriters v. State Farm, 925 P.2d 1270, 1274 (Utah App. 1996) (full policy limits were held to apply to permissive user because policy’s mere reference to state law was insufficient to incorporate statutory minimums into the policy; policy was required to state policy limits).
In determining whether an insurance policy is ambiguous, our courts have stated a court is not at liberty to make another contract for the parties. ‘When an insurance policy is not ambiguous, the court may not make another contract for the parties. [Citation omitted.]” Saucedo v. Winger, 22 Kan. App. 2d 259, 260, 915 P.2d 129 (1996). See also Metropolitan Life Ins. Co. v. Strnad, 255 Kan. 657, Syl. ¶ 8, 876 P.2d 1362 (1994) (“Where the language of the contract is clear and can be carried out as written, there is no room for construction or modification of the terms.”).
Moreover, our court has stated that a court is required to interpret an insurance policy in the same manner that “ ‘ “a reasonable person in the position of the insured would understand it to mean.” ’ [Citation omitted.]” Crescent Oil Co. v. Federated Mut. Ins. Co., 20 Kan. App. 2d 428, 433, 888 P.2d 869 (1995). An insurance policy is not ambiguous unless there is a “genuine uncertainty as to which of two or more possible meanings is proper.” 20 Kan. App. 2d at 433. The policy must be read as a whole. Lightner v. Centennial Life Ins. Co., 242 Kan. 29, 35, 744 P.2d 840 (1987).
Universal Underwriters’ policy, like most comprehensive insurance policies, does not make for easy reading, especially when the relevant portions of the policy are taken from a number of different sections of the contract. Although walking through these various provisions is cumbersome and stylistically inelegant, it does not seem that a reasonable person would be misled as to the policy limits for permissive users. Although the amendatory provision references the limits from the declarations page, it clearly sets forth the minimum statutory policy limits under K.S.A. 40-3107(e). If the policy limits did not differ between named insured and permissive users, there would be no need to set forth the statutory minimums. Under American Standard’s interpretation, the “Most We Will Pay” provision and the portion of die amendatory language setting forth the statutory minimums would be superfluous and meaningless.
Again, “ ‘the test to determine whether an insurance contract is ambiguous is not what the insurer intends the language to mean, but what a reasonably prudent insured would understand the language to mean.’ ” Pink Cadillac Bar & Grill, Inc. v. USF & G Co., 22 Kan. App. 2d 944, 948, 925 P.2d 452 (1996), rev. denied 261 Kan. 1084 (1997). Despite the awkward language of the policy and amendatory provisions, no reasonably prudent insured would read the provisions in the manner suggested by American Standard.
In its second argument on appeal, American Standard argues that even if Universal Underwriters’ policy is not ambiguous in limiting liability for permissive users, the step-down, provision should be invalidated in its entirety because it is contrary to Kansas law. The provision in question states:
“With respect to persons or organizations required by law to be an INSURED, the most WE will pay is that portion of such limit needed to comply with the minimum limits provision of such law in the jurisdiction where the OCCURRENCE took place. When there is other insurance applicable, WE will pay only the amount needed to comply with such minimum limits after such other insurance has been exhausted.” (Emphasis added.)
American Standard contends that this provision violates the Kansas Automobile Injury Reparations Act (KAIRA), K.S.A. 40-3101 et seq., because it incorporates the minimum limits of the “law in the jurisdiction where the OCCURRENCE took place.” As pointed out by American Standard, Kansas statutes require policies issued in compliance with the KAIRA to provide coverage for “the ownership, maintenance or use of any such vehicle within the United States of America.” K.S.A. 40-3107(b).
American Standard argues that if this accident had happened outside the state of Kansas, the policy could provide coverage less than required by K.S.A. 40-3107(e) if the place of occurrence happened to have lower insurance requirements. Because of this language, American Standard contends that the entire provision should be held void. If the entire provision is void, then American Standard contends that the $300,000 policy limit applies to all insureds, including permissive users.
In response, Universal Underwriters makes three arguments. First, Universal Underwriters argues that American Standard’s argument is premised oh hypothetical facts not existing in this case; thus, Universal Underwriters contends that American Standard’s argument should be rejected outright as seeking an advisory opinion. There is no dispute that this accident happened in Kansas and both parties concede that the policy provides the minimum statutory coverage required under Kansas law. Thus, there is no question that the required coverage is available under the facts of this case.
In addition, Universal Underwriters contends that the step-down provision complies with the KAIRA because the Kansas amendatory provision specifically provides the limits required by Kansas law. Universal Underwriters argues that these statutory limits are available under the amendatory section, regardless of where the accident occurred. Moreover, the policy has a provision that states that “[i]f any part of this policy is in conflict with local, state or federal law, those provisions in conflict will automatically change to conform to the law.” Thus, according to Universal Underwriters, their policy, by its own terms, complies with the KAIRA.
Finally, Universal Underwriters argues that even if the policy differs from the requirements of the KAIRA, the provision is not void. Instead, the KAIRA requires that the insurance policy must “be construed to obligate the insurer to meet all the mandatory requirements and obligations of this act.” (Emphasis added.) K.S.A. 40-3107(g). In construing the policy to provide the mandatory requirement of coverage, regardless of where the accident occurred, Universal Underwriters’ coverage for Hill is the $25,000 mandated by law. Universal Underwriters concedes it is responsible for this amount.
Both parties rely on DeWitt v. Young, 229 Kan. 474, 625 P.2d 478 (1981). In DeWitt, the insured was injured in her own automobile while it was being driven by a mechanic who had just repaired it. The insured’s carrier denied coverage, citing a garage shop exclusion barring coverage while used by any person “ ‘engaged in an automobile business.’ ” 229 Kan. at 475. The policy also contained a household exclusion which excluded coverage for “ ‘bodily injury to any insured.’ ” 229 Kan. at 475. The court held that any provisions which attempted to “dilute, condition or limit statutorily mandated coverage are invalid or void.” 229 Kan. at 478. While the court found the exclusions void as contrary to the KAIRA, the court ruled that the provisions were void only as to “the minimum coverage required by statute.” 229 Kan. at 480.
Under DeWitt, an invalid provision limiting liability is not completely abrogated by the KAIRA. Rather, the provision is only voided to the point necessary to bring the policy in compliance with the minimum coverage required by the Act, that is, $25,000 per person per occurrence. Any exclusions or limits are still effective as to liability above the statutory minimum. Thus, if a policy has excess coverage over the statutory minimum — in this case, the general policy limits of $300,000 — an invalid provision does not expose the insurance company to the highest policy limits, but invalidates the provision only to the statutory minimum.
Thus, regardless of whether the step-down provision strictly comports with the KAIRA, K.S.A. 40-3107(g) only requires the policy to be construed to provide the minimum statutory coverage. As a result, the trial court did not err in concluding that Universal Underwriters’ coverage for the claims against Hill was limited to the statutory minimum of $25,000.
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The opinion of the court was delivered by
Burch, J.:
Defendant was convicted of larceny of a Ford automobile, and appeals.
Defendant contends the information did not charge a public offense. No motion to quash the information, pointing out its defects, was filed, and no motion in arrest of judgment was filed. Since the district court made no ruling with respect to the sufficiency of the information, it may not be charged with committing error, and the information may not be attacked for the first time in this court Various assignments of error relate to matters occurring at the trial. The abstract does not show that any motion for new trial was filed. The counter abstract states that a motion for new trial was filed and denied, but does not exhibit the grounds of the motion. The copy of the journal entry of judgment filed in connection with the appeal merely recites that the motion for .new trial was filed, considered, and denied. This court has no means of knowing that any of the objections to the proceedings urged here were called to the attention of the district court by motion for new trial. Defendant does not assign denial of the motion for new trial as error, and the court has nothing before it which it is authorized to consider.
The case was the ordinary one of larceny of an automobile from in front of a motion-picture house. A few days later the automobile was found in defendant’s possession in Oklahoma. The information was in the usual form, and followed the statute. The proof of larceny was not contested. While no witness said in set phrase the taking was without the owner’s consent, the proof demonstrated the car was stolen. Defendant accounted for his possession in very poor dime-novel fashion. The stock instruction relating to recent possession of stolen property was given, and a verdict of guilty was inevitable.
. The judgment of the district court is affirmed. | [
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|
The opinion of the court was delivered by
Marshall, J.:
The plaintiff, as the administratrix of the estate of Joe Foley, the son of Nora Foley, commenced this action against L. M. Crawford and the Amusement Syndicate Company, a corporation, to recover for the death of Joe Foley, which occurred while he was operating an electric elevator in a building owned and being constructed by the Amusement Syndicate Company. After the introduction of the evidence the action wras dismissed as to L. M. Crawford. Judgment was rendered against the Amusement Syndicate Company for $2,272.50. That company appeals.
Facts as follows were conclusively established by the evidence: The Amusement Syndicate Company was a corporation organized under the laws of the state of Kansas. L. M. Crawford was its principal owner and manager. The company was erecting a six-story apartment building in Wichita. At the time of the accident to Joe Foley the building was incomplete, but it was partly occupied by tenants. An elevator was being installed in the building, and it was being used for the accommodation of the tenants occupying the building and for the accommodation of the workmen engaged in its erection. The elevator had no door in it. The openings into the elevator shaft were not closed. They had a “horse” or gate in front of them to prevent persons from walking into the elevator shaft without warning. Those “horses” or gates were operated by being moved back and forth by hand by those who desired to enter the elevator. The electrical appliances to the elevator were not complete, but it was so far constructed that it could be used. W. C. Henderson was employed by the Amusement Syndicate Company, through L. M. Crawford, to manage the building. Henderson, with the knowledge of Crawford, employed Nora Foley to operate the elevator. She was instructed in the manner of its operation by her son Joe Foley, who was a well-developed, intelligent boy fourteen years and one month old. She, with the knowledge and consent of Henderson, procured or permitted Joe Foley to operate the elevator after school hours while she was at home preparing the evening meal for her family. Mary Sargent lived in the building. She came home about five o'clock on the evening of the accident and asked Joe to take her up. He said, “No, I will come back for you.” She went into her room and soon came back. She looked up and saw the elevator at the sixth floor. She looked down the elevator shaft and saw him at the bottom. She noticed hair and blood on the iron sills of the building on the edge of the elevator shaft. When Mary Sargent asked J oe Foley to take her up, he took the elevator to the top of the building. It crashed against the top of the building. The noise attracted attention. Inquiry and examination were immediately made, and he was found dead in the bottom of the shaft. His neck was broken, one of his legs was broken, and there were cuts and braises about his head.
There was evidence which tended to prove that the control of the elevator was defective; that the elevator was being installed by W. V. Larsh for a company operating in Iowa; that, when it was determined to operate the elevator in its unfinished condition, Larsh objected; that Crawford had knowledge of the fact that Joe Foley was working on the elevator; that when Crawford saw the boy working in the elevator he directed Henderson not to permit him to work in the elevator any more, but the boy continued to work; that on the day after the accident Crawford, for $1,000, procured from J. W. Foley and Nora Foley, the father and mother of Joe Foley, a written acknowledgment of settlement of all liability on account of the death of Joe Foley; that Crawford, who was a friend of Mrs. Foley, procured Mrs. W. C. Henderson, another friend of Mrs. Foley, to go to the latter and obtain her signature to the written acknowledgment of settlement on payment of the $1,000; and that when Crawford asked Mrs. Henderson to go to Mrs. Foley and get the acknowledgment of settlement signed, Mrs. Henderson objected on account of the amount that was being paid, to which Crawford replied that this was for her immediate necessities, that he would take care of Mrs. Foley in the future, and that if the settlement were not signed, he would stop the funeral.
The answer pleaded that settlement as a defense. The reply alleged that the settlement with Nora Foley had been procured by fraud, and that when she signed it she was not in a condition to understand its purport. There was evidence which tended to. prove both of those facts.
1. The defendant says, “The court admitted incompetent evidence in behalf of the plaintiff and prejudicial to the defendant.” Under this head, the defendant argues that—
“D. M. Hammers, an ambulance driver, not an expert witness, was permitted to testify, over proper objection, what was the cause of death.”
This witness came with an ambulance to take the body of Joe Foley to the undertaker to prepare it for burial. He found the body lying in the pit at the bottom of the elevator shaft. He testified as follows:
“Q. In making your observations and examinations of Joe Foley you may state to the jury in your opinion and judgment as to the cause of his death? A. A broken neck.”
The fact that the broken neck caused the death of Joe Foley does not seem to have been contested. It did not take an expert to .testify that the boy’s death had been caused by his neck being broken. Any intelligent person who examined the body could have testified to that fact.
2. The plaintiff was questioned concerning the conversation between herself and Mrs. Henderson when the plaintiff signed the acknowledgment of settlement for $1,000, as follows:
“Did you believe the statements that were made to you by Mrs. Henderson before you signed the paper? A. I did.
“Did you rely upon the statements that were made by Mrs. Henderson to you immediately before signing the paper? A. Yes, sir.
“Believing in what she told you and relying upon her statements, did you sign the paper? A. Yes, sir.”
Those questions were objected to. The evidence was competent. How it could have been secured without asking the questions that were asked or others similar to them except by circumlocution, does not appear. Permitting questions of that character is largely within the discretion of the trial court. (Ayres v. Probasco, 14 Kan. 175; State v. McAnulty, 26 Kan. 533; Stale v. Fooks, 29 Kan. 425, 428.)
3. A life insurance man testified that Joe Foley's life expectancy was 46.16 years. He testified that, in his judgment based on tables compiled by life insurance .companies, the earnings of a boy fourteen years of age until he should reach twenty-one years of age would be something like $980 a year. The evidence may not have been entitled to very much weight. It was a calculation — the judgment of an experienced life insurance man. It probably was as good a way as any to ascertain what would have been the possible earnings of Joe Foley — a question very hard to determine and very hard to prove. The court is unable to say that the evidence was inadmissible; but even if it was, it cannot be said to have been prejudicial.
4. The defendant contends that “the court erred in not allowing Mr. Crawford and Mr. Larsh to testify that the receiver of the elevator company was suing for the purchase price of the elevator. . . and ... in not allowing Mrs. Crawford, secretary of the defendant company, to testify that she knew the elevator company was in bankruptcy court in Iowa and in the hands of a receiver.” Whether or not the elevator was paid for and whether or not the elevator company was in bankruptcy and in the hands of a receiver was wholly immaterial. The defendant owned the building, was renting rooms therein to tenants, was operating the elevator, and employed the operator of the elevator.
5. The defendant contends that the jury was swayed by sympathy, bias, and prejudice in arriving at its verdict. That contention is based partly on the answers of the jury to special questions submitted, and partly on the fact that Mrs. Foley in a deposition given in an action to recover damages for the death of Joe Foley, in which Mrs. Foley's husband was plaintiff and the Amusement Syndicate Company was defendant, testified substantially in contradiction to her testimony given on the trial of the present action. Her explanation of her testimony in the deposition was that she did not remem ber the statements that were therein made, and that at that time she was suffering from serious mental depression. On the trial of the present. action, she also testified that she knew nothing about signing the statement of release for. the $1,000. The evidence tended to show that that statement was signed in the presence of a number of witnesses. Those witnesses testified that she was not then in a mental condition to understand what she was doing.
The jury answered special questions as follows:
“1. Was the deceased injured while in the elevator? A. While on duty acting as operator of the elevator.
“2. If so, what injured him? A. No conclusive evidence.
“3. Was the elevator, on the 14th day of December, 1923, in the same condition it had been for some time relative to starting or stopping it? A. Yes.
“4. Was the deceased accustomed to the elevator and its operation? A. Yes.
“5. How did the body get where it was found? A. By falling down the shaft.
“6. Was the deceased at the time in good health and in possession of his ordinary faculties? A. Yes.
“7. What caused the death of the deceased? A. Broken neck.
“8. Did the deceased know how to stop the elevator when it was in motion? A. Yes; if control was working properly.
“9. What act or acts of negligence do you find defendants guilty of? A. By allowing an unfinished elevator in their building to be used and operated for public service.
“10. Was a settlement made by the mother of the deceased and the defendant? A. Yes; but by undue influence and misrepresenting facts the defendant took advantage of the plaintiff’s mental condition, causing her to sign the agreement — therefore not binding.”
The jury returned its verdict in accordance with the testimony given on the trial of the present action. The jury was the trier of facts. Those facts must be found from the evidence introduced on the trial. If that evidence was conflicting, it was the duty of the jury to ascertain the truth and return its verdict and findings accordingly. The answers to the special questions responded to the evidence on which the general verdict was based, conformed to that evidence, and did not conflict with the general verdict. It icannot be said that the jury, because it found in favor of the plaintiff, was influenced by sympathy, bias, or prejudice.
6. The defendant argues that Joe Foley and his mother assumed the risk of any injury which might be caused by the unfinished condition of the elevator, by its defective control, or by the uncompleted condition of the building. Joe Foley and his mother knew of the condition of the shaft and of the door to the elevator, but the evidence did not disclose that either of them knew that the control was defective. There was no evidence to show that either of them knew or ought to have known and appreciated the danger to which he was exposed in operating the incomplete elevator with its defective control in the unfinished building. In Brizendine v. Railroad Co., 96 Kan. 691, 158 Pac. 495, this court said:
“Rule followed that general knowledge of a situation does not bar recovery on the ground of assumption of risk unless the injured party appreciated the danger.” (Syl. If 3.)
That rule has been followed a number of times by this court. (Railway Co. v. Bancord, 66 Kan. 81, 71 Pac. 253; Every v. Rains, 84 Kan. 560, 569, 115 Pac. 114; Suniga v. Railway Co., 94 Kan. 201, 146 Pac. 364.) Joe Foley was employed by the defendant. His mother could not for him assume the risk of danger arising out of his employment on the elevator so as to relieve the defendant from liability for his negligence.
Does a boy fourteen years of age who operates an elevator assume the risk of injury thereby when those injuries are caused by defects of which he has knowledge?
In 39 C. J. 808 it is said:
“Where a servant by reason of his youth or inexperience is not acquainted with the dangers incident to his employment, he does not assume the risk thereof until the master apprises him of the dangers, and gives him reasonable instructions as to how they may be avoided. The mere fact that the servant is willing to undertake the particular work does not relieve the master of the duty to give him proper instructions, as his failure to perform his duty in this regard is not a danger ordinarily incident to the service. Furthermore a young or inexperienced servant will not be held to have assumed the risks of his employment by reason of mere knowledge of the defect or danger, unless he is also aware of the nature and extent of the danger, and has sufficient discretion and capacity to comprehend the risk. But on the other hand his youth or inexperience will not excuse him if he does, or ought to, know and. appreciate the danger to which he is exposed; and the lack of instruction or specific warning in regard to the dangers of the employment will not in these circumstances relieve the servant of the assumption of risk.”
In Olson v. Mercantile Co., 91 Kan. 563, 138 Pac. 598, this court said:
“In an action based on negligence in furnishing to an employee an unsafe team of horses, proof that the plaintiff, a boy of fifteen, was somewhat afraid of them, and after one runaway had complained to his employer that they -were unsafe, and yet continued to drive them for five months, without any promise having been made to remedy the matter, does not conclusively establish the defense of assumed risk.”
In Rank v. Packing Box Co., 92 Kan. 917, 142 Pac. 942, the rule was declared to be that—
“Where the operator of a saw did not appreciate the risk involved in dealing with a matter incident t'o its operation, his nonappreciation was excusable, and the duty of his employer to instruct and warn him had not been performed, he did not assume the risk involved in operating the saw.” (Syl. IT 4.)
If we apply the principle declared in 39 C. J. and the principles found in Olson v. Mercantile Co., supra, and Rank v. Packing Box Co., supra, the conclusion is inevitable that neither Joe Foley nor his mother assumed the risk of the dangers of his employment in operating the elevator for the defendant. Assumption of risk was pleaded by the defendant, but that question was not submitted to the jury by the instructions, and the defendant did not ask for any instruction on that subject.
7. The defendant says: “No allegation in his (the' plaintiff’s) petition was made as to what acts of negligence alleged were the proximate cause of death. . . . And no proof was adduced that the acts of negligence alleged were the proximate cause of death.” The defendant filed a demurrer to the evidence of the plaintiff; that demurrer was overruled. The Amusement Syndicate Company argues that the evidence was insufficient to entitle the plaintiff to recover. Most of the facts surrounding the death of Joe Foley were conclusively established by the evidence. There was no dispute about them; but the evidence did not establish what caused him to fall or get out of the elevator and to the bottom of the elevator . shaft. There was nothing to show that fact except the conclusively established facts. Those facts showed that he was instantly killed; that he was killed by being knocked out of, by jumping out of, or. by falling out of the elevator to the bottom of the shaft. He could not have been knocked out, could not have jumped out, or fallen out of the elevator if there had been a door to it, and the door had been closed. Probably the accident could not have occurred if there had been doors to the elevator shaft. The evidence tended to prove that the control of the elevator was not working properly. It was negligence for the defendant to operate the elevator without doors to the elevator shaft, without a door on the elevator, or without proper control. The circumstances tended to prove that all of these three factors contributed to the death of Joe Foley. All three factors were alleged in the petition and were proved by the evidence. There was nothing to show contributory negligence on the part of Joe Foley. The evidence was sufficient to establish a case in favor of the plaintiff, and the demurrer thereto was properly overruled.
8. The defendant requested that a number of special questions be submitted to the jury, among which were the following:
“10. By whom, or by what, was the deceased thrown and knocked from the elevator, if you find that he was thrown and knocked?”
“11. Was the deceased at the timé in good health and in possession of his ordinary faculties?”
“14. What caused deceased to fall?”
The court did not submit either of these three questions. The defendant argues that the court committed error in refusing to submit special questions numbered 10 and 14, and in refusing to allow the defendant to withdraw question No. 11 and substitute therefor question No. 10. There was no evidence to show by whom or by what Joe Foley was thrown or knocked from the elevator or how he got out of it. Neither was there any evidence to show what caused him to fall except that which showed the condition of the elevator shaft, the condition of the door to the elevator, and the condition of the control of the elevator. Questions submitted to a jury should be, not only within the issues framed by the pleadings, but also within the evidence.
In L. & W. Rly. Co. v. Anderson, 41 Kan. 528, 21 Pac. 588, it was declared that —
“It is the duty of the trial court to submit all special questions requested by a party when such questions are pertinent under the issues and evidence; but where no evidence has been given upon which the jury could intelligently answer the questions, held, not error to refuse to submit such questions to the jury.” (Syl. ¶ 1.)
If no evidence has been introduced to prove a material fact, the court should take cognizance thereof and rule accordingly when the matter is properly challenged to his attention. The jury could not have answered questions numbered 10 and 14 in the form in which they were drawn, even if they had been submitted. For that reason, it was not error to refuse to submit them.
9. The defendant says that the answers of the jury to the special questions submitted were evasive, ambiguous, and not respon sive, and were inconsistent with each other. An examination of the answers discloses that they were as directly responsive to the questions as they could have been made under the evidence and the form of the questions submitted. Particular complaint is made of the answer to the first question. That question and answer read as follows:
“1. Was the deceased injured while in the elevator? A. While on duty acting as operator of the elevator.”
That question did not ask for an answer concerning what caused him to get out of the elevator. His injury may have occurred while he was in the elevator or after he got out of it. It did occur while he was on duty. The answer to the question was not evasive nor ambiguous; it was as fairly responsive to the question as it could have been made under the evidence; and it was not inconsistent with the answers to the other questions. The same may be said of all of the answers of which complaint is made.
10. The defendant complains of instructions numbered 4, 11 and 13 given by the court. Instruction No. 4 was as follows:
“4. You are further instructed that this action is brought by Nora Foley as administratrix of the estate of Joe Foley, deceased. Under our law the parents of the deceased would be the ones entitled to inherit his estate. In this case you are instructed that J. W. Foley, father of the deceased in question, has made full and complete settlement of any interest which he may have had in the estate, and it is conceded by plaintiff that any recovery, if any, which plaintiff might have in this case would be only as to one-half the total damage or loss occasioned by the death of the deceased.”
The defendant argues that the court should have added these words:
“Less all payments heretofore made to both or either of the parents of the deceased, and less the probable expense of his maintenance.”
Instruction No. 11 was as follows:
“You are further instructed that one of the defenses in this case is that if the defendant was under any legal liability arising out of the death of Joe Foley, the same has been settled and discharged by reason of payments made to Nora Foley and J. W. Foley.
“In case you find that Nora Foley and J. W. Foley, parents of the deceased, executed a release for the express consideration of one thousand dollars, that said release is valid and binding upon Nora Foley and she cannot recover, although you may find that the defendant company was guilty of negligence, and that such negligence, if any, was the proximate cause of the injury resulting in death of the deceased, unless you believe from the evidence that at the time that said release was executed by Nora Foley that she was in a mental condition that she could not understand the nature and contents of the said release, or that the defendant through its agents willfully concealed from her the real meaning and contents of the said release and falsely represented to her the purport of said release, and that she relied upon such false representation, if such was made, and was thereby induced to sign said release without reading the same, or having it read, and without knowing its contents.
“It is for you to determine from all the evidence and circumstances in this case whether she in signing the release understood the contents at the time of signing; whether she intended to release, and understood that she was releasing, her claim and right of action against the defendant. Unless you find that the same was signed voluntarily and with an intention to release the defendant and with an understanding of its contents, it would not release the defendant from liability as to Nora Foley. If you further find from the evidence under these instructions that defendant would otherwise be liable, and such release should be disregarded by you in arriving at your verdict, and in such case one-half of any payments made should be deducted by you from any amount which you might determine the plaintiff entitled to recover.”
The defendant contends that the clause reading, “And in such case one-half of any payments made should be deducted by you from any amount which you might determine the plaintiff entitled to recover,” should have read in substance as follows: “And in such case one-half of all payments made to both or either of the parents of the deceased, or to the plaintiff in this action, less the probable expense of his maintenance, should be deducted by you from any amount which you might determine the plaintiff is en- ■ titled to recover.”
The defendant argues that instruction No. 13 should have been modified so as to conform to its contentions concerning instructions No. 4 and No.Tl.
The abstracts do not disclose that in the trial court any objection was made to any instruction, that any modification of any of them was requested, or that defendant requested any instruction to be given to the jury.
The fifth subdivision of section 60-2909 of the Revised Statutes, • in part, reads:
“Before reading the instructions to the jury, the court shall, when requested, submit the same to counsel on either side and give counsel a reasonable time to suggest modifications thereof.”
That statute contemplates that if either party to an action being tried thinks that the instructions are not full and complete, he should request a modification of them, and that if he does not request such a modification, he cannot complain of them.
In Briley v. Nussbaum, 122 Kan. 438, 440, 252 Pac. 223, an action by parents for the death of their daughter, this court said:
“The instruction, concerning the right of the plaintiffs to the services of Hazel Briley did not incorrectly state the law. If the defendants had desired a modification of that instruction, it was their duty to request the court to give such a modification. That does not appear to have been done. They cannot complain of failure of the court so to do. (State v. Pfefferle, 36 Kan. 90, 12 Pac. 406; State v. Ross, 77 Kan. 341, 348, 94 Pac. 270; State v. Page, 80 Kan. 389, 391, 102 Pac. 780; Hamilton v. Railway Co., 95 Kan. 353, 357, 148 Pac. 648; State v. Taylor, 119 Kan. 260, 237 Pac. 1053.)”
The instructions given did not incorrectly state the law.
From the abstract of the defendant, it may reasonably be inferred that the instructions were in writing. The defendant had the right to see them before they were read to the jury, and could have seen them if a request had been made for permission to do so. The defendant could then have stated to the court wherein modification was desired and could have requested other or additional instructions. What the defendant desired to have in the instructions should have been made known to the court either by a request for a modification of the instructions given or by submitting to the court special instructions with the request that they be given.
11. There is another matter that should receive attention; that is, did the settlement with the father of Joe Foley bar the plaintiff’s right to recover? Section 60-3203 of the Revised Statutes gives the right of action to the plaintiff as the administratrix of the estate of Joe Foley for the benefit of his father and mother. If a binding settlement for the death of Joe Foley had been entered into by them, probably the personal representative could not successfully maintain an action for his death. The father did settle. The mother avoids the settlement made by her. The father did not represent the mother when he made his settlement. The evidence tended to prove that after the settlement was made with the father, he commenced an action to recover for the death of the son, which action was also settled. The evidence also tended to prove that the father and mother were antagonistic to each other concerning the recovery for the death of Joe Foley. Without any attempt at settlement and without the appointment of a personal representative either the father or mother could have maintained an action to recover the damages sustained by him or her if the other had refused or neglected to do so. The right of each to recover was personal and several, not joint with each other. They could settle separately or together, but each must settle for himself, unless he in some way authorized the other to settle for him.
In Jeffries v. Elevator Co., 102 Kan. 811, 176 Pac. 631, the court declared that—
“A cause of action for the death of a workman, arising under the factory act, may not be compromised by the widow to the prejudice of an infant child entitled to share in the damages recoverable.” (Syl. U 3.)
That case was before this court again in Jeffries v. Mercantile and Elevator Co., 103 Kan. 786, 176 Pac. 631, where this court said:
“When the deceased left a widow and child, and no personal representative has been appointed, the widow may bind herself and child by receiving payment in money, without suit for a fair, reasonable and just sum, in good faith considered the proper amount of damages sustained; fehe may bind herself by settlement with the wrongdoer on any consideration satisfactory to her; but she may not bind her child, except by proportional payment of the character described.
“By virtue of his or her control- over litigation, the statutory agent may present to the court in which action has been brought a stipulation for judgment embodying a fair adjustment of the controversy, and if the court, after judicial examination, approve it and enter judgment accordingly, the parties will be bound, and the distributees will be bound.” (Syl. flU 2, 3.)
In that opinion, the court further said:
“From what has been said it follows that the plaintiff could bind herself by settlement with the defendant on any consideration satisfactory to her; but she could not bind her child by the character of settlement which she did make.” (p. 789.)
J. W. Foley, the husband of Nora Foley and the father of Joe Foley, could settle for the damages sustained by him on account of the death of his son, but he could not settle for the damages sustained by his wife. She was entitled to recover her damages, notwithstanding the settlement by him.
12. The court instructed the jury that if the release executed by Nora Foley and J. W. Foley for $1,000 had been executed by Nora Foley at a time when she was in such mental condition that she could not understand the nature and contents of the release, or if it was obtained from her by false representations, it would not be binding on her. The defendant complains of that instruction. Any contract or other instrument of writing signed by a person who is in such a mental condition that she does not understand its nature or sense, or whose signature is procured by fraud, is voidable by the person signing it. This is a known, familiar, general rule of law, and it is unnecessary to cite authorities to support it.
All other matters of which complaint is made are sufficiently discussed in what has already been said.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.;
The action was one by George Bratton to recover on an attachment bond the damages he sustained when his goods were seized on a writ of attachment issued in an action by McReynolds against Joe Bratton, George Bratton and others. Plaintiff recovered, and defendants appeal.
The affidavit for attachment stated grounds for attachment of the property of Joe Bratton only. The statements contained in the affidavit were definite, and disclosed no basis for issuance of a writ against the property of George Bratton. By mistake, the clerk issued a writ commanding the sheriff to seize the property of George Bratton as well as the property of Joe Bratton. The sheriff executed the writ by seizing property of George Bratton as the property of Joe Bratton. The attachment was dissolved on motion of George Bratton because the- property belonged to him.
The petition in the present action identified McReynolds with the sheriff’s seizure. It alleged McReynolds gave the sheriff written instruction to levy on the specific property which was seized. The court tried the case and instructed the jury on the theory that liability on the bond was created by the wrongful levy, and the only matter for the jury to determine was amount of damages. The pertinent instructions to- the jury follow:
“You are further instructed that the attachment has been dissolved, and found to have been wrongful, and that no appeal was taken from the order dissolving this attachment, and that such decision is now conclusive, and that the attachment was wrongfully obtained.
“Y.ou are, therefore, instructed that if you find the plaintiff has been damaged' in any amount, your verdict shall be for the plaintiff in whatever amount you find that to be.
“You are further instructed that this is an action to recover on a bond, and that, therefore, the liability of the defendants is a joint liability, and, for that reason, if you find against either of the defendants, your verdict shall be against both the defendants, A. R. McReynolds and the surety on the bond, B. P. Welch.”
McReynolds was not obliged to stand beside the clerk and see that a proper writ was issued. It was the duty of the clerk to issue a writ in accordance with the affidavit, and McReynolds could assume the officer would discharge his duty. Likewise, McReynolds and his surety may not be held responsible for the sheriff’s conduct unless they counseled, directed, or ratified it. (6 C. J. 496.)
The bond sued on contained a statement of the amount of plaintiff’s claim, but the blank in the form used for statement of penal sum was not filled, and the obligation of the bond was expressed as follows:
“Now, therefore, we, A. R. McReynolds and B. P. Welch, hereby undertake to the said defendant in the penal sum of $-■— that the plaintiff shall pay to the said defendant all damages which the said defendant may sustain by reason of said attachment, if the order be wrongfully obtained.”
The statute reads as follows:
“The order of attachment shall not be issued by the clerk until an undertaking on the part of the plaintiff has been executed by one or more sufficient sureties, approved by the clerk, and filed in his office, in a sum not exceeding double the amount of the plaintiff’s claim, to the effect that the plaintiff shall pay to the defendant all damages which he may sustain by reason of the attachment, if the order be wrongfully obtained; . . .” (R. S. 60-903.)
McReynolds and his surety contend the bond was without legal effect because it did not comply with the statute. In the article on “Attachment,” in 2 R. C. L., at page 896, appears the following:
“The limit of liability of the obligors on a bond given in attachment is fixed by the terms of the instrument; the recovery may not exceed the amount of the penalty of the-bond, and, therefore, if the penalty is in blank, no recovery can be had.”
The case of Rogers v. Abbot, 206 Mass. 270, is cited as authority for this statement. In that case the bond was not blank as to penal sum. It expressed a penal sum of $1,000. In the opinion the court said:
“The limit of the defendants’ liability as sureties on the bond (and therefore the largest sum for which judgment can be entered) is the penal sum ($1,000) and damages for the detention thereof.” (p. 275.)
Nothing was said about liability on a bond blank as to penal sum, and the decision does not support the concluding portion of the text. No other authority is cited.
In the case of The Louisville, New Albany and Chicago Railway Company v. Lake, 5 Ind. App. 450, the attachment bond was “in the penal sum of - dollars, current money of the United States.” (p. 451.) What the other provisions of the bond were does not appear. The court held the bond did not comply with the statute providing for a penalty in at least double the amount of plaintiff’s claim, was no bond at all, and the court did not acquire jurisdiction of a nonresident defendant who did not appear and against whom judgment was taken by default. There are other authorities to the same effect. They reveal the slavery of substance to the imperious old master, form, and are disapproved.
The purpose of an attachment bond is to secure payment of damages. Of course there must be a valid obligation to pay damages, but if such an obligation be expressed, and the amount is not limited by statement of a penal sum, the liability is unlimited up to the amount of damages sustained. The statute of this state requires a bond for payment of all damages. The- limitation, “not exceeding double the amount of plaintiff’s claim,” is for the benefit of the obligors in the bond. They frame the bond, presumably with intention to be bound according to law, and if they do not take advantage of the limitation they waive it.
In this instance the bond recites the amount of plaintiff’s claim. Placing the bond beside the statute and reading the two together, as we are privileged to do, intention to be bound in a penal sum not-exceeding $2,000 is fairly inferable. But if that intention is not sufficiently expressed, the omission of a penal sum from the bond should be ignored, and the bond should be read, “Undertake to the said defendant that the plaintiff shall pay to the said defendant all damages which the defendant may sustain.”
The judgment of the district court is reversed, and the cause is remanded with direction to grant a new trial. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiffs, thirty-seven taxpayers of the city of Great Bend, prosecuted this action against the mayor and commissioners-of that city and the board of county commissioners of Barton county to prevent the “grading, regrading, paving, repaving, curbing and recurbing, guttering and reguttering, macadamizing and remacadamizing, or otherwise improving Main street” in said city. Judgment was rendered in favor of the defendants, and the plaintiffs appeal.
The action was tried on admission made by counsel for the parties hereto without the introduction of evidence. Findings of fact and conclusions of law were made as follows:
“1. I find that the- city of Great Bend is a city of the second class, and operating under the commission form of government.
“2. I find that Main street in the city of Great Bend, Kan., is now a paved street and was originally curbed and guttered and constructed by the city about 1915 or 1916.
“3. I find that on the 25th day of October, 1926, a resolution was passed declaring that it was necessary to repave, repair and otherwise improve, and to recurb and regutter, where necessary, Main street, in the city of Great Bend, Kan., and that said resolution was published according to law.
“4. I find that within twenty days from the date of the last publication of the resolution the resident owners of more than one-half of the property liable to taxation therefor, including those who withdrew their names within twenty days, filed with the city clerk of said city their protest against such improvements. I make this finding from the admissions of the parties during the argument of this case and not from any evidence introduced. The petition makes such an allegation, and the answer expressly denies it, but there was no evidence introduced one way or the other on this proposition and no stipulation made thereto, except such as were made during the argument.
“5. I find that on November 22, 1926, and within twenty days from the last publication of the resolution, certain writings called ‘Withdrawals of Names from Protest’ were duly filed with the city clerk of the city of Great Bend, Kan., and I find that the same were filed within twenty days from the last publication of the resolution.
“6. I find that Lafayette park in the city of Great Bend, Barton county, Kansas, is the tract of land on which the present courthouse of Barton county, Kansas, is located, and I find that the first courthouse was commenced on said tract of land about the year 1873, and that ever since said time the commissioners of Barton county, Kansas, have exercised dominion and ownership over the same, and there is no pretense of 'contention by anyone that anybody but Barton county, Kansas, owns this tract of land; and I find that there is no controversy between the city of Great Bend, Kan., and the commissioners .of Barton county, Kansas, as to the ownership of said tract of land, but that all persons know and agree that said tract is owned by Barton county, Kansas; that the former courthouse was located upon this tract, and that Barton county, Kansas, has been in possession and ownership of 'said tract of land, known as ‘Lafayette park,’ since 1873.
“7. I find that on the 7th day of December, 1926, the- governing body of the city of Great Bend, Kan., passed an ordinance reciting that the resident .owners of more than one-half of the property liable for taxation did not within twenty days from its publication file with the city clerk a protest against the improvements, and that afterwards, on the 30th day of December, 1926, the city clerk of Great Bend published an advertisement for proposals for constructing, repaving and street improvements, and that thereafter on the 15th day of January, 1927, the mayor and commissioners, being the governing body, passed ordinance 602, relating to repairing, repaving, recurbing, reguttering and otherwise improving the portion of Main street in controversy in this action, and providing for the payment of the costs; and I find that after the advertisement for bids was published there was filed with the city clerk of Great Bend, Kan., certain alleged specifications, plans and forms of contract, and that the same was filed on the 31st day of December, 1926.
“8. I find that all of the said proceedings were published in the manner and form required by statute.
“9. I further find that the governing body of the city of Great Bend, Kan., proceeded under section 12-602 Revised Statutes, 1923.
“10. I find from the admissions of the parties that all the footage included in the ordinance, and which includes Lafayette park, being the courthouse square, and excludes the United States post office, is 1,071,767.5 square feet.
“11. I find from the admission of the parties that the withdrawals amount to 80,500 square feet.
“12. I find from the admissions of the parties that Lafayette park, or the courthouse square, has a footage of 99,900 square feet, and I find that the resident property owners who signed the protest against the resolution, and whose names were not withdrawn within twenty days, amounted to 499,861 square feet.
“Conclusions-ok Law.
“I make the following conclusions of law:
“1. Lafayette park, or the courthouse square, belongs to Barton county,, Kansas.
“2. The withdrawals of the signatures from the protest were valid.
“3. The withdrawals of the signatures from the protest were filed with the city clerk of the city of Great Bend, Kan., within twenty days from the last publication of the resolution declaring the improvement necessary.
“4. The governing body of the city of Great Bend had the right to proceed under section 12-602, Revised Statutes 1923, in improving the street in controversy.
“5. It was discretionary with the governing body of the city of Great Bend whether they would proceed under section 12-602 or section 12-614, Revised Statutes 1923.
“6. The request for an injunction against the improvements ordered by the governing body of the city of Great Bend, Kan., is denied.
“7. Judgment goes for the defendants for costs.”
1. The plaintiffs contend that the governing body of the city did not proceed in the manner prescribed by law to make the improvements desired. The city officers contend that they proceeded under section 12-602 of the Revised Statutes, which, in part, reads:
“Whenever the governing- body of any city shall deem it necessary to grade, regrade, pave, repave, curb, recurb, gutter, regutter, macadamize, re-macadamize, or otherwise improve any street, avenue, or any part thereof, for which a special tax is to be levied, as herein provided, said governing body shall by resolution declare such work or improvement necessary to be done, and such resolution shall be published for six days in the official paper of the city, if the same be a daily paper, and for two consecutive weeks, if the same be a weekly, and if the resident owners of more than one-half of the property liable for taxation therefor shall not within twenty days from such last publication file with the clerk of said city their protest against such improvement, the governing body shall have power to cause such work to be done or such improvement to be made, and to contract therefor and to levy taxes as herein provided. Whenever a majority of the resident owners of real property liable to taxation for the improvement in two or more adjacent blocks shall petition the governing body to grade, regrade, pave, repave, curb, recurb, gutter, regutter, macadamize, remacadamize, or otherwise improve the same, the governing body shall cause such work to be done or such improvement to be made, and shall contract therefor, and shall levy taxes for all such improvements as herein provided upon the property on each side of said street to the middle of the block. The sufficiency of said protest or petition as to the ownership of the property shall be determined by the record in the office of the register of deeds at the time of the adoption of said resolution. The cost of grading, regrading, paving, repaving, curbing, recurbing, guttering, reguttering, macadamizing, remacadamizing, or otherwise improving intersections of streets and the cost of making any of said improvements in streets, avenues and alleys running along or through city property shall be paid by the city at large, for which general improvement bonds of the city may be issued according to law.”
The plaintiffs contend that the authority to make the improvements contemplated by the city is given by section 12-614 of the Revised Statutes:
“That whenever the governing body of any incorporated city of the second or third class shall deem it necessary to resurface or repair any paved street or any portion thereof, which paved street was originally curbed, guttered and a base and surfacing constructed in accordance with specifications; and the surfacing of such paved street by reason of the wear and tear of traffic is in a condition which requires repairing or resurfacing in order to preserve the base of same and to provide a reasonably smooth wearing surface, the same may be ordered by resolution and shall be done at the expense of the city and the payment of the cost of such resurfacing or repairing may be made by the issuance of improvement bonds of the city. . . . Provided, That befoi’e such bonds shall be issued and the work begun under the provisions of this act, a question of performing such work and issuing such bonds shall be submitted to a vote of the electors of the city. A majority of the votes cast at a special election held for such purpose, or a majority of the votes cast on the proposal at any general election when the question is submitted shall be considered sufficient to approve the proceedings under this act. Said election may be called by the governing body of the city at any time when they deem such action advisable. The election shall be held in accordance with the general laws of the state governing elections for a similar purpose.”
The proceeding to improve the street was initiated by resolution, in part, as follows:
“Be it resolved by the mayor and board oj commissioners of Great Bendf Kan., That it is necessary to repave, repair and otherwise improve (and to re-curb and to regutter where necessary) Main street between the north line of the right of way of the Atchison, Topeka & Santa Fe Railway Company and the south line of Eighteenth street, in the city of Great Bend, Kan.”
That resolution was first published October 27, 1926. Afterward, an ordinance was passed in obedience to that resolution, which provided:
“Section 1. That Main street in the city of Great Bend, Kan., be repaved, repaired, recurbed, reguttered and otherwise improved between the north line of the right of way of the Atchison, Topeka & Santa Fe Railway Company and the south line of Eighteenth street, in said city, in accordance with the plans and specifications provided by the engineer for said city and on file with the city clerk.
“Sec. 2. That for the purpose of providing for the cost of such improve ments, except the squares and areas formed by streets and alleys crossing said Main street, an assessment shall be made for each block of improvement separately on all lots and parcels of ground within the taxing district as provided by law, such assessment to be according to the assessed value of such lots and improvements thereon. . . .
“Sec. 3. That for the purpose of providing for the payment of cost for improving the squares and areas formed by the intersection of streets and alleys with the said street to be improved, and to provide for the payment of the cost of such parts of the improvement of said street that is not a legal charge as a special assessment against the lots and parcels of ground above mentioned, an assessment shall be made upon all of the taxable property of the said city of Great Bend. . . .”
None of the proceedings of the governing body of the city conformed to the requirements of section 12-614. They did conform to the requirements of section 12-602, except that it does not use the word repair. Section 12-614 does use that word. The authority given to the governing body of the city to regrade, repave, regutter, remacadamize, or otherwise improve any street is equivalent to authority to repair. Except for the use of the word repair, in the resolution and ordinance, the proceedings of the governing body of the city strictly conformed to section 12-602. The use of that word did not deprive the governing body of the city of authority to make the contemplated improvements under section 12-602.
2. It is argued that the proceedings of the city were bad because the resolution provided for recurbing and reguttering where necessary without specifying where such recurbing and reguttering were necessary. Neither the resolution nor the ordinance indicated the places that should be recurbed or reguttered. The specifications for the work called for the removal of two hundred lineal feet of old gutter and the placing of 1,763 feet of new gutter.
The principal part of the improvement contemplated by the resolution and the ordinance was repaving the street. Some of the gutter on the street to be improved was evidently in bad condition, probably in different places. The city had authority under section 12-602 of the Revised Statutes to recurb and regutter where necessary. The failure of the resolution and of the ordinance to specify where the recurbing and reguttering were necessary did not render the proceedings so irregular as to render them subject to an injunction at the suit of taxpayers owning property along the street.
3. Attention is directed to the fourth and fifth finding of the court. The list of withdrawals of names from the protest mentioned in the fifth finding were made at 10:45 p. m. on the twentieth day after the publication of the resolution to improve the street. The plaintiffs contend that the withdrawal was not made in proper time. The signers of the protest had the right to withdraw their names from it. (State, ex rel., v. Eggleston, 34 Kan. 714; 10 Pac. 3; Hay v. Dorn, 93 Kan. 392, 144 Pac. 235.) The right was recognized in Cowles v. School District, 88 Kan. 603, 607, 129 Pac. 176; Price v. City of McPherson, 92 Kan. 82, 84, 139 Pac. 1162; State, ex rel., v. City of Independence, 114 Kan. 837, 839, 221 Pac. 245. They had the full, period of twenty days from the date of the last publication of the resolution in which to withdraw their names. (Rodgers v. Ottawa, 83 Kan. 176, 109 Pac. 765.)
In King v. City of Parsons, 95 Kan. 654, 149 Pac. 699, the court said:
“In an action to recover against a city for damages-caused by a defective sidewalk a statement complying in all respects with, the provisions of section 870 of the General Statutes of 1909, giving the time, place and circumstances of the accident, was handed to the city clerk at his residence at 11:15 p.m. The next morning the clerk took the notice to his office and stamped it as filed on that date, which was one day more than four months from the time plaintiff was injured. Held, that there was a compliance with section 870 of the General Statutes of 1909, requiring the statement to be filed ‘with the city clerk’ within four months after the injury.” (Syl. f 1.)
The withdrawals were made in time.
4. The plaintiffs contend that the county should be considered a resident owner of property in determining whether or not a protest against the improvement has sufficient signatures thereto. The plaintiffs recognize that a contrary rule was declared in Osborne County v. City of Osborne, 104 Kan. 671, 180 Pac. 233, but ask that this question be reconsidered by this court. In Osborne County v. City of Osborne, 104 Kan. 671, 180 Pac. 233, this court said:
“Under the act authorizing cities of the second class to improve its streets, wherein it is provided that resident owners of more than one-half of the property subject to taxation for the improvement may protest (Gen. Stat. 1915, § 1764), a county is not deemed to be a resident owner of the square on which the courthouse stands, and therefore is not entitled to protest against the improvement of a street upon which the courthouse square fronts.”
The question was there fully presented to the court and was carefully considered. The rule there stated is now adhered to and followed.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This is a companion case of Barzen v. Kepler, ante, p. 648. Both cases were submitted and argued together. The present case was brought by Charles W. Hiller and Mamie Hiller, to recover for the death of their son, V. L. Hiller, who was an occupant of the automobile in which Martina G. Barzen was riding when the collision with the defendant’s truck occurred the evening of December 11, 1925, which resulted in the death of plaintiffs’ son. The jury found for the plaintiffs and assessed their damages at $10,-000, but on the suggestion of the trial court at the hearing of the motion for a new trial, the plaintiffs remitted $4,000 of the damages awarded, and judgment was then entered in favor of plaintiffs for $6,000. Defendant appeals.
He makes substantially the same objections to the rulings and judgment, and advances the same contentions that he urged in the Barzen case. The special findings returned by the jury substantially conform with those returned in the Barzen case with one exception. The jury in this case found that no lights had been placed on the rear truck, with which the automobile collided, until after the accident occurred. The decision in the Barzen case is deemed to be controlling here, and it must be held that the death of plaintiffs’ son was caused by the negligence of defendant, and further that the finding of the jury frees the driver of the automobile of contributory negligence. Defendant makes the further point that the judgment for $6,000 is excessive. It appears that plaintiffs’ son was a student in the state university and was twenty-three years of age when he was killed. He was strong and active, and when not attending school lived at home with his parents and worked and contributed a part of his earnings to his parents. Within the authority of Briley v. Nussbaum, 122 Kan. 438, 252 Pac. 223, it cannot be held that the damages awarded are so excessive as to require a reversal.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This was an action to compel disclosure of a secret agreement whereby the executor and ancillary administrator acquired an interest in the estate under his charge, and to impress that interest with a trust in behalf of plaintiffs as heirs of that estate, and for other equitable relief.
Briefly the facts were these: .On September 22, 1914, Konstantin Schwarz, a pioneer citizen of Edwards county, then a widower with a grown son and three grown daughters, made a will disposing of his property and naming his son-in-law, Blair Hedges, as his executor. By its terms his eldest daughter, Mrs. Helen Harp, of Denver, was given the sum of five dollars. Another daughter, Mrs. Annie Alumbaugh, of Los Angeles, was given a life interest in 440 acres of Edwards county land, with remainder to her children if any she had, otherwise to the children of her sister Emma Hedges. Some town lots in Kansas City, Mo., were also devised in fee simple to Annie. To his son Frederick Schwarz, of Offerle, there was a devise of a life estate in forty acres in Edwards county, with remainder to his children. To his third daughter, Mrs. Emma Hedges, wife of Blair Hedges, a life estate was devised in all the land the testator owned in section 17, township 25, range 20, in Edwards county, with remainder to her children. The residuary estate was conditionally devised thus: One-third to Annie Alumbaugh; one-third to Emma Hedges; one-third to the children of Emma Hedges.
After making this will, Konstantin removed to California, married there, and died a resident of that state on September 3, 1925. He left a widow, and the litigants in this action became concerned about her interest in Konstantin’s estate. On October 14, 1925, the defendant, Blair Hedges, wrote to Mrs. Alumbaugh asking her to inquire about the California law relating to the probate of the will, and suggesting the possibility of probating it in Kansas on the theory that the testator was a resident of Edwards county at his death. The letter continues:
“I . . . may come and contest it, so find out what you can and let me know.
“In regard to the will, some says it will hold and some says it is no good, so I dofn’t] know what about it; as for us we are willing to divide equally. . . .
“Did you ever talk to the widow what she would take for her interest in this property here; probably we could, pay her so much each year as long as she lives, then she would not clame enny of this here.”
Later the same year defendant Blair Hedges and Emma Hedges and Frederick Schwarz had a conversation about breaking the will. Mr. and Mrs. Hedges said they were willing to divide the property equally. Hedges and Schwarz went to California about the middle of December to see if they could come to some agreement with Mrs. Katherine Schwarz, widow of the testator. Together with Annie Alumbaugh, they called on the widow and she referred them to her lawyer. The latter advised them that if satisfactory provision was made for the widow’s maintenance, her interest in the property would be returned to the Kansas heirs at her death “by will or other method.” Frederick Schwarz made an offer of $5,000, which was declined. The widow’s attorney suggested $15,000. Hedges said that was too much, and no agreement was reached at that time. While in California, Hedges and Annie had a conversation about how the money was to be raised if they effected a settlement with the widow. According to Annie’s testimony, it was agreed by Hedges, Frederick and herself that if they could settle with the widow they would share equally. Hedges admitted that he had talked with Frederick Schwarz about breaking the will.
“I told' him as far as I was concerned, me and my wife, we would be willing to, if the law would uphold it with the minor heirs. . . .
“Q. What was said about the widow’s half interest? A. Well, when we went out there it was understood between us that we would go out, and if we bought the widow out we would share equally in the widow’s part. ... I made him [widow’s attorney] an offer of $10,000 and he still refused that. . . . Told him all right; we guessed we would go home and probate the will. . . . Came back a day or two after that.”
Shortly after his return to Kansas, Hedges made a contract with the widow whereby her interest in the Kansas estate passed to Hedges and wife personally. By its terms Hedges and wife agreed that at their own expense they would institute proper court proceedings in Kansas and procure a decree setting over to the widow one-half of all the real and personal estate of Konstantin Schwarz; they stipulated that the widow need not employ counsel to protect her interest; that Hedges and wife would attend to her interest; that partition proceedings should be instituted and prosecuted to final decree, and that they would promptly forward to her copies of all pleadings and papers filed in such proceedings; that as soon as a final decree should be procured Hedges and wife would purchase from the widow “all her right, title and interest in and to the property, real and personal, which may be set over to party of the second part [widow] under this decree.” The consideration was $3,000 in cash and a deposit of $10,000 to be placed with the Guaranty Branch of the Security Trust and Savings Bank of Los Angeles, with a declaration of trust pertaining thereto whereby the net income of such deposit should be paid to the widow during her lifetime and at her death this deposit or the securities in which it might then be invested should be returned to Hedges and wife. By the terms of the agreement, also, Hedges and wife obligated themselves to pay for the preparation of the trust agreement, and to pay the expenses of embalming, shipping and burying the testator’s body. The widow agreed that as soon as the estate was partitioned, and upon full compliance with the agreement by Hedges and wife she would execute deeds to all her interest in the Edwards county lands (described). And—
“Will also assign and transfer all her interest in and to' all personal property of every kind and nature to which she is or may be entitled to as widow of said Konstantin Schwarz, deceased, in the state of Kansas, under the laws of the state of Kansas.”
The above agreement was executed and dated on January 16, 1926. Two weeks prior thereto, on December 30, 1925, defendant Hedges had filed in the probate court of Edwards county an application for the probate of the will of Konstantin and for his own appointment as executor. On February 17, the will was probated, and on February 27, Hedges was appointed executor and qualified. On March 29 Hedges filed petition for the allotment of the widow’s allowance, pursuant to which 520 acres of the Schwarz lands valued at $25,000 were allotted to her in severalty, and on April 12 the probate court approved the allotment. The widow!s deed conveying the allotted lands to Hedges and wife was executed on April 19. During the pendency of the probate and allotment proceedings, Hedges made a partial disclosure to Annie and Frederick of the acquisition of the widow’s interest. He told Annie that she could have one tract of land at a certain sum (presumably its cost) and Frederick could have another on similar terms. He did not tell them the details of the acquisition nor did he apprise them of the reversionary features of the $10,000 deposit.
On March 7,1926, he wrote to Annie:
“As Emma is writing I will add a few lines. You want to know what it was that we signed; will say it was a contract with the widow for her one-half of the property here in Kans.; and you wanted to know where you came in; will say that you will get your shear of it; but in regard to the will it go as the law says. Now in regard to the widow’s one-half, I am going to sell it as soon as I can after it is settled, and you will get all that is yours, as I do not want to invest $4,000 or $5,000 in 160 of land; so if you want your shair of the land you will haft to have your shair of the money to pay for it. If you want to sell your shair, I do not think you will need enny money, as I think I can sell it right away. Now this contract with the widow is for $13,000; she is to give good deed to the land before she gets her money. Now you had better get Fred to look after your interest here, as I cannot, as I have got all I can do as it is. Blais Hedges.”
At the trial Hedges testified:
“I told him [Frederick] ‘if you want any of this you will have to raise your part of the money. I won’t raise it.’
“What, if anything, was said about the $10,000 trust fund? A. I don’t know that anything was said about it. I told him that there was $10,000> coming back, but don’t think I told him who it was coming back to.”
On August 23, 1926, this action was begun by Annie and. Frederick; Mrs. Helen Harp was a nominal party for a time, but eventually dropped out of the litigation. Hedges and wife were made defendants. Plaintiffs’ petition set out the facts in so far as they were apprised of them. Defendants answered at length, setting out a copy of the contract whereby they acquired the widow’s interest in the real and personal estate of Konstantin. The answer contained certain admissions and denials of little importance, and concluded with a prayer that plaintiffs take nothing by their action, and in the alternative—
“That in event the court finds that the plaintiffs or any of them are entitled to any of the benefits of the contract executed between the defendants and Katherine Schwarz, that the said plaintiffs be required to pay to the defendants their pro rata part of the expenses and the purchase price of said land.”
On the issues joined the cause was tried by the court. The evidence was as outlined above, together with the depositions of the California widow and her attorney, but these depositions disclosed nothing of importance on the principal legal question involved in this review.
The trial court gave judgment for defendants. Plaintiffs appeal, complaining that the court ignored the general rule of law that executors, administrators, guardians, trustees, and functionaries of that general character, may not traffic to their own private advantage in estates or properties towards which they have any official or moral responsibility. This rule is as much a principle of ethics and of practical honesty as it is of law. The moral philosophy which underlies the rule was comprehensively treated in Frazier v. Jeakins, 64 Kan. 615, 68 Pac. 24, in which is included a quotation from Staats v. Bergen, 17 N. J. Eq. 554, which deserves to be repeated:
“ 'So jealous is the law upon this point, that a trustee may not put himself in a position in which to be honest must be a strain upon him.’ ” (p. 619.)
In Judy & Gilbert v. Railway Co., 111 Kan. 46, 48, 205 Pac. 1116, it was said:
“A fundamental principle of law known by every lawyer is that an administrator of an estate cannot contract, for his personal advantage, concerning any matter connected with the estate. Such contracts are unenforceable. (1 Woerner’s American Law of Administration, 2d ed., § 391; 2 C. J. 694; 13 C. J. 415; 25 C. J. 1120; Frazier v. Jeakins, 64 Kan. 615, 68 Pac. 24.)”
Other cases recognizing this principle are: Phillips v. Love, 57 Kan. 828, 833, 48 Pac. 142; Page v. Harper, 73 Kan. 229, 84 Pac. 1024; Leeman v. Page, 79 Kan. 479, 100 Pac. 504; Niblack v. Knox, 101 Kan. 440, 167 Pac. 741; Clingman v. Hill, 104 Kan. 145, 178 Pac. 243; id. 113 Kan. 632, 215 Pac. 1013; Hicks v. Sage, 104 Kan. 723, 180 Pac. 780; Sowers v. Pollock, 112 Kan. 599, 212 Pac. 103; Rossman, Executor, v. Christensen, 117 Kan. 41, 230 Pac. 72.
Counsel for defendants concede the correctness of the rule of law, but contend that it has no application to the case at bar. Why not? It is suggested that while Hedges was appointed and designated executor, he was in fact an ancillary administrator with the will of a California citizen annexed. Be it so. The rule is- as rigorous against administrators of every sort as it is against executors. Hedges’ application to probate the will of Konstantin and for his own appointment as executor, or as ancillary administrator, was on file for two weeks when he consummated his private bargain with the widow for her half of the estate; and when he was appointed and qualified his official relation to the estate became effective as of the date the will was filed for probate, December 30, 1925. He was to all intents executor and administrator at the time he contracted for the widow’s interest in the property. When he caused the widow’s share to be set apart to her, he knew, as plaintiffs did not, that the more generous to the widow that allotment might be, the more it would redound to the private advantage of himself and wife. It is argued that the contract between defendants and the widow was not shown to be a secret agreement as alleged, nor to be vicious if secret. All the evidence was to the contrary, but its invalidity as against the plaintiffs did not depend on its being secret, but because it grossly offended against the rule of law which forbids public functionaries or private fiduciaries to bargain for their private advantage in relation to property toward which they hold any legal or moral responsibility. The point is made that official notice of the time set for making the widow’s allotment was duly given. No doubt; but that notice gave no hint of defendants’ private interest in it. And quite naturally, since Hedges was officially appointed and being paid for looking after the interests of all concerned, the heirs and devisees went about their own concerns in confidence that all would be done in order and in good conscience. Another suggestion is that Hedges offered to let plaintiffs have part of the lands allotted to the widow and privately acquired by himself and wife if they would advance their share of the purchase money. But he grossly misled them as to the cost of those lands. His own testimony reads:
“What, if anything, was said about the $10,000 trust fund? A. I don’t know that anything was said' about it. I told him [Frederick] that there was $10,000 coming back, but don’t think I told him who it was coming back to.”
He was even less candid in his letter to Mrs. Alumbaugh. To her he wrote: • ■
“Now in regard to the widow’s one-half . . . you will get all that 'is yours .... If you want' to sell your shair I do not think you will need enny money, as I think I can sell it right away. Now, this contract with :the widow is for $13,000.”
Another point urged in defendants’ behalf is that the executor was not appointed to handle the real estate and had nothing to do with it, as the personal estate was ample to satisfy all claims against it, including taxes and expenses of administration. Counsel for defendants cite authorities to the effect that in such a situation an executor may purchase on his own private account the interest of heirs in real estate not needed for the payment of debts. Typical of this doctrine is the statement in 24 C. J. 229, 230, viz.:
“While an executor or administrator may, if the transaction is fair and the consideration adequate, purchase the interest of a legatee or distributee, such a transaction should be closely scrutinized, for the relation of the parties makes such a dealing suspicious and imposes on the representative the burden of showing that no advantage has been taken by him; and if the transaction is tainted with fraud or imposition it will not be allowed to stand. In any event, however, where the personal representative purchases the interest of a particular heir or legatee, only the vendor can object to the transaction, and the other heirs or legatees have no right to object.”
We assent to so much of this doctrine as declares that such a purchase should be closely scrutinized, but decline to give countenance to the latter part which declares that heirs and legatees other than the vendor could not object to the transaction. In a case like the one at bar the peculiar vice in the transaction did not -concern the vendor (the widow), but inhered in the duplicity practiced on plaintiffs and the other beneficiaries of the will whose devises and bequests were directly affected by the extent and value of whatever allotment was made to the widow, and which had already been contracted for by the executor to the private advantage of himself and wife.
Touching the point that the private contract of the executor was without vice because the personal estate was sufficient to care for all charges, and that in consequence the executor had nothing to do with the realty, it is sufficient to say that by the literal terms of the identical contract the executor bargained for and privately acquired all the widow’s interest in the personal estate. And as to that part of the estate, there is no shadow of doubt that its private acquisition by the executor was illegal. Cases there are where a contract, one part valid and one void, has been upheld on the valid part and rejected on the other (Henshaw v. Smith, 102 Kan. 599, 171 Pac. 616), but this contract is not entitled to such lenient treatment.
Appellees invoke the rule that this court is concluded by the trial court’s findings of fact. It is. So far as the plaintiffs’ case rested on testimony which the trial court was at liberty to disbelieve, we are concluded. But this case is not controlled by disputed facts. £>o far as the controlling facts are concerned, they were developed by record and documentary evidence and by the defendant executor’s own testimony, and the pertinent law of the case is what we have outlined above.
A final point is urged in behalf of the defendant Emma Hedges, who as a private citizen, having no official concern with her father’s estate, could lawfully make a private bargain for her stepmother’s share of it. She could, but she did not. The interest she acquired was freighted with the vice which inhered in the bargain made in her behalf by her husband, the executor.
How do these conclusions affect this case? Manifestly the judgment of the trial court cannot stand. In some equitable fashion the executor’s bargain with the widow must be dealt with as made for the benefit of all concerned. But as this matter has not been briefed, we purposely refrain from passing on the point whether the contract shall exclusively inure to the benefit of the litigants herein; or to the heirs of Konstantin, or to all the beneficiaries of his will. Primarily that problem is one for the solution of the trial court, as it may be advised.
The judgment is reversed, and the cause remanded for further proceedings consistent herewith. | [
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The opinion of the court was delivered by
Hopkins, J.:
The action was one to enjoin the sale of real estate. The plaintiff was defeated and appeals.
The facts were substantially these: Plaintiff’s father died in 1917, when the plaintiff was onfy a few weeks old. Plaintiff’s mother was made administratrix. Some $600 was received from the estate for the plaintiff, also life insurance in the sum of $1,250. The money belonging to the plaintiff was used by the mother to make some investments in California real estate which resulted in a profit. Later, the principal together with the profit was mingled with the mother’s money and invested by her in Florida real estate and all of it lost. Upon the father’s death, certain real estate consisting of a quarter section of land and some town lots descended to the plaintiff and his mother. In 1925, an action was filed in the district court against the mother by the receiver of a failed bank. The mother, in the meantime, had remarried and was residing at Independence, Mo. No service was had for a considerable time, and eventually the defendant, C. H. Barr, purchased from the receiver the note in question and was substituted for the plaintiff in that action. An attachment was levied upon the real estate above mentioned. Judgment was procured and the property advertised to be sold to satisfy the judgment. In the meantime, shortly after filing of the original action and before the attachment, the mother and her husband executed to the plaintiff, the minor son, quit-claim deeds conveying the mother’s interest in the real estate above mentioned. The deeds were not recorded until after the attachment had been levied. The mother as best friend of the plaintiff then filed this action to enjoin the sale of the real property contending that the attachment was without effect because the property had been conveyed to the plaintiff. The action was tried by the court; judgment for the defendant (owner of the note); findings of fact and conclusions of law made by the court.
The plaintiff contends that the court failed'and refused to make findings requested, and erred generally in rendering judgment for the defendant. Two paramount questions appear — whether the farm above mentioned was a homestead and whether there was a delivery of the deeds to plaintiff previous to levy of the attachment.
The defendant contends that the homestead question is not and never was an issue in the case. The plaintiff contends that while there w;as no specific allegation of homestead in the petition, the question was presented on the argument of a demurrer and no objection made that it was not within the issues. It appears that evidence was offered by the plaintiff as to the homestead character of the farm, and that no objection was made thereto. The defendant in a counter abstract brings up this evidence of Mrs. Fisher elicited on cross-examination:
“That the farm involved in this controversy and in which -homestead rights are alleged, is located six miles southeast of Osawatomie; that she was living on the farm at the time her first husband died, in 1917; that in February, 1919, she left the farm and went to California; that in 1921 she came back to Osawatomie and occupied the residence in Osawatomie owned by her, and one of the properties involved in this controversy; that she continued to live in the Osawatomie residence until December, 1923, when she moved to Chanute; that she moved back into the Osawatomie residence in February, 1924; that she moved out onto the farm again in March, 1924; that about August 1, 1925, she again left the farm with her husband and established a home in Kansas City, Mo.; that about September 1, 1926, they moved to Independence, Mo., at which place they continued to live and were living at the time of trial.”
The trial court made two sets of findings. In the first the court found:
“The said Winnie Hays Fisher occupied said farm, with her husband and son, who is the plaintiff herein, from August, 1924, until September, 1925, as her homestead. Said farm is located about six miles from the city of Osawatomie, Kan. The husband of said Winnie Hays Fisher is an employee of a railroad company as a locomotive fireman running from Kansas City, Mo., to Omaha, Neb.
“In September, 1925, said family moved from said farm to Independence, Mo., where they now reside. Said farm, was then leased to a brother of said Winnie Hays Fisher. A mowing machine and a few garden tools were left on said farm by Winnie Hays Fisher at the time she removed from said farm.
“Said Winnie Hays Fisher testified that said farm is her homestead residence, and that her residence at Independence, Mo., is her temporary residence ; she testified that she expects to return to said farm to live thereon and occupy the same as her homestead; she testified that she had never released her homestead right in said farm.”
In the second set of findings the court stated “that the findings of fact and conclusions of law in the above-entitled case be modified and set aside, except as herein set forth,” and therein made no find ing with respect to the homestead. The plaintiff then filed an application asking the court to take cognizance of.the evidence relating to the homestead on the hearing of the motion for new trial. The court declined to do so. Under all the circumstances, we are of opinion that the homestead issue was sufficiently raised. Under our liberal procedure the court should either have permitted an amendment of the pleadings (had any question of their sufficiency been raised) or should have considered the pleadings amended to coniform to the proof, and should have found whether or-not the farm in question was Mrs. Fisher’s homestead at the time of the conveyance to plaintiff. Homestead-exemption laws should be liberally construed in favor of the homestead. The homestead can be appropriated for the payment of debts only upon clear and positive evidence of its abandonment. (Garlinghouse v. Mulvane, 40 Kan. 428, 19 Pac. 428; Osborne v. Schoonmaker, 47 Kan. 667, 28 Pac. 711; Palmer v. Parish, 61 Kan. 311, 59 Pac. 640; Carlson v. Richey, 115 Kan. 722, 224 Pac. 895; Sage v. Ijames, 118 Kan. 11, 233 Pac. 1013; Roberts v. Robertson, 123 Kan. 222, 254 Pac. 1026; 6 Encyc. of Ev. 543; 29 C. J. 963.)
Respecting delivery of the deeds, the trial court held that the deeds in question were valid, but were not effective until placed of record (which was after levy of the attachment). The plaintiff requested findings of fact touching the intention of the grantors as to delivery of the deeds. Two witnesses, the grantors, testified that after execution and acknowledgment of the deeds, they took them to the post office, purchased and placed upon them documentary stamps, then went to the plaintiff, who was sitting in an automobile, and exhibited to him the deeds and told him that they had deeded him the property; that it was their intention to make the. conveyance effective at once; that the deeds were then returned by the grantors to a notary, who.was also a laWyer, for the purpose of having him record them, and who, both grantors testified, agreed to record them within a day or so. If it was the intention of the grantors that the deeds be at once recorded and that the title should pass, that fact would be controlling. (See Wuester v. Folin, 60 Kan. 334, 56 Pac. 490; Kelsa v. Graves, 64 Kan. 777, 68 Pac. 607; Good v. Williams, 81 Kan. 388, 105 Pac. 433; Smith v. Dolman, 120 Kan. 283, 243 Pac. 323; 13 Cyc. 563; 18 C. J. 439, 440; 9 A. & E. Enc. of L., 2d ed., 161.) It was, in our opinion, a fact the plaintiff was entitled to have determined.
There appears no question but that the plaintiff took every measure to have the court ascertain the two questions of fact herein discussed. (R. S. 60-2921; Snodgrass v. Carlson, 117 Kan. 353, 232 Pac. 241; Black v. Black, 123 Kan. 608, 256 Pac. 995.) Had they been determined in accordance with the apparent weight of the testimony judgment would have resulted for plaintiff. If there was in fact a present intention to deliver the deeds at the time of their execution the title passed to the plaintiff, and if the farm was in fact the homestead of the plaintiff’s mother it was not subject to attachment, and in either case defendant’s attachment would have reached only such interest as the mother had at the time of the levy of the attachment. (Harrison & Willis v. Andrews, 18 Kan. 535; McCalla v. Knight, 77 Kan. 770, 94 Pac. 126; Emery v. Bank, 97 Kan. 231, 155 Pac. 34; Conner v. Cole, 112 Kan. 517, 211 Pac. 615; Hoard v. Jones, 119 Kan. 138, 237 Pac. 888; Smith v. Dolman, 120 Kan. 283, 243 Pac. 323.)
The judgment is reversed, and the cause remanded with instructions to grant a new trial. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This is an original proceeding to compel the board of county commissioners of Johnson county to proceed with the construction and improvement of a highway spoken of as the Santa Fe trail from the city of Olathe to a point near the southwest corner of Johnson county. In the verified application for a writ of mandamus, it was alleged that a petition for the building and improvement of the road containing the names of 148 petitioners, which constituted more than 51 per cent of the resident landowners, owning more than 35 per cent of the land within the district defined by the petition, was presented to the board in the early part of May, 1926. The petition described the route of the road, the terminal points, and prayed that the road be graded, drained and surfaced with concrete or brick, eighteen feet wide, with all necessary bridges and culverts, in accordance with plans and specifications and estimates approved by the state highway engineer, and by the United States secretary of agriculture, if federal aid should be granted.
On May 19, 1926, the board made an order upon its journal that the petitioners and others interested should be notified that a meeting would be held on June 2,1926, for the hearing and consideration of the petitions. The county engineer of the county had duly certified that on a careful examination of the petition for the road he found it contained the names of more than 51 per cent of the resident landowners owning more than 35 per cent of the land within the benefit district. On June 2,1926, the board, finding that due and proper notice of the meeting had been given, proceeded with the hearing and took the same under advisement until June 11, 1926, at a regular meeting of the board, when it allowed the petition and entered upon its journal that the improvement as prayed for was a public utility, that the petition was adequate and in all respects in compliance with law, and it entered an order that the road be improved as prayed for in the petition, that the county engineer cause an accurate survey to be made of the road, together with the profile thereof, and also a map of the district, together with plans and specifications, with an estimate of the cost of such improvements, and that after final approval of such plans, specifications and estimates by the state highway engineer, they be filed with the county clerk as required by law. It was further ordered that the board cause the expense of improving the road to be met from time to time by warrants directed upon the fund created therefor, and that the cost be apportioned and bonds issued to pay the same according to law, and that the board should cause to be con structed all necessary bridges upon the road, the cost of which exceeded $2,000 or should have a span of twenty feet or more, to be paid for by Johnson county out of the county bridge fund, and with the assistance of such federal aid as might be granted. It was further alleged that pursuant to the order the engineer of the. county proceeded to make and report to the board, surveys, maps, profiles, plans and specifications and estimates, as. ordered and reported the same many months ago to the defendant board. It was alleged that the defendant board has neglected and still neglects to proceed with the improvement of the road as is its legal duty to do. In the alternative writ which was issued reference was made to the averments in the affidavit as to the petition and orders mentioned reciting that all surveys, maps, profiles and estimates had been duly made and filed, but that the board had failed and neglected to further proceed, although often requested and demanded so to do.
The board in its answer set up a formal general denial and then proceeded to admit that the petition mentioned had been duly presented to it for consideration, admitted that they had referred it to the county engineer and that upon the examination he had reported that the petition contained more than 51 per cent of the landowners in the benefit district and more than 35 per cent of the land included in the district, that they thereupon passed a resolution in which they found the preliminary proceedings had been legally taken, approved the petition and ordered a survey of the road, with profile thereof, and a map of the district together with plans and specifications of the improvement and an estimate of the cost thereof. The board then alleged that the route of the proposed road was not definitely set out in the alternative writ, that eight miles of the proposed route is overland where no highway exists, and that because of that fact the petition was invalid and that therefore the peremptory writ should not issue. There was an averment, too, that in an examination of the petition after the order was made it was found that it did not contain 51 per cent of the resident landowners owning 35 per cent of the land in the district. The board added an allegation to the effect that a formal system of public highways had been adopted in the county in which roads on other lines were under construction and which could be used in reaching a point on the west line of the county which would serve the purpose of travel better than would the proposed road, and that those tinder construction had entailed a very large expense during the last two or three years, and had caused a heavy burden of taxation. Another allegation was to the effect that the proposed road is impracticable and not in accord with the general system of improvement which the county had adopted. The answer concluded with a denial ■that the plans and specifications, maps, profile and estimate, for the proposed highway had ever been filed in the office of the county clerk, and that the survey had not been completed. ■ " •
■ Upon the filing of the answer the plaintiff moved for the issuance ■of a peremptory writ contending that the answer does not set forth any legal reason or excuse for failing to do as directed in the alternative writ.
! The first question raised by the board is that the alternative writ is defective in that it does not set out in detail the route of the road, the character of the improvement, the resolution of the board ordering the improvement, nor show the legality of the preliminary steps • taken by the board prior to the order for the improvement. It ap■pears that the alternative writ makes special reference to the affi'davit filed upon which it was based, reciting that it had been made ;to appear therein that the petition had been presented, that all the ■necessary preliminary proceedings had been had, that the resolution ■ and order of the board had been made, together with a survey; -that an order had been made approving the petition, and a finding .made that all necessary legal proceedings had been taken; that they had ordered the engineer of the county to cause the survey of the road to be made, together with profile, maps, plans and specifi.cations and an estimate of the cost; that these had been approved by the state highway commissioner, and that all these things had been done. This was followed by an averment that they had failed and neglected to proceed further although often requested to do so, and the command of the writ was that the board proceed with the improvement of the road so petitioned for and ordered or show cause on a day named.
It is argued that as the writ and return constitute the pleadings in a mandamus action, the court cannot look to the affidavit or verified application on which the writ was based. The affidavit as shown contains full recital of the facts, and the alternative writ refers to the facts shown by the affidavit. This verified application is a paper and a part of the record in the case. Thereby the defendant was as fully informed of the grounds upon which relief was sought as if all the recitals of the affidavit had been copied into the writ. By plain reference they became a part of the writ. The board could not have been confused or hampered in its defense by the fact that its duties and obligations which it was alleged they had failed and neglected to perform, were stated in one or two papers. In effect, however, the writ included all the averments of the affidavit to which reference was made. Moreover the board did not challenge the sufficiency of the writ by a motion to quash, but filed an answer in which the material allegations of the plaintiff were admitted. True, the answer contained a general denial, but in view of the further averments containing admissions of the steps that had been taken and the statement of the excuses offered in justification of the refusal of. the board to proceed with the improvement, the general denial must be regarded as nugatory. As shown in Stanley v. State Board of Medical Registration and Examination, just decided (post, p. 518), the questions open to consideration were whether the excuses affirmatively pleaded by the board as a justification for its refusal are legally sufficient.
Another objection is that the statute under which the order was made, including R. S. 68-701 and 68-703, is not applicable to the proposed road and does not warrant the improvement ordered because a portion thereof, about eight miles, is new construction, and it is argued that it cannot be regarded as an improvement of an existing road and that the improvement does not imply the laying out and improvement of a new road. While the statute speaks of the improvement of roads and the designation of roads to be improved, it is plain from the several provisions that the term improvement is not confined to established roads. The statute contemplates that the project petitioned for may be in part upon a line where no road has been previously laid out. It is not practical or necessary to quote the lengthy provisions of the act to meet the plaintiff’s objection. The following provisions are sufficient to show that the interpretation contended for by the board cannot be upheld. After speaking of the improvement petitioned for and found to be of public utility, it proceeds:
. . When the petition filed for the improvement of a road describes a road which has not been legally established as a public road, or when additional right of way is necessary for the construction of the type or types of roads specified in the petition, or when unsurmountable obstacles are encountered on the route described in the petition, or when it is found necessary to relocate the road for the purpose of eliminating sharp turns or other dangerous places, the board of county commissioners shall by order of said board lay out, alter or widen a public road and may vacate an existing road,” etc. (R. S. 68-703.)
Then follows a provision giving the board authority to condemn land so far as it may be necessary to carry out the purposes of the statute.
Since the revision of 1923 the legislature has amended the section in some respects, but the provision quoted was reenacted and placed in the amended section without alteration. (Laws 1927, ch. 251.) The term improvement as used in the statute obviously includes every essential to the building of the type of road petitioned for, whether it is over an established road or over a route where a part of it is not upon a previously established highway. The board, as seen, may obtain land in order to widen an existing road or may make a deflection from a described route in order to avoid sharp turns, dangerous places or unsurmountable obstacles. If it is found to be necessary the, board may even vacate an established road, constituting a part of the route of the proposed road. We find no merit in this contention of the board.
The allegations of the answer presented as excuses for failing to proceed with the building of the road, to the effect that the county is engaged in other road projects, the averment that the public can be better accommodated in reaching the west line of the county by other routes than that of the proposed road, and the further one that they now regard the proposed road to be impracticable and would involve great expense, do not any of them afford justification for its refusal to proceed with the improvement. When the petition had been presented and had been found valid and sufficient after a hearing was had upon due notice, and the board had found the road to be of public utility and had procured the engineer to make a survey with profile, maps, estimates, plans and specifications, and entered upon its journal its approval of the proceedings and an order for the improvement, and that the expense thereof was to come from a fund icreated therefor, and the order had become a finality, that closed the chapter as to regularity and authority and it became at once the duty of the board to proceed with the construction of the road with reasonable promptitude. The fact that other roads are contemplated or in course of construction affords no reason for abandoning or refusing to proceed with the road petitioned for and ordered built. It was said in State, ex rel., v. Franklin County Comm’rs, ante, p. 141, 256 Pac. 716, in answer to like excuses:
“The board has determined the public utility of the road and it need not wait to be prompted to execute a work of determined public utility or hold back on account of opposition.”
Nor is it any excuse that the board is now of the opinion that the road so ordered to be constructed is not practicable or that some other road is more desirable. All these questions were finally determined when valid preliminary proceedings were had and the improvement ordered. Whatever may have been the real reason which led the board to balk on the improvement or refuse to proceed as the law prescribes on the beaten path, those and like excuses afford no justification for its refusal. No steps have ever been taken to vacate the order made, nor has it ever been adjudged to be invalid by any tribunal. As illustrating the lack of merit in the excuses made by the board, it is sufficient to refer to the following authorities: State, ex rel., v. Linn County, 113 Kan. 203, 213 Pac. 1062; State, ex rel., v. Franklin County, 115 Kan. 531, 223 Pac. 261; State, ex rel., v. Linn County Comm’rs, 120 Kan. 356, 243 Pac. 539; State, ex rel., v. Leavenworth County Comm’rs, 121 Kan. 148, 245 Pac. 1051; State, ex rel., v. Franklin County Comm’rs, 124 Kan. 141, 256 Pac. 716. The further averment in the answer that the survey, map, profile, estimates, plans and specifications have not been placed on file with the county clerk is not a valid excuse for the refusal of the board. If the county engineer has failed to place these on file, it is within the province and power of the board to require it to be done. Nothing in the record shows an unwillingness of the county engineer to do his part. As tending to show that this was not the ground of refusal, it is made to appear by the records of the state highway commission, that the chairman of the county board and the county engineer appeared before the highway commission in July following the making of the order and applied for federal aid and it was then agreed between the highway commission and the county officers that the commission would advance sufficient funds to build about six miles of highway from funds then available, and that the county would proceed with grading and making iculverts on the highway in question.
The judgment of the court will be that the peremptory writ issue commanding the board to proceed forthwith with the construction of the highway and jurisdiction will be retained for the purpose of making the judgment effective in case further orders become necessary. It is so ordered. | [
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The opinion of the court was delivered by
Hopkins, J.:
The defendant appeals from a conviction of being a persistent violator of the prohibitory liquor law. Previous conviction was not disputed. Five counts were lodged against him in the instant case — two for unlawful possession of intoxicating liquor, two for sale, and one for maintaining a nuisance; unlawful possession, June 25, 1925, and October 18, same year; sales on the same days, maintenance of the nuisance on and between the same days. The defendant presents but one question, applicable to each count: that no evidence was adduced to support the verdict and judgment. It would serve no useful purpose to analyze the evidence or discuss the arguments of counsel. From a full consideration of both we are of opinion the verdict and judgment on all five counts was not improper and that defendant has suffered no miscarriage of justice. On questions of brevity of judicial opinions, and setting out the evidence, see American Bar Association Journal, “Report Special Committee,” August, 1916, p. 618; “The Argument in the Decision,” June, 1921, p. 270; “Proposed Canons of Judicial Ethics,” February, 1923, p. 73.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
F. J. Foetisch and C. R. Craig brought this action to recover upon a promissory note for $4,800, and to foreclose a mortgage on a farm in Neosho county given to secure payment of the note. They named as defendants Mary E. White, R. E. Anderson, Paul Klein and the Phcenix Mutual Life Insurance Company, but there was no controversy among the parties as to the rights of the insurance company, and a judgment in its favor was rendered by consent.
Upon the evidence adduced judgment was given plaintiffs for the amount of the note and interest against Mary E. White, R. E. Anderson and Paul Klein, and a foreclosure of the mortgage was decreed. Mary E. White and R. E. Anderson were given judgment against Klein as prayed for in a cross petition and subrogated to the rights of the plaintiffs and of the insurance company as to the judgments rendered in their favor. Paul Klein appeals.
The contested questions arise out of the following transactions: Mary E. White and her husband owned a farm of about 150 acres in Neosho county, and on July 8, 1920, they entered into a written contract to sell and convey it to Klein for $15,000, subject to a mortgage indebtedness of $7,500, and the farm was taken by Klein subject to the liens as part of the purchase money. In part payment of the farm, Klein conveyed to the Whites city property in Iola of the agreed value of $6,500. He then paid $1,000 in cash, and the balance of the purchase price was paid by a note for $4,800 with a mortgage on the land conveyed to Klein. These, together with the mortgage lien in favor of the Phcenix Mutual Life Insurance Company upon the land of $2,700 which Klein assumed to pay, made up the $15,000 purchase price of the land. In respect to the $4,800 note and mortgage involved in this action, the following plan was invented by Klein, which was that the Whites should execute a note and a mortgage on the land to their son-in-law, Anderson, and Anderson in turn was to • assign and transfer them back to the Whites. This was done at the instance and under the direction of Klein, who stated that he wished this method of paying the purchase price to be adopted; that he did not want the obligation to stand on the records against him, as it would affect his credit. It was agreed, however, that the note and mortgage so executed should stand as the act and obligation of Klein. In furtherance of this agreement and direction the note and mortgage were executed to Anderson, and on the same day and without consideration Anderson in turn assigned and transferred them back to the Whites who sold and transferred them to another. They have been duly indorsed and transferred through the hands of several persons until they came into the possession of plaintiffs, who are now the owners and holders thereof. Abstracts and deeds were made and placed in escrow in the Iola State Bank, where they were to be held until final settlement was made between the parties. The Whites executed and delivered the mortgage for $4,800 as stated, and on August 4, 1920, they executed and delivered a deed to Klein in which it was recited that the farm was conveyed free and clear of encumbrances, except the first mortgage of $2,700 and- a second mortgage for $4,800, amounting to $7,500, which Klein “assumes and agrees to pay with interest thereon.” Thereafter Klein entered into possession of the land and has held it since November, 1920.
The trial court found that Klein purchased the land and agreed to pay for it the sum of $15,000; that he was to pay this sum by conveying the Ida property as a payment of $6,500, and agreed to and did pay $1,000 in cash, and that he was to and agreed to pay the balance of the purchase price, $7,500, by assuming and agreeing to pay the two mortgages described in the deed, note and mortgage, being the one involved in the action. It was found that the note and mortgage of $4,800 was given by the defendant Máry E. White and her husband, since deceased, to R. E. Anderson, at the instance and on the request of Paul Klein, and that it represented that much of the purchase price of the land; that the only way the Whites could or did realize the payment of the $4,800 of the purchase price of the farm which Klein was to pay was through the execution and sale of the note and mortgage mentioned; that the note and mortgage were executed in the manner in which it was done under the direction of Klein, and that he had at all times recognized it as his personal obligation and made payments of the interest thereon to the present holders of the obligations. It was further found that there was no fraud or deceit practiced on Klein on the execution of the deeds or incorporating therein the provisions as to the assumption and payment of the notes specified. The court declared that the note and mortgage, executed and delivered as it was, was the act and obligation of Klein, was primarily his indebtedness and liability and was done for his use and benefit. Among other things the court found that the contract of sale, deed, note and mortgage were part of and are to be considered as a single transaction, and hence the obligation was primarily the debt of Klein, and accordingly judgment was rendered as has been stated.
The first and principal "contention of Klein is that he had not signed the note and mortgage and therefore could not be held to have assumed the payment of the $4,800 mortgage debt. Apart from the express assumption in the deed, the evidence showed beyond peradventure that the $4,800 obligation was a part of the purchase price of the land which Klein agreed to pay and which he undertook to pay in the manner stated. The purchase price was his liability, and the circumstances of the transaction satisfactorily show that the amount represented by the note and mortgage was his debt, and that he was the primary debtor. By the contract of sale he purchased the farm for $15,000, to be paid for by other property of the value of $6,500, $1,000 in cash, and the $7,500 balance was made up of the mortgage indebtedness, and in the contract it was recited that this indebtedness was “part of the purchase price.” In his testimony Klein with commendable candor admitted many of the essential facts. He testified that the purchase price was $15,000, and that the mortgage debt of $4,800 was part of the purchase price. He stated that he knew the $7,500 of mortgage indebtedness mentioned in the sale contract was made up of the mortgage of the insurance company for $2,700 and the $4,800 mortgage, and stated that he was not objecting that the $7,500 mortgage indebtedness was written up in two mortgages of $2,700 and $4,800, and further that he understood all of the time that the sum of these two mortgages was part of the purchase price. He testified that the mortgage debt on the farm when the sale contract was made was only $2,700, and that he knew that it would take the $4,800 to make up the $7,500 mortgage debt, and that it made no difference to him to whom the $4,800 mortgage was given. He admitted that the deed which contained the assumption of the mortgage debt was turned over to him about December, 1920; that he then took possession of the land, rented it and has since appropriated the rents and profits derived from it. He acknowledged that he had made four interest payments on the $4,800 note, and never made any objection to the note. Although the mortgage debt was in the name of another, the facts admitted and proven constituted an assumption of the obligation for the balance of the purchase money. It was the payment of his own debt which he assumed, and the agreement cannot be regarded as within the statute of frauds. (Manufacturing Co. v. Burrows, 40 Kan. 361, 19 Pac. 809; Neiswanger v. McClellan, 45 Kan. 599, 26 Pac. 18; Smith v. Kibbe, 104 Kan. 159, 178 Pac. 427; Woodburn v. Harvey, 107 Kan. 57, 190 Pac. 620.) It has been said that—
“By the great weight of authority an assumption of the mortgage debt by the purchaser is implied where it is expressly agreed that the payment of the mortgage shall constitute a part of the purchase money, or in the absence of such agreement, where the amount of the mortgage debt has been deducted or retained by the purchaser out of the agreed price.” (41 C. J. 724.)
A case quite in point is Heid v. Vreeland, 30 N. J. Eq. 591, where it was said:
“There can be no doubt at this day that, where the purchaser of land encumbered by a mortgage, agrees to pay a particular sum as purchase money, and, on the execution of the contract of purchase, the amount of the mortgage is deducted from the consideration, and the land conveyed subject to the mortgage, the purchaser is bound to pay the mortgage debt, whether he agreed to do so by express words or not. This obligation results necessarily from the very nature of the transaction. Having accepted the land subject to the mortgage, and kept back enough of the vendor’s money to pay it, it is only common honesty that he should be required either to pay the mortgage or stand primarily liable for it. His retention of the vendor’s money for the payment of the mortgage, imposes upon him the duty of protecting the vendor against the mortgage debt. This must be so even according to the lowest notions of justice, for it would seem to be almost intolerably unjust to permit him to keep back the vendor’s money with the understanding that he would pay the vendor’s debt and still be free from all liability for a failure to apply the money according to his promise.” (p. 593.)
The fact that the Whites and Anderson made themselves liable by the signing and transfer of the note and mortgage, does not relieve Klein, the primary debtor for the purchase money, from liability. Apart from these considerations there was the express assumption of the obligation in the deed which Klein has retained for more than five years, and under which he went into possession of the land and appropriated the rents and profits of it. That made him personally liable to the same extent as if he had signed the note and mortgage. (Schmucker v. Sibert, 18 Kan. 104; Neiswanger v. McClellan, supra; Hendricks v. Brooks, 80 Kan. 1, 101 Pac. 622.) While he said that he did not know of the assumption clause in the deed, he could not shut his eyes to its terms through a period of years. When he accepted the deed he is deemed to have accepted it with its obligations. (Hendricks v. Brooks, supra.) His acts in taking and holding the deed without repudiation or without seeking a rescission of it, and in exercising acts of ownership over it for so long a period, is a ratification of the assumption, even if he had no knowledge of the stipulation at the time he accepted it.
It being determined that his assumption of the debt is an original and absolute promise to pay, it must be held that he is personally liable therefor, and hence it is not necessary to consider the questions discussed as to accommodation paper. No merit is found in the claim that the action was prematurely brought.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Lockett, J.:
The defendant appeals from a decision of the Sedgwick County District Court revoking his probation claiming the judge’s conduct denied him his constitutional right to due process.
James Junior Starbuck pleaded guilty to two counts of aggravated indecent liberties with a child. The victims of the crimes were the defendant’s six- and eight-year-old stepdaughters. Starbuck received concurrent sentences of five to twenty years. After being committed to the custody of the Secretary of Corrections, Starbuck was granted probation by Judge Robert D. Watson upon certain conditions. Two of these conditions were:
“g. That defendant have no contact with defendant’s stepdaughters . . . until such time as the defendant’s therapist and theirs, if applicable, agree that meeting in a family therapy session is appropriate.
“h. That defendant live and stay at some place other than the home [in] which [the stepdaughters] reside with their mother, Deanna Dorene Starbuck, until such time as reuniting is approved by all therapists involved, and until prior approval of the sentencing court and of the Sedgwick County District Attorney has been obtained in a formal hearing in Sedgwick County District Court.”
The defendant moved to Topeka and was supervised by a Shawnee County probation officer.
The State charged that Starbuck had violated conditions “g” and “h” of his probation agreement. On June 27, 1985, Judge Watson conducted a probation violation hearing. At the hearing, Deanna D. Starbuck testified that although the defendant had stayed overnight with her in the home where her daughters lived, he had never stayed there while the girls were present. The girls often stayed at her parents’ home so that she could be with the defendant.-
Mrs. Starbuck’s mother, Evelyn Neely, testified that she had seen the defendant with the two girls without their mother since his release on probation. A friend who stayed with Deanna Starbuck in her home for two months testified that the defendant spent the night in the house several times while the girls were present.
During the hearing, the defendant’s attorney attempted to challenge the mother-in-law’s credibility, but the judge refused to allow most of the testimony. Throughout the proceedings, the judge made certain comments which the defendant contends establish that he was not provided a fair and impartial hearing.
First, Starbuck claims the judge erred in refusing to admit or consider evidence of witness Evelyn Neely’s credibility and reputation for veracity.
One who claims a judge abused his discretion in refusing to admit or to consider evidence regarding the credibility and reputation of a witness has the burden of proving that contention. Lone Star Industries, Inc. v. Secretary, Kansas Dept. of Transp., 234 Kan. 121, 131, 671 P.2d 511 (1983). We have examined each of the contentions and have reviewed the evidence proffered by the defendant and conclude that none of the claims show prejudicial error by the judge’s refusal to admit or to consider the evidence proffered by the defendant.
Secondly, Starbuck claims that because of judicial misconduct, he was denied a fair hearing and thus was denied due process of law.
Probation from serving a sentence is an act of grace by the sentencing judge and is granted as a privilege, not as a matter of right. The judge, when granting probation, has broad powers to impose conditions designed to serve the accused and the community.
K.S.A. 1985 Supp. 22-3716, which governs probation revocation hearings, provides a method to determine if the probationer has violated the terms of his probation. A court may issue a warrant for the arrest of a probationer for an alleged violation of any of the conditions of release. If the violation is established, the judge may continue or revoke the probation. Proof beyond a reasonable doubt of a violation of the probation is not required by the statute or the Constitution. State v. Rasler, 216 Kan. 292, 532 P.2d 1077 (1975). When a judge conducts a hearing to determine whether a probationer has violated the terms and conditions of the probation, the probationer may not be denied the right to “due process” during the hearing.
At a minimum, the essential elements of due process of law in a hearing affecting a person’s life, liberty or property are notice and an opportunity to be heard at a meaningful time and in a meaningful manner. State v. Pearson, 234 Kan. 906, 678 P.2d 605 (1984).
Proceedings in court should be so conducted as to reflect the importance and seriousness of the inquiry to ascertain the truth. Throughout the hearing, Judge Watson made comments regarding the evidence submitted by the accused probation violator. During the hearing, the judge repeatedly took over the examination of the witnesses. Occasionally, the judge expressed to the attorney for the defendant his opinions and that his “patience was wearing thin.”
Canon 3 of the rules relating to judicial conduct requires that a judge be patient, dignified, and courteous. 235 Kan. clxiii. A judge should accord to every person who is legally interested in a proceeding, or his lawyer, full right to be heard according to law. He should exercise restraint over his conduct and utterances. If it becomes necessary during a proceeding for the judge to comment upon the conduct of witnesses, counsel or the testimony, he should do so in a firm, dignified and restrained manner, avoiding repartee and refraining from unnecessary disparagement of persons or issues.
Allegations of judicial misconduct during a probation revocation hearing must be decided on the particular facts and circumstances surrounding such alleged instances of misconduct. In order to warrant or require the granting of a new hearing it must affirmatively appear that the conduct was of such a nature that it prejudiced the substantial rights of the complaining party.
The record on appeal is examined and it is determined that, under the circumstances, since the matter was not one tried to a jury, the district judge did not commit prejudicial error by his conduct. The evidence is uncontradicted that Starbuck was in violation of the terms of his probation. Judges may not act arbitrarily in revoking probation, but all that is required for revocation is evidence and facts which reasonably satisfy the judge that the probationer has violated a condition of his probation.
The order revoking the defendant’s probation is affirmed.
Prager, J., concurs in the result. | [
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The opinion of the court was delivered by
Miller, J.;
The defendant, Richard G. Harrold, entered pleas of guilty to charges of aggravated incest, K.S.A.. 1985 Supp. 21-3603(2)(a), a class D felony, and aggravated criminal sodomy, K.S.A. 1985 Supp. 21-3506, a class B felony. His pleas were accepted by the trial court, he was found guilty of those offenses, and he was subsequently sentenced at a separate sentencing hearing after psychological and presentence reports were received by the trial court. He appeals, contending that the trial court abused its discretion in imposing an excessive sentence upon him and by failing to consider the legislatively mandated factors set forth in K.S.A. 21-4601 and 21-4606.
The first issue facing us in this appeal is the matter of jurisdiction. In State v. Haines, 238 Kan. 478, 712 P.2d 1211 (1986), a majority of the court held that one who pleads guilty may not, by direct appeal, challenge his sentence or the denial of probation; his only remedy is by way of a K.S.A. 60-1507 motion. We noted that an appellant who challenges the sentence imposed upon him raises no justiciable issue on appeal in the absence of an allegation that the sentence was the result of partiality, prejudice, or corrupt motive or that it exceeds the statutory limits. We concluded that we had no jurisdiction to entertain Haines’s appeal. The sentences imposed on Harrold by the trial court are clearly within the limits fixed by statute, and he does not allege that the sentences were the result of partiality, prejudice, or corrupt motive. Harrold pled guilty. Clearly, under our opinion in Haines, we would not have jurisdiction. We deem it appropriate at this time to review that decision in the light of both earlier and later cases.
K.S.A. 22-3602(a) provides:
“An appeal to the appellate court having jurisdiction of the appeal may be taken by the defendant as a matter of right from any judgment against said defendant in the district court and upon appeal any decision of the district court or intermediate order made in the progress of the case may be reviewed, except that no appeal shall be taken by the defendant from a judgment of conviction before a district judge or associate district judge upon a plea of guilty or nolo contendere, except that jurisdictional or other grounds going to the legality of the proceedings may be raised by the defendant as provided in K.S.A. 60-1507.”
K.S.A. 21-3110, a part of the Kansas Criminal Code, defines various words and phrases. Subsection (4) reads:
“(4) ‘Conviction’ includes a judgment of guilt entered upon a plea of guilty.”
K.S.A. 22-2201(2), a section of the Kansas Code of Criminal Procedure, provides:
“(2) Words or phrases not defined in this code but which are defined in the Kansas criminal code shall have the meanings given therein except when a particular context clearly requires different meanings.”
Prior to the enactment of K.S.A. 22-3602, quoted above, K.S.A. 1972 Supp. 22-3601 provided in substance that no appeal could be taken by the defendant from a judgment of conviction upon a plea of guilty or nolo contendere. In State v. Dunham, 213 Kan. 469, 517 P.2d 150 (1972), the defendant pled guilty to the offense of taking indecent liberties with a ward. The imposition of sentence was suspended and he was placed on probation. Later, probation was revoked and defendant was sentenced. He filed a motion to set aside his plea of guilty and an additional motion for probation. The trial court denied these motions. Dunham appealed from his judgment of conviction, from the order revoking his probation, and from the overruling of his motion to withdraw his plea. The State filed a motion to dismiss the appeal, contending that the appeal was precluded by K.S.A. 1972 Supp. 22-3601. Under the circumstances of that case, we passed over the State’s motion to dismiss and considered the appeal on its merits.
In State v. Buckner, 223 Kan. 138, 574 P.2d 918 (1977), defendant, after a jury trial, contended on appeal that the trial couft abused its discretion in imposing a controlling 90-years-to-life sentence upon him. Though he did not allege partiality, prejudice, or corrupt motive, or that the sentences exceeded the statutory maximum, we entertained the appeal, and held that the action of the trial court was arbitrary, unreasonable, and an abuse of discretion. We vacated the sentence and remanded for resentencing.
In State v. Reeves, 232 Kan. 143, 652 P.2d 713 (1982), defendant entered a plea of guilty to one count of aggravated robbery and one count of aggravated burglary. After sentence was imposed, Reeves took a direct appeal, contending that the trial court based its sentencing decision upon improper rationale, failed to follow the dictates of the sentencing statute, and abused its discretion. Without referring to K.S.A. 22-3602 or otherwise discussing jurisdiction, we entertained the appeal.
In State v. Green, 233 Kan. 1007, 666 P.2d 716 (1983), defendant took a direct appeal from the sentence imposed and denial of probation after he had entered a plea of guilty to aggravated robbery. He did not challenge his conviction. He contended instead that the sentence imposed and the denial of probation constituted an abuse of discretion. We considered K.S.A. 22-3602(a) and concluded that the sentencing process follows a judgment of conviction but is separate and apart therefrom, and a majority of the court held that, while Green could not appeal from the judgment of conviction, he could appeal from the sentence imposed and from the denial of probation. We then reviewed the sentence, which was fixed within the permissible limitations of the applicable statute, and concluded that the sentence imposed and the denial of probation did not constitute an abuse of discretion of the sentencing court.
Green was followed by Haines, which overruled Green and held that one who pleads guilty may not take a direct appeal challenging the denial of probation or the sentence imposed. On the same day that the Haines opinion was decided, we handed down our unanimous opinion in State v. Booze, 238 Kan. 551, 712 P.2d 1253 (1986). In the trial court Booze entered a plea of guilty to two separate charges of driving while under the influence of alcohol. He appealed from the sentence imposed, contending that the trial court erred by failing to sentence him as a first offender on the second offense. Without discussing jurisdiction, we considered the merits of the appeal and affirmed.
Next came State v. Johnson, 239 Kan. 124, 716 P.2d 192 (1986). Johnson was convicted of first-degree murder and aggravated robbery upon his pleas of nolo contendere. He took a direct appeal, contending that the disparity between the sentences imposed upon him and the sentences imposed upon his codefendant constituted an abuse of judicial discretion. He made no claim that the sentences imposed were the result of partiality, prejudice, or corrupt motive, or that they exceeded the limitations prescribed by statute. Again, without discussing jurisdiction, we entertained the appeal and unanimously decided it upon its merits.
Finally, on June 13, 1986, we decided State v. Turner, 239 Kan. 360, 721 P.2d 255 (1986). Turner entered a plea of guilty and was later sentenced and placed on probation. His probation was revoked and he was committed to custody. He then filed a motion to withdraw his plea of guilty and after a hearing the trial court denied the motion. Turner appealed. The Court of Appeals considered his motion to set aside his plea of guilty as a proceeding under K.S.A. 60-1507 and assumed jurisdiction of the case. In an unpublished opinion, it reversed. We granted review. Without discussing jurisdiction, we considered the merits of the case and, upon the basis of an expanded record, reversed the Court of Appeals and affirmed the trial court. Also, see State v. Alsup, 239 Kan. 673, 722 P.2d 1100 (1986).
Under K.S.A. 22-3602(a), do we have jurisdiction of this appeal? We conclude that we do. Harrold is not challenging the judgment of conviction and indeed he may not do so by direct appeal under the statute (except, perhaps, under extremely rare factual circumstances not here involved). He is not appealing from or directly challenging the trial court’s denial of probation, and we need not deal with that subject. Harrold challenges only the sentence imposed, contending that the trial court abused its discretion in sentencing (1) by failing to consider the legislatively mandated factors and (2) by imposing an excessive sentence. We hold that one who pleads guilty or nolo contendere is not precluded by K.S.A. 22-3602 from taking a direct appeal from the sentence imposed. Further, an appellant need not allege that the sentence was the result of partiality, prejudice, or corrupt motive, or that it exceeds the statutory limits, in order to present a justiciable issue. Any defendant, whether convicted by plea or trial, may challenge his or her sentence on appeal. Statements to the contrary in State v. Haines, 238 Kan. 478, are overruled.
The defendant was convicted of aggravated incest, K.S.A. 1985 Supp. 21-3603(2)(a), a class D felony, in that he did “lewdly fondle and touch the person of [his eight-year-old daughter] with the intent... to arouse or satisfy [his] sexual desires . . . .” Also, he was convicted of aggravated criminal sodomy, K.S.A. 1985 Supp. 21-3506, a class B felony, in that he did “engage in oral copulation with [a five-year-old girl].”
Aggravated incest, a class D felony, is punishable by an indeterminate term of imprisonment, the minimum not less than two years nor more than three years and the maximum not less than five years nor more than ten years. K.S.A. 1985 Supp. 21-4501. For this offense, Harrold was sentenced to serve a minimum term of not less than two years nor more than eight years.
Aggravated criminal sodomy, a class B felony, is punishable by an indeterminate term of imprisonment, the minimum not less than five nor more than fifteen years and the maximum not less than twenty years nor more than life. K.S.A. 1985 Supp. 21-4501. For this offense Harrold was sentenced to serve a minimum term of not less than ten years and a maximum term of not more than thirty years. The sentences imposed, neither of which is the maximum term provided by statute, but both of which exceed the statutory mínimums, are to be served concurrently. The controlling sentence is thus the ten-to-thirty-year sentence.
K.S.A. 21-4601 states the legislative policy to be followed in the sentencing of criminal defendants. It reads:
“This article shall be liberally construed to the end that persons convicted of crime shall be dealt with in accordance with their individual characteristics, circumstances, needs, and potentialities as revealed by case studies; that dangerous offenders shall be correctively treated in custody for long terms as needed; and that other offenders shall be dealt with by probation, suspended sentence, or fine whenever such disposition appears practicable and not detrimental to the needs of public safety and the welfare of the offender, or shall be committed for at least a minimum term within the limits provided by law.”
This section does not enumerate factors to be considered but, as the 1968 Judicial Council report observes, “probably expressses the current objectives of the correctional process.” K.S.A. 21-4606 directs a sentencing court to fix the lowest minimum term which, in the opinion of the court, “is consistent with the public safety, the needs of the defendant, and the seriousness of the defendant’s crime.” Thereafter, that statute sets forth certain criteria which — while not controlling — are to be considered by a sentencing court in fixing the minimum term of imprisonment in each case. The trial court did not expressly discuss these on the record.
In State v. Buckner, 223 Kan. at 151, we said:
“The legislature has dictated, in K.S.A. 21-4606, certain minimum factors to be considered in imposing sentence. Although the statute may not require it, we feel that when the sentence exceeds the minimum, it is better practice for the trial court to make, as part of the record, a detailed statement of the facts and factors considered by the court in imposing sentence. Such a record would be of great assistance to the appellate courts in determining whether the trial court has abused its discretion. ‘Absent a statement of reasons, the record will not reveal whether the legislatively mandated factors have been considered.’ Commonwealth v. Riggins, [474 Pa. 115, 377 A.2d 140 (1977)].”
A trial court’s failure to make a detailed statement of the factors considered by the court in imposing sentence does not necessarily, in and of itself, demonstrate an abuse of discretion; each case must be separately considered on its facts. In the more recent case of State v. Richard, 235 Kan. 355, 366, 681 P.2d 612 (1984), we said:
“Although the trial court did not expressly consider the factors set forth in 21-4606 in sentencing the appellant, we do not believe the trial court abused its discretion in imposing a sentence in excess of the minimum allowed under K.S.A. 21-4501(c) on the aggravated battery charge. The evidence indicates the appellant twice made attempts upon the life of Darlene Bruner, the second of which was successful. No mitigating factors appear in the record for fixing a minimum sentence, such as grounds for excusing or justifying the appellant’s criminal conduct or conduct by the victim which induced or facilitated the defendant’s criminal conduct. The two sentences were ordered to run concurrently. Where indeterminate sentences are imposed on the same date and run concurrently, the shorter minimum terms merge in and are satisfied by serving the longest minimum term.”
The trial court in the case now before us heard extensive arguments by trial counsel. The report of Dr. Howard Brodsky, chief psychologist at the Sedgwick County Department of Mental Health, the report of the court services officer, and later the report of the Kansas State Reception and Diagnostic Center, were all before the court, and the contents and recommendations of each were pointed out to the judge in oral argument. These reports and recommendations were, of course, only advisory; the judge was not obliged to follow those recommendations. In the final analysis, it is the judge and the judge alone who determines the appropriate sentence or other disposition in each case. Our statutes do not provide for the fixing of sentences by a board of experts. Instead, the trial judge must fix the sentence to be served in the exercise of his or her best judgment, common sense, and judicial discretion, and considering all of the reports, the defendant’s background, the facts of the case, and the public safety. The sentencing judge here did not follow all of the recommendations contained in the various reports, nor was he obliged to do so.
Many of the factors enumerated in K.S.A. 21-4606 obviously have little application in this case. What compensation would be necessary to compensate the child victims for the harm caused by this defendant’s criminal conduct? The five- and eight-year-old victims could hardly be found to have induced or facilitated defendant’s criminal acts. What substantial grounds could excuse or justify the acts of this defendant in molesting these children? What was the degree of defendant’s provocation? Dr. Brodsky emphasized family stress as a cause, but this could not constitute provocation to perform acts such as those committed by the defendant against these little children. The extent of the harm caused these children cannot be measured with any degree of certainty at this time. Defendant’s intention is obvious from the acts committed. The only listed factor remaining is the extent of defendant’s history of prior criminal activity, and that was spelled out in the reports and argument. We cannot find from the record that there were important factors, whether enumerated in K.S.A. 21-4606 or not, which the trial judge failed to know and consider before sentencing this defendant.
The offenses involve two little girls, defendant’s daughter and a playmate. Defendant’s acts were atrocious. The defendant, a 28-year-old, 230-pound adult male, sodomized and otherwise molested two little girls, ages five and eight. In imposing sentence, the judge must consider, among others, two general objectives: protection of the public and reducing the likelihood of recurrence, or deterrence. See American Bar Association Standards Relating to Sentencing Alternatives and Procedures (1968), commentary to Standard 2.2, page 62; and Guides for Sentencing, published by the National Council on Crime and Delinquency (2d ed. 1974), pages 1,3. The trial court could have placed the defendant on immediate probation, but that would have had but a minimal deterrent or preventive effect, and would not have protected the public or, more specifically, the little children in the community. The judge could have imposed miniumum concurrent sentences, or he could have imposed maximum consecutive sentences. Instead, the judge chose a middle course, a bit longer sentence than the minimum possible under the statute, but half of the maximum. The sentences imposed are concurrent, and thus the controlling sentence is that imposed for aggravated criminal sodomy. It would' have been most helpful to this court had the trial judge stated the factors he considered important in imposing sentence, as suggested in Buckner. Nevertheless, under the factual background and the circumstances of this case, we hold that the judge did not abuse his discretion and the sentences imposed are not excessive.
The judgment is affirmed. | [
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Joseph Kevin Kirwan, of St. Joseph, Missouri, was admitted to the practice of law in Kansas on June 24, 1959. Thereafter, Mr. Kirwan practiced law in the State of Missouri. On August 22, 1985, during disciplinary hearings in the State of Missouri for alleged violation of the Code of Professional Responsibility, respondent voluntarily elected to surrender his license to practice law in Missouri. On the 21st day of November, 1985, the Supreme Court of Missouri accepted the respondent’s surrender of his license and entered its order disbarring the respondent.
Thereafter, counsel for the Missouri Bar Administration advised Arno Windscheffel, disciplinary administrator, of the action and order of the Missouri Supreme Court. On the 11th day of April, 1986, this Court issued an order to the respondent directing him to appear before the Court on the 2nd day of May, 1986, at 9:30 a.m. to show cause why he should not be disbarred in the State of Kansas. Respondent was advised that upon his failure to respond to the show cause order, he would “be disbarred without further proceedings.” Respondent failed to appear as ordered, although the records in the office of the clerk of the appellate courts verify that respondent personally received a copy of the order.
It is Therefore Ordered that Joseph Kevin Kirwan be and he is hereby disbarred from the practice of law in the State of Kansas and the clerk of the appellate courts is directed to strike his name from the roll of attorneys.
It is Further Ordered that the costs of this action be assessed to the respondent.
Effective this 13th day of June, 1986. | [
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The opinion of the court was delivered by
Prager, J.:
This is an action brought by the plaintiff, Theodore A. Nirschl, against the defendants, Don Webb, d/b/a Webb Produce Company, a licensed carrier and a resident of Oklahoma, and his liability insurance company, Paxton National Insurance Company (Paxton National), to recover damages for personal injuries and property damage sustained in an automobile collision. The case was tried twice to a jury. At the second trial, the jury found plaintiff Nirschl to be 51% at fault and defendant Webb to be 49% at fault. The trial court entered judgment in favor of defendant Webb on his counterclaim. Plaintiff appealed and defendants filed a cross-appeal.
This case arose out of a truck accident which occurred on U.S. Highway 169-160 (169) three miles north of Cherry vale, Kansas, on January 6, 1983. The testimony established that plaintiff Nirschl was driving south on the highway followed immediately by a truck driven by David Smith and then followed by the tractor-trailer of defendant Webb. The vehicles approached a “T” intersection where Highway 169 is intersected by Olive Street, a county road into Cherryvale. The highway near the intersection is not marked as a “no passing zone” by double yellow lines on the roadway, but instead is marked by a broken yellow line which is the road marking used where passing is permitted. The Smith vehicle came up behind the Nirschl vehicle and proceeded to pass the vehicle on the left side without difficulty. Immediately thereafter, the Webb tractor-trailer started to pass the Nirschl pickup. As the Webb vehicle came alongside, the Nirschl truck suddenly turned to the left to make a left turn at Olive Street. Marks made at the scene of the collision showed that Nirschl commenced his turn approximately 60 feet north of the intersection and that Nirschl drove his pickup directly into the right side of the defendant Webb’s vehicle. As a result of the collision, there was damage to both vehicles and plaintiff Nirschl suffered personal injuries.
Smith and Webb’s driver both testified that Nirschl gave no signal of any kind to warn of his intended turn at Olive Street, but simply turned left into the side of the Webb tractor-trailer. Nirschl admitted that he never saw Webb’s vehicle passing on his left prior to the impact but insisted that he gave a signal with his lights prior to making the turn.
Plaintiff Nirschl contended, in substance, that the cause of the accident was the act of the Webb vehicle in passing his vehicle within 100 feet of an intersection in violation of K.S.A. 8-1519, in failing to keep his vehicle under control, in failing to yield to the plaintiff who was making a left turn, and in failing generally to safely operate his vehicle. It was the position of defendant Webb that the plaintiff caused the collision by failing to give a proper left turn signal, failing to make a proper left turn, failing to keep a proper lookout, failing to keep his vehicle under control, and failing to keep his vehicle in the proper traffic lane. As might be expected from the factual circumstances in this case, the jury found both Nirschl and Webb’s driver to be negligent, finding plaintiff Nirschl to be 51% at fault and defendant Webb’s driver to be 49% at fault. The trial court entered judgment in favor of defendant on defendant’s counterclaim for damages suffered to defendant’s vehicle.
The first point raised by the plaintiff on the appeal is that the trial court erred in refusing to permit the case to go to trial before the jury with Paxton National as a named party defendant in the action. As noted heretofore, Paxton National was a named party in the action pursuant to K.S.A. 66-1,128 which gives to a party injured by a negligent insured motor carrier a direct cause of action against the insurance company. In its order, the trial court directed that Paxton National should remain a party in the case and that any judgment rendered against the defendant Webb should also result in a judgment against Paxton National. In holding that Paxton National should not be a named defendant at the trial before the jury, the court reasoned that the primary responsibility of the jury in a comparative negligence case is to determine the percentage of causal fault of those parties which may have been responsible for the accident. Because Paxton National could not have been at fault in the case, the trial court excluded it as a named defendant on the basis that the subject of insurance should not be injected into the case, thus eliminating a prejudicial element having no relevance on the issue of comparative fault.
The plaintiff contends that, because he had a direct cause of action against Paxton National under the provisions of K.S.A. 66-1,128 as the insurance company for the carrier Webb, Paxton National should have been a named defendant at the trial before the jury. According to plaintiff, if the carrier’s insurance company is directly liable, the jury must be so instructed prior to arriving at its verdict. The defendants argue that the trial court did not err in excluding Paxton National as a named defendant before the jury because of the legislative policy in Kansas that evidence of insurance of a party in a tort case should ordinarily be excluded because of the prejudice it creates.
We have concluded that the trial court did not err in excluding Paxton National as a named defendant at the trial where the jury determined the comparative fault of the two drivers involved in the collision. It is the law, of course, that under K.S.A. 66-1,128, a party injured by the negligence of an insured motor carrier has a direct cause of action in tort against the insurer. The purpose of that statute is discussed in Kirtland v. Tri-State Insurance Co., 220 Kan. 631, 556 P.2d 199 (1976), where this court held that K.S.A. 66-1,128 is not substantive, but is remedial in nature. It does not give the injured party any new rights or a new cause of action. The right to sue the insurance company directly is only a statutory remedy designed to assist the injured party in effectuating a successful recovery when liability of the motor carrier is established. The opinion in Kirtland, having characterized the direct action against the insurance company as being procedural and not substantive, held that an injured plaintiff would have two years to bring a suit against the carrier’s insurer, because the cause of action was one in tort and not based on statute.
It has long been the law of Kansas that, in an automobile collision case, evidence that a party was or was not insured against liability for harm suffered by another is generally inadmissible to show fault or lack thereof, because it is usually irrelevant to any of the issues in the case and may induce juries to decide cases on improper grounds. K.S.A. 60-454; Ayers v. Christiansen, 222 Kan. 225, 564 P.2d 458 (1977). The court in Ayers recognized that this general rule is qualified by a number of exceptions, and where the fact of insurance is relevant to some issue other than fault or lack thereof, it may be admissible.
In Klinzmann v. Beale, 9 Kan. App. 2d 20, 670 P.2d 67 (1983), the Court of Appeals was faced with the situation where an insurance company was a party to the litigation under K.S.A. 66-1,128 and the question arose whether its interest in the lawsuit should be disclosed to the jury. Klinzmann held that where an insurance company is a party to a lawsuit, it may be impossible to completely insulate the jury from knowledge of insurance. Thus, merely mentioning the insurance relationship between defendants in an action under K.S.A. 66-1,128 does not hold the same inherent prejudice as does the mention of insurance in an action where the insurer is not, and cannot legally be, a party. The court noted that the long-standing rule in Kansas is that the mere mention of defendant’s insurance in an automobile collision case is reversible error. This strict rule must be consid ered somewhat tempered, however, by the provisions of K.S.A. 66-1,128.
Schmidt v. Farmers Elevator Mutual Ins. Co., 208 Kan. 308, 491 P.2d 947 (1971), involved an action against the Farmers Co-op Grain and Supply Company (Co-op) and its insurance carrier, Farmers Elevator Mutual Insurance Company, after a fire consumed the plaintiff s garage as the result of negligence of a Co-op employee while working on a propane truck owned by the Co-op. The trial court sustained the motion of Farmers Elevator Mutual Insurance Company for dismissal from the lawsuit, even though, as the Co-op’s insurance carrier, it had been properly joined as a defendant under the provisions of K.S.A. 66-1,128. On appeal, this court held that the insurance company was a proper defendant in the action and that the trial court had erred in dismissing it from the lawsuit. This error, however, was held to be harmless. The court concluded that it was hard pressed to understand how the continued presence of the insurance carrier in the case could have had any bearing on the ultimate issues of liability between the plaintiff Schmidt and his adversaries.
We have concluded that the trial court in this case did not err in ruling that Paxton National Insurance Company should not be a named defendant at the trial of the case before the jury and that the jury should not be told that defendant Webb was insured by Paxton National. The sole issues being tried by the jury were the comparative fault of plaintiff Nirschl and defendant Webb’s driver and the damages suffered by the parties. There was no logical reason to inject the subject of insurance before the jury. Such a holding is consistent with the purpose of K.S.A. 60-454, which prohibits the admission of evidence of liability insurance before the jury to prove negligence and also with the legal principles governing the trial of comparative negligence cases in this state. The purpose of the comparative fault statute is to impose individual liability for damages based upon proportional fault of all of the parties responsible for the injury. A party is at fault when he is negligent and his negligence caused or contributed to the event which brought about the injury or damages for which the claim is made. Allman v. Holleman, 233 Kan. 781, Syl. ¶ 4, 667 P.2d 296 (1983). This court has held that where there is no evidence of causal negligence on the part of a person, the question of that person’s negligence need not be submitted to the jury. Wooderson v. Ortho Pharmaceutical Corp., 235 Kan. 387, Syl. ¶ 15, 681 P.2d 1038, cert. denied 105 S. Ct. 365 (1984).
In the present case, there was no claim of comparative fault on the part of defendant Paxton National. There was no good reason to advise the jury of the presence of the insurance company in the lawsuit. Paxton National properly remained a party for any appropriate judgment that might be required by the jury’s verdict finding its insured, defendant Webb, at fault.
We wish to emphasize that in this case a separate attorney for Paxton National did not actively participate in the case, so there was no need for further explanation to the jury. There may also be other situations where the circumstances will justify the trial court in advising the jury of the presence of an insurance company as a party to the case. We simply hold that it was not error for the trial court, under the factual circumstances in this case, to order that Paxton National Insurance Company not be named a defendant or otherwise mentioned at the trial before the jury.
The plaintiff s second point on the appeal is that the trial court erred in refusing to give certain instructions which the plaintiff requested. The instructions requested were essentially PIK Civ. 2d 8.16a, 8.16b, and 8.12. PIK Civ. 2d 8.16a simply requires a vehicle overtaking a vehicle proceeding in the same direction to pass to the left thereof at a safe distance and not to drive to the right of the roadway until safely clear of the overtaken vehicle. PIK Civ. 2d 8.16b provides, in substance, that no vehicle shall overtake a vehicle going in the same direction unless the left lane is clearly visible and is free of oncoming traffic for a sufficient distance ahead to permit the overtaking and passing to be completely made without interfering with the safe operation of any vehicle approaching from the opposite direction. PIK Civ. 2d 8.12 prohibits a person from driving a vehicle at a speed greater than is reasonable under the conditions and hazards then existing. We hold that the trial court did not err in refusing to give these requested instructions, because there was no evidence to justify instructions on those subjects.
The plaintiff s third point is that the trial court erred in giving instructions based on PIK Civ. 2d 8.22b, 8.26, and 8.03B as modified. PIK Civ. 2d 8.22b provides that the driver of a vehicle intending to turn left shall, when practical, make a left turn to the left of the center of the intersection. The effect of this section is to forbid premature turns before the intersection is actually reached. 8.26 requires that a signal by hand or arm or by signal lamp be given when a driver of a motor vehicle is making a left turn. 8.03B requires the driver of a vehicle to keep a lookout to the rear if the movement of his vehicle may affect the operation of a vehicle to the rear. We find no error in the giving of these instructions, because they concern alleged acts of negligence on the part of plaintiff which were claimed by the defendant and which were justified by the evidence.
The fourth point raised by plaintiff is that the trial court erred in allowing a highway patrolman to testify on cross-examination that, although the act of the driver of the Webb vehicle in overtaking a vehicle within 100 feet of an intersection was a violation of the Kansas statute, it was only a technical violation. He further testified that he would not have given the driver of the Webb vehicle a ticket for passing under the circumstance then existing. Later, at the specific request of Nirschl’s counsel, another trooper testified by deposition that no citation was issued to either Nirschl or the driver of the Webb vehicle at the accident scene.
An unsual situation was presented in this case. There was evidence that the accident occurred at an unmarked “T” intersection of a U.S. highway with a county road. Just before Webb’s driver, a nonresident of Kansas, started to pass, he had left a marked “no passing zone” at another intersection where he was prohibited from passing by a solid yellow line down the center of the highway. As he approached Olive Street, he noted that there were no signs posted which prohibited passing and there was a broken yellow line in the middle of the highway. Highways are marked by the Department of Transportation with a broken yellow centerline to show that passing is permitted at that point. Such a marking of the highway is provided for in the Manual on Uniform Traffic Control Devices for Streets and Highways § 3A-7, (3d rev. 1984). The legislature authorized the Secretary of Transportation to adopt the uniform system of traffic control devices. These regulations have the force and effect of law. Waits v. St. Louis-San Francisco Rly. Co., 216 Kan. 160, 531 P.2d 22 (1975); Every v. Jefferson Ins. Co. of N.Y., 4 Kan. App. 2d 715, 719, 610 P.2d 645 (1980).
It is obvious that K.S.A. 8-1519(a)(2), which prohibits a vehicle from overtaking on the left when approaching within 100 feet of an intersection, might not be complied with by a nonresident motorist at a place where the Department of Transportation has marked a highway with a broken yellow centerline which indicates to motorists that passing is permitted. These conflicting rules present particular problems where a well-traveled U.S. highway marked with a broken yellow centerline intersects with a section line county road which is not apparent to a driver on the main highway until he has actually arrived at the point of the intersection. It would be helpful to motorists if the legislature would address this conflict in the rules of the road.
We have concluded that, although the trial court should not have permitted the highway patrolman to testify that the defendant’s driver’s act of passing within 100 feet of the intersection was only a technical violation and that a citation was not warranted, this was not such a prejudicial error as to warrant reversal of the case in view of the court’s unqualified instruction that overtaking a vehicle on the left within 100 feet of an intersection is a violation of the law and where the jury found the driver of the defendant’s vehicle 49% negligent for that reason.
The plaintiff s fifth point is that the trial court erred in permitting the defendant’s driver to testify that he was ignorant of the law prohibiting the passing of another vehicle within 100 feet of an intersection. He testified that he thought the passing was completely permissible, because the road was clearly marked with a broken yellow centerline, which authorized passing at that point. We find no error in this ruling of the court. We believe that the instructions of the court properly advised the jury as to the applicable law and then left it up to the jury to allocate the causal negligence in the case.
The last point raised by the plaintiff on the appeal is that a new trial should be granted because of certain remarks of defendants’ counsel in his closing arguments. We have considered the record on appeal and concluded that counsel’s statement did not rise to a level of prejudice sufficient to justify a reversal of the case.
In view of our disposition of the issues on appeal, the issue raised in the cross-appeal of the defendants is moot and need not be considered.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
• Schroeder, C.J.:
The defendant, Lonnie Stewart McKibben, appeals from his conviction by a Saline County, Kansas, jury of second-degree murder. Issues asserted on appeal are whether the trial court erred in denying various pretrial motions made by the defendant, whether certain evidence concerning the victim should have been admitted at trial, whether the defendant was denied effective assistance of counsel, and whether the evidence is sufficient to support the defendant’s conviction.
A fifteen-year-old girl, Sheleen McClain, was found at approximately 8:30 a.m. on Saturday, November 3, 1984, sitting by a hedgerow in rural McPherson County. She was wearing only a cotton top and underpants. She had been shot in the back and was covered with blood. The victim was first taken to a Lindsborg hospital where it was decided to transport her to Salina. The victim died approximately one hour after her arrival at the Asbury Hospital in Salina, Kansas. Medical personnel questioned Ms. McClain if she knew who had shot her, but Ms. McClain turned away. A fresh, opened package of Benson & Hedges cigarettes was • recovered from the driveway into the field where the victim was found.
The preceding evening, Friday, November 2, 1984, Sheleen and her friend, Melody Hoeffner, had phoned the defendant, a 43-year-old Salina man, and asked him to take them to two football games. Melody had called the defendant before when she needed a ride. The number she would call belonged to Brenda Deupree, with whom the defendant used to live. The defendant drove a 1979 copper-colored Ford Pinto station wagon. The defendant picked the two girls up at 6:30 p.m., and drove them to the football games and anywhere else they wanted to go. The defendant took Sheleen home first at approximately 12:15 a.m. Then, before taking Melody home, the defendant stopped at a Quik Trip and bought two packages of Benson & Hedges cigarettes. Melody got home at approximately 12:45 a.m.
Melody testified the defendant had also given Sheleen and her a ride on Halloween, October 31, 1984. That was the first time Sheleen met the defendant. On both nights, Halloween and Friday, November 2, the defendant picked the girls up at Sheleen’s house. On November 2, Melody noticed two long guns in the defendant’s car.
Mr. Trow, who lived across the street from Sheleen, was leaving his house at approximately 1:40 a.m., on November 3, 1984, when he saw a white male at Sheleen’s door. Mr. Trow observed the man for twenty minutes. The man smoked a cigarette, walked to the side of Sheleen’s house, and then sat in a brown Ford Pinto station wagon with Saline County tags. When Mr. Trow returned at approximately 3:00 a.m, the car and the man were gone.
The defendant was interviewed by police Saturday afternoon at 1:45 p.m. (November 3), and admitted he had spent most of Friday evening with Melody and Sheleen. The defendant told police he took Sheleen home first, then Melody, and then went to Hardee’s for a cup of coffee. Then, as he was living out of his car, he parked somewhere between Western Sizzlin and Super 8 Motel and slept in his car. During the defendant’s interrogation the police noticed the defendant was wearing new shoes and smoking Benson & Hedges cigarettes.
One rifle, a .357, was recovered from the defendant’s car when he was arrested. The defendant had given a second rifle, a .284, to Brenda Deupree earlier that Saturday morning to pawn. Seven empty Benson & Hedges cigarette packages were found in the defendant’s car.
• The Benson & Hedges cigarette packages found near the victim’s body and those recovered from the defendant during police interrogation both had tax stamp number 43667 on their respective cellophane wrappers. The distributor who was assigned tax stamp number 43667 supplied the Salina Quik Trip stores with all their cigarettes in November 1984. On November 9,1984, a Benson & Hedges cigarette butt was found by police in the street in front of the victim’s house. An analysis of the cigarette butt showed it was smoked by a blood type A secretor. The defendant is a type A secretor.
The new pair of shoes defendant was wearing when he was arrested at 1:40 p.m., on November 3, 1984, had been purchased at 12:15 p.m., that same day. His old shoes were discovered in a ditch and an analysis showed the possible presence of blood. The jeans the defendant was wearing at the time of his arrest were also analyzed. The right rear pocket was stained with human blood, Type O, containing two genetic markers. The victim’s blood sample was found to be Type O and contained the same two genetic markers.
An autopsy revealed the victim had recently experienced forceful sexual intercourse and the victim had had sex within twelve hours preceding her death. The victim was on her menstrual period at the time of her death. Analysis of the defendant’s penile washings contained blood.
The defendant was charged with first-degree murder and was convicted of second-degree murder. After the Habitual Criminal Act was invoked, the defendant was sentenced to a prison term of 30 years to life.
The defendant made three pretrial motions, all of which were denied by the trial court. The defendant argues on appeal it was error to deny these motions.
The first is defendant’s motion to dismiss for improper venue. The applicable statute is K.S.A. 22-2611 which states, “If the cause of death is inflicted in one county and the death ensues in another county, the prosecution may be in either of such counties. Death shall be presumed to have occurred in the county where the body of the victim is found.”
Here, the victim was found alive in McPherson County, Kansas, along a roadway, about % mile south of the Saline/McPherson County line. She was first taken to a hospital in Lindsborg, Kansas, (McPherson County) where she was treated by Dr. Loder. Dr. Loder determined the victim required surgery which the Lindsborg hospital could not provide in time because surgeons and nurses would have to be called in from out of town. The decision was made to transport her to Asbury Hospital in Salina, Kansas, where surgeons were available. Dr. Loder accompanied the victim in the ambulance, and testified she was still alive when they reached the Asbury Hospital emergency room. They arrived at Asbury Hospital at 9:49 a.m. The victim later died in the operating room at approximately 11:05 a.m.
The defendant argues venue lies in McPherson County and not Saline County. He argues the victim was all but officially dead upon her arrival at Asbury Hospital and the “last ditch effort” to save her life by transporting her to Salina is not sufficient to vest venue in Saline County. He argues venue should not be subject to an official pronouncement of death.
The defendant argues the presumption that death occurred in the county where the body was found was not overcome in this case. Legislative research does not reveal the intent of the legislature in amending K.S.A. 22-2611 in 1970 to include such a presumption. However, clearly the presumption is necessary in cases where a dead body is discovered and it is not known where death occurred. Here, the evidence clearly establishes death occurred in Saline County.
The defendant’s arguments are without merit and the trial court did not err in refusing to dismiss for lack of venue in Saline County. The victim was found alive in McPherson County, where it is assumed she had been shot. She was alive when she arrived in Asbury Hospital in Saline County, and she died there approximately an hour later. Under the facts of this case, K.S.A. 22-2611 clearly provides that venue is proper in either McPherson County where the cause of death was inflicted, or in Saline County where death ensued.
The defendant also filed a motion for a change of venue based on prejudicial pretrial publicity in the event the trial court ruled venue was proper in Saline County. This motion was denied and the defendant asserts such denial was improper because he established prejudice as a demonstrable reality. In support of his motion for a change of venue, the defendant submitted copies of 14 local newspaper articles, 30 local radio news broadcasts, and 25 affidavits of Saline County residents who stated defendant could not receive a fair and impartial trial at the hands of a jury in Saline County.
K.S.A. 22-2616(1) allows a change of venue once “the court is satisfied that there exists in the county where the prosecution is pending so great a prejudice against the defendant that he cannot obtain a fair and impartial trial in that county.” The granting of a change of venue lies within the sound discretion of the trial court. State v. Sanders, 223 Kan. 273, 280, 574 P.2d 559 (1977). The burden is on the defendant to establish prejudice as a demonstrable reality, and not as a matter of speculation. Specific facts and circumstances must be established to indicate it will be practically impossible for the defendant to obtain an impartial jury to try the case. State v. Haislip, 237 Kan. 461, 485-86, 701 P.2d 909, cert. denied _ U.S. _ (1985); State v. Hill, 233 Kan. 648, 650-51, 664 P.2d 840 (1983). Media publicity alone will not establish prejudice per se. State v. May, 227 Kan. 393, 395, 607 P.2d 72 (1980); State v. Gander, 220 Kan. 88, 92, 551 P.2d 797 (1976). Nor does the mere inclusion of identical conclusory type affidavits, as here, establish prejudice. State v. Foy, 224 Kan. 558, 562, 582 P.2d 281 (1978); State v. Black, 221 Kan. 248, 249, 559 P.2d 784 (1977).
We have reviewed the newspaper articles, radio releases, and affidavits submitted by the defendant to the trial court and find the trial court did not abuse its discretion in denying the defendant’s motion for a change of venue. The reports were published or released over three months prior to trial and for the most part the reports were factual, objective, and matters of public interest. The defendant did not request that a transcript of the voir dire be prepared and, therefore, we cannot review whether any prospective juror had viewed the articles or the photograph of the defendant in handcuffs and prison garb, or heard the other reports. The affidavits submitted are identical and conclusory in their wording to the effect that the defendant cannot receive a fair and impartial trial in Saline County, Kansas. Here, the defendant failed to establish prejudice beyond the level of speculation and the trial court did not err in denying his motion to change venue.
The defendant argues the trial court erred in denying his motion to appoint a special prosecutor. Here, the defendant was found to be indigent and Julie McKenna, public defender, was appointed to represent the defendant at the time of his first appearance on November 5, 1984. Ms. McKenna represented the defendant from that time until an order was entered on December 28, 1984, permitting her to withdraw. During that time, Ms. McKenna represented the defendant at his preliminary hearing and his arraignment, and had filed various motions such as motions to dismiss for lack of venue. Ms. McKenna sought leave to withdraw because she had accepted a job effective March 1, 1985, as an assistant Saline county attorney.
A hearing was held February 5,1985, on defendant’s motion to appoint a special prosecutor. No testimony was given but oral arguments were heard. The defendant requested either the entire three-person staff of the Saline County prosecutor’s office be disqualified or, in the alternative, restraints be placed on Ms. McKenna. The Saline county attorney, Mickey Mosier, represented to the court he had prosecuted the case from its inception and would continue to do so. He stated Ms. McKenna would have no responsibilities with this case and there would be no communication with her about the case. The trial court denied the defendant’s motion to disqualify the entire county attorney’s staff. The trial court stated it felt comfortable in believing Ms. McKenna fully understood her ethical obligations not to participate, either directly or indirectly, in the prosecution of the defendant. In order to avoid the appearance of impropriety, the trial court specifically disqualified Ms. McKenna from engaging directly or indirectly in the prosecution of the defendant.
The defendant argues the trial court’s order precluding Ms. McKenna from any participation is not a sufficient precaution to insure public confidence and avoid the appearance of impropriety.
The trial court properly disqualified Ms. McKenna from any direct participation and that issue is not raised on appeal. See State v. Leigh, 178 Kan. 549, 552-53, 289 P.2d 774 (1955). The issue is whether the entire staff of the county attorney’s office should be disqualified because of Ms. McKenna’s former representation of the defendant.
Whether an entire prosecuting staff should be disqualified because one prosecuting attorney has formerly represented the defendant on a prior, unrelated, criminal matter was discussed in State v. Laughlin, 232 Kan. 110, 114, 652 P.2d 690 (1982). It was stated:
“In any particular case where the issue is raised, the trial court must determine whether the prosecutor, by reason of his prior professional relationship with the accused, has obtained knowledge of facts upon which the later case is predicated or facts which are closely interwoven therewith. The important consideration is to protect the confidence inherent in the attorney-client relationship and thus to avoid a breach of trust between the client and his attorney. The determination of whether there is a conflict of interest actually present or whether the prior relationship creates an appearance of impropriety lies within the sound discretion of the trial court. In re Estate of Richard, 4 Kan. App. 2d 26, 31, 602 P.2d 122 (1979).”
The defendant in Laughlin admitted there was no actual breach of confidence or prejudice shown and this court ruled the trial court did not abuse its discretion in refusing to disqualify the entire district attorney’s office from participating in the trial of the accused.
Here, Ms. McKenna represented the defendant on the very matter for which he was being prosecuted. There is a split in authority concerning whether the entire staff of a prosecutor’s office should be disqualified in such a case.
Some states have adopted a per se disqualification rule, i.e., the mere appearance of impropriety alone is enough to warrant disqualification of an, entire prosecuting office based on one member’s prior representation of the defendant in the same prosecution. Disqualification is necessary irrespective of whether confidences were breached or prejudice to the defendant resulted. See State v. Latigue, 108 Ariz. 521, 502 P.2d 1340 (1972); People v. Stevens, 642 P.2d 39 (Colo. App. 1981); Banton v. State, 475 N.E.2d 1160 (Ind. App. 1985); State v. Croka, 646 S.W.2d 389 (Mo. App. 1983); State v. Chambers, 86 N.M. 383, 524 P.2d 999 (1974); People v. Shinkle, 51 N.Y.2d 417, 434 N.Y.S.2d 918, 415 N.E.2d 909 (1980); State v. Cooper, 63 Ohio Misc. 1, 409 N.E.2d 1070 (1980).
A majority of the jurisdictions, however, have refused to adopt such a blanket rule. These courts look at the circumstances of the particular case to determine whether confidences have been breached resulting in prejudice to the defendant, and whether the defendant’s former attorney participated in any way in prosecuting the defendant. If any impropriety is found, the entire office must be disqualified. The trial court makes such a determination and absent an abuse of discretion the appellate court will not reverse. See Hannon v. State, 48 Ala. App. 613, 266 So. 2d 825 (1972); Upton v. State, 257 Ark. 424, 516 S.W.2d 904 (1974); Chadwick v. Superior Court, 106 Cal. App. 3d 108, 164 Cal. Rptr. 864 (1980); State v. Jones, 193 Conn. 70, 475 A.2d 1087 (1984); Thompson v. State, 246 So. 2d 760 (Fla. 1971); Surrette v. State, 251 So. 2d 149 (Fla. Dist. App. 1971); State v. Orozco, 202 N.W.2d 344 (Iowa 1972); State v. Bell, 346 So. 2d 1090 (La. 1977); State v. Brown, 274 So. 2d 381 (La. 1973); Young v. State, 297 Md. 286, 465 A.2d 1149 (1983); Pisa v. Commonwealth, 378 Mass. 724, 393 N.E.2d 386 (1979); Collier v. Legakes, 98 Nev. 307, 646 P.2d 1219 (1982); State v. Cline, 122 R.I. 297, 405 A.2d 1192 (1979); State v. Smart, 278 S.C. 515, 299 S.E.2d 686 (1982), cert. denied 460 U.S. 1088 (1983); Mattress v. State, 564 S.W.2d 678 (Tenn. Crim. App. 1977); State v. Miner, 128 Vt. 55, 258 A.2d 815 (1969). Accord United States v. Caggiano, 660 F.2d 184 (6th Cir. 1981), cert. denied 455 U.S. 945 (1982). See also Annot, 31 A.L.R.3d 953.
The American Bar Association committee on professional ethics has also ruled that it is not necessary to disqualify the entire governmental office. The individual lawyer should be screened from having direct or indirect participation in the matter and communication with colleagues concerning the prosecution is prohibited. Formal Opinion 342, 62 A.B.A.J. 517 (1976).
We choose to follow the majority of jurisdictions and reject the per se rule of disqualification. In the instant case, the trial court ordered Ms. McKenna not to participate directly or indirectly in the defendant’s prosecution. Mr. Mosier, the county attorney, represented to the trial court there would be no communication with her concerning the defendant’s case. Thus, the confidences inherent in the attorney-client relationship between the defendant and Ms. McKenna were protected. We find the trial court did not abuse its discretion in refusing to appoint a special prosecutor.
The defendant next argues the trial court erred regarding the admission of evidence. First, the defendant argues the victim’s blood samples were inadmissible and, second, the defendant argues evidence taken from the victim’s bedroom was admissible.
The trial court overruled defendant’s objection based on lack of foundation in allowing the admission of the victim’s blood samples. The defendant argues the evidence is inadequate to show the blood sample did not contain transfused blood.
The issue in Divine v. Groshong, 235 Kan. 127, 679 P.2d 700 (1984), was whether a blood test not taken in compliance with K.S.A. 8-1001 is admissible in a civil negligence case. The following language of the court in determining that issue is applicable to the issue raised in the instant case:
“If the blood sample is taken under appropriate conditions to guard against contamination, if the sample is properly marked and conveyed to the laboratory, if the chemical testing is properly conducted by competent personnel, and if the test results are relevant and material to the issues presented in the litigation, then those results are admissible in a civil action whether or not they are taken in conformity with the statute.” 235 Kan. at 133.
See also Annot., 2 A.L.R.4th 500.
Here, the defendant is not complaining that the proper chain of custody was not established after the blood sample was drawn from the victim. Rather, the defendant is complaining that at the time the blood was drawn, the evidence is inadequate to show the victim had not already received a blood transfusion which contaminated the blood sample from the beginning.
Dr. Loder, the victim’s treating physician at the Lindsborg hospital, testified no attempt was made to give the victim any whole blood either in Lindsborg or in the ambulance on the way to the Salina hospital. Dr. Loder testified that, upon arrival at the emergency room in Salina, blood was drawn from the victim before fluids of any kind were given. The blood was then given to Mr. Emler, the emergency medical technician who had transported the victim from the scene of the crime to the Lindsborg hospital and then to the Salina hospital. Mr. Emler testified no blood transfusions were given before he handed the blood sample to the medical technologist for blood typing. Barbara Mallon, the medical technologist, testified she did not know whether blood transfusions had been given at the time she received the blood sample from Mr. Emler. While medical records indicate that blood was checked out to the victim within two minutes of her arrival at the emergency room, that does not establish transfusions were given prior to the drawing of the sample. The State established to the satisfaction of the trial court that the victim’s blood sample had not been contaminated; therefore, the trial court did not err in allowing the blood sample to be admitted into evidence and in permitting the forensic serologist to testify concerning his findings.
At two different times during the trial, the defendant attempted to have admitted into evidence a package of Winston cigarettes and two condoms found in the victim’s bedroom. The defendant offered the evidence as relating to the character of the victim. Each time the court sustained the State’s objection on the ground of relevancy. The defendant’s argument on appeal that the trial court erred is without merit. Relevant evidence is any evidence having any tendency to prove any material fact. K.S.A. 60-401, State v. Gauger, 200 Kan. 563, 565, 438 P.2d 463 (1968). The character of the victim was not an issue, and the trial court properly held the evidence irrelevant.
The defendant argues he was denied the effective assistance of counsel. On appeal the defendant cites five specifics to establish Mr. Robertson’s representation of him was ineffective: (1) Mr. Robertson made no objection to the introduction of the defendant’s two weapons when there was no evidence connecting them to the victim’s death; (2) he failed to obtain ballistics testing on the two weapons; (3) he failed to lay proper foundation for the expert testimony of a gunsmith; (4) he failed to call several witnesses who had been subpoenaed to testify for the defendant; and (5) he failed to request an instruction regarding venue.
In State v. Van Cleave, 239 Kan. 117, 716 P.2d 580 (1986), this court held that in an appeal from conviction of a crime, the allegation that the defendant did not have effective assistance of counsel will not be considered for the first time on appeal. Our holding to the contrary in State v. Pink, 236 Kan. 715, 696 P.2d 358 (1985), was overruled. The procedure to be followed to properly present the issue on appellate review is stated in State v. Van Cleave. The trial court must first be given the opportunity to rule upon the issue.
Additionally, much deference and reliance must be placed upon the wisdom and determination of the trial judge who viewed the entire proceedings first hand. Chamberlain v. State, 236 Kan. 650, 659-60, 694 P.2d 468 (1985).
Here the appellant filed a motion in the trial court for appointment of new counsel on April 23, 1985, on the ground that he was dissatisfied with his present counsel. The motion was signed by the appellant, and his trial counsel certified delivery of the motion for the appellant upon the prosecuting attorney. The motion was scheduled for hearing and heard by the trial court upon arguments presented by the appellant and the prosecuting attorney. The trial court by an order filed April 29, 1985, denied the motion for appointment of new counsel. The substance of the foregoing is that the issue concerning incompetence of trial counsel was never effectively presented to the trial court. We adhere to State v. Van Cleave and will not consider the issue on ineffective assistance of counsel raised for the first time on appeal.
Finally, the defendant argues the circumstantial evidence is insufficient to support his conviction. The defendant argues that to conclude the defendant is guilty beyond a reasonable doubt requires the stacking of inference upon inference.
The scope of review applicable when the sufficiency of the evidence is challenged on appeal has been often stated: the question is whether the evidence, when viewed in a light most favorable to the prosecution, convinces the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. The. appellate court looks only to the evidence in favor of the verdict to determine if the essential elements of the charge are sustained. State v. Zuniga, 237 Kan. 788, 794, 703 P.2d 805 (1985). When considering the sufficiency of circumstantial evidence to sustain a conviction on appeal, the appellate court’s function is limited to ascertaining whether there is a basis in the evidence for the jury’s verdict. If the essential elements of the charge are supported by any competent evidence, the conviction must stand. State v. Soverns, 215 Kan. 775, 529 P.2d 181 (1974). A conviction of even the gravest offense may be sustained by circumstantial evidence. State v. Hanks, 236 Kan 524, Syl. ¶ 3, 694 P.2d 407 (1985).
We find the circumstantial evidence introduced at trial is sufficient to support the defendant’s conviction of second-degree murder. The victim was shot in the back and left to die in a field in the country. The defendant had spent the previous evening with the victim. The defendant had given one of his friends a rifle to pawn the next morning. The right rear pocket of defendant’s jeans had blood smears which matched the blood of the victim. Only ten percent of the population have blood similar to the victim’s, containing the two genetic markers. A package of Benson & Hedges cigarettes recovered from the defendant at the time of his arrest and another package recovered near the victim’s body had the same tax stamp number — 43667. The supplier who was assigned that tax stamp number distributed Benson & Hedges cigarettes to Quik Trip stores in Salina. Melody Hoeffner testified the defendant stopped at a Quik Trip store after he had taken Sheleen home in the early morning hours of November 3, 1984, and bought two packages of Benson & Hedges cigarettes. At the time of his arrest, the defendant was wearing new shoes, purchased approximately one hour earlier. His old shoes were recovered from a ditch, and an analysis showed the possible presence of blood. The victim had been involved in a forceful act of sexual intercourse within twelve hours of her death. Seminal fluid was found on the inside of the fly of defendant’s jeans. The victim had been on her menstrual period when she died. The defendant was found to have blood on his penis.
The probative value of each bit of circumstantial evidence permitting its individual inference was for the jury to determine, and the accumulation of these inferences supports the jury’s finding of guilt beyond a reasonable doubt. There was no stacking of inference upon inference to establish guilt.
The defendant asserts the inconsistencies in Mr. Trow’s testimony cause the evidence to be insufficient to establish the defendant was with the victim at 1:40 a.m., on November 3,1984. The credibility of witnesses is within the province of the trier of fact, and not the appellate court. It is not the duty of this court to weigh the evidence. State v. Holt, 221 Kan. 696, 700-01, 561 P.2d 435 (1977).
The evidence, while circumstantial, could lead a rational fact-finder to find the defendant guilty beyond a reasonable doubt.
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|
The opinion of the court was delivered by
Holmes, J.:
Arthur L. Coleman and Arnold L. Baker appeal their convictions in a joint trial of one count of aggravated robbery (K.S.A. 21-3427). Although separate appeals were perfected by each appellant, the cases have been consolidated for argument and opinion in this court. The appellants raise several common issues and, in addition, Baker raises issues relating to the admission in evidence of statements made by his codefendant Coleman and the instructions given the jury.
Each appellant had originally been charged with two counts of aggravated robbery. Count I of the original complaint charged Tyrone J. Long, Arnold L. Baker, and Arthur L. Coleman with one count of aggravated robbery of a liquor store in Wichita on December 11,1984. Count II charged the same three individuals with a second count of aggravated robbery which was alleged to have occurred on the same date at the Ken-Mar Amoco gas station located at 13th and Oliver Streets in Wichita. Long was granted a separate trial. Appellants Baker and Coleman, in a joint trial, were acquitted of Count I; therefore, only the facts surrounding the robbery of the gas station need be set forth.
On the evening of December 11, 1984, Paula Wendler was working at the Ken-Mar Amoco station. Around 11:30 p.m. she was approached by two black males and robbed at gunpoint. As the robbers fled, Wendler telephoned the police and reported the robbery. At the time of the robbery, Wichita Police Officers Bradley S. Agnew and Max Tenbrook were parked in separate patrol cars, several blocks from the gas station, discussing a call to which they had just responded. When the two officers heard the gas station robbery dispatch they responded, each traveling different side streets en route to the robbery location. While proceeding to the Amoco station, Officer Agnew encountered a white two-door Chevrolet Cavalier approaching from the opposite direction. As the vehicles passed one another, Agnew shined the alley light from his patrol car on the white Chevrolet and observed the car to be occupied by three black males, each dressed in dark clothing. Based on the dispatcher’s description that the robbers were two black males dressed in black jackets and wearing blue jeans, Officer Agnew turned his patrol car around intending to stop the Chevrolet and check its occupants. Meanwhile, after passing the squad car, the Chevrolet turned at the next intersection, proceeded a short distance, and parked at the curb with its lights out. Officer Agnew pulled his squad car up behind the white Chevrolet, turned on his emergency equipment, and instructed the occupants to get out of the car. At trial Agnew identified the appellants as two of the men who had exited the Chevrolet. As the three men vacated their vehicle, leaving both front doors standing open, Officer Tenbrook arrived and proceeded to pat them down and then handcuffed them. As the three men were being handcuffed, Officer Agnew looked inside the Chevrolet from the driver’s side and saw one $10.00 bill laying between the seat and the door. He walked around to the passenger’s side of the vehicle and observed a large wad of money stuffed under the passenger seat and the barrel of a firearm protruding from underneath the seat. All of these items were in plain view of the officer who was outside the automobile. The men were then arrested, advised of their Miranda rights and briefly interrogated at the scene. All three of the men were transported, in separate vehicles, to the Amoco station, where the attendant could positively identify only Tyrone Long as a perpetrator of the robbery. (Long was tried and convicted in a separate proceeding and is not a party to this appeal.) At trial, however, she was also able to identify Arnold L. Baker as the other robber who entered the Amoco station. Baker and Coleman were convicted of robbing the Amoco station and this appeal followed.
Appellants filed a motion in the trial court to quash their arrests and to suppress all evidence obtained incident thereto. Following a hearing the motion was overruled by the trial court. The principal arguments raised by the appellants constitute a cluster of issues in which they claim the initial stop, their arrest, the search of the vehicle and the admission of testimony and physical evidence were all improper under the Fourth Amendment protections from “unreasonable searches and seizures.”
The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . .” The amendment protects people, not places, and is aimed at the preservation of the individual’s reasonable expectation of privacy. Katz v. United States, 389 U.S. 347, 351-53, 19 L. Ed. 2d 576, 88 S. Ct. 507 (1967). This expectation of privacy includes automobiles under appropriate circumstances. United States v. Hensley, 469 U.S. 221, 83 L. Ed. 2d 604, 105 S. Ct. 675 (1985). The Fourth Amendment applies to all seizures of the person, including seizures that involve only a brief detention short of traditional arrrest. United States v. Brignoni-Ponce, 422 U.S. 873, 878, 45 L. Ed. 2d 607, 95 S. Ct. 2574 (1975). “[W]henever a police officer accosts an individual and restrains his freedom to walk away, he has ‘seized’ that person.” Terry v. Ohio, 392 U.S. 1, 16, 20 L. Ed. 2d 889, 88 S. Ct. 1868 (1968).
In the landmark case Terry v. Ohio, 392 U.S. 1, the Supreme Court recognized a limited exception to the probable cause and warrant requirements of the Fourth Amendment. In Terry a police officer had observed suspicious or unusual conduct by the defendant and two other men. Concluding that the suspects were contemplating a robbery, the officer stopped and frisked them and found they were carrying weapons. On appeal the defendant claimed the stop and frisk conducted by the police officer violated the Fourth Amendment. After thoroughly discussing the factors to be considered in resolving the issue, Chief Justice Warren, writing for the court, acknowledged that a “narrowly drawn” exception to the Fourth Amendment probable cause requirement existed under the circumstances. The court held that the search was reasonable in view of Fourth Amendment prerequisites, and that the guns which had been seized were properly admitted at trial. The court stated that prior to stopping the defendant, the officer had a reasonable belief that criminal activity was afoot and that the persons might be armed and dangerous. The court went on to propound a two-faceted approach for assessing the reasonableness of an investigative stop which falls short of a full arrest. The determination must be made, (i) whether the officer’s conduct was justified at its inception, and (ii) whether it was “reasonably related in scope to the circumstances which justified the interference in the first place.” 392 U.S. at 20.
In United States v. Cortez, 449 U.S. 411, 66 L. Ed. 2d 621, 101 S. Ct. 690 (1981), the court examined the quantum of evidence necessary to support a stop by police, stating:
“Courts have used a variety of terms to capture the elusive concept of what cause is sufficient to authorize police to stop a person. Terms like ‘articulable reasons’ and ‘founded suspicion’ are not self-defining; they fall short of providing clear guidance dispositive of the myriad factual situations that arise. But the essence of all that has been written is that the totality of the circumstances — -the whole picture — must be taken into account. Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal- activity.” 449 U.S. at 417-18.
In Kansas, the guidelines for investigative stops are set forth in K.S.A. 22-2402(1), which provides:
“Stopping a suspect. (1) Without making an arrest, a law enforcement officer may stop any person in a public place whom he reasonably suspects is committing, has committed or is about to commit a crime and may demand of him his name, address and an explanation of his actions.”
Thus a stop and frisk under Terry and K.S.A. 22-2402 requires that the officer have a reasonable and articulable suspicion, based on facts known to him or her prior to the stop, that the individual stopped has committed, is committing, or is about to commit a crime. In State v. Epperson, 237 Kan. 707, 703 P.2d 761 (1985), Justice Miller thoroughly reviewed numerous Kansas cases applying the statutory and constitutional limitations to a stop and frisk encounter and we will not repeat here what was so eloquently stated therein.
Basically, it is the position of the appellants that the facts known to Officer Agnew were insufficient to constitute the basis for a reasonable and articulable suspicion that the appellants had committed, were committing or were about to commit a crime. If the facts are insufficient to meet the constitutional and statutory requirements for the initial detention, then the physical evidence of money and a firearm, together with the statements of the three individuals and any other evidence drived therefrom, are alleged to be inadmissible as evidence under the fruit of the poisonous tree doctrine as promulgated in Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963).
Were the facts known to Officer Agnew sufficient to support the trial court’s finding that he possessed the reasonable suspicion necessary to stop and detain the appellants and Long? We think they were. Officers Agnew and Tenbrook were approximately sixteen blocks from the scene of the armed robbery when the dispatch reporting the robbery came over the police radio. The initial broadcast stated the robbery was committed by two black men dressed in black jackets and blue jeans. The officers then proceeded toward the scene of the robbery, each using a different route in anticipation that the robbers might be encountered fleeing the scene. Although the report was of two robbers, with no indication of how they made their getaway, it was not unreasonable for the officers, who were assigned to patrol duty in the area and were familiar with it, to anticipate that the robbers fled in a waiting automobile with a third person acting as the wheelman. It was nearly midnight when the robbery occurred and Officer Agnew was approaching the scene through a quiet residential area. When Officer Agnew approached the oncoming Chevrolet, he determined he would check the occupancy of the automobile with his alley light, clearly evidencing his suspicion that the fleeing robbers might elect as an escape route the streets being traversed by the officer. As the officer passed the Chevrolet automobile, he shined his alley light upon the occupants and determined the automobile contained three black men dressed in dark clothing. Agnew had encountered no other traffic en route to the robbery scene and, based on the information he possessed and his training and experience as a police officer, he made the decision to check the automobile and its occupants further.
The Chevrolet automobile proceeded to the next intersection, turned into the intersecting street and then was parked at the curb with the lights out. As the officer approached from the rear, the lights on the Chevrolet were turned on in preparation for leaving the scene. It was at this time that the officer turned on his emergency equipment and ordered the occupants out of the vehicle. As they exited the vehicle it was obvious that all three were dressed in dark clothing and that at least two of them were dressed in black jackets and blue jeans. The police dispatch had warned of an armed robbery and the officers were aware the suspects might be armed. Based upon the totality of the circumstances — the whole picture as stated in Cortez — we are of the opinion the information available to Officer Agnew, when coupled with the officer’s background, training and experience, was sufficient to raise a reasonable suspicion that the appellants and Long may have committed the robbery. We hold that Officer Agnew possessed sufficient facts and information, as required by K.S.A. 22-2402(1) and Terry, to stop and frisk the appellants.
While the appellants were lawfully stopped Officer Agnew observed the money and a firearm which were in plain view in appellants’ automobile. At that point, the officers had probable cause to arrest the appellants without a warrant. State v. Niblock, 230 Kan. 156, 631 P.2d 661 (1981); State v. Coe, 223 Kan. 153, 574 P.2d 929 (1977). Having determined that the initial stop and subsequent arrest were legal, we hold appellants’ motion, to quash their arrest and suppress the evidence obtained incident thereto, was properly overruled.
The next issue raised by both appellants is that the trial court erred in denying their motion for judgment of acquittal based upon insufficient evidence. Without detailing the additional evidence presented at trial, what has already been said is sufficient to sustain the convictions. In a criminal action, when the defendant challenges the sufficiency of the evidence to support a conviction, the standard of review on appeal is whether the evidence, viewed in the light most favorable to the prosecution, convinces the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. The appellate court looks only to the evidence in favor of the verdict to determine if the essential elements of a charge are sustained. State v. Pink, 236 Kan. 715, 696 P.2d 358 (1985). Appellants’ arguments on this issue lack merit.
We now turn to the separate issues raised by appellant Baker. As his first separate issue, he contends it was reversible error for the trial court to admit in evidence the inculpatory oral statements of Coleman.
The Sixth Amendment to the United States Constitution secures the right of a criminal defendant on trial to confront witnesses against him. The protection of the Sixth Amendment is applied to the states by way of the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 13 L. Ed. 2d 923, 85 S. Ct. 1065 (1965). The denial of a criminal defendant’s right to confront witnesses against him is a denial of due process of law. In Bruton v. United States, 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620 (1968), the court held that an accused’s right of confrontation was violated when the confession of a codefendant, who did not testify, and which implicated the defendant, was admitted into evidence at their joint trial, even though a limiting instruction was given. See State v. White & Stewart, 225 Kan 87, 587 P.2d 1259 (1978). Bruton rights are violated only by admission of extrajudicial statements implicating the accused codefendant. State v. Pink, 236 Kan. at 727. In Pink we held that when the extrajudicial statement admitted does not directly allude to the accused codefendant, and a limiting instruction is given, no rights are abridged. State v. Pink, 236 Kan 715, Syl. ¶ 5.
In the present case Baker complains about Officer Agnew’s testimony regarding conversations with codefendant Coleman. Agnew testified concerning Coleman’s account of the defendant’s activities on the evening of the robbery. Baker also argues that testimony from investigating detective Mervosh, concerning the defendant’s own statements, was improperly admitted. A review of the testimony in question indicates that Bruton is inapplicable for several reasons. Neither statement in the present case is a confession by a codefendant, or a statement implicating appellant Baker. Coleman’s remarks to Officer Agnew were totally exculpatory in nature. Further, the crux of Baker’s complaint regarding Detective Mervosh’s testimony centers on his own remarks, not those of Coleman. In the present case the trial court cautioned the jury that statements of one defendant are admissible only against the declarant and not against the codefendant. The court also instructed the jury that they should give consideration to the guilt or innocence of each defendant. It can be assumed that the jury followed the cautions and instructions of the court, and that no error occurred. State v. Pink, 236 Kan. at. 728.
Finally appellant Baker attacks certain instructions given by the trial court. The court instructed on the elements of the crime of aggravated robbery as follows:
“Defendants are charged with the crime of aggravated robbery on two occasions. Each defendant pleads not guilty.
“To establish the charge, each of the following claims must be proved.
Defendant, or someone acting in concert with him:
1. Intentionally without permission took property of another from the presence of another person,
2. by threat of bodily harm to the person,
3. while armed with a dangerous weapon; and,
4. This occurred in Sedgwick County, Kansas; and, on or about December 11, 1984.
In count I the “person” referred to is Sylvia Long.
In count II the “person” referred to is Paula Wendler.
A handgun is a dangerous weapon.” (Emphasis added.)
The court also instructed the jury on aiding and abetting, as follows:
“Liability for crimes of another: (1) a person is criminally responsible for a crime committed by another if such person intentionally aids, abets, advises, hires, counsels or procures the other to commit the crime; (2) a person liable under subsection (1) hereof is also liable for any other crime committed in pursuance of the intended crime if reasonably foreseeable by such person as a probable consequence of committing, or attempting to commit, the crime intended; (3) a person liable under this section may be charged with, and convicted of, the crime although the person alleged to have directly committed the act constituting the crime lacked criminal capacity or has not been convicted, or has been acquitted, or has been convicted of some other degree of the crime, or of some other crime based on the same act.
“Mere presence at the scene where a crime is committed, does not, in and of itself, make a person guilty of having committed the crime.”
In his brief, Baker contends the phrase “or someone acting in concert with him” contained in the aggravated robbery instruction is ambiguous and not capable of ordinary understanding and therefore misled the jury. Appellant Baker also contends that separate instructions should have been given for each count alleged in the information or complaint. We find both arguments are without merit.
The judgment in each case is affirmed. | [
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The opinion of the court was delivered by
Wertz, J.:
This was an action for specific performance of a real estate contract. Defendant appeals from adverse rulings on his various motions and his demurrer to plaintiff’s petition, all of which will be discussed below.
A summary of the pertinent allegations of plaintiff’s petition follows: It was alleged that Deering J. Marshall, plaintiff (appellee), a resident of Sedgwick county, and Vernal Duncan, defendant (appellant), a resident of Trego county, executed a written contract, under the terms of which plaintiff agreed to sell and defendant agreed to buy, for the sum of $159,000, approximately 2,360 acres of land located in Russell county. A copy of the contract was attached and made a part of the petition.
At the time of the execution of this contract, plaintiff owned all of the real estate, with the exception of 160 acres, title to which stood in the heirs of John P. Ruppenthal, deceased. The contract provided that it was subject to and dependent upon plaintiff’s obtaining title to this quarter section of land and in the event he was unsuccessful, defendant could terminate and cancel the contract. Further provisions of the contract called for plaintiff’s submitting abstracts of title for examination by the defendant or his attorneys and his executing a warranty deed to all the property, the deed, together with the abstracts of title, to be deposited with the Home State Bank of Russell and delivered to defendant at the time he completed payment on the land.
The petition further alleged that in accordance with the contract plaintiff did acquire for delivery to defendant title to the Ruppenthal quarter section. Thereafter, at defendant’s request, plaintiff delivered abstracts of title to all the land for examination by defendant’s attorneys, who then made certain requirements which were met by plaintiff within a reasonable time. Title to all the real estate described in the contract was approved as merchantable by defendant’s attorneys, and in full compliance with the terms and conditions of the contract plaintiff delivered a warranty deed to all the land, properly executed by him and his wife, for deposit in escrow in the Home State Bank in Russell.
It was also alleged that plaintiff had obligated himself to pay a sum in excess of $17,000 for the purchase of the Ruppenthal quarter section, as well as a further sum for real estate commission, and had canceled an existing lease on said property — all in order to deliver possession as promised.
It was further alleged that the plaintiff had complied with all the terms and conditions of the contract, but that defendant had failed and refused to comply therewith. Plaintiff therefore sought to compel specific performance of the contract and to recover from defendant the purchase price of the land as contracted. He asked for further relief as the court might deem just and equitable.
It is first contended that the trial court erred in overruling defendant’s motion to quash the service of summons. This motion was based on the grounds that the action was brought in Russell county and defendant was served with summons at his residence in Trego county, and that the action was one in personam, plaintiff asking not only for the specific performance of the contract for the sale and purchase of land but, in addition thereto, for judgment against the defendant for damages.
G. S. 1957 Supp., 60-510 provides that an action to compel the specific performance of a contract for the sale of land or any part thereof may be brought in any county where the land or any part thereof is located, or in any county where the defendant or any one of the defendants may reside.
G. S. 1949, 60-2502 provides that where the action is rightfully brought in any county according to the provisions of article 5 [60-510], a summons may be issued on the plaintiff’s praecipe to any other county against any one or more of the defendants. The instant action was one for specific performance of the contract for the sale of land situated in Russell county. The action was therefore properly brought in that county and the defendant was correctly served in Trego county. (Tinkler v. Devine, 159 Kan. 308, 154 P. 2d 119.)
Moreover, in actions for specific performance of a contract concerning realty, it is a well-established practice to ask in the alternative for money damages, providing the court finds it inequitable or impossible to compel specific performance. In all such cases the action is purely equitable and the court has power to grant full relief. (Brush v. Boyer, 104 Kan. 168, 178 Pac. 445; Orr v. Thomas, 105 Kan. 624, 185 Pac. 1046.)
In his brief defendant devotes much argument to the ground that the trial court should have sustained his various motions to make the petition definite and certain, to strike, and to separately state and number the causes of action. It is now an elementary rule of law in this state — which should need no further reiteration — that a motion to make definite and certain lies only when the pleading attacked is so indefinite and uncertain that the nature of the charge or defense is not apparent. (G. S. 1949, 60-741.)
In Parrack v. Wittman, 180 Kan. 193, 302 P. 2d 1005, we said:
“This do.es not mean indefinite and uncertain according to the refinements and technicalities of the common-law system of pleading. A pleading is sufficient as against a motion, which fairly apprises the adversary of what the claim or defense is. In the early days of the code, while the court still rested under the spell of the refinements and technicalities of the common-law system of pleading, the motion to make definite and certain was a formidable weapon, because definiteness and certainty then meant dividing between the north and northwest portions of a hair. The true meaning of the code expression, ‘so indefinite and uncertain that the nature of the charge or defense is not apparent,’ was not grasped. Now that pleadings are regarded according to their true purpose of fairly apprising the adversary of what the claim is to be, the function of the motion is much restricted. (Republic County v. Guaranty Co., 96 Kan. 255, 150 Pac. 590; Morris v. Dines Mining Co., 174 Kan. 216, 221, 256 P. 2d 129; Gillen v. Stangle, 175 Kan. 364, 264 P. 2d 1079.) Moreover, where the only purpose to make a petition definite and certain is to require plaintiff to plead his evidence, it should be overruled. (Scott v. Shewell, 100 Kan. 466, 164 Pac. 1061.) It is also the rule that an order of the trial court overruling motions to make a petition more definite and certain, and to separately state and number, rests in the sound discretion of the trial court, and from rulings thereon an appeal does not ordinarily lie, unless it appears a ruling prejudiced or will prejudice the substantial rights of a party. (G. S. 1949, 60-741 and 60-3317; Sanders v. Visser, 165 Kan. 336, 338, 194 P. 2d 511; Nelson v. Schippel, 143 Kan. 546, 56 P. 2d 469; Lessley v. Kansas Power & Light Co., 171 Kan. 197, 201, 231 P. 2d 239.)”
For a few of our very recent cases enumerating the various rules, see Meek v. Ames, 175 Kan. 564, 266 P. 2d 270; Smith v. Wright, 180 Kan. 584, 305 P. 2d 810; Sherk, Administratrix v. Sherk, 181 Kan. 297, 299, 310 P. 2d 899; Nausley v. Nausley, 181 Kan. 543, 313 P. 2d 302.
In Nelson v. Schippel, 143 Kan. 546, 547, 56 P. 2d 469, we said that it had been frequently held that motions to strike, to make definite and certain, and to separately state and number rest in the discretion of the trial court, from whose rulings appeal does not ordinarily lie; that unless it is shown such alleged error prejudices the substantial rights of the party, it will not be reversed. G. S. 1949, 60-741 provides that if a pleading contains several causes of action or different defenses, a court or a judge may, in his discretion, require them to be separately stated and numbered. This present action was one for specific performance. It was therefore proper to plead in the alternative and ask damages for nonperformance or for other equitable relief. The petition states but one cause of action. (Henry v. McKittrick, 42 Kan. 485, 22 Pac. 576; Owen v. Christopher, 144 Kan. 765, 770, 62 P. 2d 860; Nelson v. Schippel, supra.) Even assuming that it stated more than one cause of action, the trial court did not abuse its discretion in overruling defendant’s motion. (Nelson v. Schippel, supra.) Defendant’s various motions being without substantial merit, the court did not err in overruling each of them.
Defendant contends that the petition failed to allege facts sufficient to state a cause of action and the trial court erred in not sustaining his demurrer thereto. He argues that the contract is executory and lacks mutuality and that he had an option to terminate the contract; that for these reasons the contract is void. Virtually all of defendant’s argument is directed to the clause in the contract wherein plaintiff agreed to deliver to defendant the Ruppenthal quarter section of land after acquiring title thereto and that if he could not do so, defendant would have the right to terminate the contract.
A review of the pleadings, of which the contract is a part, fails to sustain defendant’s contention. The allegations of the petition show that plaintiff 'did acquire the Ruppenthal land for delivery to defendant and did deliver abstracts of title therefor to defendant’s attorneys for examination, as requested by defendant; that thereafter title to all of the real estate described in the contract, including the Ruppenthal land, was approved as merchantable by defendant’s attorneys. Subsequently, plaintiff deposited with the named escrow holder a warranty deed, properly executed by him and his wife, which conveyed merchantable title to all the real estate to defendant. He then notified defendant that the conditions of the contract had been met in toto. Moreover, the plaintiff obligated himself in excess of $17,000 for the procurement of the Ruppenthal land. On February 10, 1956 — the date the instant action for specific performance was filed — defendant had obtained from plaintiff full performance of the contract as required.
There was nothing left to be done by anyone but the defendant. Whatever want of mutuality there may have been in the contract, it is now of no consequence. Plaintiff executed his part of the contract; he supplied everything defendant desired. Want of mutuality is not a defense to an action for specific performance where the party seeking the relief has fully fulfilled all the conditions of the contract. (Burnell v. Bradbury, 67 Kan. 762, 74 Pac. 279.)
It is stated in 17 C. J. S. Contracts § 100 c., d. that want of mutuality is no defense in the case of an executed contract and a promise lacking mutuality at its inception becomes binding on the promisor after performance by the promisee. Although there is a lack of mutuality in the beginning, this may be cured by the other party subsequently binding himself also by promise or act. (13 C. J. Contracts §§ 181 (3), 182 (4).)
In the somewhat analogous case of Nelson v. Schippel, supra, we stated that while mutuality is an essential element of every valid contract, the possible want of it was completely cured by subsequent prompt performance on the part of the plaintiff; thereafter, the contract was no longer executory and former lack of mutuality, if it in fact existed, was no defense to the executed contract. We further approved the statement of law that “requirement of mutuality of remedy, authorizing specific performance, is satisfied, if mutuality exists at time suit is filed.” The before-mentioned rules, as enumerated in Nelson v. Schippel, supra, have been reiterated by this court in recent decisions. See Troutfetter v. Backman, 165 Kan. 185, 190, 191, 193 P. 2d 201; and Sinclair Prairie Oil Co. v. Worcester, 167 Kan. 194, 209, 205 P. 2d 942. In Heckard v. Park, 164 Kan. 216, 223, 188 P. 2d 926, we said:
“Absence of inceptive mutuality constitutes no defense to the enforcement of an executed contract.”
(Ryan v. Ryan, 156 Kan. 348, 355, 133 P. 2d 119; French v. French, 161 Kan. 327, 331, 167 P. 2d 305.) In Kilmer v. Victory Sand & Stone Co., 153 Kan. 381, 110 P. 2d 798, we stated that possible lack of mutuality of obligation of a contract is not a defense against the enforceability of an executed contract.
In view of what has been said, it follows that the petition stated a cause of action for the specific performance of the contract and defendant’s demurrer thereto was properly overruled. The judgment is affirmed.
It is so ordered. | [
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The opinion of the court was delivered by
Hall, J.:
This is an appeal from a judgment in a divorce action.
The plaintiff husband, appellant here, filed suit for divorce. The wife, appellee here, filed an answer and cross petition. A decree of divorce was granted to the wife on her cross petition. The court reserved its ruling on the matters of alimony and division of property.
Several weeks later the court rendered judgment as follows:
“. . . the Court now renders judgment in favor of the defendant Nina Matlock and against the plaintiff Gene D. Matlock as and for and in lieu of all property rights and permanent alimony in the sum of Ten Thousand Dollars ($10,000.00). That the Court now awards to counsel for the defendant, Gilchrist and i Buck, attorneys fees in the sum of One Thousand Dollars ($1,000.00), the same to be a judgment against the plaintiff, Gene D. Matlock. The Court further renders judgment as and for fees for the accounting firm of Cory Webster & Lawrence in the sum of Two Hundred and Forty-Six Dollars ($246.00), the same to be a judgment against Gene D. Matlock.”
In the notice of appeal appellant appeals only from the- “decisions, findings, rulings and judgment of' the district court.”
Appellant specifies as error that the judgment is contrary to the evidence and law; that the judgment of alimony and division of property is improper, unjust and inequitable; that the judgment “in the sum of Ten Thousand Dollars ($10,000.00) for and in lieu of all property rights and permanent alimony” is contrary to law. Appellant also specifies as error the amounts allowed as attorneys and accounting fees.
An appeal perfected only from “decisions, findings, rulings and judgments” does not constitute an appeal from an order overruling a motion for new trial and under such circumstances this court has no jurisdiction to review the trial errors specified by the appellant. (Curtis v. Kansas Bostwick Irrigation District, 182 Kan. 301, 320 P. 2d 783, and the authorities cited therein.)
Likewise an assignment of error to the effect that the trial court erred in rendering judgment amounts to nothing more than that the decision is wrong and presents nothing for appellate review. (Hamilton v. Binger, 162 Kan. 415, 176 P. 2d 553; Cimarron Co-Operative Equity Exchange v. Warner, 166 Kan. 190, 200 P. 2d 283; Bisagno v. Lane, 168 Kan. 153, 211 P. 2d 85; In re Estate of Young, 169 Kan. 20, 217 P. 2d 269; Smith v. Kansas Transport Co., 172 Kan. 26, 238 P. 2d 553; McIntyre v. Dickinson, 180 Kan. 710, 307 P. 2d 1068; Hill v. Lake, 182 Kan. 127, 318 P. 2d 1050; Curtis v. Kansas Bostwick Irrigation District, supra.)
The only question before us is whether the court erred in rendering judgment in favor of the appellee “in the sum of Ten Thousand Dollars ($10,000.00) for and in lieu of all property rights and permanent alimony,” attorneys and accounting fees.
The appellant contends that the court in its judgment must set out separately the amount of alimony awarded and the division of property made and not merge them together so that the amount of each is unknown.
In a recent case this court decided to the contrary. (Meads v. Meads, 182 Kan. 361, 320 P. 2d 830.) While the court did not sanction the practice, it held that the failure of the journal entry to reflect a definite division in the judgment did not compel a reversal. The court said:
“In the instant case, the trial court, as a division of property and in lieu of alimony, set apart to the plaintiff the Missouri farm and the Wichita home, the latter subject to the mortgage indebtedness which plaintiff was required to assume. It is clear that the court allowed plaintiff alimony in the form of property. Of course, in order to avoid uncertainty the journal entry should have set forth that part of the property allowed as alimony and that part allowed as a division of property. However, the failure of the journal entry to so reflect such a definite division in the present case does not compel a reversal of the judgment.” (pp. 363, 364.)
It has long been the rule of this court that in a divorce action a division of property and award of alimony made by the trial court will not be disturbed on appellate review unless it is clearly shown that there has been an abuse of discretion. (Goetz v. Goetz, 180 Kan. 569, 306 P. 2d 167; Perry v. Perry, 176 Kan. 1, 268 P. 2d 938; Reedy v. Reedy, 175 Kan. 438, 264 P. 2d 913; Harris v. Harris, 169 Kan. 339, 219 P. 2d 454; Meads v. Meads, supra.)
We have examined the record thoroughly and find sufficient competent evidence to support the judgment and no abuse of discretion by the trial court. The judgment is affirmed.
It is so ordered. | [
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The opinion of the court was delivered by
Robb, J.:
This is an appeal by the state highway commission in a suit in equity by landowners to enjoin the commission from limiting and controlling plaintiffs’ right of access from their land to a relocated highway. The trial court overruled the commission’s demurrer to plaintiffs’ amended petition and this appeal by the commission from that order followed.
We shall refer to the plaintiffs as they were in the lower court, to the state highway commission as the commission, and to the amended petition as the petition. Attention is called to the map included herein. The land involved is that shown as tract No. 33 south of former U. S. highway 24 as well as that part of tract No. 33 which is north of former U. S. highway 24 and west of tract No. 34.
The salient facts alleged in the petition are:
In September, 1951, the commission condemned and took by a proceeding in eminent domain a portion of plaintiffs’ land immediately south of tract No. 33. However, under then-existing laws, no rights of access could be or were taken. At the time of the taking the plaintiffs understood and believed they would be on and have access to both the new and old U. S. highway No. 24. On August 29, 1952, the commission designated the road and right of way taken in 1951 as U. S. highway 24. In 1953 legislation was enacted which provided for designated controlled access facilities and for acquisition of rights of access, light, air or view for such facilities. (G. S. 1955, 68-1901 to 68-1906, incl.) On April 3, 1956, the commission instituted an action to acquire property for right of way from plaintiffs and including rights of access for a designated controlled access facility and frontage road. It sought to acquire about .078 of an acre of plaintiffs’ land “together with the abutter’s rights of access appurtenant to the remaining property in and to said highway, provided, however, that such remaining portion of said property shall abut upon and have access to a frontage road which will be connected to the highway only at such points as may be established by the public authority.”
It was further alleged that on April 26, 1956, the court-appointed appraisers allowed damages to plaintiffs’ tract No. 33 as follows:
Owners’ crop loss ................................... $100.00
.078 acre land taken................................. 385.00
Abutter’s rights of access ........................... 6,690.00
$7,175.00
The petition also alleged that on May 3, 1956, within the thirty day period in which plaintiffs were entitled to appeal, the commission by an ex parte order of the court abandoned that part of the project relating to the award for plaintiffs’ land and the award for their abutter’s rights of access. By resolution of November 9, 1955, the new highway was designated a controlled access facility with a frontage road on the south side of plaintiffs’ land, between plaintiffs’ land and the new highway but wholly within the right of way acquired in 1951. (The map included herein shows how plaintiffs can get onto the frontage road and the new highway only from whatever point or points the commission may designate, as provided in G. S. 1955 Supp. 68-1902 and 68-1905.) Under G. S. 1955 Supp. 68-1906 plaintiffs can lawfully enter highway 24 only at such points between the frontage road and the controlled access facility as are designated by the commission. Then followed allegations that plaintiffs’ only remedy lies in equity.
The commission demurred to this petition on the ground it failed to state facts sufficient to constitute a cause of action in favor of plaintiffs and against the commission. The trial court overruled the demurrer generally and this appeal was taken by the commission.
We shall refer to a part of the original petition of the commission in the eminent domain proceeding instituted on April 3, 1956, since it is referred to and made a part of the petition here. It states that under G. S. 1955 Supp. 68rl901 through 68-1906, the commission by condemnation had authority to establish controlled access facilities; to construct and maintain frontage roads; and to acquire private and public property, including rights of access for such controlled access facilities and frontage roads. On November 9,1955, the commission determined it was necessary to and it desired to acquire by condemnation certain lands (in addition to those taken in 1951) and all rights therein to control ingress and egress, as controlled access facilities and for right of way.
The only question before this court involves the petition and although other matters not actually appearing on the face thereof were stipulated below to make it simpler for the trial court to consider the demurrer, they cannot and will not be considered on appeal. (Whitaker v. Douglas, 177 Kan. 154, 277 P. 2d 641; Robinson v. Muller, 181 Kan. 150, 309 P. 2d 651; Kleppe v. Trawl, 181 Kan. 590, 592, 313 P. 2d 227; Wendler v. City of Great Bend, 181 Kan. 753, 316 P. 2d 265.)
This appeal is from an original suit in equity. It is not an appeal from an award of appraisers in an eminent domain proceeding for the condemnation of land. While it is true the commission maintained to a conclusion the eminent domain proceeding commenced :in 1951 whereby the right of way was obtained for the proposed new or relocated U. S. highway 24 and on April 3, 1956, it instituted a proceeding in eminent domain to condemn and to acquire right to privately-owned property and involving access to and from such ■property, the action of April 3, 1956, was dismissed and abandoned .so far as it concerned these plaintiffs. Plaintiffs’ complaint is not that the commission did not, and does not, have power through eminent domain to condemn and to acquire rights of access. They complain their right of access was limited and controlled by the commission without proper exercise of the power granted to it under G. S. 1955 Supp. 68-1903, which provides:
“The highway authorities, jointly or severally, may acquire the desired private or public property, including rights of access, light, air or view for controlled access facilities, by gift, devise, purchase, or condemnation, in the same manner as now or hereafter authorized by law for acquiring property or property rights in connection with highways, roads and streets within their respective jurisdictions.” (Our emphasis.)
This is not the first test of such power of the commission to limit or control access granted under the new law because it was considered in Simmons v. State Highway Commission, 178 Kan. 26, 283 P. 2d 392. The Simmons case, however, had proceeded to final judgment, which is not the situation in our present case. The right of access of a landowner to and from his land and how that right can be limited or controlled was stated in the Simmons case in the following language:
“However, it is conceded that at that time she [the landowner] had a common law right of access onto such highway at any point, subject to compliance with the lawful regulations pertaining to entrances promulgated by the commission.” (p. 28.)
G. S. 1955 Supp. 68-1901 (a) defines “A controlled access facility” as,
“. . . a highway, road or street especially designed to expedite and control through and local traffic, and over, from or to which highway, road or street, owners or occupants of abutting property shall have only a controlled right or easement of access, light, air or view . . .,”
and G. S. 1955 Supp. 68-1901 (c) defines “Frontage road” as,
"... a highway, road or street which is auxiliary to and located on the side of another highway, road or street for service to abutting property and adjacent areas and for control of access to such other highway, road or street.”
Under G. S. 1955 Supp. 68-1902 we find a grant of authority to state, county or city highway authorities to design, designate, establish, regulate, vacate, alter, improve, construct or maintain controlled access facilities. Further, G. S. 1955 Supp. 68-1904 provides for the designation and establishment of controlled access highways as new and additional facilities or they may be included with an existing street or highway within such facility. G. S. 1955 Supp. 68-1905 authorizes the construction of frontage roads and grants the same control thereof as is granted to the commission over controlled access facilities set up by the commission.
The commission contends that injunction is not a proper remedy since it should not be enjoined from the construction of a highway as necessary and beneficial to public use and purpose as the one in question. The commission also contends that any cause of action for injunction has now become moot since the highway in question has been completed and has now been in use for sometime. As previously noted, this is not a suit to enjoin the commission from the exercise of its power of eminent domain to condemn access under the quoted statutes. (For discussion thereon see Ottawa Hunting Ass’n v. State, 178 Kan. 460, 464, 289 P. 2d 754.) After the second condemnation proceeding was abandoned, the commission went ahead with the taking of the right of access and plaintiffs commenced this suit to enjoin such taking of their access by limiting and controlling the same. When a condemnation action is pending, a landowner cannot seek injunctive relief therein but must file a separate action for that purpose where he has no adequate remedy at law. (State v. Boicourt Hunting Ass’n, 177 Kan. 637, 645, 282 P. 2d 395.) Injunction is an equitable remedy and is a preventative measure to maintain the status quo (28 Am. Jur., Injunctions, § 5, p. 199, 43 C. J. S., Injunctions, § 1, p. 406) or to operate in futuro (Andeel v. Woods, 174 Kan. 556, 258 P. 2d 285.)
In testing whether this suit in equity should stand or fall, this court is not only authorized, but it has a duty to determine — not merely whether the plaintiffs were entitled to an injuction at the time they began their suit — but whether the facts as they appeared at the time of the hearing warranted such relief. (28 Am. Jur., § 8, p. 201.) We are not concerned now with the outcome on the final hearing because this is a demurrer to the petition and no issues have been joined as yet. As contended by defendants, it appears that .with the passage of time betwen the filing date and the presentation of this appeal there has been a change of circumstances so as to render an injunction useless and of no effect, if granted, and no judicial action is now necessary and all questions in the appeal are .moot. (Bumm v. Colvin, 181 Kan. 630, 636, 312 P. 2d 827; 43 C. J. S., Injunctions, § 198 (e), p. 912.) This does not mean that in all injunction suits where there are changes in circumstances, a dismissal is required because of mootness if by so holding vital rights of the parties would be affected. (Moore v. Smith, 160 Kan. 167, 160 P. 2d 675.)
The allegations of the petition make it appear that if an injunction were refused, the commission, without condemnation, could limit and control plaintiffs’ previous access to what is now a controlled access facility. This involves a vital property right. (25 Am. Jur., Highways, § 154, p. 448; 39 C. J. S., Highways, § 141, p. 1081.) Such exigencies may later compel the trial court to deny the injunction because it would inflict great injury upon the commission and its power of eminent domain and would adversely affect the public interest. In lieu of a decree to enjoin, the court could award damages to plaintiffs as compensation (Provident Mut. Life Ins. Co. v. State Highway Comm., 155 Kan. 351, 355, 125 P. 2d 346) by reason of the controlled access facility and its effect on plaintiffs’ right of access to and from their property.
We do not deem it necessary to determine at this time the other points raised by the parties in this appeal from the trial court’s order overruling the commission’s demurrer to plaintiffs’ petition. No issues have been joined by pleadings or any evidence adduced in support thereof or in defense thereto. On appellate review this court cannot substitute itself for the trial court and determine the merits of the litigation before the lower court has had ample opportunity to determine the issues. This phase of our case was well determined in the case of Weltmer v. Mathis, 182 Kan. 70, 319 P. 2d 165, this day decided, where the court said:
“In their briefs the parties argue questions involving terms of the contracts pleaded, and discuss various matters concerning the law of joint venture, punitive damages, liens, the fact the action was allegedly brought prematurely, and matters concerning the right to recover on quantum meruit, all of which are interesting from an academic standpoint, but which, in the nature of things, we think are not properly to be discussed by this court at this stage of the case . . .,” (p. 71.)
and in the same case it was later stated,
“. . . in the very nature of things, this is peculiarly and essentially a case in which issues should be joined and submitted to the trier of facts.” (p. 72.)
We have limited our consideration to the petition involved in this particular action and under the allegations thereof and the controlling statutes in effect, we think the petition did state a cause of action in favor of plaintiffs and against the commission.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Fatzer, J.:
This was an action to recover real property, for the reasonable value of the use of the premises during defendant’s possession to the exclusion of plaintiff, and to cancel a quitclaim deed. The trial court rendered judgment for defendant, and plaintiff has appealed. The defendant did not appear in this court, and failed to file briefs in support of the judgment of the trial court.
On January 14, 1950, one T. J. Charlesworth sold the property in question located at 418 East Fourth Street, Topeka, Kansas, to plaintiff Luke Oaks and defendant Wilson Edward Hill for $3200, with a $500 down payment, the balance due in monthly payments of $50. Plaintiff and defendant entered into possession of the property as tenants in common with an understanding that rents and profits were to be divided equally.
On November 1, 1952, plaintiff and defendant entered into an oral agreement whereby plaintiff agreed to sell and defendant agreed to purchase plaintiff’s undivided one-half interest in the property for $700 plus six percent interest. Pursuant to the agreement, plaintiff executed and delivered to the defendant a quitclaim deed conveying his interest in the property and defendant executed and delivered to plaintiff his promissory note for $700, which did not provide a time for payment. Defendant made small payments on the note, and on August 14,1953, paid plaintiff $300 and executed a second promissory note for $373, the unpaid balance of the first note, payable within sixty days.
Plaintiff commenced this action August 29,1955, and alleged that when the quitclaim deed was executed it was orally agreed that plaintiff’s present interest in the property was not to be conveyed thereby, and that the deed was to be effective only when the purchase price was paid in full; that defendant had failed to pay the $700 and interest and that the deed was of no force and effect; that plaintiff was the owner of an undivided one-half interest in the property and entitled to possession as a cotenant and prayed for cancellation of the deed, for possession, and for his share of the reasonable value of the use of the property during defendant’s possession to the exclusion of plaintiff.
Defendant’s answer denied the quitclaim deed was delivered conditionally upon full payment of the purchase price, and alleged that it conveyed plaintiff’s present interest in the property and that plaintiff gave possession to him pursuant to the quitclaim deed on November 1, 1952; that he withheld the deed from record until September 7, 1955, because he wanted to file it with the deed from Charlesworth when he obtained it, in order to clear the records; that he was indebted to plaintiff, and that in December, 1953, he tendered plaintiff $225 as the balance due, and in April, 1955, made a second tender of $304, both amounts being in excess of the sum due plaintiff, who refused both tenders. At the trial defendant testified the first tender of $225 was not the amount he owed plaintiff, but was all the money he had at the time, and that the second tender was of $373.
With the issues thus framed, trial was had by the court, which found that the defendant was in lawful possession of the property by virtue of the quitclaim deed of November 1, 1952; that the promissory notes of November 1, 1952, and August 14, 1953, were satisfied in full, and that plaintiff’s claim that he should be readmitted into possession due to defendant’s failure to pay the consideration in support of the quitclaim deed was without merit.
Following the overruling of his motion for a new trial plaintiff perfected this appeal and here contends the trial court erred in finding the quitclaim deed conveyed plaintiff’s present interest in the property and that defendant had paid the full consideration of the promissory notes.
Plaintiff’s contention that title to his interest did not pass upon execution and delivery of the quitclaim deed is not meritorious. It is elementary that an oral agreement entered into prior to or contemporaneously with a written agreement is merged into the latter. (Underwood v. Sharp, 120 Kan. 250, 242 Pac. 1021; Federal Farm Mortgage Corp. v. Bolinger, 152 Kan. 700, 705, 108 P. 2d 492; Setchell v. Reed, 153 Kan. 818, 820, 113 P. 2d 1050; Cherry v. Joyce, 168 Kan. 475, 481, 213 P. 2d 1010.) While the quitclaim deed is not before us it was in evidence before the trial court, and since plaintiff did not allege nor here contend it contained reservations in the form or manner he asserts, possession of the deed by defendant is prima facie evidence of delivery. (Rohr v. Alexander, 57 Kan. 381, 46 Pac. 699; Smith v. Dolman, 120 Kan. 283, 284, 243 Pac. 323; Board of Library Directors v. City of Fort Scott, 134 Kan. 586, 7 P. 2d 533; Setchell v. Reed, supra; Burgin v. Newman, 160 Kan. 592, 164 P. 2d 119; Bradbury v. Wise, 167 Kan. 737, 742, 208 P. 2d 209.) The conveyance carried with it the right to possession and the full use of the property, hence, defendant established his prima facie case and paramount right to the property upon proof of delivery of the quitclaim deed, which may not be defeated by an oral agreement made prior to or contemporaneously with its execution. (McKean v. Massey, 6 Kan. 122; Johnston v. Winfield Town Co., 14 Kan. 390, 398; Board of Library Directors v. City of Fort Scott, supra.) In Board of Library Directors v. City of Fort Scott, supra, it was said:
“. . . The question is, May the deed be modified by an oral agreement made prior to its execution? The law is well settled that the intention of the parties to a deed must be derived from the language of the deed itself, which cannot be impeached except upon equitable grounds of accident, mistake, fraud and the like, none of which appear in this case. (Pentico v. Hayes, 75 Kan. 76, 88 Pac. 738; Miller v. Miller, 91 Kan. 1, 136 Pac. 953.)” (l. c. 589.)
The simultaneous execution of the quitclaim deed and the promissory note constituted one and the same transaction and the instruments must be construed together (Skinner v. Skinner, 126 Kan. 601, 270 Pac. 594; 17 C. J. S., Contracts, § 298). Thus, the oral agreement testified to by plaintiff with respect to defendant’s withholding the deed until the purchase price was paid in full, was merged into the quitclaim deed and the promissory note (Hazelton v. Chaffin, 109 Kan. 175, 177, 197 Pac. 870; Brown v. Pryor, 133 Kan. 129, 131, 298 Pac. 747; Federal Farm Mortgage Corp. v. Bolinger, supra), and in the absence of an exception or reservation to the contrary, the delivery of the quitclaim deed to defendant vested title in him, and plaintiff was required to look to the promissory note for payment of the purchase price. (Hampe v. Higgins, 74 Kan. 296, 85 Pac. 1019; Snider v. Marple, 168 Kan. 459, 466, 213 P. 2d 984.)
The trial court did not err in its finding that the defendant was in lawful possession of the property by virtue of the quitclaim deed.
We now turn to the finding of the trial court that the promissory notes executed by the defendant on November 1, 1952, and August 14, 1953, were satisfied in full. As previously indicated, defendant admitted in his answer his indebtedness to plaintiff and pleaded and testified to two different tenders made to plaintiff. While a tender of money does not operate as a satisfaction of a debt or obligation (86 C. J. S., Tender, § 50, p. 580; 52 Am. Jur., Tender, § 35, p. 240; 8 Am. Jur., Bills and Notes, § 797, p. 450), the legal effect is to admit absolutely the amount tendered as due (Latham v. Hartford, 27 Kan. 249, 251), and a plea of tender is an irrebuttable admission of indebtedness to the extent of the amount tendered. (86 C. J. S. Tender, § 51, p. 582; 52 Am. Jur., Tender, § 37, p. 242.) Inherent in the trial court’s finding that defendant’s promissory notes were satisfied in full is that they had been discharged by payment. The record does not support the finding and it is necessary that this court order the finding set aside.
Accordingly, the judgment of the trial court is affirmed with respect to defendant’s lawful possession of the real property by virtue of the quitclaim deed of November 1,1952, and it is reversed with respect to the finding that the promissory notes were satisfied in full, with directions to sustain plaintiff’s motion for a new trial on that issue.
It is so ordered. | [
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Tbe opinion of the court was delivered by
Robb, J.:
This is an appeal in an eminent domain proceeding commenced by the Kansas Turnpike Authority to condemn 6.45 acres of land made necessary by the construction of the Kansas Turnpike. The authority moved to abandon the proceeding, to withdraw funds in the amount of the appraisers’ award paid into the clerk of the court, and to dismiss the landowners’ appeal from the appraisers’ award, all of which motions were overruled by the trial court. The issues were presented to a jury, which returned its verdict in favor of recovery by the landowners, and the trial court en tered judgment thereon. The authority’s motion for new trial was Overruled and it timely appealed.
■ At the outset we are confronted with a motion by the landowners to dismiss the appeal for the reason the abstract filed by the authority is insufficient but the basis for the motion has become moot because the authority has since filed a supplemental abstract containing its motion for new trial and it is, therefore, not necessary to discuss or determine the motion to dismiss.
As shown by the map herein included, the landowners’ farm was shaped by the circuitous route of the Neosho river and contained sixty acres. The land taken (spotted portion of map) amounted to
approximately 6.45 acres and left a remainder of approximately 53.55 acres. In making a fill to raise the grade for the roadbed of the turnpike, the authority created a permanent dam across the natural channel of the Neosho river at point “A” on the map. The authority cut into the natural channel of the river at “D” and straightened it into the new channel which was bridged at “B”. The new channel then rejoined the natural channel at “C”. Thus the natural channel from “D” to “E” became a still instead of a running river. The original plans of the turnpike provided for the taking of the 6.45 acres to fill in between the banks forming this segment of the old channel.
The order of the trial court overruling the motion of the authority to abandon the eminent domain proceeding and withdraw the funds deposited, and to dismiss the landowners’ appeal from the award of the appraisers constitute the first and second claims of error on the part of the authority. In support of its contention of error the authority cites the provisions of G. S. 1949, 26-101 (general condemnation law) and G. S. 1949, 60-3105 (code of civil procedure); State Highway Comm. v. Phillips, 146 Kan. 78, 69 P. 2d 12; and State Highway Comm. v. Puskarich, 148 Kan. 385, 83 P. 2d 131. In answer the landowners cite State Highway Commission v. Safeway Stores, 170 Kan. 545, 228 P. 2d 208 and Lowrey v. State Highway Comm., 170 Kan. 548, 228 P. 2d 210. We do not deem it necessary to detail all the procedures and rulings discussed and analyzed in the above statutes and cases, but turn directly to the toll roads and turnpike act since it is the special act controlling eminent domain proceedings by the authority.
G. S. 1957 Supp. 68-2006 of the above-mentioned act authorizes and empowers the authority to acquire by purchase or condemnation any land, rights, and other property, including lands lying under water and riparian rights, deemed necessary or convenient for the construction of any project or in the restoration of private property damaged or destroyed. It is further provided that title and right to possession of such property shall immediately vest upon deposit with the clerk of the court by the authority of the total amount of the appraised price, court costs and fees notwithstanding that an appeal is taken by either of the parties.
There can be no question under the above statute as to what happened in our present case when the authority made deposit of the appraised price, court costs and fees. Title and right to pos session immediately vested in the authority to whatever land or right therein that it was condemning. (State, ex rel., v. Kansas Turnpike Authority, 176 Kan. 683, 699, 273 P. 2d 198.)
In regard to the authority’s complaint that the . landowners were allowed to prove damages to their remaining land by reason of a taking of land other than that belonging to the landowners, we are aware of the consequential damage cases cited by the authority (McIntyre v. Board of County Comm’rs of Doniphan County, 168 Kan. 115, 211 P. 2d 59, and Richert v. Board of Education of the City of Newton, 177 Kan. 502, 280 P. 2d 596) but it would unduly expand the rule in those cases to apply it to the point here involved. The point is the landowners’ testimony tended to show that by reason of the fill (broken lines on each side of the turnpike as they appear on the map from the new channel bridge to the northeast) the flood hazard in the Neosho river valley and the remaining land of the landowners was enhanced. The authority failed to make it affirmatively appear in the record that its substantial rights were prejudiced so as to justify reversal since we have no way of knowing whether the jury placed much, if any, credence upon this evidence or whether any damage therefor was included in the general verdict returned. Under the circumstances we are bound by the rule that in the absence of a request for special findings of fact, a general verdict such as the one we have here resolves all controversial issues in favor of the prevailing party. (Briscoe v. Reschke, 170 Kan. 367, 226 P. 2d 255; Taylor v. State Highway Commission, 182 Kan. 397, 320 P. 2d 832.)
With regard to the question as to the excessiveness of the verdict, the sum of $1,935.00 was allowed for the land appropriated and $6,693.75 for the damage to the remaining land. We cannot tell from the general verdict what weight, if any, was given by the jury to the evidence on damages, as previously stated. We can find no reason in the record and the authority points to none to justify us in saying that the verdict was excessive.
We have considered the questions discussed in the briefs and all pertinent authorities cited in support thereof but we find no error is sufficiently shown to justify a reversal and the judgment of the trial court should be and is hereby affirmed.
Jackson, J., not participating. | [
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The opinion of the court was delivered by
Fatzer, J.:
This was an action for a declaratory judgment that the Kansas Fair Trade Act (G. S. 1949, 50-301-310) is unconstitutional as applied to nonsigners of contracts entered into pursuant to its provisions. An actual controversy existed between the parties, and the action was filed to obtain an early determination of the question since it is of statewide public interest and importance. As G. S. 1949, 50-306 was interpreted by plaintiff, it was entitled to a decree holding the statute unconstitutional for various reasons alleged in the petition; as interpreted by defendant, such a decree was not authorized. The district court agreed with defendant’s construction of the statute, and plaintiff has appealed.
The parties stipulated as to the facts, and those here pertinent are summarized: Plaintiff, Quality Oil Company, Inc., a Kansas corporation, is engaged in the retail salé of gasoline, oil and related products, including Zerex antifreeze at Topeka, Kansas, and at various other locations in the state. It purchased a quantity of Zerex antifreeze on the open market and was selling it at retail for $2.25 per gallon. All sales of Zerex at that price were made at a profit.
Defendant is a Delaware corporation authorized to transact business in the state of Kansas. It is engaged in the manufacture and sale of “Zerex” antifreeze sold at retail by plaintiff, and is the owner of registered trade-marks known as “du Pont oval” and “Zerex” which are affixed to containers in which the product is sold and delivered in this state in free and open competition with products of the same general class produced by others. Defendant has expended large sums of money in advertising Zerex and the trademarks under which it is distributed and sold, and has established a valuable reputation and good will for the product and trade-marks.
Pursuant to G. S. 1949, 50-302 defendant entered into a contract with Harold L. Bailey, operator of Bailey’s Conoco, a Topeka service station, whereby the defendant stipulated that Zerex should be sold at the minimum retail price of $3.25 per gallon, and Bailey agreed not to advertise or sell Zerex at retail to any buyer in any state or political subdivision of the United States in which a fair-trade act or public policy approving resale price maintenance contracts was in effect at less than the retail price stipulated by the defendant. Bailey was authorized to sell Zerex without reference to the contract in the following instances: (a) in closing out in good faith his stock for the purpose of discontinuing the product, or (b) where the product was damaged or deteriorated in quality and notice given to the public. The contract permitted the defendant at any time, upon written notice to Bailey,' to amend or supplement the contract by changing any of the stipulated minimum resale prices, or by eliminating any of the commodities listed therein, or by adding other commodities and stipulating minimum resale prices therefor. Bailey agreed not to indirectly reduce the selling price of Zerex below the minimum retail price stipulated by any refund, rebate, concession, prize, etc., either in cash or merchandise. The defendant had similar written contracts with other retail dealers of Zerex in the state of Kansas. However, plaintiff was not a party to any of such contracts, but it had notice of their existence and of the minimum price established by them.
On October 17, 1955, defendant informed plaintiff that it had executed fair-trade contracts with customer purchasers of Zerex stipulating that from whomsoever purchased they could not sell Zerex at retail at less than $3.25 per gallon, and that it would constitute actionable unfair competition for it to advertise and sell Zerex at less than the stipulated minimum retail price. The notice was given plaintiff pursuant to G. S. 1949, 50-306, the so-called “non-signer” clause of the act, which makes the stipulated minimum retail price fixed by the defendant in its contracts with Bailey and other retailers in Kansas binding upon all other persons selling Zerex whether or not they are parties to those contracts.
On October 31, 1955, defendant filed an action against plaintiff in the United States District Court for the District of Kansas to enjoin it from selling Zerex at retail for less than the stipulated minimum retail price of $3.25 per gallon, and for damages. Plaintiff, defendant in that action, defended on the ground that the act was unconstitutional. The federal district court issued a temporary restraining order against defendant, plaintiff in this action, and on January 3, 1956, advised counsel for the parties that the proceedings would be stayed pending a determination in a proper state court of the validity of the act.
On January 26, 1956, plaintiff filed this action in the district court of Shawnee County. Issues were formed, and judgment was rendered in favor of the defendant sustaining the act against plaintiff’s claim that it violated the Constitution of Kansas for the reasons that (1) it unlawfully delegated legislative power to private persons in violation of Art. 2, § 1; (2) its title was insufficient and violated Art. 2, § 16; (3) it deprived a “nonsigner” of an inalienable natural right and of liberty, property, and equal rights without due process of law; denied equal protection of the law; granted special privileges and immunities in violation of §§ 1, 2 and 18 of the Bill of Rights, and (4) when enacted on March 4, 1937, it was “stillborn" and void ab initio and is still invalid because it was not reenacted.
As preliminary we note that the Miller-Tydings Act ([1937], 15 U. S. C. A. § 1), and the later McGuire Act ([1952], 15 U. S. C. A. § 45) immunized against the effect of the Sherman Act (26 Stat. 209, Ch. 647) banning price-fixing contracts or agreements as restraints of trade in interstate commerce (Dr. Miles Medical Co. v. Park & Sons Co., 220 U. S. 373, 55 L. Ed. 502, 31 S. Ct. 376), and empowered the states to enact fair-trade laws containing non-signer clauses. We deem it unnecessary to review in detail the history of those congressional acts but suffice it to say those acts, as well as the decisions construing them (Schwegmann Bros. v. Calvert Corp., 341 U. S. 384, 95 L. Ed. 1035, 71 S. Ct. 745, 19 A. L. R. 2d 1119; Schwegmann Bros. Giant Super Mkts. v. Eli Lilly & Co., 205 F. 2d 788, 792, 793; certiorari denied 346 U. S. 856, 98 L. Ed. 369, 74 S. Ct. 71, petition for rehearing denied 346 U. S. 905, 98 L. Ed. 404, 74 S. Ct. 217) clearly demonstrate that the provisions of the Kansas act, including the nonsigner clause, do not conflict with the Sherman Act in any respect, and we conclude the Kansas act was not, as is here urged, invalid and void ab initio when enacted in 1937, and it was not necessary to re-enact it after the passage of the McGuire Act, supra. (Schwegmann Bros. Giant Super Mkts. v. Eli Lilly & Co., supra; Sutherland, Statutory Construction, 3d Ed. § 2027, p. 501.)
W.e also note it is conceded by both parties that no federal constitutional question is presented. Indeed, it has been uniformly held that fair-trade acts similar to our own do not violate the due process or the equal protection clause of the Fourteenth Amendment. (Old Dearborn Co. v. Seagram Corp., 299 U. S. 183, 81 L. Ed. 109, 57 S. Ct. 139; Schwegmann Bros. Giant Super Mkts. v. Eli Lilly & Co., supra; Seagrams-Distillers Corp. v. New Cut Rate Liquors, 221 F. 2d 815, certiorari denied sub nomine New Cut Rate Liquors, Inc., et al v. Seagram Distillers Corp., 350 U. S. 828, 100 L. Ed. 740, 76 S. Ct. 59; Lee-Wilson, Inc. v. General Electric Company, 222 F. 2d 850, 854; Sunbeam Corporation v. Masters of Miami, 225 F. 2d 191, 194.) See, generally, General Electric Co. v. Kimball Jewelers, Inc., 333 Mass. 665, 132 N. E. 2d 652. In view of the foregoing, no question can be raised as to the validity of the Kansas act as it applies to parties actually entering into a voluntary contract pursuant to G. S. 1949, 50-302. Thus, our discussion is limited solely to whether the Kansas act, as it applies to nonsigners of contracts entered into pursuant to its provisions, is in conflict with the Constitution of Kansas.
The movement in the states to legalize resale price maintenance contracts had its birth in California with the passage of the California Fair Trade Act in 1931 (Cal. Stat. 1931, Ch. 278). As originally enacted it permitted a manufacturer to establish resale prices binding only on retailers who voluntarily entered into a contract with him. The act apparently proved ineffective since it was amended in 1933 to include a “nonsigner” clause which provided that such contract established a minimum resale price upon any person who had knowledge of it. (Cal. Stat. 1933, Ch. 260.) By 1941 forty-five states had adopted the California act or one of substantially the same purport, fifteen of which permitted the fixing of absolute prices, and thirty, including Kansas, permitted the fixing of minimum prices and used the phrase “free and open competition” while other acts read “fair and open competition.” These distinctions, however, are slight and immaterial to the legal question here presented.
Courts of thirty-one states have passed upon the validity of the nonsigner clause — sixteen held it unconstitutional and void; fifteen sustained it. No extensive review of those many decisions will be made, but we note the trend of recent cases is to strike down the nonsigner clause. Since the decision in the influential case of Schwegmann Bros. v. Calvert Corp., supra, on May 21, 1951, of the courts of last resort of thirteen states considering the question for the first time, eleven declared the nonsigner clause to be in violation of their respective constitutions while only two upheld it. This decided trend of judicial authority, while persuasive, does not necessarily control the decision of this court since those decisions interpreted constitutional provisions unlike our own. In the final analysis, this court is the sole arbiter of the question whether an act of the legislature is invalid under the Constitution of Kansas. Where this is the only question, federal decisions are persuasive, but not controlling precedents. It is only where a federal question is presented that federal decisions control (11 Am. Jur., Constitutional Law, § 103, pp. 739, 740). As has been noted, no such question arises with respect to the validity of the nonsigner clause.
We turn now to the Kansas act which became effective March 4, 1937, (L. 1937, Ch. 165, §§ 1-10) containing the same or similar provisions as fair-trade acts of other states. The act has two principal provisions: (1) a voluntary contract clause (G. S. 1949, 50-302) which provides in effect that a contract between an owner of a trade-mark, branded or named commodity, and one or more retailers shall not be invalid by reason of a stipulated minimum resale price, and (2) a “nonsigner” clause (G. S. 1949, 50-306) which makes the stipulated minimum resale price binding upon all persons who have notice of it, whether or not they are parties to the contract.
The pertinent language of the sections above referred to, material to our discussion, is quoted below. (All reference to the act is directed to G. S. 1949 unless otherwise noted.)
“50-302. No contract relating to the sale or resale of a commodity which bears, or the label or container of which bears, the registered trade-mark, brand, or name of the producer or distributor of such commodity and which commodity is in free and open competition with commodities of the same general class produced or distributed by others shall be deemed in violation of any law of the state of Kansas by reason of any of the following provisions which may be contained in such contract:
“(a) That the buyer will not resell such commodity at less than the minimum price stipulated by the seller.”
“50-306. Willfully and knowingly advertising, offering for sale or selling any commodity at less than the price stipulated in any contract entered into pursuant to the provisions of this act, -whether the person so advertising, offering for sale or selling is or is not a party to such contract, is unfair competition and is actionable at the suit of any person damaged thereby.” (Emphasis supplied.)
The declared purpose of the act is to protect registered trademark owners, producers, distributors and the general public against injurious and uneconomic practices through the use of voluntary contracts establishing minimum resale prices. To carry out that purpose, the legislature authorized the owner of a trade-mark commodity to “contract” with a retailer that he would not sell the commodity “at less than the minimum price stipulated” by the owner of the trade-mark. But, the legislature went further. It not only permits such owner to make a “contract” with one or more retailers, such as Bailey, fixing a minimum resale price, but once such a price-fixing contract becomes known to a seller, such as the plaintiff, the act condemns as unfair competition a resale at less than the price stipulated even though the seller is not a party to the contract. In other words, the act permits enforcement of price fixing not only against parties to a “contract” but also against nonsigners. Thus, so far as the act is concerned, price fixing can be enforced against all retailers of the trade-mark commodity once any single retailer agrees with the owner or his authorized distributor on the resale price. The essence of retail price maintenance is control of price competition, and the backbone of the act is the nonsigner clause without which the law is ineffective to maintain retail prices. Illustrative in the instant case, there is nothing in the defendant’s price-fixing contract with Bailey binding upon the plaintiff; it is solely the nonsigner clause which permits enforcement of the fixed resale price. As a result, all nonsigner retailers of the trade-mark commodity are forced into line. This is statutory price fixing by compulsion. (Schwegmann Bros. v. Calvert Corp., 341 U. S. 384, 95 L. Ed. 1035, 71 S. Ct. 745, 19 A. L. R. 2d 1119; Union Carbide and Carbon Corp. v. White River Distributors, Inc., 224 Ark. 558, 562, 275 S. W. 2d 455; Olin Mathieson Corp. v. Francis, 134 Colo. 160, 301 P. 2d 139; General Electric Co. v. Wahle, 207 Ore. 302, 296 P. 2d 635; Calvert Distillers Corp. v. Sachs, 234 Minn. 303, 48 N. W. 2d 531; Dr. G. H. Tichenor A. Co. v. Schwegmann Bros. G. S. Mkts., 231 La. 51, 90 So. 2d 343; Bissell Carpet Sweeper Company v. Shane Co., - Ind. -, 143 N. E. 2d 415; McGraw Electric Co. v. Lewis & Smith Drug Co. Inc., 159 Nebr. 703, 68 N. W. 2d 608; Carbon Corp. v. Bargain Fair, 167 O. S. 182, 147 N. E. 2d 481).
In Schwegmann Bros. v. Calvert Corp., supra, the Supreme Court of the United States characterized fair-trade acts as price fixing laws in the following language:
. . I£ a distributor and one or more retailers want to agree, combine, or conspire to fix a minimum price, they can do so if state law permits. Their contract, combination, or conspiracy — hitherto illegal — is made lawful. They can fix minimum prices pursuant to their contract or agreement with impunity. When they seek, however, to impose price fixing on persons who have not contracted or agreed to-the scheme, the situation is vastly different. That is not- price fixing by contract or agreement; that is price fixing by compulsion. That is not following the path of consensual agreement; that is resort to coercion.” (p. 388.)
It is asserted the act is an unlawful delegation of legislative power to private persons to fix minimum retail prices binding upon parties having no contractual privity or relation to them in violation of Art. 2, § 1 of the Constitution of Kansas, which provides, “The legislative power of this state shall be vested in a house of representatives and senate.” In considering the contention, we are cognizant of the rule that the constitutionality of a statute is presumed and that all doubt must be resolved in favor of its legality and before the statute may be stricken down it must, clearly appear it violates the Constitution (State, ex rel., v. Fadely, 180 Kan. 652, 659, 308 P. 2d 537, and cases cited therein). Furthermore, this court may not substitute its judgment for that of the legislature as to whether price fixing is good or bad for the economic life of the state, nor do we enter the argument of economics and decide in the light of present-day conditions for or against the wisdom of fair-trade legislation. Whether social and economic conditions have been bettered by an enactment of the law is not a judicial question. The question is whether the statute is embraced within the legislature’s constitutional power to enact laws (Topeka Laundry Co. v. Court of Industrial Relations, 119 Kan. 12, 16, 237 Pac. 1041; State v. Wilson, 101 Kan. 789, 799, 168 Pac. 679; Associated Dairies v. Fletcher, 143 Kan. 561, 565, 56 P. 2d 106).
Assuming, but in no sense deciding, that in the exercise of the police power the legislature itself might fix minimum resale prices of trade-mark commodities, we conclude the nonsigner clause of the Fair Trade Act is an unconstitutional attempt to delegate legislative power to private persons in violation of Art. 2, § 1 of the Kansas Constitution. The statute, beyond permitting voluntary contracts or agreements between a trade-mark owner and a retailer to fix a minimum resale price binding upon the signing retailer, gives legislative sanction to the trade:mark owner to fix minimum resale prices binding upon nonsigners.
The power to fix rates or prices for the sale of services or commodities binding upon all parties whether or not they consent is a legislative power (The State v. Railway Co., 76 Kan. 467, 476, 92 Pac. 606; State, ex rel., v. Flannelly, 96 Kan. 372, 382, 152 Pac. 22; Aetna Ins. Co. v. Travis, 130 Kan. 2, 4, 285 Pac. 522; Holton Creamery Co. v. Brown, 141 Kan. 830, 833, 44 P. 2d 262; Kansas-Nebraska Natural Gas Co. v. State Corporation Commission, 169 Kan. 722, 222 P. 2d 704), and the legislature may not abdicate its function and delegate that power to a governmental agency, official, board, or to a private organization or person. (State v. Crawford, 104 Kan. 141, 143, 177 Pac. 360; State, ex rel. v. School District, 140 Kan. 171, 34 P. 2d 102; Oakland State Bank v. Bolin, 141 Kan. 126, 40 P. 2d 437; Brown v. Illinois Bankers Life Assur. Co., 144 Kan. 670, 63 P. 2d 165; State, ex rel., v. Hines, 163 Kan. 300, 182 P. 2d 865.)
The act authorizes trade-mark owners to fix prices which are automatically imposed upon nonsigners with notice and condemns as unfair competition a resale at less than the price stipulated. The fixing of minimum prices is the exercise of legislative power since it prescribes a rule governing conduct for the future which is binding upon those who do not consent. A trade-mark owner is thus empowered to determine whether the provisions of the law, i. e., the nonsigner clause, shall be placed into operation, and, if placed into operation, to what commodities it shall apply and what minimum prices it shall make binding'on nonsigning parties, and is also empowered to amend or alter the operation of the law by changing minimum prices, by eliminating or adding commodities, and fixing minimum prices for those added. In short, the trade-mark owner is privileged to place the law into effect, and to amend or alter it at his whim or caprice. (Olin Mathieson Corp. v. Francis, supra; General Electric Co. v. Wahle, supra; Dr. G. H. Tichenor A. Co. v. Schwegmann Bros. G. S. Mkts., supra; Bissell Carpet Sweeper Company v. Shane Co., supra; McGraw Electric Co. v. Lewis & Smith Drug Co., supra; Liquor Store v. Continental Distilling Corp. [Fla. 1949], 40 So. 2d 371.) This is “delegation running riot,” quoting Mr. Justice Cardozo’s description of the N. R. A. codes in a concurring opinion in Schechter Corp v. United States, 295 U. S. 495, 79 L. Ed. 1570, 55 S. Ct. 837. The legislature is powerless to clothe a private person with power to fix minimum resale prices, binding upon all who acquire and sell his trade-mark commodity with whom he has no direct contractual relation. An attempt to confer such power is an attempt to delegate legislative power, which is futile. In General Electric Co. v. Wahle, supra, the supreme court of Oregon held the nonsigner clause unconstitutional, and declared:
“. . . By his own act in entering into a contract with a single retailer, the trademark owner may fix the price for all retailers. Without regard to the interests or welfare of the nonsigners, and without their consent, he may change the price at will, or even terminate the contract ending the operation of the statute as to his commodity. It is solely up to him to say whether or not there shall be a law controlling the price at which his article of trade shall be sold. Could there possibly be a more flagrant violation of the constitutional provision respecting the delegation of legislative power than is attempted by the Fair Trade Act? We think not. . . .” (pp. 329, 330.)
In Olin Mathieson Corp. v. Francis, supra, the supreme court of Colorado held that the Fair Trade Act, by permitting trade-mark owners to fix prices by contracts with others so as to be binding on nonsigners, was an unconstitutional delegation of legislative power, and said:
“. . . The device known as the fair trade principle employed in such statutes in the name of protection of the producer’s trade-mark and purporting to benefit the public, is designed to serve the manufacturer’s interest; is for his own gain and hence an arbitrary and unreasonable regulation of the non-signer’s business and a delegation of the legislative power in contravention of the constitution. . . (pp. 176, 177.)
In the recent case of Carbon Corp. v. Bargain Fair, supra, the supreme court of Ohio in holding the Fair Trade Act unconstitutional as applied to nonsigners of contracts entered into pursuant to its provisions, said:
“. . . Moreover, it . . . delegates legislative power and discretion to private persons.” (p. 186.)
In Dr. G. H. Tichenor A. Co. v. Schwegmann Bros. G. S. Mkts., supra, the supreme court of Louisiana said:
“In the light of the foregoing, it is manifest, if the nonsigner provision of the Louisiana Fair Trade Law sought to be enforced in this case is a price-fixing measure, there is an unlawful delegation of power because it is the manufacturer or producer who fixes the minimum price and not the Legislature itself. . . .” (p. 66.)
We have not overlooked defendant’s contention that the act does no more than provide additional protection to the property right and good will of the owner’s trade-mark which enables him to designate the minimum price at which commodities bearing his trade-mark or label may be sold, and that when commodities are acquired by nonsigners with knowledge of the minimum price, the purchase carries with it the nonsigners’ implied assent thereto, which runs with and conditions the acquisition, relying upon Old Dearborn Co. v. Seagram Corp., 299 U. S. 183, 81 L. Ed. 109, 57 S. Ct., 139; General Electric Co. v. Kimball Jewelers, Inc., 333 Mass. 665, 132 N. E. 2d 652; Burche Co. Aplnt. v. General Elec. Co., 382 Pa. 370, 115 A. 2d 361; Lionel Corp. v. Grayson-Robinson Stores, 15 N. J. 191, 104 A. 2d 304, and Weco Products Co. v. Reed Drug Co., 225 Wis. 474, 274 N. W. 426. We do not accept the implied-assent theory advanced by the defendant. It is obvious to us that what was described as price fixing by coercion — “whereby recalcitrants are dragged in by the heels and compelled to submit to price fixing” in Schwegmann Bros. v. Calvert Corp., supra, (p. 390) is still compulsory price fixing under any nonsigner clause including 50-306. If additional protection to the property right and good will of the owners trade-mark is to be given him, it must be accomplished pursuant to the Constitution of Kansas and we have concluded the method here employed attempts to confer that right in violation of Art. 2, § 1 of the Constitution.
We are not here concerned with a statute which places upon an official or board a duty to execute a law made by the legislature, or which fixes a reasonable and fair rate, price or charge for trademark, brand or named commodities and delegates to a governmental agency the power to find as a fact what is fair and reasonable under proper standards and subject to safeguards of procedural due process, nor do we decide the validity of such a statute.
In view of the foregoing we hold that the Fair Trade Act (50-301-310) of this state, as applied to nonsigners of contracts entered into pursuant to its provisions, is unconstitutional and void, being in violation of Art. 2, § 1 of the Constitution of Kansas. Consequently, it is unnecessary that we discuss and decide other questions presented by the parties. The judgment of the district court is reversed with directions to enter judgment for the plaintiff.
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The opinion of the court was delivered by
Wertz, J.:
This appeal arises from a ruling of the trial court sustaining defendant’s motion for judgment on the pleadings. The pertinent portions of the pleadings are narrated below.
Plaintiff’s petition, as amended, alleged: On or about October 1, 1954, defendant (appellee), Woods, Inc., hired plaintiff (appellant), David Manning, as a salesman for one year from date of agreement in an oral contract of employment, whereby defendant offered to pay plaintiff a salary of $1000 a month, plus a guaranteed bonus of from $2000 to $5000 a year, depending upon the increase in defendant’s business, which plaintiff alleged increased substan tially in 1954. In compliance with this oral agreement, plaintiff moved from Dallas, Texas, to Wichita, and commenced working for defendant under the terms of the contract on October 15, 1954, continuing to so work until December 29, 1954, at which time he was discharged without cause. Plaintiff was paid the agreed $1000 a month until'January 7, 1955. Plaintiff further alleged that he received no bonus and, regardless of his demand for the balance due under the contract, defendant refused to pay any amount whatsoever. Plaintiff asked judgment in a specified amount for the balance due under the terms of the contract of employment.
Defendant’s answer to the petition denied generally all the allegations thereof and specifically denied that plaintiff had been employed by defendant for a term of one year or that defendant had guaranteed plaintiff a bonus. The answer then alleged that plaintiff had been employed to work from month to month at a salary of $1000 a month; that the agreement was terminable at will and had hot become effective until plaintiff commenced work for defendant on or about October 16, 1954. Defendant further alleged that plaintiff was informed in writing that the only bonus he would receive, if any, would be in whatever amount defendant saw fit to pay. Defendant also alleged that plaintiff was discharged for incompetency, and that:
“For further defense, defendant alleges that . upon the termination of plaintiff’s employment, in consideration for the sum of Two Hundred Fifty Dollars ($250.00) paid by the defendant, the plaintiff executed in writing a release by him on all claims arising out of his employment contract with the defendant. A true and correct copy of the aforesaid written instrument is attached hereto as Exhibit ‘A,’ incorporated herein and made a part hereof. The aforesaid written instrument executed by the plaintiff constitutes an accord and satisfaction between the parties to this action of any and all claims arising out of the plaintiff’s employment with the defendant.”
Exhibit “A” is a check for $209.60, on the face of which appears, “This check is in' full settlement of account as shown .hereon. Acceptance by endorsement constitutes receipt in full.” In accounting columns on the face of the check appear the following items: “Salary 250.00, S. S. 5.00, W. T. 35.40.” On the back of the check appears, “Salary in full for all services & expenses,” followed by plaintiffs signature.
Plaintiff replied to defendant’s answer by way of verified general and specific denials of the allegations and new matter set up by defendant. A portion of the verified reply reads:
“. . . plaintiff states that the $250.00 allegedly paid by defendant to plaintiff was not paid in consideration for a release by plaintiff of his claims arising out of his employment contract with defendant. Plaintiff alleges that the $250.00 check, a copy of which is attached to defendant’s answer and marked Exhibit ‘A,’ was not paid to plaintiff with the intention on the part of defendant that the same would constitute a release to defendant by plaintiff of plaintiff’s claims arising out of his employment contract with the defendant and furthermore alleges that plaintiff did not accept such check or payment in consideration of any release whatsoever by him of his claims arising out of his employment contract with defendant.”
Upon the issues thus joined, defendant filed a motion for judgment on the pleadings, which the trial court sustained, entering judgment against plaintiff, from which order and judgment plaintiff appeals.
Plaintiff, in substance, contends that there are issuable facts joined by the pleadings and that the trial court erred in sustaining a motion for judgment thereon. The motion for judgment in the instant case attacks the sufficiency of the pleadings and is therefore to be treated as a demurrer. So treated, the motion admits the truth of all well-pleaded facts in plaintiff’s petition and reply, as amended. It has been repeatedly held that a motion of the defendant for judgment on the pleadings should be denied where the petition states a cause of action, the answer states a defense and the reply denies every material allegation of the answer inconsistent with the allegations of the petition. Such a motion cannot be sustained when issues of fact upon which a valid judgment might be based are joined by the pleadings. For some of the most recent authorities applying the mentioned rule see Geier v. Eagle-Cherokee Coal Mining Co., 181 Kan. 567, 313 P. 2d 731; Smith v. Harris, 178 Kan. 183, 284 P. 2d 611; Drury v. State Highway Commission, 175 Kan. 667, 265 P. 2d 1022; Buechner v. Trude, 175 Kan. 572, 266 P. 2d 267; Lanning v. Goldsberry, 173 Kan. 654, 250 P. 2d 812; Ewing v. Pioneer Nat’l Life Ins. Co., 158 Kan. 371, 147 P. 2d 755; Pennington v. Kross, 154 Kan. 667, 121 P. 2d 275. In Artesian Valley Water Conservation Assn. v. Division of Water Resources, 174 Kan. 212, 213, 255 P. 2d 1015, we held:
“The general rule is that in determining a motion for judgment on the pleadings the court considers the facts pleaded in and the sufficiency of the pleading against which the motion is leveled, and ignores the pleadings of the moving party.”
Defendant contends that plaintiff’s acceptance of defendant’s check, as pleaded in its answer, constituted an accord and satisfac tión of plaintiff’s claim as a matter of law. We do not so view it. It is a well-established rule in this state that an accord and satisfaction is the adjustment of a disagreement as to what is due from one party to another and the payment of the agreed amount. In Harrison v. Henderson, 67 Kan. 194, 200, 72 Pac. 875, it was stated:
“An accord and satisfaction is the result of an agreement between the parties, and, like all other agreements, must be consummated by a meeting of the minds of the parties, accompanied by a sufficient consideration. If the creditor is to be held to abate his claim against the debtor, it must be shown that he understood that he was doing so when he received the claimed consideration therefor. A simple tender of a ‘balance’ as shown by an account tendered by the debtor does not carry with it an implication or conclusion that by such tender the debtor paid, or that the creditor agreed to receive, the same in full of the amount due, where there has been no prior disagreement or discussion as to what was actually due.” [Emphasis supplied.]
See also Asher v. Greenleaf, 68 Kan. 29, 74 Pac. 633; Neely v. Thompson, 68 Kan. 193, 75 Pac. 117; Matheney v. El Dorado, 82 Kan. 720, 109 Pac. 166; Minor v. Bank, 112 Kan. 666, 212 Pac. 672; Block v. Bodam, 128 Kan. 354, 278 Pac. 19; Lighthouse for the Blind v. Miller, 149 Kan. 165, 86 P. 2d 508.
The allegations in plaintiff’s reply that the check was not paid to him in consideration of a release of his claims, was not intended by defendant to constitute a release, and was not accepted by plaintiff in consideration of a release must be taken as true. These facts effectively negate any possibility that the parties agreed expressly that the check satisfied all claims. It is noted that the check was dated the day before plaintiff was discharged and, thus, presumably before any dispute arose. There was no allegation in the pleadings that at or prior to the time the check was accepted there was any dispute or controversy existing between the parties as to the amount due under the employment contract. Defendant, by its motion for judgment on the pleadings, did not establish the defense pleaded, but the defendant did admit the facts pleaded against it in the reply. Defendant’s motion did not overcome the denials or the affirmative material of plaintiff’s verified reply.
As a matter of law, we do not think that the trial court or this court could examine the check denominated by defendant as a release and say that it was an accord and satisfaction of plaintiff’s claim under the contract of employment. Issuable facts are joined by the pleadings and the plaintiff is entitled to a determination of the same by a trial of the facts.
In view of -what has been said above, the judgment of the trial court is reversed and the cause is remanded with directions to set the judgment aside and proceed with the trial.
It is so ordered.
Jackson, J., not participating.
Price, J., dissents. | [
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The opinion of the court was delivered by
Robb, J.:
This action was originally commenced to recover rentals as provided in a farm lease executed between the lessor, U. S. McDonald, as guardian of two incompetent persons, Mary Ann Diepenbrock and August Henry Diepenbrock, and the lessee, A. A. Carlson, also known as Albert Carlson.
Successor guardians to McDonald were later appointed by the probate court and the appeal is from orders of the trial court abating the action or, in the alternative, declaring the judgment dormant, and overruling a motion to substitute the successor guardians for the original guardian.
We are first confronted with a motion by appellee to dismiss the appeal on the ground our rule No. 5 as to the furnishing of an abstract was not complied with but this matter was corrected by a previous order of the court to the effect that appellant’s brief was to be considered as an abstract also. Two other grounds are relied upon in the motion to dismiss but they cannot be determined without determining also the questions involving the merits of the appeal and we will, therefore, pass them at this time.
Allegations of the original petition pertinent to this appeal are as follows:
“1. That U. S. McDonald is the duly qualified and acting guardian of the estate and person of Mary Ann Diepenbrock, an incompetent person and is the duly qualified and acting guardian of the estate and person of August Henry Diepenbrock, an incompetent person, that said incompetent persons, together with their guardian are residents of Saline County, Kansas.
“3. That the said incompetents Mary Ann Diepenbrock and August Henry Diepenbrock are the owners of adjoining tracts of farm land whidh for many years have been farmed together as one unit . . .
“4. That the plaintiff in his aforesaid guardianship capacities on August 1, 1952, by a written lease agreement duly executed by plaintiff and defendant . . . let to said defendant Albert Carlson also known as A. A. Carlson, the following described real property to wit:
[Description follows.]
“8. That on September 20, 1953, the Probate Court of Saline County, Kansas, ordered petitioner herein- to take the necessary court action to enforce said lease agreement.”
The farm lease was marked Exhibit “A” and made a part of the petition. Pertinent portions thereof read:
“That U. S. McDonald, guardian of the estates and persons of Mary Ann Diepenbrock and August Henry Diepenbrock, lessor, in consideration of the rents and covenants hereinafter stipulated to be paid and performed by Albert Carlson, lessee, and his assigns, does hereby grant, demise and lease unto said lessee, his executors, administrators and assigns, tire following described premises, to-wit:
[Description follows.]
“Said lessee, Albert Carlson, does hereby covenant and agree with lessor and his successors as follows:
“(a) That he will pay to said lessor, U. S. McDonald, Guardian as aforesaid, or his successors, cash rent as follows, receipt of which is hereby acknowledged by said lessor . . .
“And said lessor, U. S. McDonald, covenants and agrees . . . the said lessee, Albert Carlson . . . shall lawfully, peaceably and quietly hold . . . said premises . . . without any let, hinderance, ejection or molestation by said lessor or any person or persons lawfully claiming under them.”
Carlsons answer admitted paragraphs 1, 2, 3, 4, and 5 of the petition and further stated in substance that if McDonald was ordered as set out in paragraph 8 thereof, the order was made without notice to or knowledge of Carlson and upon improper and incorrect information furnished the court by McDonald. McDonald s reply admitted the court ordered the case filed without notice to or knowledge of Carlson.
The case was tried before a jury, in an advisory capacity, and it returned its special findings and verdict in favor of McDonald on March 27, 1954. There were several posttrial motions filed by Carlson and while it was not the next incident pertinent hereto in point of time, a journal entry was signed by the trial court on January 31, 1955. The posttrial motions were overruled by the journal entry and judgment entered on the special findings and verdict of the jury.
On April 22, 1954, the probate court of Saline county accepted the resignation of McDonald as guardian of the two incompetent persons and on the same date appointed Anna Ellis as guardian of the person and estate of Mary Ann Diepenbrock, and appointed Clara Kogler as guardian of the person and estate of August Henry Diepenbrock. McDonald was finally discharged on June 1, 1954. Carlson contends that McDonald’s death on June 11, 1954, was a pertinent date under his theory of this appeal but in view of the allegations of the petition and the provisions of the farm lease, we cannot agree with Carlson that McDonald’s death has anything to do with the question before us. The farm lease was executed and the action begun on behalf of the incompetent persons and not in McDonald’s personal capacity.
Carlson, on July 7, 1955, filed an affidavit for dismissal of a nonrevivable action under G. S. 1949, 60-3207, 60-3215, and 60-3216, which affidavit was not ruled upon. Later, on November 15, 1956, Carlson filed an affidavit for dismissal of a non-revivable action or, in the alternative, for abatement of a non-revivable dormant judgment, which was sustained on November 17, 1956, as follows:
“(1) By reason of the facts set forth in the aforesaid Affidavit, either said action is dormant and non-revivable and the orders and judgment in said Affidavit mentioned are null and void, or said judgment is dormant and nonrevivable.
“(2) In either event, said judgment should be nullified and abated on the record.
“(3) If said judgment ever had any validity, it became effective on March 27, 1954, the date of the jury verdict herein, by the doctrine of relation back nunc pro tunc, and would now have been dormant more than two (2) years
and the judgment entered was thereby nullified and abated.
On December 4, 1956, a motion to substitute the new guardians for McDonald was filed which showed they had been duly appointed and acting guardians since April 22, 1954. This motion used the words “revive” and “substitute” interchangeably and the trial court, in overruling it on January 15, 1957, so considered the motion. The trial court assigned its previous order of November 17, 1956, as its reason for overruling the motion. This appeal followed.
Only two questions are here presented. They are that the trial court erred (1) in entering its order of abatement on November 17, 1956, and (2) in overruling the motion for substitution of the names of the successor guardians on January 15, 1957.
We shall continue to use the name McDonald to signify appellant since the trial court refused to substitute the names of the successor guardians for his name.
The appeal was originally argued on October 4, 1957, and was reargued January 20, 1958, by order of this court, on the point as to whether revivor or substitution was necessary.
Carlson contends that when McDonald was discharged the action became dormant or the judgment was abated so as to require a. proceeding to revive under G. S. 1949, 60-3207, which provides:
“When one of the parties to an action dies, or his powers as a personal, representative cease before the judgment, if the right of action survive in favor of or against his representatives or successors, the action may be revived and proceed in their names.”
G. S. 1949, 60-3215 requires that an order of revivor by a plaintiff cannot be made without the consent of the defendant after the expiration of one year from the time the order “might have been first made,” and G. S. 1949, 60-3221, provides that a dormant judgment may be revived in the same manner as is prescribed for reviving actions before judgment at any time within two years after it becomes dormant. Carlson vigorously contends that the action not only abated upon McDonald’s discharge, which required the revivor proceeding, but that the judgment of January 31, 1955, was void because no action was pending upon which such judgment could be entered. We cannot agree that this contention is applicable in this case.
McDonald’s contention is that we have merely a matter of substitution of the names of the successor guardians for that of the original guardian. He relies on G. S. 1949, 60-759, which provides,, in part, as follows:
“The court or judge may, before or after judgment, in furtherance of justice and on such terms as may be proper, amend any pleading, process or proceeding by adding or striking out the name of anij party, or correcting a mistake in the name of a party .. . . when such amendment does not change substantially the claim or defense. . . .” (Our emphasis.)
Some of the authorities cited, together with those we have noted through our own research, will be briefly referred to.
In Railway Co. v. Moffatt, 60 Kan. 113, 116, 55 Pac. 837, where Moffatt, as next friend for three minor children, filed the original petition, Moffatt died and one of the original minors who had become of age was substituted as next friend on an amended petition. It was contended that since there was no revivor proceeding filed, the action had abated. The court, in substance, there said that from its inception the infants had been the real parties to the proceeding because their rights were the ones involved and the next friend was merely a protector of the infants’ rights; that a court will guard such minors’ interests and if necessary, has the power to remove one next friend and appoint another. Since a next friend is neither technically nor substantially a party, no formal proceedings are necessary and the statute on revivor proceedings has no application. Hence, in the Moffatt case there was no abatement of the action.
Another similar case is Shattuck v. Wolf, 72 Kan. 366, 83 Pac. 1093, where Shattuck, who was guardian of certain minors, brought suit to collect on a note and foreclose a mortgage for the benefit of the minors. The guardian was discharged when the minors became of age and they were substituted for the guardian. The court therein held:
“(1) The suit did not abate when the wards became of age and the guardian was discharged, and revivor was neither necessary nor proper.
“(2) The wards were entitled to be substituted as plaintiffs in the suit in place of the guardian.
“(3) The proceedings for substitution were properly instituted by motion; and the court had jurisdiction to hear and determine, without further pleadings and without a jury, the facts presented by the motion.” (Syl.)
Counsel does not cite, nor does our research reveal, any appropriate Kansas case involving a guardian of the person or estate of an incompetent, but we will mention a few of our cases which are analogous and we think helpful in determining the question now before us.
Service v. Bank, 62 Kan. 857, 62 Pac. 670, concerned a payee of a note who filed an action to recover on the note and foreclose a mortgage. Later the name of a bank to which the payee had endorsed the note and mortgage was substituted and the court therein stated:
“While it is a radical amendment to substitute one plaintiff for another, such an amendment is clearly within the power of the court, under the plain provisions of the code, and Weaver v. Young, 37 Kan. 70, 14 Pac. 458, is directly in point and settles the question in favor of the substitution. In that case an amendment was permitted striking out the name of one party who was the sole plaintiff and substituting another and distinct party, after it was shown that the first name was used by mistake . . .,” (p. 860)
and the court further commented that in such cases it is vested with much discretion and will guard the rights of parties by permitting amendments to be made only where they will accomplish justice. The court there held the substitution did not operate unjustly toward the defendants. See, also, Harlan v. Loomis, 92 Kan. 398, 400, 140 Pac. 845; Sundgren v. Topeka Transportation Co., 178 Kan. 83, 89, 283 P. 2d 444; Russell v. American Rock Crusher Co., 181 Kan. 891, 897, 317 P. 2d 847.
Another field where there has been substitution of one party for another was presented by certain railroad controversies when the federal government had control under the Transportation Act of 1920 and in exercise thereof appointed agents for the director-general. (Toothaker v. Railroad Co., 112 Kan. 304, 210 Pac. 1110.) In the above case at p. 307 it is stated that a change of agents "took place between the judgment in the district court and the hearing on appeal.” The same attornéys appeared at all pertinent times— not for either agent personally as an officer of the government — but for the federal railroad agent, whatever individual held that position at the time. The court ruled that the new incumbent had done all that was necessary “by his appearance through his attorneys, which we hold resulted in an informal but actual substitution such as to preserve the jurisdiction of the court, the appeal under the present Kansas code being a part of the same proceeding with the original case.” (Our emphasis.) (p. 307.) The Toothaker case was cited with approval in Lukens v. Payne, 118 Kan. 547, 548, 235 Pac. 841, as authority for the proposition that where,
“James C. Davis succeeded John Barton Payne as federal railroad agent on March 28, 1921, and the federal rule appears to be that he should have been substituted within a year. It may be, however, that so far as this feature of the case is concerned, the appearance in the name of Payne after his representative capacity had ceased brought about an informal but effective substitution.” (Our emphasis.) (p. 548.)
Another appropriate statement is found in the Sundgren case, supra, where the court reiterated the familiar rule that great latitude is given to a trial court in the matter of amendment of pleadings with a view of curing defects, supplying omissions and preventing injustice.
In view of the foregoing authorities, we can only conclude that McDonald was merely a protector of the rights of the two incompetent persons. They were the real parties to the proceeding from its inception. The action did not abate nor the judgment become dormant upon the discharge of McDonald so that a formal revivor proceeding was necessary under G. S. 1949, 60-3207 or 60-3221. A trial court has much discretion in such a situation as this and in furtherance of justice, it must be ever vigilant to guard the rights of the parties. Here the parties are incompetent persons and the trial court in furtherance of justice should have permitted substitution of the names of the successor guardians, as was sought by them in their motion. Such is definitely the rule prevailing in cases involving minors and we find no authority, nor is any presented by the parties, that persuades us to apply a different rule to. incompetent persons, who are equally unable to care for themselves.
It cannot be denied that Carlson received benefits from his lease of the land which belonged to the incompetent persons. The proceedings and motions subsequent to the verdict and prior to the judgment were resisted by attorneys who represented — not McDonald — but whoever the guardian or guardians were at the time. When McDonald resigned the jurisdiction of the court was preserved by an informal but actual and effective substitution of Anna Ellis as guardian of the person and the estate of Mary Ann Diepenbrock, and of Clara Kogler as guardian of the person and the estate of August Henry Diepenbrock. The trial court therefore erred in ordering the action abated on November 17, 1956, and in refusing to substitute the names of Anna Ellis and Clara Kogler for the name of McDonald. Making the substitution order would have been merely a matter of procedure to be followed by the trial court and we think it was encumbent upon that court to do so in this case.
It follows that under G. S. 1949, 60-3317, this court is bound 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.”
From the foregoing discussion, it is apparent that the motion to dismiss mentioned earlier herein must be and the same is hereby denied.
The orders of the trial court on both issues involved are reversed with directions to substitute the name of Anna Ellis as guardian of the person and estate of Mary Ann Diepenbrock, an incompetent person, and to substitute the name of Clara Kogler as guardian of the person and estate of August Henry Diepenbrock, an incompetent person, for that of U. S. McDonald, as guardian of the estates and persons of Mary Ann Diepenbrock and August Henry Diepenbrock, both incompetent persons, wherever the name, U. S. McDonald, appears in the proceeding involved herein. The judgment is to be reinstated in the names of the aforesaid successor guardians.
Price, J., concurs in the result. | [
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The opinion of the court was delivered by
Fatzer, J.:
This was an action to partition real estate and to account for rents and profits. Trial was by the court, which rendered judgment for the defendants (appellees) and assessed the costs of the action against the plaintiffs (appellants). Following the overruling of their motion for a new trial the plaintiffs have appealed.
At the outset, our jurisdiction to hear this appeal is challenged. Following the perfection of the appeal on April 17, 1957, the defendants filed a motion to dismiss it on the ground that plaintiffs had voluntarily acquiesced in the judgment by paying the costs assessed against them. Attached to the motion to dismiss was the affidavit of the clerk of the district court, which, in part, reads:
“The records in my office Book show that on May 17th, 1957, there was paid to me, as such Clerk, the amount of $50.32 by W. K. Benson and Mrs. Charles Haught, who are the Plaintiffs in said case, for the purpose of the payment of the balance of the Court costs accrued to that date, and true and correct copies of said receipts are attached to my Affidavit, and made a part thereof. The original of said receipts were delivered by me as such Clerk to said Mrs. Charles Haught, one of the Plaintiffs.
“That when this action was commenced the Plaintiffs paid to the Clerk of this Court, the sum of $27.50 as a deposit to secure the payment of the costs. That said original deposits of $27.50 and said $50.32 made a total of $77.82, which sum was credited to the Plaintiffs and used by me in the payment of all costs that had accrued to May 17th, 1957.”
“. . . that on April 15, 1957, a Journal Entry of Judgment was filed and has been recorded. It shows that it was adjudged and decreed by the Court that the Defendants, Bernice Benson Wiley and George J. Benson, shall have and recover of the Plaintiffs, the costs of this action. . . . That the records in my office do not show that any praecipe for an execution has ever been filed and does not show that any execution was ever issued, and no execution was ever issued for the purpose of collecting the aforesaid judgment for costs against the Plaintiffs, or either of them, and nothing was ever filed in said case seeking to enforce any part of the judgment in said case. That the • Plaintiffs have never filed in the office of the Clerk of this Court, any supersedeas bond or any bond to stay the execution against them for the collection of the aforesaid Court costs, and the records in said case does not show that any such bond was ever filed, and no application was ever filed requesting a stay of execution of said judgment.”
By way of reply to the motion to dismiss, counsel for plaintiffs filed an affidavit admitting payment of the costs, but inferring the payment was not voluntary and was made under threats of defendants to issue execution on the judgment and that plaintiffs were financially unable to make a supersedeas bond in the amount of $77,261.70 with an annual premium of $645 which plaintiffs contend was necessary to stay the execution of the judgment.
It is clear from the record there was no levy upon the property of the plaintiffs to satisfy the judgment, no execution had been issued nor praecipe for execution filed. In a long line of decisions this court has consistently held (and no decisions are to the contrary) that whatever savors of acquiescence in a judgment cuts off the right of appellate review, and that the payment of costs by a defeated party falls in that category (Bank v. Bracey, 112 Kan. 677, 212 Pac. 675; Paulsen v. McCormack, 133 Kan. 523, 1 P. 2d 259; Paul v. Western Distributing Co., 142 Kan. 816, 52 P. 2d 379; Muckey v. Baehr, 158 Kan. 19, 145 P. 2d 164; Newsome v. Anderson, 164 Kan. 132, 187 P. 2d 495; Hawkins v. Wilson, 174 Kan. 602, 604, 257 P. 2d 1110; Rose v. Helstrom, 177 Kan. 209, 212, 277 P. 2d 633). In view of the consistent application of this rule it is unnecessary to review each of those cases. In the recent case of Gehring v. Goering, decided November 9, 1957, 181 Kan. 994, 317 P. 2d 424, the rule was again applied and reaffirmed in a factual situation less compelling than the instant case.
Plaintiffs contend that under G. S. 1949, 60-3322 (First) they could not have stayed an execution unless they gave a supersedeas bond in the amount of $77,261.70, requiring an annual premium of $645, and pay all damages and costs awarded against them. The amount of the bond asserted by plaintiffs as being necessary was in double the amount of certain money in the..hands of the clerk of the district court paid by Myers Materials, Inc. for rock removed from the real estate and by The Kansas Turnpike Authority for the purchase of a right of way, totaling in the sum of $38,590.85. The contention is without merit. Following judgment, plaintiffs requested the trial court to withhold disbursement of the $38,590.85 until their motion for a New trial was ruled upon. That motion was set for hearing April 15, 1957, and was overruled. Plaintiffs did not renew their request for further stay and announced they would not give bond to stay execution of the judgment. G. S. 1949, 60-3322 (First) provides in substance that when the judgment or final order sought to be reversed directs the payment of money, the written undertaking shall be in double the amount of the judgment or order. The only judgment for “the payment of money” against the plaintiffs was that for costs of the action in the sum of $77.82, and a bond not to exceed $160 would have stayed the execution; consequently, there was no requirement the bond be in the sum asserted by the plaintiffs.
As stated in Paulsen v. McCormack, supra, p. 527, it is a very easy matter in this state to procure a stay of execution, supersedeas, or the like, which would halt an execution for costs. Clearly, in the instant case the giving of a supersedeas bond in the sum of $160 was not an unsurmountable obstacle to the plaintiffs, which, if given in lieu of payment of the costs, would not have constituted an acquiescence in the judgment against them. In Newsome v. Anderson, supra, it was said:
“. . . There was no impending levy upon appellant’s property, no execution had been issued and, in contemplation of law, there was no coercion. . . .” (l. c. 138.)
The plaintiffs cite Feight v. Wyandt, 79 Kan. 309, 99 Pac. 611. The decision is not in point. There, the motion to dismiss the appeal was denied because payment was after execution had been issued and this court held the payment involuntary; here, the plaintiffs’ payment was without protest to the clerk of the district court and was, therefore, a voluntary payment which constituted acquiescence in the judgment.
We have carefully examined the record and the authorities cited by plaintiffs and conclude the motion to dismiss the appeal must be sustained.
It is so ordered. | [
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The opinion of the court was delivered by
Price, J.:
This is an action against the state highway commission by the parents of a six-year-old boy to recover for his death, alleged to have been proximately caused by a defect in a state highway.
The commission has appealed from an order overruling its demurrer to the petition.
The sole question is whether the petition sufficiently alleges a defect within the meaning of G. S. 1949, 68-419, which provides that any person who shall, without contributing negligence on his part, sustain damage by reason of any defect in a state highway, may recover such damages from the state of Kansas.
In the interest of accuracy, we quote the material portions of the petition:
“3. That on the 22nd day of January, 1956, and on all dates hereafter mentioned, Highway U. S. 50S was a public highway under the maintenance, supervision and control of the State Highway Commission of the State of Kansas and said highway U. S. 50S is a part of the State Highway System of tlie State of Kansas extending in an Easterly and Westerly direction through Finney County, Kansas; and that on January 22, 1956, said highway was open to traffic thereon; and that on said day and for many years prior thereto, U. S. Highway 50S was a concrete highway extending East of Garden City, Kansas, in Finney County and that previous to the time referred to herein, the exact time being to plaintiff unknown, but being well known to the defendant, said highway was being repaired by placing thereon a layer of asphalt or bituminous mat. That said resurfacing or repairing of said highway commenced at or near the city limits of Garden City, Kansas, and extended for some distance East from said city and said resurfacing or repairing was completed on both sides of said highway to a distance of about ten (10) miles from the East city limits of Garden City, Kansas, through Finney County, Kansas.
“4. That at a point approximately ten (10) miles Southeast of said city and outside the limits of any incorporated city, the resurfacing or laying of the mat was terminated on the West half of said highway for traffic traveling in a Southerly direction upon said highway. That the mat on the East half of said highway continued on for a distance of several miles. That where the mat was discontinued on the West half of said highway, there was created a drop-off from the level of the new mat to the surface of the old roadbed of some four (4) inches in depth. This condition being caused by the difference of the thickness of the new mat and the old roadbed. From the point of discontinuance of the new mat on the West half of said highway and the continuance of the new mat on the East half of said highway there was created a roadbed of different levels. This condition existing due to the difference of the thickness of the new mat on the East half of said highway and the old concrete roadbed on the West half created a dangerous and hazardous condition for safe travel to persons using said highway, including plaintiffs herein.
“5. That neither the plaintiffs nor any of the occupants of plaintiff’s car were aware of the defects in the highway and that there were no signs, flares or warning devices of any nature whatsoever at or near the aforementioned point to apprise the traveling public and more specifically the plaintiffs herein, of the defective and dangerous condition existing on said highway.
“6. That the condition of said highway at the time and place previously described herein and the failure of the State Highway Commission and its officials to properly display signs or other warning devices to notify the traveling public of the condition then and there existing constituted a defect in said highway within the meaning of G. S. 1949, 68-419, and was the sole and proximate cause of the injuries and damages sustained and herein complained of.”
It is then alleged that on or about January 22,1956, at four o’clock A. M., plaintiff father, accompanied by his wife and their two minor sons, was driving his automobile on the highway in question in a careful and prudent manner; that while so doing he encountered the four-inch drop-off, above described, which caused the car to swerve and skid into the raised portion of the new mat on the left-hand side of the highway causing him to lose control of the car, and that it skidded sideways off the roadway onto the shoulder on the outside of the highway and overturned in the right-hand ditch, resulting in the death of one of his sons.
Since the passage of the statute in question numerous cases arising under it have been before this court. Most of them are cited in the annotations following the statute number in G. S. 1949 and G. S. 1955 Supp. We call attention to three of the more recent decisions—Shafer v. State Highway Commission, 168 Kan. 591, 215 P. 2d 172; Sheen v. State Highway Commission, 173 Kan. 491, 249 P. 2d 934, and Summers v. State Highway Commission, 178 Kan. 234, 284 P. 2d 632.
From these, and the numerous cases cited in the opinions, it is clear that the following rules have become firmly established:
The question whether an alleged defect comes within the purview of the statute is, in the first instance, a question of law to be determined by the court. There is no legal foot rule by which to measure conditions generally and determine with exact precision whether a given condition constitutes a defect. Some conditions may be so patently dangerous as to clearly constitute defects, while others may be so trifling as to be clearly outside the purview of the statute. The policy of courts is to handle each case separately and either to include it in or exclude it from the operation of the statute. Where circumstances are such that an alleged defect cannot be excluded from the operation of the statute as a matter of law, it presents a proper case for a jury to determine. Without any legal foot rule by which to measure an alleged defective condition, it must be compared with general conditions and surrounding circumstances, and, in one sense of the word, the question whether a given condition constitutes a defect within the meaning of the statute is relative.
In the determination of the question whether the petition sufficiently alleges a defect within the meaning of the statute (G. S. 1949, 68-419), its allegations are to be taken as true. Here we have a concrete highway which had been resurfaced with a four-inch layer of asphalt or bituminous mat for approximately ten miles southeast of Garden City. There was nothing to indicate to a driver that such excellent driving conditions would not continue on. But they did not, and suddenly, without warning of any kind, came to an abrupt end insofar as this driver was concerned. He was confronted with a four-inch drop-off in his traffic lane from which there was no escape. We doubt that it would be seriously contended that a four-inch depression or hole extending the entire width of a traffic lane would not be a defect. The allegations of this petition speak for themselves, and we have no difficulty in holding that the condition pleaded constitutes a defect within the meaning of the statute.
Defendant commission relies heavily on the Summers case, supra, but we fail to see the analogy. There the highway was of ordinary black-top construction. It is common knowledge that such type of surfacing tends to feather off and crumble at the edges, especially where it may have been subjected to the rigors of heavy traffic and severe weather conditions. The decision and reasoning of that case are not controlling on the question here presented.
Without further discussion, we are of the opinion the trial court correctly overruled the demurrer to the petition, and the judgment is therefore affirmed. | [
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|
The opinion of the court was delivered by
Prager, J.:
These are two civil appeals arising from the same district court case in which the trial court upheld an administrative order of the Kansas Securities Commissioner ordering Activator Supply Company, Inc., (ASC) and Culture Farms, Inc., (CFI) to cease and desist certain business operations within and without the State of Kansas. The factual circumstances in the case are somewhat complex. Charles A. Briscoe, the administrative hearing officer, made comprehensive findings of fact which were adopted by both the securities commissioner and the district court on appeal. In order to make the facts more understandable, we will try to simplify the 46 findings of fact of the hearing officer.
It could be stated that the origin of this lawsuit goes back to about 40 B.C. when Cleopatra was the queen of Egypt and renowned for her beauty. Apparently Cleopatra developed a skill for concocting perfumes and beauty aids. According to the brochure issued by ASC and CFI, Cleopatra enjoyed bathing in milk in order to develop and maintain a soft and supple skin. Cleopatra’s secret involved the use of milk cultures which were utilized in the form of bath creams, lotions, and oils. Cleopatra’s secret formula was apparently lost and not rediscovered until a lady in Africa, who seemed to grow younger, shared her formula with others. It is stated in the company’s brochure that the rest is history.
According to the evidence presented at the trial, a business venture involving the growing of milk cultures was started in South Africa under the name of Kubus Kwerkery pursuant to a licensing agreement with a Liechtenstein corporation. In 1984, the rights in the milk cultures were transferred to Ariate N.V., a Netherlands Antilles corporation, whose agent was Paul Stemm, an Illinois attorney living in California. In 1984, Ariate, through Stemm, transferred its rights in the lactic cultures to Kubus Nursery, a Nevada corporation, for the purpose of marketing the Kubus cultures in the United States. Stemm contacted various persons to set up the marketing program. As a result of Stemm’s efforts, several corporations were formed. Activator Supply Company, Inc., (ASC) was organized on November 15, 1984, to engage in the selling and marketing of activator kits which consisted of packets of a dry substance which, when mixed with milk, would form a lactic “culture.” Stemm also organized a Kansas corporation, Culture Farms, Inc., (CFI) on November 16, 1984. Its purpose was to produce, buy, and sell cultures. There was also organized a Nevada corporation, Cleopatra’s Secret, Inc., (House of Cleopatra) whose function it was to utilize the “cultures” in the manufacture of cosmetics. Various other corporations and organizations were also involved in the business. Simply stated, CFI produced the activators; ASC bought the activators from CFI and resold them to the growers, private individuals who desired to grow the cultures. A minimum of ten activators had to be purchased by a grower for a cost of $350. Activators could be purchased only directly from ASC or its representatives. A person who purchased activators from ASC and grew a “culture” could sell the culture to CFI by use of a form provided by ASC.
Most of the cultures bought by CFI from the growers were made into activators which were then sold to ASC. There were a small number of the cultures purchased from CFI by the House of Cleopatra and utilized in the manufacture of cosmetics. The evidence in the case was undisputed that, at the time of the hearing, there was no other market for cultures except the House of Cleopatra. It is clear from the evidence that only a small percentage of the cultures received by CFI were submitted to the Department of Microbiology at the University of Kansas for testing for quality control evaluation. The vast majority of the cultures, along with their paper containers, were ground up and used to manufacture new activator kits without any testing whatsoever. Further facts about the nature of the business operations will be discussed later in the opinion.
Early in 1985, the business operations of ASC, CFI, and other associated corporations came to the attention of the Kansas Securities Commissioner. A staff attorney for the commissioner ordered an administrative inquiry of CFI pursuant to K.S.A. 1985 Supp. 17-1265. On March 5, 1985, the office of the securities commissioner gave notice by telephone to ASC and CFI that a temporary cease and desist order to halt their business operations was to be issued. The attorneys for CFI wrote the commissioner requesting the statutory notice and a public hearing on the question of what constitutes a security. On March 6, 1985, the securities commissioner issued a temporary cease and desist order pursuant to K.S.A. 17-1265a(b). CFI and ASC then filed an action in district court and a motion seeking a temporary order restraining the cease and desist order on due process grounds in order to prevent irreparable injury to CFI and ASC. The district court issued a temporary restraining order as requested. The commissioner then filed a motion to set aside the temporary restraining order and to dismiss the equitable proceeding. The district court held a hearing and denied the commissioner’s motion, holding that ASC and CFI should be afforded a full evidentiary hearing before any temporary cease and desist order became effective. This order was entered on April 2, 1985.
The securities commissioner then entered an order for an evidentiary hearing on April 4, 1985. After a continuance obtained at the request of ASC and CFI, a full evidentiary hearing was conducted by the hearing officer from April 24, 1985, to May 24, 1985. On June 10, 1985, a permanent cease and desist order was issued by the securities commissioner. ASC and CFI appealed to the district court pursuant to K.S.A. 17-1269. The district court afforded the parties a hearing and, on July 1, 1985, filed its memorandum opinion and order upholding the permanent cease and desist order of the commissioner and vacating its prior order restraining enforcement of the commissioner’s temporary cease and desist order.
Two appeals followed. In Case No. 58,441, ASC and CFI appealed the judgment of the district court upholding the permanent cease and desist order of the commissioner. In Case No. 58,136, the Kansas Securities Commissioner appealed the district court’s issuance of a temporary injunction restraining enforcement of the temporary cease and desist order issued by the commissioner. The two appeals were not consolidated on appeal but were argued together. In view of the fact that the two appeals arose from the same case and are closely interrelated, the Supreme Court has determined that both appeals should be considered in this consolidated opinion.
Case No. 58,441
We shall first consider the appeal in Case No. 58,441, in which ASC and CFI appealed the judgment of the district court affirming and upholding the permanent cease and desist order issued by the Kansas Securities Commissioner. On this appeal, ASC and CFI raise three issues. The primary issue raised on the appeal is one of law and, simply stated, is whether the business operations of ASC and CFI and the contract for sale of activator kits to individual growers constitute the offer and sale of a security under the Kansas Securities Act (K.S.A. 17-1252 et seq.).
At the outset, it would be helpful to consider the statutory provisions which govern the registration and sale of securities within the State of Kansas. K.S.A. 17-1254 makes it unlawful for any person to engage in business in this state as a broker/dealer, agent, or investment advisor in the sale of securities unless such person is registered with the Kansas Securities Commissioner. In K.S.A. 1985 Supp. 17-1265, the securities commissioner is given broad powers to make public or private investigations in regard to violations of the act. K.S.A. 17-1266 authorizes the commissioner to bring an action for an injunction or other equitable relief to enjoin acts in violation of the statutes and to enforce compliance with the act. K.S.A. 17-1266a authorizes the commissioner to issue cease and desist orders for any unlawful act or practice. K.S.A. 17-1266a(b) authorizes the commissioner to issue an emergency cease and desist order where the public interest will be irreparably harmed by delay. K.S.A. 1985 Supp. 17-1267 makes violations of the act a criminal offense. K.S.A. 1985 Supp. 17-1268 provides for certain civil liabilities in the event a person offers or sells a security in violation of the act.
The basic dispute between the parties in this case is whether a contract for the sale of activator kits to a grower constitutes the offer and sale of a security under the Kansas statutes. K.S.A. 17-1252 is the definitions section and defines various terms used in the act, including the term “security.” In K.S.A. 17-1252(j), the term “security” is defined to include many different types of contracts and documents including an “investment contract.” The parties in this case are in agreement that the contract involved in this case must fall within the category of an “investment contract” in order to be a security under K.S.A. 17-1252(j).
The nature of an investment contract was explored and discussed in depth by Justice Fromme in State ex rel. Owens v. Colby, 231 Kan. 498, 646 P.2d 1071 (1982). We have concluded that the principles of law set forth therein are controlling in the case now before us. Colby stands for the following legal propositions:
(1) The purpose of the Kansas Securities Act is to place the traffic of promoting and dealing in speculative securities under rigid governmental regulation and control to protect investors, thereby preventing, so far as possible, the sale of fraudulent and worthless speculative securities.
(2) Speculative securities include those, the value of which materially depends upon proposed or promised future promotion or development, rather than on present tangible assets or conditions.
(3) To determine whether a particular financial relationship constitutes an “investment contract” within the meaning of K.S.A. 17-1252(j), the test to be applied is whether the contractual arrangement involves an investment of money in a common enterprise with profits to come from the efforts of others. This test is to be applied in light of the economic realities of the particular contractual arrangement, rather than accepting the terminology employed by the parties in the investment contract.
The opinion in Colby discusses the nature of investment contracts at pages 501-04 of the opinion. It reviews the various controlling cases on the issue, including S. E. C. v. Howey Co., 328 U.S. 293, 90 L. Ed. 1244, 66 S. Ct. 1100 (1946), where the United States Supreme Court reviewed a case involving the sale of units of orange groves in Florida. The Supreme Court reviewed the law relating to the definition of “investment contracts” and stated:
“The test is whether the scheme involves an investment of money in a common enterprise with profits to come solely from the efforts of others. If that test be satisfied, it is immaterial whether the enterprise is speculative or non-speculative or whether there is a sale of property with or without intrinsic value.” 328 U.S. at 301. (Emphasis supplied.)
The opinion in Colby noted the problems that have arisen from the use of the words “solely from the efforts of others” in the Howey test. The court recognized that the requirement that the profit in “investment contracts” come solely from the efforts of others has been under occasional attack by courts recognizing the economic realities of investments, and this has resulted in modifications of the test in some jurisdictions. The court cited State v. Hawaii Market Center, Inc., 52 Hawaii 642, 485 P.2d 105 (1971), which criticized the use of the “solely” in the Howey test and went on to state that the basic economic reality of a security transaction is the subjugation of the investor’s money to the risks of an enterprise over which he exercises no managerial control. The Colby opinion states that the term “security,” by common usage, has acquired a much broader meaning than an instrument for the payment of money or to evidence a debt. It is now generally used to refer to instruments for the payment of money, or evidencing title or equity, and which are commonly dealt in for the purpose of financing and investment. Colby discusses the prior Kansas case of State v. Hodge, 204 Kan. 98, 460 P.2d 596 (1969), which stated:
“Instruments, whether secured or unsecured, which are used for the purpose of financing enterprises and promoting a distribution of rights in or obligations of such enterprises, and which are designed as a means of investment, are now termed ‘securities.’ ” (Syl. ¶ 4.)
The court in Colby adopted a test to be applied in determining whether or not a particular financial relationship constitutes an “investment contract.” The court stated that the test to be ap plied is whether the contractual arrangement involves an investment of money in a common enterprise with the profits to come from the efforts of others. This test is to be applied in light of the economic realities of the particular contractual arrangement, rather than accepting the terminology employed by the parties in the investment contract.
Thus, the Colby test requires four essential elements:
(1) An investment of money
(2) A common enterprise
(3) An expectation of future profits
(4) From the efforts of others.
It is necessary that we examine the factual circumstances contained in the findings of fact of the commissioner and the evidentiary record in the case to determine whether or not these four elements are satisfied.
Investment of Money
ASC and CFI contend that there was no competent evidence demonstrating an investment of money for the purchase of a security. They maintain that the purchase of activator kits did not involve the investment of funds but simply required a payment of money for purchase of a product. The hearing examiner found that a minimum often activator kits were sold to each grower at a cost of $350. This finding is supported by the record and is undisputed. In our judgment, the examiner correctly concluded that an investment of money is required to obtain the activator kits. An “investment of money” as the term is used in defining an investment contract for federal security act purposes has been defined to mean only that the investor must commit his assets to the enterprise in such a manner as to subject himself to financial loss. Hector v. Wiens, 533 F.2d 429, 432 (9th Cir. 1978). Likewise, “investment contracts” have been found to exist when the contract involved the purchase or sale of a durable good or animal. Smith v. Gross, 604 F.2d 639 (9th Cir. 1979) (purchase and resale of earthworms); Miller v. Central Chinchilla Group, Inc., 494 F.2d 414 (8th Cir. 1974) (purchase and resale of chinchillas); Continental Marketing Corp. v. Securities & Exchange Com'n, 387 F.2d 466 (10th Cir. 1967), cert. denied 391 U.S. 905 (1968) (purchase and resale of beavers). We have no hesitancy in holding that the hearing officer, the securities commissioner, and the district court properly found an “investment of money” by the growers in the transaction.
A Common Enterprise
ASC and CFI contend that there was no common enterprise because they were separate and distinct legal entities and there was no common interest between ASC, CFI, and the individual purchasers of activator kits. The securities commissioner contends that a common enterprise existed because the business success of the growers was linked to the business success of ASC and CFI. This is particulary true because no other market existed for the cultures.
A major case defining “common enterprises” is Securities & Exch. Com. v. Koscot Inter., Inc., 497 F.2d 473 (5th Cir. 1974), which relied on Securities & Exchange Com’n v. Glenn W. Turner Ent., Inc., 474 F.2d 476 (9th Cir. 1973), and held that a pyramid selling scheme involving sales of distributorships satisfied the “common enterprise” element of the definition of an investment contract. The court in Koscot defined a common enterprise as one in which the “fortunes of the investor are interwoven with and dependent upon the efforts and success of those seeking the investment or of third parties.” 497 F.2d at 478. Further, the court stated that the fact that the investor’s return is independent of that of other investors in the scheme (sometimes referred to as horizontal commonality) is not decisive. Rather, the requisite commonality is evidenced by the fact that the fortunes of all investors are inextricably tied to the efficacy of the promoters. 497 F.2d at 479. This is referred to as vertical commonality. See S.E.C. v. Goldfield Deep Mines Co. of Nevada, 758 F.2d 459 (9th Cir. 1985); Crowley v. Montgomery Ward & Co., Inc., 570 F.2d 875 (10th Cir. 1975); McCown v. Heidler, 527 F.2d 204 (10th Cir. 1975).
ASC and CFI maintain that the factual circumstances in this case are different from the other cases because the sale of activator kits and the repurchase of cultures is not accomplished through the same company but through two separate legal entities. The securities commissioner and district court held that fact did not preclude the finding of a common enterprise. In this case, the two companies are closely associated and create both the supply and demand. The House of Cleopatra was the only market for the cultures. ASC was the only supplier of the activator kits, the culture starters, and CFI was the only purchaser of the cultures from the growers. Clearly the fortunes of the growers were interwoven with and dependent upon the efforts and success of the circular process by which the activator kits were sold by ASC to the growers, the cultures were sold by the growers to CFI, and those cultures were then sold by CFI in activator kits to ASC.
In cases in which one company sells and then repurchases a product or animal, other courts have had little problem finding a common enterprise between the investor and the promoter. Smith v. Gross, 604 F.2d 639; Miller v. Central Chinchilla Group, Inc., 494 F.2d 414; Continental Marketing Corp. v. Securities & Exchange Com’n, 387 F.2d 466. To allow two closely connected companies to do indirectly what one company could not do directly would circumvent the purpose of a securities act designed to protect the public from speculative or fraudulent schemes of promoters.
In this case, various findings of fact of the hearing examiner, supported by the evidence, established a close relationship between the principal officers and representatives of the various companies. For example, the articles of incorporation of Culture Farms, Inc., filed on November 16, 1984, and the articles of incorporation of ASC filed on November 15, 1984, named Allen W. Curtis as the director. It is undisputed that attorney Stemm created CFI, ASC, and the House of Cleopatra for the express purpose of promoting Ariate’s interest in the cultures. Likewise, CFI buys cultures only from customers of ASC.
It was undisputed that ASC conducted sales meetings to explain the close association among ASC, CFI, and the House of Cleopatra. The hearing officer found, and the evidence was undisputed, that three individuals — Taylor, Nocera, and Mancuso — actively participated in the initial organization and management of ASC and CFI. Mancuso held himself out as an officer of both CFI and ASC. The hearing officer found that the activities of those three individuals coupled with those of Stemm indicated a concerted effort to conduct the joint venture composed of the growers, CFI, ASC, and the House of Cleopatra. In our judgment, the findings of the hearing officer, adopted by the securities commissioner and the district court, that there was a common enterprise are supported by the law and the evidence in the record.
An Expectation of Future Profits
The hearing officer found that ASC created a brochure to be circulated among prospective growers which advertised that persons who participate in the culture growing project could expect to make a profit for their endeavors. The brochure states unequivocally that for an initial purchase of ten lactic “activators” at a cost of $350, a culture grower can expect to receive a total income of $900. The brochure distributed by CFI states that it, “Proudly presents from Milk to Profit with Lactic Cultures.” The obvious purpose of the entire operation which appeals to the growers is that for an investment of $350 they have the “Opportunity of a Lifetime” to obtain extra income.
ASC and CFI contend the brochures reviewed by the securities commissioner at the time the temporary cease and desist order was entered were obsolete and different from the current ASC and CFI brochures and order forms. They argue that these modifications changed the economic and legal realities. We have no hesitancy in holding that a purchaser of activator kits had high expectations of profit. Otherwise there was no reason to purchase them.
From the Efforts of Others
The Colby test for án investment contract requires a contractual arrangement which involves an investment with profits to come from the efforts of others. We agree with the court in Securities & Exchange Com’n v. Glenn W. Turner Ent., Inc., 474 F.2d 476, that the test to be applied is whether the efforts made by those other than the investor are the undeniably significant ones, those essential managerial efforts which affect the failure or success of the enterprise. To hold otherwise would make it easy to evade the existence of an investment contract by adding a requirement in the contract that the buyer contribute a modicum of effort. The Turner test was applied in Miller v. Central Chinchilla Group, Inc., 494 F.2d 414.
In the present case, although the investors/growers had to contribute some effort in growing the cultures, nevertheless, the growers could not receive the expected profit represented by ASC in its brochure unless the promoters repurchased the harvest, because there was no other market for the cultures. Clearly ASC and CFI had to get additional investors in order to pay the growers for their cultures. The efforts of ASC and CFI were the undeniably significant ones which affected the success or failure of the enterprise. We have no hesitancy in holding that any profits from the enterprise had to come “from the efforts of others,” that is, the officers and managers of ASC and CFI. We hold that the hearing officer, the securities commissioner, and the district court were correct in holding that all the elements of an investment contract were present and that the contract with a grower in this case was an investment contract and, therefore, a security under the Kansas statutes.
In the appeal in Case No. 58,441, CFI and ASC also contend that the securities commissioner did not have jurisdiction to issue a permanent cease and desist order because a hearing was not held within 15 days after the companies requested a hearing as provided for in K.S.A. 17-1266a(b) and K.A.R. 81-ll-2(b), which state as follows:
“17-1266a. Cease and desist orders; temporary orders; hearings; notice, (a) If the commissioner determines after notice arid opportunity for a hearing that any person has engaged, or is engaging, or is about to engage in any act or practice constituting a violation of any provision of this act or any rule or order hereunder, the commissioner by order may require that such person cease and desist from the unlawful act or practice and take such affirmative action as in the judgment of the commissioner will carry out the purposes of this act.
“(b) If the commissioner makes written findings of fact that the public interest will be irreparably harmed by delay in issuing an order under subsection (a) of this section, the commissioner may issue a temporary cease and desist order. Prior to issuing a temporary cease and desist order, the commissioner whenever possible, by telephone or otherwise, shall give notice to the person of the proposal to issue a temporary cease and desist order. Upon the entry of a temporary cease and desist order the commissioner shall promptly notify in writing the person subject to the order that such order has been entered, the reasons therefor, and that within fifteen (15) days after the receipt of a written request from such person the matter will be set down for hearing to determine whether the order becomes permanent and final. If no hearing is requested and none is ordered by the commissioner, the order will remain in effect until it is modified or vacated by the commissioner. If a hearing is requested or ordered, the commissioner, after notice of and opportunity for hearing to the person subject to the order, shall by written findings of fact and conclusions of law, vacate, modify, or make permanent the order.
“(c) No order under this section, exceptan order issued pursuant to subsection (b), may be entered without prior notice of an opportunity for hearing. The commissioner may vacate or modify an order under this section if he or she finds that the conditions which prompted its entry have changed and that it is in the public interest to do so.” (Emphasis supplied.)
K.A.R. 81-ll-2(b) provides:
“(b) Any person who receives a notice under subsection (a), or who is issued a temporary cease and desist order or a summary order that suspends the effectiveness of a registration or the use of an exemption, may file a written request for a hearing with the commissioner within 10 days of receiving this notice. If a hearing is requested, the commissioner shall hold a hearing not less than five days nor more than 15 days after receiving the request.”
When this issue was raised in district court, the court held that the jurisdictional challenge was without merit, reasoning as follows:
“2. Notice of Hearing. The Court, in its Order on Motion to Set Aside Temporary Restraining Order, entered April 2, 1985, held that the threat of irreparable harm to petitioners required a hearing be held before the Commissioner should be permitted to enjoin petitioners. We concluded then that the Court’s restraining order should continue in effect until a hearing was held under K.S.A. 17-1266a(a) as the action taken under 1266a(b) had been enjoined.
“The Commissioner entered an Order for Hearing on April 4, 1985 setting April 12, 1985 as the hearing date. The Commissioner acted under K.S.A. 17-1266a(b) on petitioners’ March 18,1985 request for hearing. In this regard we conclude:
“(a) That the requirement of K.S.A. 17-1266a(b) that a party be afforded a hearing within 15 days from the date of request contemplates a cease and desist order being in place. Here the Court had temporarily restrained the enforcement of the cease and desist order during this period at petitioners’ request. This Court order was in effect until after the hearing was concluded.
“(b) A hearing was given within 15 days of the Court’s April 2, 1985 decision. The Commissioner acted with reasonable dispatch in affording petitioners a hearing.
“(c) Whether the Commissioner proceeded to hold a hearing under 1266a(b) or 1266a(a), as directed by the Court, is not significant so long as the hearing was held within a reasonable time under the circumstances, substantially complied with the statute and afforded due process. The distinction made in these subseotions lacks a significant difference in terms of due process.
“(d) Petitioners have shown no prejudice suffered due to not scheduling the hearing at an earlier date. The hearing was continued from April 12 to April 24 at petitioners’ request.
“(e) Petitioners had ample opportunity to meet the Commissioner’s claims set forth in his March 7, 1985 Temporary Cease and Desist Order.”
We agree with the trial court that the provisions of K.S.A. 17-1266a(b), which require that, upon entry of an ex parte cease and desist order, the commissioner shall enter an order and the reason therefor, and that within 15 days after a written request by such person the matter will be set down for hearing to determine whether the order becomes final, have no application in a situation where a district court has issued a temporary order restraining the securities commissioner from issuing or enforcing a temporary cease and desist order. If there is no temporary cease and desist order in operation, there is no occasion to apply the 15-day provision and it does not restrict the authority of the securities commissioner to conduct an evidentiary hearing under K.S.A. 17-1266a(a) on the question of whether a permanent cease and desist order should be issued. Under these circumstances, the trial court was correct in holding that the securities commissioner had jurisdiction to issue his permanent cease and desist order after a full evidentiary hearing was provided the respondents, ASC and CFI.
As their next point on appeal, ASC and CFI contend that they were denied due process rights at the administrative hearing before the hearing officer. They objected to fourteen separate rulings of the hearing officer involving evidentiary matters, in refusing to compel testimony from certain witnesses, in refusing to grant immunity to certain witnesses, in admitting certain testimony from an investigator of the companies in the State of Florida, and in admitting a transcript of a hearing conducted in Las Vegas, Nevada, in regard to the business activities of ASC. The district court addressed each of these issues and concluded that the petitioners were not denied due process at the administrative hearing. We agree with the district court. Any rulings by the hearing officer could not have prejudiced the rights of ASC and CFI. The manner of operation of the business involving the sale and repurchase of activator kits and the inter-involvement of various officers and agents of the companies were virtually undisputed. In fact, the evidence relied upon by the hearing officer came almost exclusively from admissions and statements made by the principal officers of ASC and CFI. The issue presented in the administrative proceeding was essentially a question of law — whether the contract for the purchase of activator kits constituted the offer and sale of a security under Kansas law. This legal issue has been discussed heretofore and determined adversely to ASC and CFI. We hold that the district court was correct in finding that ASC and CFI were not denied any due process rights in the administrative proceeding.
In their reply brief, ASC and CFI raise a fourth issue which was never raised in the district court nor in their original brief. The companies attack the permanent cease and desist order as overly broad on the basis that it attempts to control the business operations of ASC and CFI outside the boundaries of Kansas. In the commissioner’s permanent cease and desist order, ASC and CFI are ordered to immediately cease and desist from any acts in Kansas or elsewhere in furtherance of acts in Kansas or elsewhere in furtherance of any acts, when acts in furtherance thereof are being committed in Kansas. The order recites that it does not prohibit any purchase of “cultures” from investors not in violation of the securities act. The order does not prohibit any sale of cultures to cosmetic manufacturers or to any other persons who will use them for any purpose other than in furtherance of violations of the securities act as described in the order. ASC and CFI contend that the language used is an attempt by the securities commissioner to extend the state’s exercise of its powers beyond its boundaries in violation of the due process and commerce clauses of the Fourteenth Amendment. We cannot say that the permanent cease and desist order was overly broad inasmuch as the permanent order is restricted in its application to acts in Kansas or acts outside of the state which are directly in furtherance of acts in Kansas and which are in violation of the Kansas Securities Act.
Case No. 58,136
In Case No. 58,136, the Kansas Securities Commissioner appealed the order of the district court refusing to set aside its ex parte temporary restraining order restraining the securities commissioner from enforcing his temporary cease and desist order. The temporary cease and desist order was issued by'the securities commissioner pursuant to K.S.A. 17-1266a(b) on March 6, 1985. That order was issued ex parte without an opportunity for ASC and CFI to be heard. On March 7,1985, ASC and CFI filed a petition for injunctive relief and a motion for a restraining order, restraining the commissioner from enforcing his temporary cease and desist order issued the previous day.
In response to the motion filed by ASC and CFI, the distinct court entered an ex parte temporary restraining order pursuant to K.S.A. 60-903 for the reason that it appeared in the verified application of the plaintiffs that irreparable injury would result to their business if a cease and desist order were issued without affording them an opportunity to be heard. The commissioner then filed a motion to set aside the temporary restraining order and to dismiss the case. The district court afforded the parties a hearing and denied that motion on the basis that the securities commissioner had not demonstrated that irreparable harm to the public would result if his cease and desist order did not become immediately effective. The district court found that the ex parte cease and desist order would have the effect of prohibiting the plaintiffs from carrying on their business and that they were entitled to an evidentiary hearing pursuant to K.S.A. 17-1266a(a). To protect the public, the district court required the plaintiffs to post a bond. At the time of hearing on March 28, 1985, ASC and CFI had deposited $311,000 as a condition for the issuance of the court’s temporary order. The securities commissioner then filed a notice of appeal from the order of the district court denying the commissioner’s motion to set aside the temporary restraining order, which, in effect, was a temporary injunction, because the parties had been provided a hearing. An appeal may be taken from an order of the district court granting a temporary injunction (K.S.A. 60-2102; Miller v. Huffman, 191 Kan. 570, 382 P.2d 464 [1963]).
In its appeal before this court, the securities commissioner contends that the district court did not have authority to enjoin the Kansas Securities Commissioner from issuing or enforcing his ex parte temporary cease and desist order against ASC and CFI. Simply stated, the commissioner maintains that an independent judicial action in equity against that administrative agency was not permissible because ASC and CFI failed to exhaust their administrative remedies which were adequate to protect their interests. ASC and CFI contend, in substance, that the district court had equitable jurisdiction to review the ex parte administrative action because the administrative remedy provided was inadequate.
The district court, in its order denying the commissioner’s motion to set aside the temporary restraining order, held that, as a court of equity, it had jurisdiction to issue a temporary restraining order or temporary injunction and stated in its memorandum opinion as follows:
“The act for judicial review and civil enforcement of agency actions, K.S.A. 77-601 et seq., makes temporary orders issued by an administrative agency subject to judicial review pursuant to K.S.A. 77-616. This section provides that a court may enjoin a temporary order of an agency if it, inter alia, finds that
‘(2) Without relief the applicant will suffer irreparable injury.’
K.S.A. 77-616(c)(2).
“The Kansas Court of Appeals in Southwestern Bell v. Kansas Corporation Commission, 6 Kan. App. 2d 444, 629 P.2d 1174 (1981), rehearing denied, 230 Kan. 819, took jurisdiction to review an interim order of the Corporation Commission when it found that injury could result to a party and the procedure for review of the offending order was inadequate. Under these conditions ‘equitable relief by independent action may be available in a district court.’ 6 Kan. App. 2d at 450,451. And the United States Supreme Court has noted that procedural rules which satisfy due process in one context may not necessarily satisfy procedural due process in every case. Bell v. Burson, 402 U.S. 535, 29 L.Ed.2d 90, 91 S.Ct. 1586 (1971).
“Based upon the foregoing we hold that a District Court has jurisdiction to entertain an independent action for equitable relief from an order of the Securities Commissioner issued under K.S.A. 17-1266a(b) when it is shown from the particular circumstances that irreparable injury will result and that the procedure for review of the order is inadequate to satisfy procedural due process.”
As a general rule, courts are reluctant to interfere with an action of an administrative agency until a final order is issued by the agency. The reason is that, absent a final order or decision, the power and jurisdiction of the administrative agency has not been fully and finally exhausted. The controversy is not ripe for equitable intervention. The courts recognize, however, that there are exceptions to the general rule. Equitable jurisdiction of a district court may be invoked for judicial relief from a preliminary order, not yet a final administrative determination, where such order is not immediately reviewable in any other way and the complainants will suffer great and irreparable injury if the order is carried out. We agree with the district court in this case that it had jurisdiction to restrain the operation of the ex parte temporary cease and desist order of the Kansas Securities Commissioner when the court found irreparable injury would result to the business operations of ASC and CFI and that the potential harm to Kansas citizens was minimal.
In this case, the Kansas Securities Act, K.S.A. 17-1269, did not provide for immediate review of a temporary cease and desist order. Although ASC and CFI were entitled to an evidentiary hearing under K.S.A. 17-1266a(b), it could take many weeks to complete such a hearing, during which period ASC and CFI would be prohibited from conducting their business. This could well result in irreparable harm to ASC and CFI. Under all the circumstances in this case, we hold that the district court did not err in granting temporary injunctive relief to ASC and CFI. In view of our decision on the issue, we do not deem it necessary to consider the other issues raised by the securities commissioner in his brief.
For the reasons set forth in this opinion, the judgments of the district court appealed from in Cases Nos. 58,441 and 58,136 are affirmed. | [
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The opinion of the court was delivered by
Miller, J.:
This is a workers’ compensation action. Respondent Excel Corporation appeals from the judgment entered against it and in favor of the claimant, Rozellia Bryant, by the District Court of Sedgwick County. The sole issue is whether the trial court erred in awarding judgment to the claimant for a permanent partial general bodily disability under K.S.A. 44-510e, rather than for a scheduled injury under K.S.A. 44-510d.
The facts are not in dispute. On May 26, 1982, claimant was injured while working for the respondent. She was trimming meat and her knife slipped, cutting her left arm near the crease of he’r elbow. As the examining physician phrased it, she suffered a laceration to her left upper arm with brachial artery injury. She was taken immediately to the hospital where the stab wound and damage to the artery were treated. On January 6, 1984, she had surgery on the left elbow. She had developed scar tissue which flattened and trapped the median nerve in the elbow area. The surgery released the nerve. At the same time the elbow surgery was performed, a similar surgical release was performed on the left wrist for a carpal tunnel condition. The entrapment and pressure on the median nerve caused the claimant to experience pain and numbness in her left arm and shooting pains going up into her armpit and left shoulder. This pain prevents her from full left shoulder motion. She has permanent restrictions regard ing the work duties that she can perform: she cannot do heavy work with her left arm, cannot do repetitive motions, must avoid exposure to extreme cold, and cannot lift over twenty-five pounds.
The administrative law judge awarded judgment to the claimant based on a 95% permanent partial general bodily disability. Respondent applied for a review by the workers’ compensation director and the director affirmed the decision of the administrative law judge. Respondent then appealed to the district court, which held that the shoulder joint is not covered as a scheduled injury under K.S.A. 44-510d and thus the award was proper. The court adopted the findings of fact of the administrative law judge and adopted the conclusions of law of the administrative law judge and the director. It is from that judgment that respondent appeals.
The claimant suffered a wound to the elbow area no higher than the lower part of her left upper arm. There was no direct injury or tissue damage to her shoulder. The shoulder pain is a referred pain, caused by the nerve involvement in the left elbow. As one of the physicians testified, there is no pathology in claimant’s left shoulder that is related to the occupational injury; however, the pain she experiences in her armpit and left shoulder “is referred pain from her entrapment neuropathy at the elbow and wrist, and referred pain means that it goes some place other than where the disease process is.” She complains of pain in her shoulder when she uses her arm, and the pain impairs her ability to use that shoulder. The condition is permanent.
K.S.A. 44-510d contains the schedule for compensation for certain permanent partial disabilities. Included in that schedule are loss of, or loss of use of, certain body members including the arms. Shoulders, however, are not mentioned. K.S.A. 44-510e covers compensation for permanent partial general disabilities, and thus covers those not included in the 44-510d schedule. If a worker sustains only an injury which is listed in the -510d schedule, he or she cannot receive compensation for a permanent partial general disability under -510e. If, however, the injury is both to a scheduled member and to a nonscheduled portion of the body, compensation should be awarded under -510e.
The administrative law judge, the director, and the district court all found that claimant’s ability to use her shoulder was impaired and that the impairment was caused by the elbow wound. Respondent does not dispute these findings, but argues that claimant may not receive compensation outside the -510d schedule since the injury is to the arm and thus is a scheduled injury; the pain in the armpit and the shoulder is merely a referred pain which is transmitted from a scheduled injury. Respondent argues that the pain referred from the scheduled injury does not create a right in claimant to come under the provisions of -510e, since the injury is to a scheduled member.
In support of its argument, respondent relies upon Riggan v. Coleman Co., 166 Kan. 234, 200 P.2d 271 (1948). Riggan, while working for the Coleman Company, sustained injury to his right hand which was caught in a heavy stamping machine and severely crushed. The commissioner rendered an award for 119 compensable weeks for total (nonscheduled) disability and, in addition, 210 weeks for total loss of use of his right arm (a scheduled injury). The district court approved that award and the employer and insurance carrier appealed. We approved the award for 210 weeks compensation as the scheduled award for loss of the right arm, but disapproved the award of 119 weeks temporary total disability, reducing that to 15 weeks for the actual healing period. Justice (later Chief Justice) Parker, writing for a unanimous court, said:
“Heretofore we have indicated the record sustains a finding of permanent loss of the use of appellee’s right arm which, by statutory provision (G. S. 1947 Supp. 44-510 [3] [c] [19]), is equivalent to its loss. Since appellee’s further disability is conceded we are not interested in its extent but in its cause. The only evidence on that subject is to be found in the testimony of appellee’s own medical expert, Doctor Kiser. Summarized, this testimony was that the extreme pain in appellee’s shoulder, neck and head, resulting in his severe headaches and additional incapacity, was referred there from the injured member of his body and caused by a condition known as causalgia which is a very common accompaniment of severe injury where there is either nerve or blood vessel injury to an extremity.
“At this point it should be repeated the foregoing testimony stands alone and added that nowhere in the record is there any evidence to the effect that either appellee’s shoulder, neck or head were directly injured or affected by the stamping machine responsible for the accident or that the referred pain causing his additional temporary total disability was distinct and apart from the disability for which he was awarded compensation as a scheduled injury.
“Faced by an undisputed situation such as we have heretofore described and an express legislative fiat directing that no additional compensation shall be allowable for either temporary or permanent disability where a workman is entitled to compensation for a scheduled injury we believe there can be but one answer. That is that the trial court, having found the appellee had suffered the loss of the use of an arm, did not have power to allow appellee additional compensation for temporary incapacity in excess of the fifteen-weeks healing period authorized by the statute and to which we hold he was entitled under the uncontroverted evidence. This is not a case where, as in decisions relied on by appellee in support of its position (i.e., Fernandez v. Edgar Zinc Co., 138 Kan. 735, 27 P.2d 239; Morris v. Garden City Co., 144 Kan. 790, 62 P.2d 920) the accident in question caused two separate and distinct injuries each of which resulted in disability but is one where the real source or cause of his inability to work during the entire period of time for which he was awarded compensation for temporary total disability was the referral of pain from his injured arm to his shoulder, neck and head.” 166 Kan. at 235-38.
Cases decided subsequent to Riggan have followed its rationale. In the case of Chinn v. Gay & Taylor, Inc., 219 Kan. 196, 547 P.2d 751 (1976), we reviewed many of the cases arising since Riggan in which it was contended that, following a primary scheduled injury, a new and distinct injury arose, which new and distinct injury was held to be compensable. In Chinn, claimant sustained an injury to his knee and ultimately underwent knee surgery, hospitalization, and physical therapy. As a direct result of his knee injury, he had a limp which altered his walking gait. The resultant posture changes caused low back pain, which was caused by a combination of referred pain from the knee, and by the change in posture and walking gait. The examiner found that the primary injury was to the left knee and as a direct result of that condition his back was injured, distinct and apart from the knee, and he had a compensable permanent partial disability to the body as a whole. We affirmed. However, we said:
“In the case at bar the fact finders, based on the medical evidence, found that appellee’s back condition had reached the point where it was disabling as a new and distinct injury apart from the scheduled knee injury. All were able to relate the back condition to the knee injury and to trace it as a direct and natural result. We cannot see sufficient factual difference here from the situations in the four cited cases to make their rulings inapplicable. In all there was evidence of a second, distinct and disabling injury directly traceable to the accident through the primary scheduled injury. This situation is to be distinguished from an additional incapacity following a scheduled injury which results only from causalgia or referred pain.” (Emphasis supplied.) 219 Kan. at 201.
The administrative law judge, the workers’ compensation director, and the district court judge, while recognizing Riggan, Chinn, and related decisions, all based their decisions on the rule set out in our recent case of Fogle v. Sedgwick County, 235 Kan. 386, 680 P.2d 287 (1984), in which we adopted the opinion of the Court of Appeals set forth in 9 Kan. App. 2d 129, 673 P.2d 465 (1983). Fogle was injured when he fell and landed on an air bottle that was strapped to his back. The situs of the injury was to a spinal nerve, which resulted in permanent disability to his left arm. His direct injury was damage to the eighth cervical or first thoracic nerve root. The physical and symptomatic manifestation of his injury was wholly limited to the partial loss of use of his left arm. The claimant sought compensation for permanent partial general disability to the body as a whole, contending that the injury was to a spinal nerve in his back, not a scheduled member. The administrative law judge granted compensation based upon loss of use of the arm, a scheduled injury, and that award was affirmed by the district court, the Court of Appeals, and this court on the basis that “[i]t is the situs of the resulting disability, not the situs of the trauma, which determines the workers’ compensation benefits available in this state.” 235 Kan. at 386.
Respondent argues that it is improper to base the decision in this case on the Fogle rule because the statement quoted above is dicta, and the present case is factually distinguishable from Fogle. The rule adopted is not, however, dicta. It states the criteria upon which the issue in Fogle was decided. A nerve root in Fogle’s back was injured. He sustained no back disability; instead, the disability manifested itself in his arm and thus it was proper to grant him compensation based upon K.S.A. 44-510d for a scheduled disability.
In the case now before us, the injury to the nerve was in the arm. It manifested itself by disability not only in the arm but in the shoulder. We do not find the cases factually distinguishable. As the administrative law judge points out, the facts in this case are the reverse of those in Fogle.
We hold that the rule applied in Fogle controls the award in this case. The resulting disability in the shoulder and not the situs of the trauma in the arm determines which benefits are available. Plaintiff is thus entitled to recover for an unscheduled injury, pursuant to K.S.A. 44-510e. Insofar as our decision in Riggan conflicts with our holding in Fogle, our opinion in Riggan v. Coleman Co., 166 Kan. 234, is overruled.
The judgment is affirmed. | [
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|
The opinion of the court was delivered by
Schroeder, C.J.:
The defendant, Quintín Bentley, was convicted of two counts of indecent liberties with a child (K.S.A. 21-3503). The issue on appeal concerns the criminal statute of limitations (K.S.A. 21-3106) and whether a threat to a child not to tell anyone what the defendant had done constitutes concealment and tolls the running of the statute of limitations.
In an unpublished opinion filed January 9, 1986, the Kansas Court of Appeals reversed the defendant’s convictions and held a threat to a child does not constitute concealment. The basis of the opinion is that it is not within the province of the court to fashion exceptions to the statute of limitations; that is left to the legislature. The Court of Appeals stated to hold a threat consti tuted concealment would result in extending the two-year limitation in nearly every case of indecent liberties because threats are commonplace in sexual assaults on children. We granted the State’s petition for review.
The facts of the incidents are not in dispute. The victim’s parents were divorced and the incidents occurred while she was visiting her father on the weekend. The defendant, the victim’s uncle, slept in his car at the victim’s father’s address. Both incidents occurred when the victim was nine years old. The defendant admitted the two incidents had occurred.
The first incident occurred when the victim was taking a bath at her father’s house at 1430 S. Seneca, Wichita, Kansas. Her father wasn’t home, but her brothers and the defendant were. Her brothers were watching television. The defendant came into the bathroom, fondled and touched her and made her touch him. The defendant heard the victim’s father’s car pull into the driveway and pulled up his pants. In a mean voice, he threatened her not to tell anybody, and if she did, he would try to do it again. He also said if she told her father, he would tell her father that her brothers had come into the bathroom while she was in there, which was against her father’s privacy rule. When asked why she didn’t tell her father, the victim replied she didn’t want the defendant to do it again.
The second incident also occurred when her father was not home. The victim and her brothers were outside playing soccer when the defendant called her into the house. She went in to change her clothes and the defendant came into the bedroom and fondled and touched her. When her father started to come into the house, the defendant pulled up his pants and left the bedroom.
One day the victim, her brothers, and her mother were in their car and ran out of gas. As they were walking home they passed three boys whom the victim thought were laughing at them and she became frightened. When they got home, her mother asked her what was wrong and she eventually told her what the defendant had done.
While the facts are not in dispute, the times that the incidents occurred are. The charges against the defendant were filed on March 7, 1984. Therefore, to be within the two-year statute of limitations, the two incidents must not have occurred before March 7, 1982.
The victim stated the first incident happened in the summer or after school had started, and the second' incident happened two or three months after the first incident. The complaint stated the first incident occurred between June and September of 1982, and the second incident occurred during September 1982. However, at trial the victim testified that both incidents occurred at her father’s house at 1430 S. Seneca. Her father moved from that address on April 16, 1982. At the time of the first incident, the victim testified she lived with her grandmother; she lived there before her mother remarried on February 11, 1982. That would place the first incident before March 7, 1982, and outside the statute of limitations by a count of 24 days. However, the victim also testified that at the time of the first and second incidents she lived on 9th Street; she moved to that address on February 27, 1982. That would place both incidents between February 27,1982, and April 16,1982, possibly within or without the statute of limitations.
In a trial to the court, the court found by a preponderance of the evidence that Count I occurred prior to February 11, 1982. However, the trial court had a reasonable doubt whether Count II occurred on or before March 7,1982. Rriefs were prepared and arguments were heard on whether the defendant’s threat to the child tolled the criminal limitations statute. The trial court ruled the defendant’s threats were calculated to prevent discovery of the crimes and, therefore, the threats constituted concealment which tolled the statute of limitations, making the charges against the defendant timely filed. The defendant was convicted on both counts of indecent liberties with a child.
As to Count I, the defendant argues on appeal the threat does not constitute concealment. As to Count II, the defendant argues no threat was made at the second incident.
As a general rule, statutes of limitation are favored by the law and are to be construed liberally in favor of the accused and against the prosecution. Exceptions to the statute are to be construed narrowly, or strictly, against the State. State v. Mills, 238 Kan. 189, 190, 707 P.2d 1079 (1985).
Pursuant to K.S.A. 21-3106, prosecutions for crimes other than murder must be commenced within two years of the commission of the crime. However, there are exceptions to that two-year time limit. The period within which prosecution must commence does not include any period in which the fact of the crime is concealed. K.S.A 21-3106(3)(c).
Cases construing this exception to the statute of limitations have involved charges of embezzlement or theft. The rule established in these cases is that the statute refers to acts of concealment preventing discovery of the fact that crime was committed, which must be unconnected with the fact the accused was the perpetrator. In re Stewart, 60 Kan. 781, 57 Pac. 976 (1899). Concealment of the facts of the crime refers to concealment of those criminal acts which constitute the crime. State v. Gainer, 227 Kan. 670, 608 P.2d 968 (1980). To constitute concealment, it must appear the accused’s statements or conduct was calculated and designed to prevent discovery of the crime with which he or she is charged; mere silence, inaction or nondisclosure is not enough. Nondisclosure is the failure to reveal facts, while concealment is any statement or conduct which prevents another from acquiring knowledge of a fact. State v. Watson, 145 Kan. 792, 794, 67 P.2d 515 (1937).
Where the defendant hid stolen property and then later used that property as his own, this court ruled those actions did not constitute concealment. See State v. Gainer, 227 Kan. 670; State v. Heinz, 121 Kan. 547, 247 Pac. 631 (1926). However, where the defendant misrepresented facts, failed to produce documents requested by the court, verified false statements, or failed to advise a party when the defendant had a duty to advise, this court ruled these actions did constitute concealment. See State v. Grauerholz, 232 Kan. 221, 228, 654 P.2d 395 (1982); State v. Taylor, 140 Kan. 663, 38 P.2d 680 (1934); State v. Wingett, 136 Kan. 436, 16 P.2d 486 (1932); State v. McGinley, 129 Kan. 655, 284 Pac. 384 (1930).
In State v. Mills, 238 Kan. 189, two men, Mills and Medley, fondled a ten-year-old boy in July of 1979. On several occasions, Medley told the boy people might think he was homosexual if he told anyone what happened. Charges against Mills were brought in 1984, and the State argued Medley’s threats against the boy constituted concealment which was attributable to Mills. For the sake of argument, the Supreme Court assumed Medley’s threats constituted concealment. However, because there was no showing that Mills solicited Medley to make the threats, or that Medley made the statements on Mills’ behalf, the court ruled there was no concealment by Mills and the charges were not timely filed.
In Mills, we assumed statements made to the victim by the perpetrator constituted concealment; today we must decide that issue. Here, after the first incident, the defendant threatened his nine-year-old niece that if she told anybody what he had done he would try to do it again and he would tell her father she violated the privacy rule. The defendant argues the threat did not constitute concealment because he had no control over the child and couldn’t prevent her from revealing the incident.
The defendant cites State v. Danielski, 348 N.W.2d 352 (Minn. App. 1984), to support his argument that the element of control exerted by the abuser over the child is an essential element in concealing the crime of indecent liberties with a child. There, two essential elements of the crime with which the victim’s stepfather was charged were the defendant held a position of authority over the victim and he used that authority to coerce the victim to submit. After he abused his stepdaughter, the defendant would ground her and deny her phone privileges. The victim told her mother what the defendant had done. Her mother did nothing and even participated with the defendant in sexually abusing the child. The victim told her boyfriend and doctors what the defendant had done, but they took no action. It wasn’t until the victim was sixteen and went to stay with her natural father that someone reported the abuse. The victim told her stepmother, who told the victim’s father and charges were filed 26 days after the Minnesota statute of limitations had run. The Minnesota court found that the defendant’s continuing coercive control over the victim made the offense a continuing one; one that wasn’t complete when the act constituting the sexual crime was complete. The court ruled the statute of limitations had not begun to run until the victim was no longer subject to the defendant’s authority, i.e., when she went to stay with her father. Danielski does not stand for the proposition defendant states. The Minnesota statute of limitations has no provision similar to the one in issue in the instant case. The court did not require control over the victim as an element of concealment in order to toll the statute of limitations. Rather a position of authority and use of that authority over the child were essential elements of the crime charged. As long as the victim remained under the defendant’s authority, the statute of limitations did not begin to run.
Sexual abuse of children, by its very nature, is done in secrecy. Because the child is typically the only witness, the child must disclose the facts of the crime for the crime to be discovered. Clearly, defendant’s threats were made to intimidate his niece, to prevent her from telling anybody what he had done. Although the defendant was her uncle and a close relative, he did not live in her father’s home. Furthermore, her father had visitation rights every other weekend. The victim knew the crime had been committed as soon as it occurred. Crimes against persons, by their very nature, cannot be concealed. Other people may not know a crime has occurred, but the victim necessarily knows that a crime has been committed. On the facts in this case, we cannot equate a threat made to a child victim with concealment of a crime. Even assuming this court recognized control over a child victim as bearing upon the fact of concealment, as the Minnesota Court of Appeals did in State v. Danielski, 348 N.W.2d 352, the uncle’s ability to control the child victim in this case was too remote for recognition.
Threats, as this case demonstrates, are an effective way to keep child victims from reporting sexual offenses. They are commonplace in the aftermath of a sexual assault on a child. Therefore, the practical effect of construing a threat to a sexually abused child as concealment would be to extend the statute of limitations beyond its stated two-year period in nearly every case of this nature. Where would it end — upon the child attaining the age of majority?
In light of the law that requires statutes of limitation to be liberally construed in favor of the accused, we cannot interpret K.S.A. 21-3106 (3)(c) to include threats to the child victim as concealment of the crime. See State v. Gainer, 227 Kan. at 674.
While we are sympathetic to the State’s arguments in this case, it is not the province of this court to fashion exceptions to the statute of limitations; that task is left to the legislature. Statutes of limitation are measures of public policy and are entirely subject to the will of the legislature. State v. Mills, 238 Kan. 189.
The judgment of the trial courtis reversed, and the decision of the Court of Appeals is affirmed. The trial court is ordered to discharge the defendant. | [
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A formal complaint was filed against R. Keith Mountain, attorney respondent, by Arno Windscheffel, disciplinary administrator, on January 10, 1985, alleging respondent violated the Lawyers Code of Professional Responsibility. Respondent answered denying he had violated his legal or ethical duty. A hearing before a disciplinary panel was held April 9 and May 3, 1985. Respondent appeared in person and by his attorney, Karl W. Friedel.
The panel made its final hearing report containing the following findings of fact and conclusions of law:
“1. The first contact the complainants, Rodney and Carol Mosier, had with the respondent, R. Keith Mountain, was through Dallas Schmidt, a staff worker at Reno County Health Department in [Hutchinson], Kansas, and this was by telephone conversation. Dallas Schmidt knew Mrs. Mosier. Edna Searles, the grandmother of the expectant mother, Angela Searles, informed Dallas Schmidt that the child was to be put up for adoption. Dallas Schmidt had been contacted by Mrs. Searles on November 9, 1983.
“2. Angela Searles had some mental or emotional problems. Her grandmother discussed this with Kris Friesen, a registered nurse at the W.I.C. Program. The condition was not genetic.
“3. Complainants] contacted the respondent on November 18, 1983, wherein the respondent agreed to represent the Mosiers for a fee of $500.00. Carol Mosier retained the respondent at that time.
“4. On November 22, 1983, Carol Mosier again contacted the respondent and agreed to send one-half of the fee to respondent.
“5. Respondent never contacted the birth mother until after he was retained by the Mosiers.
“6. Respondent also informed Mrs. Mosier that he was one of four recognized specialists in adoption in the state of Kansas. (Respondent later denied this statement.)
“Respondent stated that he would not contact the birth mother until he had received one-half of his fee. Mrs. Mosier gave respondent the name and address of the birth mother and grandmother, which was the Landmark Hotel in Hutchinson, Kansas.
“Shortly after talking to Mrs. Mosier, the respondent called the Landmark Hotel and charged the bill to the Mosiers’ telephone bill.
“7. On November 23, 1983, respondent called the Mosiers and advised them that he was meeting with Angela and Edna Searles on November 28, 1983. This meeting never occurred.
“November 30, 1983, Edna Searles called Kris Friesen and told her that she was waiting to see a lawyer, that this was the second time a meeting had been set up. That he had not appeared for the first appointment.
“8. December 6, 1983, Mrs. Mosier called respondent to see how the adoption was progressing. Respondent stated that he had not met with the birth mother and Edna Searles.
“9. December 7, 1983, respondent called and said he would be meeting that day with Edna and Angela Searles.
“10. December 8, 1983, Mrs. Mosier called respondent, and respondent told her that the birth mother and grandmother were in need of financial assistance. Respondent suggested $300.00 and Mosiers agreed to send one-half immediately and the other half later.
“11. At this time, respondent’s fee went up another $250.00. That the baby would be born February 15, 1984. This conversation was for twenty-three (23) minutes.
“12. December 12, 1983, check for $150.00 was sent to the respondent for the birth mother.
“13. December 13,1983, Dallas Schmidt contacted the Mosiers and stated that the Searles were in financial trouble, and the Mosiers mailed another check for $150.00 to the respondent. Mrs. Searles later testified that the money was needed by her son who had car trouble in a trip up from Oklahoma. Both checks were deposited by the respondent. The respondent sent $300.00 to Edna Searles by check which bore the notation ‘Tern. Mait. Adoption.’
“14. Respondent convinced Mrs. Searles that he was the attorney for Mrs. Searles and her granddaughter, Angela Searles. Edna Searles and Angela Searles paid no fees to the respondent. Angela Searles was on public assistance and Edna Searles, who testified in behalf of the respondent at the hearing, was a lady of little or no understanding of economics.
“15. In January of 1984, Edna Searles became convinced that Carol Mosier and her husband were not of sufficient wealth to adopt her granddaughter’s child, although they had already given her (Mrs. Searles) $300.00 temporary maintenance. The respondent suggested other couples to adopt the child. Respondent advised Mrs. Searles she would receive $5,000.00 under a new arrangement with another adopting couple.
“16. On January 20, 1984, the W.I.C. program in Hutchinson received word that the adoption with the Mosiers was called off. Mrs. Searles, out of the hearing of Angela, stated that her lawyer, the respondent herein, did not think that the Mosiers had the financial substance to care for the child, and that Mr. Mosier had mental problems. That he doubted that they would be approved by the court for the adoption. He did not disclose to Mrs. Searles that a home study had already qualified them with excellent recommendations.
“17. January 19, 1984, respondent sent further funds to Edna Searles in the amount of $500.00 by check, which bore the notation ‘Prenatal expenses.’ There is no record who advanced these funds other than the respondent.
“18. On January 25, 1984, respondent called Carol Mosier and informed her that the fetus indicated some abnormalities; that family members were attempting to prevent the adoption, which would be ‘messy’; that the Mosiers probably would lose the baby; Mrs. Searles would return the money; and that the Mosiers should abandon the adoption. Mrs. Mosier was saddened, but agreed not to go on with the adoption.
“19. The respondent had made prior arrangements with another couple to adopt the baby. This couple, on January 27, 1984, drew two checks payable to R. Keith Mountain Trust Account totaling $17,000.00. The Mosiers were not advised of these facts.
“20. February 6, 1984, Mrs. Mosier again called respondent and asked some questions about the adoption and medical tests. At that time the respondent became adamant and told Mrs. Mosier that the adoption was off.
“21. On February 7, 1984, a check for $250.00 was sent from respondent to Edna Searles with the notation ‘Prenatal Expense.’
“22. February 10, 1984, Mosiers contacted Gerald Green, a Hutchinson attorney, who agreed to look into the case and advise them.
“23. February 10, 1984, respondent, by telephone, told Rod Mosier that he was not handling the adoption because the adoption was off. That he was handling only a matter of family harassment by the family.
“24. Gerald Green testified that the gynecologist that treated Angela Searles stated that the test on the fetus was normal. The respondent had never called him to determine the results of the tests, nor had the gynecologist contacted or talked to the respondent about any abnormalities of the fetus.
“25. On February 10, 1984, Angela Searles and her grandmother were moved by the respondent from the Landmark Hotel in Hutchinson to a motel in Wichita.
“26. On February 17,1984, Angela Searles gave birth to a normal baby girl in a hospital in Wichita.
“27. The respondent handled the adoption of Angela Searles’s baby by a second adoptive couple whose names have remained unknown to the panel. That the couple paid the respondent the sum of $17,000.00 in two checks dated January 27, 1984. The respondent claims that part of the money was for a fee earned earlier. That the adoption fee was $1,500.00.
“28. On February 18, 1984, respondent drew a check on his bank for $3,900.00 payable to Edna Searles, which was $5,000.00 less two prior checks of $500.00 and $250.00. That the respondent paid Wesley Medical Center $743.50 for post-birth care of the baby.
There is no showing as to where the balance of the money was allocated.
“29. On March 3, 1984, respondent returned $250.00 to Mr. and Mrs. Mosier, which was repayment of the attorney fees sent respondent.
“30. Respondent told Gerald Green that he represented the Mosiers, but the adoption was never completed. That he heard that Angela Searles had given the child to another couple. That he did not handle the adoption.
“31. On March 6, 1984, Gerald Green met with Edna Searles, who stated that the respondent handled the adoption of Angela’s baby. That the respondent had selected the adoptive couple. She also told Green that the respondent had told her that the Mosiers were not qualified to adopt the baby.
“When informed of this information, the respondent denied that he had ever represented the Mosiers, but his client was the birth mother and her grandmother.
“32. Gerald Green wrote a letter to respondent dated March 23, 1984. . . . The letter advised respondent of the information learned from his investigation and threatened commencement of a legal action and ethical complaint unless an adequate explanation was provided.
“33. Thereafter, on March 27,1984, respondent replied by letter to Mr. Green, contradicting his previous statements. Respondent, in that letter denied that he had ever represented the Mosiers and stated that throughout the entire process, he had only represented Angela and Edna Searles. That letter also stated that on virtually all adoptions handled by the respondent, he only represents the birth mother and that this fact was well known to those who practice in the adoption field. ... In a prior hearing on another disciplinary complaint also involving an adoption, In the Matter of R. Keith Mountain, No. W3188, the respondent gave sworn testimony indicating that in adoptions handled by him, he primarily represented the adoptive parents and would represent birth mothers only when specifically asked to by the adoptive parents.
“34. The $300.00 advanced to Edna Searles through the respondent has never been returned.
“35. Respondent’s wife, Carol Abrahams Mountain, a licensed social worker, advertised in the Yellow Pages of the local telephone directory that she handled adoption services, pregnancy counseling and adoptive counseling. She used her husband’s telephone number and law office address. Respondent and his wife denied that any business was obtained through the advertisement.
“36. That the trust account of the respondent’s law firm was held in joint tenancy with his wife. That the account was used for personal expenses. That no client has complained of losing funds therein. That the account is now properly maintained, although it was overdrawn on November 16, 1983 and February 27, 1984.
“37. The panel found discrepancies in the respondent’s testimony as compared to the lettei's written to Green and to the Wichita Bar Association.
CONCLUSIONS OF LAW
“1. The respondent represented Rod and Carol Mosier, and at the same time represented another couple who adopted the Searles baby, contrary to DR 5-104(A) inasmuch as there were conflicting interests.
“2. That the respondent, in advising the Mosiers that the fetus indicated abnormalities when in reality he had not conferred with the gynecologist, is contrary to DR 1-102(A)(3)(4). That his false statements to a client violated DR 7-102(A)(3).
“3. That the respondent failed to carry out a contract of employment contrary to DR 7-101(A)(l)(2) and (3).
“4. That the false statements to Gerald Green were contrary to DR 1-102(A)(4).
“5. That the respondent served as a procurer of a baby for adoption, which is morally repugnant and contrary to DR 1-102 (A)(5) and (6).
“6. That the fee collected from the final adoptive parents was clearly excessive contrary to DR 2-106(A).
“7. That the respondent advanced funds to Edna Searles contrary to DR 5-103(B).
“8. That the respondent’s trust account was not properly maintained, contrary to DR 9-102(A) and (B)(3), although there is no evidence of any complaint by a client.”
Respondent took exceptions to the panel’s final kearing report and took this appeal. Respondent neither filed a brief nor appeared for oral argument though properly notified.
We have examined the record and find substantial competent evidence to support the findings of fact of the hearing panel. The facts support the panel’s conclusions of law that respondent violated the following sections of Supreme Court Rule 225, Code of Professional Responsibility (235 Kan. cxxxvii et seq.); DR 5-104(A); DR 7-101(A)(l), (2), and (3); DR 1-102(A)(4), (5), and (6); DR 2-106(A); DR 5-103(B); and DR 9-102(A) and (B)(3).
We conclude the panel’s recommendation that respondent be disbarred is appropriate.
IT IS THEREFORE ORDERED that R. Keith Mountain be and he is hereby disbarred from the practice of law in the State of Kansas and the Clerk of the Appellate Courts is directed to strike his name from the rolls of attorneys authorized to practice law in the State of Kansas.
IT IS FURTHER ORDERED that R. Keith Mountain shall forthwith comply with the provisions of Supreme Court Rule 218 (235 Kan. cxxxii).
IT IS FURTHER ORDERED that the costs of this action be assessed to respondent. | [
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The opinion of the court was delivered by
McFarland, J.:
Plaintiff Bartlett Cooperative Association obtained a judgment against defendant Ron Patton. In attempting to collect the judgment, plaintiff garnished defendant’s Individual Retirement Account (IRA) in the Coffeyville State Bank. The district court held the IRA was exempt from garnishment under federal law. Plaintiff appeals from this determination.
The first issue is procedural in nature. Plaintiff contends defendant did not timely raise the defense of exemption. The trial court’s findings of fact relative to the mechanics of the garnishment are not challenged and are as follows;
“10. On June 4, 1985, a garnishment summons was issued to the Bank. Thereafter, on June 7, 1985, on a form supplied by the Clerk, the Bank filed an answer with the Court. The pertinent parts of the answer reflected: ‘$1900 IRA #653217 plus interest of approximately $25, less 180-day penalty, approximately $79.65, equals $1,845.35. Signed Ted Jones, Sr., Vice President and Cashier.’
“11. There is an unsigned and undated note attached to the Bank’s garnishee answer that states ‘mailed copy to attorney and defendant.’ The Court knows of its own knowledge that the Coffeyville Clerks make such notations on garnishment answers to indicate that they have mailed the answer and to whom. It should be noted that June 7, 1985, was a Friday.
“12. On June 20, 1985, thirteen (13) days after the Bank’s answer was filed, Patton objected to the answer of the Bank ‘ — on the basis that said account is of such a nature that it cannot be paid over to the plaintiff at this time and, therefore, the defendant maintains that the garnishee cannot legally pay said account to the plaintiff.’ ”
Garnishment is governed by the provisions of Article 7 of the Kansas Code of Civil Procedure, K.S.A. 60-701 et seq. It is defined as “either (1) a form of or an aid to attachment, or (2) in lieu of or in aid of execution.” K.S.A. 60-714.
Under K.S.A. 60-716, an order of garnishment to aid in the enforcement of a judgment may be obtained against the property of the debtor. The order of garnishment is served on the garnishee, together with two copies of the answer form for the garnishee. K.S.A. 60-717(b). Within ten days of service, the garnishee must file an answer. The answer essentially sets out what of the debtor’s property the garnishee has under its control. K.S.A. 60-718(a).
The provision of the Code which is in issue in this case is K.S.A. 60-718(c), which comes into play after the garnishee’s answer has been filed. That section states, in pertinent part:
“The clerk shall cause a copy of the answer to be mailed promptly to the plaintiff and the defendant. Within 10 days after the filing of the answer the plaintiff or the defendant or both of them may reply thereto controverting any statement in the answer. ... If the garnishee answers as required herein and no reply thereto is filed, the allegations of the answer are deemed to be confessed. If a reply is filed as herein provided, the court shall try the issues joined, the burden being upon the party filing the reply to disprove the sworn statements of the answer . . . .”
The appellant contends the court erred in considering the appellee’s response because it constituted a reply under K.S.A. 60-718(c) and was filed thirteen days after the garnishee’s answer. The appellee counters that he did not file a “reply” because he was not denying that the garnishee had his property, rather, he was claiming that the property was exempt from garnishment. He also argues that even if bound by the 10-day limit he had three extra days because “service” was by mail. K.S.A. 60-206(e).
K.S.A. 60-720 is titled “trial.” Paragraph (c) provides as follows:
“Right of defendant to contest garnishment. The defendant may, in addition to controverting the statements in the answer of the garnishee, defend the proceedings against the garnishee, upon the ground that the indebtedness of the garnishee, or any property held by him or her, is exempt from execution against such defendant . . . .” (Emphasis supplied.)
Nowhere does the statute set out an explicit procedure for raising this defense. However, K.S.A. 60-724 explicitly provides that “[n]o judgment shall be rendered in garnishment by reason of the garnishee[’s] ... (3) holding moneys or property exempt by law, or the proceeds therefrom.”
We conclude the question of exemption was timely raised. The response of the defendant did not controvert any statement contained in the garnishee’s answer. Clearly, K.S.A. 60-718(c) does not cover all issues in a garnishment proceeding. A third party claiming ownership in the garnished moneys is not controlled by the statute. The defense of exemption is designated in K.S.A. 60-720 as a defense in addition to any controverting of statements made in the garnishee’s answer. The ten-day requirement in K.S.A. 60-718(c) is not applicable to the claim of exemption herein.
We turn now to the merits. Did the district court err in holding that federal law prohibits garnishment of an IRA?
Inasmuch as IRA’s have been a fact of life for a number of years, it would be logical to assume this issue would involve a substantial body of case law. Such is not the situation.
In 1974, Congress reacted to the national concern over abuses affecting the stability and accountability of employee benefit plans by the passage of the Employee Retirement Income Security Act of 1974 (ERISA) (88 Stat. 832), codified as 29 U.S.C. § 1001 et seq. (1982). The purpose of ERISA is stated in 29 U.S.C. § 1001 (1982) as follows:
“Congressional findings and declaration of policy.
“(a) Benefit plans as affecting interstate commerce and the Federal taxing power. The Congress finds that the growth in size, scope, and numbers of employee benefit plans in recent years has been rapid and substantial; that the operational scope and economic impact of such plans is increasingly interstate; that the continued well-being and security of millions of employees and their dependents are directly affected by these plans; that they are affected with a national public interest; that they have become an important factor affecting the stability of employment and the successful development of industrial relations; that they have become an important factor in commerce because of the interstate character of their activities, and of the activities of their participants, and the employers, employee organizations, and other entities by which they are established or maintained; that a large volume of the activities of such plans is carried on by means of the mails and instrumentalities of interstate commerce; that owing to the lack of employee information and adequate safeguards concerning their operation, it is desirable in the interests of employees and their beneficiaries, and to provide for the general welfare and the free flow of commerce, that disclosure be made and safeguards be provided with respect to the establishment, operation, and administration of such plans; that they substantially affect the revenues of the United States because they are afforded preferential Federal tax treatment; that despite the enormous growth in such plans many employees with long years of employment are losing anticipated retirement benefits owing to the lack of vesting provisions in such plans; that owing to the inadequacy of current minimum standards, the soundness and stability of plans with respect to adequate funds to pay promised benefits may be endangered; that owing to the termination of plans before requisite funds have been accumulated, employees and their beneficiaries have been deprived of anticipated benefits; and that it is therefore desirable in the interests of employees and their beneficiaries, for the protection of the revenue of the United States, and to provide for the free flow of commerce, that minimum standards be provided assuring the equitable character of such plans and their financial soundness.
“(b) Protection of interstate commerce and beneficiaries by requiring disclosure and reporting, setting standards of conduct, etc., for fiduciaries. It is hereby declared to be the policy of this chapter to protect interstate commerce and the interests of participants in employee benefit plans and their beneficiaries, by requiring the disclosure and reporting to participants and beneficiaries of financial and other information with respect thereto, by establishing standards of conduct, responsibility, and obligation for fiduciaries of employee benefit plans, and by providing for appropriate remedies, sanctions, and ready access to the Federal courts.
“(c) Protection of interstate commerce, the Federal taxing power, and beneficiaries by vesting of accrued benefits, setting minimum standards of funding, requiring termination insurance. It is hereby further declared to be the policy of this chapter to protect interstate commerce, the Federal taxing power, and the interests of participants in private pension plans and their beneficiaries by improving the equitable character and the soundness of such plans by requiring them to vest the accrued benefits of employees with significant periods of service, to meet minimum standards of funding, and by requiring plan termination insurance.”
The thrust of ERISA is to protect employees’ rights in employee benefit plans arising from their employment — whether controlled by employers or labor unions. In such plans, an employee is one of a herd with no real control over his or her interest in the fund or access to information on its management. Funds paid into such plans by employers are generally not taxable to the employee at the time of contribution. This placed the working person not covered by such a plan at a distinct disadvantage if he or she sought to develop a private pension plan for his or her benefit; hence, the birth of the Individual Retirement Account (IRA) in ERISA for working persons not covered by an employee pension plan.
An IRA gives the owner one of the tax advantages of an employer funded pension fund (contributions are not taxed when placed in the account). However, the need for the safeguards set forth in 29 U.S.C. § 1001 applicable to employee benefit plans is absent. The owner of an IRA individually contracts for the IRA and retains much control over it. He or she can secure return of the invested funds prior to retirement by paying a penalty for early withdrawal and, of course, income taxes on the funds. Federal law specifically requires that tax-qualified employee pensions, profit-sharing, and stock bonus plans contain an anti-alienation clause. I.R.C. § 401(a)(13) (1982). (For convenience, further citations to federal law where applicable shall be to the Internal Revenue Code rather than ERISA.) An employee under an employee benefit plan might easily be bilked out of what, to him or her, appears to be some vague contingent future interest in the employee benefit plan — hence a need for the anti-alienation provision. Effective in 1982, the Economic Recovery Act of 1981 permitted all working people to establish IRA’s, regardless of whether or not they were covered by employee benefit plans. IRA’s are established under I.R.C. § 408 (1982) and I.R.C. § 408 contains no similar anti-alienation provision. Had Congress believed federal interest required a like provision in IRA’s it could have inserted such provision. That it did not do so is significant. Appellee herein would give an IRA under I.R.C. § 408 a ride on the coattails of employee benefit plans under I.R.C. § 401 as far as anti-alienation is concerned. We do not believe that was the Congressional intent.
It is true that early withdrawal of an IRA subjects the owner to payment of a penalty — so does early withdrawal of a certificate of deposit (CD). Additionally, early withdrawal subjects the owner of the IRA to additional tax liability for the year in question. But this does not imply any Congressional intent to prohibit garnishment of IRA’s. We conclude that garnishment of IRA’s is not precluded by federal law. For a more in-depth discussion of the applicable federal law see Lohwater, Who Can Attach Your IRA, 4 Nat’l L. J. No. 32, 22 (April 19, 1982). The Lohwater article, likewise, concludes federal law does not remove IRA’s from the reach of creditors.
Appellee concedes that the garnishment herein is not contrary to Kansas law and that an exemption for the IRA must be found in federal law. Normally, we would not discuss state law under this circumstance. However, this opinion would be misleading if we did not mention certain 1986 amendments (addition of sections [b], [c], and [d]) to K.S.A. 60-2308 contained in Substitute for House Bill No. 2522 (L. 1986, ch. 220, § 1), which provides in part:
“Section 1. K.S.A. 60-2308 is hereby amended to read as follows: 60-2308. (a) Money received by any debtor as pensioner of the United States within three months next preceding the issuing of an execution, or attachment, or garnishment process, cannot be applied to the payment of the debts of such pensioner when it is made to appear by the affidavit of the debtor or otherwise that such pension money is necessary for the maintenance of the debtor’s support or a family support wholly or in part by the pension money. The filing of the affidavit by the debtor, or making proof as above provided, shall be prima facie evidence, and it shall be the duty of the court in which such proceeding is pending to release all moneys held by such attachment or garnishment process, immediately upon the filing of such affidavit, or the making of such proof.
“(b) Except as provided in subsection (c), any money or other assets payable to a participant or beneficiary from, or any interest of any participant or beneficiary in, a retirement plan which is qualified under sections 401(a), 403(a), 403(b), 408 or 409 of the federal internal revenue code of1954, as amended, shall be exempt from any and all claims of creditors of the beneficiary or participant. Any such plan shall be conclusively presumed to be a spendthrift trust under these statutes and the common law of the state. All records of the debtor concerning such plan or arrangement and of the plan concerning the debtor’s participation in the plan or arrangement shall be exempt from the subpoena process.
“(c) Any plan or arrangement described in subsection (b) shall not be exempt from the claims of an alternate payee under a qualified domestic relations order. However, the interest of any and all alternate payees under a qualified domestic relations order shall be exempt from any and all claims of any creditor, other than the state department of social and rehabilitation services, of the alternate payee. As used in this subsection, the terms ‘alternate payee’ and ‘qualified domestic relations order’ have the meaning ascribed to them in section 414(p) of the federal internal revenue code of 1954, as amended.
“(d) The provisions of subsections (b) and (c) shall apply to any proceeding which: (1) Is filed on or after July 1,1986; or (2) was filed on or after January 1, 1986, and is pending or on appeal July 1, 1986.” (Emphasis supplied.)
Inasmuch as the garnishment herein was filed prior to the time periods contained in section (d), these amendments do not apply to the case before us. However, it should be noted section (b) does exempt, inter alia, an I.R.C. § 408 retirement plan which is an IRA.
We conclude the district court erred in concluding the IRA herein was exempt from garnishment under federal law.
The judgment is affirmed in part, reversed in part, and remanded for further proceedings. | [
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The opinion of the court was delivered by
Miller, J.:
The defendant, Patrick T. McQuillen, was'convicted by jury trial in Shawnee District Court of rape, K.S.A. 21-3502, and aggravated sodomy, K.S.A. 21-3506. The offense occurred on November 13, 1982. The trial took place after re- •" mand from our court, State v. McQuillen, 236 Kan. 161, 689 P.2d 822 (1984). The defense was consent.
The facts need not be set forth since the only issue presented on appeal is whether the testimony of a psychiatrist concerning rape trauma syndrome was admitted without proper foundation. At the outset, it will be helpful to review our previous holdings on the subject of rape trauma syndrome evidence. In State v. Marks, 231 Kan. 645, 647 P.2d 1292 (1982), we held unanimously that qualified expert psychiatric testimony regarding the existence of rape trauma syndrome is relevant and admissible when the defendant is charged with rape and the defense is consent. Additionally, we noted that the so-called rape trauma syndrome is generally accepted to be a common reaction to sexual assault. Finally, we held that the admission of expert testimony under our rules of evidence lies within the sound discretion of the trial court, and the trial court’s decision will not be reversed on appeal unless it is shown that discretion was abused. The expert who testified in Marks was Dr. Herbert Modlin, a board certified psychiatrist and neurologist who practices psychiatry and teaches at the Menninger Foundation. Dr. Modlin was also the expert in the case now before us.
In State v. McQuillen, 236 Kan. 161, by a divided court, we followed our holding in Marks and held that an expert may testify that the patient/victim does possess and exhibit the emotional and psychological trauma consistent with rape trauma syndrome. In State v. Bressman, 236 Kan. 296, 689 P.2d 901 (1984), we held that Marks, while holding that evidence of the existence of rape trauma syndrome is relevant and admissible, does not authorize the expert to testify that, in his or her opinion, the complaining witness in the case was raped. Because such testimony had been admitted, we reversed and remanded the case for a new trial.
In State v. Lash, 237 Kan. 384, 699 P.2d 49 (1985), wherein the defendant was charged with aggravated indecent liberties with a fifteen-year-old child, the trial court refused to permit the State’s psychologist to testify that in his opinion the alleged victim had been sexually molested by the defendant. After acquittal, and on appeal on a question reserved by the State, we denied the appeal, following Bressman, and held that the trial court did not err in refusing to permit the psychologist to testify that the victim had been sexually molested by the defendant.
For a similar ruling see State v. Jackson, 239 Kan. 463, 721 P.2d 232 (1986), where we reversed convictions of indecent liberties with a child and aggravated criminal sodomy, finding prejudicial and reversible error in permitting expert witnesses to testify that in their opinions the child victim was telling the truth and that in their opinions the defendant committed the acts of molestation with which he was charged.
Defendant first argues here that the testimony of Dr. Modlin should not have been permitted in this case for the reason that Dr. Modlin did not follow established medical procedures in making his diagnosis. This argument is premised upon a portion of an article written by Dr. Modlin which states:
“It is exceedingly important for the physician to interview spouse and close family members since characteristically the patient is concrete, unimaginative, verbally unproductive and an inept scrutinizer of his own feelings and behavior.”
Dr. Modlin testified, upon voir dire by defense counsel, that in this case he did not interview the spouse or close family members. His explanation of this was two-fold: The quoted language pertains to diagnosis of post-traumatic stress disorder in injured workmen; rape trauma syndrome is discussed in a separate section of the article. The paragraph pertains to blue-collar workers with limited education, a class whom Dr. Modlin characterized as tending to be concrete, unimaginative, not very verbal, and not very good witnesses in their own behalf. He explained that this description does not apply to the victim herein because she has above-average intelligence and is very verbal and expressive.
Additionally, he stated that the victim was living with her children. She had no parents, husband, roommate, or other adults living with her and he declined to interview her children about how their mother was reacting to a sexual attack.
At the conclusion of the voir dire of Dr. Modlin, the defense made a motion to exclude his testimony. The trial court overruled the motion, stating that the arguments raised by the defendant went to the weight of the testimony and not to its admissibility. We agree. The witness clearly explained the cited language in the article, described its application and focus, and explained why it did not apply to his evaluation here. As we said in Marks, the admissibility of expert testimony is discretionary with the trial court. We find no abuse of that discretion in this case.
Finally, defendant argues that the witness was allowed to pass on the credibility of the victim. He calls our attention to separate passages in the transcript where he contends that Dr. Modlin was permitted to serve as a “lie detector.” We note initially that no objection to this testimony was raised at trial and, thus, defendant may not raise this issue on appeal. K.S.A. 60-404. However, in an abundance of caution, we have carefully reviewed cited portions of the record and find no violation of the rules set forth in Bressman, Lash, and Jackson. The witness did not testify that in his opinion the victim was telling the truth, or that she was raped, or that in his opinion the defendant committed the acts with which he was charged. He 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 these symptoms in this victim. His testimony did not exceed the limitations imposed by the cited cases.
The judgment is affirmed. | [
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Per Curiam:
Amo Windscheffel, Disciplinary Administrator, filed a complaint with the Board for Discipline of Attorneys (Board) against Edward H. Powers, Jr., an attorney admitted to the practice of law in Kansas, alleging Mr. Powers had neglected a legal matter entrusted to him. At a hearing before a panel of the Board, evidence was presented in support of the complaint and respondent presented evidence in his behalf.
The panel found respondent had been retained by Benjamin Wakefield, in 1981, to institute a divorce proceeding. A major issue in the trial thereon was the validity of a separation agreement executed in Virginia. The panel found respondent ably represented Mr. Wakefield in the trial of the case. In September of 1982, the Wyandotte County District Court set aside the settlement agreement and awarded Mrs. Wakefield certain rights, property, and child support. Mr. Wakefield was dissatisfied with this judicial decision and requested that respondent file an appeal therefrom.
Respondent filed a motion for a new trial which was denied. Respondent filed a notice of appeal in November 1982. Mr. Wakefield was serving as a captain in the United States Army at this time and was stationed in Arizona. Mr. Wakefield testified he communicated several times thereafter with respondent and was continuously led to believe that the appeal was proceeding in an orderly manner. In fact, the only formal activity on the appeal was the filing of the notice of appeal itself. Post-trial motions were filed by the parties, respectively, to increase and decrease the child support. Hearing was had on these motions on September 21, 1983. At that time, the district judge, pursuant to Supreme Court Rule 5.051 (235 Kan. Ixvii), dismissed the appeal for failure to perfect the appeal.
The facts as above set forth are not in dispute. Respondent admitted to the panel that he was the attorney of record in the appeal and that he had “messed up the appeal.” His reason as to why this happened was that he had turned the appeal over to Warren Sapp, who was working in respondent’s office. Mr. Sapp was, at all times pertinent, licensed to practice law in Missouri but had never been admitted to practice in Kansas. Respondent further testified that he had confidence in Sapp and was assured by Sapp that the Wakefield appeal was proceeding in an orderly manner.
The panel found that there was clear and convincing evidence that respondent had neglected a legal matter entrusted to him in violation of DR 6-101(A)(3) (235 Kan. cxlvii) and- recommended that respondent be disciplined by public censure.
Respondent filed exceptions herein contending: (1) the facts as found by the Board do not constitute neglect of a legal matter; and (2) even if his conduct did constitute neglect of a legal matter, the recommendation of discipline by public censure is too severe.
DR 6-101(A)(3) provides:
“(A) A lawyer shall not:
(3) Neglect a legal matter entrusted to him.”
In his claim that the finding of neglect was improper, respondent relies heavily on State v. Dixon, 233 Kan. 465, 664 P.2d 286 (1983), wherein we held:
“Neglect involves indifference and a consistent failure to carry out the obligations which the lawyer has assumed to his client or a conscious disregard for the responsibility owed to the client. The concept of ordinary negligence is different. Neglect usually involves more than a single act or omission. Neglect cannot be found if the acts or omissions complained of were inadvertent or the result of an error in judgment made in good faith.” Syl. ¶ 2.
Respondent contends the petitioner State did not meet its burden of proof “to prove that Respondent was conscious of what was going on as far as Sapp was concerned and Sapp’s failure to carry out the responsibility he had been given.” Carried to the extreme, this argument would result in an attorney being able to defeat neglect charges by simply stating he had forgotten about a case. The impossible burden would be on the petitioner to show the attorney had not forgotten the matter and was, at all times, conscious of what he or she should be doing. This would expand the concept of neglect into requiring a showing of intentional wrongdoing.
Respondent was the attorney of record in the appeal and responsible therefor. Mr. Sapp could not sign pleadings and any work he performed on appeal was subject to supervision by respondent. Apparently, the appeal was never docketed. The docketing statement in the appeal was required to be filed 21 days after filing the appeal. The docketing statement would have to be signed by respondent and certainly should have been reviewed by him prior to filing. Apparently, no transcript was ordered. Obviously, no brief was filed. Respondent certainly should have been aware of the steps required by Kansas appellate procedure and that the required steps were not being taken. Nevertheless, respondent wholly failed to see that the work was being done and continued to lead his client to believe that the appeal was proceeding in an orderly manner.
Clearly, the record supports the panel’s finding respondent neglected a legal matter entrusted to him.
Respondent also argues that the neglect of a single appeal does not constitute a violation of DR 6-101(A)(3). We do not agree. In State v. Dixon, 233 Kan. 465, relied on by respondent in the previous point, we went on to recognize an attorney’s pattern of conduct in the case of a single client can amount to violation of DR 6-101(A)(3). In In re Waite, 237 Kan. 626, 702 P.2d 1381 (1985), an attorney’s failure to file a brief in an appeal resulting in the dismissal of the appeal was held to be a violation of DR 6-101(A)(3). We find respondent’s ax-gument on this point unpersuasive.
Finally, respondent argues the recommended discipline of public censure is too harsh. We have carefully considered the arguments made by respondent in this regard, including the panel’s finding respondent had ably represented this same client at the tidal coui't level, and his lack of prior disciplinary complaints. The fact remains that, through respondent’s neglect of a legal matter entrusted to him, his client’s right of appeal was lost.
The Court, having considered the record herein, concui's in the findings, conclusions and recommendations of the Board.
IT IS THEREFORE BY THE COURT ORDERED that Edward H. Powers, Jr., be and he is hereby disciplined by public censure and the costs of this proceeding are assessed to the respondent. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal in an action for a writ of habeas corpus brought by the father against the maternal grandparents requesting the care, custody and possession of his two minor daughters, Alana, born April 22, 1954, and Pamela, born July 20, 1955.
For clarity the appellants will be referred to as the grandparents or respondents and the appellee will be referred to as the father or petitioner.
The question presented is whether the evidence introduced by the grandparents, which sought to prove that the father was unfit to have the custody of his two minor daughters, was sufficient to withstand a demurrer.
The uncontroverted facts are that the father is a Staff Sergeant in the United States Air Force and is stationed at Ft. Warren Air Base at Cheyenne, Wyoming. He and Beverly Ann Vallimont, the natural mother of said minor children, were married on the 25th day of June, 1953, and divorced in Cheyenne, Wyoming, by an order which became final on the 2nd day of July, 1956. The exclusive control and custody of the minor children were given to the natural mother in the divorce action. Thereafter the children lived with the maternal grandparents, Sam and Pearl Medford, on their farm in Thomas County, Kansas. The father remarried on July 7, 1956, and the natural mother was accidentally killed in an automobile accident on December 14, 1956.
This action for a writ of habeas corpus was commenced on the 16th day of January, 1957, in the district court of Thomas County, Kansas, and trial was had on the 11th day of February, 1957. The fitness of the natural father to have custody of his children was not an issue in the divorce action and no finding thereon is indicated. The fitness of the natural father was raised for the first time when the grandparents filed their return to the writ of habeas corpus.
At the close of the respondents’ evidence the petitioner’s demurrer to the evidence of the respondents was sustained. The trial court thereupon ordered that the writ be granted and that the minor children be delivered to petitioner. The children were then delivered to the petitioner and he has had them since that date.
Appeal was taken by the respondents from the judgment of the lower court sustaining the demurrer of the petitioner to the evidence of the respondents.
The facts in this case are controlled by a rule of law in custody cases to which this court has adhered for a number of years. It is succinctly stated in Christlieb v. Christlieb, 179 Kan. 408, 295 P. 2d 658, as follows:
“It is a firmly-established rule in this state that a parent who is able to care for his children and desires to do so, and who has not been found to be an unfit person to have their custody in an action or proceeding where that question is in issue, is entitled to the custody of his children as against grandparents or others who have no permanent or legal right to their custody, even though at the time the natural parent seeks their custody such grandparents or others are giving the children proper and suitable care and have acquired an attachment for them. . . .” (p. 409; see cases cited therein.)
Recent decisions in which this court adhered to the foregoing rule are Leach v. Leach, 180 Kan. 545, 306 P. 2d 193; and Heilman v. Heilman, 181 Kan. 467, 312 P. 2d 622.
On facts similar to the instant case this court said the natural rights of the father were not completely annulled by the order in the divorce proceeding awarding the custody of the child to the mother. They were suspended for the time being, but they were revived in full force by the mothers death. (In re Hollinger, 90 Kan. 77, 132 Pac. 1181. See, also, May v. May, 162 Kan. 425, 427, 176 P. 2d 533, on similar facts.)
Rut for the fact that respondents assert in their brief that the welfare and best interests of the children are the paramount consideration in a custody case of this type, further consideration of our cases would be unnecessary. Whether the rule asserted by the respondents has application in the instant case becomes material because the trial court in stating its reasons for the ruling on the demurrer led respondents to believe, that had the welfare and best interests of the children been of paramount consideration, the decision would have been to the contrary. Under this rule the trial court has wide discretion in custody cases. In support thereof the respondents cite Jackson v. Jackson, 181 Kan. 1, 309 P. 2d 705; Moyer v. Moyer, 171 Kan. 495, 233 P. 2d 711; and In re Jackson, 164 Kan. 391, 190 P. 2d 426. Attention will be devoted to the last case cited later in this opinion. The first two cases cited involve proceedings in which the custody of the children is an issue between the parents.
It is definitely established that when the custody of children becomes an issue as between parents, the primary question to be determined by the court is the welfare and best interests of the children, and all other questions are subordinate thereto. In addition to the Jackson and Moyer cases cited we would add: Collins v. Collins, 177 Kan. 50, 276 P. 2d 321; and Pearson v. Pearson, 176 Kan. 306, 270 P. 2d 205, among many others. Rut this is not the situation presented by the facts in the instant case. Here the father seeks custody from the maternal grandparents.
Some confusion has arisen regarding this court’s application of the rule of law stated in Christlieb. This is indicated by respondents’ contention. (See, 5 Kan. Law Rev., pp. 260 to 263.)
The reason for the Christlieb rule is well stated by Justice Dawson in the case of In re Kailer, 123 Kan. 229, 255 Pac. 41, (cited in Christlieb v. Christlieb, supra) where it was said:
“Noting respondents’ objections to this judgment, it is urged that the welfare and best interests of the children were the paramount issue. Under the law of the land the welfare and best interests of children are primarily the concern of their parents, and it is only when parents are unfit to have the custody, rearing and education of children, that the state as parens patriae, with its courts and judges, steps in to find fitting custodians in loco parentium.
“Putting the matter in another way, it is quite correct to say that the welfare of children is always a matter of paramount concern, but the policy of the state proceeds on the theory that their welfare can best be attained by leaving them in the custody of their parents and seeing to it that the parents’ right thereto is not infringed upon or denied. This is the law of the land on this subject. And it never becomes a judicial question as to what is for the welfare and best interests of children until the exceptional case arises where the parents are dead, or where they are unfit to be intrusted with the custody and rearing of their children and have forfeited this right because of breach of parental duty, or where the right has been prejudiced by the discord of the parents themselves. There are enough of the latter sort of cases where the courts are compelled to interfere and take the custody of children from unfit parents, or to decide which of quarreling parents should have that custody- . . .” (pp. 230, 231.)
In the case of In re Jackson, supra, where grandparents sought to obtain custody of a minor child from his father in a habeas corpus proceeding, considerable language was used which supports respondents’ contention that the welfare and best interests of the children is the paramount consideration in a case of this type.
This court in Stout v. Stout, 166 Kan. 459, 201 P. 2d 637, on similar facts, undertook to clarify the law on this point where it said at page 465:
“. . . It will suffice to say that if there is any language to be found in any of our decisions justifying the construction that the children of a natural parent may be given to third persons without a finding such parent is an unfit person to have, their, custody it should be and is hereby disapproved.”
In re Jackson, supra, and the case from which it quoted extensively, Chapsky v. Wood, 26 Kan. 650 (1881), were considered in the Stout case. Without further elaboration reference is made to the Stout case, which should be sufficient to dispose of the respondents’ contention. Those interested will find an excellent review of the entire subject in 1 Kan. Law Rev., pp. 37 and 165.
By statute the father and 'mother are the natural guardians of the persons of their minor children. If one dies, natural guardianship devolves upon the other. (G. S. 1949, 59-1802, and see, Denton v. James, 107 Kan. 729, 193 Pac. 307.)
At the close of the petitioner’s evidence it was determined by the trial court, without objection by the parties, that the burden of proof then shifted from the petitioner to the respondents to show that the petitioner was an unfit person to have custody of his children.
Our inquiry is next directed to the burden of proof cast upon respondents. It has been held that a court will not deprive a parent of the custody of his minor children upon a charge of unfitness unless the charge is established by clear and convincing evidence. (In re Underwood, Petitioner, 103 Kan. 505, 175 Pac. 380; See, also, Pinney v. Sulzen, 91 Kan. 407, 137 Pac. 987; and Jendell v. Dupree, 108 Kan. 460, 195 Pac. 861,—requiring clear and satisfactory proof.)
What is the meaning of the term “unfit” as applied to the relation of rational parents to their children? On the issue of a father’s fitness this court said in Pinney v. Sulzen, supra, that “courts do not hesitate to take a child from its parents and give it to a stranger if the parents treat the child with cruelty, keep it in vicious or disreputable surroundings, or are unfit to be entrusted with its custody and control by reason of their habits, character or condition.” (p. 412.) Quoted with approval in the Pinney case is Clarke v. Lyon, 82 Neb. 625 (Syl. ¶ 4), 118 N. W. 472, which said:
“The unfitness which deprives a parent of the right to the custody of his children must be positive, and not comparative, and the mere fact that the children would be better nurtured or cared for by a stranger is not sufficient to deprive tire parent of his right to their custody.”
A limitation to the meaning of unfitness is indicated by In re Hollinger, supra, where it was said that the court will not disturb the normal family relation nor take a child from its parents because a third person seeking its custody may have larger means and is therefore better able to give the child greater comforts, wider education and the promise of a larger inheritance. (See, Wood v. Lee, 123 Kan. 669, 256 Pac. 797; Buchanan v. Buchanan, 93 Kan. 613, 144 Pac. 840; and cases cited therein.)
A further limitation is disclosed in Jendell v. Dupree, supra, where this court said:
“. . . We are not disposed to minimize or excuse the use of the language attributed to her, especially by one who is rearing children, but if an occasional outburst of temper and the use of coarse and offensive speech were treated as sufficient grounds for depriving parents of'the custody of their children, many families might be disrupted. . . .” (p. 464.)
It was said the right of a father to have the custody and control of his child might be forfeited by conduct showing him to be manifestly unfit in Swarens v. Swarens, 78 Kan. 682, 97 Pac. 968.
By a statute in full force at the time of hearing, G. S. 1949, 38-402, the juvenile court was empowered to take as “dependent and neglected” a child from its parents having custody, where the home was an unfit place for such child by reason of neglect, cruelty or depravity on the part of its parents. This statute also empowered the juvenile court to take a child as “dependent and neglected” where for any reason the child was destitute or homeless or abandoned or dependent on the public for support; who did not have proper parental care or guardianship; and who was found living in a house of ill fame or with vicious or disreputable persons.
We think it entirely plain that misconduct on the part of. parents which would empower a juvenile court to take jurisdiction of a child as “dependent and neglected” is likewise such breach of parental duty as to make the parents unfit to be entrusted with the custody and rearing of their child in a custody award matter.
G. S. 1949, 38-402, was repealed by Laws of 1957, Chapter 256, which adopted the Kansas Juvenile Code, effective July 1, 1957. The new code provides that when parents are found and adjudged to be unfit persons to have the custody of a “dependent and neglected child,” the juvenile court may make an order permanently depriving such parents of their parental rights. (Laws of 1957, Ch. 256, Sec. 24 [c].) The code defines a “dependent and neglected child” as a child less than sixteen years of age:
“(1) Whose parent neglects or refuses, when able so to do, to provide proper or necessary support and education required by law, or other care necessary for his well being;
“(2) who is abandoned or mistreated by his parent, . . .'
“(3) whose occupation, environment or association is injurious to his welfare" (Laws of 1957, Ch. 256, Sec. 2[g].) (Emphasis added.)
While the standard of fitness required of parents is difficult to specify without being somewhat ambiguous, conduct which makes a parent unfit may be defined within limits. There is no statutory definition of the word “unfit.” It therefore must be given its ordinary significance, having due regard to the context. In general, the word means unsuitable, incompetent, or not adapted for a particular use or service. As applied to the relation of rational parents to their child, the word usually although not necessarily imports something of moral delinquency. Parents who treat the child with cruelty or inhumanity, or keep the child in vicious or disreputable surroundings, are said to be unfit. Parents who abandon the child, or neglect or refuse, when able so to do, to provide proper or necessary support and education required by law, or other care necessary for the child’s well being are said to be unfit. Violence of temper or inability or indisposition to control unparental traits of character or conduct, might constitute unfitness. So, also, incapacity to appreciate and perform the obligations resting upon parents might render them unfit, apart from other moral defects.
It is argued in the brief of the respondents that the evidence shows the petitioner to be unfit to have the care and custody of his children. Much of respondents’ evidence was devoted to the fine character and home of the respondents which was conceded by the petitioner. Their financial statement disclosed that they were worth in excess of $500,000.00. The testimony disclosed that during the early part of petitioner’s military service, they had furnished money for clothes, groceries and various things to the extent of $1,049.83, which has never been repaid during the marriage of petitioner to their daughter. They complained that a long distance call made by petitioner two days before the burial of their daughter, Beverly, was made collect.
On the issue of petitioner’s fitness to have the custody of his children, the cumulative effect of the most favorable statements in respondents’ evidence, including favorable inferences thereon, for respondents might be construed to disclose on the part of the petitioner an attitude of hostility toward his children and cruel treatment of them during his marriage to Beverly.
Actually, the net result of respondents’ evidence on the unfitness of petitioner is rather meager. To illustrate, the attorney employed by Beverly to represent her in the divorce action was called from Colorado Springs to testify. The most favorable aspect of the testimony for respondents was that petitioner had struck his wife more than once and that the children (both under three years of age at the time of the divorce) had been struck. Witness on cross examination stated that petitioner had come to his office in Cheyenne, Wyoming, after the divorce action was filed hoping to effect a reconciliation and during the course of conversation admitted striking Beverly once. It was apparent that this was the incident that sent her to the attorney’s office. The testimony as a whole could not possibly be construed to show that petitioner struck his children.
Most of the other incidents concerning which testimony was given occurred during the Christmas season of 1954, more than eighteen months prior to the divorce, when petitioner and Beverly visited for three weeks with the respondents. The oldest child at that time was less than a year old and just learning to eat. She was messy and noisy when she ate with the family. Petitioner was described as becoming disgusted and hostile with the child when she spilled things on these occasions, which usually upset the family at mealtime. It was said he complained and argued when the child cried at night, and that he hollered at Beverly or the child continually, which would always have the house in an uproar before he went to bed; that he could not seem to stand the children and refused to take care of them. It was said that after a Christmas party in Winona, during the visit with respondents, petitioner bought beer and liquor for himself and three other boys who drove to Oakley where they drove up and down the street looking for girls.
The oldest child in May, 1956, when brought to the repondents’ home pending the divorce was said to be nervous and needed medicine to quiet her down.
The petitioner testified that he was serving in the United States Air Force on his second term of enlistment; that he had received an honorable discharge after his first enlistment and was presently an instructor. He further testified that he had never had any time for misconduct in the service; was making adequate pay and allowances for the support of his children; was a member of the Protestant Church and attends church on the Air Base. He further testified that he had been awarded the Good Conduct Medal, had a fife insurance program and had never had any bad time for misconduct in the service; that he had been cleared by the Air Force to handle secret information, has no drinking habits, and had never been involved in any conduct unbecoming to his rank.
On oral argument the case was presented as one involving a demurrer to the evidence of the respondents. But it appears from the record that the trial court treated the matter as a full and final submission after all of the evidence was in. (In re Underwood, Petitioner, supra.) After respondents’ evidence was in and a demurrer was lodged thereto by the petitioner, the trial court said: "... I want the present wife of the petitioner on the witness stand.” The court reserved ruling and Clarice Vallimont, petitioner’s present wife, took the stand and testified making a commendable statement regarding herself, her experience and her love of children.
On rendering the decision the trial court, after acknowledging the great number of cases of this type cited to the court, said:
“We have some testimony in this ease as to bad conduct on the part of tlie plaintiff. I don’t think it goes anything like as far — I certainly couldn’t construe it as being anything even remotely close to being as strong as the argument made on behalf of it, . . .” (Emphasis added.)
Then, after reviewing some of the evidence presented, it was further said:
“There isn’t much testimony, of course, about the relationship between the plaintiff and his deceased wife. Of course, the court can’t do anything but assume it wasn’t good, at least, possibly one time, and, most certainly, during the last months of that relationship.”
The court then recognized that it was compelled to follow the law and make an honest decision, and further said:
“It is agreed here that the Medfords would provide for these children a very fine home. I can’t decide anything else but that that would be a fact, that they would make these children a very fine home.
“But they are not their children. They are the children of Sergeant Vallimont, and it is the rule of tire Supreme Court that, unless it is shown to this court, that he is an unfit person to raise those children, he should have their custody.
“And, I will further say, as a matter of law, that the court in finding that is not finding that for the reason — even if the grandparents were multimillionaires and this petitioner were a pauper, the courts have said many, many times that that is not a factor; and many, many times the children of paupers are raised happier, more able, and better — and, going back to some of our most famous men, I might mention Abraham Lincoln in comparison to the children of some of our millionaires . . . the matter of wealth doesn’t make a child’s upbringing either happy or good.” (Emphasis added.)
Viewing respondents’ evidence strictly on demurrer — taking all of it as true, considering only that favorable, together with all reasonable inferences to be drawn therefrom, and disregarding that unfavorable, weighing no contradictory parts or differences between direct and cross examination — technically it presented a sufficient case, (Jones v. Coate, 180 Kan. 597, 306 P. 2d 148) and the demurrer should have been overruled. But the court did not so consider the evidence. The net result of testimony by respondents’ witnesses had little substance to prove petitioner’s unfitness. Surely respondents did not intend to ask the trial court to implicitly believe their witnesses on the first part of their testimony and utterly to disbelieve them as to the latter part on the issue of petitioner’s fitness. Conceding that it was error to sustain the demurrer to the respondents’ evidence, we may not disregard the provisions of our civil code (G. S. 1949, 60-3317) which 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; and in any case pending before it, the court shall render such final judgment as it deems that justice requires, or direct such judgment to be rendered by the court from which the appeal was taken, without regard to technical errors and irregularities in the proceedings of the trial court.”
(See, State v. Order of Eagles, 100 Kan. 480, 164 Pac. 1063.)
On all the evidence presented by the record there was hardly a serious approach to the sufficiency of evidence required under the rule that in order to deprive the parent of the custody of his children his unfitness must be established by clear and convincing evidence. (See facts in: Crews v. Sheldon, 106 Kan. 438, 186 Pac. 498; and Lindbloom v. Lindbloom, 177 Kan. 286, 279 P. 2d 243.)
With all the evidence before us, and the review thereof by the trial court with its finding that respondents had not shown petitioner to be an unfit person to raise his children, it cannot be said that any error was committed in awarding the custody of the children to the petitioner upon full consideration of the entire evidence, which in fact was done. (See, In re Underwood, Petitioner, supra; and State v. Order of Eagles, supra.)
Respondents contend that the trial court did not make a finding that the father was a fit person. They cite Monroe v. Slaughter, 171 Kan. 614, 237 P. 2d 372, in support thereof. The court was there confronted with a writ of habeas corpus for the custody of a child between a father and the child’s uncle and aunt, in which the fitness of the father to have custody was an issue, and the lower court granted custody to the uncle and aunt without making a definite finding on the issue of the father’s fitness. There the cause was remanded with directions to the court below to make a definite finding on such issue. It does not follow that the trial court in the instant case must make a finding on the issue of the petitioner’s fitness. Here the respondents did not sustain their burden of proof on the issue of unfitness and the custody was granted to the father. The presumption of fitness with which the father was clothed, as bolstered by his own testimony, had not been overcome by the evidence presented against him. (In re Jackson, supra.) In the Monroe case it was mandatory under the Christlieb rule to find the father unfit before the uncle and aunt were eligible to take the custody. (Stout v. Stout, supra.)
Respondents specify as error the exclusion of statements made by petitioner’s first wife, Beverly, to her sister in November and December, 1956. There being no contention that these were dying declarations, or other affirmative showing in the record that this was error, they were properly excluded.
Treating the case, therefore, as one decided upon its merits, the judgment of the lower court granting the writ is affirmed. | [
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|
The opinion of the court was delivered by
Parker, C. J.:
This is an appeal from a nunc pro tunc order of a district court correcting a journal entry of judgment in a divorce action.
On January 7, 1957, the Hon. E. L. Fischer, judge of the district court of Wyandotte County, division No. 1, rendered a judgment in a divorce action in which he denied the plaintiff, Christeen E. Kelso, a divorce, granted her husband the defendant, James I. Kelso, a divorce and, in making a property division between the parties, gave the defendant the sum of $15,000, as his share of the property accumulated by the parties during their marriage. Subsequently, a journal entry was prepared by counsel for the defendant, approved by counsel for the plaintiff, signed by the court and filed in the case. That instrument covered the decree of the court and findings made in connection therewith.
The order in question deals with finding No. 6 and a part of the decree. Portions thereof, pertinent to the issues involved, read:
“6. That during said marriage, through their joint efforts, they accumulated property and improved plaintiff’s property above described whereby the value of said properties increased by approximately $30,000.00, and that $15,000.00 over and above any setoffs and counterclaims of plaintiff should be given to the defendant as his share of said accumulation and improvement, which amount should be a lien on all property owned by plaintiff, . . .
“It Is Further Considered, Ordered Adjudged and Decreed that the defendant be and is hereby allowed the sum of Fifteen Thousand Dollars ($15,000.00) for his share of the accumulation of personal property and for improvements made through the joint efforts of plaintiff and defendant on real property which plaintiff owned prior to her marriage to defendant, and for profit derived from the sale of real property consisting of a farm in Leavenworth County, . . . over and above and clear of any setoffs and counterclaims of the plaintiff against the defendant, and that said sum be and it is hereby made a lien on all of the property owned by the parties hereto, . . .”
(Emphasis supplied.)
The record does not disclose what brought about the present dispute but does make it clear that several weeks after the rendition of the judgment plaintiff filed a motion, alleging a mistake in the journal entry of judgment and praying for an order nunc pro tunc, deleting from that instrument the heretofore emphasized language of finding No. 6 and the decree on the ground such language did not correctly reflect or conform to the order actually made by the trial court at the time the judgment was rendered.
On May 29, 1957, plaintiff’s motion was presented to the Hon. O. Q. Claflin, III, who, in the meantime, had succeeded Judge Fischer and previously denied plaintiff a new trial. After a hearing, including a complete review of the record, Judge Claflin sustained such motion to the extent of striking the language “over and above any setoffs and counterclaims of plaintiff” from finding No. 6 and the decree of the journal entry.
Thereupon defendant perfected the instant appeal under a specification of error which limits his right of review in this court to the question whether the trial court erred in sustaining the motion to correct the journal entry.
Although, as we have heretofore indicated, the record of the proceedings in the court below does not clearly establish what was responsible for the filing of the involved nunc pro tunc motion, we have been able to glean that information by piecing together excerpts from appellant’s abstract of record and statements to be found in his brief.
Based on such information we can assume that after the filing of the journal entry appellant, herein, took the position that under the judgment rendered, particularly the hereinabove mentioned language of such journal entry, he was relieved from all obligations for child support with respect to which the parties, during the trial, had stipulated as follows:
“That there has now accrued unpaid support money for the support of one minor child, in the amount of $980.”
On the other hand appellee, herein, was contending that, notwithstanding inclusion of the language in question in the journal entry, the judgment actually rendered by the trial court was for appellant’s share of the property accumulated by the parties during the marriage and in no way relieved him of his obligation to pay the child support payments due and unpaid at the time of the rendition of such judgment.
Thus the all decisive issue here involved becomes quite clear. Did the trial court actually render a judgment purporting to relieve the appellant from his obligation to pay the involved past due and unpaid child support payments? If it did the ruling of Judge Claflin in sustaining the motion for a nunc pro tunc order was erroneous. If it did not such ruling was proper and must be upheld.
See Cole v. Cole, 172 Kan. 220, 240 P. 2d 141, which holds:
“When a journal entry of judgment fails accurately to reflect a judgment actually rendered a court has a right and duty to correct it by an order nunc pro tunc, the function of which is to enter, now for then, an order previously made.” (Syl. ¶ 2.)
See, also, Bush v. Bush, 158 Kan. 760, 150 P. 2d 168, of like import, which contains an excellent discussion, supported by pertinent authorities, on the law of this state governing the granting or denial of nunc pro tunc orders.
So that there may be no mistake respecting our view on the point it should be stated that, in our opinion, the rule announced in the foregoing decisions has application to cases where a journal entry of judgment fails to accurately reflect a judgment actually rendered by reason of the fact, that by mistake, language has been incorporated therein which was no part of the judgment actually rendered.
Turning to the record we find that at the time Judge Claflin sustained the involved motion for an order nunc pro tunc and struck the heretofore mentioned language from the journal entry he had before him the following information:
1. A finding, conceded by all parties to have been made, that $15,000.00 should be awarded appellant as his share of the ac cumulation and improvement of property 'owned and acquired by the parties to the divorce action during their marriage, which amount should be a lien on all property owned by appellee.
2. A decree, the unemphasized portion of which as heretofore quoted, is likewise conceded by all parties to have been a part of the judgment, reciting that appellant was granted a judgment for $15,000.00 against appellee for his share of the accumulation of personal property and for improvements made through the joint ■efforts of such parties to the divorce action on real property which ■appellee owned prior to her marriage to appellant, and for profit derived from the sale of real property consisting of a farm in Leavenworth County, which sum was made a lien on all of the property owned by the parties (appellee).
3. A transcript of the record disclosing that, after some colloquy between counsel for the parties involved in the divorce case respecting what action was being taken by the court with respect to child support payments, such court stated:
“I think I have taken that into consideration. If he owes any alimony, of course that is taken care of in this judgment. The order should be that he continue to pay for the support of the child. I have not covered that.”
In the face of the heretofore quoted statément of the trial court (Judge Fischer), we believe,'Judge Claflin would have been warranted in concluding that the trial court’s judgment did not cover or include past due and unpaid child support payments. Of a certainty, upon reading that statement in connection with the finding and judgment of such trial court as set forth in paragraphs above numbered 1 and 2, he was justified in so holding.
In reaching the foregoing conclusions we have not failed to note Calkins v. Calkins, 155 Kan. 43, 122 P. 2d 750, the only case relied on by appellant as sustaining his claim of error. A careful analysis of that decision will disclose that it deals with an entirely different situation than is here involved and is therefore clearly distinguishable.
Based on what has been heretofore stated and held it necessarily follows that Judge Claflin s action in sustaining the involved motion for an order nunc pro tunc and in thereafter directing that the language in question be stricken from the journal entry was proper and must be upheld.
It is so ordered.
Jackson, J., not participating. | [
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|
The opinion of the court was delivered by
Fatzeb, J.:
This was an action to recover the landowners’ royalty from November 1, 1954, to April 30, 1955, under a producing oil and gas lease in the Hugoton Gas Field (field). The principal question presented is the amount to be paid to plaintiff lessors as royalty under the terms of the leases in effect between them and the defendant Hugoton Production Company (Hugoton) as lessee operator. A jury was waived and trial had by the court. Judgment was in favor of plaintiffs, and Hugoton has appealed from the order overruling its motion for a new trial. Plaintiffs have cross-appealed from adverse rulings and orders of the trial court.
The trial court made extensive findings of fact and conclusions of law, pertinent portions of which are summarized: Plaintiffs are the owners of 320 acres in the field in Grant County, Kansas. In 1941 Panhandle Eastern Pipe Line Company (Panhandle) acquired oil and gas leases covering a block of approximately 95,000 acres (block) in the field among which were two leases covering plaintiffs’ half section and later included in a 640-acre unitization agreement on which Hugoton now owns and operates one producing gas well. The royalty clause in each of the leases covering plaintiffs’ land read, in pertinent part, as follows:
“The lessee shall pay lessor, as royalty, one-eighth of the proceeds from the sale of the gas, as such, for gas from wells where gas only is found. . . .”
Pursuant to the two leases on plaintiffs’ land and the unitization agreement plaintiffs were entitled as royalty to one-sixteenth of the proceeds from the sale of gas produced from the well on the unit of which their leases were a part.
The discovery well in the field was drilled approximately 30 years ago and by continuous development the field was ascertained to be approximately 90 miles north and south and 60 miles east and west, containing roughly three million acres, with an estimated original gas reserve of thirteen trillion cubic feet. In October 1948 there were approximately 1100 producing natural gas wells and the prevailing price for the gas in the field was approximately five and one-half cents per M. c. f. based on 16.4 pounds p. s. i. a. In order that the gas might be profitably sold, it was necessary that it be transported from the wellheads to distant densely populated areas since the supply greatly exceeded the demand in the field.
In an effort to place its block of leases into production and to secure a higher price for the gas to be produced, Panhandle entered into negotiations with the Kansas Power and Light Company (power company) for the sale of gas, which resulted in the organization of Hugoton in September, 1948, for the purpose of acquiring and developing the block, and constructing necessary facilities to gather, transport, process and deliver gas to the power company.
Following Hugoton s incorporation, Panhandle assigned its undeveloped block of leases to Hugoton, which entered into a contract with the power company on October 18, 1948, to supply gas for a fifteen-year period, reserving its entire production from the block to fulfill minimum delivery commitments at a base price of $0.12 per M. c. f. for processed gas for resale, and at a base price of $0.15 a million b. t. u. for gas used by the power company to operate its power plants. Provision was made for price adjustments at five-year intervals, which resulted on November 1, 1954, in an increase of 3.65 cents per M. c. f., or a delivery price of 15.65 cents per M. c. f. for processed gas for resale, measured at 14.9 pounds. However, due to an unresolved dispute between the parties, the power company has paid Hugoton only 15.58 cents per M. c. f.
To obtain the production of gas and to comply with its contractual obligations, Hugoton promptly commenced development of the block and now has 152 producing gas wells. It constructed a gathering pipe-line system of steel pipe ranging from 4 to 24 inches in diameter having a total length of over 184 miles, which connected each gas well, including the plaintiffs’ well, so as to permit the natural gas produced to be metered at the wellhead and flow in a commingled mass to a point in the block for sale to the power company and delivery to its pipe line. Hugoton also constructed a gasoline plant for the extraction of liquid hydrocarbons and a dehydrating plant through which all the gas passed in a continuous and uninterrupted movement for delivery to the power company where liquid fuel by-products, viz., natural gasoline, butane and propane were extracted and processed by Hugoton after which the residue or “dry” gas was sold to the power company and delivered to its pipe line. The dehydration plant was operated on the outlet side of the gasoline plant and the power company paid Hugoton for dehydration of the gas at the rate of $.0015 cents per M. c. f. Hugoton sells all liquid fuel by-products to Warren Petroleum Company (Warren).
On October 11, 1953, Hugoton entered into a contract with Columbian Carbon Company (Columbian) whereby it agreed to sell certain quantities of raw natural gas as might be available after its contractual obligations to the power company had been fulfilled. The price agreed upon was 13.4 cents per M. c. f. measured at 14.65 pounds, and delivery was to be made at a point distant from the wellheads, unprocessed. Except for such gas as was used in its plant operations, or unavoidably lost, the gas produced by Hugoton from the block was delivered to the power company as processed gas for resale; to Columbian as raw natural gas; or, to Warren in the form of liquid hydrocarbons.
Hugoton made royalty payments to plaintiffs at the rate of $0.11 per M. c. f. based upon the minimum wellhead price order of the State Corporation Commission effective January 1, 1954 (docket No. 44,079-C [C-3216]), which, under its authority to prevent waste and conserve natural gas, fixed a minimum wellhead price as a condition precedent for withdrawal of the gas from the field of not less than $0.11 per M. c. f. measured at 14.65 pounds, the validity of which was sustained by this court in Cities Service Gas Co. v. State Corporation Commission, 180 Kan. 454, 304 P. 2d 528, reversed 355 U. S. 391, 2 L. ed. 2d 355, 78 S. Ct. 381.
No dispute exists as to the amount of gas produced. Both parties here assert that Hugoton’s royalty obligation is to be determined at the wellhead rather than at the point of sale and delivery off the lease, and further, that there is no market price at the wellhead for the gas taken by Hugoton. Thus, a known amount of gas is produced and sold by Plugoton under contracts calling for a definite price; hence, there remains but one element necessary to determine proceeds at the wellhead, i. e., the price to be paid for the gas at that point. The amount due the plaintiffs as royalty is then only a matter of calculation.
The trial court found, among other things, that at the time the leases covering plaintiffs’ land were executed it was the established practice and custom in the gas production industry to measure, determine the price, and pay gas royalty at the wellhead on all gas produced in the field upon a pressure basis of 16.4 pounds, which was later changed by the State Corporation Commission to a pressure basis of 14.65 pounds, and concluded that to determine proceeds at the wellhead per M. c. f. it was necessary to subtract from gross proceeds derived from Hugoton s total sales proper chargeable operating expenses incurred in procuring such proceeds, including gathering, processing and dehydrating, and divide the net proceeds by total volume of gas produced (M. c. f.) — the quotient being the wellhead price per M. c. f. of gas produced. The method used by the trial court is referred to by the parties as the “proceeds-less-expenses” formula, and in applying it the trial court used Hugoton’s accounting period for the calendar year 1955 since its operations were carried out on an annual basis, which included high, medium and low production periods during each year. By this formula it determined “proceeds at the wellhead per M. c. f.” of $0.1530, which figure was immediately followed by an item entitled “fair proprietary rate to Def. on royalty gas” of $0,003, and immediately thereafter was an item entitled “fair value of gas” of $0.15. The latter figure was used by the trial court as wellhead proceeds per M. c. f. to determine royalty payments to plaintiffs for gas produced from their land.
At a pretrial conference and during the trial Hugoton offered to confess judgment on the basis of a proceeds rate at the wellhead of 12.8392 cents per M. c. f. Both parties concede the difference between the proceeds rate upon which Hugoton offered to confess judgment and that found by the trial court of $0.15 per M. c. f. lies in the trial court’s failure to consider any part of Hugoton’s federal and state income tax expenses in determining total operating expenses to be deducted from gross proceeds. That is the principal point in controversy, and Hugoton specifies that the trial court erred in determining costs and charges incurred in its operation for 1955 with respect to its function of gathering, processing and marketing the gas, by refusing to allow as a charge and expense any part of its federal and state income taxes incurred as a result of its operation.
In addition to Hugoton’s specification of error, the parties are disagreed as to the method by which Hugoton’s royalty obligation under the terms of the lease should be determined.
Plaintiffs pleaded they were entitled to recover as royalty one-sixteenth of the proceeds from the sale of gas by reason of the production and sale by Hugoton, but they contended in the court below they were entitled to prove fair value of the gas at the wellhead by any competent evidence, and undertook to prove that value by three different methods. They argue here that in cases like the present, where there are no sales at the wellhead and thus no proceeds at that point, courts generally have applied the one-eighth royalty to market value at the wellhead if there is a market value at that point, or fair value where there is no market value, which, they assert, is a question of fact to be established by any evidence having probative value on the subject, including opinion evidence and evidence of proceeds less reasonable expense of transportation and processing, and cite Scott v. Steinberger, 113 Kan. 67, 213 Pac. 646; Cimarron Utilities Co. v. Safranko, 187 Okla. 86, 101 P. 2d 258; Kretni Development Co. v. Consolidated Oil Corp., 74 F. 2d 497, and Sartor v. Arkansas Gas Corp., 321 U. S. 620, 88 L. Ed. 967, 64 S. Ct. 724. They contend any errors the trial court may have committed in computing proceeds-less-expenses, whether in favor of Hugoton or of plaintiffs, will not affect the result nor justify reversal upon either the appeal or the cross-appeal since Hugoton’s income tax expenses are not competent evidence in any event to prove fair value of the gas at the wellhead.
Hugoton contends the “proceeds-less-expenses” formula is the exclusive means by which plaintiffs’ royalty can be ascertained and that where, as here, a gas lease provides for royalty based on “proceeds” and the natural gas produced is sold off the lease, the proceeds by which the lessee’s royalty obligation is to be measured are ascertained by deducting from gross proceeds the expenses incurred in bringing the gas to, and preparing it for, the market, and rely upon Scott v. Steinberger, supra; Voshell v. Indian Territory Illuminating Oil Co., 137 Kan. 160, 19 P. 2d 456; Molter v. Lewis, 156 Kan. 544, 134 P. 2d 404; Warfield Natural Gas Co. v. Allen, 261 Ky. 840, 88 S. W. 2d 989; Wall v. United Gas Public Service Co., 178 La. 907, 152 So. 561, and Reed v. Hackworth (Ky., 1956), 287 S. W. 2d 912.
Hugoton further contends that although plaintiffs’ leases in no way obligated it to invest in or assume the operations of its system, plaintiffs’ profit from the price and long-term market advantages is a direct consequence of its investment in and operation of its system; that those operations produced net proceeds at the well materially higher than would have been produced without gathering and processing; that plaintiffs must bear their share of all expenses resulting from the operation of its integrated gathering and processing system, and that income taxes are an ordinary and necessary expense of those operations and an expense which must be considered in determining the royalty rate at plaintiffs’ well. In support of this contention Hugoton cites Homes v. James Buckley & Co., 165 La. 874, 116 So. 218; Neeson v. Sangamon Mining Co., 316 Ill. 397, 147 N. E. 369; Fleischer v. Pelton Steel Co., 183 Wis. 451, 198 N. W. 444; Saulsbury Oil Co. v. Phillips Petroleum Co., 142 F. 2d 27, certiorari denied 323 U. S. 727, 89 L. Ed. 584, 65 S. Ct. 62; International Hotel Co. v. Libbey, 158 F. 2d 717, and Allis-Chalmers Mfg. Co. v. United States, 165 F. 2d 495.
Plaintiffs’ leases entitled them as royalty to “one-eighth (one-sixteenth under the unitization agreement) of the proceeds from the sale of the gas, as such,” produced under the leases, and Hugoton had the exclusive right to produce and market the gas. It was as much Hugoton’s duty to find a market on the leased premises without cost to the plaintiffs as it was to find and produce the gas (Howerton v. Gas Co., 81 Kan. 553, 106 Pac. 47; Collins v. Oil & Gas Co., 85 Kan. 483, 118 Pac. 54), but that duty did not extend to providing a gathering system to transport and process the gas off the leases at a large capital outlay with attending financial hazards in order to obtain a market at which the gas might be sold. When plaintiffs’ leases were executed it was the established custom and practice in the field to measure, determine the price, and pay royalty at the wellhead for gas produced. Pipeline facilities did not exist and there was no general market for gas in the area. Although the leases are silent as to where a market must be found, it is evident the parties anticipated, from the very nature and character of natural gas, that pipe-line transportation would be required in the event of production and they could not reasonably have contemplated that the lessee alone would bear the expense of providing such transportation to a point off the leases for sale and delivery to a purchaser for ultimate consumption. Sale of gas at the wellhead was not made a condition of proceeds and payment of royalty; on the contrary, Hugoton’s royalty obligation was fixed wherever the sale of the gas occurred and regardless of its character, viz. natural, processed or liquid hydro carbons; all produced aggregate proceeds in which the plaintiffs were entitled to participate.
The language “proceeds from the sale of the gas, as such,” must be construed from the context of the leases and the custom and practice in the field at the time they were executed, and we think where, as here, the gas produced is transported by the lessee in its gathering system off the premises and processed and sold, its royalty obligation is determined by deducting from gross proceeds reasonable expenses relating directly to the costs and charges of gathering, processing and marketing the gas. Thus, proceeds from the sale of gas, wherever and however ultimately sold, is the measure of plaintiffs’ royalty, less reasonable expenses incurred in its gathering, transporting, processing and marketing.
The Kansas authorities (Scott v. Steinberger, supra; Voshell v. Indian Territory Illuminating Oil Co., supra; Molter v. Lewis, supra) cited by both parties do not sustain either of their contentions, since the royalty provisions there involved provided for delivery of a specified portion of the oil or gas produced. Here, we are concerned with leases which provide for payment as royalty of a stipulated percentage of the proceeds derived from the sale of the gas. Indeed, in Molter v. Lewis, supra, in referring to Scott v. Steinberger, supra, the court said:
“The Scott case has been followed in: Kretni Development Co. v. Consolidated Oil Corp, 74 F. 2d 497, 500; Wall v. United Gas Public Service Co., 178 La. 908, 152 So. 561, and accords with the holding in Rains v. Kentucky Oil Co., 200 Ky. 480, 255 S. W. 121. It was distinguished in Ladd v. Upham, 58 S. W., 2d 1037, affirmed on appeal, 128 Tex. 14, 95 S. W. 2d 365, where the lease provided the lessor should have a fractional share 'of the proceeds from the sale of gas’ from the leased premises.
“See, also, United States v. Stanolind Crude Oil Purchasing Co., 113 F. 2d 194, where is pointed out (p. 198) the distinction between a lease by which the lessor has as his own property a fractional share of the oil produced, and those leases by which the lessor receives a stated share of the proceeds’ of all oil produced.” (l. c. 546, 547.)
The authorities from other jurisdictions cited by plaintiffs are equally distinguishable. In Cimarron Utilities Co. v. Safranko, supra, the royalty clause was for “one-eighth at the market price for gas used off the premises.” In Sartor v. Arkansas Gas Corp., supra, it was for “one-eighth of the value of such gas calculated at the rate of market price.” The royalty clause in Kretni Development Co. v. Consolidated Oil Corp., supra, was similar to the clause here involved. Plaintiffs’ argument based on that case is that the opinion uses the terms “proceeds,” “fair market value” and “market value” interchangeably. The court there was not concerned with the distinction between those terms because their meanings were not pertinent to the controversy. The issue there was the point at which the royalty was to be determined. None of those cases clearly support plaintiffs’ contention.
In Phillips Petroleum Co. v. Johnson, 155 F. 2d 185, the royalty clause reads:
“ ‘. . . If any well on said premises shall produce natural gas in paying quantities, and such natural gas is used off the premises or marketed by lessee, then lessor shall be paid at the rate of one-eighth of the net proceeds derived from sale of gas at the mouth of the well.’ ”
In making a distinction between “proceeds” and “value,” the opinion indicates why and when these tests should be applied. The court further stated:
“The law often resorts to ‘fair value’ or ‘fair market value,’ when ‘market price’ is stipulated and there is no market, or when ‘proceeds’ are stipulated and there is no sale. This is because the contract evidently intends payment shall be made, and value is the nearest approach possible under the circumstances to the measure of payment contracted for. In so far as this gas was ‘used’ there can be no ‘net proceeds derived at the mouth of the well’ and fair value must be resorted to. In so far as the gas was marketed’ we think the stipulation for a share of the ‘net proceeds derived’ ought to be enforced, effect being given to the words ‘net at the mouth of the well’ by allowing as expense the cost of transporting, separating, and marketing. This lessor did not consent to be left to the uncertainties of ‘fair value,’ or even ‘market price’, as to the gas but was willing to take one-eighth of what the lessee sold it for, relying on tile lessee’s self-interest to secure a good sale. . . .” (pp. 188, 198.)
Having determined that plaintiffs’ royalty is to be measured by proceeds from the sale of gas less reasonable expenses of transporting and preparing it for market, is Hugoton’s income tax an expense to be deducted from gross proceeds? The trial court included maintenance, depreciation, and ad valorem and other direct taxes as deductible expenses, but disallowed Hugoton’s federal and state income tax expense in its entirety.
Hugoton’s expert evidence was that income tax constitutes an ordinary and necessary expense of doing business and an expense of Hugoton’s business operation which should be deducted in determining proceeds from gas sales. However, it was established that for its own internal cost accounting purposes, to ascertain net profits from its gasoline processing and dehydration operation, Hugoton allocated the expense of all taxes, except income tax. Plaintiffs’ ex pert evidence established that from an accounting standpoint, income tax is a sharing of profits, not a cost; that in cost accounting, income tax is never used as a factor in determining cost of operation, cost of sales nor of any other item. The trial court found against Hugoton and that finding, upon conflicting evidence, is not reviewable by this court (In re Estate of Osborn, 179 Kan. 365, 295 P. 2d 615; Dryden v. Rogers, 181 Kan. 154, 309 P. 2d 409).
Generally speaking, income tax may properly be treated as an expense or cost in financial statements of companies that make a showing of current tax payment or accrual in their financial statements, but we are not concerned with items of expense which Hugoton may or may not include in its annual financial statements to its stockholders, nor of profits upon which it is required to pay federal and state income taxes. Our task is to ascertain costs and expenses properly deductible from proceeds to determine the amount due plaintiffs as royalty, which, we think, are those relating directly to the function of gathering, processing and marketing the gas produced. We search for proceeds at the wellhead — not for Hugoton’s financial status nor for profits to be shared. Whether Hugoton’s income tax is large or small, it is levied upon net profits, and has no relation to actual costs and expenses of gathering and preparing the gas for market. We need look only to Hugoton’s own records and accounting practices to convince us of the soundness of this view. What could be more significant than Hugoton’s own cost accounting records, where, in determining gathering, processing and marketing costs, it allocated to that operation all proper expenses and taxes, except income taxes! It may not exclude income tax expense for its own convenience in determining net revenue from its gathering and processing operation and then charge the plaintiffs with that expense in determining proceeds at the wellhead.
We think it unnecessary to review each of the cases cited by Hugoton. Suffice it to say they have been studied, and we are of the opinion they do not control the question presented. The only case relied upon by Hugoton even remotely involving the petroleum industry is Saulsbury Oil Co. v. Phillips Petroleum Co., supra. That case did not involve any question with respect to proceeds at the wellhead from the sale of gas nor did it involve an oil and gas lease. The opinion construed a gas purchase contract for the sale of casinghead gas. While the court permitted the buyer in accounting to the seller for a certain percentage of net proceeds, defined in the contract as gross proceeds less any cost of boosting and transporting necessary to market gas, to deduct federal income taxes as costs in determining net proceeds, the authorities relied upon in the opinion were utility rate cases where it was held that in determining a fair return to the utility, federal income taxes were a burden on the return and were properly considered costs, since the stockholders who were entitled to a fair return on their investment received only what was left after payment of taxes. The court apparently overlooked the fact that utility rate cases are in a category by themselves and that income taxes must be taken into account to determine rate of return to stockholders (Barnes, Economics of Public Utility Regulation [F. S. Crofts & Co. 1942] p. 622; Power Comm’n v. Hope Gas Co., 320 U. S. 591, 88 L. Ed. 333, 64 S. Ct. 281; Galveston Elec. Co. v. Galveston, 258 U. S. 388, 66 L. Ed. 678, 42 S. Ct. 351.)
Since proceeds, not net profits, are what is sought, we are of the opinion that the trial court did not err in excluding in its entirety Hugoton s 1955 income tax as an item of deductible expense in determining proceeds per M. c. f. at the wellhead.
Coming now to the cross-appeal, plaintiffs contend the trial court erred in applying the “proceeds-less-expenses” formula to Hugoton s accounting period for the calendar year 1955 instead of to its monthly accounts for the period involved. Re that as it may, Hugo-ton’s operations under the leases are carried out on an annual basis and offer, as the trial court found, the only proper accounting experience for the determination of royalty to be paid during the period involved, and it would seem impracticable under the circumstances presented and for the purposes of this action to require Hugoton to account on a monthly basis. While we do not give general approval to the use of an accounting period of one year to determine royalty under plaintiff’s leases, we cannot say in the instant case the trial court used a period which was unreasonable so as to constitute an abuse of discretion.
Plaintiffs argue that the trial court erred in allowing Hugoton a “proprietary return” of $90,638, or $0,003 per M. c. f. on the enhanced value of gas which arose by virtue of its gathering and processing operation, and that such return is a profit and not an expense.
At the outset, it is noted the trial court’s figure of $90,638 is the value of the fuel used and the gas shrinkage in the processing operation, which it disallowed as an expense. The trial court found that had Hugoton purchased from another company the equivalent of the gas used or lost, the value would be properly deductible as an expense of processing, however, it concluded that since Hugoton used its own gas, which, had it not done so, would have been available for sale to produce proceeds, the value was not properly chargeable as an expense, but that Hugoton was entitled to a fair proprietary return on the enhanced value of the royalty gas. Whether Hugoton chose to. use its own gas or go upon the market and purchase the equivalent from another company makes no difference — the result is the same. Whatever it was called, the return allowed by the trial court was apparently based on an expense of operating the processing plant, and as such, was properly allowed under the formula.
Other contentions made by the plaintiffs have been examined, but in view of the conclusions heretofore announced, it is unnecessary to discuss them.
We have thoroughly reviewed the record as presented to us, and in view of the contentions of the parties we conclude no error has been affirmatively made to appear, which would require a reversal.
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The opinion of the court was delivered by
Hall, J.:
This is an appeal from a judgment in favor of the insureds on a Standard Fire Insurance Policy.
The essential facts are not in dispute. The insurance company had issued a policy of fire insurance which is a standard policy used in Kansas, Nebraska, and North Dakota in the amount of $2,500.00. The policy provides as follows:
“ ‘In consideration of the provisions and stipulations herein or added hereto and of the premium above specified, this Company, for the term of Three Years ... at location of property involved, to an amount not exceeding the amount(s) above specified, does insure L. I. Coffey and legal representatives, to the extent of the actual cash value of the property at the time of loss , . . against all direct loss by fire, ... to the property described hereinafter while located or contained as described in this policy. . . . . . . 4. Description and Location of Property Covered (Show construction, type of roof and occupancy of building(s) covered or containing the property covered. If occupied as a dwelling state No. of families.) “On the frame, approved roof, one family dwelling located at 555 S. Illinois, Wichita, Kansas.”
Under the “Dwelling and Contents Form” of the policy, additional coverage was provided as follows:
“Dwelling Coverage: When the insurance under this policy covers a dwelling, such insurance shall include building equipment and fixtures and outdoor equipment pertaining to the service of the premises (if the property of the owner of the dwelling), while located on the premises described on the first page of the policy, but not trees, shrubs, plants or lawns.
“The Insured may apply up to ten per cent (10%) of the amount specified for the dwelling, to cover private structures appertaining to the dwelling described and located on the premises, but not structures used in whole or in part for (a) mercantile, manufacturing, or farming purposes, nor (b) any structures (except structures used principally for private garage purposes) which are rented or leased to other than a tenant of the dwelling covered hereunder.”
On tbe premises covered by the policy there were two structures. The larger front structure contained two bedrooms, a screened porch, a living room and a combination kitchen and dining area. It contained no bathroom. The smaller structure was located 16 feet to the rear of the larger structure. It contained a bathroom, shower room, a general utility and wash room, with the usual fixtures incidental to these facilities. The hot water tank in the small structure supplied the kitchen in the front structure. Cold water was supplied to both structures by a common well through common pipes and both were connected and served by the same gas, electric and sewer lines. A wooden walk connected the two structures.
A fire destroyed the smaller structure. Proof of loss in the amount of $1,220.79 was duly filed with the insurance company under the above policy. Payment of this amount was refused with the offer to pay $250.00 under the 10 percent (10%) provision of the policy.
The insureds filed suit and the matter was ultimately tried to the court. The court gave judgment to the insureds in the amount of $1,220.79, for the full loss, with interest, attorneys’ fees and costs.
There was only one issue before the trial court and the parties concede it is the single issue on this appeal. Was the second structure destroyed by fire a part of the “dwelling” or “building equipment and fixtures and outdoor equipment appertaining to the service of the premises,” for which loss the insurance company was obligated up to the full amount of the policy, or was the second structure a “private structure appertaining to the dwelling” in which case the insurance company was obligated only up to 10 percent (10%) of the amount of the policy?
The interpretation of these sections of the policy is apparently one of first impression in the three jurisdictions where this standard form of fire policy is used.
In support of its position that the building destroyed was a “private structure appertaining to the dwelling” with liability limited to 10 percent (10%), the insurance company relies heavily on Pilgrim Laundry & Dry Cleaning Co. v. Federal Ins. Co., 140 F. 2d 191; and Farmers Mut. Ins. Assn. v. Martin, 226 Miss. 515, 84 So. 2d 688.
They also cite Dyer v. Standard Fire Ins. Co. of New Jersey, 227 S. W. 2d 520; Ziebarth v. Fidelity & Guaranty Fire Corp., 256 Wis. 529, 41 N. W. 2d 632; Martin v. Com. Union Assur. Co., 41 S. D. 249, 170 N. W. 147; Melder v. Great American Ins. Co., 9 So. 2d 243; Morris v. American and Foreign Ins. Co., 150 Neb. 765, 35 N. W. 2d 832.
With the exception of the Pilgrim Laundry & Dry Cleaning Co. v. Federal Ins. Co., supra; and Martin v. Com. Union Assur. Co., supra, the cited cases involve garages. The courts either did apply a 10 percent (10%) provision of similar policies, or, as in the Ziebarth case, found that the garage was in public commerce and not within any section of the policy.
Appellant forcefully contends that Farmers Mut. Ins. Assn. v. Martin, supra, is almost analogous to the case at bar. We are unable to agree. The language of the policy is similar but it is a garage case and the authorities have pretty well decided there is a valid distinction between a garage which is “a private structure,” unless also used for some other purpose, and other types of structures.
In the Pilgrim case two buildings were separately insured and treated as separate property by the owner rather than as complementary to each other. The policy was at variance with the one under consideration here. It covered additions “belonging to and a contributing part” of a building.
Likewise, in Martin v. Com. Union Assur. Co., supra, the policy insured “all fixtures belonging to a building.” In that case the company insured a bathhouse. There was a separate building housing the boiler. The court held that the boiler was not a fixture to the bathhouse.
These authorities are not much in point here.
Here we are not dealing with a garage but rather with a structure which serves as the bathroom and utility room to the principal dwelling. Upon any test such things pertain to the service of the main living unit.
Insureds contend that the destroyed structure should be considered a part of the “Dwelling Coverage” of the policy. In support of their contention they rely primarily on the dictionary definition of the words “dwelling house” and with our decisions in Newcomb v. Victory Life Ins. Co., 159 Kan. 613, 157 P. 2d 527; Hockens v. Republic Mutual Fire Ins. Co., 167 Kan. 17, 204 P. 2d 773; Sporn v. Overholt, 175 Kan. 197, 262 P. 2d 828.
This argument is more persuasive than appellant’s position, but again the authorities they cite are not persuasive under the facts of the case. It is inherently clear from the facts that the second structure was not in any way occupied by the insureds as a “dwelling” but only “as equipment and fixtures appertaining to the service of the dwelling.”
While the point here is one of first impression there are, cases in other jurisdictions which have been determined upon similar facts and policy. Particularly, Meyerstein v. Great American Ins. Co., 82 Cal. App. 131, 255 Pac. 220, where the court held that a laundry house apart from the owner’s living quarters was an addition to his home, included in coverage on “the frame building and additions.”
Finally, the insureds are entitled to have any ambiguity in the policy resolved in their favor. We have long adhered to the rule that insurance contracts are to be construed, when construction is permissible, most strongly against the company and in favor of the insured. Where a policy of insurance is so drawn as to require an interpretation, a construction most favorable to the insured will be adopted for the reason that the company prepares the contract of insurance, thereby selecting its own language. An insurer prepares its own contracts and it is its duty to make the meaning clear, if it fails to do so, the insurer and not the insured must suffer. Stated in another way if the insurer desires to limit its liability, it should so state in the policy issued. (Brown v. Accident Insurance Co., 114 Kan. 337, 338, 219 Pac. 505; Braly v. Commercial Casualty Ins. Co., 170 Kan. 531, 227 P. 2d 571; Spencer v. Casualty and Surety Co., 116 Kan. 491, 494, 227 Pac. 357; Chicago, R. I. & Pac. Rld. Co. v. Aetna Ins. Co., 180 Kan. 730, 308 P. 2d 119; Jameson v. Farmers Mutual Automobile Ins. Co., 181 Kan. 120, 309 P. 2d 394.) In regard to the contents of the policy in this case, see Employers Casualty Co. v. Ragley, 197 S. W. 2d 536.
We hold that the insureds’ structure destroyed by fire pertained to the service of the premises and as such''the insureds are entitled to the full protection of the policy.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Fatzer, J.:
This appeal involves the construction of the will of Jennie Dobrovolny and arises on the executor’s petition for final settlement. The question presented is whether Jennie’s undivided one-half interest in an 80-acre farm passed to the residuary devisee under her will, or whether there was a partial intestacy causing the real estate to descend to her heirs at law pursuant to the laws of descent and distribution.
The facts have been agreed upon and are summarized as follows: The decedent, Jennie Dobrovolny, and Frank Dobrovolny were married and lived together for many years in Marshall County, Kansas; they had three children: two sons, Frank, Jr. and Ivan, the appellees, and a daughter, Anna E. Scheibe, the appellant. During their marriage Jennie and Frank acquired three tracts of land in Marshall County at different times: the first tract consisted of the northeast quarter of section 9; the second tract consisted of the southeast quarter of section 9, and the third tract consisted of the north half of the southwest quarter of section 15, all in township 5, range 6, east of the 6th P. M.
The first and second tracts were acquired in the name of Frank Dobrovolny; the third tract was acquired in the name of Jennie and Frank Dobrovolny as tenants in common, each owning an undivided one-half interest.
On September 8, 1951, Frank Dobrovolny executed his will which gave all his personal property to his wife absolutely. The real estate was disposed of in Item Three of his will, which reads:
“I give and devise to my said wife, Jennie Dobrovolny, an estate for her natural life in and to all of my real property and interests therein of whatever description and wherever situated, and I give and devise the remainder in fee simple to my children Frank Dobrovolny, Jr., Ivan Dobrovolny and Anna E. Scheibe, in equal shares.”
Jennie was named executrix and upon her husband’s death, qualified and acted as such. When Jennie inventoried Frank’s estate, the whole of the north half of the southwest quarter of section 15 was included in the inventory as being owned by her husband, notwithstanding her ownership of an undivided one-half interest in that 80-acre farm. In her petition for final settlement, Jennie alleged that Frank owned the whole of the north half of the southwest quarter of section 15, and in the order of final settlement the probate court assigned the whole of that tract together with the other two quarter sections to Jennie for her life, and assigned the remainder in fee to the three children in equal shares. The record does not indicate that Jennie consented in writing to Frank’s will, but it was stated by counsel for appellant and concurred in by counsel for appellees when this case was orally argued, that Jennie elected to take under Frank’s will.
On July 23, 1953, Jennie executed her will, which, following her death on August 10, 1955, was admitted to probate on September 26, 1955. This will, omitting the signatures and the attestation clause, reads as follows:
“Know All Men by These Presents, and all whom these presents may concern, be it known that I, Jennie Dobrovolny, of the County of Marshall and State of Kansas, being of mature age and sound mind, and realizing the uncertainty of life and the certainty of death, and being desirous of making full and complete provision for the final settlement and disposition of all of my worldly goods and possessions after my dissolution, do hereby make and declare this my last will and testament.
“It is my will that upon my decease all of my just debts and funeral expenses be first paid out of any estate of which I shall die possessed.
“Second: I give and bequeath to my son Ivan Dobrovolny tire sum of Five Dollars.
“Third: I give and bequeath to my son Frank Dobrovolny the sum of Five Dollars.
“Fourth: I give and bequeath the sum of Two Hundred Dollars to the officers of the Cottage Plill Cemetery Association where the remains of my late husband are interred, to be expended by them in placing flowers from year to year on Decoration Day upon our graves.
“Fifth: All the remainder and residue of my property of every kind and character I give, devise and bequeath to my daughter, Anna Scheibe.
“Sixth: I make no disposition of real estate as that is devised by the will of my late husband Frank Dobrovolny.
“Seventh: I nominate and appoint my friend Mr. W. A. Youngquist of Blue Rapids, Kansas, to be the executor of this my last will and testament.
“In Witness Whereof I have to this my last will and testament subscribed my name at Blue Rapids, Kansas, this 23rd day of July, 1953.”
No later will was filed and no appeal was taken from the order admitting the will to probate and the time for taking an appeal has expired. Following the admission of Jennie’s will to probate, the three tracts of land described above were the subject matter of a partition action in the district court of Marshall County, and were sold pursuant to an order of that court February 10, 1956. Jennie’s undivided one-half interest in the third tract brought $5,246.27, which sum was paid to the executor of her estate and is the subject matter of this controversy.
In its memorandum opinion the district court concluded Jennie died intestate with respect to her undivided interest in the north one-half of the southwest quarter of section 15; that she did not intend the word “property” as used in paragraph 5 — the residuary clause, to include the real estate in question since she did not know she owned any interest in it, and did not intend to devise it to appellant in view of her statement in paragraph 6, “I make no disposition of real estate . . .,” and that upon her death, title passed to her heirs at law, the appellant and the appellees, in equal shares.
Appellant contends that the residuary clause covers property of “every kind and character” owned by Jennie at her death, including her undivided one-half interest in the 80-acre farm above referred to, and urges that paragraph 6 of her will is not a limitation upon paragraph 5. The appellees contend paragraph 6 requires that Jennie’s undivided one-half interest in the real estate be excluded from the operation of her will resulting in her partial intestacy as to that interest, and that title passed to the appellant and the appellees as her heirs at law in equal shares.
Obviously, Jennie’s will, in view of the contentions of the parties, requires construction to ascertain her intent when it was executed. The rule firmly established in this jurisdiction, to which all other rules are subordinate, is that the intention of the testator must be ascertained, if possible, and given effect if it is not contrary to established law, or in violation of public policy. (5 Hatcher’s Kansas Digest [Rev. Ed.], Wills, §§ 101-103, pp. 493, 494; 9 West’s Kansas Digest, Wills, §§ 435-441, pp. 308-310; 1 Bartlett’s Kansas Probate Law and Practice, § 443, p. 520.) Within these limitations, the paramount consideration is to determine the actual intent of the testator, and if ascertainable, it is conclusive. Where the intention is obscured by vague and doubtful expressions of the testator, it is sometimes necessary to resort to technical rules of construction, but technical rules ought never be resorted to where their application defeats the manifest intention of the testator (Bullock v. Wiltberger, 92 Kan. 900, 142 Pac. 950).
It is elementary that the testator’s intention must be ascertained not from any single or isolated provision, but from all provisions contained within the four corners of the instrument. (Shannep v. Strong, 160 Kan. 206, 160 P. 2d 683; 5 Hatcher’s Kansas Digest [Rev. Ed.], Wills, §§ 101-103, pp. 493, 494; 9 West’s Kansas Digest, Wills, §§ 435-441, pp. 308-310; 1 Bartlett’s Kansas Probate Law and Practice, § 433, p. 520.) Further, a will is to be construed not alone by its language, but by the conditions of the testator’s family and estate, and the court should put itself so far as possible in the position of the testator and take into consideration the circumstances surrounding him when the will was executed. (Ernst v. Foster, 58 Kan. 438, 49 Pac. 527; Johnson v. White, 76 Kan. 159, 90 Pac. 810; Beall v. Hardie, 177 Kan. 353, 279 P. 2d 276; Walker v. Koepcke, 177 Kan. 617, 282 P. 2d 382.)
When the provisions of Jennie’s will are examined in light of the facts and circumstances of her family and estate, it is obvious she did not know she owned an undivided one-half interest in the 80-acre farm; further, that she intended to make a distinction between real and personal property. A casual reading of her will indicates there was a repugnancy between the 5th and 6th paragraphs, but further study convinces us otherwise. By paragraph 5 there was a clear residuary gift to appellant of all of Jennie’s property whatsoever, both real and personal, but by subsequent paragraph 6 there was a clear intention to except real estate from the residuary clause. Read as an expression of the mind, paragraph 6 represents a deference to Frank’s wishes and illustrates and complements the distinction she made between real and personal property and affirms die dominion and sentiment she accorded her husband in making disposition of the realty. In this connection, we may accept as evidence of her intent, her acts during the administration of Frank’s estate and that intent is confirmed by paragraph 6 in which she states that “I make no disposition of real estate.” Thus, her withdrawal of realty from the residuary clause produced, through her intestacy, a result congruent with Frank’s disposal of that property and we are compelled to conclude Jennie affirmatively intended to write a limited residuary clause applicable only to her personal property.
Having ascertained Jennie’s intent when she executed her will, we now deal with technical rules of construction urged by appellant giving rise to legal presumptions. The first is that the law prefers a construction which will prevent a partial intestacy to one which will permit it, if such construction may reasonably be given (Johnson v. White, supra; Singer v. Taylor, 90 Kan. 285, 291, 133 Pac. 841; In re Brown, 119 Kan. 402, 404, 239 Pac. 747; In re Estate of Schnack, 155 Kan. 861, 130 P. 2d 591).
The rule of presumption against partial intestacy is not a controlling guide to the testator’s intention. It is merely a rule of construction and does not authorize the court to dispose of that which in fact the will, by a fair construction thereof, does not dispose of. It can be invoked only to aid the interpretation of a will where the intention of the testator is expressed in uncertain and ambiguous terms, and has no place where the presumption is overcome by the plainly expressed intention of the testator. It will not be permitted to nullify a contrary intention manifested in the will (Thompson, Construction on Wills, § 59, pp. 93, 94). Where there is either evidence or circumstances bearing upon the issue of a testator’s intention to include or exclude a particular item of property from the terms of his will, the presumption against partial intestacy disappears (Heffenger v. Heffenger, 89 N. H. 530, 3 A. 2d 95).
Here, as previously indicated, Jennie intended that the residuary clause be restricted to apply only to her personal property. That being the case, the real estate was by necessary implication excluded from the operation of the residuary clause (Thompson, Construction on Wills, § 335, pp. 463, 464; Theobald on Wills, 10th Ed. Ch. 23, p. 177), and the rule of presumption against partial intestacy becomes inapplicable; it exists only if there is an applicable general residuary clause (2 Schouler on Wills, Executors and Administrators, 6th Ed. § 889, pp. 1021, 1022) and such clause will not carry property excepted by the testator from its operation. Furthermore, a residuary clause may be limited, such as here, by another paragraph of the testator’s will, especially if the latter be subsequent in recital (Thompson, Construction on Wills, § 334, p. 463). In our opinion paragraph 6 was such a recital.
Appellant urges that the use of the word “devise” in the residuary clause proves that Jennie intended to include real estate. Notwithstanding its technical definition, it is common knowledge that the word “devise” is often used loosely as a synonym for the word “give.” However, Jennie could not have intended the word “devise” to apply to real estate when in the next paragraph she unequivocally stated she made no disposition of real estate. Moreover, technical rules of construction ought never be resorted to where their application would defeat the manifest intention of the testator (Bullock v. Wiltberger, supra; Mann v. Haines, 146 Kan. 988, 73 P. 2d 1066; Cramer v. Browne, 159 Kan. 423, 155 P. 2d 468).
Appellant next contends that Jennie made a mistake in supposing that all of the real estate had been devised by Frank’s will, and asks this court to correct that mistake, i. e., to reform Jennie’s will by deleting therefrom the whole of paragraph 6. That paragraph is as much a part of Jennie’s will as is paragraph 5, and any attempt to excise it in face of her manifest testamentary intent is unwarranted (Regnier v. Regnier, 122 Kan. 59, 251 Pac. 392; Hoover v. Roberts, 144 Kan. 58, 58 P. 2d 83). In Regnier v. Regnier, supra, it was held:
“In construction of a will excision is a dangerous remedy, and should only be used as a last resort when all efforts to reconcile the inconsistency by construction have failed.” (Syl. If 1.)
We do not think the mistake as to Jennie’s interest in the real estate was in her will itself, but occurred in the administration of her husband’s estate when she included her undivided one-half interest in the inventory and later petitioned for its assignment to herself for life with remainder to their three children in equal shares, and that mistake became a fact and circumstance in her mind, which she later confirmed in paragraph 6 of her will. Although she gave an erroneous reason for her failure to dispose of real estate, that mistake does not nullify the facts and circumstances which produced her intention not to devise realty. An express and positive statement of an intention not to devise, under such circumstances, is not controlled by the reason assigned (3 Jarman on Wills, 8th Ed. pp. 2065, 2072 [12]; 1 Bartlett’s Kansas Probate Law and Practice [Rev. Ed.], § 443, pp. 521, 522).
We have reviewed the record and we think the trial court was correct in construing the will to ascertain Jennie’s intention rather than applying the technical rules of construction urged by appellant. Where, as here, the intention of the testator being ascertainable, technical rules of construction ought never to be resorted to. No error having been made to appear in the judgment of the district court, that judgment should be and it is affirmed. | [
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The opinion of the court was delivered by
Parker, C. J.:
Plaintiff brought this action to recover the value of a cow killed by one of defendant’s-trains on an open private railroad crossing, without fence or gates, located on his farm in Cowley County. Plaintiff recovered and the defendant appeals.
In view of the question presented on appeal the pleadings are not involved and all that need be said regarding them is that they join issue as to whether, under a stipulation of facts on which the case was submitted by agreement to the court below for decision, plaintiff was entitled to judgment.
The stipulation of facts on which the case was tried by the court reads:
“1. Plaintiff is the owner and occupant of the East Half (Ell) of Section Twenty-four (24), Township Thirty-two (32) South, Range Five (5) East of the 6th P.M. in Cowley County, Kansas, and acquired title thereto from his father, Frank Atkinson, who had acquired title thereto from Albert Bowles.
“2. Defendant’s railroad runs through the above-described land near plaintiff’s residence, barn, feed lots and other improvements thereon.
“3. Defendant acquired title to his right-of-way through said land by deed from said Albert Bowles, and in connection with the acquisition of said right-of-way said Albert Bowles and defendant’s predecessor railroad company entered into a written contract providing for an open private crossing to be maintained by the railroad company over and across said railroad right-of-way and also for a closed crossing to be maintained over and across the same. The written contract so entered into became lost, but there is on file in the office of the Register of Deeds of Cowley County, Kansas, an affidavit executed by said Albert Bowles with reference to said contract and the terms thereof, a copy of which affidavit is hereto attached, marked Exhibit “A” and made a part hereof.
“4. The open private crossing involved herein and the contract providing for the same were also involved in the case of Atkinson v. Railroad Company, 95 Kan. 828, decided by the Supreme Court of Kansas.
“5. On the 28th day of August, 1953, defendant maintained as provided for by said contract an open private crossing without fence or gates over defendant’s right-of-way and track which runs through plaintiff’s said above-described land. The remainder of said right-of-way as it runs through plaintiff’s said land was fenced, and on both sides of said crossing as it runs and exists across said right-of-way defendant has constructed wing fences and cattle guards to prevent stock from entering upon defendant’s right-of-way from said private crossing, and said fences, wing fences and cattle guards were in existence and in good condition on said 28th day of August, 1953.
“6. On said 28th day of August, 1953, a four-year-old Hereford cow weighing approximately eleven hundred (1100) pounds owned by plaintiff was struck by one of defendant’s eastbound trains while said cow was on said open private crossing and was fatally injured.
“7. Said cow was of the value of $225.00 immediately prior to its said fatal injury.
“8. Notice of said fatal injury of said cow and claim' therefor in the sum of Two Hundred Twenty Five Dollars ($225) was made upon defendant by plaintiff in the manner required by law, and such claim was denied and disallowed by defendant.”
So- far as here pertinent Exhibit “A,” referred to in the foregoing stipulation, recites:
“Affiant further says that at the time said right of way was purchased by said railroad company, and at the time said railroad was built across said Quarter Section, that there was a written contract entered into between this affiant, as the owner of said land, and The Denver, Memphis & Atlantic Railway, by its proper officers, by which it was agreed, in consideration of this affiant making a deed to said Railroad Company, or to such person as it should order for the right of way across said Quarter Section of land, and upon deduction by this affiant of certain damages which he claimed by reason of said right of way across said real estate, that at or near the place where the railroad left said Quarter Section, near the West line thereof, that there should be forever kept and maintained, an open crossing crossing said railroad, for the use and accommodation of this affiant and the persons to whom he might thereafter sell said real estate; that said open crossing was to be forever maintained so long as said railroad and roadbed was located across said Quarter Section; that said open crossing was to cross said railroad just to the west side of what was then used as a corral on said land, and it was also agreed in said written contract^ that just at the east side of said corral, and being about thirty rods to the east of where the open crossing was to be left, that there should also be another crossing, which was to be a closed crossing, and that said crossing was to be forever maintained by said railroad company.”
Following submission of the cause in form and manner as heretofore indicated the trial court took the case under advisement and ultimately rendered judgment in favor of plaintiff and against the defendant for the value of the cow and an attorney fee, all as claimed in the petition. Thereupon defendant perfected the instant appeal and brought the case to this court where the only error specified is that, under the facts on which the case was submitted, the judgment of the trial court is contrary to law.
At the outset it may be stated that, notwithstanding, differences in phraseology, it is clear from an examination of statements made by the parties in their briefs that they are agreed the sole question involved,in this case is whether, in the absence of negligence and under the facts as stipulated, the railroad company is liable for the loss of a cow, killed by a train on an open private crossing which, by written contract and final decree of this court, it was precluded from enclosing with either fences or gates.
The railroad stock law of 1874, particularly provisions thereof that are now to be found in G. S. 1949, 66-295 and 66-299, provides that a railroad company shall be liable to,pay the owner of every animal killed by its trains with the single exception that the act shall not apply to any such company whose road is enclosed with a good and lawful fence to prevent such animal from being on such road.
The gist of all arguments advanced by appellee in support of the judgment in the case at bar is that since it appears from the stipulation of facts the private crossing at which the animal in question was killed was not enclosed by fences or gates the railroad was not enclosed with a good and lawful fence at that point, hence the appellant made itself liable to appellee under the provisions of the statute heretofore cited without pleading or proving negligence and regardless of the conditions and circumstances under which such crossing was in in that open condition.
It may be conceded pleading or proof of negligence is not required to make out a prima facie case against the appellant under the provisions of the involved statute but it does not follow, as appellee contends, appellant was liable fo the killing of the cow irrespective of the conditions and circumstances under which the crossing was in in its open condition. See the early case of Union Pac. Ry. Co. v. Dyche, 28 Kan. 200, where it is held that when it appeared from the testimony that the railroad was unfenced at the place of injury the burden of proof was on the railroad company to show that it was under no obligation to fence at such place and in the opinion (citing A. T. & Santa Fe Rld Co v. Jones, 20 Kan. 527) stated that while the language of the statute on its face required the enclosing of the entire line of road, the courts have interpolated certain exceptions upon its general language and have held that, where superior obligations forbid a fence, the provisions of such statute are inapplicable. Moreover, in decisions (Stanley v. Railway Co., 88 Kan. 84, 86, 127 Pac. 620; Atkinson v. Railway Co., 95 Kan. 828, 830, 149 Pac. 430) construing such statute this court has held that its terms and provisions do not require a railroad right of way to be fenced although they do make the railway company responsible for animals killed or injured by the operation of its railway, irrespective of negligence, except where the road is enclosed with a lawful fence.
In the instant case it appears from the stipulation of facts, in fact the appellee concedes, liability of the railroad for the killing of his cow is predicated solely upon the provisions of G. S. 1949, 66-295 and 66-299. In summarized fashion, from an examination of all matters and things therein referred to, it may be stated, it further appears from such stipulation that since 1887, and probably for sometime prior thereto, appellee and his predecessors in title have been in full and open enjoyment of the right to the open farm crossing involved under the terms and provisions of a written contract; that this contract was the subject of litigation in Atkinson v. Railway Co., supra, where it is held:
“A contract between a railway company and a landowner for a farm crossing without gates, forming a part of the consideration for the railway right of way across the owner’s land, is not contrary to the public policy of this state as indicated by its statutes and the contract may be specifically enforced by the landowner although he has had considerable trouble about cattle getting killed at the crossing and the railway company desires to erect gates to avoid killing the plaintiff’s cattle and to protect the public.” (Syl.);
and that on the date appellee’s cow was killed appellee was insisting, and still insists, upon full and strict compliance with the terms of such contract under the law established by this court in the decision from which we have just quoted.
From what has just been related, and following the rule, to which we have heretofore referred, that standing alone the terms and provisions of the involved statute do not require a railroad right of way to be fenced, it becomes obvious that the all decisive question involved in this lawsuit is whether appellee can require appellant to maintain an open private crossing on his land and at the same time mulct it in damages for its failure to enclose such crossing with fences and/or gates.
It would add nothing to our reports to here labor the numerous early decisions of this court dealing with the rights, duties and obligations of railroad companies with respect to fences for the protection of stock under the involved statute, or the divers other statutes of the state, dealing with such subject. It may be stated we have examined all cases cited by the parties, as well as many others that our own independent research at first made it appear might be in point, and have found no cases in this jurisdiction which can be regarded as controlling precedents. In our opinion, from the standpoint of closeness Stovall v. Railway Co., 83 Kan. 735, 112 Pac. 740, comes the nearest to falling within that category. Even so, it must be conceded, the most that can be said for it is that it recognizes the view of this court that where the road of a railway company runs through a farm the owner thereof and such company may contract with each other respecting the type and character of fence required for the protection of stock; and that having done so the landowner and his successors in right can not well insist thereafter that the company has violated its duty under the statutory provisions here involved (66-295 and 66-299) and make that alone the basis of recovery for the killing of a cow at an open private crossing, which is maintained in that form pursuant to the terms of their contract.
Having exhausted our decisions it may also be stated that we then turned to well-recognized legal treatises, textbooks and decisions from foreign jurisdictions for the purpose of determining what we have heretofore denominated the all decisive question in the case at bar. Again we are not inclined to spell out or detail what is said and held in the books. It suffices to say that after an extended examination of the authorities hereinafter cited we are convinced the rule, supported by the great weight of authority, is that the provisions of a statute requiring a railroad company to enclose its road with a good and lawful fence in order to avoid liability for the killing of livestock may be waived by the owner qf the land through which the railroad runs, by contract, and that the effect of such waiver will be to relieve the company from liability for injuries or death to cattle happening in consequence of the fence not being constructed according to the requirements of the statute. We pause here to note that when carefully analyzed this rule, to which we adhere, simply means that, as between themselves, the owner and the company can contract and agree upon what is to be regarded as a good and lawful fence under the terms and provisions of the involved statute (66-295 and 66-299).
For authorities supporting the rule just stated, some of which concededly deal with different facts and circumstances but are nevertheless persuasive, see 74 C. J. S., Railroads, pp 662, 1160, 1189 §§ 181, 561, 592; 44 Am. Jur., Railroads, p. 372 § 157; 3 Elliott on Railroads [3rd Ed.], pp. 638, 641, 644, 654, 672 §§ 1703, 1704, 1705, 1708, 1716; 3 Shearman & Redfield on Negligence [Rev. Ed.], p. 1042 § 428; Enright v. S. F. & S. J. R. R. Co., 33 Cal. 230, 236; Whittier v. C., M. & St. P. P. Roy Co., 24 Minn. 394; Manwell v. The Burlington, C. R. & N. Ry. Co., 80 Iowa 662, 45 N. W. 568; Hurd v. Rutland & Burlington Railroad Co., 25 Vt. 116; Tyson v. The K. & D. M. R. Co., 43 Iowa 207; The Terre Haute & Richmond Railroad Co. v. Smith, 16 Ind. 102; Ells v. Pacific Railroad, 48 Mo. 231.
We think application of the foregoing rule to the facts of this case makes it clear that appellee cannot require appellant to maintain the open private crossing on his land, under the terms of the involved contract, and at the same time hold it liable in damages for the killing of his cow because of its failure to fence such crossing.
What has been heretofore stated and held compels the conclusion the facts as stipulated do not permit or warrant the judgment. It follows such judgment must be reversed with directions to set it aside and render judgment in favor of the appellant.
It is so ordered. | [
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